FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OFTHE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended MAY 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________________ to ___________________
Commission File Number 0-12353
PLASMA-THERM, INC.
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(Exact name of registrant as specified in its charter)
FLORIDA 04-2554632
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10050 16TH STREET NORTH, ST. PETERSBURG, FLORIDA 33716
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(Address of principal executive offices and zip code)
(727) 577-4999
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Registrant's telephone number, including area code
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(Former name, former address and former fiscal year, if changed since
last report)
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
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13, or 15(d)
of the Securities Exchange Act of 1934 subsequent to the distribution
of securities under a plan confirmed by a court.
Yes [ ] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
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
Outstanding at June 18, 1999:
11,220,061
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<PAGE>
INDEX
PAGE
NUMBER
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PART 1. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Balance Sheets - May 31, 1999 and
November 30, 1998........................................................ 3
Statements of Income - Three Months and Six Months ended
May 31, 1999 and May 31, 1998 ........................................... 5
Statements of Cash Flows - Six Months ended
May 31, 1999 and May 31, 1998 ........................................... 6
Notes to Consolidated Financial Statements ................................ 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations ............................ 12
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders............ 19
Item 6. Exhibits and Reports on Form 8-K ............................... 20
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PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
MAY 31, NOVEMBER 30,
ASSETS 1999 1998
----------- ------------
(unaudited)
Current assets
Cash and cash equivalents $ 6,141,482 $ 7,170,464
Accounts receivable 11,683,804 14,842,937
Inventories 9,806,101 9,859,914
Prepaid income taxes 1,104,916 1,405,591
Prepaid expenses and other 578,502 747,234
Deferred tax asset 473,149 244,691
----------- -----------
Total current assets 29,787,954 34,270,831
----------- -----------
Property, plant and equipment
Building 5,291,813 4,996,731
Machinery and equipment 11,956,924 11,296,080
Leasehold improvements 152,217 151,005
----------- -----------
17,400,954 16,443,816
Less accumulated depreciation and
amortization 5,948,331 4,610,619
----------- -----------
11,452,623 11,833,197
Land 2,163,120 1,012,992
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13,615,743 12,846,189
----------- -----------
Other assets 121,318 151,762
----------- -----------
$43,525,015 $47,268,782
=========== ===========
See accompanying notes to these consolidated financial statements.
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PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
MAY 31, NOVEMBER 30,
LIABILITIES 1999 1998
----------- -----------
Current liabilities
Short-term borrowings $ 5,000,000 $ 5,000,000
Current maturities of long-term obligations 608,675 585,228
Accounts payable 3,389,420 4,828,263
Accrued payroll and related 518,096 605,431
Accrued expenses 1,697,609 1,083,535
Accrued restructuring charge 408,720 992,847
Customer deposits 17,765 570,625
----------- -----------
Total current liabilities 11,640,285 13,665,929
----------- -----------
Long-term obligations 3,432,366 3,085,353
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SHAREHOLDERS' EQUITY
Shareholders' equity
Common stock, $.01 par value (25,000,000
shares authorized, 11,220,061 and
11,207,061 shares issued and outstanding
at May 31, 1999 and November 30, 1998) 112,202 112,072
Additional paid-in capital 17,208,503 17,156,849
Retained earnings 11,131,659 13,248,579
----------- -----------
28,452,364 30,517,500
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$43,525,015 $47,268,782
=========== ===========
See accompanying notes to these consolidated financial statements.
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<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
THREE MONTHS ENDED SIX MONTHS ENDED
MAY 31, MAY 31,
----------------------------- -----------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales $ 9,227,437 $ 14,962,868 $ 18,523,812 $ 27,274,588
Cost of sales 5,857,808 8,156,422 12,409,039 15,126,526
------------ ------------ ------------ ------------
Gross profit 3,369,629 6,806,446 6,114,773 12,148,062
------------ ------------ ------------ ------------
Operating expenses:
Research and development 1,923,418 1,659,290 4,089,396 2,763,017
Selling and administrative 2,142,249 2,553,521 4,004,158 4,400,772
Restructuring charge 143,033 -- 948,069 --
------------ ------------ ------------ ------------
Total operating expenses 4,208,700 4,212,811 9,041,623 7,163,789
------------ ------------ ------------ ------------
Operating income (839,071) 2,593,635 (2,926,850) 4,984,273
Interest (income) expense, net 88,147 60,879 158,498 106,634
------------ ------------ ------------ ------------
Income (loss) before income
taxes (benefit) (927,218) 2,532,756 (3,085,348) 4,877,639
Income taxes (benefit) (220,400) 952,843 (968,428) 1,824,046
------------ ------------ ------------ ------------
Net income (loss) $ (706,818) $ 1,579,913 $ (2,116,920) $ 3,053,593
============ ============ ============ ============
Earnings (loss) per share:
Basic $ (0.06) $ 0.14 $ (0.19) $ 0.27
============ ============ ============ ============
Diluted $ (0.06) $ 0.14 $ (0.19) $ 0.27
============ ============ ============ ============
</TABLE>
See accompanying notes to these consolidated financial statements.
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<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
SIX MONTHS ENDED MAY 31,
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1999 1998
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<S> <C> <C>
Cash flows from operating activities
Net income (loss) $(2,116,920) $ 3,053,593
Adjustments to reconcile net income (loss) to net
cash provided by operating activities
Depreciation and amortization 1,532,190 1,134,281
Gain on disposal of assets (12,054)
Deferred taxes (228,458) 33,558
Compensation - stock options 12,600 12,000
Tax benefit related to certain stock options
and warrants 6,624 97,059
Changes in assets and liabilities
(Increase) decrease in accounts receivable 3,159,133 (161,971)
(Increase) decrease in inventories 53,813 (1,644,703)
(Increase) decrease in prepaid income taxes 300,675 (42,826)
(Increase) decrease in prepaid expenses and other 168,732 (327,921)
Increase (decrease) in accounts payable (1,438,843) 735,049
Increase (decrease) in accrued payroll and related (87,335) 100,847
Increase in accrued expenses 614,074 164,477
Decrease in accrued restructuring charge (584,127) --
Increase (decrease) in customer deposits (552,860) 25,500
----------- -----------
Net cash provided by
operating activities 827,244 3,178,943
----------- -----------
Cash flows from investing activities
Capital expenditures (2,326,665) (1,806,323)
Proceeds from sale of fixed assets 66,975
Other 444 22,821
----------- -----------
Net cash used in investing activities (2,259,246) (1,783,502)
----------- -----------
</TABLE>
See accompanying notes to these consolidated financial statements.
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<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(Unaudited)
SIX MONTHS ENDED MAY 31,
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1999 1998
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<S> <C> <C>
Cash flows from financing activities
Proceeds from issuance of long-term obligations 700,000 --
Principal payments on long-term obligations (329,540) (358,895)
Net proceeds under line of credit agreements -- --
Exercise of stock options and warrants 32,560 306,445
----------- -----------
Net cash provided by (used in)
financing activities 403,020 (52,450)
----------- -----------
Net increase (decrease) in cash and
cash equivalents (1,028,982) 1,342,991
----------- -----------
Cash and cash equivalents, beginning of period 7,170,464 5,398,030
----------- -----------
Cash and cash equivalents, end of period $ 6,141,482 $ 6,741,021
=========== ===========
</TABLE>
See accompanying notes to these consolidated financial statements.
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PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MAY 31, 1999 AND NOVEMBER 30, 1998
(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 May 31, 1999 and November 30, 1998 and the
results of operations and cash flows for the six months ended May 31,
1999 and 1998.
The results of operations for the six months ended May 31, 1999 and
1998 are not necessarily indicative of results for the full year.
The November 30, 1998 balance sheet amounts and disclosures included
herein have been derived from the November 30, 1998 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. and its wholly owned subsidiary, Magnetran Inc. All
significant intercompany transactions and balances have been
eliminated.
NOTE 3 INVENTORIES
Inventories consist of the following:
MAY 31, NOVEMBER 30,
1999 1998
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Raw materials $5,282,509 $4,974,844
Work-in-process 3,957,480 4,477,355
Finished goods 566,112 407,715
---------- ----------
$9,806,101 $9,859,914
========== ==========
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NOTE 4 EARNINGS PER SHARE DISCLOSURES
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED MAY 31, 1999
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
------------- ------------- ---------
<S> <C> <C> <C>
Basic EPS:
Income (loss) available to common
Shareholders ($ 706,818) 11,220,061 ($ .06)
=======
Effect of Dilutive Securities:
Options -- 22,653
----------- ----------
Diluted EPS:
Income (loss) available to common
Shareholders+ assumed conversions ($ 706,818) 11,242,714 ($ .06)
=========== =========== =======
</TABLE>
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED MAY 31, 1998
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
------------- ------------- ---------
<S> <C> <C> <C>
Basic EPS:
Income available to common
Shareholders $ 1,579,913 11,169,632 $ .14
=======
Effect of Dilutive Securities:
Options -- 255,191
----------- ----------
Diluted EPS:
Income available to common
Shareholders+ assumed conversions $ 1,579,913 11,424,823 $ .14
=========== =========== =======
</TABLE>
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<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED MAY 31, 1999
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
------------- ------------- ---------
<S> <C> <C> <C>
Basic EPS:
Income (loss) available to common
Shareholders ($2,116,920) 11,218,262 ($ .19)
=======
Effect of Dilutive Securities:
Options -- 14,854
----------- ------------
Diluted EPS:
Income (loss) available to common
Shareholders+ assumed conversions ($2,116,920) 11,233,116 ($ .19)
=========== =========== =======
</TABLE>
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED MAY 31, 1998
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
------------- ------------- ---------
<S> <C> <C> <C>
Basic EPS:
Income available to common
Shareholders $ 3,053,593 11,155,564 $ .27
=======
Effect of Dilutive Securities:
Options -- 250,331
----------- ----------
Diluted EPS:
Income available to common
Shareholders+ assumed conversions $ 3,053,593 11,405,895 $ .27
=========== =========== =======
</TABLE>
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NOTE 5 SHORT-TERM BORROWINGS
CONSTRUCTION LOAN
In February, 1999 the Company executed a promissory note for
$4,500,000 with its bank for the construction of its 33,000 square
foot R&D facility adjacent to its current facility. During the
construction phase, interest is payable monthly at the one month LIBOR
rate plus 2.25% on the outstanding balance. Upon completion of the
construction phase, the note will be converted to a five year term
loan and amortized over a fifteen year period. Equal payments of
principal and interest will be payable monthly at a fixed interest
rate based on the LIBOR rate plus 2.25%. The interest rate will be
determined prior to conversion. The loan will be collateralized by the
land, the building and its contents. The facility will reside on
existing land and 1.4 acres purchased in December 1997 for $226,975.
In March 1999, the construction of the facility was temporarily put on
hold. After approximately six months the Company will re-evaluate its
financial condition and overall industry market conditions and
determine whether to proceed with the construction. No draws have been
made on the construction loan.
TERM LOAN
In May 1999, the Company executed a $700,000 term loan with its bank
for the purchase of eight acres of land directly across from its
existing facility. The total cost of the land was $1,150,000. The five
year term loan is amortized over a fifteen year period, and payable in
monthly installments of $3,889 plus interest at the one month LIBOR
rate plus 2.25% (7.15% at May 31,1999) through May 2004. The note is
secured by the land.
LINE OF CREDIT
In May 1999, the Company renewed its $10,000,000 line of credit with
its bank. The term of the line of credit agreement is through May
2000. Interest is payable monthly at the one month LIBOR rate plus 2%
(6.9% at May 31, 1999). The line is collateralized by all of the
Company's assets.
All the real estate loans are cross-collateralized, including the $4.5
million construction loan for the new R&D facility, the $700,000 term
loan for the land, and the term loan for the Company's existing
facility. The line of credit is cross-collateralized with the
Company's $1 million term loan. All debt is cross-defaulted.
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<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
Net sales of $9,227,437 for the second quarter of 1999 decreased by
38% from net sales of $14,962,868 for the second quarter of 1998. For the first
six months of 1999, the Company reported net sales of $18,523,812, which was 32%
lower than net sales of $27,274,588 for the first six months of 1998. The
decrease in net sales for both the second quarter and first six months was
primarily due to the continued slowdown in the Company's four market segments.
Gross profit of $3,369,629 for the second quarter of 1999 was 37% of
net sales, compared to $6,806,446 for the second quarter of 1998 which was 46%
of net sales. Gross profit of $6,114,773 for the first six months of 1999 was
33% of net sales, compared to $12,148,062 for the first six months of 1998,
which was 45% of net sales. The slowdown in the Company's four markets resulted
in lower net sales, causing the Company to experience an increase in fixed
manufacturing costs as a percentage of net sales; the primary reason for the
reduction in gross margin for the second quarter of 1999. The decrease in gross
margin for the first six months of 1999 was attributable to lower net sales, in
addition to the strategic placement of lower margin systems sold in the
microelectromechanical (MEMS) market, primarily in the first quarter of 1999, in
an effort to increase market share.
Research and development expense for the second quarter of 1999 and
1998 was $1,923,418 and $1,659,290, which was 21% and 11% of net sales,
respectively. Research and development expense for the first six months of 1999
and 1998 was $4,089,396 and $2,763,017, which was 22% and 10% of net sales
respectively. The increase is the direct result of the continued implementation
of new research and development programs to enhance development efforts in the
Company's target markets: optoelectronics/telecommunications, data storage,
photomask, and MEMS. Specifically, within the data storage market the Company
has invested significant resources for its Physical Vapor Deposition (PVD)
development program. The Company operates in constantly changing and highly
competitive markets. Therefore, the Company believes it is critical to continue
to increase its investment in research and development programs in order to
continue to provide innovative, high-quality products, as well as maintain and
increase its position as a technology leader in the markets served.
Selling and administrative expense was $2,142,249 for the second
quarter of 1999, down from $2,553,521 for the second quarter of 1998, consisting
of 23% and 17% of net sales, respectively. Selling and administrative expense
for the first six months of 1999 was $4,004,158, down from $4,400,772 for the
first six months of 1998, consisting of 22% and 16% of net sales, respectively.
The decrease in total dollars for the second quarter and the first six months of
1999 was partially attributable to the restructuring of overhead and reduction
of personnel in March of 1999. Furthermore, no officers' bonuses were paid in
the second quarter and the first six months of 1999, while officers' bonuses of
approximately $190,000 and $380,000, respectively, were paid for the second
quarter and first six months of 1998. The increase as a percentage of net
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sales was a direct result of the decrease in net sales for the second quarter
and first six months of 1999.
Net loss before the income tax benefit for the second quarter of 1999
was $927,218 ($.06 per diluted share), compared to net income before income
taxes of $2,532,756 ($.14 per diluted share) in the second quarter of 1998. Net
loss before income tax benefit for the first six months of 1999 was $3,085,348
($.19 per diluted share) compared to net income before income taxes of
$4,877,638 ($.27 per diluted share) for the first six months of 1998. Included
in the net loss before the income tax benefit for the second quarter and first
six months of 1999 was an additional restructuring charge of $143,033 and
$948,069, respectively, related to services provided by TRW/BDM International
pertaining to the Company's implementation of the Supply Chain Management
program, and the restructuring of overhead and personnel in March of 1999. The
restructuring charge of $143,033 for the second quarter of 1999 had a minimal
effect (less than $.01) on earnings per share. Included in the loss of $.19 per
share for the first six months of 1999 is a charge of $.05 per share for
restructuring. The primary reasons for the decrease in net income for the second
quarter and first six months of 1999 as compared to the same periods in 1998 are
described above.
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<PAGE>
FINANCIAL POSITION, LIQUIDITY AND CAPITAL REQUIREMENTS
Net cash provided by operations totaled $827,244 for the first six
months of 1999, compared to net cash provided by operations of $3,178,943 for
the same period in 1998. Cash generated from operations for the first six months
of 1999 consisted of various components including non-cash depreciation and
amortization of $1,532,190 and decreases in accounts receivable, prepaid income
taxes, and accrued expenses of $3,159,133, $300,675, and $614,074, respectively.
Primary sources of cash were partially offset by a net loss of $2,116,920 in
addition to decreases in accounts payable, restructuring charge, and customer
deposits of $1,438,843, $584,127 and $552,860, respectively. The decrease in
accounts receivable was related to lower revenue generated in the first six
months of 1999. The decrease in prepaid income taxes consists of a refund of
approximately $1.2 million for the overpayment of federal income taxes for 1998
partially offset by the recording of the tax benefit of approximately $860,000
related to the net loss realized in the first six months of 1999. The increase
in accrued expenses was primarily related to an increase in commissions payable
to international sales representatives. Commissions due to international sales
representatives at any given time are directly related to the mix between
domestic and international sales and the timing of receipts from customers.
International representatives are paid after payment is received from the
customer. As a result of the weakening economic conditions of the semiconductor
industry, in September 1998, the Company temporarily extended its payment terms
to primarily all of its vendors to 90 days. As of May 31, 1999, the majority of
the vendors on extended terms had been repaid, thus resulting in a reduction of
accounts payable. The reduction in accrued restructuring relates primarily to
payments to TRW/BDM International pertaining to the Company's implementation of
the Supply Chain Management program. The decrease in customer deposits was the
result of recognizing revenue in the first six months of 1999 upon shipment of
systems on which partial payments had been made and classified as deposits on
the balance sheet as of November 30, 1998.
Net cash used in investing activities for the first six months of 1999
was $2,259,246 compared to $1,783,502 for the same period in 1998. For the first
six months of 1999, the Company incurred approximately $2,330,000 in capital
expenditures, of which $630,000 was for the purchase and construction of various
lab equipment to be used for research and development. In addition,
approximately $300,000 was for the construction on a 33,000 square foot facility
to be used for additional research and development and office space. As of the
middle of March 1999, the construction of the new facility was delayed for at
least six months. Thc Company also purchased approximately eight acres of land
for $1,150,000 directly across from its current facilities. The remaining
$250,000 was for the purchase of various computer and manufacturing equipment.
Net cash provided by financing activities for the first six months of
1999 was $403,020, compared to net cash used in financing activities of $52,450
for the same period in 1998. Cash provided by financing activities in the first
six months of 1999 included $700,000 received from the issuance of a promissory
note in relation to the purchases of the eight acres of land, and approximately
$30,000 from the exercise of stock options in connection with the Company's
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<PAGE>
stock option plan. Cash used for financing activities in the first half of 1999
included principal repayments of approximately $330,000 for long-term
obligations.
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<PAGE>
FORWARD LOOKING INFORMATION
From time to time, the Company may publish forward-looking statements
relating to such matters as anticipated financial performance, business
prospects, technological developments, new products, research and development
activities and similar matters. The Private Securities Litigation Reform Act of
1995 provides a safe harbor for forward-looking statements. In order to comply
with the terms of the safe harbor, the Company notes that a variety of factors
could cause the Company's actual results and experience to differ materially
from the anticipated results or other expectations expressed in the Company's
forward-looking statements, including the forward-looking statements contained
in this report. The risks and uncertainties that may affect the operations,
performance, development and results of the Company's business include but are
not limited to the following:
The Company sells relatively expensive capital equipment, and in any
given quarter or financial period, any one customer or any individual shipment
may represent a significant portion of revenue in that period. Therefore, a
delay or cancellation of that shipment could cause the Company to experience a
revenue or earnings shortfall for a given financial period.
The Company relies on distributors and representatives, which
complement its direct sales and service staff, to sell and service its products
in various geographic locations. Should these sales and service channels be
rendered ineffective, it could materially impact the Company's business. Some of
the Company's competitors have more extensive direct sales and service locations
in the Company's distributors' and representatives' channels, which could
provide these competitors with a competitive advantage in certain geographic
areas.
Plasma-Therm, Inc. depends heavily on the success and growth of the
high technology marketplace. In particular, a slowdown in personal computer
consumption could cause a slowdown of disk drive production, resulting in lower
output of data storage, which could materially affect the Company's business.
The Company also relies on the health of its four served markets: data
storage, microelectromechanical, photomask, and
optoelectronics/telecommunications, in addition to the general semiconductor
equipment marketplace. A slowdown in capital equipment purchases could also
affect the Company's business from time to time.
YEAR 2000
The inability of certain computers, software, and equipment utilizing
microprocessors to properly recognize data fields containing a two-digit year
commonly is referred to as the Year 2000 issue. The Company has conducted a
comprehensive review of its hardware and software systems and all of the
Company's embedded systems contained in the Company's buildings, plant,
equipment, and other infrastructure to identify applications that could be
affected by the Year 2000 issue. Following this review, the Company took
corrective measures to resolve any problems associated with the Year 2000 issue,
and the costs associated with such corrective measures were not material. The
Company's hardware and software systems and embedded systems have been
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tested internally, and the Company believes them to be Year 2000 compliant.
Ongoing monitoring of hardware and software developments, which may affect the
Company's internal operations, are in place, and any corrective actions will be
taken as necessary. Such ongoing costs are not expected to be significant.
However, there cannot be any guaranty that all of the Company's systems are
completely Year 2000 compliant.
The Company also conducted a comprehensive review of the Year 2000 readiness of
the Company's products including computers, operating systems, and software that
form a part of the Company's products. With respect to the computers that form a
part of the Company's products, each of the computers is substantially Year 2000
compliant. However, the functions performed by these computers are not affected
by their ability to recognize and properly perform date-sensitive functions. As
a result, the Company's product performance is not affected by whether these
computers are Year 2000 compliant. Accordingly, the failure of these computers
to be Year 2000 compliant would not have a material affect on the Company.
With respect to the operating systems that form a part of the Company's
products, testing of current and ongoing releases from our operating systems
manufacturers continues to show these are substantially Year 2000 compliant.
Areas of non-compliance within operating systems from our manufacturers have
little or no application or effect on the performance of the Company's products.
With respect to the software that forms a part of the Company's products, most
system software utilizes date information from the computer or operating system,
and does not process the date for normal system operation. This assures the
lowest impact for date-related issues to the software. In all known cases where
portions of the software may be non-compliant, the software has no effect on
performing the basic functions of the system. However, the Year 2000 problem
associated with the software, should it arise, can be easily corrected manually.
During the Company's fiscal third quarter, the Company will contact customers
using products containing hardware, operating systems and software sensitive to
the Year 2000 issue. Specific information regarding product performance,
precautions and manual methods of dealing with the Year 2000 problem, should it
arise, will be provided. Operating system and software upgrades, which will
include Year 2000 related upgrades, will be made available as they are
incorporated in planned releases during 1999.
The Company does not interact electronically with its customers or suppliers.
The Company does not believe that the failure of its customers or suppliers to
be Year 2000 compliant would materially affect the Company's business, results
of operations, or financial condition. Nonetheless, the Company has sent letters
to each of its suppliers from whom the Company has purchased at least $1,000 of
materials during the last three years to determine their Year 2000 readiness.
The Company has received responses from a majority of these suppliers that they
are or will be Year 2000 compliant, and the Company continues to seek responses
from the rest of its suppliers.
Based on the Company's Year 2000 analysis described above, the Company is
uncertain of its worst case scenario if the Company's products, systems,
customers, or suppliers are not Year
-17-
<PAGE>
2000 compliant. In addition, the Company has not established and does not intend
to establish a contingency plan in case it is not Year 2000 compliant.
-18-
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
The Company held its Annual Meeting of Shareholders on May 11, 1999. At the
meeting, the shareholders voted on the election of directors.
Four directors were elected to the Board of Directors of the Company, to
serve until the next annual meeting of shareholders and until their
successors are duly elected and qualified, for the terms of office expiring
at the next annual meeting of shareholders: Ronald H. Deferrari, Anastasios
S. Gianoplus, Richard Heglin and Lubek Jastrzebski. No other directors'
term of office continued after the meeting. A total of 10,113,381 votes
were cast for and 502,478 votes were withheld with the respect to the
election of Mr. Deferrari, Mr. Gianoplus, Mr. Heglin, and Dr. Jastrzebski,
respectively.
-19-
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
10.56 Loan Agreement dated May 31, 1999 between the Registrant and
NationsBank, N.A. (South) (including Third Amendment to Credit
Agreement, Second Amendment to Security Agreement,
Ratification and Reaffirmation of Guaranty Agreement, Line of
Credit Promissory Note).
10.57 Promissory Note dated May 27, 1999 between the Registrant and
NationsBank, N.A., including Mortgage, Assignment of Rents and
Security Agreement, and Guaranty Agreement.
10.58 Real Estate Purchase and Sale Agreement dated April 21, 1999
between Registrant and M.K.C., Inc., including First Amendment
to Real Estate and Purchase and Sale Agreement dated April 29,
1999, Assumption and Hold Harmless Agreement dated May 27,
1999, Hold Harmless Agreement dated May 27, 1999, and
Agreement dated May 27, 1999.
10.59 Amendment to Construction Agreement dated May 31, 1999 between
the Registrant and The Perry Company.
27 Financial Data Schedule (for SEC use only).
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the second quarter of fiscal
1999.
-20-
<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.
Date: June 18, 1999 BY: /s/ STACY WAGNER
-----------------------
Stacy Wagner
Chief Financial Officer, Treasurer and
Secretary
-21-
<PAGE>
PLASMA-THERM, INC.
