FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended FEBRUARY 28, 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.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 04-2554632
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10050 16TH STREET NORTH, ST. PETERSBURG, FLORIDA 33716
------------------------------------------------------
(Address of principal executive offices and zip code)
(727)577-4999
--------------------------------------------------
Registrant's telephone number, including area code
---------------------------------------------------------------------
(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 March 22, 1999:
11,220,061
----------
<PAGE>
INDEX
PAGE
NUMBER
------
PART 1. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Balance Sheets - February 28, 1999 and
November 30, 1998......................................................3
Statements of Income - Three Months ended
February 28, 1999 and February 28, 1998 ...............................5
Statements of Cash Flows - Three Months ended
February 28, 1999 and February 28, 1998 ...............................6
Notes to Consolidated Financial Statements ..............................8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations ..........................10
PART II. OTHER INFORMATION
Item 5. Other Information ............................................14
Item 6. Exhibits and Reports on Form 8-K .............................15
-2-
<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
FEBRUARY 28, NOVEMBER 30,
ASSETS 1999 1998
----------- -----------
(UNAUDITED)
Current assets
Cash and cash equivalents $ 6,528,146 $ 7,170,464
Accounts receivable 9,925,804 14,842,937
Inventories 9,904,975 9,859,914
Prepaid income taxes 843,374 1,405,591
Prepaid expenses and other 753,683 747,234
Deferred tax asset 361,577 244,691
----------- -----------
Total current assets 28,317,559 34,270,831
----------- -----------
Property, plant and equipment
Building 5,106,870 4,996,731
Machinery and equipment 11,787,735 11,296,080
Leasehold improvements 151,005 151,005
----------- -----------
17,045,610 16,443,816
Less accumulated depreciation and
amortization 5,328,656 4,610,619
----------- -----------
11,716,954 11,833,197
Land 1,012,992 1,012,992
----------- -----------
12,729,946 12,846,189
----------- -----------
Other assets 136,762 151,762
----------- -----------
$41,184,267 $47,268,782
=========== ===========
See accompanying notes to these consolidated financial statements.
-3-
<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
FEBRUARY 28, NOVEMBER 30,
LIABILITIES 1999 1998
----------- -----------
Current liabilities
Short-term borrowings $ 3,000,000 $ 5,000,000
Current maturities of long-term obligations 518,700 585,228
Accounts payable 3,458,709 4,828,263
Accrued payroll and related 287,957 605,431
Accrued expenses 1,226,310 1,083,535
Accrued restructuring charge 552,392 992,847
Customer deposits 21,250 570,625
----------- -----------
Total current liabilities 9,065,318 13,665,929
----------- -----------
Long-term obligations 2,966,051 3,085,353
----------- -----------
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 February 28, 1999 and November 30, 1998) 112,202 112,072
Additional paid-in capital 17,202,219 17,156,849
Retained earnings 11,838,477 13,248,579
----------- -----------
29,152,898 30,517,500
----------- -----------
$41,184,267 $47,268,782
=========== ===========
See accompanying notes to these consolidated financial statements.
-4-
<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
THREE MONTHS ENDED FEBRUARY,
---------------------------
1999 1998
----------- -----------
Net sales $ 9,296,375 $12,311,720
Cost of sales 6,551,231 6,970,104
----------- -----------
Gross profit 2,745,144 5,341,616
----------- -----------
Operating expenses:
Research and development 2,165,978 1,103,727
Selling and administrative 1,861,909 1,847,251
Restructuring charge 805,036 --
----------- -----------
Total operating expenses 4,832,923 2,950,978
----------- -----------
Operating income (loss) (2,087,779) 2,390,638
Interest (income) expense, net 70,351 45,755
----------- -----------
Income (loss) before income
taxes (benefit) (2,158,130) 2,344,883
Income taxes (benefit) (748,028) 871,203
----------- -----------
Net income (loss) $(1,410,102) $ 1,473,680
=========== ===========
Earnings (loss) per share:
Basic $ (0.13) $ 0.13
=========== ===========
Diluted $ (0.13) $ 0.13
=========== ===========
See accompanying notes to these consolidated financial statements.
-5-
<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
THREE MONTHS ENDED FEBRUARY 28,
------------------------------
1999 1998
----------- -----------
<S> <C> <C>
Cash flows from operating activities
Net income (loss) $(1,410,102) $ 1,473,680
Adjustments to reconcile net income to net
cash provided by operating activities
Depreciation and amortization 768,551 578,435
Loss on disposal of assets 258 --
Deferred taxes (116,886) 8,922
Compensation - stock options 6,300 6,000
Tax benefit related to certain stock options
and warrants 6,640 51,522
Changes in assets and liabilities
(Increase) decrease in accounts receivable 4,917,133 (1,043,421)
Increase in inventories (45,061) (955,625)
Decrease in prepaid income taxes 562,217 258,101
Increase in prepaid expenses and other (6,449) (94,835)
Increase (decrease) in accounts payable (1,369,554) 410,358
Decrease in accrued payroll and related (317,474) (119,993)
Increase in accrued expenses 142,775 583,785
Decrease in accrued restructuring charge (440,455) --
Increase (decrease) in customer deposits (549,375) 333,989
----------- -----------
Net cash provided by
operating activities 2,148,518 1,490,918
----------- -----------
Cash flows from investing activities
Capital expenditures (637,566) (710,488)
Other -- 7,706
----------- -----------
Net cash used in investing activities (637,566) (702,782)
----------- -----------
</TABLE>
See accompanying notes to these consolidated financial statements.
-6-
<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(UNAUDITED)
THREE MONTHS ENDED FEBRUARY 28,
------------------------------
1999 1998
----------- -----------
<S> <C> <C>
Cash flows from financing activities
Proceeds from issuance of long-term obligations -- --
Principal payments on long-term obligations (185,830) (177,242)
Net proceeds under line of credit agreements (2,000,000) 1,000,000
Exercise of stock options and warrants 32,560 134,360
----------- -----------
Net cash provided by (used in)
financing activities (2,153,270) 957,118
----------- -----------
Net increase (decrease) in cash and
cash equivalents (642,318) 1,745,254
----------- -----------
Cash and cash equivalents, beginning of period 7,170,464 5,398,030
----------- -----------
Cash and cash equivalents, end of period $ 6,528,146 $ 7,143,284
=========== ===========
</TABLE>
See accompanying notes to these consolidated financial statements.
-7-
<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FEBRUARY 28, 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 February 28, 1999 and November 30, 1998 and
the results of operations and cash flows for the three months ended
February 28, 1999 and 1998.