FOR 10-Q (FOR THE SIX MONTHS ENDED MAY 31, 1999)
EXHIBIT INDEX
10.56 Loan Agreement dated May 31, 1999 between the Registrant and
NationsBank, N.A. (South) (including Third Amendment to Credit
Agreement, Second Amendment to Security Agreement,
Ratification and Reaffirmation of Guaranty Agreement, Line of
Credit Promissory Note).
10.57 Promissory Note dated May 27, 1999 between the Registrant and
NationsBank, N.A., including Mortgage, Assignment of Rents and
Security Agreement, and Guaranty Agreement.
10.58 Real Estate Purchase and Sale Agreement dated April 21, 1999
between Registrant and M.K.C., Inc., including First Amendment
to Real Estate and Purchase and Sale Agreement dated April 29,
1999, Assumption and Hold Harmless Agreement dated May 27,
1999, Hold Harmless Agreement dated May 27, 1999, and
Agreement dated May 27, 1999.
10.59 Amendment to Construction Agreement dated May 31, 1999 between
the Registrant and The Perry Company.
27 Financial Data Schedule (for SEC use only).
EXHIBIT 10.56
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Third Amendment"), is
executed as of the 31st day of May, 1999, by and between PLASMA-THERM, INC., a
Florida corporation whose address is 10050 16th Street North, St. Petersburg,
Florida 33716 (hereinafter called "Borrower") and NATIONSBANK, N.A., a national
banking association, f/k/a NationsBank, N.A. (South), whose address is 101 E.
Kennedy Boulevard, 5th Floor (FL1-400-05-03), Tampa, Florida 33602 (hereinafter
called "Lender").
W I T N E S S E T H:
WHEREAS, on April 18, 1997, Borrower and Lender executed that certain
Credit Agreement (the "Credit Agreement") to set forth the terms and provisions
relating to certain loans made by Lender to Borrower.
WHEREAS, the Credit Agreement was amended on March 25, 1998 (the "First
Amendment"), December 8, 1998 (by letter agreement) (the "Letter Amendment") and
on February 18, 1999 (the "Second Amendment").
WHEREAS, simultaneously with entering into this Third Amendment,
Borrower has renewed its revolving line of credit loan from Lender in the
maximum principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00),
pursuant to the terms and provisions set forth in that certain Commitment Letter
dated May 31, 1999.
WHEREAS, on or about May 27, 1999, Borrower closed on a real estate
mortgage loan from the Lender as evidenced by a Promissory Note in the amount of
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($700,000.00), made pursuant to the
terms and provisions set forth in that certain Commitment Letter dated April 19,
1999.
WHEREAS, Lender and Borrower desire to amend the Credit Agreement, as
previously amended by the First Amendment, Letter Amendment and Second
Amendment.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The terms of the Credit Agreement,
First Amendment, Letter Amendment and Second Amendment are hereby modified,
supplemented and amended as follows:
<PAGE>
a. The Borrowing Base Certificate attached as Exhibit "A" to
the Credit Agreement is hereby deleted in its entirety and replaced by that
certain Borrowing Base Certificate Form attached hereto as Exhibit "A" to this
Third Amendment.
b. The definition of "Eligible Account" set forth in Section
1(l) of the Credit Agreement is deleted in its entirety and replaced by the
following definition:
"Eligible Account" means an Account owing to
Borrower, now existing or hereafter arising, which Account
meets the following specifications at the time it came into
existence and continues to meet the same until it is collected
in full unless otherwise agreed to by Lender in writing:
(i) the Account is due and payable and not more than
sixty (60) days have elapsed since the initial invoice was
issued;
(ii) the Account arose from the outright sale or
lease of goods or from the performance of services by
Borrower; such goods have been shipped to the account debtor
or debtor has taken title of such goods using other acceptable
accounting practices and a third party bill and hold agreement
has been established between the account debtor, Lender and
Borrower, or such services have been performed, and the
Account is evidenced by such invoices, shipping documents, or
other instruments ordinarily used in the trade as shall be
reasonably satisfactory to Lender; no return, rejection or
repossession has occurred and such goods and services have
been delivered.
(iii) the Account is not subject to any assignment,
claim, lien, or security interest, except in favor of Lender;
(iv) the Account is a valid and legally enforceable
obligation of the account debtor and is not subject to credit,
allowance, defense, offset, counterclaim or adjustment by the
account debtor, other than any discount allowed for prompt
payment;
(v) the Account arose in the ordinary course of
business of Borrower and no notice of the bankruptcy,
insolvency, failure, or suspension or termination of business
of the account debtor has been received by Borrower;
2
<PAGE>
(vi) the account debtor is not an affiliate of
Borrower nor a supplier (or an affiliate of a supplier) of
goods or services to Borrower;
(vii) the Account otherwise conforms to all
representations, warranties and other provisions of this
Agreement; and
(viii) Bank in its sole reasonable discretion has not
deemed the Account or account debtor unsatisfactory.
c. The definition of "Closing" set forth in Section 1(i) of
the Credit Agreement is deleted in its entirety and replaced by the following
definition:
"Closing" shall mean the closing which occurred on
April 18, 1997 in Chicago, Illinois, or the date of the
execution of the First Amendment, the Letter Amendment, the
Second Amendment, or the Third Amendment, in such locations as
the parties hereto mutually select for the closings.
d. The definition of "Commitment Letter" set forth in Section
1(k) of the Credit Agreement is deleted in its entirety and replaced by the
following definition:
"Commitment Letter" means the Commitment Letter dated
March 19, 1997, the Commitment Letter dated March 18, 1998,
and the Commitment Letter dated May 31, 1999.
e. The definition of "Notes" set forth in Section 1(z) of the
Credit Agreement is deleted in its entirety and replaced by the following
definition:
"Notes" mean the Line Note of Borrower payable to the
order of Lender, in the maximum principal amount of
$10,000,000.00, substantially in the form and substance of
Exhibit "B" which is attached to the First Amendment and made
a part hereof, as said Line Note has been renewed from time to
time, that certain Term Note of Borrower payable to the order
of Lender, in the original principal amount of $1,000,000.00,
substantially in the form and substance of Exhibit "C" which
is attached to the Credit Agreement and made a part hereof,
that certain Promissory Note of Borrower payable to the order
of Lender in the original principal amount of $3,375,000.00,
dated August 14, 1995, evidencing a real estate mortgage loan
made by Lender to Borrower, which is attached to the Credit
Agreement as Exhibit "D" and made a part hereof, and that
certain Promissory Note
3
<PAGE>
of Borrower payable to the order of Lender in the original
principal amount of $4,500,000.00, dated February 18, 1999,
evidencing a real estate mortgage loan made by Lender to
Borrower, which is attached to the Second Amendment as Exhibit
"D-1" and made a part hereof, and that certain Promissory Note
of Borrower payable to the order of Lender in the original
principal amount of $700,000.00, dated on or about May 27,
1999, evidencing a real estate mortgage loan made by Lender to
Borrower, which is attached to the Third Amendment as Exhibit
"E" and made a part hereof, all as further described in
Section II of this Agreement.
f. The definition of "Real Estate Mortgage Loan" set forth in
Section 1.ae. of the Credit Agreement is deleted in its entirety and replaced by
the following definition:
"Real Estate Mortgage Loan" means that certain
construction/term loan made by Lender to Borrower in the
principal amount of $3,375,000.00, as evidenced by a
Promissory Note in said amount dated August 14, 1995, which is
attached to the Credit Agreement as Exhibit "D" and made a
part hereof, for the purpose of constructing an
office/manufacturing facility, including leasehold
improvements in which the Borrower conducts its business, that
certain construction/term loan made by Lender to Borrower in
the principal amount of $4,500,000.00, as evidenced by a
Promissory Note in said amount dated February 18, 1999, which
is attached to the Second Amendment as Exhibit "D-1" and made
a part hereof, for the purpose of constructing a second
office/manufacturing facility, including leasehold
improvements, in which the Borrower will conduct its business,
and that certain term loan to be made by Lender to Borrower in
the principal amount of $700,000.00, as evidenced by a
Promissory Note in said amount to be dated on or about May 27,
1999, which is attached to the Third Amendment as Exhibit "E"
and made a part hereof, for the purpose of acquiring real
estate for the future expansion of the Borrower's business.
g. The definition of "Real Estate Mortgage Note" set forth in
Section 1.af. of the Credit Agreement is deleted in its entirety and replaced by
the following definition:
"Real Estate Mortgage Note" means that certain Promissory Note
of Borrower payable to the order of Lender in the original
principal amount of $3,375,000.00, dated August 14, 1995,
evidencing the Real Estate Mortgage Loan which is attached to
the Credit Agreement as Exhibit "D" and made a part hereof,
that certain Promissory Note of
4
<PAGE>
Borrower payable to the order of Lender in the original
principal amount of $4,500,000.00, dated February 18, 1999,
evidencing the Real Estate Mortgage Loan which is attached to
the Second Amendment as Exhibit "D-1" and made a part hereof,
and that certain Promissory Note of Borrower payable to the
order of Lender in the original principal amount of
$700,000.00, dated on or about May 27, 1999, evidencing the
Real Estate Mortgage Loan which is attached to the Third
Amendment as Exhibit "E" and made a part hereof.
h. Section 2(I)(b) of the Credit Agreement is hereby deleted
in its entirety and replaced by the following:
b. The Borrowing Base shall be equal to the sum of
(i) eighty percent (80%) of the book value of Borrower's
domestic Eligible Accounts (ii) the lesser of: forty percent
(40%) of the total book value of raw materials on hand through
August 31, 1999, and twenty-five percent (25%) of the total
book value of raw materials on hand for each period
thereafter, OR $3,000,000.00, and (iii) eighty percent (80%)
of the book value of Borrower's foreign Eligible Accounts
backed by letters of credit, as set forth on the Borrowing
Base Certificate attached to the Third Amendment and made a
part hereof as Exhibit "A". Provided, however, that all raw
material inventory on hand in excess of one year old shall be
excluded entirely from the Borrowing Base calculations.
i. The description of the Collateral attached as Exhibit "E"
in Section 3 of the Credit Agreement is hereby deleted in its entirety and
replaced by that certain Exhibit "F" attached to this Third Amendment.
j. Sections 6a. and b. of the Credit Agreement are deleted in
their entirety and replaced by the following:
a. Deliver to Lender, within forty-five (45) days
after the end of each fiscal quarter, quarterly unaudited
financial statements (Form 10Q) concerning its business on a
consolidated and consolidating basis, prepared by the
Borrower's Authorized Representative, including income
statements, balance sheets and other accounting data as may be
reasonably requested by Lender, for the Borrower and for any
subsidiaries of Borrower; provided, however, that the
financial statements required for any subsidiary entities
shall not include the schedule of cash flows or the change in
shareholder equity statements.
5
<PAGE>
b. Deliver to Lender, within one hundred twenty (120)
days after the end of each fiscal year of Borrower, a balance
sheet and income statement prepared in accordance with
generally accepted accounting principles on an audited basis
by an independent certified public account, including
statements of financial condition, income, cash flows, and
changes in shareholders' equity for the Borrower and for any
subsidiaries of Borrower; provided, however, that the
financial statements required for any subsidiary entities
shall not include the schedule of cash flows and the change in
shareholder equity statements.
k. Section 6q. of the Credit Agreement is hereby deleted in
its entirety and replaced by the following:
q. Deliver to Lender, within thirty (30) days after
the end of each fiscal month of the Borrower, a report showing
a detailed aging of accounts receivable and a Borrowing Base
Certificate, all in form and substance satisfactory to Lender.
l. Section 6r. of the Credit Agreement is hereby deleted in
its entirety and replaced by the following:
r. Provide to Lender a Borrowing Base Certificate in
the form of Exhibit "A" prior to each Advance on the Line
Commitment and within thirty (30) days after the end of each
fiscal month, if there is an outstanding principal balance or
if any letters of credit have been issued under the Line Loan,
all in form and substance satisfactory to Lender. At each
submission made for the purpose of obtaining an Advance, the
Borrowing Base Certificate will be calculated based on the
Accounts and Inventory as of the most current applicable
fiscal month, and will be signed by an officer of the Borrower
or designee.
m. The Credit Agreement is hereby amended to add the following
subsections x., y., z., aa. and bb. to Section 6:
x. The Borrower shall be required to maintain minimum
revenues of not less than $8,500,000.00 during each fiscal
quarter period.
y. The Borrower shall be required to maintain an
EBITDA of not less than ($600,000.00) for the three-month
period ending May 31, 1999, $300,000.00 for the three-month
period ending
6
<PAGE>
August 31, 1999, $300,000.00 for the three-month period ending
November 30, 1999 and $1,000,000.00 for the three-month period
ending February 28, 2000. For purposes of this Agreement,
EBITDA shall be defined as Net Income plus Interest Expense
plus Tax expense plus depreciation plus amortization. For
purposes of calculating EBITDA, Net Income shall exclude any
net gains on the sale, conversion or other disposition of
capital assets, net gains on the acquisition, retirement, sale
or other disposition of capital stock and other securities of
the Borrower and its subsidiaries, net gains on the collection
of proceeds of life insurance policies, any write-up of any
asset, any other net gain or credit of an extraordinary
nature, all as determined in accordance with GAAP.
z. In the event that the total Advances outstanding
at any time under the Line Loan exceed the permitted Borrowing
Base, the Borrower shall be required to maintain a minimum
liquidity in an amount as established pursuant to the
provisions herein. In the event that an Advance will result in
the total principal amount outstanding under the Line Loan
being in excess of the most current Borrowing Base, the total
minimum liquidity required shall be equal to the difference
between the total outstanding balance of the Line Loan and the
most current Borrowing Base until such time as the Advances
under the Line Loan are reduced to an amount equal to or less
than the most current Borrowing Base. The Borrower shall be
required to compute the Borrowing Base according to the
provisions of Section 2Ib of this Agreement. From time to time
as may be necessary throughout the term of the Line Loan,
Lender shall have the right to place a "hold" on funds held in
a designated account of Borrower at NationsBank, N.A. up to
the amount necessary to establish and maintain the minimum
liquidity covenant required herein.
aa. Provide to the Lender copies of all invoices and
shipping/title transfer documentation upon request by the
Lender.
bb. Deposit and keep all operating revenues of the
Borrower in an account at NationsBank, N.A.
n. The covenants set forth in Section 7(i) of the Credit
Agreement are deleted in their entirety and replaced with the following
covenants:
Allow its Cash Flow Coverage Ratio to be less than
2.00:1.00. The Cash Flow Coverage Ratio shall be defined as:
EBITDA less
7
<PAGE>
cash taxes, less fifty percent (50%) of all capital
expenditures, less stock repurchases and dividends, all
divided by Interest Expense plus all Current Maturities of
Long Term Debt and Current Maturities of Capital Lease
Obligations. Borrower's compliance with this covenant shall be
measured quarterly on a rolling four quarter basis. At each
quarter end, the numerator will be determined based on the
previous four (4) fiscal quarters while the current maturities
of long term debt and capital lease obligations will be
determined based on the subject fiscal quarter end. The
Borrower shall not be required to be in compliance with this
covenant except for purposes related to funding the
$4,500,000.00 Real Estate Mortgage Loan. Further, if the
Borrower is in compliance with this covenant for two (2)
consecutive fiscal quarters, the Borrower shall be required to
maintain compliance with this covenant for all periods
subsequent to such compliance. In the event that the Borrower
must be in compliance with this covenant due to the fact it
achieved compliance for two consecutive fiscal quarters, the
Lender will no longer enforce compliance and measurement of
the minimum revenue, EBITDA and liquidity covenants described
in Sections 6x, y and z hereinabove. Until such time as the
Borrower is in full compliance with the Cash Flow Coverage
Ratio for two consecutive fiscal quarters, the Borrower shall
not be permitted to make any dividend payments or incur any
cash outflow for the repurchase of its capital stock without
the prior written consent of the Bank.
The Credit Agreement, as modified by the First Amendment, the Letter Amendment,
the Second Amendment and this Third Amendment shall remain in full force and
effect, shall conform fully with this Third Amendment, and shall apply with full
force and effect to the Loans described in the Credit Agreement.
1. FIELD EXAM AUDITS. During the term of this Third Amendment, the
Lender shall have the right to require asset field examinations if the Lender
deems it necessary, provided, however, that such examinations shall not be
required more than once in each fiscal quarter of the Borrower. The cost of such
examinations shall be paid by the Borrower, but shall not exceed $3,500.00 per
examination, unless the field examiners incur costs in excess of such amount due
to circumstances outside of the Lender's control.
2. PROCEDURES FOR MAKING REQUEST FOR ADVANCES. Until otherwise notified
in writing by Lender to Borrower, the Borrower shall send all requests for
Advances under the Line Note to the attention of the Commercial Banking
Department at the following address: 101 E. Kennedy Boulevard, 5th Floor
(FL1-400-05-03), Tampa, Florida 33602, facsimile (813) 225-8537.
8
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
restates, reaffirms, and where necessary updates, all representations and
warranties set forth in Section 8 of the Credit Agreement and elsewhere in the
Credit Agreement, as amended from time to time.
4. OTHER TERMS AND CONDITIONS. Except as set forth herein, all other
terms and conditions of the Credit Agreement and the First Amendment, the Letter
Amendment and the Second Amendment shall remain in full force and effect and
shall be binding upon the Lender and the Borrower pursuant to their terms, and
the Borrower and Lender hereby ratify and reaffirm all covenants, obligations,
terms, conditions and provisions under the Credit Agreement.
5. CONTROLLING AGREEMENT. It is understood by the parties hereto that
the terms, provisions, covenants, warranties and representations contained
herein shall supersede and replace in their entirety the terms, provisions,
covenants, warranties and representations set forth in that certain Third
Amendment To Credit Agreement dated as of the 31st day of May, 1999, and
executed by the Borrower and Lender on May 20, 1999 and delivered into escrow,
which instrument is hereby deemed to be null and void and without any force and
effect whatsoever.
IN WITNESS WHEREOF, Borrower and Lender have executed this Third
Amendment the day and year first above written.
<TABLE>
<S> <C>
Signed, sealed and delivered in the presence of: PLASMA-THERM, INC., a Florida corporation
("Borrower")
/s/ GARNETT M. DAVIS
- --------------------------------------
Signature of Witness
GARNETT M. DAVIS By: /s/ STACY L. WAGNER
- -------------------------------------- ------------------------------------------
Legibly Print Name of Witness Stacy L. Wagner
Vice President and Chief Financial Officer
/s/ YOLANDA R. BROWN
- -------------------------------------- (CORPORATE SEAL)
Signature of Witness
YOLANDA R. BROWN
- --------------------------------------
Legibly Print Name of Witness
NATIONSBANK, N.A., a national banking
/s/ ROBIN M. HICKS association, f/k/a NATIONSBANK, N.A. (SOUTH)
- -------------------------------------- ("Lender")
Signature of Witness
ROBIN M. HICKS By: /s/ SADAHRI W. BERRY
- -------------------------------------- ------------------------------------------
Legibly Print Name of Witness Sadahri W. Berry
Vice President
/s/ LINDA R. EARLES
- -------------------------------------- (CORPORATE SEAL)
Signature of Witness
LINDA R. EARLES
- --------------------------------------
Legibly Print Name of Witness
</TABLE>
9
<PAGE>
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this 11th day of
June, 1999, by STACY L. WAGNER, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[ ] personally known to me or [X] has produced FLORIDA DRIVER'S LICENSE as
identification.
My commission expires: 11/12/99 /s/ GARNETT M. DAVIS
-----------------------------------
Signature of Notary Public
(SEAL) GARNETT M. DAVIS
-----------------------------------
Legibly Print Name of Notary Public
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 10th day of
June, 1999, by SADAHRI W. BERRY, as the Vice President of NATIONSBANK, N.A., a
national banking association, f/k/a NATIONSBANK, N.A. (SOUTH), on behalf of the
association. She is [X] personally known to me or [ ] has produced _____________
as identification.
My commission expires: JULY 26, 1999 /s/ MARTA E. SCHIRO
-----------------------------------
Signature of Notary Public
(SEAL)
MARTA E. SCHIRO
-----------------------------------
Legibly Print Name of Notary Public
<PAGE>
EXHIBIT "A"
BORROWING BASE CERTIFICATE FORM
Page 1 of 2
NATIONSBANK, N.A. DATE: __________________
P.O. Box 31590
FL1-010-02-01
Tampa, Florida 33631
Credit Agreement between us, the undersigned hereby certifies to you, as of the
above date, the following:
<TABLE>
<S> <C>
(A) Aggregate amount of domestic Accounts as of the applicable month end $
------------------------
(B) Less Ineligible Accounts (Accounts which do not meet the definition of
Eligible Accounts): $
------------------------
(C) Net Amount of Eligible domestic Accounts (A)-(B) $
------------------------
(D) 80% of Item (C) $
------------------------
(E) Foreign accounts less than 60 days old backed by letters of credit $
------------------------
(F) 80% of Item (E) $
------------------------
(G) The lesser of: 40% of raw materials inventory (excluding all raw
material inventory on hand in excess of one year old) through 8/31/99
and 25% thereafter, OR $3,000,000.00 $
------------------------
(H) Total items (D), (F) and (G) $
------------------------
(I) The lesser of $10,000,000 and Item (H) $
------------------------
(J) The aggregate unpaid principal Line Loan we now owe Lender as of the applicable
month end $
------------------------
(K) The aggregate amount of issued, outstanding Standby Letters of Credit
as of the applicable month end $
------------------------
(L) Total of unpaid principal Line Loan and issued Standby Letters of
Credit is as of the applicable month end $
------------------------
(M) Availability [(I)-(J)] [If Item (M) is negative, paydown of at least a
like amount is required or establishment of minimum liquidity of equal
amount, to Lender's satisfaction] $
------------------------
</TABLE>
<PAGE>
EXHIBIT "A"
BORROWING BASE CERTIFICATE FORM
Page 2 of 2
The undersigned hereby certifies, represents and warrants to NationsBank, N.A.,
a national banking association as follows:
1. All of the representations and warranties contained in the Credit
Agreement or in any other Loan Document are true and correct in all
material respects on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
2. No event has occurred, or would result from the Advance made in
connection herewith, that constitutes an Event of Default or a Default
that, with the giving of notice, the passage of time, or both would
constitute an Event of Default under the Credit Agreement or any other
Loan Document.
3. The description of Eligible Accounts and the values assigned thereto
are true and correct in all material respects.
4. The aggregate unpaid principal balance of the Line Loan does not exceed
the lesser of (i) the Line Commitment or (ii) the Borrowing Base,
unless adequate minimum liquidity has been established to Lender's
satisfaction.
Unless the context otherwise requires, all capital terms used in this
Certificate if not separately defined herein, shall have the meanings assigned
to them in the Credit Agreement
PLASMA-THERM, INC., a Florida corporation
By:
--------------------------------------------
Stacy L. Wagner
Vice President and Chief Financial Officer
Date:
--------------------------------------------
2
<PAGE>
SECOND
AMENDMENT TO SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SECURITY AGREEMENT (the "Second Amendment"),
is executed this 31st day of May, 1999, by and between PLASMA-THERM, INC., a
Florida corporation whose address is 10050 16th Street North, St. Petersburg,
Florida 33716 (hereinafter called "Debtor") and NATIONSBANK, N.A., a national
banking association, f/k/a NationsBank, N.A. (South), whose address is 400 North
Ashley Drive, 2nd Floor, Tampa, Florida 33602 (hereinafter called the "Secured
Party").
W I T N E S S E T H:
WHEREAS, on April 18, 1997, the Debtor and the Secured Party executed
that certain Security Agreement (the "Security Agreement") to secure certain
loans made by the Secured Party to Debtor, including without limitation, the
revolving line of credit loan evidenced by that certain Line of Credit
Promissory Note in the amount of SEVEN MILLION AND NO/100 DOLLARS
($7,000,000.00), dated April 18, 1997, executed by the Debtor in favor of the
Secured Party, which loan is referred to in the Security Agreement, and in this
Amendment, as the "Line Loan".
WHEREAS, on March 25, 1998, the Debtor increased the credit limit of
the Line Loan to TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), and the
Secured Party and Debtor amended the Security Agreement pursuant to an Amendment
to Security Agreement dated March 25, 1998.
WHEREAS, on or about even date herewith, the Debtor desires to renew
the Line Loan, and the Secured Party is agreeable to such renewal subject to the
terms and provisions set forth in that certain Commitment Letter dated April 27,
1999, and the terms an provisions of this Second Amendment.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. AMENDMENTS TO SECURITY AGREEMENT. Section 1 of the Security
Agreement is deleted in its entirety and the following section is inserted in
lieu thereof:
SECURITY INTEREST. For value received, Debtor hereby grants
Secured Party a security interest (the "Security Interest") in
and to all of the following goods, instruments, accounts,
chattel paper, contract rights, and general intangibles,
whether now owned or hereafter acquired, and in all proceeds
and products thereof, in any form, including, without
limitation, proceeds of insurance policies from the loss
thereof (hereinafter called the "Collateral"):
<PAGE>
1.1 ACCOUNTS. All accounts now owned or hereafter acquired by
Debtor, including but not limited to accounts receivable and
other rights to payment for goods sold or leased or for
services rendered.
1.2 EQUIPMENT. All equipment purchased with the proceeds of
the Term Loan including, without limitation, all parts,
accessories, attachments, additions and replacements to or
with respect to such equipment, as such equipment and other
items are now owned or hereafter acquired.
1.3 GOODS. All goods (except consumer goods, all of which
consumer goods are hereby specifically excluded from the term
"goods" as used in this Agreement), and all parts,
accessories, attachments, additions and replacements thereto,
including but not limited to all furniture, furnishings,
fixtures, leasehold improvements, inventory (including without
limitation goods held for sale or lease or to be furnished
under contracts of service, raw materials, work in process,
and materials to be used or consumed in Debtor's business and
all products thereof) and equipment, now owned or hereafter
acquired by Debtor or used in Debtor's business, wherever such
goods shall be located;
1.4 INSTRUMENTS. All instruments now owned or hereafter
acquired by Debtor;
1.5 CHATTEL PAPER. All chattel paper now owned or hereafter
acquired by Debtor;
1.6 GENERAL INTANGIBLES. All general intangibles now owned or
hereafter acquired by Debtor, including without limitation all
present and future: trade secrets and other proprietary
information; trademarks, service marks and business names and
the goodwill of the business relating thereto; copyrights and
copyright registrations (including, without limitation,
copyrights for computer programs) and all tangible property
embodying the copyrights; unpatented inventions (whether or
not patentable); patent applications and patents; license
agreements related to any of the foregoing and income
therefrom; books, records, computer tapes or disks, flow
diagrams, specification sheets, source codes, object codes and
other physical manifestations of the foregoing; the right to
sue in Secured Party's own name for all past, present and
future infringements or violations of the foregoing, tax
refunds, and deposit accounts;
1.7 CONTRACT RIGHTS. All contract rights now owned or
hereafter acquired by Debtor;
2
<PAGE>
The definition of the "Line of Credit Note" set forth in Section 2.2 of the
Security Agreement is deleted in its entirety and replaced by the following
definition:
Renewal Line of Credit Promissory Note dated May
31st, 1999 in the original principal amount of
$10,000,000.00 (the "Line of Credit Note");
The Security Agreement, as modified by this Second Amendment, shall remain in
full force and effect, shall conform fully with this Second Amendment, and shall
apply with full force and effect to the renewal of the Line Loan described
herein.
2. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby
restates, reaffirms, and where necessary updates, all representations and
warranties set forth in Section 3 of the Security Agreement and elsewhere in the
Security Agreement, and hereby ratifies and reaffirms all obligations of the
Debtor under the Security Agreement.
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Second
Amendment the day and year first above written.
<TABLE>
<S> <C>
Signed, sealed and delivered in the presence of: PLASMA-THERM, INC., a Florida corporation
("Debtor")
/s/ DELCIA S. DUNLAP
- --------------------------------------
Signature of Witness
DELCIA S. DUNLAP By: /s/ STACY L. WAGNER
- -------------------------------------- ------------------------------------------
Legibly Print Name of Witness Stacy L. Wagner
Vice President and Chief Financial Officer
/s/ R. MALLOY MCKEITHEN
- -------------------------------------- (CORPORATE SEAL)
Signature of Witness
R. MALLOY MCKEITHEN
- --------------------------------------
Legibly Print Name of Witness
NATIONSBANK, N.A., a national banking
/s/ TERRY L. WITCHER association, f/k/a NATIONSBANK, N.A. (SOUTH)
- -------------------------------------- ("Lender")
Signature of Witness
TERRY L. WITCHER By: /s/ JAMES E. HARDEN, JR.
- -------------------------------------- ------------------------------------------
Legibly Print Name of Witness James E. Harden, Jr.
Senior Vice President
/s/ R. MALLOY MCKEITHEN
- -------------------------------------- (CORPORATE SEAL)
Signature of Witness
R. MALLOY MCKEITHEN
- --------------------------------------
Legibly Print Name of Witness
</TABLE>
3
<PAGE>
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by STACY L. WAGNER, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[X] personally known to me or [ ] has produced
as identification.
My commission expires: 8-18-99 /s/ TERRY L. WITCHER
---------- ------------------------------------
Signature of Notary Public
(SEAL) TERRY L. WITCHER
------------------------------------
Legibly Print Name of Notary Public
(Commissioned: Terry L. Scaggs)
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by JAMES E. HARDEN, JR., as Senior Vice President of NATIONSBANK,
N.A., a national banking association, f/k/a NATIONSBANK, N.A. (SOUTH), on behalf
of the association. He is [X] personally known to me or [ ] has produced
____________________________ as identification.
My commission expires: 2-5-2000 /s/ PATRICIA L. ROMERO
---------- ------------------------------------
Signature of Notary Public
(SEAL)
PATRICIA L. ROMERO
------------------------------------
Legibly Print Name of Notary Public
4
<PAGE>
RATIFICATION AND REAFFIRMATION OF GUARANTY AGREEMENT
THIS RATIFICATION AND REAFFIRMATION OF GUARANTY AGREEMENT (the
"Ratification"), is executed as of the 31st day of May, 1999 and is effective as
of the 31st day of May, 1999, by and between MAGNETRAN, INC., a New Jersey
corporation ("Guarantor"), in favor of NATIONSBANK, N.A., a national banking
association, f/k/a NATIONSBANK, N.A. (SOUTH) ("Bank"), and its successors and
assigns.
W I T N E S S E T H:
WHEREAS, on or about March 25, 1998, the Guarantor executed that
certain Guaranty Agreement ("Guaranty"), wherein the Guarantor unconditionally
and irrevocably guaranteed to the Bank the payment and performance of that
certain Line of Credit Consolidation Promissory Note ("Note") in the amount of
$10,000,000.00.
WHEREAS, on or about even date herewith, the Bank has renewed the Note,
with the condition that the Guarantor ratify and reaffirm its continuing
obligations under the Guaranty.
WHEREAS, for and in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. RATIFICATION AND REAFFIRMATION OF GUARANTY. The Guarantor hereby
ratifies and reaffirms all of its warranties, representations, covenants,
obligations, terms, and the conditions and provisions under the Guaranty, to
include all payment and performance obligations as specifically set forth in the
Guaranty, and the Guarantor agrees that the Guaranty shall remain in full force
and effect, shall conform fully with this Ratification and shall apply with full
force and effect to the Note as renewed on even date herewith and from time to
time hereafter.
IN WITNESS WHEREOF, Guarantor has executed this Ratification the day
and year first above written.
MAGNETRAN, INC., a New Jersey corporation
By: /s/ STACY L. WAGNER
-------------------------------------
Stacy L. Wagner, Vice President
(CORPORATE SEAL)
<PAGE>
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by STACY L. WAGNER, as Vice President of MAGNETRAN, INC., a New
Jersey corporation, on behalf of the corporation. She [X] is personally known to
me or [ ] has produced ____________________________________ as identification.
My Commission Expires: 8-18-99 /s/ TERRY L. WITCHER
-----------------------------------
Notary Public (SEAL)
TERRY L. WITCHER
-----------------------------------
Legibly Print Name of Notary Public
(Commissioned: Terry L. Scaggs)
2
<PAGE>
RENEWAL
LINE OF CREDIT PROMISSORY NOTE
Charlotte, North Carolina
$10,000,000.00 Effective Date: May 31, 1999
FOR VALUE RECEIVED, the undersigned PLASMA-THERM, INC., a Florida
corporation (hereinafter called "Borrower") promises to pay to the order of
NATIONSBANK, N.A., a national banking association, f/k/a NationsBank, N.A.
(South) (hereinafter sometimes referred to as "Lender" and together with any
holder hereof called "Holder"), at 101 E. Kennedy Boulevard, 5th Floor
(FL1-400-05-03), Tampa, Florida 33602, or at such other place as Holder may from
time to time designate in writing, the principal sum of TEN MILLION AND NO/100
DOLLARS ($10,000,000.00), or so much thereof as has been advanced hereunder,
together with interest on the unpaid balance of the principal (the "Loan") from
time to time outstanding from the date of each advance of principal at the rate
for each day equal to the "Variable Adjusted LIBOR Rate" (as hereinafter
defined) as determined by Lender and adjusted for reserves, deposit insurance
assessments and other regulatory costs, plus two hundred (200) basis points, per
annum. In no event, however, shall the interest rate be greater than the maximum
rate of interest allowed to be contracted for by applicable law. The term
"Variable Adjusted LIBOR Rate" means the interest rate per annum determined in
accordance with the following definitions and procedures:
a. The "LIBOR Rate" for a particular day shall be the interest rate as
published in the final New York edition of THE WALL STREET JOURNAL as the
appropriate London InterBank Offered Rate (LIBOR) for such particular day for a
non-domestic certificate of deposit in an amount approximately equal to the
amount of the Note having a term of thirty (30) days, or if THE WALL STREET
JOURNAL is not published on any such date, then as published therein for the
immediately preceding business day provided, however, that in the event that THE
WALL STREET JOURNAL is not published, or does not report the London InterBank
Offered Rate, for three consecutive business days, then the "LIBOR Rate" shall
be deemed to be the interest rate which it would be necessary for Lender to pay
in connection with a sale by Lender, if possible, of a certificate of deposit
for a non-domestic deposit in an amount approximately equal to the amount of the
Note and having a term of thirty (30) days.
b. The "Variable Adjusted LIBOR Rate" for a particular day shall be
equal to the quotient of (1) the LIBOR Rate divided by (2) the difference of (a)
one minus (b) the maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable from time to time to any
member bank of the Federal Reserve System, in respect to Eurocurrency
liabilities as specified in Regulation D (or any successor category of
liabilities under Regulation D). The computation of the Variable Adjusted LIBOR
Rate shall also include such adjustments as may be necessary in respect to
impositions on Lender for Federal Deposit Insurance Corporation insurance and
other insurance, fees, assessments and surcharges which occur because of
Lender's sale of a certificate of deposit which would establish the LIBOR Rate
or for insuring time deposits.
<PAGE>
c. The LIBOR Rate used in determining the Variable Adjusted LIBOR Rate
for a particular day shall be the LIBOR Rate for such day if the interest rate
is published in The Wall Street Journal as specified above, and otherwise shall
be the LIBOR Rate which is two "business days" prior to the date of
determination, or if such day is not a business day, then the next preceding
business day.
d. A "business day" for purposes of determination of Lender's Variable
Adjusted LIBOR Rate shall mean any day on which Lender is open in Charlotte,
North Carolina for the transaction of domestic and foreign exchange business.
Each determination by Lender of the Variable Adjusted LIBOR Rate shall, in the
absence of manifest error, be conclusive and binding.
Interest owing under this Note shall be computed on the basis of a
360-day year.
Principal and interest shall be due and payable as follows:
a. Accrued interest only, as stated above, shall be payable
monthly commencing on the last day of June, 1999, and continuing on the last day
of each month thereafter until May 19, 2000, at which time all outstanding
indebtedness, whether principal, accrued interest or otherwise, shall be due and
payable in full.
b. The principal amount evidenced hereby may be borrowed (and
to the extent any principal amount advanced hereunder is repaid by Borrower,
such sum may be borrowed again) prior to May 19, 2000, but only in accordance
with the terms of that Credit Agreement dated April 18, 1997, as amended on
March 25, 1998, December 8, 1998 (by letter agreement), February 18, 1999 and on
even date herewith, and only if this Note is not in default as hereinafter
defined. At no time, however, shall the principal balance outstanding hereunder
exceed TEN MILLION AND NO/100 DOLLARS ($10,000,000.00).
Borrower may prepay all or part of the principal balance at any time
without penalty. Such prepayment shall be accompanied by payment of any unpaid
interest accrued to the time of such prepayment. All payments made hereunder
shall at Holder's option first be applied to late charges, then to accrued
interest, then to principal.
Permitted partial prepayments shall not affect or vary the duty of
Borrower to pay all obligations when due, and they shall not affect or impair
the right of Holder to pursue all remedies available to it hereunder, under the
security instruments securing this indebtedness, or under any other loan
documents or guaranty executed in connection herewith.
If any event of default set forth in this Note or in any of the Loan
Documents (as defined herein) shall occur, or in the event Lender has, in
accordance with the terms of the Note or the Loan Documents, made a demand for
repayment of the indebtedness evidenced by this Note and the Loan Documents,
Lender, at its option, may notify Borrower that its commitment to lend under
this line
2
<PAGE>
of credit is terminated and Lender shall be relieved of all obligations to lend
any further sums thereafter to Borrower.
This Note is secured by a certain Security Agreement dated April 18,
1997, as amended on March 25, 1998 and on even date herewith which, together
with UCC-1 Financing Statements, this Note, the Credit Agreement, as amended on
March 25, 1998, December 8, 1998 (by letter agreement), February 18, 1999, and
on even date herewith, the Guaranty Agreement by Magnetran, Inc., dated March
25, 1998, as ratified and reaffirmed on even date herewith, and all other
agreements, instruments and documents delivered in connection therewith and/or
herewith, are hereinafter sometimes referred to as the "Loan Documents."
This Note and the Loan Documents are to be governed by and construed
under the laws of the State of Florida and of the United States of America, and
the rules and regulations promulgated under the authority thereof. It is the
intent of this Note that such laws shall be interpreted in such a manner that
the maximum rate of interest allowed to be contracted for by applicable law as
changed from time to time which is applicable to this Note (hereinafter called
the "Maximum Rate") be as great as possible. The interest due hereunder is being
charged pursuant to the provisions of The Florida Banking Code (as defined by
statute), and Chapter 687 FLORIDA STATUTES. In the event that any law, rule or
regulation of the United States of America or the State of Florida, as changed
from time to time, allows interest to be contracted for at a rate that is
greater than the rate permitted by The Florida Banking Code (as defined by
statute), and Chapter 687, FLORIDA STATUTES, then such law, rule or regulation
shall apply. References to laws, statutes, rules and regulations in this Note
refer to such as amended from time to time.
In the event that any payment of principal or interest is not made
within ten (10) days after the same become due hereunder, it is hereby agreed
that Holder shall have the option of collecting a late charge equal to four
percent (4%) of the amount of each such delinquent payment. Said late charge
and/or interest shall be immediately due and payable in full on demand by
Holder.
In no event shall Holder have the right to charge or collect, nor shall
Borrower be required or obligated to pay, interest or payments in the nature of
interest, which would result in interest being charged or collected at a rate in
excess of the Maximum Rate. In the event that any payment which is interest or
in the nature of interest is made by Borrower or received by Holder which would
result in the rate of interest being charged or collected by Holder being in
excess of the Maximum Rate, then the portion of any such payment which causes
the rate of interest being charged or collected by Holder to exceed the Maximum
Rate (hereinafter called the "excess sum") shall be credited as a payment of
principal. If Borrower notifies Holder in writing that Borrower elects to have
such excess sum returned to Borrower, such excess sum shall be returned to
Borrower. In the event that any such overcharge is discovered after this Note
has been paid in full, then the amount of such excess sum shall be returned to
Borrower together with interest thereon from the date such excess sum was paid
or collected at the same rate as was due Holder during such period under the
terms of this Note. All excess sums credited to principal shall be credited as
of the date paid to Holder. It is recognized by Borrower that the Maximum Rate
may vary from time to time, and that from time
3
<PAGE>
to time the Maximum Rate may be uncertain. Therefore, Holder may seek judicial
determination of the applicable rate of interest. In such event, the withholding
of credit to principal or the withholding of payment to Borrower of any proposed
excess sum during the period of judicial determination (including all appeals)
shall not be deemed a breach of the obligations of Holder hereunder or of
applicable law. It is the intent of Holder to conform strictly to the
limitations of applicable laws governing the charging and collection of interest
as changed from time to time.
The "Default Interest Rate" shall be a rate equal to three percent (3%)
above the rate of interest required to be paid by the terms of this Note.
Holder shall have the optional right to declare the amount of the total
unpaid balance hereof to be due and forthwith payable in advance of the maturity
date of any sum due or installment, as fixed herein, upon the occurrence of an
event of default. An event of default shall be deemed to occur under this Note
upon the failure of Borrower to pay, within fifteen (15) days after the same
become due, any of the installments of interest or principal, or other sums due
hereunder, or upon the occurrence of any other default under or failure to
perform by any party (other than Holder) in accordance with any of the terms and
conditions of this Note within thirty (30) days after notice of such default or
failure from Holder or upon the occurrence of any default under or failure to
perform by any party (other than Holder) in accordance with any of the terms and
conditions of any of the Loan Documents after the expiration of any applicable
grace period, or upon the default under or the failure of Borrower to perform in
accordance with any and all notes, obligations, instruments or documents between
Borrower and Lender after any applicable grace period (including but not limited
to that certain Term Promissory Note by Borrower in favor of Lender in the
principal amount of $1,000,000.00 dated April 18, 1997, that certain Promissory
Note by Borrower in favor of Lender in the original principal amount of
$3,375,000.00 dated August 14, 1995, that certain Promissory Note by Borrower in
favor of Lender in the original principal amount of $4,500,000.00 dated February
18, 1999, and that certain Promissory Note by Borrower in favor of Lender in the
original principal amount of approximately $700,000.00 dated on or about May
27, 1999). Upon exercise of any of these options by Holder, the entire unpaid
principal balance shall bear interest at the "Default Interest Rate." In
addition to the rights described in this paragraph, Holder shall have the right
to exercise all other rights or remedies provided by law or at equity or as
provided in any of the Loan Documents and shall specifically have the right to
recover all damages resulting from such default including, without limitation,
the right to recover the payment of all amounts owing to Holder. Exercise of any
of these options shall be without any additional notice to Borrower, notice of
such exercise being hereby expressly waived.
Time is of the essence hereunder. In the event that this Note is
collected by law or through attorneys at law, or under advice therefrom,
Borrower and any other person liable for payment hereof hereby, severally and
jointly, agree to pay all costs of collection, including reasonable
out-of-pocket attorneys' fees and costs (including charges for paralegals and
others working under the direction or supervision of Holder's attorneys) and all
sales or use taxes thereon, whether or not suit is brought, and whether incurred
in connection with collection, trial, appeal, bankruptcy or other creditors'
proceedings or otherwise, and, if Holder's attorneys shall include employees of
Holder or
4
<PAGE>
of any person controlling, controlled by or under common control with Holder,
such reasonable attorney's fees shall include costs allocated by Holder's or
such person's internal legal department.
Borrower authorizes Holder, when payment is due, to set off for any
payment of principal or interest past due hereunder for the amount of such
payment of principal or interest. Exercise of this right shall be optional with
Holder and the provisions of this paragraph shall not be construed as releasing
Borrower from the obligation to make payments of principal or interest according
to the terms hereof.
The remedies of Holder as provided herein and in the Loan Documents
shall be cumulative and concurrent, and may be pursued singularly, successively,
or together, at the sole discretion of Holder. No act of omission or commission
of Holder, including specifically any failure to exercise any right, remedy or
recourse, shall be deemed to be a waiver or release of the same, such waiver or
release to be effected only through a written document executed by Holder and
then only to the extent specifically recited therein. A waiver or release with
reference to any one event shall not be construed as continuing, as a bar to, or
as a waiver or release of, any subsequent right, remedy or recourse as to a
subsequent event.
All persons (including corporations) now or at any time liable whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives, successors and assigns,
respectively, hereby (a) expressly waive any presentment, demand for payment,
notice of dishonor, protest, notice of nonpayment or protest, and diligence in
collection; (b) consent that Holder may, from time to time and without notice to
them or demand, (i) extend, rearrange, renew or postpone any or all payments
and/or (ii) release, exchange, add to or substitute all or any part of the
collateral for this Note, without in any way modifying, altering, releasing,
affecting or limiting their respective liability or the lien of any security
instrument; (c) agree that Holder, in order to enforce payment of this Note
against them shall not be required first to institute any suit or to exhaust any
of its remedies against Borrower or any other person or party or to attempt to
realize on the collateral for this Note.
This Note is a renewal of that certain Line of Credit Consolidation
Promissory Note dated March 25, 1998, given by the Borrower to the Lender, in
the original principal amount of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00), secured by the Loan Documents, as same may be amended on even
date herewith. In the event of any conflict between the terms and provisions of
this Note and the terms and provisions of the above-referenced note, the terms
and provisions of this Note shall govern.
ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, 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
5
<PAGE>
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR
THEREOF ("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 INSTRUMENT, AGREEMENT OR DOCUMENT 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 THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT OR IF THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN
THE COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED, AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. 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. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK 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 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, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK 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
INSTRUMENT, AGREEMENT OR DOCUMENT. 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.
6
<PAGE>
Borrower acknowledges that the above paragraphs have been expressly
bargained for by Holder as part of the Loan evidenced hereby and that, but for
Borrower's agreement and the agreement of any other person liable for payment
hereof thereto, Holder would not have extended the Loan for the term and with
the interest rate provided herein.
If more than one party shall execute this Note, the term "Borrower", as
used herein, shall mean all parties signing this Note and each of them, who
shall be jointly and severally obligated hereunder. In this Note, whenever the
context so requires, the neuter gender includes the feminine and/or masculine,
as the case may be and the singular number includes the plural.
Borrower has (i) begun analyzing the operations of Borrower and its
subsidiaries and affiliates that could be adversely affected by failure to
become Year 2000 compliant (that is, that computer applications, embedded
microchips and other systems will be able to perform date-sensitive functions
prior to and after December 31, 1999); and (ii) developed a plan for becoming
Year 2000 compliant in a timely manner, the implementation of which is on
schedule in all material respects. Borrower reasonably believes that it will
become Year 2000 compliant for its operations and those of its subsidiaries and
affiliates on a timely basis except to the extent that a failure to do so could
not reasonably be expected to have a material adverse effect upon the financial
condition of Borrower. Borrower reasonably believes any suppliers and vendors
that are material to the operations of Borrower or its subsidiaries and
affiliates will be Year 2000 compliant for their own computer applications
except to the extent that a failure to do so could not reasonably be expected to
have a material adverse effect upon the financial condition of Borrower.
Borrower will promptly notify Lender in the event Borrower determines that any
computer application which is material to the operations of Borrower, its
subsidiaries or any of its material vendors or suppliers will not be fully Year
2000 compliant on a timely basis, except to the extent that such failure could
not reasonably be expected to have a material adverse effect upon the financial
condition of Borrower.
IN WITNESS WHEREOF Borrower has caused this Note to be executed in its
name on the day and year first above written.
PLASMA-THERM, INC., a Florida corporation
("Borrower")
By: /s/ STACY L. WAGNER
------------------------------------------
Stacy L. Wagner
Vice President and Chief Financial Officer
(CORPORATE SEAL)
7
<PAGE>
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by STACY L. WAGNER, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[X] personally known to me or [ ] has produced _________________________________
as identification.
My commission expires: 8-18-99 /s/ TERRY L. WITCHER
----------- -----------------------------------
Signature of Notary Public
(SEAL)
TERRY L. WITCHER
-----------------------------------
Legibly Print Name of Notary Public
(Commissioned: Terry L. Scaggs)
8
EXHIBIT 10.57
PROMISSORY NOTE
$700,000.00 May 27, 1999
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, N.A., a national banking association ("Lender")
without offset, in immediately available funds in lawful money of the United
States of America, at P.O. Box 45264, Jacksonville, Florida 32232-5264, Attn:
Commercial Loan Services, the principal sum of SEVEN HUNDRED THOUSAND AND NO/100
DOLLARS ($700,000.00) (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:
This Note shall be repaid in equal monthly installments of principal in
the amount of $3,888.89 each, together with interest, commencing on
June 15, 1999, and on the fifteenth (15th) day of each succeeding month
thereafter through and including the 15th day of May, 2004. The entire
principal balance of this Note then unpaid shall be due and payable and
shall be paid on May 27th, 2004, the final maturity of this Note (the
"Maturity Date").
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 May 27, 1999, from Maker 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 April 19, 1999, and the Credit Agreement between
Lender and Maker dated April 18, 1997, as amended by Amendment to Credit
Agreement dated March 25, 1998, a letter agreement dated December 8, 1998, a
Second Amendment to Credit Agreement dated February 18, 1999, a letter agreement
dated May 6, 1999, and a Third Amendment to Credit Agreement dated as of May 31,
1999 (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"), 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
DOCUMENTARY STAMPS IN THE AMOUNTS OF $2,450.00 HAVE BEEN PAID AND PROPER
STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE
<PAGE>
"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) he Maximum Rate (hereinafter defined) or (ii) he Stated Rate
(hereinafter defined) computed on the Annual Basis (hereinafter defined). The
term "Stated Rate" as used in this Note means the following:
A floating rate equal to 225 basis points above the "Variable Adjusted
LIBOR Rate", adjusted daily. For purposes of this Note, the "LIBOR
Rate" for a particular day shall be the interest rate as published in
the final New York edition of THE WALL STREET JOURNAL as the
appropriate London InterBank Offered Rate (LIBOR) for such particular
day for a non-domestic certificate of deposit in an amount
approximately equal to the amount of the Note having a term of thirty
30) days, or if THE WALL STREET JOURNAL is not published on any such
date, then as published therein for the immediately preceding business
day provided, however, that in the event that THE WALL STREET JOURNAL
is not published, or does not report the London InterBank Offered Rate,
for three consecutive business days, then the "LIBOR Rate" shall be
deemed to the interest rate which it would be necessary for Lender to
pay in connection with a sale by Lender, if possible, of a certificate
of deposit for a non-domestic deposit in an amount approximately equal
to the amount of the Note and having a term of thirty (30) days. The
"Variable Adjusted LIBOR Rate" for a particular day shall be equal to
the quotient of (1) the LIBOR Rate divided by (2) the difference of (a)
one minus (b) the maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable from time to time
to any member bank of the Federal Reserve System, in respect to
Eurocurrency liabilities as specified in Regulation D (or any successor
category of liabilities under Regulation D). The computation of the
Variable Adjusted LIBOR Rate shall also include such adjustments as may
be necessary in respect to reserves, impositions on Lender for Federal
Deposit Insurance Corporation insurance and other insurance, fees,
assessments and surcharges which occur because of Lender's sale of a
certificate of deposit which would establish the LIBOR Rate or for
insuring time deposits. The LIBOR Rate used in determining the Variable
Adjusted LIBOR Rate for a particular day shall be the LIBOR Rate for
such day if the interest rate is published in THE WALL STREET
2
<PAGE>
JOURNAL as specified above, and otherwise shall be the LIBOR Rate which
is two "business days" prior to the date of determination, or if such
day is not a business day, then the next preceding business day.