The results of operations for the three months ended February 28, 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:
FEBRUARY 28, NOVEMBER 30,
1999 1998
---------- ----------
Raw materials $5,311,100 $4,974,844
Work-in-process 4,241,545 4,477,355
Finished goods 352,330 407,715
---------- ----------
$9,904,975 $9,859,914
========== ==========
-8-
<PAGE>
NOTE 4 EARNINGS PER SHARE DISCLOSURES
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FEBRUARY 28, 1999
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ----------- ---------
<S> <C> <C> <C>
Basic EPS:
Income (loss) available to common
Shareholders ($1,410,102) 11,216,422 ($ .13)
=======
Effect of Dilutive Securities:
Options -- 6,883
----------- -----------
Diluted EPS:
Income (loss) available to common
Shareholders + assumed conversions ($1,410,102) 11,223,305 ($ .13)
=========== =========== =======
FOR THE THREE MONTHS ENDED FEBRUARY 28, 1998
--------------------------------------------
INCOME SHARES PER-SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ----------- ---------
Basic EPS:
Income available to common
Shareholders $ 1,473,680 11,141,183 $ .13
=======
Effect of Dilutive Securities:
Options -- 245,364
----------- -----------
Diluted EPS:
Income available to common
Shareholders + assumed conversions $ 1,473,680 11,386,547 $ .13
=========== =========== =======
</TABLE>
-9-
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
----------------------------------------------------------------------
RESULTS OF OPERATIONS
Net sales of $9,296,375 for the first quarter of 1999 decreased by
24.5% from net sales of $12,311,720 for the first quarter of 1998. The decrease
in net sales for the first quarter was primarily due to the continued slowdown
in the Company's four market segments, specifically data storage.
Gross profit of $2,745,144 for the first quarter of 1999 was 29.5% of
net sales, compared to $5,341,616 for the first quarter of 1998 which was 43.4%
of net sales. The decrease in gross margin for the first quarter of 1999 was
primarily attributable to the strategic placement of lower margin systems sold
in the microelectromechanical (MEMS) market in an effort to increase market
share. Additionally, as stated above, a 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. This added to the
reduction in gross profit margin for the first quarter of 1999 over the same
period for 1998.
Research and development expense for the first quarter of 1999 and
1998 was $2,165,978 and $1,103,727, which was 23.3% and 9% 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. 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 $1,861,909 for the first
quarter of 1999, compared to $1,847,251 for the first quarter of 1998 which was
20% and 15% of net sales, respectively. The increase as a percentage of net
sales is a direct result of the decrease in net sales for the first quarter of
1999.
Net loss before the income tax benefit for the first quarter of 1999
was $2,158,130, compared to net income before income taxes of $2,344,883 in the
first quarter of 1998. Net loss per diluted share was $.13 for the first quarter
of 1999, compared to net income per diluted share of $.13 for the first quarter
of 1998. Included in the net loss before the income tax benefit for the first
quarter of 1999 was an additional restructuring charge of $805,036 related to
services provided by TRW/BDM International pertaining to the Company's
implementation of the Supply Chain Management program. Excluding this
restructuring charge, the Company's net loss before the income tax benefit would
have been $1,353,094 or $.08 per diluted share. The primary reasons for the
decrease for the first quarter of 1999 are described above.
-10-
<PAGE>
FINANCIAL POSITION, LIQUIDITY AND CAPITAL REQUIREMENTS
Net cash provided by operations totaled $2,145,518 for the first three
months of 1999, compared to net cash provided by operations of $1,490,918 for
the same period in 1998. Cash generated from operations for the first three
months of 1999 consisted of various components including non-cash depreciation
and amortization of $768,551 and decreases in accounts receivable and prepaid
income taxes of $4,917,133 and $562,217, respectively. Primary sources of cash
were partially offset by a net loss of $1,410,102 in addition to decreases in
accounts payable, accrued expenses, and customer deposits of $1,369,554,
$757,929 and $549,375, respectively. The decrease in accounts receivable was
related to lower revenue generated in the first quarter 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 $650,000 related to the net loss realized in
the first quarter of 1999. 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. In an effort to
revert back to standard, 30-day terms, as of February 28, 1999, the vendors on
extended terms had been partially repaid, thus resulting in a reduction of
accounts payable. The decrease in accrued expenses was the direct result of two
factors: (1) approximately $300,000 was associated with the timing of the
payroll cycle; and (2) net payments of approximately $400,000 was for the
consulting services performed in 1998 related to the restructuring. The decrease
in customer deposits is the result of recognizing revenue in the first quarter
of 1999 upon shipment of systems on which partial payments had been made as of
November 30, 1998.
Net cash used in investing activities for the first three months of
1999 was $637,566 compared to $702,782 for the same period in 1998. For the
first three months of 1999, the Company incurred approximately $640,000 in
capital expenditures, of which $400,000 was for the purchase and construction of
various lab equipment to be used for research and development. In addition,
approximately $110,000 was for the continued 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 (see Exhibit 99.1 included in this filing). The
remaining $130,000 was for the purchase of various computer equipment.
Net cash used in financing activities for the first three months of
1999 was $2,153,270 as compared to net cash provided by financing activities of
$957,118 for the same period in 1998. Cash used for financing activities in the
first three months of 1999 included net repayments of $2,000,000 on the line of
credit and the principal repayments of approximately $180,000 on long-term
obligations. Cash provided by financing activities included $30,000 from the
exercise of stock options in connection with the Company's stock option plan.
-11-
<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
-12-
<PAGE>
systems have been 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
-13-
<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.
-14-
<PAGE>
PART II. OTHER INFORMATION
ITEM 5. OTHER INFORMATION
On March 15, 1999, the Company issued a press release (the "Press
Release") announcing its financial results for the three months ended
February 28, 1999. The Press Release also announced (i) a further
restructuring of overheads and reduction in personnel as a result of
the continued slowdown (ii) a continued reorganization as part of the
Company's implementation of the Supply Chain Management program
developed with TRW/BDM International (iii) the delay of the shipment
date of the Physical Vapor Deposition (PVD) system, (iv) the delay of
the construction of the Research and Development, Customer
Applications and Training Center, and (v) the 30-day medical leave of
absence, effective March 15, 1999, of Scott DeFerrari, President and
CEO of the Company, and the temporary resumption of duties of CEO
during that period by Ronald H. DeFerrari, Chairman of the Board of
the Company. A copy of the Press Release is included herein as Exhibit
99.1 and is incorporated by reference into this Item 5.
The Press Release contains "safe harbor" language, pursuant to the
Private Securities Litigation Reform Act, indicating that certain
statements contained in the Press Release are "forward looking" rather
than historic. The Press Release also indicates that certain factors
could cause actual results to differ from those projected in the
forward-looking statements and specifically identifies some of those
factors.
-15-
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
10.51 Amendment No. 1 to Employment Agreement between Registrant and
Jay N. Sasserath, dated January 28, 1999.
10.52 Design Agreement dated May 4, 1998 between the Registrant and
Facility Planning and Resources.
10.53 Design Agreement dated July 21, 1998 between the Registrant and
The Perry Company.
10.54 Construction Agreement dated February 5, 1999 between the
Registrant and The Perry Company.
10.55 Construction Loan Agreement, Promissory Note, and Mortgage,
Assignment of Rents and Security Agreement dated February 18,
1999 between the Registrant and NationsBank, N.A.