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 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 (1997).
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) three
percent (3%) above the Stated Rate 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
3
<PAGE>
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 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. The Maker may prepay the principal balance of this
Note, in full at any time or in part from time to time, without payment of any
prepayment fee, 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.
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
4
<PAGE>
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).
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
5
<PAGE>
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.
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
Pinellas County, 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.
6
<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. /section/ 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.
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.
7
<PAGE>
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.
Maker has (i) begun analyzing the operations of Maker and its subsidiaries and
affiliates that could be adversely affected by failure to become Year 2000
compliant (that is, that computer applications, embedded microchips and other
systems will be able to perform date-sensitive functions prior to and after
December 31, 1999); and (ii) developed a plan for becoming Year 2000 compliant
in a timely manner, the implementation of which is on schedule in all material
respects. Maker reasonably believes that it will become Year 2000 compliant for
its operations and those of its subsidiaries and affiliates on a timely basis
except to the extent that a failure to do so could not reasonably be expected to
have a material adverse effect upon the financial condition of Maker. Maker
reasonably believes any suppliers and vendors that are material to the
operations of Maker or its subsidiaries and affiliates will be Year 2000
compliant for their own computer applications except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect upon the financial condition of Maker. Maker will promptly notify Lender
in the event Maker determines that any computer application which is
8
<PAGE>
material to the operations of Maker, its subsidiaries or any of its material
vendors or suppliers will not be fully Year 2000 compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to have
a material adverse effect upon the financial condition of Maker.
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 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/ STACY L. WAGNER
-------------------------------
Stacy L. Wagner, Vice President and
Chief Financial Officer
(CORPORATE SEAL)
9
<PAGE>
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty") is made as of the 27th day of
May, 1999, by MAGNETRAN, INC., a New Jersey corporation ("Guarantor"), in favor
of NATIONSBANK, N.A., a national banking association ("Bank"), and its
successors and assigns.
R E C I T A L S:
A. Simultaneously herewith, PLASMA-THERM, INC., a Florida
corporation ("Borrower") has executed a $700,000.00 promissory note (the
"Note"), to evidence a mortgage loan in the amount of $700,000.00 (the "Loan").
The Loan is also evidenced and/or secured by certain documents including, but
not limited to a Mortgage, Assignment of Rents and Security Agreement, UCC-1
Financing Statements, and Credit Agreement dated April 18, 1997, as amended by
Amendment to Credit Agreement dated March 25, 1998, letter agreement dated
December 8, 1998, a Second Amendment to Credit Agreement dated February 18,
1999, a letter agreement dated May 6, 1999, and a Third Amendment to Credit
Agreement dated as of May 31, 1999; Environmental Indemnity Agreement;
(collectively, the "Loan Documents" and singularly, a "Loan Document").
B. A condition precedent to Bank's agreement to make the Loan as
described above is Guarantor's execution and delivery to Bank of this Guaranty.
C. Any capitalized term used and not defined in this Guaranty
shall have the meaning given to such term in the Loan Documents. This Guaranty
is one of the Loan Documents. As used herein, the term "Default" shall mean a
default under this Guaranty or an "Event of Default" as defined in the Loan
Documents.
D. Guarantor is a wholly owned subsidiary corporation of
Borrower.
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and as a material inducement to Bank to extend credit
to Borrower, Guarantor hereby guarantees to Bank the prompt and full payment and
performance of the indebtedness and obligations described below in this Guaranty
(collectively called the "Guaranteed Obligations"), this Guaranty being upon the
following terms and conditions:
5. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and
irrevocably guarantees to Bank the punctual payment when due, whether by lapse
of time, by acceleration of maturity, or otherwise, and at all times thereafter,
of all principal, interest (including interest accruing after the commencement
of any bankruptcy or insolvency proceeding by or against Borrower, whether or
not allowed in such proceeding), fees, costs, expenses, indemnification
indebtedness, attorneys' fees,
<PAGE>
and other sums of money now or hereafter due and owing pursuant to (i) the terms
of the Note, and the other Loan Documents, including the making of any required
Borrower's deposits, and any indemnifications contained in such Loan Documents,
now or hereafter existing, and (ii) all renewals, extensions, refinancings,
modifications, supplements or amendments of such indebtedness, or any of the
Loan Documents, or any part thereof (the indebtedness described in clauses (i)
and (ii) above in this Section 1 is herein collectively called the
"Indebtedness"). This Guaranty covers the Indebtedness, whether presently
outstanding or arising subsequent to the date hereof, including all amounts
advanced by Bank in stages or installments. The guaranty of Guarantor as set
forth in this Section 1 is a continuing guaranty of payment and not a guaranty
of collection.
2. GUARANTY OF PERFORMANCE. Guarantor additionally hereby
unconditionally and irrevocably guarantees to Bank the timely performance of all
other obligations of Borrower under all of the Loan Documents. If any of such
obligations of Borrower are not complied with, in any respect whatsoever, and
without the necessity of any notice from Bank to Guarantor, Guarantor agrees to
(i) assume all responsibility for compliance with all terms and provisions of
Loan Documents, at Guarantor's own cost and expense, and (ii) indemnify and hold
Bank harmless from any and all loss, cost, liability or expense that Bank may
suffer by any reason of any such non-compliance. So long as all of such
obligations are being performed by Borrower or Guarantor and no Default exists,
Bank will make the Loan proceeds available under and subject to the terms of the
Loan Documents. If after the occurrence of a Default, and without limiting
Bank's rights and remedies, Bank, in its sole discretion, and without any
obligation, may expend such funds as Bank deems necessary to cure such Default,
and the amount of any and all such expenditures made by Bank for such purposes
shall bear interest from the date made until repaid to Bank, at a rate per annum
equal to the interest rate provided for in the Note and, together with such
interest, shall be due and payable by Guarantor to Bank upon demand. The
obligations and liability of Guarantor under this Section 2 shall not be limited
or restricted by the existence of (or any terms of) the guaranty of payment
under Section 1.
3. PRIMARY LIABILITY OF GUARANTOR.
a. This Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and performance. Guarantor shall be liable for
the payment and performance of the Guaranteed Obligations, as set forth in this
Guaranty, as a primary obligor. This Guaranty shall be effective as a waiver of,
and Guarantor hereby expressly waives, any and all rights to which Guarantor may
otherwise have been entitled under any suretyship laws in effect from time to
time.
b. In the event of default by Borrower in payment or
performance of the Guaranteed Obligations, or any part thereof, when such
indebtedness or performance becomes due, either by its terms or as the result of
the exercise of any power to accelerate, Guarantor shall, on demand and without
presentment, protest, notice of protest, further notice of nonpayment or of
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dishonor or of default or nonperformance, or notice of acceleration or of intent
to accelerate, or any other notice whatsoever, without any notice having been
given to Guarantor previous to such demand of the acceptance by Bank of this
Guaranty, and without any notice having been given to Guarantor previous to such
demand of the creating or incurring of such indebtedness or of such obligation
to perform, all such notices being hereby waived by Guarantor, pay the amount
due thereon to Bank or perform or observe the agreement, covenant, term or
condition, as the case may be, and it shall not be necessary for Bank, in order
to enforce such payment or performance by Guarantor, first to institute suit or
pursue or exhaust any rights or remedies against Borrower or others liable on
such indebtedness or for such performance, or to enforce any rights against any
security that shall ever have been given to secure such indebtedness or
performance, or to join Borrower or any others liable for the payment or
performance of the Guaranteed Obligations or any part thereof in any action to
enforce this Guaranty, or to resort to any other means of obtaining payment or
performance of the Guaranteed Obligations.
c. Suit may be brought or demand may be made against all
parties who have signed this Guaranty or any other guaranty covering all or any
part of the Guaranteed Obligations, or against any one or more of them,
separately or together, without impairing the rights of Bank against any party
hereto. Any time that Bank is entitled to exercise its rights or remedies
hereunder, it may in its discretion elect to demand payment and/or performance.
If Bank elects to demand performance, it shall at all times thereafter have the
right to demand payment until all of the Guaranteed Obligations have been paid
and performed in full. If Bank elects to demand payment, it shall at all times
thereafter have the right to demand performance until all of the Guaranteed
Obligations have been paid and performed in full.
4. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.
a. Guarantor hereby agrees that neither Bank's rights or
remedies nor Guarantor's obligations under the terms of this Guaranty shall be
released, diminished, impaired, reduced or affected by any one or more of the
following events, actions, facts, or circumstances, and the liability of
Guarantor under this Guaranty shall be absolute and unconditional irrespective
of:
(i) any limitation of liability or recourse in
any other Loan Document or arising under any law;
(ii) the taking or accepting of any other
security or guaranty for, or right of recourse with respect to, any or all of
the Guaranteed Obligations;
(iii) any release, surrender, abandonment,
exchange, alteration, sale or other disposition, subordination, deterioration,
waste, failure to protect or preserve, impairment, or loss of, or any failure to
create or perfect any lien or security interest with respect to, or any other
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dealings with, any collateral or security at any time existing or purported,
believed or expected to exist in connection with any or all of the Guaranteed
Obligations, including any impairment of Guarantor's recourse against any Person
or collateral;
(iv) whether express or by operation of law, any
partial release of the liability of Guarantor hereunder, or if one or more other
guaranties are now or hereafter obtained by Bank covering all or any part of the
Guaranteed Obligations, any complete or partial release of any one or more of
such guarantors under any such other guaranty, or any complete or partial
release of Borrower or any other party liable, directly or indirectly, for the
payment or performance of any or all of the Guaranteed Obligations;
(v) the death, insolvency, bankruptcy,
disability, dissolution, liquidation, termination, receivership, reorganization,
merger, consolidation, change of form, structure or ownership, sale of all
assets, or lack of corporate, partnership or other power of Borrower or any
other party at any time liable for the payment or performance of any or all of
the Guaranteed Obligations;
(vi) either with or without notice to or consent
of Guarantor: any renewal, extension, modification or rearrangement of the terms
of any or all of the Guaranteed Obligations and/or any of the Loan Documents,
including, without limitation, material alterations of the terms of payment
(including changes in maturity date(s) and interest rate(s)) or performance or
any other terms thereof, or any waiver, termination, or release of, or consent
to departure from, any of the Loan Documents or any other guaranty of any or all
of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or
compromise that may be granted from time to time by Bank to Borrower, Guarantor,
and/or any other Person at any time liable for the payment or performance of any
or all of the Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay,
omission, failure, or refusal of Bank to take or prosecute (or in taking or
prosecuting) any action for the collection or enforcement of any of the
Guaranteed Obligations, or to foreclose or take or prosecute any action to
foreclose (or in foreclosing or taking or prosecuting any action to foreclose)
upon any security therefor, or to exercise (or in exercising) any other right or
power with respect to any security therefor, or to take or prosecute (or in
taking or prosecuting) any action in connection with any Loan Document, or any
failure to sell or otherwise dispose of in a commercially reasonable manner any
collateral securing any or all of the Guaranteed Obligations;
(viii) any failure of Bank to notify Guarantor of
any creation, renewal, extension, rearrangement, modification, supplement,
subordination, or assignment of the Guaranteed Obligations or any part thereof,
or of any Loan Document, or of any release of or change in any security, or of
any other action taken or refrained from being taken by Bank against Borrower or
any
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security or other recourse, or of any new agreement between Bank and Borrower,
it being understood that Bank shall not be required to give Guarantor any notice
of any kind under any circumstances with respect to or in connection with the
Guaranteed Obligations, any and all rights to notice Guarantor may have
otherwise had being hereby waived by Guarantor;
(ix) if for any reason Bank is required to refund
any payment by Borrower to any other party liable for the payment or performance
of any or all of the Guaranteed Obligations or pay the amount thereof to someone
else;
(x) the existence of any claim, set-off, or
other right that Guarantor may at any time have against Borrower, Bank, or any
other Person, whether or not arising in connection with this Guaranty, the Note,
or any other Loan Document;
(xi) the unenforceability of all or any part of
the Guaranteed Obligations against Borrower, whether because the Guaranteed
Obligations exceed the amount permitted by law or violate any usury law, or
because the act of creating the Guaranteed Obligations, or any part thereof, is
ultra vires, or because the officers or Persons creating same acted in excess of
their authority, or because of a lack of validity or enforceability of or defect
or deficiency in any of the Loan Documents, or because Borrower has any valid
defense, claim or offset with respect thereto, or because Borrower's obligation
ceases to exist by operation of law, or because of any other reason or
circumstance, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other Person be found not liable on the
Guaranteed Obligations, or any part thereof, for any reason (and regardless of
any joinder of Borrower or any other party in any action to obtain payment or
performance of any or all of the Guaranteed Obligations); or
(xii) any order, ruling or plan of reorganization
emanating from proceedings under Title 11 of the United States Code with respect
to Borrower or any other Person, including any extension, reduction,
composition, or other alteration of the Guaranteed Obligations, whether or not
consented to by Bank.
b. In the event any payment by Borrower or any other
Person to Bank is held to constitute a preference, fraudulent transfer or other
voidable payment under any bankruptcy, insolvency or similar law, or if for any
other reason Bank is required to refund such payment or pay the amount thereof
to any other party, such payment by Borrower or any other party to Bank shall
not constitute a release of Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by Bank of this Guaranty or of
Guarantor), as the case may be, with respect to, and this Guaranty shall apply
to, any and all amounts so refunded by Bank or paid by Bank to another Person
(which amounts shall constitute part of the Guaranteed Obligations), and any
interest paid by Bank and any attorneys' fees, costs and expenses paid or
incurred by Bank in connection with any such event. It
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is the intent of Guarantor and Bank that the obligations and liabilities of
Guarantor hereunder are absolute and unconditional under any and all
circumstances and that until the Guaranteed Obligations are fully and finally
paid and performed, and not subject to refund or disgorgement, the obligations
and liabilities of Guarantor hereunder shall not be discharged or released, in
whole or in part, by any act or occurrence that might, but for the provisions of
this Guaranty, be deemed a legal or equitable discharge or release of a
guarantor. Bank shall be entitled to continue to hold this Guaranty in its
possession for a period of one year from the date the Guaranteed Obligations are
paid and performed in full and for so long thereafter as may be necessary to
enforce any obligation of Guarantor hereunder and/or to exercise any right or
remedy of Bank hereunder.
c. If acceleration of the time for payment of any amount
payable by Borrower under the Note, or any other Loan Document is stayed or
delayed by any law or tribunal, all such amounts shall nonetheless be payable by
Guarantor on demand by Bank.
d. Guarantor hereby waives and agrees not to assert or
take advantage of (i) any right or claim of right to cause a marshalling of any
of Borrower's assets or the assets of any other party now or hereafter held as
security for the Indebtedness; (ii) the defense of the statute of limitations in
any action hereunder or for the payment of the Indebtedness and performance of
any obligation hereby guaranteed; (iii) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of Guarantor, any other
guarantor of the Loan, or Borrower or any other person or entity, or the
voluntary or involuntary dissolution of Borrower or Guarantor, or the failure of
Bank to file or enforce a claim against the estate (either in administration,
bankruptcy, or any other proceeding) or Borrower or any other person or entity;
(iv) any defense based on the failure of Bank to give notice of the existence,
creation, or incurring of any new or additional indebtedness or obligation, or
of any action or nonaction on the part of any other person whomsoever, or any
modification of the terms of the Loan Documents, or the Indebtedness, in
connection with any obligation hereby guaranteed; (v) any defense based upon an
election of remedies by Bank which destroys or otherwise impairs any subrogation
rights of Guarantor or any other guarantor of the Loan or the right of Guarantor
to proceed against Borrower or any other guarantor for reimbursement, or both;
(vi) any defense based upon failure of Bank to commence an action against
Borrower; (vii) any defense based upon acceptance of this Guaranty by Bank;
(viii) any defense based upon the invalidity or unenforceability of any of the
Loan Documents; (ix) any defense based upon any limitation of liability
contained in any of the Loan Documents; (x) any defense based upon any transfer
by Borrower of all or any part of the Collateral; (xi) any defense based upon
the failure of Bank to perfect any security or to extend or renew the perfection
of any security; and (xii) any other legal or equitable defenses whatsoever to
which Guarantor might otherwise be entitled. Guarantor also hereby waives any
claim, right or remedy which Guarantor may now have or hereafter acquire against
Borrower that arises hereunder and/or from the performance by Guarantor,
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, indemnification or participation in any claim, right
or remedy of Bank against Borrower or any security which Bank
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now has or hereafter acquires, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise.
5. SUBORDINATION. If, for any reason whatsoever, Borrower is now
or hereafter becomes indebted to Guarantor:
a. such indebtedness and all interest thereon and all
liens, security interests and rights now or hereafter existing with respect to
property of Borrower securing same shall, at all times, be subordinate in all
respects to the Guaranteed Obligations and to all liens, security interests and
rights now or hereafter existing to secure the Guaranteed Obligations;
b. Guarantor shall not be entitled to enforce or receive
payment, directly or indirectly, of any such indebtedness of Borrower to
Guarantor until the Guaranteed Obligations have been fully and finally paid and
performed;
c. Guarantor hereby assigns and grants to Bank a
security interest in all such indebtedness and security therefor, if any, of
Borrower to Guarantor now existing or hereafter arising, including any dividends
and payments pursuant to debtor relief or insolvency proceedings referred to
below. In the event of receivership, bankruptcy, reorganization, arrangement or
other debtor relief or insolvency proceedings involving Borrower as debtor, Bank
shall have the right to prove its claim in any such proceeding so as to
establish its rights hereunder and shall have the right to receive directly from
the receiver, trustee or other custodian (whether or not a Default shall have
occurred or be continuing under any of the Loan Documents), dividends and
payments that are payable upon any obligation of Borrower to Guarantor now
existing or hereafter arising, and to have all benefits of any security
therefor, until the Guaranteed Obligations have been fully and finally paid and
performed. If, notwithstanding the foregoing provisions, Guarantor should
receive any payment, claim or distribution that is prohibited as provided above
in this SECTION 5, Guarantor shall pay the same to Bank immediately, Guarantor
hereby agreeing that it shall receive the payment, claim or distribution in
trust for Bank and shall have absolutely no dominion over the same except to pay
it immediately to Bank; and
d. Guarantor shall promptly upon request of Bank from
time to time execute such documents and perform such acts as Bank may require to
evidence and perfect its interest and to permit or facilitate exercise of its
rights under this SECTION 5, including, but not limited to, execution and
delivery of financing statements, proofs of claim, further assignments and
security agreements, and delivery to Bank of any promissory notes or other
instruments evidencing indebtedness of Borrower to Guarantor. All promissory
notes, accounts receivable ledgers or other evidences, now or hereafter held by
Guarantor, of obligations of Borrower to Guarantor shall contain a specific
written notice thereon that the indebtedness evidenced thereby is subordinated
under and is subject to the terms of this Guaranty.
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6. OTHER LIABILITY OF GUARANTOR OR BORROWER. If Guarantor is or
becomes liable, by endorsement or otherwise, for any indebtedness owing by
Borrower to Bank other than under this Guaranty, such liability shall not be in
any manner impaired or affected hereby, and the rights of Bank hereunder shall
be cumulative of any and all other rights that Bank may have against Guarantor.
If Borrower is or becomes indebted to Bank for any indebtedness other than or in
excess of the Indebtedness for which Guarantor is liable under this Guaranty,
any payment received or recovery realized upon any indebtedness of Borrower to
Bank may, except to the extent paid by Guarantor on the Indebtedness for which
Guarantor is liable under this Guaranty or specifically required by law or
agreement of Bank to be applied to the Indebtedness for which Guarantor is
liable under this Guaranty, in Bank's sole discretion, be applied upon
indebtedness of Borrower to Bank other than the Indebtedness for which Guarantor
is liable under this Guaranty.
7. BANK ASSIGNS. This Guaranty is for the benefit of Bank and
Bank's successors and assigns, and in the event of an assignment of the
Guaranteed Obligations, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the Guaranteed Obligations so assigned, may be
transferred with such Guaranteed Obligations. Guarantor waives notice of any
transfer or assignment of the Guaranteed Obligations, or any part thereof, and
agrees that failure to give notice will not affect the liabilities of Guarantor
hereunder. Bank may sell or offer to sell the Loan or interests in the Loan to
one or more assignees or participants and may disclose to any such assignee or
participant or prospective assignee or participant any information Bank has
pertaining to the Guaranteed Obligations, this Guaranty, or Guarantor,
including, without limitation, information regarding any security for the
Guaranteed Obligations or for this Guaranty, credit information on Guarantor,
Borrower, and/or any other party liable, directly or indirectly, for any part of
the Guaranteed Obligations. Bank may also disclose any such information to any
regulatory body having jurisdiction over Bank.
8. BINDING EFFECT. This Guaranty is binding not only on
Guarantor, but also on Guarantor's heirs, personal representatives, successors
and assigns. Upon the death of Guarantor, if Guarantor is a natural person, this
Guaranty shall continue against Guarantor's estate as to all of the Guaranteed
Obligations, including that portion incurred or arising after the death of
Guarantor and shall be provable in full against Guarantor's estate, whether or
not the Guaranteed Obligations are then due and payable. If this Guaranty is
signed by more than one Person, then all of the obligations of Guarantor arising
hereunder shall be jointly and severally binding on each of the undersigned, and
their respective heirs, personal representatives, successors and assigns, and
the term "Guarantor" shall mean all of such Persons and each of them
individually.
9. GOVERNING LAW; FORUM. This Guaranty, and its validity,
enforcement, and interpretation, shall for all purposes be governed by and
construed in accordance with the laws of the State of Florida and applicable
United States federal law, and is intended to be performed in accordance with,
and only to the extent permitted by, such laws. All obligations of Guarantor
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hereunder are payable and performable at the place or places where the
Guaranteed Obligations are payable and performable. Guarantor hereby irrevocably
submits generally and unconditionally for Guarantor and in respect of
Guarantor's property to the jurisdiction of any state court, or any United
States federal court, sitting in the state specified in the first sentence of
this Section, over any suit, action or proceeding arising out of or relating to
this Guaranty or the Guaranteed Obligations. Guarantor hereby irrevocably
waives, to the fullest extent permitted by law, any objection that Guarantor 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. Guarantor hereby agrees and
consents that, in addition to any methods of service of 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 the first sentence of this Section may be made by
certified or registered mail, return receipt requested, directed to Guarantor at
its address stated in SECTION 15, or at a subsequent address of which Bank
received actual notice from Guarantor in accordance with said Section, 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 Bank to serve process in any
manner permitted by law or limit the right of Bank to bring proceedings against
Guarantor in any other court or jurisdiction.
10. INVALIDITY OF CERTAIN PROVISIONS. If any provision of this
Guaranty or the application thereof to any Person or circumstance shall, for any
reason and to any extent, be declared to be invalid or unenforceable, neither
the remaining provisions of this Guaranty nor the application of such provision
to any other Person or circumstance shall be affected thereby, and the remaining
provisions of this Guaranty, or the applicability of such provision to other
Persons or circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable law.
11. ATTORNEYS' FEES AND COSTS OF COLLECTION. Guarantor shall pay
on demand all reasonable attorneys' fees, paralegals' fees, and all other costs
and expenses incurred by Bank in the enforcement of or preservation of Bank's
rights under this Guaranty (including all fees incurred in connection with
arbitration). Guarantor agrees to pay interest on any expenses or other sums due
to Bank under this SECTION 11 that are not paid when due, at a rate per annum
equal to the interest rate provided for in the Note, but in no event shall such
interest exceed the maximum amount. Guarantor's obligations and liabilities
under this SECTION 11 shall survive any payment or discharge in full of the
Guaranteed Obligations.
12. PAYMENTS. All sums payable under this Guaranty shall be paid
in lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
13. CONTROLLING AGREEMENT.It is not the intention of Bank or
Guarantor to obligate Guarantor to pay interest in excess of that lawfully
permitted to be paid by Guarantor under
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applicable law. Should it be determined that any portion of the Guaranteed
Obligations or any other amount payable by Guarantor under this Guaranty
constitutes interest in excess of the maximum amount of interest that Guarantor,
in Guarantor's capacity as guarantor, may lawfully be required to pay under
applicable law, the obligation of Guarantor to pay such interest shall
automatically be limited to the payment thereof in the maximum amount so
permitted under applicable law. The provisions of this Section 13 shall override
and control all other provisions of this Guaranty and of any other agreement
between Guarantor and Bank.
14. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GUARANTOR.
Guarantor hereby represents, warrants, and covenants that (a) Guarantor will
derive substantial benefit, directly or indirectly, from the making of the Loan
to Borrower and from the making of this Guaranty by Guarantor; (b) this Guaranty
is duly authorized and valid, and is binding upon and enforceable against
Guarantor; (c) Guarantor is not, and the execution, delivery and performance by
Guarantor of this Guaranty will not cause Guarantor to be, in violation of or in
default with respect to any law or in default (or at risk of acceleration of
indebtedness) under any agreement or restriction by which Guarantor is bound or
affected; (d) Guarantor is duly organized, validly existing, and in good
standing under the laws of the State of Florida and is lawfully doing business
in Florida, and has full power and authority to enter into and perform this
Guaranty; (e) there is no litigation pending or, to the knowledge of Guarantor,
threatened before or by any tribunal against or affecting Guarantor; (f) all
financial statements and information heretofore furnished to Bank by Guarantor
do, and all financial statements and information hereafter furnished to Bank by
Guarantor will, fully and accurately present the condition (financial or
otherwise) of Guarantor as of their dates and the results of Guarantor's
operations for the periods therein specified, and, since the date of the most
recent financial statements of Guarantor heretofore furnished to Bank, no
material adverse change has occurred in the financial condition of Guarantor,
nor, except as heretofore disclosed in writing to Bank, has Guarantor incurred
any material liability, direct or indirect, fixed or contingent; (g) after
giving effect to this Guaranty, Guarantor is solvent, is not engaged or about to
engage in business or a transaction for which the property of Guarantor is an
unreasonably small capital, and does not intend to incur or believe that it will
incur debts that will be beyond its ability to pay as such debts mature; (h)
Bank has no duty at any time to investigate or inform Guarantor of the financial
or business condition or affairs of Borrower or any change therein, and
Guarantor will keep fully appraised of Borrower's financial and business
condition; (i) Guarantor acknowledges and agrees that Guarantor may be required
to pay and perform the Guaranteed Obligations in full without assistance or
support from the Borrower or any other Person; and (j) Guarantor has read and
fully understands the provisions contained in the Note, and the other Loan
Documents. Guarantor's representations, warranties and covenants are a material
inducement to Bank to enter into the other Loan Documents and shall survive the
execution hereof and any bankruptcy, foreclosure, transfer of security or other
event affecting Borrower, Guarantor, any other party, or any security for all or
any part of the Guaranteed Obligations.
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15. NOTICES. Unless specifically provided otherwise, any notice
for purposes of this Guaranty 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 Guaranty, 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 in 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. This SECTION 15 shall not
be construed in any way to affect or impair any waiver of notice or demand
provided in this Guaranty or in any other Loan Document or to require giving
notice or demand to or upon any Person in any situation or for any reason.
16. CUMULATIVE RIGHTS. The exercise by Bank of any right or remedy
hereunder or under any other Loan Document, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Bank shall have all rights, remedies and recourses afforded to Bank by reason of
this Guaranty or any other Loan Document or by law or equity or otherwise, and
the same (a) shall be cumulative and concurrent, (b) may be pursued separately,
successively or concurrently against Guarantor or others obligated for the
Guaranteed Obligations, or any part thereof, or against any one or more of them,
or against any security or otherwise, at the sole discretion of Bank, (c) may be
exercised as often as occasion therefor shall arise, it being agreed by
Guarantor that the exercise of, discontinuance of the exercise of or failure to
exercise any of such rights, remedies, or recourses shall in no event be
construed as a waiver or release thereof or of any other right, remedy, or
recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of
any default on the part of Guarantor or of any breach of any of the provisions
of this Guaranty or of any other document shall be considered a waiver of any
other or subsequent default or breach, and no delay or omission in exercising or
enforcing the rights and powers granted herein or in any other document shall be
construed as a waiver of such rights and powers, and no exercise or enforcement
of any rights or powers hereunder or under any other document shall be held to
exhaust such rights and powers, and every such right and power may be exercised
from time to time. The granting of any consent, approval or waiver by Bank shall
be limited to the specific instance and purpose therefor and shall not
constitute consent or approval in any other instance or for any other purpose.
No notice to or demand on Guarantor in any case shall of itself entitle
Guarantor to any other or further notice or demand in similar or other
circumstances. No provision of this Guaranty or any right, remedy or recourse of
Bank with respect hereto, or any default or breach, can be waived, nor can this
Guaranty or Guarantor be released or discharged in any way or to any extent,
except specifically in each case by a writing intended for that purpose (and
which refers specifically to this Guaranty) executed, and delivered to
Guarantor, by Bank.
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17. TERM OF GUARANTY. This Guaranty shall continue in effect until
all the Guaranteed Obligations are fully and finally paid, performed, and
discharged, except that, and notwithstanding any return of this Guaranty to
Guarantor, this Guaranty shall continue in effect (i) with respect to any of the
Guaranteed Obligations that survive the discharge of the Guaranteed Obligations,
(ii) with respect to all obligations and liabilities of Guarantor under SECTION
11, and (iii) as provided in SECTION 4(b).
18. DISCLOSURE OF INFORMATION. Bank may sell or offer to sell the
Loan or interests in the Loan to one or more assignees or participants and may
disclose to any such assignee or participant or prospective assignee or
participant any information Bank has pertaining to the Guaranteed Obligations,
this Guaranty, or Guarantor, including, without limitation, information
regarding any security for the Guaranteed Obligations or for this Guaranty,
credit information on Guarantor, Borrower, and/or any other party liable,
directly or indirectly, for any part of the Guaranteed Obligations. Bank also
may disclose any such information to any regulatory body having jurisdiction
over Bank and to any agent or attorney of Bank and in such other circumstances
and to such other parties as necessary or appropriate in Bank's reasonable
judgment.
19. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Default in the payment or performance when due of any of the
Guaranteed Obligations, Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, without notice to any
Person (any such notice being expressly waived by Guarantor to the fullest
extent permitted by applicable law), to set off and apply any and all deposits
funds, or assets at any time held and other indebtedness at any time owing by
Bank to or for the credit or the account of Guarantor against any and all of the
obligations of Guarantor now or hereafter existing under this Guaranty, whether
or not Bank shall have made any demand under this Guaranty or exercised any
other right or remedy hereunder. Bank will promptly notify Guarantor after any
such set-off and application made by Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of Bank under this Section 19 are in addition to the other rights and
remedies (including other rights of set-off) that Bank may have.
20. GRANT. To secure the performance of this Guaranty, Guarantor
grants to Bank a security interest in all property of Guarantor to the extent
such property is delivered concurrently herewith or is now, or at any time
hereafter is in the possession of Bank, and all proceeds, replacements, or
substitutions of all such property. Guarantor agrees that Bank shall have the
rights and remedies of a secured party under the Uniform Commercial Code as
adopted by the State of Florida with respect to all of the aforesaid property,
including, without limitation, the right to sell or otherwise dispose of any or
all of such property. Any notification of intended disposition of any property
required by law shall be deemed reasonably and properly given if at least five
(5) calendar days before such disposition. Notwithstanding the foregoing, Bank
may, without further notice to
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anyone, apply or set off any balances, credits, deposits, accounts, monies or
other indebtedness at any time created by or due from Bank to Guarantor against
the amounts due hereunder.
21. SUBROGATION. Notwithstanding anything to the contrary
contained herein, until the Loan is paid in full, Guarantor irrevocably waives
any present or future right to which Guarantor is or becomes entitled to be
subrogated to Bank's rights against Borrower or to seek contribution,
reimbursement, indemnification, or the like from Borrower on account of this
Guaranty or to assert any other claim or right of action against Borrower on
account of, arising under, or relating to this Guaranty.
22. FURTHER ASSURANCES. Guarantor at Guarantor's expense will
promptly execute and deliver to Bank upon Bank's request all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the agreements of Guarantor under this Guaranty.
23. NO FIDUCIARY RELATIONSHIP. The relationship between Bank and
Guarantor is solely that of lender and guarantor. Bank has no fiduciary or other
special relationship with or duty to Guarantor and none is created hereby or may
be inferred from any course of dealing or act or omission of Bank.
24. INTERPRETATION. If this Guaranty is signed by more than one
Person as "Guarantor", then the term "Guarantor" as used in this Guaranty shall
refer to all such Persons jointly and severally, and all promises, agreements,
covenants, waivers, consents, representations, warranties and other provisions
in this Agreement are made by and shall be binding upon each and every such
undersigned Person, jointly and severally. The term "Bank" shall be deemed to
include any subsequent holder(s) of the Note. Whenever the context of any
provisions hereof shall require it, words in the singular shall include the
plural, words in the plural shall include the singular, and pronouns of any
gender shall include the other genders. Captions and headings in the Loan
Documents are for convenience only and shall not affect the construction of the
Loan Documents. All references in this Guaranty to Schedules, Articles,
Sections, Subsections, paragraphs and subparagraphs refer to the respective
subdivisions of this Guaranty, unless such reference specifically identifies
another document. The terms "herein", "hereof", "hereto", :hereunder" and
similar terms refer to this Guaranty and not to any particular Section or
subsection of this Guaranty. The terms "include" and "including" shall be
interpreted as if followed by the words "without limitation". All references in
this Guaranty to sums denominated in dollars or with the symbol "$" refer to the
lawful currency of the United States of America, unless such reference
specifically identifies another currency. For purposes of the Agreement,
"Person" or "Persons" shall include firms, associations, partnerships (including
limited partnerships), joint ventures, trusts, corporations, limited liability
companies, and other legal entities, including governmental bodies, agencies, or
instrumentalities, as well as natural persons.
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25. TIME OF ESSENCE. Time shall be of the essence in this Guaranty
with respect to all of Guarantor's obligations hereunder.
26. EXECUTION. This Guaranty may be executed in multiple
counterparts, each of which, for all purposes, shall be deemed an original, and
all of which together shall constitute one and the same agreement.
27. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement
between Bank and Guarantor with respect to the guaranty by Guarantor of the
Guaranteed Obligations. This Guaranty supersedes all prior agreements and
understandings, if any, with respect to guaranty by Guarantor of the Guaranteed
Obligations. No condition or conditions precedent to the effectiveness of this
Guaranty exist. This Guaranty shall be effective upon execution by Guarantor and
delivery to Bank. This Guaranty may not be modified, amended or superseded
except in a writing signed by Bank and Guarantor referencing this Guaranty
Agreement by its date and specifically identifying the portions hereof that are
to be modified, amended or superseded.
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.
28. 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 J.A.M.S./Endispute or any successor
thereof ("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
Pinellas County, Florida and administered by J.A.M.S, who will appoint an
arbitrator; if J.A.M.S. 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,
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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 Bank 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 Bank
(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, writ of possession or the appointment of a receiver. Bank 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. 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.
29. RELEASE OF GUARANTOR. Notwithstanding any provisions in this
Guaranty to the contrary, the Bank agrees that upon written request by the
Guarantor, the Bank will release the Guarantor from all obligations under this
Guaranty so long as Borrower is not in default under the terms of the Loan.
IN WITNESS WHEREOF, Guarantor duly executed this Guaranty as of the
date first written above.
Address of Guarantor: GUARANTOR:
10050 16th Street North MAGNETRAN, INC., a New Jersey corporation
St. Petersburg, Florida 33716
Fax No. (727) 579-0801 By: /s/ STACY L. WAGNER
---------------------------------
Stacy L. Wagner, Vice President
(CORPORATE SEAL)
15
<PAGE>
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 27th day of
May, 1999, by Stacy L. Wagner, as the Vice President of MAGNETRAN, INC., a New
Jersey corporation, on behalf of the corporation. She is [ ] personally known to
me or [X] has produced drivers license as identification.
My commission expires: /s/ CYNTHIA A. CRANE
----------- --------------------------
Signature of Notary Public
(SEAL)
CYNTHIA A. CRANE
--------------------------
Legibly Print Name of Notary Public
[SEAL]
Address of Bank:
NationsBank, N.A.
101 E. Kennedy Boulevard, 5th Floor
FL1-400-05-03
Tampa, Florida 33602
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Re _______
Doc _______
Int _______
Total _______
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (the
"Mortgage"), made as of the 27th day of May, 1999, between PLASMA-THERM, INC., a
Florida corporation (the "Mortgagor"), as mortgagor and debtor, whose principal
place of business is 10050 16th Street North, St. Petersburg, Florida 33716, and
NATIONSBANK, N.A., a national banking association (the "Mortgagee"), as
mortgagee and secured party, whose address is 101 E. Kennedy Boulevard, 5th
Floor (FL1-400-05-03), Tampa, Florida 33602.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
I.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 April 19, 1999.
(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. ss. 6901 eT SEq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 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. ss. 1801 eT SEq.; the
Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 ET seq.; the Clean Air
Act, 42 U.S.C. ss. 7401 eT SEq.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 ET seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 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
<PAGE>
$1,400,000.00, 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
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: $700,000.00 as evidenced by the Note.
(r) LOAN AGREEMENT: That certain Credit Agreement between
Mortgagee and Mortgagor dated April 18, 1997, as amended on March 25, 1998,
February 18, 1999 and as of May 31, 1999, and by letter agreements dated
December 8, 1998 and May 6, 1999.
(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, vi) any Interest Rate Swap
Protection Agreement, and vii) 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 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;
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(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, 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 $700,000.00, 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.
(iv) Any and all of the indebtedness,
liabilities, covenants, promises, agreements, terms, conditions and other
obligations of any nature whatsoever, whether joint or general, direct or
indirect, absolute or contingent, liquidated or unliquidated, of Mortgagor,
Guarantor, or any of them, to Mortgagee under any Interest Rate Protection
Agreements, including, but not limited to, any and all unpaid accrued payments
due Mortgagee, under any Interest Rate Protection Agreement, the present value
of future benefits lost by Mortgagee's nonreceipt of future payments in excess
of corresponding future liabilities under any Interest Rate Swap Protection
Agreements, and the costs of collection of all such amounts.
(y) PARTNERSHIP: Any general or limited partnership,
joint venture, or other form of partnership, howsoever designated.
(z) PERMITTED TITLE EXCEPTIONS: Those matters, if any,
described in Schedule B to the title insurance policy insuring Mortgagee's
interest in this Mortgage.
(aa) 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.
(bb) 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;
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(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 and documents
relating to the construction, maintenance or operation of the Improvements and
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, agreements with utility companies, together with any deposits, prepaid
fees and charges paid thereon and trade secrets and other proprietary
information owned by Mortgagor, such as trademarks, copyrights and patents;
(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
(ix) all proceeds, products, replacements,
additions, betterments, extensions, improvements, substitutions, renewals and
accessions of any and all of the foregoing.
(cc) RENTS: All rents, revenues, rental income and profits
from leases, franchises, concessions or licenses of or on any part of the
Mortgaged Property.
I.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.
I.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
II.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.
II.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.
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II.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.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
III.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.
III.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.
III.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.
III.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.
III.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.
III.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.
III.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.
III.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.
III.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
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provided in this Article III and Mortgagor, upon demand from Mortgagee, shall
confirm to such tenant the existence of such rights.
III.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.
III.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.
III.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 ss. 697.07 of the
FLORIDA STATUTES (hereinafter "ss. 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 3.12 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 ss. 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 ss. 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
IV.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.
(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
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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.ss.ss.811 and 881, and 18 U.S.C.
ss.1961), 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 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.
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(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 entitled
"Accessibility by Handicapped Persons", Chapter 553, FLORIDA STATUTES; the
Federal Architectural Barriers Act of 1988 (42 U.S.C. ss.4151, ET SEQ.), The
Fair Housing Amendment Act of 1988 (42 U.S.C. ss.3601, ET SEQ.), The Americans
With Disabilities Act of 1990 (42 U.S.C. ss.12101 ET SEQ.), and The
Rehabilitation Act of 1973 (29 U.S.C. ss.794).
(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, Ronald H. DeFerrari, Stacy L. Wagner, Edmond A. Richards and Jay
Sasserath.
IV.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
V.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.
V.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.
V.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.
V.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 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.
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V.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. If at any time Mortgagor
shall construct any Improvements on the Mortgaged Property, 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 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:
P.O. Box 40329
Jacksonville, Florida 32203-0329
V.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
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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.
V.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.
V.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 Mortgaged
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 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;
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(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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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 for costs and
expenses incurred in connection with such disbursements;
(v) 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
(vi) 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.
V.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.
V.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.
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V.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.
V.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, 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.
V.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.
V.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.
V.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 make such copies or extracts
therefrom as the Mortgagee shall require.
V.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.
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V.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.
V.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.
V.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,
accessions and appurtenances thereto and thereof.
V.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.
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V.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.
V.22 WITHHOLDING TAXES.
(a) If under any applicable law or regulation 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.
V.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 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
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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 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, Mortgagee agrees to provide a copy of such
Environmental Assessment to Mortgagor, upon Mortgagor's request.
V.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.
V.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: (a) an Event of Default has occurred, or (b) if required by any
governmental law or regulation, or (c) no more than once in any calendar year,
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).
V.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.
V.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.
V.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, including but
not limited to that certain Agreement between Mortgagor and M.K.C., Inc. dated
May 27, 1999 and the Assumption and Hold Harmless Agreement by Mortgagor, dated
May 27, 1999, and executed in relation thereto, and all orders, settlement
agreements and judgments referenced in said Agreements.
V.29 LOAN AGREEMENT. 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.
V.30 INTEREST RATE SWAP PROTECTION AGREEMENTS. Mortgagor shall duly
and punctually perform all covenants, terms and agreements expressed as binding
upon it under any Interest Rate Protection Agreements. Mortgagor acknowledges
that its obligations under any Interest Rate Protection Agreement are
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obligations secured by this Mortgage. Further, Mortgagor acknowledges and agrees
that the occurrence of any event of default under any Interest Rate Protection
Agreement shall be a default hereunder, and vice versa.
ARTICLE VI
NEGATIVE COVENANTS
VI.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.
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VI.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, demolition 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. Notwithstanding anything contained herein to the contrary, without
the Mortgagee's prior approval, the Mortgagor shall be permitted to undertake or
delegate to others the construction of the masonry wall and the landscaping
along the east boundary of the Mortgaged Property required to be performed by
the owner of the Mortgaged Property pursuant to that certain Settlement
Agreement entered in Case No. 97-4079-CI8, Circuit Court, 6th Judicial Court,
Pinellas County, Florida, recorded as Exhibit "A" to the Order Preliminarily
Approving Settlement Agreement recorded in O.R. Book 10394, Page 1041, together
with Final Judgment recorded in O.R. Book 10448, page 2122, of the Public
Records of Pinellas County, Florida, provided, that in the course of performing
such construction the Mortgagor complies with all laws, rules, regulations and
ordinances and does not allow any construction liens to attach to or remain
against the Mortgaged Property as a result of such work.
(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.
VI.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 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.
VI.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.
VI.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.
VI.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.
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ARTICLE VII
EVENTS OF DEFAULT
VII.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;
(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 ss. 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.
(n) DEFAULT UNDER INTEREST RATE PROTECTION AGREEMENT. If
any default or any event of default occurs under any Interest Rate Protection
Agreement or if Mortgagor fails to pay any sum due under any Interest Rate
Protection Agreement when due.
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ARTICLE VIII
RIGHTS AND REMEDIES
VIII.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 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
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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 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.
VIII.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.
VIII.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.
VIII.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 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.
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VIII.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.
VIII.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.
VIII.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.
VIII.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.
VIII.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.
VIII.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, 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
IX.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.
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IX.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").
IX.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.
ARTICLE X
MISCELLANEOUS
X.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.
X.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.
X.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.
X.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.
X.5 NOTICE. All notices, demands, requests and other
communications required under this Mortgage may be given 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.
X.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
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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.
X.7 COVENANTS RUNNING WITH THE LAND. All covenants contained in
this Mortgage shall be binding on the Mortgagor and shall run with the Land.
X.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.
X.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.
X.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.
X.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.
X.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.
X.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.
X.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.
X.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 PINELLAS
COUNTY, 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
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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. SS. 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 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.
X.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 line of
credit loan from Mortgagee to Mortgagor as evidenced by that certain Renewal
Line of Credit Promissory Note in the amount of $10,000,000.00 dated as of May
31, 1999; 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/ DAVID R. BRITTIAN
- -----------------------------
Signature of Witness
DAVID R. BRITTIAN By: /s/ STACY L. WAGNER
- ----------------------------- ---------------------------
Legibly Print Name of Witness Stacy L. Wagner
Vice President and Chief Financial
Officer
/s/ JAMES J. ROWAN
- ----------------------------
Signature of Witness
(CORPORATE SEAL)
JAMES J. ROWAN
- ----------------------------
Legibly Print Name of Witness
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 27th day of
May, 1999, by STACY L. WAGNER, as the Vice President and Chief Financial Officer
of PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She
[ ] is personally known to me or [X] has produced Drivers License as
identification.
/s/ CYNTHIA A. CRANE
-----------------------------------
CYNTHIA A. CRANE
-----------------------------------
(SEAL) Legibly Print Name of Notary Public
Notary Public
My Commission Expires: June 22, 2001
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EXHIBIT "A"
LEGAL DESCRIPTION
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG, FIRST
ADDITION, according to the plat thereof recorded in Plat Book 67, Page 25, 26
and 27, of the Public Records of Pinellas County, Florida, LESS AND EXCEPT the
South 190 feet thereof.
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS AGREEMENT ("AGREEMENT"), made and entered into this 21st day of
April, 1998, by and between M.K.C., INC., A FLORIDA CORPORATION (the "SELLER"),
PLASMA-THERM, INC., A FLORIDA CORPORATION (the "PURCHASER") and TRENAM, KEMKER,
SCHARF, BARKIN, FRYE, O'NEILL & MULLIS, PROFESSIONAL ASSOCIATION ("ESCROW
AGENT").
WHEREAS, Seller is the purchaser of certain vacant real property
located in the County of Pinellas, City of St. Petersburg, Florida, more
particularly described on Exhibit "A" attached hereto pursuant to the terms of a
valid and subsisting agreement for the sale and purchase of such property from
the seller, thereof, Myron Dickstein, Trustee, ("SELLER'S ACQUISITION
CONTRACT"); and
WHEREAS, Purchaser desires to purchase a portion of such property upon
its acquisition by Seller and Seller desires to sell such property to Purchaser;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, Purchaser and Seller hereby agree as follows:
1. SALE OF PROPERTY; DESCRIPTION OF LAND.
a. Seller agrees to sell, convey, assign, and transfer to Purchaser,
and Purchaser agrees to purchase, acquire and take from Seller all that certain
vacant real property located in the City of St. Petersburg, Pinellas County,
Florida, legally described on EXHIBIT "B" attached hereto and made a part
hereof, consisting of approximately 7.96 gross acres or approximately 346,960
gross square feet (the "LAND"), together with (a) all fixtures and improvements
located on, in or under the Land (collectively, the "IMPROVEMENTS"), (b) the
benefit of all easements, privileges, licenses, rights and appurtenances thereto
belonging or in anywise appertaining, including without limitation all right,
title and interest of Seller in and to adjacent streets, roads, alleys,
rights-of-way, to the extent existing, (c) all trees, shrubbery, growing crops,
plants, minerals and other emblements of every kind located on the Land, and (d)
all intangible property related to the use, ownership, maintenance or operation
of the Land or Improvements, including without limitation all permits, utility
service rights, governmental approvals and development rights. The Land,
Improvements and other property described above is sometimes collectively
referred to herein as the "PROPERTY."
b. In recognition of the fact that Seller has entered into Seller's
Acquisition Contract for the purchase of the Property, Seller hereby covenants,
warrants and represents all of the following to Purchaser:
i. Seller will perform Seller's obligations under Seller's
Acquisition Contract as required to keep such contract in full force and effect.
ii. Except as qualified pursuant to the provisions of
paragraph 1c. herein, Seller's Acquisition Contract is in full force and effect,
Seller is not in default thereunder and no event has occurred which, with the
passage of time or the giving of notice or both would constitute a default by
Seller or the seller under Seller's Acquisition Contract and no event has
occurred which, with the passage of time, the giving of notice or both, would
give either the Current Owner or Seller the right to terminate Seller's Purchase
Agreement.
ii. After the date of this Agreement, Seller will not enter
into any amendment or modification of Seller's Acquisition Contract which is or
may be materially adverse to the interest of Purchaser without the prior written
consent of Purchaser.
<PAGE>
c. The Property is currently encumbered by a Declaration of Easement
("Declaration") recorded in O.R. Book 4268, page 1009, Pinellas County records,
and Purchaser is unwilling to purchase the Property subject to the Declaration.
In order to remove the Declaration as an encumbrance to the Property, Myron
Dickstein, Trustee, the seller under Seller's Acquisition Contract, instituted a
lawsuit in the Pinellas County Circuit Court, Case No. 97-4079-C18 which has
ultimately resulted with all interested parties entering into a settlement
agreement ("Settlement Agreement"), a copy of which is attached hereto as
Exhibit "C". Myron Dickstein, Trustee, has also entered into an agreement with
the Seller ("Dickstein Agreement") whereby Seller has agreed to assume certain
obligations of Myron Dickstein, Trustee, under the provisions of the Settlement
Agreement, a copy of the Dickstein Agreement being attached hereto as Exhibit
"D".