27 Financial Data Schedule (for SEC use only).
99.1 Press release dated March 15, 1999.
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the first quarter of fiscal
1999.
-16-
<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: March 24, 1999 BY: /s/ STACY WAGNER
---------------------------------
Stacy Wagner
Chief Financial Officer, Treasurer
and Secretary
Date: March 24, 1999 BY: /s/ RONALD H. DEFERRARI
---------------------------------
Ronald H. DeFerrari
Chairman of the Board and
Chief Executive Officer
-17-
<PAGE>
PLASMA-THERM, INC.
FOR 10-Q (FOR THE THREE MONTHS ENDED FEBRUARY 28, 1999)
EXHIBIT INDEX
10.51 Amendment No. 1 to Employment Agreement between Registrant and Jay N.
Sasserath, dated January 28, 1999.
10.52 Design Agreement dated May 4, 1998 between the Registrant and Facility
Planning and Resources.
10.53 Design Agreement dated July 21,1998 between the Registrant and The
Perry Company.
10.54 Construction Agreement dated February 5, 1999 between the Registrant
and The Perry Company.
10.55 Construction Loan Agreement, Promissory Note, and Mortgage, Assignment
of Rents and Security Agreement dated February 18, 1999 between the
Registrant and NationsBank, N.A.
27 Financial Data Schedule (for SEC use only).
99.1 Press release dated March 15, 1999.
-18-
EXHIBIT 10.51
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This is an Amendment No. 1, dated January 28, 1999 (the
"Amendment No. 1"), to an Employment Agreement dated October 1, 1998 (the
"Employment Agreement"), between Plasma-Therm, Inc., a Florida corporation (the
"Company"), and Jay N. Sasserath (the "Employee").
BACKGROUND
WHEREAS, the Employee is currently employed by the Company
pursuant to the terms of the Employment Agreement. The parties wish to amend the
Employment Agreement to reflect changes in Section 4.2.
NOW, THEREFORE, the parties hereto intending to be legally
bound hereby, and in consideration of the mutual covenants herein contained,
agree as follows:
TERMS
1. The foregoing recitals are true and correct and
incorporated herein by reference. Any capitalized terms used but not defined
herein shall have the same meaning ascribed to them in the Employment Agreement.
2. The Employment Agreement is hereby amended by revising
Section 4.2 to read in its entirety as follows:
An annual bonus based on one percent (1%) of fiscal year
Net Earnings, as defined by Company policy, to be paid on a quarterly
basis and reconciled at year end, not to exceed $100,000.00 annually.
3. Except as specifically set forth above, the Employment
Agreement shall remain in full force and effect.
4. This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one document.
5. This Amendment No. 1 contains the final, complete, and
exclusive expression of the parties' understanding and agreement concerning the
matters contemplated herein and supersedes any prior or contemporaneous
agreement of representation, oral or written, among them.
6. This instrument shall be binding upon, and shall inure to
the benefit of, each of the parties' respective personal representatives, heirs,
successors, and assigns.
<PAGE>
7. This instrument shall be governed by, and construed and
enforced in accordance with, the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Amendment
No. 1 on the day and year first written above.
PLASMA-THERM, INC.
/s/ RONALD S. DEFERRARI
-------------------------------------------
Ronald S. DeFerrari
President and Chief Executive Officer
Employee
/s/ JAY N. SASSERATH
-------------------------------------------
Jay N. Sasserath
EXHIBIT 10.52
[LOGO]
ABBREVIATED STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ARCHITECT
AIA DOCUMENT B151 - 1997
1997 EDITION - ELECTRONIC FORMAT
- --------------------------------------------------------------------------------
This document has important legal consequences. Consultation with an attorney is
encouraged with respect to its completion or modification. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
This document has been approved and endorsed by the American Subcontractors
Association and the Associated Specialty Contractors, Inc.
Copyright 1974, 1978, 1987, (C)1997 by The American Institute of Architects.
Reproduction of the material herein or substantial quotation of its provisions
without written permission of the AIA violates the copyright laws of the United
States and will subject the violator to legal prosecution.
- --------------------------------------------------------------------------------
AGREEMENT made as of the day of in the year 1998
(IN WORDS, INDICATE DAY, MONTH AND YEAR)
BETWEEN the Architect's client identified as the Owner:
(NAME, ADDRESS AND OTHER INFORMATION)
Plasma-Therm, Inc.
10050 16th Street North
St. Petersburg, Florida 33716
Phone: 813-577-4999
FAX: 813-577-6844
and the Architect:
(NAME, ADDRESS AND OTHER INFORMATION)
Facility Planning & Resources, Inc.
2101 Greentree Road
Pittsburgh, PA 15220
Phone: 412-278-8000
FAX: 412-278-3771
For the following Project:
(INCLUDE DETAILED DESCRIPTION OF PROJECT, LOCATION AND ADDRESS)
See the Project description in the paragraphs preceding paragraph "A" in the
proposal of Architect, dated May 4, 1998, attached hereto as Exhibit "A" and
made a part hereof (the "Proposal").
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #1
<PAGE>
The Owner and Architect agree as follows.
ARTICLE I ARCHITECT'S RESPONSIBILITIES
1.1 The services performed by the Architect, Architect's employees and
Architect's consultants shall be as enumerated in Paragraphs A, B, and C of
the Proposal, as well as in Articles 2, 3 and 12, to the extent not amended
as set forth below.
1.2 The Architect's services shall be performed as expeditiously as is
consistent with professional skill and care and the orderly progress of the
Project. The Architect shall submit for the Owner's approval a schedule for
the performance of the Architect's services which may be adjusted as the
Project proceeds, with Owner's prior consent. This schedule shall include
allowances for periods of time required for the Owner's review and for
approval of submissions by authorities having jurisdiction over the Project.
Time limits established by this schedule approved by the Owner shall not,
except for reasonable cause, be exceeded by the Architect or Owner.
1.3 The Architect shall designate a representative authorized to act on
behalf of the Architect with respect to the Project.
1.4 The services covered by this Agreement are subject to the time
limitations contained in Subparagraph 11.5.1.
ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
The Architect's Basic Services consist of those described in Paragraphs 2.2
through 2.6 and any other services identified in Article 12 as part of Basic
Services, and include normal mechanical engineering services, to the extent
necessary to complete the Basic Services for which Architect is responsible.
Civil, structural, electrical plumbing and fire suppression system design
services will not be a part of this agreement.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect shall review the program furnished by the Owner to
ascertain the requirements of the Project and shall arrive at a mutual
understanding of such requirements with the Owner.
2.2.2 The Architect shall provide a preliminary evaluation of the Owner's
program, schedule and construction budget requirements, each in terms of the
other, subject to the limitations set forth in Subparagraph 5.2.1.