This Contract is contingent on the Court in the above-referenced
lawsuit entering a judgment ("Judgment") approving the Settlement Agreement and
declaring the Declaration to be cancelled and of no further force or effect and
that such Judgment becomes final by reason of the expiration of the time for
appeal.
Upon the Judgment becoming final, the parties agree as follows:
i. Purchaser shall take title to the Property subject to the
terms of the Settlement Agreement attached hereto as Exhibit "C"; provided,
however, the Purchaser does not assume any performance obligations of Seller
except as expressly provided in the Assumption and Hold Harmless Agreement
referenced in paragraph 3.c.iii. herein.
ii. As to the Property being purchase pursuant to the terms of
this Agreement, Purchaser shall assume Seller's obligations under paragraph 4 of
the Dickstein Agreement and shall, at closing, execute the Assumption and Hold
Harmless Agreement referenced in paragraph 3c. herein.
iii. Paragraph 2c. of the Settlement Agreement provides for
the construction of a 6' masonry wall painted on both sides along the east
boundary line of the property described on Exhibit "A" attached hereto. Prior to
the closing, Purchaser shall submit to Seller a reasonable estimation of the
costs of the design and construction of the 6' wall prepared by Purchaser's
licensed contractor. Purchaser shall be entitled to a credit against the
purchase price for the property at closing in the amount of such estimate,
provided, however, in no event shall such credit exceed the sum of $50,000.00.
Except as provided in paragraph 1c.ii. above, nothing in this
subparagraph will be deemed or construed to be a release of Seller from, or an
assumption by Purchaser of, any of Seller's obligations or liabilities under
Seller's Acquisition Contract, whether now existing or hereafter arising and
whether or not Purchaser elects to perform under Seller's Acquisition Contract.
2. PURCHASE PRICE; PAYMENT. Subject to prorations, credits and adjustments
as hereinafter provided, the full purchase price for the Property (the "PURCHASE
PRICE") to be paid by Purchaser to Seller shall be a sum equal to ONE MILLION
ONE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($1,120,000.00). The Purchase
Price shall be payable as follows:
a. On the date of full execution of this Agreement by Seller and
Purchaser (the "EFFECTIVE DATE"), Purchaser shall deposit with the Escrow Agent
a sum equal to TEN THOUSAND AND NO/100 DOLLARS ($10,000.00), by check, subject
to collection, which amount hereinafter shall be referred to as the "ESCROW
DEPOSIT," and which shall be credited to Purchaser and paid to Seller at Closing
(defined below), subject to the terms of this Agreement. The Escrow Agent agrees
and is hereby instructed by the parties hereto to accept and hold the Escrow
Deposit in escrow pursuant to the terms of this Agreement and for the purposes
herein expressed.
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b. In the event that the purchase and sale contemplated by this
Agreement is closed, the Escrow Deposit shall be paid to Seller and applied to
the Purchase Price at Closing.
c. At Closing of this transaction, Purchaser shall pay to Seller the
balance of the Purchase Price, after deduction of the Escrow Deposit and such
prorations, credits and adjustments as may be permitted or required by this
Agreement. Such funds will be paid to Seller by a wire transfer of immediately
available funds to an account designated by Seller, or by cashier's check.
3. CLOSING; CLOSING DELIVERIES.
a. Subject to any terms of this Agreement to the contrary, this
transaction shall close, the balance of the Purchase Price will be paid to
Seller as provided above, and the Deed (defined hereinbelow) and other
transaction documents shall be delivered (collectively, the "CLOSING") at a
meeting between representatives of Purchaser and Seller to occur on the FOURTH
(4TH) business day following the Judgment referenced in paragraph 1c. herein
becoming final as provided in the Settlement Agreement referenced in paragraph
1c. herein and attached hereto as Exhibit "C" (the "CLOSING DATE"), provided,
however, that in the event the Judgment does not become final by June 1, 1999,
Purchaser shall, at Purchaser's option, have the right to terminate this
Agreement by notice in writing to Seller and thereupon Purchaser shall be
entitled to a return of its Escrow Deposit. It is presently anticipated the
Judgment referenced in paragraph 1c. herein will become final on April 21, 1999.
The Closing shall take place at the law offices of McCutcheon and Rowan 3839 4th
St. N., Suite 390, St. Petersburg, Florida 33703, at 3:00 p.m. on the day of
closing. Possession of the Property shall be delivered to Purchaser at Closing,
free and clear of all leases, tenancies, licenses and other occupancy
agreements.
b. On the Closing Date, Seller or Seller and Purchaser, as appropriate,
shall execute and deliver all of the following (all of which shall be in form
prepared by Seller and reasonably satisfactory to Purchaser):
i. A Florida statutory form warranty deed (the "DEED") in
recordable form, duly executed, witnessed and acknowledged by Seller, conveying
the Property to Purchaser free and clear of all liens and encumbrances, except
the Permitted Encumbrances, as defined in Paragraph 5.a. of this Agreement
below.
ii. A sworn affidavit, duly executed by Seller, making such
reasonable, customary and truthful statements as may be required by the Title
Insurance Company for the purpose of insuring Purchaser's title, subject to the
Permitted Encumbrances.
iii. Such other documentation (including any reasonable and
truthful affidavits) as may be reasonably required by the Title Insurance
Company to evidence that all of the above-described instruments have been duly
and validly authorized, executed and delivered by Seller, that Seller is
authorized to consummate the transaction and to transfer and convey the Property
to Purchaser and that the instruments of conveyance and transfer are sufficient
to vest title to the Property in Purchaser, free and clear of all liens and
encumbrances except the Permitted Encumbrances.
iv. A sworn affidavit or other documentation, duly executed by
Seller, establishing an exemption from alien withholding under Section 1445 of
the Internal Revenue Code of 1986 (the "CODE"). If Seller is unable to execute
and deliver such affidavit to Purchaser, then Seller will comply with its
withholding obligations under Section 1445 of the Code.
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<PAGE>
v. A closing statement or statements, duly executed by Seller
and Purchaser, accounting for payment of the Purchase Price, the Escrow Deposit,
all credits, adjustments and prorations required by this Agreement and the costs
and expenses of the transaction.
All of the above documents will be prepared by Seller and drafts delivered to
Purchaser for approval not later than two (2) business days prior to the Closing
Date.
c. In addition to any documents required to be executed and delivered
by Purchaser above, at Closing, Purchaser shall execute and/or deliver to Seller
or the Title Insurance Company all of the following:
i. Funds in an amount equal to the balance of the Purchase
Price (after credits, adjustments and prorations required by this Agreement),
plus Purchaser's expenses of the sale, for delivery to Seller or the Title
Insurance Company, by a wire transfer of immediately available funds on the
Closing Date, pursuant to the terms of this Agreement.
ii. Such documentation as may be reasonably required by the
Title Insurance Company to evidence that all instruments executed by Purchaser
have been duly and validly authorized and delivered by Purchaser (and, in the
event of assignment to the Related Entity, as later defined, by the Related
Entity), that Purchaser and/or the Related Entity, if applicable, is in good
standing, duly organized, and authorized to consummate the transaction, and that
Purchaser and/or the Related Entity, if applicable, has been duly authorized to
accept transfer and conveyance of the Property from Seller.
iii. As to the Property being purchased pursuant to the terms
of this Agreement, an Assumption and Hold Harmless Agreement duly executed by
Purchaser assuming Seller's obligations under paragraph 4 of the Agreement
between Seller and Myron Dickstein ("Dickstein Agreement") and agreeing to
indemnify and hold harmless Seller from any costs, judgment, claims and
attorneys' fees arising out of Purchaser's failure to perform Seller's
obligations under paragraph 4 of the Dickstein Agreement.
iv. As to the portion of the property described on Exhibit "A"
attached hereto which is not being purchased pursuant to the terms of this
Agreement, Seller shall execute a Hold Harmless Agreement agreeing to indemnify
and hold harmless Purchaser from any costs, judgment, claims and attorneys' fees
arising out of Seller's failure to perform Seller's obligations under paragraphs
1, 2, 3, 4, 5, 6 and 7 of the Dickstein Agreement with the exception of the
obligation to construct the 6' masonry wall referenced in paragraph 1.c.iii.
herein.
v. A declaration of restrictions to be agreed upon between
Seller and Purchaser prior to closing whereby the parties agree to
proportionately share based upon the size of their respective parcels share in
the cost of maintenance and repair of the wall and landscaping described in the
Settlement Agreement.
4. IMPLIED WARRANTIES AND REPRESENTATIONS EXCLUDED; INSPECTION RIGHTS OF
PURCHASER;
a. EXCEPT FOR THE WARRANTIES AND REPRESENTATIONS PROVIDED IN PARAGRAPH
7 HEREINBELOW AND EXCEPT FOR THE TITLE WARRANTIES THAT WILL BE CONTAINED IN THE
DEED TO BE DELIVERED TO PURCHASER AT CLOSING, THE PROPERTY IS SOLD AND WILL BE
TRANSFERRED AND CONVEYED TO PURCHASER IN "AS IS, WHERE IS" PHYSICAL CONDITION
AND BASED UPON THE PROPERTY'S PRESENT CONDITION, WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF
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HABITABILITY, GOOD, FAIR OR ADEQUATE CONDITION OR REPAIR OR GOOD WORKMANLIKE
CONSTRUCTION. ALL SUCH WARRANTIES ARE HEREBY EXCLUDED.
b. In order to facilitate Purchaser's inspections and examinations with
respect to the Property, Purchaser acknowledges that Seller has heretofore
delivered or has simultaneous with the execution of this Agreement delivered to
Purchaser copies of all of the following:
i. Phase II Environmental Report prepared by Allied
Environmental dated March 12, 1997.
ii. Survey dated February 24, 1997 of the Property prepared
by C. Fred Deuel & Associates, Inc. and bearing Work Order No. 97-75.
iii. Site study of a proposed 140,000 square foot building on
the Property prepared by Fisher & Associates, Inc. dated August 8, 1996 with
latest revision dated December 3, 1996.
iv. Declaration of Easement recorded in O.R. Book 4268, page
1009, public records of Pinellas County, Florida.
v. Plat of Northgate of St. Petersburg, First Addition.
vi. Easement grant to Florida Gas Transmission Co. recorded
in O.R. Book 3282, page 454 and as set forth on plat recorded in Plat Book 67,
pages 25, 26 and 27, Pinellas County records.
vii. South 10' utility and drainage easement as set forth on
plat.
viii. Roadway easement at the northwest corner as set forth on
plat.
ix. Sidewalk covenant between Oscar Gower Trustee and the City
of St. Petersburg recorded July 21, 1971 in O.R. Book 3585, page 914.
x. Covenant recorded in O.R. Book 3801, page 87.
xi. Easements in favor of the City of St. Petersburg recorded
in O.R. Book 3998 at pages 1190 and 1191.
xii. Notice of Adoption of Development Order recorded in O.R.
Book 7151, page 1514 and amendment in O.R. Book 7894, page 189.
5. TITLE INSURANCE; CURATIVE PROCEDURES.
a. Seller shall obtain, at Seller's expense, on or before April 20,
1999, a written commitment for an ALTA Owners Marketability Policy of title
insurance (Form 1970, rev. 1984), with legible and complete copies of all
referenced documents attached unless already provided Purchaser pursuant to
paragraph 4b. herein, insuring title to the Property in the full amount of the
Purchase Price (the "TITLE INSURANCE COMMITMENT"). Seller will pay the premium
and search charges for the Title Insurance Commitment and policy issued pursuant
thereto, at Closing; provided, however, that the cost of such title insurance
will not exceed the minimum promulgated rate permitted by the Florida
Commissioner of Insurance and the search charge will not exceed a reasonable
charge customary for such searches performed by national title insurance
companies and their agents in the area in which the Property is located. The
Title Insurance Commitment shall be issued by either Lawyers Title Insurance
Corporation
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or Ticor Title Insurance Company (the "TITLE INSURANCE COMPANY") and
will reflect that Myron Dickstein, Trustee has fee simple title of record to the
Property, subject only to taxes for the year of closing which are not yet due
and payable, the standard, preprinted exceptions authorized for issuance in
Florida in connection with the foregoing form of commitment, liens, encumbrances
and prior year taxes that Seller will discharge at or prior to Closing, if any,
and easements, reservations, restrictions, and limitations of record. For
purposes of this Agreement, the term "PERMITTED ENCUMBRANCES" will mean real
estate taxes and assessments for the year of closing which are not yet due and
payable, zoning, land use and other prohibitions and restrictions imposed by
governmental authority, encroachments disclosed by the Survey prepared in
accordance with Paragraph 6 below which have been accepted or are deemed to have
been accepted by Purchaser, Items v-xii set forth in paragraph 4b. herein, the
Settlement Agreement and such other easements, reservations, restrictions and
other matters which are disclosed by the Title Insurance Commitment as Purchaser
may approve, in writing, in Purchaser's sole discretion, or is deemed to have
approved by failing to object to such matters within the time permitted under
subparagraph b. below.
b. If the Title Insurance Commitment discloses that Myron Dickstein,
Trustee does not have fee simple title to the Property or that title to the
Property is subject to any liens, encumbrances, easements, restrictions or
matters not setforth in paragraph 5a. above, Purchaser shall notify Seller, in
writing, on or before one (1) day after receipt by Purchaser of the Title
Insurance Commitment, specifying the defects which exist with respect to the
title to the Property that are unacceptable to Purchaser (the "TITLE DEFECTS").
Seller shall thereafter use diligent efforts to cure such Title Defects during a
period of up to thirty (30) days from the date that Purchaser gives Seller
notice with respect to the Title Defects. Seller will be deemed to have cured a
Title Defect if Seller obtains a replacement Title Insurance Commitment from the
Title Insurance Company or an endorsement to the existing Title Insurance
Commitment from the Title Insurance Company removing the Title Defects
therefrom. This transaction shall be closed on the tenth (10th) consecutive day
after the Title Insurance Company notifies Purchaser that the Title Defects have
been removed from the Title Insurance Commitment (or the date originally
scheduled for Closing, whichever occurs last).
c. If Seller fails to cause the Title Insurance Company to remove the
Title Defects from the Title Insurance Commitment at or prior to the end of the
aforesaid sixty (60) day period, then, at Purchaser's option, (i) Purchaser may
cancel this Agreement, whereupon the Escrow Deposit shall be returned promptly
to Purchaser and all rights, obligations and liabilities of the parties shall
terminate (except those obligations of the parties that expressly survive
termination as provided in this Agreement), or (ii) Purchaser may elect to
purchase the Property in the same manner as if no Title Defects had been found,
without reduction of the Purchase Price, whereupon the Title Defects will become
Permitted Encumbrances in the Deed.
d. As a condition of Purchaser's obligation to close this transaction,
at Closing, the Title Insurance Company must update the Title Insurance
Commitment by marking and initialing or endorsing it in order to show coverage
effective as of the Closing Date, satisfaction of all requirements of the Title
Insurance Commitment in Schedule B, Section I of the Title Insurance Commitment,
and deletion of the "gap" exception and all other standard, preprinted
exceptions from Schedule B, Section II of the Title Insurance Commitment,
leaving only the Permitted Encumbrances as exceptions from coverage.
Notwithstanding the foregoing, if Purchaser does not obtain the Survey (defined
in Paragraph 6. below) duly certified to the Title Insurance Company, then the
standard, preprinted exception for matters of survey in the Title Insurance
Commitment will appear in the title insurance policy. A title insurance policy
containing only provisions which are consistent with the marked and initialed
Title Insurance Commitment will be delivered to Purchaser promptly after the
Closing Date.
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6. SURVEY.
a. On or before April 21, 1999, Seller will obtain a survey of the
Property (the "SURVEY"), at Purchaser's expense. The Survey will be prepared by
a licensed Florida land surveyor and prepared in compliance with the minimum
technical standards for land surveys of the Florida Department of Professional
Regulation. The Survey will certify the number of gross square feet in the Land
to the nearest 1/1000 of a square foot, and will be certified to Seller,
Purchaser, NationsBank, N.A. and the Title Insurance Company.
b. Seller will deliver four (4) sealed prints of the Survey to
Purchaser on April 21, 1999. If the Survey shows that improvements located on
other lands materially encroach onto the Property, or that any improvements
located upon the Property materially encroach on other lands, or other matters
materially affecting the title to the Property (collectively, the "SURVEY
DEFECTS"), Purchaser shall notify Seller, in writing, of Purchaser's specific
objections to the Survey by 10:00 a.m. on April 22, 1999. Seller and Purchaser
shall then have the same rights and obligations in connection with the cure of
Survey Defects as are provided under paragraph 5 of this Agreement in connection
with the subject of Title Defects. Upon Seller's failure to cure Survey Defects
to which proper objection has been made by Purchaser, then at Purchaser's
option, (i) this Agreement shall be canceled, whereupon so much of the Escrow
Deposit as has been paid shall be returned to Purchaser promptly, and all
rights, obligations and liabilities of the parties hereto shall terminate
(except for any provisions of this Agreement that expressly survive
termination), or (ii) Purchaser may elect to purchase the Property in the same
manner as if no Survey Defects had been found, without reduction of the Purchase
Price, whereupon the Survey Defects will be deemed to have become Permitted
Encumbrances. These shall be the sole remedies of Purchaser in the event of the
occurrence of Survey Defects.
7. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
a. Seller represents and warrants to Purchaser all of the following:
i. Seller is duly organized, validly existing and in good
standing under the laws of the State of Florida and has all requisite power to
own and operate the Property.
ii. Seller and the officer of Seller who is executing this
Agreement have all requisite power and authority to execute, deliver and perform
this Agreement and to consummate the transactions contemplated herein. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, breach, result in a
default under, or violate any agreements to which Seller is a party or by which
Seller or the Property are or may be bound or affected in any manner.
iii. There are no leases, tenancies, license, occupancy
agreements or other agreements with Seller affecting all or any portion of the
Land and Improvements except for the Recreation Facilities Agreement and the
Permitted Encumbrances.
iii. Seller has no knowledge of any petitions or proceedings
pending for the purpose of changing the zoning or land use plan classification
applicable to the Property. Seller has no knowledge of any building or other
moratoria or suspension of public services that is currently pending or
threatened which would prohibit construction of commercial buildings or
improvements to the Land or render water, sewer, electric or other utilities
unavailable to the Land.
iv. To Seller's knowledge, there is no administrative agency
action, litigation, condemnation or code enforcement proceeding, or other
proceeding of any kind pending against Seller
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which affects or relates to the Property and, to Seller's knowledge, no such
action, litigation or proceeding has been threatened.
v. Seller has received no written notice and has no knowledge
of any certified, confirmed or ratified special assessments (whether ad valorem
or non ad valorem in nature) which affect the Property and are unpaid and Seller
has received no knowledge of any pending special assessments or intent on the
part of any governmental agency, authority or special tax district to impose a
special assessment against the Property or any portion thereof.
vi. Except as may be revealed in the Phase II Environmental
Report furnished to Purchaser pursuant to paragraph 4b. herein, to Seller's
knowledge, the Property has never been used as a landfill or dump site and there
is not and has not been located on the Property any "Hazardous Substance,"
"Pollutant" or aboveground or underground storage tank. For purposes of this
Agreement, the terms "Hazardous Substance" and "Pollutant" includes all
substances, materials and wastes, expressly including petroleum and asbestos,
regulated under any federal, state, county or municipal law, ordinance, code or
regulation.
vii. Prior to Closing, Seller will not enter into any
transaction or agreement or undertake any additional indebtedness with respect
to the Property.
viii. Except for Permitted Encumbrances, there are no
restrictive covenants or agreements affecting the use, operation or development
of the Land or preventing or materially restricting the use of the Land for
purposes of a Plant.
b. Purchaser represents and warrants to Seller all of the following:
i. Purchaser is duly organized, validly existing and in good
standing under the laws of the State of Florida.
ii. Purchaser and the officer of Purchaser who is executing
this Agreement have all requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated herein.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with, breach, result
in a default under, or violate any agreements to which Purchaser is a party or
by which Purchaser or the Property are or may be bound or affected in any
manner.
c. All obligations of Purchaser under this Agreement are subject to the
condition precedent that the representations and warranties of Seller contained
in this paragraph 7 shall not only have been true and correct in all material
respects as of the Effective Date, but shall also be true and correct in all
material respects again as of the Closing Date. If any of the representations
and warranties contained in this Agreement are not true and correct in all
material respects both on the Effective Date and again as of the Closing Date,
Purchaser may elect either (i) to cancel this Agreement, whereupon the Escrow
Deposit will be returned to Purchaser promptly, or (ii) Purchaser may elect to
close the sale.
d. If Purchaser determines, prior to the Closing Date, that any of
Seller's representations and warranties contained in this paragraph 7. above are
not true and correct in all material respects or have been materially breached,
Purchaser will promptly disclose such determination to Seller prior to the
Closing Date. In the event that Purchaser closes the purchase of the Property,
all of the representations and warranties of Seller shall survive for a period
of one (1) year after the Closing Date, and, unless suit has been brought in
connection with the breach or falsity of any representation or warranty within
such time period, thereafter will be conclusively deemed to have been
extinguished and void. Notwithstanding
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any provision of this paragraph 7 to the contrary, however, Seller and Purchaser
agree that the overall limitation on Purchaser's recoverable damages against
Seller which is set forth under paragraph 12 of this Agreement will apply
equally to damages recoverable by Purchaser against Seller in the event of the
breach or falsity of any of Seller's representations and warranties to Purchaser
under this paragraph 7.
8. PRORATIONS AND ADJUSTMENTS.
a. All general real estate taxes and assessments, personal property
taxes (if any), and non-ad valorem charges and assessments levied or imposed
upon the Property for the year of Closing (collectively, "TAXES") shall be
prorated between Seller and Purchaser as of the Closing Date. For proration
purposes, the day of Closing will be treated as the first day of Purchaser's
ownership of the Property. If the actual amount of Taxes for the year in which
Closing occurs is not known on the Closing Date, the proration shall be made
using the amounts of such Taxes for the previous year; provided, however, that
if either the millage rate or assessed value of the Property is known for the
year in which Closing occurs and differs from that used in computation of Taxes
for the prior year, such current millage rate or assessed valuation shall be
used in prorating Taxes at Closing. If proration of Taxes for Closing is based
upon an estimate, Seller and Purchaser hereby agree that, upon written request
of either party, they will recalculate the proration when the actual figures
become known and if either party is found to owe money to the other as the
result of such recalculation, such party will promptly reimburse the other
party. Seller shall cause all certified, confirmed or ratified special
assessments made upon the Property prior to the Closing Date to be paid in full
at Closing; provided, however, that if any certified, confirmed or ratified
special assessment applicable to the Property is payable in installments, Seller
will pay (and the parties will prorate) only the current installment and
Purchaser will assume the liability for payment of all future installments
thereof. Any special assessments that are not certified, confirmed or ratified
as of the Closing Date will be assumed and paid by Purchaser as and when due.
b. Purchaser will not assume any policies of insurance carried by
Seller with respect to the Property, and will be solely responsible for making
arrangements for Purchaser's own insurance protection at the Closing.
c. All agreements of the parties contained in this paragraph 8 shall
survive the Closing and shall not be merged therein.
9. CLOSING COSTS AND EXPENSES. At Closing, Seller shall pay all of the
cost of Florida state documentary stamp tax on the Deed; the cost of preparing
and recording any curative instruments necessary to perfect Seller's title and
all of the fees and expenses of Seller's legal counsel. Seller will pay all of
the premium and search charge for the owner's policy of title insurance required
to be delivered by this Agreement; Purchaser shall pay the recording charges for
the Deed, the cost of any special title insurance endorsements required by
Purchaser, if any, the cost of the Survey, and all of the fees and expenses of
Purchaser's legal counsel.
10. EMINENT DOMAIN. If at any time prior to delivery of the executed Deed
to Purchaser as herein provided the Property or any portion thereof is taken by
eminent domain or if any preliminary steps in any taking by eminent domain of
the Property and the improvements or any portion thereof occurs prior to such
delivery, Purchaser may, at its option, within ten (10) days after receipt of
written notice of such fact from Seller (if Purchaser receives such notice from
Seller within ten [10] days prior to Closing, the Closing shall be extended in
order to provide Purchaser the aforesaid ten [10] days), rescind this Agreement,
and upon such rescission the Escrow Deposit will be promptly returned to
Purchaser, and thereupon all rights, obligations and liabilities arising
hereunder shall terminate (except for any agreements of the parties that
expressly survive termination of this Agreement). Seller shall notify Purchaser
in writing of any such taking by eminent domain and all steps preliminary
thereto as soon as
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the Seller has knowledge thereof. In the event that Purchaser does not elect to
rescind this transaction under such circumstances, Purchaser shall be entitled
to all proceeds received or to be received from any condemning authority, and
Seller shall (i) pay to Purchaser at Closing all such proceeds received by
Seller; (ii) assign to Purchaser, without recourse to Seller, at Closing, all
such proceeds to be thereafter received from any condemning authority by
instrument of assignment, in form prepared by Seller and reasonably acceptable
to Purchaser; (iii) this transaction shall close in accordance with its terms;
(iv) the legal description of the Property set forth in the Deed and the other
Closing documents shall be made subject to such condemnation proceedings or
taking, and (v) there shall be no reduction in or abatement of the Purchase
Price.
11. DEFAULT.
a. If Purchaser defaults with respect to the performance of any or all
of its obligations under this Agreement, Seller shall have the right to cancel
this Agreement, whereupon so much of the Escrow Deposit as has been paid shall
be paid promptly to Seller by the Escrow Agent as full and agreed consideration
for the execution of this Agreement and as agreed liquidated damages, in full
settlement of any claims for damages, as Seller's sole remedy hereunder. The
foregoing damages are intended to be liquidated damages to compensate Seller for
Seller's opportunity cost and loss of bargain in connection with a material
default by Purchaser, both of which would be extremely difficult to calculate.
b. If Seller defaults with respect to the performance of any or all of
its obligations under this Agreement, Purchaser may, at its option, elect either
(i) to cancel this Agreement and demand a return of the Escrow Deposit,
whereupon the Escrow Deposit shall be promptly returned to Purchaser and
Purchaser will retain the right to recover all damages and other relief to which
Purchaser may be entitled by reason of Seller's breach of this Agreement, or
(ii) to seek specific performance of this Agreement, in equity.
c. Notwithstanding any provision of this paragraph 11 to the contrary,
if any term, covenant or condition of this Agreement provides for an alternative
or additional remedy upon the occurrence or nonoccurrence of certain events or
circumstances, such alternative or additional remedy shall control over the
remedies provided for under this Paragraph.
12. BROKERAGE COMMISSION. Seller and Purchaser agree that there are no
brokers, agents or finders known to them to be entitled to a commission or other
compensation in connection with this transaction except MIDA Group., whose
address is 10103 9th Street North, Ste. A, St. Petersburg, Florida 33716
[Telephone: (727) 578-0808; Facsimile: (727) 578-5154], a licensed Florida real
estate broker (the "BROKER"). Seller hereby agrees to pay a brokerage commission
to the Broker of five percent (5%) of the purchase price, if, as and when
closing of this transaction takes place. Purchaser and Seller each hereby
warrant and represent that they have not dealt with, consulted or contacted any
real estate agent or broker in connection with the transactions contemplated by
this Agreement, except the Broker. Purchaser and Seller shall defend, indemnify
and hold each other harmless from any loss, damage, cost or expense, including
attorneys' and legal assistants' fees and costs, that may accrue by reason of
their respective covenants, warranties and representations in this paragraph
having been breached or untruthful. The agreements contained in this paragraph
shall survive Closing indefinitely and shall not to be merged therein and shall
also survive any termination of this Agreement.
13. ASSIGNMENT. Purchaser may assign this Agreement and all of Purchaser's
rights hereunder to a corporation, general partnership, limited partnership or
joint venture in which Purchaser will have a majority economic interest and
voting control (the "RELATED ENTITY") without the consent of Seller; provided,
however that in such event (i) Purchaser will give written notice to Seller of
its intention to make such an assignment to the Related Entity not later than
ten (10) days prior to the Closing Date; and
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(ii) the Related Entity will execute a written assumption of all of Purchaser's
obligations under this Agreement and will deliver a copy of such assumption to
Seller not later than ten (10) days prior to the Closing Date. Except as above
provided, this Agreement and Purchaser's rights hereunder shall not be assigned
to any party without the prior written consent of Seller, which consent will not
be unreasonably withheld or delayed.
14. NOTICES. Unless the contrary is expressly provided by this Agreement,
any notice required or permitted to be given under the terms of this Agreement
shall be in writing and shall be deemed to have been given on the date
personally delivered, or one (1) business day after deposit in Federal Express
or other guaranteed overnight courier, or three (3) business days after deposit
in the United States mail, registered or certified, return receipt requested,
postage prepaid, properly addressed as follows:
IF TO PURCHASER: Plasma-Therm, Inc.
Attn: Scott Deferrari, President
Attn: Stacy Wagner: C.F.O.
10050 16th Street North
St. Petersburg, Florida 33716
Telephone: (813) 577-4999
Facsimile: (813) 579-0801
WITH A COPY TO: Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis
Professional Association
101 East Kennedy Boulevard
2700 Barnett Plaza
Tampa, Florida 33602
Attn: David R. Brittain, Esquire
Telephone: (813) 223-7474
Facsimile: (813) 229-6553
IF TO SELLER: M.K.C., Inc.
c/o The MIDA Group
10103 9th Street North, Ste A.
St. Petersburg, Florida 33716
Telephone: (813) 578-0808
Facsimile: (813)578-5154]
IF TO ESCROW AGENT Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis
Professional Association
101 East Kennedy Boulevard
2700 Barnett Plaza
Tampa, Florida 33602
Attn: David R. Brittain, Esquire
Any party hereto may change its address for the service of notice
hereunder by delivering written notice of said change to the other parties
hereunder.
15. ESCROW AGENT PROVISIONS. Escrow Agent and any other entity providing
escrow services to Seller and Purchaser in connection with this Agreement, shall
be liable only to hold the Escrow Deposit and the documents herein set forth and
deliver the same in accordance with the provisions of this Agreement, it being
expressly understood that by acceptance of this Agreement Escrow Agent is acting
in the capacity of a depository only and shall not be liable or responsible to
anyone for any damages, losses or expenses
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unless same shall have been caused by the gross negligence or willful
malfeasance of Escrow Agent. In the event of any disagreement between Purchaser
and Seller resulting in any adverse claims and demands being made in connection
with or for the Escrow Deposit or the documents set forth herein or affected
hereby, Escrow Agent shall be entitled to refuse to comply with any such claims
or demands so long as such disagreement may continue; and in so refusing Escrow
Agent shall make no delivery or disposition of the Escrow Deposit or any of the
documents set forth herein then held by it under the terms of this Agreement,
and in so doing Escrow Agent shall not become liable to anyone for such refusal;
and Escrow Agent shall be entitled to continue to refrain from acting until (a)
the rights of the adverse claimants have been finally adjudicated in a court of
competent jurisdiction of the Escrow Deposit and the documents and funds
involved herein or affected hereby, or (b) all differences shall have been
adjusted by agreement between Seller and Purchaser and Escrow Agent shall have
been notified in writing of such agreement signed by the parties hereto. Escrow
Agent shall have a period not exceeding three (3) days (excluding Saturdays,
Sundays and legal holidays) after receipt by Escrow Agent of any notice or
request to perform any act or deliver any documents or disburse any portion of
the Escrow Deposit held by Escrow Agent under the terms of this Agreement.
Further, Escrow Agent shall have the right at all times to deliver the documents
held by it and pay the Escrow Deposit held by it (i) to the appropriate party
under the terms hereof, as same may be modified by any joint instructions of the
parties, or (ii) into any court of competent jurisdiction after a dispute
between or among the parties hereto has arisen, whereupon Escrow Agent's
obligations hereunder shall terminate. Escrow Agent shall be entitled to rely
upon any communications, documents or instruments from the parties or their
representatives that it believes in good faith to be genuine. Seller and
Purchaser jointly and severally agree to indemnify and hold harmless the Escrow
Agent from any and all costs, damages, and expenses, including reasonable
attorneys' fees, that Escrow Agent may incur in its compliance of and in good
faith with the terms of this Agreement; provided, however, this indemnity shall
not extend to any acts of gross negligence or willful malfeasance on the part of
the Escrow Agent.
16. CAPTIONS. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement.
17. INTEGRATION; MODIFICATION. This written Agreement constitutes the
entire and complete agreement between the parties hereto and supersedes any
prior oral or written agreement between the parties with respect to the
Property. It is expressly agreed that there are no verbal understandings or
agreements which in any way change the terms, covenants, and conditions herein
set forth, and that no modification of this Agreement and no waiver of any of
its terms and conditions shall be effective unless made in writing and duly
executed by the parties hereto. This Agreement shall be construed without regard
to any presumption or other rule requiring construction against the party
causing the Agreement to be drafted.
18. COUNTERPART EXECUTION. This Agreement may be executed by all parties in
multiple counterparts, each of which shall be deemed an original, but all of
such counterparts taken together shall constitute one and the same Agreement.
19. ATTORNEYS' FEES AND COSTS. In connection with any litigation or court
proceedings arising out of this Agreement, the prevailing party shall be
entitled to recover all costs incurred, including reasonable attorneys' and
legal assistants' fees incurred for services rendered before suit is brought,
prior to trial, at trial, on appeal, or in federal bankruptcy proceedings.
20. BINDING EFFECT. All covenants, agreements, warranties, representations,
conditions, and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
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21. CONTROLLING LAW. This Agreement shall be construed, governed,
interpreted and enforced in accordance with the laws of the State of Florida.
22. CONSTRUCTION OF TERMS. Where appropriate, any word denoting the
singular shall be deemed to denote the plural, and vice versa. Where
appropriate, any word denoting or referring to one gender shall be deemed to
include the other gender.
23. TIME OF THE ESSENCE; TIME COMPUTATIONS. Time is of the essence of this
Agreement and of each of its provisions. Unless otherwise expressly provided in
this Agreement, any reference herein to time periods of fewer than seven (7)
days shall in the computation thereof exclude Saturdays, Sundays and all legal
holidays. Notwithstanding any provision of this Agreement to the contrary, any
time period which shall end on a Saturday, Sunday or legal holiday shall
automatically extend to 5:00 p.m. of the next full day which is not a Saturday,
Sunday or legal holiday.
24. RADON GAS. As required by applicable Florida statute, Seller hereby
discloses to Purchaser the following:
Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained
from your county public health unit.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
M.K.C., Inc., a Florida corporation
/s/ RUTH M. FLOWERS By: /s/ DAVID M. DOYLE JR.
- ----------------------------- ---------------------------------
/s/ ILLEGIBLE Print Name: David M. Doyle Jr.
- ----------------------------- ------------------------
As to Seller
As Its: Vice - President
-----------------------------
"SELLER"
PLASMA-THERM, INC., a Florida corporation
/s/ MAUREEN NELSON By: /s/ STACY WAGNER
- ------------------------------ ----------------------------------
/s/ KATHERINE BARTZOFF Print Name: Stacy Wagner
- ------------------------------
As to Purchaser As Its: CFO
"PURCHASER"
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ACCEPTANCE BY ESCROW AGENT
Escrow Agent (as defined in the Agreement) hereby (i) accepts and
acknowledges receipt of a copy of this Agreement, (ii) acknowledges receipt of
the Escrow Deposit (by check, subject to collection); (iii) agrees to act as the
Escrow Agent (as defined herein) and to open the Escrow as provided under this
Agreement and (iv) agrees to hold, keep and deliver the Escrow Deposit and any
and all documents and funds delivered to it pursuant to and accordance with the
terms of this Agreement.
Dated this 21st day of April, 1999
By: Trenam, Kemker, Scharf, Barkin, Frye,
O'Neill & Mullis
By: /s/ DAVID R. BRITTAIN
------------------------------
David R. Brittain, for the firm
"ESCROW AGENT"
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EXHIBIT "A"
LEGAL DESCRIPTION
A parcel or parcels of real property located in the City of St.
Petersburg, Pinellas County, Florida, more particularly described as the WEST
460.88 FEET OF LOT 2, IN BLOCK C OF NORTHGATE OF ST. PETERSBURG FIRST ADDITION,
ACCORDING TO THE MAP OR PLAT RECORDED IN PB 67, PAGES 25, 26, AND 27, PUBLIC
RECORDS OF PINELLAS COUNTY, FLORIDA, being also described on the records of the
Pinellas County Property Appraiser under folio number 24/30/16/60837/003/0022.
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<PAGE>
EXHIBIT "B"
LEGAL DESCRIPTION
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, according to the map or plat thereof recorded in Plat Book 67,
pages 25, 26 and 27, Public Records of Pinellas County, Florida, LESS the South
190.00 feet thereof.
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<PAGE>
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
MYRON DICKSTEIN, as Trustee,
Plaintiff,
vs. Case No. 97-4079-CI8
BEL AIR PARTNERS, L.P., a
Delaware Limited Partnership,
AARON L. OBERHOLTZER, GEORGE
R. MORRIS, SUSAN C. MORRIS, AND
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts Corporation,
Defendants.
_______________________________/
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("this Agreement") is entered into as of the 1st
day of February, 1999, by and between Myron Dickstein, as Trustee ("Dickstein"),
Bel Air Partners, L.P. ("Bel Air"), George R. Morris, ("Settlement Class
Representative"), and John Hancock Mutual Life Insurance Company ("John
Hancock").
RECITALS
A. Dickstein, Bel Air, Settlement Class Representative, and Hancock are
parties to a lawsuit styled MYRON DICKSTEIN V. BEL AIR PARTNERS, L.P., A
DELAWARE LIMITED PARTNERSHIP, AARON L. OBERHOLTZER, GEORGE R. MORRIS, SUSAN C.
MORRIS AND JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, A MASSACHUSETTS
CORPORATION, Case No. 97-4079-CI8, Circuit Court, Sixth Judicial Circuit,
Pinellas County, Florida (the "Litigation").
EXHIBIT "C"
<PAGE>
B. Dickstein, Bel Air, Settlement Class Representative and Hancock have
reached a full and final settlement of all claims arising from or relating to
the subject matter of the Litigation.
DEFINITIONS
The following terms shall have the meanings specified below:
A. "Declaration" shall mean the Declaration of Easement recorded on March
12, 1975 in O.R. Book 4268, Page 1009, Public Records of Pinellas County,
Florida.
B. "Dickstein Parcel" shall mean the real property described as follows:
The West 460.88 feet of Lot 2, Block "C", NORTHGATE OF ST.
PETERSBURG, FIRST ADDITION, according to the plat thereof recorded in
Plat Book 67, pages 25, 26 and 27, Public Records of Pinellas County,
Florida.
C. "Bel Air Parcel" shall mean the real property described as follows:
The East 571 feet of Lot 2, Block "C", NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, according to the plat thereof recorded in Plat Book 67,
pages 25, 26 and 27, Public Records of Pinellas County, Florida.
and
The West 571 feet of the East 1142 feet of Lot 2, Block "C",
NORTHGATE OF ST. PETERSBURG, FIRST ADDITION, according to the plat
thereof recorded in Plat Book 67, page 25, 26 and 27, Public Records of
Pinellas County, Florida.
D. "Judgment" shall mean entry of an order in the Litigation approving this
Agreement, declaring this Agreement to be binding upon all parties thereto,
including the defendant class, and declaring the Declaration to be cancelled and
of no further force or effect.
E. "Judgment becoming final" shall be that point in time at which the
Judgment shall have become final through expiration of time to appeal.
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<PAGE>
AGREEMENT
1. NO ADMISSION OF LIABILITY. The parties agree that this Agreement is a
full settlement and satisfaction of the Litigation, and that this Agreement is
not an admission of liability or the existence of rights, past or present, on
the part of any party hereto.
2. UNDERTAKINGS BY DICKSTEIN. Dickstein, for and in consideration of the
joinder in this Agreement by Bel Air, Settlement Class Representative, and John
Hancock, hereby undertakes:
A. Within three business days following execution of this Agreement,
to deliver the sum of $37,500 to the trust account of Annis, Mitchell, Cockey,
Edwards & Roehn, P.A., to be held for disbursement as follows:
(1) Upon the Judgment becoming final, for immediate distribution
to Bel Air; or
(2) To be distributed to Dickstein if an appeal or other legal
proceeding is initiated with respect to the Judgment which results in the
Judgment being reversed or the Judgment being altered in such a manner so as
effectively not to cancel the Declaration; or
(3) To be distributed to Dickstein if the litigation is concluded
without entry of Judgment; or
(4) As may be directed by an instrument in writing signed by all
parties hereto or by order of any court of competent jurisdiction.
B. The parties' purpose and intent in setting forth the foregoing
provision 2.A. hereof is to assure that in no event shall the Declaration be
altered, cancelled, or affected in any other way without Bel Air receiving the
sums described in paragraph 2.A. hereof.
C. That prior to issuance of a Certificate of Occupancy for any
improvements to be constructed on the Dickstein Parcel, Dickstein or the owner
of the Dickstein Parcel shall (i)
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complete construction of a six foot masonry wall ("the Wall"), painted on both
sides, along the entire common property line of the Dickstein Parcel and the Bel
Air Parcel, and (ii) install landscaping pursuant to the specifications attached
hereto as Exhibit A ("the Landscaping"). No person (including, but not limited
to, Dickstein and any owner of the Dickstein Parcel) shall seek or accept a
Certificate of Occupancy relating to all or any part of the Dickstein Parcel
until the Wall and Landscaping are constructed and installed.
D. Regardless of the Issuance of any Certificate of Occupancy relating
to the Dickstein Parcel, the Wall shall be constructed and installed on or
before the 90th day following the Judgment becoming final.
E. Dickstein agrees further; (i) that the timely installation of the
Wall and Landscaping are essential parts of this Agreement; (ii) that, if the
Dickstein Parcel is occupied (other than for purpose of constructing
improvements) prior to the installation of the Wall and Landscaping, or if
Dickstein fails either (a) to install the Wall prior to the 91st day following
the Judgment becoming final or (b) to install the landscaping prior to issuance
of the Certificate of Occupancy, Bel Air will be damaged; (iii) that because the
amount of damage (including, but not limited to, lost rentals) resulting from a
failure to timely install the Wall or Landscaping is difficult, if not
impossible, to definitely ascertain and prove, the amount of such damages
payable by the owner of the Dickstein Parcel shall be $200 per day as liquidated
damages for each day following the 90 days from the date of Judgment becoming
final that the construction and installation of the Wall is incomplete or for
each day that the premises are occupied under a Certificate of Occupancy prior
to the Landscaping having been completed; provided, however, that the maximum
per diem liquidated damages shall be $200 per day; (iv) that these amounts are
payable as liquidated damages
-4-
<PAGE>
and not as a penalty; and (v) that said liquidated damages shall accrue and be
payable in perpetuity until both the Wall and Landscaping are completed and
installed as provided herein.
F. In the event that either the Wall and Landscaping is not installed
pursuant to this Agreement, Be1 Air shall have the right to construct the Wall
and Landscaping, after giving Dickstein written notice and forty-five (45) days
to complete the Wall and Landscaping. All amounts reasonably expended by Bel Air
to construct the Wall and Landscaping (including, but not limited to, design,
permitting, and construction costs) shall be paid by Dickstein to Bel Air within
five (5) business days after Bel Air delivers written notice to Dickstein
specifying the amounts incurred by Bel Air. In the event all funds expended by
Bel Air are not paid by Dickstein within five (5) business days after the
delivery of the notice specified above, Bel Air shall be entitled to file a
claim of lien against the Dickstein property, and such claim of lien shall
secure all amounts expended by Bel Air as described above. The claim of lien may
be enforced in the same manner as a mortgage lien pursuant to Florida law.
G. The Wall and Landscaping on the west side of the Wall shall be
maintained in good condition, and the wall repainted (on both sides) as needed,
by the owner of the Dickstein Parcel.
H. Regardless of the issuance of a Certificate of Occupancy, the owner
of the Dickstein Parcel shall make best efforts to cause all exterior lighting
on the east side of the structure to be constructed and positioned on the
Dickstein Parcel so that no light shines directly onto or in the direction of
the Bel Air Parcel, and to minimize impact on the Bel Air Parcel while complying
with the building codes of the City of St. Petersburg. The owner of the
Dickstein Parcel shall maintain all such lighting in good condition.
-5-
<PAGE>
I. No loading docks, parking of trucks, or loading or unloading will
of vehicles shall be permitted on the east side of the building constructed on
the Dickstein Parcel. In addition, through traffic shall not be permitted to
traverse the east side of the Dickstein Parcel. However, employee parking of
personal vehicles will be permitted on the east side of the Dickstein Parcel,
and a non-thoroughfare access road will be permitted solely to provide egress
and ingress to and from said employee parking.
J. Dickstein shall pay all costs and fees associated with the
termination of the Declaration, including, but not limited to, (i) the cost of
notifying the defendant class of its right to object to this Agreement and (ii)
any costs associated with any challenges or objections to this Agreement by
persons other than Bel Air or John Hancock.
6. EXECUTORY PROVISIONS ENFORCEABLE. The executory provisions of this
Agreement shall continue to be enforceable after entry of the Judgment and the
Judgment becoming final.
7. COSTS AND ATTORNEYS' FEES. The parties agree that in the event of
litigation for enforcement of, or relating to, this Agreement, either in whole
or in part, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs incurred in such litigation.
8. ENTIRE AGREEMENT. This is the entire Agreement between the parties, and
supersedes, terminates, and cancels all other previous oral or written proposals
or negotiations between the parties relating to the subject matter of this
Agreement.
9. AMENDMENTS AND WAIVERS. This Agreement may be modified or amended, and
any parties' rights hereunder may be affected or waived, only in writing by an
agreement or agreements entered into by all parties hereto.
-6-
<PAGE>
10. LEGAL AUTHORITY. All legal action necessary to authorize the execution
and delivery of this Agreement, the consummation of all transactions
contemplated hereby, and the performance and discharge of all obligations
hereunder, has been duly taken.
11. RECORDING. This Agreement shall be recorded in the public records of
Pinellas County, Florida upon the judgment terminating the Declaration of
Easement as described in paragraph 2 above becoming final. This Agreement is
binding upon and benefits all present and future parties that have any present
or future interest in either the Dickstein Parcel or the Bel Air Parcel.
BEL AIR PARTNERS, L.P., a Delaware limited partnership
By: SV Fairfield I, L.L.C., a Connecticut limited
liability company
By: Starwood Capital Group, L.P.,
A Delaware limited partnership,
its Manager
By: BSS Capital Partnership,
A Delaware limited
partnership, its General Partner
By: Sternlicht Holdings II,
Inc., a Delaware
Corporation, its
General Partner
By: /s/ GEOFFREY BEER
---------------------
Geoffrey Beer,
its Vice President
/s/ MYRON DICKSTEIN
- ------------------------
MYRON DICKSTEIN, Trustee
-7-
<PAGE>
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By: /s/ RICHARD E. TALBOT
----------------------------------
RICHARD E. TALBOT
Its: INVESTMENT OFFICER
/s/ GEORGE R. MORRIS
- --------------------------------------
GEORGE R. MORRIS, Class Representative
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing instrument was acknowledged before me this 13th day of
November, 1998, by Myron Dickstein, who is personally known to me or who has
produced N.Y. Driver's License as identification.
------------------------------
Notary Public
Name: /s/ HARRIET MOULTON
------------------------
Serial#:
----------------------
My commission expires:
STATE OF CONNECTICUT [SEAL]
COUNTY OF FAIRFIELD
The foregoing instrument was acknowledged before me this 9th day of
December, 1998, by Geoffrey Beer, partner (or agent) on behalf of Bel Air
Partners, L.P. He is personally known to me.
------------------------------
Notary Public
Name: /s/ COSTAS THANASOULIS
-----------------------
Serial#:
---------------------
My commission expires:
[SEAL]
-8-
<PAGE>
STATE OF MASSACHUSETTS
COUNTY OF
The foregoing instrument was acknowledged before me this 31st day of
December, 1998, by Richard E. Talbot, as Investment Officer of John Hancock
Mutual Life Insurance Company, a Massachusetts corporation, on behalf of the
corporation. He is personally known to me or has produced __________________as
identification.
/s/ JOSEPHINE M. WHITE
-----------------------
NOTARY PUBLIC
Name: Josephine M. White
Serial #:
My Commission Expires:
[SEAL]
8A
<PAGE>
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 1st day of
February, 1999, by George R. Morris who is personally known to me or who has
produced _________________________ as identification.
/s/ TANYA M. KRESHON
- ------------------------
Notary Public
Name: Tanya M. Kreshon
Serial #:______________
Serial#:__________________
My commission expires:
[SEAL]
-9-
<PAGE>
EXHIBIT A
1. Adjacent to the Wall on the Dickstein Parcel, the owner of the Dickstein
Parcel shall plant live oak trees twenty feet on center along the entire length
of the Wall. When measured immediately after planting, the trees shall be at
least 3 inches in diameter at breast height, and at least 10-12 feet in height.
2. Adjacent to the Wall on the Bel Air Parcel, the owner of the Dickstein
Parcel shall plant green-white ligustrum leaf to leaf along the entire length of
the Wall. The green-white ligustrum shall be at least 18 inches (2-3 gallon
size) in height when measured immediately after planting. Bel Air shall accord
the owner of the Dickstein Parcel access to plant the ligustrum.
-10-
<PAGE>
AGREEMENT
THIS AGREEMENT, made and entered into this 13th day of November, 1998, by
and between MYRON DICKSTEIN, TRUSTEE (hereinafter "Dickstein") and M.K.C., INC.,
a Florida corporation (hereinafter "MKC").
WITNESSETH:
WHEREAS, Dickstein as Seller and MKC as Buyer, have heretofore entered into
an agreement consisting of a Contract for Sale and Purchase dated September 20,
1996, and Addenda 1 through 10 (collectively "Contract") for the sale and
purchase of a parcel of real estate located at the southeast corner of the
intersection of 102nd Avenue North and 16th Street North in St. Petersburg,
Pinellas County, Florida (the "Dickstein Parcel"); and
WHEREAS, Dickstein, to quiet title to the Dickstein Parcel, has initiated
that certain lawsuit styled Myron Dickstein, Trustee v. Bel Air Partners, L.P.,
a Delaware limited partnership, et. al., Pinellas Circuit Civil Case No.