2.2.3 The Architect shall review with the Owner alternative approaches to
design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction
budget requirements, the Architect shall prepare, for approval by the Owner,
Schematic Design Documents consisting of drawings and other documents
illustrating the scale and relationship of Project components.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments
authorized by the Owner in the program, schedule or construction budget, the
Architect shall prepare, for approval by the Owner, Design Development
Documents consisting of drawings and other documents to fix and describe the
size and character of the Project as to architectural, mechanical systems,
materials and such other elements as may be appropriate.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further
adjustments in the scope or quality of the Project or in the construction
budget authorized by the Owner, the Architect shall prepare, for approval by
the Owner,
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #2
<PAGE>
Construction Documents consisting of drawings and Specifications setting
forth in detail the requirements for the construction of the Project.
2.4.4 The Architect shall assist the Owner in connection with the Owner's
responsibility for filing documents required for the approval of
governmental authorities having jurisdiction over the Project, upon request
of Owner.
2.6 CONSTRUCTION PHASED--ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Architect's responsibility to provide Basic Services for the
Construction Phase under this Agreement commences with the award of the
initial Contract for Construction and terminates at the earlier of the
issuance to the Owner of the final Certificate for Payment or 60 days after
the date of Substantial Completion of the Work.
2.6.3 Duties, responsibilities and limitations of authority of the Architect
under this Paragraph 2.6 shall not be restricted, modified or extended
without written agreement of the Owner and Architect with consent of the
Contractor, which consent will not be unreasonably withheld.
2.6.5 The Architect, as a representative of the Owner, shall visit the site
according to the schedule for site visits provided in paragraph E of the
Proposal, (1) to become generally familiar with and to keep the Owner
informed about the progress and quality of the portion of the Work
completed, (2) to endeavor to guard the Owner against defects and
deficiencies in the Work, and (3) to determine in general if the Work is
being performed in a manner indicating that the Work, when fully completed,
will be in accordance with the Contract Documents. However, the Architect
shall not be required to make exhaustive or continuous on-site inspections
to check the quality or quantity of the Work. The Architect shall neither
have control over or charge of, nor be responsible for, the construction
means, methods, techniques, sequences or procedures, or for safety
precautions and programs in connection with the Work, since these are solely
the Contractor's rights and responsibilities under the Contract Documents.
2.6.6 The Architect shall report to the Owner known deviations from the
Contract Documents and from the most recent construction schedule submitted
by the Contractor. However, the Architect shall not be responsible for the
Contractor's failure to perform the Work in accordance with the requirements
of the Contract Documents. The Architect shall be responsible for the
Architect's negligent acts or omissions, but shall not have control over or
charge of and shall not be responsible for acts or omissions of the
Contractor, Subcontractors, or their agents or employees, or of any other
persons or entities performing portions of the Work.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #3
<PAGE>
2.6.7 The Architect shall at all times have access to the Work wherever it
is in preparation or progress. Architect will coordinate its access to the
Work with Owner. Any entry into Owner's adjacent completed building will be
with a representative of Owner.
2.6.8 Communications by and with the Architect's consultants shall be
through the Architect.
2.6.9 CERTIFICATES FOR PAYMENT
2.6.11 The Architect shall review and approve or take other appropriate
action upon the Contractor's submittals such as Shop Drawings, Product Data
and Samples, but only for the limited purpose of checking for conformance
with information given and the design concept expressed in the Contract
Documents. The Architect's action shall be taken with such reasonable
promptness as to cause no delay in the Work or in the activities of the
Owner, Contractor or separate contractors, while allowing sufficient time in
the Architect's professional judgment to permit adequate review. Review of
such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or
systems, all of which remain the responsibility of the Contractor as
required by the Contract Documents. The Architect's review shall not
constitute approval of safety precautions or, unless otherwise specifically
stated by the Architect, of any construction means, methods, techniques,
sequences or procedures. The Architect's approval of a specific item shall
not indicate approval of an assembly of which the item is a component.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #4
<PAGE>
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic
Services unless so identified in Article 12, and they shall be paid for by
the Owner as provided in this Agreement, in addition to the compensation for
Basic Services. The services described under Paragraphs 3.2 and 3.4 shall
only be provided if authorized or confirmed in writing by the Owner. If
services described under Contingent Additional Services in Paragraph 3.3 are
required due to circumstances beyond the Architect's control, the Architect
shall notify the Owner prior to commencing such services. If the Owner deems
that such services described under Paragraph 3.3 are required, the Owner
shall give prompt written notice to the Architect. If the Owner indicates in
writing that all or part of such Contingent Additional Services are
required, the Architect will provide those services.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive representation at the site than is described in
Subparagraph 2.6.5 is required, the Architect shall provide one or more
Project Representatives to assist in carrying out such additional on-site
responsibilities.
3.2.2 Project Representatives shall be selected, employed and directed by
the Architect, and the Architect shall be compensated therefor as agreed by
the Owner and Architect. The duties, responsibilities and limitations of
authority of Project Representatives shall be as described in the edition of
AIA Document B352 current as of the date of this Agreement, unless otherwise
agreed.
3.2.3 Through the presence at the site of such Project Representatives, the
Architect shall endeavor to provide further protection for the Owner against
defects and deficiencies in the Work, but the furnishing of such project
representation shall not modify the rights, responsibilities or obligations
of the Architect as described elsewhere in this Agreement.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making revisions in drawings, specifications or other documents when
such revisions are:
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #5
<PAGE>
.1 inconsistent with approvals or instructions previously given by
the Owner, including revisions made necessary by adjustments in
the Owner's program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
.3 due to changes required as a result of the Owner's failure to
render decisions in a timely manner.
3.3.2 Providing services required because of significant changes in the
Project including, but not limited to, size, quality, complexity, the
Owner's schedule, or the method of bidding or negotiating and contracting
for construction, except for services required under Subparagraph 5.2.5.
3.3.3 Preparing Drawings, Specifications and other documentation and
supporting data, evaluating Contractor's proposals, and providing other
services in connection with Change Orders and Construction Change
Directives.
3.3.4 Providing services in connection with evaluating substitutions
proposed by the Contractor and making subsequent revisions to Drawings,
Specifications and other documentation resulting therefrom.
3.3.5 Providing consultation concerning replacement of Work damaged by fire
or other cause during construction, and furnishing services required in
connection with the replacement of such Work.
3.3.6 Providing services made necessary by the default of the Contractor, by
major defects or deficiencies in the Work of the Contractor, or by failure
of performance of either the Owner or Contractor under the Contract for
Construction.
3.3.7 Providing services in evaluating an extensive number of claims
submitted by the Contractor or others in connection with the Work.
3.3.8 Providing services in connection with a public hearing, a dispute
resolution proceeding or a legal proceeding except where the Architect is
party thereto.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Electrical, plumbing, fire protection and structural engineering as
requested;
3.4.2 Providing financial feasibility or other special studies.
3.4.3 Providing planning surveys, site evaluations or comparative studies of
prospective sites.
3.4.4 Providing special surveys, environmental studies and submissions
required for approvals of governmental authorities or others having
jurisdiction over the Project.
3.4.5 Providing services relative to future facilities, systems and
equipment.