97-4079-CI8; and
WHEREAS, settlement of the quiet title action will require Dickstein to
enter into an agreement in the form attached hereto as Exhibit "A" ("Settlement
Agreement") which imposes certain obligations upon the owner of the Dickstein
Parcel; and
WHEREAS, Dickstein is unwilling to enter into the Settlement Agreement
without assurance that certain financial obligations and other affirmative
duties under the Settlement Agreement will be performed by MKC; and
WHEREAS, MKC has determined that the Settlement Agreement will benefit MKC
and the proposed development of the Dickstein Parcel;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. The recitals set forth hereinabove are true and correct.
2. Paragraph 2 A. of the Settlement Agreement requires that within three
(3) business days following the execution of the Settlement Agreement, Dickstein
shall deliver the sum of $37,500.00 to the trust account of Annis, Mitchell,
Cockey, Edwards and Roehn, P.A., attorneys for Bel Air Partners, L.P., to be
held in accordance with the provisions of the Settlement Agreement. The parties
hereto agree the $37,500.00 payment shall be contributed equally by Dickstein
and MKC. Within one (1) business day after the full execution of the Settlement
Agreement by Dickstein and Bel Air Partners, L.P., MKC shall deliver a cashier's
check in the amount of $18,750.00 payable to Annis, Mitchell, Cockey, Edwards
and Roehn, P.A. to Dickstein's attorney, James N. Powell, for
EXHIBIT "D"
<PAGE>
delivery along with a check for like amount from Dickstein to Bel Air's
attorneys. The parties agree that in the event the aforesaid $37,500.00 is
returned to Dickstein pursuant to the provisions of paragraph 2 of the
Settlement Agreement, one-half (1/2) of such funds shall belong to and shall be
disbursed to MKC.
3. Paragraph 2-J of the Settlement Agreement requires that Dickstein shall
pay all costs associated with the termination of the Declaration, including but
not limited to, the costs of notifying the defendant class of its rights to
object to the settlement and any costs associated with the challenges or
objections to the Settlement Agreement by persons other than Bel Air or John
Hancock. The parties hereto agree that these costs shall be equally borne by
Dickstein and MKC. MKC shall pay its fifty percent (50%) share of any such costs
within one (1) business day after request of same from Dickstein. Dickstein
shall provide documentation establishing its costs to MKC as part of its request
to MKC. Dickstein is not required to pay these costs before recovering from MKC
its share of the same.
4. Subparagraphs C, D, E, F, G, H and I of paragraph 2 of the Settlement
Agreement require certain affirmative actions to be undertaken by Dickstein. If
MKC or an assignee of MKC purchases the Dickstein Parcel, MKC agrees that MKC or
its assignee will undertake to discharge each of the required actions set forth
in subparagraphs C, D and E of the Settlement Agreement within the time frames
set forth therein and MKC further agrees that MKC or its assignee will initially
perform the construction requirements set forth in subparagraphs H and I of the
Settlement Agreement and agrees to indemnify and hold harmless Dickstein from
any costs, judgment, claims and attorneys' fees arising out of MKC's failure to
discharge those enumerated duties under the Settlement Agreement assumed by MKC
as set forth herein. Except for any period when MKC may be the actual owner of
the Dickstein Parcel, the provisions of this Agreement shall impose no
obligation on MKC to perform or discharge the maintenance and operational
requirements set forth in subparagraphs G, H and I of the Settlement Agreement
and nothing contained herein shall be construed to require MKC to indemnify and
hold harmless Dickstein from any costs, judgment, claims and attorneys' fees
arising out of the failure by any owner other than MKC to perform and discharge
the maintenance and operational duties set forth in subparagraphs G, H and I of
the Settlement Agreement.
5. A closing of the Dickstein Parcel wherein Dickstein will convey to MKC,
or its assigns, shall be held on the fifth (5th) business day following the
"judgment" by the Circuit Court of Pinellas County approving the Settlement
Agreement "becoming final" pursuant to the provisions of the Settlement
Agreement. The term "judgment being final" is defined as stated in the
Definition paragraph of the Settlement Agreement. The provisions of this
paragraph 5 shall be considered a modification of paragraph 5 of the Tenth
Amendment to the Contract.
2
<PAGE>
6. MKC hereby agrees that its obligation to pay one-half (1/2) of the
attorneys' fees and costs incurred by Dickstein in the quiet title action
described above shall continue through the closing date.
7. Except as modified by paragraphs 5 and 6 herein, all of the other terms
and conditions of the aforesaid Contract between Dickstein and MKC covering the
sale and purchase of the Dickstein Parcel shall remain in full force and effect.
/s/ MYRON DICKSTEIN
-----------------------------------
MYRON DICKSTEIN, Trustee
M.K.C., Inc., a Florida
corporation
By: /s/ DANIEL M. DOYLE, JR.
--------------------------------
DANIEL M. DOYLE, JR., Vice-
President
(CORPORATE SEAL)
PERSONAL GUARANTY
MICHAEL E. BARGER, individually, hereby guarantees the payment of the
monetary obligations and the performance of the non-monetary obligations of
M.K.C., Inc. stated hereinabove.
/s/ MICHAEL E. BARGER
-----------------------------------
MICHAEL E. BARGER
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing instrument was acknowledged before me this 13th day of
November, 1998 by Myron Dickstein, who is personally known to me or who has
produced New York State Driver's License as identification.
/s/ HARRIET MOULTON
-----------------------------------
Notary Public
My Commission Expires:
STATE OF FLORIDA [NOTARY SEAL]
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 9th
3
<PAGE>
day of November, 1998 by Daniel M. Doyle, Jr. as Vice President of M.K.C.,
Inc., a Florida corporation, on behalf of the corporation. He is personally
known to me or has produced _________________________________ as identification.
/s/ JUDY K. STEFANICK
-----------------------------------
Notary Public
My Commission Expires: [NOTARY SEAL]
4
<PAGE>
FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT ("First
Amendment"), made and entered into this 29th day of April, 1999, by and between
M.K.C., INC., a Florida corporation (the "Seller"), Plasma-Therm, Inc., a
Florida corporation (the "Purchaser") and Trenam, Kemker, Scharf, Barkin, Frye,
O'Neill & Mullis, Professional Association ("Escrow Agent").
WHEREAS, the parties hereto have heretofore entered into a Real Estate
Purchase and Sale Agreement dated the 21st day of April, 1999 ("Agreement")
covering the property ("Property") more particularly described on Exhibit "A"
attached hereto; and
WHEREAS, the parties hereto desire to extend the closing date for the
sale of the Property and to amend certain other provisions of the Agreement all
in accordance with the provisions of this First Amendment;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the Purchaser and Seller hereby agree as
follows:
1. Paragraph 1.c.iii. is hereby deleted.
2. Seller herein agrees to extend the closing date provided by the said
Agreement to on or before May 27, 1999. Purchaser acknowledges that all
contingencies under the Agreement are satisfied and/or waived. Escrow Agent is
instructed to disburse the Ten Thousand ($10,000.00) Dollar escrow deposit which
Escrow Agent is currently holding under the Agreement to the Seller herein upon
Escrow Agent's receipt of this fully executed First Amendment. In addition,
simultaneous with the execution of this First Amendment, Purchaser shall pay to
Seller by cashier's check the sum of Fifty Thousand ($50,000.00) Dollars as an
additional escrow deposit. Said Fifty Thousand ($50,000.00) Dollar additional
escrow deposit and the aforementioned Ten Thousand ($10,000.00) Dollar escrow
deposit are non-refundable unless Seller fails to perform any of its obligations
under the Agreement. In the event Purchaser closes on the transaction
contemplated by the Agreement, the aforementioned Sixty Thousand ($60,000.00)
Dollars of escrow deposits shall be applied towards the purchase price of the
subject property.
3. Paragraph 3.c.iii. is hereby amended to provide that the Assumption
and Hold Harmless Agreement referenced therein shall be in the form attached
hereto as Exhibit "1".
4. Paragraph 3.c.iv. is hereby amended to delete the last phrase of
said paragraph, to-wit: "with the exception of the obligation to construct the
six (6') foot masonry wall referenced in paragraph 1.c.ii. herein." and to
provide that the Hold Harmless Agreement referenced therein shall be in the form
attached hereto as Exhibit "2".
5. Paragraph 3.c.v. is hereby amended in its entirety and shall provide
as follows:
"v. An agreement between the Seller and Purchaser covering the
installation, maintenance and repair of the wall and landscaping
described in the Settlement Agreement which shall be in the form
attached hereto as Exhibit "3".
6. In order for Seller to perform its obligations to construct the six
foot (6') masonry wall as provided in the Agreement attached hereto as Exhibit
"3", Purchaser acknowledges that Seller may have to commence such construction
prior to the closing date set forth in paragraph 2 herein and Purchaser
acknowledges that Seller will have to perform such site clearing
<PAGE>
and preparation as may be necessary on the Property being purchased by Purchaser
in order to begin construction of the masonry wall.
7. Except as expressly modified and amended hereby, all other terms and
conditions of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
M.K.C., INC., a Florida
corporation
/s/ ILLEGIBLE By: /s/ DANIEL M. DOYLE, JR.
- ------------------------------- -------------------------------
Daniel M. Doyle, Jr., Vice
/s/ ILLEGIBLE President
- -------------------------------
As to Seller "SELLER"
PLASMA-THERM, INC., a Florida
corporation
/s/ MAUREEN NELSON By: /s/ STACY WAGNER
- ------------------------------- -------------------------------
Stacy Wagner, Vice President
/s/ STEPHEN R. GERLACH
- -----------------------------
As to Purchaser "PURCHASER"
TRENAM, KEMKER, SCSHARF,
BARKIN, FRYE, O'NEILL & MULLIS
/s/ MELINDA ZEIGLER By: /s/ DAVID R. BRITTAIN
- ------------------------------- -------------------------------
David R. Brittain, for the firm
/s/ STEPHEN R. GERLACH
- -----------------------------
As to Escrow Agent "ESCROW AGENT"
2
<PAGE>
ASSUMPTION AND HOLD HARMLESS AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, M.K.C., INC., a Florida corporation ("MKC"), has heretofore
purchased the following-described real property from Myron Dickstein, Trustee
("Dickstein"):
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records
(the "Property"); and
WHEREAS, the Property is subject to the provisions of a Settlement
Agreement recorded as Exhibit "A" to Order Preliminarily Approving Settlement
Agreement recorded in O.R. Book 10394, page 1041 together with Final Judgment
recorded in O.R. Book 10448, page 2122, Pinellas County records ("Settlement
Agreement"); and
WHEREAS, in connection with the purchase of the Property from
Dickstein, MKC entered into an Agreement with Dickstein dated November 13, 1998
("Dickstein Agreement") wherein MKC agreed to assume certain obligations of
Dickstein under the provisions of the Settlement Agreement; and
WHEREAS, Plasma-Therm, Inc., a Florida corporation ("Plasma-Therm") has
purchased the following-described portion of the Property from MKC:
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records,
LESS the South 190 feet thereof
(the "Plasma-Therm Property"); and
WHEREAS, MKC retains ownership of the following-described portion of
the Property:
The South 190 feet of the West 460.88 feet of Lot 2, Block C, NORTHGATE
OF ST. PETERSBURG, FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas
County records
(the "MKC Property"); and
WHEREAS, as part of the transaction between Plasma-Therm and MKC,
Plasma-Therm has agreed to execute this Assumption and Hold Harmless Agreement
in connection with certain obligations contained in the Dickstein Agreement;
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) and other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, Plasma-Therm does hereby assume and
agree to perform all of MKC's obligations under paragraph 4 of the Dickstein
Agreement as the same pertains to the Plasma-Therm Property except as to the
construction of the six foot (6') masonry wall referenced in the Settlement
Agreement and as otherwise may have been modified by that certain Agreement
being executed simultaneously herewith between MKC and Plasma-Therm dealing with
the installation, maintenance and repair of the six foot (6') masonry wall and
the landscaping adjacent thereto and shall reimburse, indemnify, hold harmless
and defend MKC from and against any and all losses, damages, expenses, claims,
suits and demands of whatsoever nature, resulting from Plasma-Therm's failure to
perform the obligations assumed by Plasma-Therm hereunder.
Exhibit "1"
<PAGE>
DATED this 27th day of May, 1999.
Signed, sealed and delivered PLASMA-THERM, INC., a Florida
in the presence of: corporation
By: /s/ STACY WAGNER
- ---------------------------- ----------------------------
Stacy Wagner, Vice President
- ----------------------------
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Stacy Wagner, Vice President of Plasma-Therm, Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me or
has produced _________________________ as identification.
_________________________________
Notary Public
My Commission Expires:
2
<PAGE>
HOLD HARMLESS AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, M.K.C., INC., a Florida corporation ("MKC"), has heretofore
purchased the following-described real property from Myron Dickstein, Trustee
("Dickstein"):
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records
(the "Property"); and
WHEREAS, the Property is subject to the provisions of a Settlement
Agreement recorded as Exhibit "A" to Order Preliminarily Approving Settlement
Agreement recorded in O.R. Book 10394, page 1041 together with Final Judgment
recorded in O.R. Book 10448, page 2122, Pinellas County records ("Settlement
Agreement"); and
WHEREAS, in connection with the purchase of the Property from
Dickstein, MKC entered into an Agreement with Dickstein dated November 13, 1998
("Dickstein Agreement") wherein MKC agreed to assume certain obligations of
Dickstein under the provisions of the Settlement Agreement; and
WHEREAS, Plasma-Therm, Inc., a Florida corporation ("Plasma-Therm") has
purchased the following-described portion of the Property from MKC:
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas County records,
LESS the South 190 feet thereof
(the "Plasma-Therm Property"); and
WHEREAS, MKC retains ownership of the following-described portion of
the Property:
The South 190 feet of the West 460.88 feet of Lot 2, Block C, NORTHGATE
OF ST. PETERSBURG, FIRST ADDITION, Plat Book 67, pages 25-27, Pinellas
County records
(the "MKC Property"); and
WHEREAS, as part of the transaction between Plasma-Therm and MKC, MKC
has agreed to execute this Hold Harmless Agreement in connection with certain
obligations contained in the Dickstein Agreement;
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) and other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, MKC shall reimburse, indemnify,
hold harmless and defend Plasma-Therm from and against any and all losses,
damages, expenses, claims, suits and demands of whatsoever nature, resulting
from MKC's failure to perform its obligations pursuant to paragraphs 2, 3, 5 and
6 of the Dickstein Agreement and, as to the MKC Property, the obligations
contained in paragraph 4 of the Dickstein Agreement except as may have been
modified by that certain Agreement being executed simultaneously herewith
between MKC and Plasma-Therm dealing with the installation, maintenance and
repair of the six foot (6') masonry wall and the landscaping adjacent thereto.
DATED this 27th day of May, 1999.
Signed, sealed and delivered M.K.C., INC., a Florida
in the presence of: corporation
By: /s/ DANIEL M. DOYLE, JR.
- --------------------------- ------------------------
Daniel M. Doyle, Jr., Vice
- --------------------------- President
Exhibit "2"
<PAGE>
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Daniel M. Doyle, Jr., Vice President of M.K.C., Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me.
_______________________________
Notary Public
My Commission Expires:
2
<PAGE>
Prepared by and return to:
James J. Rowan, Esq.
McCutcheon and Rowan
3839 4th St. N., Suite 390
St. Petersburg, FL 33703
AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of May, 1999, by
and between M.K.C, INC., a Florida corporation (hereinafter "MKC") and
PLASMA-THERM, INC., a Florida corporation (hereinafter "Plasma-Therm");
W I T N E S S E T H :
WHEREAS, MKC is the owner in fee simple of certain property located in
Pinellas County, Florida, which is legally described and identified as follows:
The South 190 feet of the West 460.88 feet of Lot 2, Block C, NORTHGATE
OF ST. PETERSBURG, FIRST ADDITION, according to the map or plat thereof
recorded in Plat Book 67, pages 25, 26 and 27, public records of
Pinellas County, Florida
(hereinafter "MKC Property"); and
WHEREAS, Plasma-Therm is the owner in fee simple of certain property
located in Pinellas County, Florida, which is legally described and identified
as follows:
The West 460.88 feet of Lot 2, Block C, NORTHGATE OF ST. PETERSBURG,
FIRST ADDITION, according to the map or plat thereof recorded in Plat
Book 67, pages 25, 26 and 27, public records of Pinellas County,
Florida, LESS the South 190 feet thereof
(hereinafter "Plasma-Therm Property"); and
WHEREAS, the MKC and Plasma-Therm Properties are adjacent to each other
and are subject to the provisions of a Settlement Agreement recorded as Exhibit
"A" to Order Preliminarily Approving Settlement Agreement recorded in O.R. Book
10394, page 1041 together with Final Judgment recorded in O.R. Book 10448, page
2122, public records of Pinellas County, Florida ("Settlement Agreement"); and
WHEREAS, the provisions of the Settlement Agreement subject the owners
of the MKC Property and Plasma-Therm Property to certain obligations with
respect to the construction and maintenance of a wall along the east boundary
line of the MKC and Plasma-Therm Properties together with the installation and
maintenance of certain landscaping adjacent to the said wall and the parties
desire to enter into this Agreement to delineate their respective obligations
with respect to the construction and maintenance of the wall and landscaping;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
1. The parties hereto acknowledge that MKC shall be responsible for the
initial construction of the six foot (6') masonry wall along the entire east
boundary of the MKC and Plasma-
Exhibit "3"
<PAGE>
The Properties within the time frames and in accordance with the
specifications set forth in the Settlement Agreement, with such initial
construction to be at the sole cost of MKC. In connection therewith,
Plasma-Therm hereby grants MKC a temporary construction easement for the
construction of the portion of the six foot (6') masonry wall that is located on
the Plasma-Therm Property.
2. With respect to the installation of the landscaping required by the
Settlement Agreement, MKC shall be responsible for the installation of the
landscaping on the side of the six foot (6') masonry wall located on the
Plasma-Therm and MKC Properties which faces the parcel adjacent to the east of
said wall with eighty percent (80%) of the cost of such installation to be the
responsibility of the owner of the Plasma-Therm Property and twenty percent
(20%) to be the responsibility of the owner of the MKC Property. The owners of
the MKC Property and the Plasma-Therm Property shall be responsible for the
installation of the landscaping required on their respective properties located
on the west side of the six foot (6') masonry wall. In the event either of the
parties fails to meet its obligations pursuant to the provisions of this
paragraph 2 after five (5) days written notice by the non-defaulting party, such
non-defaulting party shall have the right to perform the defaulting party's
obligation and shall be entitled to file a claim of lien against the defaulting
party's property for the cost of performing such defaulting party's obligation.
The claim of lien may be enforced in the same manner as a mortgage lien pursuant
to Florida law. The priority of such claim of lien shall be determined by the
date of recordation in the public records of Pinellas County, Florida.
3. Following the initial installation of the six foot (6') masonry wall
and the landscaping adjacent thereto in accordance with the provisions of the
Settlement Agreement, the owners of the MKC Property and the Plasma-Therm
Property shall be responsible for the repair and maintenance of the portions of
the six foot (6') masonry wall and landscaping located on their respective
properties as required by the Settlement Agreement. In the event one of the
parties fails to meet its obligations pursuant to the provisions of this
paragraph 3 after thirty (30) days written notice by the non-defaulting party,
such non-defaulting party shall have the right to perform the defaulting party's
obligation and shall be entitled to file a claim of lien against the defaulting
party's property for the cost of performing such defaulting party's obligation.
The claim of lien may be enforced in the same manner as a mortgage lien pursuant
to Florida law. The priority of such claim of lien shall be determined by the
date of recordation in the public records of Pinellas County, Florida.
4. The parties hereby acknowledge that as of the date of this Agreement
there is a tennis court enclosed by a chain link fence primarily located on the
MKC Property which slightly encroaches onto the southern portion of the
Plasma-Therm Property. In connection with the preparation of the Plasma-Therm
site, MKC hereby acknowledges that Plasma-Therm shall be entitled to remove that
portion of the tennis court and fence which encroaches onto the southern portion
of the Plasma-Therm Property.
5. The parties hereto acknowledge the provisions of this Agreement
shall constitute a covenant running with the MKC and Plasma-Therm Properties and
this Agreement shall be binding upon the undersigned on all present and future
owners of the MKC Property and the Plasma-Therm Property or any portions
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
2
<PAGE>
Agreement as of the day and year first above written.
Signed, sealed and delivered M.K.C., INC., a Florida
in the presence of: corporation
By: /s/ DANIEL M. DOYLE, JR.
- ---------------------------- -------------------------
Printed Name: Daniel M. Doyle, Jr., Vice
President
- ----------------------------
Printed Name:
PLASMA-THERM, INC., a Florida
corporation
By: /s/ STACY WAGNER
- ---------------------------- --------------------------
Printed Name: Stacy Wagner, Vice President
- ----------------------------
Printed Name:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Daniel M. Doyle as Vice President of M.K.C., Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me.
____________________________________
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
May, 1999 by Stacy Wagner as Vice President of Plasma-Therm, Inc., a Florida
corporation, on behalf of the corporation, and who is personally known to me or
has produced _____________________________________________ as identification.
____________________________________
Notary Public
My Commission Expires:
3
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION:
- ------------------
The West 460.88 feet of Lot 2, Block C. NORTHGATE OF ST. PETERSBURG, FIRST
ADDITION, Plat Book 67, pages 25-27, Pinellas County records, LESS the South 190
feet thereof.
EXHIBIT 10.59
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT is made this 13th day of May, 1999, by and
between THE PERRY COMPANY, A FLORIDA CORPORATION ("CONTRACTOR") and
PLASMA-THERM, INC., A FLORIDA CORPORATION ("OWNER") and is a part of, amends and
supersedes any contrary or inconsistent provision of the Standard Form of
Agreement Between Owner and Contractor on AIA Form A111 (Electronic Format),
dated of even date herewith ("CONTRACT") of which it is made a part. Any
reference herein to the Contract includes this Addendum and unless otherwise
specified, capitalized terms have the meaning ascribed to them by them Contract.
In consideration of the mutual covenants set forth in the Contract, Seller and
Buyer hereby further agree as follows:
1. AMEND SECTION 4.1 OF THE CONTRACT AS FOLLOWS: Owner and Contract
hereby agree that the construction of the Work has been and will remain stopped
until such time as Owner gives Contractor a notice to recommence and proceed
with construction (the "NOTICE TO RECOMMENCE"). Contractor will be paid in full,
in accordance with the terms of the Contract, for such portion of the Work as
has been provided prior to the date the Work was stopped. At such time as the
Notice to Recommence is given, Contractor will recommence and proceed with
construction of the Work and all of the terms of the Contract will continue to
apply, except as otherwise expressly provided in this Amendment. Without
limiting the generality of the foregoing, the parties agree that the date for
Substantial Completion of the Work will remain two hundred ten (210) days after
the date Contractor receives Notice to Recommence, pursuant to Section 4.2. In
the event that Owner does not give Contractor a Notice to Recommence within one
hundred eighty (180) days after the date that this Amendment is fully executed
by Owner and Contractor, then, unless the parties otherwise agree, in writing,
the Contract will be void and of no further force or effect.
2. Except as otherwise provided by this Amendment, the Contract remains
in full force and effect without modification.
PLASMA-THERM, INC., A FLORIDA CORPORATION
By: /s/ STACY L. WAGNER
--------------------------------------
Name: Stacy L. Wagner
------------------------------------
Vice-President
/s/ KATHERINE BARTZOFF
- ---------------------------
/s/ MAUREEN NELSON
- ---------------------------
As to Owner (CORPORATE SEAL)
"OWNER"
-1-
<PAGE>
THE PERRY COMPANY, A FLORIDA CORPORATION
By: /s/ JERRY N. PERRY
--------------------------------------
Name: Jerry N. Perry
------------------------------------
President
/s/ ILLEGIBLE
- ---------------------------
/s/ ILLEGIBLE
- ---------------------------
As to Contractor (CORPORATE SEAL)
"CONTRACTOR"
-2-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheets as of May 31, 1999, and consolidated statements of
income for the period ended May 31, 1999 and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> NOV-30-1999
<PERIOD-START> DEC-01-1998
<PERIOD-END> MAY-31-1999
<CASH> 6,141,482
<SECURITIES> 0
<RECEIVABLES> 11,683,804
<ALLOWANCES> 0
<INVENTORY> 9,806,101
<CURRENT-ASSETS> 29,787,954
<PP&E> 17,400,954
<DEPRECIATION> 5,948,331
<TOTAL-ASSETS> 43,525,015
<CURRENT-LIABILITIES> 11,640,285
<BONDS> 3,432,366
112,202
0
<COMMON> 0
<OTHER-SE> 28,340,162
<TOTAL-LIABILITY-AND-EQUITY> 43,525,015
<SALES> 18,523,812
<TOTAL-REVENUES> 18,523,812
<CGS> 12,409,039
<TOTAL-COSTS> 9,041,623
<OTHER-EXPENSES> (160,082)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 318,580
<INCOME-PRETAX> (3,085,348)
<INCOME-TAX> (968,428)
<INCOME-CONTINUING> (2,116,920)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,116,920)
<EPS-BASIC> (0.19)
<EPS-DILUTED> (0.19)
</TABLE>