3.4.6 Providing services to investigate existing conditions or facilities or
to make measured drawings thereof.
3.4.7 Providing services to verify the accuracy of drawings or other
information furnished by the Owner.
3.4.8 Providing coordination of construction performed by separate
contractors or by the Owner's own forces and coordination of services
required in connection with construction performed and equipment supplied by
the Owner.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #6
<PAGE>
3.4.9 Providing services in connection with the work of a construction
manager or separate consultants retained by the Owner.
3.4.10 Providing detailed estimates of Construction Cost.
3.4.11 Providing detailed quantity surveys or inventories of material,
equipment and labor.
3.4.12 Providing analyses of owning and operating costs.
3.4.13 Providing interior design and other similar services required for or
in connection with the selection, procurement or installation of furniture,
furnishings and related equipment.
3.4.14 Providing services for planning tenant or rental spaces.
3.4.15 Making investigations, inventories of materials or equipment, or
valuations and detailed appraisals of existing facilities.
3.4.16 Preparing a set of reproducible record drawings showing significant
changes in the Work made during construction based on marked-up prints,
drawings and other data furnished by the Contractor to the Architect.
3.4.17 Providing assistance in the utilization of equipment or systems such
as testing, adjusting and balancing, preparation of operation and
maintenance manuals, training personnel for operation and maintenance, and
consultation during operation.
3.4.18 Providing services after issuance to the Owner of the final
Certificate for Payment, or in the absence of a final Certificate for
Payment, more than 60 days after the date of Substantial Completion of the
Work.
3.4.19 Providing services of consultants for other than architectural,
structural, mechanical and electrical engineering portions of the Project
provided as a part of Basic Services.
3.4.20 Providing any other services not otherwise included in this Agreement
or not customarily furnished in accordance with generally accepted
architectural practice.
ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information in a timely manner regarding
requirements for and limitations on the Project.
4.2 The Owner shall establish and periodically update an overall budget for
the Project, including the Construction Cost, the Owner's other costs and
reasonable contingencies related to all of these costs.
4.3 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner or such designated
representative shall render decisions in a timely manner pertaining to
documents submitted by the Architect in order to avoid unreasonable delay in
the orderly and sequential progress of the Architect's services.
4.4 The Owner shall furnish surveys to describe physical characteristics,
legal limitations and utility locations for the site of the Project, and a
written legal description of the site. The surveys and legal information
shall include, as applicable, grades and lines of streets, alleys, pavements
and adjoining property and structures; adjacent drainage; rights-of-way,
restrictions, easements, encroachments, zoning, deed restrictions,
boundaries and contours of the site; locations, dimensions and necessary
data with respect to existing buildings, other improvements and trees; and
information concerning available utility services and
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #7
<PAGE>
lines, both public and private, above and below grade, including inverts and
depths. All the information on the survey shall be referenced to a Project
benchmark.
4.5 The Owner shall furnish the services of geotechnical engineers when such
services are requested by the Architect. Such services may include but are
not limited to test borings, test pits, determinations of soil bearing
values, percolation tests, evaluations of hazardous materials, ground
corrosion tests and resistivity tests, including necessary operations for
anticipating subsoil conditions, with reports and appropriate
recommendations.
4.6 The Owner shall furnish the services of consultants other than those
designated in Paragraph 4.5 when such services are requested by the
Architect and are reasonably required by the scope of the Project.
4.7 The Owner shall furnish structural, mechanical, and chemical tests;
tests for air and water pollution; tests for hazardous materials; and other
laboratory and environmental tests, inspections and reports required by law
or the Contract Documents.
4.8 The Owner shall furnish all legal, accounting and insurance services
that may be necessary at any time for the Project to meet the Owner's needs
and interests. Such services shall include auditing services the Owner may
require to verify the Contractor's Applications for Payment or to ascertain
how or for what purposes the Contractor has used the money paid by or on
behalf of the Owner.
4.9 The services, information, surveys and reports required by Paragraphs
4.4 through 4.8 shall be furnished at the Owner's expense, and the Architect
shall be entitled to rely upon the accuracy and completeness thereof.
4.10 The Owner shall provide prompt written notice to the Architect if the
Owner becomes aware of any fault or defect in the Project, including any
errors, omissions or inconsistencies in the Architect's Instruments of
Service.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #8
<PAGE>
ARTICLE 6 USE OF ARCHITECT'S INSTRUMENTS OF SERVICE
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #9
<PAGE>
6.4 INSERT A: Owner acknowledges that Architect's drawings, plans,
specifications and other construction materials and work product are
Instruments of Service. Notwithstanding the foregoing, however, all such
Instruments of Service shall be the property of Owner throughout the term of
this Agreement and thereafter. Owner agrees, to the fullest extent
contemplated by law, to indemnify Architect and Architect's consultants
(collectively, "Indemnitees") from any claim, liability or cost (including
reasonable attorneys fees and defense costs) arising out of or in connection
with any reuse or modification of the aforesaid Instruments of Service by
Owner or by any third party or entity authorized to use them by Owner, even
if the claim, liability or cost arises out of the alleged negligence of the
Indemnitees, unless Architect has been retained to perform the architectural
and engineering services accompanying any such reuse or modification.
ARTICLE 7 DISPUTE RESOLUTION
7.1 MEDIATION
7.1.1 Any claim, dispute or other matter in question arising out of or
related to this Agreement shall be subject to mediation as a condition
precedent to the institution of legal or equitable proceedings by either
party. If such matter relates to or is the subject of a lien arising out of
the Architect's services, the Architect may proceed in accordance with
applicable law to comply with the lien notice or filing deadlines prior to
resolution of the matter by mediation.
7.1.2 The Owner and Architect shall endeavor to resolve claims, disputes and
other matters in question between them by mediation which, unless the
parties mutually agree otherwise, shall be in accordance with the
Construction Industry Mediation Rules of the American Arbitration
Association currently in effect. Request for mediation shall be filed in
writing with the other party to this Agreement and with the American
Arbitration Association. The request may be made concurrently with the
filing of a lawsuit or other proceedings but, in such event, mediation shall
proceed in advance of legal or equitable proceedings, which shall be stayed
pending mediation for a period of 60 days from the date of filing, unless
stayed for a longer period by agreement of the parties or court order.
7.1.3 The parties shall share the mediator's fee and any filing fees
equally. The mediation shall be held in the place where the Project is
located, unless another location is mutually agreed upon. Agreements reached
in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #10
<PAGE>
ARTICLE 8 TERMINATION OR SUSPENSION
8.1 If the Owner fails to make payments to the Architect in accordance with
this Agreement, and any such payments remain unpaid for thirty (30) days
after Architect makes a written demand for payment to Owner, such failure
shall be considered substantial nonperformance and cause for termination or,
at the Architect's option, cause for suspension of performance of services
under this Agreement. If the Architect elects to suspend services, prior to
suspension of services, the Architect shall give seven days' written notice
to the Owner. In the event of a suspension of services without fault on the
part of the Architect, the Architect shall have no liability to the Owner
for delay or damage caused the Owner because of such suspension of services.
Before resuming services, the Architect shall be paid all sums due prior to
suspension and any expenses incurred in the interruption and resumption of
the Architect's services. The Architect's fees for the remaining services
and the time schedules shall be equitably adjusted.
8.2 If the Project is suspended by the Owner for more than 30 consecutive
days, the Architect shall be compensated for services performed prior to
notice of such suspension. When the Project is resumed, the Architect shall
be compensated for expenses incurred in the interruption and resumption of
the Architect's services. The Architect's fees for the remaining services
and the time schedules shall be equitably adjusted.
8.3 If the Project is suspended or the Architect's services are suspended
for more than 90 consecutive days, the Architect may terminate this
Agreement by giving not less than seven days' written notice.
8.4 This Agreement may be terminated by either party upon not less than
seven days' written notice should the other party fail substantially to
perform in accordance with the terms of this Agreement through no fault of
the party initiating the termination.
8.5 This Agreement may be terminated by the Owner upon not less than seven
days' written notice to the Architect for the Owner's convenience and
without cause.
8.6 In the event of termination not the fault of the Architect, the
Architect shall be compensated for services performed prior to termination,
together with Reimbursable Expenses then due and all Termination Expenses
as defined in Paragraph 8.7.
ARTICLE 9 MISCELLANEOUS PROVISIONS
9.1 This Agreement shall be governed by the law of the State of Florida.
Venue for any action or proceeding arising out of or in connection with this
Agreement will lie in any court of competent jurisdiction in Pinellas
County, Florida or in the United States District Court for the Middle
District of Florida.
9.2 Terms in this Agreement shall have the same meaning as those in the
edition of AIA Document A201, General Conditions of the Contract for
Construction, current as of the date of this Agreement as such General
Conditions may be modified by agreement between Owner and Perry
Construction, Inc. in connection with the Contract for Construction between
such parties.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #11
<PAGE>
9.3 Causes of action between the parties to this Agreement pertaining to
acts or failures to act shall be deemed to have accrued and the applicable
statutes of limitations shall commence to run not later than either the date
of Substantial Completion for acts or failures to act occurring prior to
Substantial Completion or the date of issuance of the final Certificate for
Payment for acts or failures to act occurring after Substantial Completion.
In no event shall such statutes of limitations commence to run any later
than the date when the Architect's services are substantially completed.
9.4 To the extent damages are covered by property insurance during
construction, the Owner and Architect waive all rights against each other
and against the contractors, consultants, agents and employees of the other
for damages, except such rights as they may have to the proceeds of such
insurance as set forth in the edition of AIA Document A201, General
Conditions of the Contract for Construction, current as of the date of this
Agreement. The Owner or the Architect, as appropriate, shall require of the
contractors, consultants, agents and employees of any of them similar
waivers in favor of the other parties enumerated herein.
9.5 The Owner and Architect, respectively, bind themselves, their partners,
successors, assigns and legal representatives to the other party to this
Agreement and to the partners, successors, assigns and legal representatives
of such other party with respect to all covenants of this Agreement. Neither
the Owner nor the Architect shall assign this Agreement without the written
consent of the other, except that the Owner may assign this Agreement to an
institutional lender providing financing for the Project. In such event, the
lender shall assume the Owner's rights and obligations under this Agreement.
The Architect shall execute all consents reasonably required to facilitate
such assignment.
9.6 This Agreement represents the entire and integrated agreement between
the Owner and the Architect and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be
amended only by written instrument signed by both Owner and Architect.
9.7 Nothing contained in this Agreement shall create a contractual
relationship with or a cause of action in favor of a third party against
either the Owner or Architect.
9.8 Unless otherwise provided in this Agreement, the Architect and
Architect's consultants shall have no responsibility for the discovery,
presence, handling, removal or disposal of or exposure of persons to
hazardous materials or toxic substances in any form at the Project site.
9.9 The Architect shall have the right to include exterior (and with Owner's
express prior written approval, in Owner's sole discretion, interior)
photographic or artistic representations of the design of the Project among
the Architect's promotional and professional materials. The Architect shall
be given reasonable access to the completed Project to make such
representations. However, the Architect's materials shall not include the
Owner's confidential or proprietary information.
9.10 If the Owner requests the Architect to execute certificates, the
proposed language of such certificates shall be submitted to the Architect
for review at least 14 days prior to the requested dates of execution. The
Architect shall not be required to execute certificates that would require
knowledge, services or responsibilities beyond the scope of this Agreement.
ARTICLE 10 PAYMENTS TO THE ARCHITECT
10.2 REIMBURSABLE EXPENSES
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #12
<PAGE>
10.2.1 Reimbursable Expenses are in addition to compensation for Basic and
Additional Services and include expenses incurred by the Architect and
Architect's employees and consultants directly related to the Project, as
identified in the following Clauses:
.1 transportation in connection with the Project, authorized
out-of-town travel and subsistence, and electronic communications;
provided, however, that the nature and extent of travel will not
exceed that provided in paragraph E of the Proposal unless Owner
consents in writing;
.2 fees paid for securing approval of authorities having jurisdiction
over the Project;
.3 reproductions, plots, standard form documents, postage, handling
and delivery of Instruments of Service;
.4 expense of overtime work requiring higher than regular rates if
authorized in advance by the Owner;
.5 renderings, models and mock-ups requested by the Owner;
.6 expense of professional liability insurance dedicated exclusively
to this Project or the expense of additional insurance coverage or
limits requested by the Owner in excess of that normally carried
by the Architect and the Architect's consultants;
.7 reimbursable expenses as designated in Article 12, if any
10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
10.3.2 Subsequent payments for Basic Services shall be made monthly and,
will be payable in the manner provided in subparagraph 11.3.2 below.
10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
Payments on account of the Architect's Additional Services and for
Reimbursable Expenses shall be made monthly upon presentation of the
Architect's statement of services rendered or expenses incurred.
10.5 PAYMENTS WITHHELD
No deductions shall be made from the Architect's compensation on account of
penalty, liquidated damages or other sums withheld from payments to
contractors, or on account of the cost of changes in the Work other than
those for which the Architect has been adjudged to be liable.
10.6 ARCHITECT'S ACCOUNTING RECORDS
Records of Reimbursable Expenses and expenses pertaining to Additional
Services and services, including Basic Services, performed on the basis of
hourly rates or a multiple of Direct Personnel Expense shall be available to
the Owner or the Owner's
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #13
<PAGE>
ARTICLE 11 BASIS OF COMPENSATION
THE Owner shall compensate the Architect as follows:
11.2 BASIC COMPENSATION
11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services
included in Article 12 as part of Basic Services, Basic Compensation shall
be computed as follows:
(INSERT BASIS OF COMPENSATION, INCLUDING STIPULATED SUMS, MULTIPLES OR
PERCENTAGES, AND IDENTIFY PHASES TO WHICH PARTICULAR METHODS OF COMPENSATION
APPLY, IF NECESSARY.)
The stipulated sum of TWO HUNDRED THIRTY-EIGHT THOUSAND AND NO/100 DOLLARS
($238,000.00).
11.2.2
(INSERT ADDITIONAL PHASES AS APPROPRIATE.)
INSERT B:The stipulated sum set forth in 11.2.1. above will be paid in
monthly installments based upon the proportion that the Basic Services
performed during the preceding monthly period bear to all of the Basic
Services to be performed pursuant to this Contract.
11.3 COMPENSATION FOR ADDITIONAL SERVICES
11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in
Paragraph 3.2, compensation shall be computed as follows:
Any such compensation will be negotiated and agreed upon by Owner and
Architect if and at such time as Owner requests Additional Services.
11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3
and 12, other than (1) Additional Project Representation, as described in
Paragraph 3.2, and (2) services included in Article 12 as part of Basic
Services, but excluding services of consultants, compensation shall be
computed as follows:
(INSERT BASIS OF COMPENSATION, INCLUDING RATES AND MULTIPLES OF DIRECT
PERSONNEL EXPENSE FOR PRINCIPALS AND EMPLOYEES, AND IDENTIFY PRINCIPALS AND
CLASSIFY EMPLOYEES, IF REQUIRED. IDENTIFY SPECIFIC SERVICES TO WHICH
PARTICULAR METHODS OF COMPENSATION APPLY, IF NECESSARY.)
An hourly rate for the person employed, based upon the hourly rate schedule
set forth in the Proposal.
11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional
structural, mechanical and electrical engineering services and those
provided under Subparagraph 3.4.19 or identified in Article 12 as part of
Additional Services, a multiple of one (1.0) times the amounts billed to the
Architect for such services.
(IDENTIFY SPECIFIC TYPES OF CONSULTANTS IN ARTICLE 12, IF REQUIRED.)
11.4 REIMBURSABLE EXPENSES
For Reimbursable Expenses, as described in Paragraph 10.2, and any other
items included in Article 12 as Reimbursable Expenses, a multiple of one
(1.0) times the expenses incurred by the Architect, the Architect's
employees and consultants directly related to the Project. Reimbursable
expenses for the entire Project will not exceed FIFTEEN THOUSAND AND NO/100
DOLLARS ($15,000.00), unless Owner approves otherwise in Owner's sole
discretion. This sum includes the travel schedule set forth in the Proposal.
All Reimbursable Expenses will be invoiced at cost with no mark-up.
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #14
<PAGE>
11.5 ADDITIONAL PROVISIONS
11.5.2 Payments are due and payable thirty (30) days from the date of the
Architect's invoice. Amounts unpaid sixty (60) days after the invoice date
shall bear interest at the rate entered below, or in the absence thereof
at the legal rate prevailing from time to time at the principal place of
business of the Architect.
(INSERT RATE OF INTEREST AGREED UPON.)
twelve percent (12%) per annum
(USURY LAWS AND REQUIREMENTS UNDER THE FEDERAL TRUTH IN LENDING ACT,
SIMILAR STATE AND LOCAL CONSUMER CREDIT LAWS AND OTHER REGULATIONS AT THE
OWNER'S AND ARCHITECT'S PRINCIPAL PLACES OF BUSINESS, THE LOCATION OF THE
PROJECT AND ELSEWHERE MAY AFFECT THE VALIDITY OF THIS PROVISION. SPECIFIC
LEGAL ADVICE SHOULD BE OBTAINED WITH RESPECT TO DELETIONS OR
MODIFICATIONS, AND ALSO REGARDING REQUIREMENTS SUCH AS WRITTEN DISCLOSURES
OR WAIVERS.)
11.5.3 The rates and multiples set forth for Additional Services shall be
adjusted in accordance with the normal salary review practices of the
Architect.
ARTICLE 12 OTHER CONDITIONS OR SERVICES
(INSERT DESCRIPTIONS OF OTHER SERVICES, IDENTIFY ADDITIONAL SERVICES
INCLUDED WITHIN BASIC COMPENSATION AND MODIFICATIONS TO THE PAYMENT AND
COMPENSATION TERMS INCLUDED IN THIS AGREEMENT.)
This Agreement entered into as of the day and year first written above.
PLASMA-THERM, INC. PRINTED NAME AND TITLE
FACILITY PLANNING & RESOURCES, INC.
/s/ STACY L. WAGNER
----------------------------------- /s/ THOMAS E. HANSZ
OWNER (SIGNATURE) -------------------------------
ARCHITECT (SIGNATURE)
By: /s/ Stacy L. Wagner, its Vice-
President - Finance and By: /s/ Thomas E. Hansz, AIA, its
Administration President
(PRINTED NAME AND TITLE)
- --------------------------------------------------------------------------------
AIA DOCUMENT B151-ABBREVIATED OWNER-ARCHITECT AGREEMENT - 1997 EDITION - AIA -
COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE
N.W., WASHINGTON. D.C. 20006-5292. WARNING: Unlicensed photocopying violates
U.S. copyright laws and will subject the violator to legal prosecution. This
document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format B151-1997
User Document: PLASMA -- 6/1/1998. AIA License Number 105133,
which expires on 3/31/1999 -- Page #15
EXHIBIT 10.53
[GRAPHIC]
STANDARD FORM OF AGREEMENTS BETWEEN
OWNER AND DESIGN/BUILDER
AIA DOCUMENT A191 - ELECTRONIC FORMAT
THIS DOCUMENT COMPRISES TWO SEPARATE AGREEMENTS: PART 1 AGREEMENT AND PART 2
AGREEMENT. BEFORE EXECUTING THE PART 1 AGREEMENT, THE PARTIES SHOULD REACH
SUBSTANTIAL AGREEMENT ON THE PART 2 AGREEMENT. TO THE EXTENT REFERENCED IN THESE
AGREEMENTS, SUBORDINATE PARALLEL AGREEMENTS TO A191 CONSIST OF AIA DOCUMENT
A491, STANDARD FORM OF AGREEMENTS BETWEEN DESIGN/BUILDER AND CONTRACTOR, AND AIA
DOCUMENT B9O1, STANDARD FORM OF AGREEMENTS BETWEEN DESIGN/BUILDER AND ARCHITECT.
PART I AGREEMENT
1996 EDITION
- --------------------------------------------------------------------------------
AGREEMENT
made as of the 21 day of July in the year of 1998
(IN WORDS, INDICATE DAY, MONTH AND YEAR.)
BETWEEN the Owner:
(NAME AND ADDRESS)
PLASMA-THERM, INC.
10050 16th Street North
St. Petersburg, Florida 33716
Attn: Stacy L. Wagner
Vice President - Finance and Administration
Telephone: 813-577-4999
Fax: 813-577-6844
and the Design/Builder:
(NAME AND ADDRESS)
THE PERRY COMPANY
1901 East 7th Avenue
Tampa, Florida 33605
Attn: Mr. Jerry N. Perry
Telephone: 813-248-6556
Fax: 813-248-9645
For the following Project:
(INCLUDE PROJECT NAME, LOCATION AND A SUMMARY DESCRIPTION.)
A single-story manufacturing facility consisting of approximately 33,000 square
feet, to be constructed on approximately 6.46 acres located in Metropointe
Commerce Park at the southwest corner of 16th Street and 102nd Avenue, St.
Petersburg, Florida 33716.
The architectural services described in Article I will be provided by the
following person or entity who is lawfully licensed to practice architecture:
(NAME AND ADDRESS) (REGISTRATION NUMBER) (RELATIONSHIP TO DESIGN/BUILDER)
Normal structural, mechanical and electrical engineering services will be
provided contractually through the Architect except as indicated below:
(NAME, ADDRESS AND DISCIPLINE) (REGISTRATION NUMBER)
(RELATIONSHIP TO DESIGN/BUILDER)
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #2
<PAGE>
The Owner and the Design/Builder agree as set forth below.
- --------------------------------------------------------------------------------
TERMS AND CONDITIONS--PART 1 AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE I
DESIGN/BUILDER
1.1 SERVICES
1.1.1 Preliminary design, budget, and schedule comprise the services required to
accomplish the preparation and submission of the Design/Builder's Proposal as
well as the preparation and submission of any modifications to the Proposal
prior to execution of the Agreement for Construction of the Project on AIA Form
Document A111 with General Conditions on Form A201, with such modifications
and supplemental conditions as Owner may deem necessary or adviseable (the "Part
2 Agreement").
1.2 RESPONSIBILITIES
1.2.1 Design services required by this Part 1 Agreement shall be performed by
qualified architects and other design professionals. The contractual obligations
of such professional persons or entities are undertaken and performed in the
interest of the Design/Builder.
1.2.2 The agreements between the Design/Builder and the persons or entities
identified in this Part 1 Agreement, and any subsequent modifications, shall
be in writing. These agreements, including financial arrangements with respect
to this Project, shall be promptly and fully disclosed to the Owner upon
request.
1.2.3 Construction budgets shall be prepared by qualified professionals, cost
estimators or contractors retained by and acting in the interest of the
Design/Builder.
1.2.4 The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees, subcontractors and their agents and
employees, and other persons, including the Architect and other design
professionals, performing any portion of the Design/Builder's obligations under
this Part 1 Agreement.
1.2.5 If the Design/Builder believes or is advised by the Architect or by
another design professional retained to provide services on the Project that
implementation of any instruction received from the Owner would cause a
violation of any applicable law, the Design/Builder shall notify the Owner in
writing. Neither the Design/Builder nor the Architect shall be obligated to
perform any act which either believes will violate any applicable law.
1.2.6 Nothing contained in this Part 1 Agreement shall create a contractual
relationship between the Owner and any person or entity other than the
Design/Builder.
1.3 BASIC SERVICES
1.3.1 The Design/Builder shall provide a preliminary evaluation of the Owner's
program and project budget requirements, each in terms of the other.
1.3.2 The Design/Builder shall visit the site, become familiar with the local
conditions, and correlate observable conditions with the requirements of the
Owner's program, schedule, and budget.
1.3.3 The Design/Builder shall review laws applicable to design and
construction of the Project; correlate such laws with the Owner's program
requirements; and advise the Owner if any program requirement may cause a
violation of such laws. Necessary changes to the Owner's program shall be
accomplished by appropriate written modification or disclosed as described in
Paragraph 1.3.5.
1.3.4 The Design/Builder shall review with the Owner alternative approaches to
design and construction of the Project.
1.3.5 The Design/Builder shall submit to the Owner a Proposal, including the
completed Preliminary Design Documents, a statement of the proposed contract
sum, and a proposed schedule for completion of the Project. Preliminary Design
Documents shall consist of preliminary design drawings, outline specifications
or other documents sufficient to establish the size, quality and character of
the entire Project, its architectural, structural, mechanical and electrical
systems, and the materials and such other elements
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #3
<PAGE>
of the Project as may be appropriate. Deviations from the Owner's program shall
be disclosed in the Proposal. If the Proposal is accepted by the Owner, the
parties shall then execute the Part 2 Agreement, containing the essential
business terms of the Proposal, and such other terms and conditions as are
satisfactory to both Owner and Contractor. A modification to the Proposal
before execution of the Part 2 Agreement shall be recorded in writing as an
addendum and shall be identified in the Contract Documents of the Part 2
Agreement.
Insert A: Contractor will provide Owner with a Guaranteed Maximum Price for
inclusion in the Part 2 Agreement. The Basic Services also include preparation
of final plans, specifications and drawings for the building and improvements to
the Project (collectively, the "Plans"), limited to all civil, structural,
electrical, fire safety and plumbing engineering that is necessary or desireable
for preparation of the Plans. Contractor and Owner agree that the architectural
and mechanical design services will be performed by Facility Planning &
Resources, Inc. ("FPR"), or other designer, pursuant to the terms of a separate
agreement. Contractor agrees to coordinate its services pursuant to this
Agreement with the services prepared by FPR or similar designer and to oversee
the integration and consistency of the specialized clean room work performed by
FPR into and with the building and other improvements being designed by
Contractor.
1.4 ADDITIONAL SERVICES
1.4.1 The Additional Services described under this Paragraph 1.4 shall be
provided by the Design/Builder and paid for by the Owner if authorized or
confirmed in writing by the Owner.
1.4.2 Making revisions in the Preliminary Design Documents, budget or other
documents when such revisions are:
.1 inconsistent with approvals or instructions previously given by the
Owner, including revisions necessary by adjustments in the Owner's
program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
.3 due to changes required as a result of the Owner's failure to render
decisions in a timely manner.
1.4.3 Providing more extensive programmatic criteria than that furnished by the
Owner as described in Paragraph 2.1. When authorized, the Design/Builder shall
provide professional services to assist the Owner in the preparation of the
program. Programming services may consist of:
.1 consulting with the Owner and other persons or entities not designated
in this Part 1 Agreement to define the program requirements of the
Project and to review the understanding of such requirements with the
Owner;
.2 documentation of the applicable requirements necessary for the various
Project functions or operations;
.3 providing a review and analysis of the functional and organizational
relationships, requirements, and objectives for the Project;
.4 setting forth a written program of requirements for the Owner's
approval which summarizes the Owner's objectives, schedule,
constraints, and criteria.
1.4.4 Providing financial feasibility or other special studies.
1.4.5 Providing planning surveys, site evaluations, or comparative studies of
prospective sites.
1.4.6 Providing special surveys, environmental studies, and submissions required
for approvals of governmental authorities or others having jurisdiction over
the Project.
1.4.7 Providing services relative to future facilities, systems, and
equipment.
1.4.8 Providing services at the Owner's specific request to perform detailed
investigations of existing conditions or facilities or to make measured
drawings thereof.
1.4.9 Providing services at the Owner's specific request to verify the accuracy
of drawings or other information furnished by the Owner.
1.4.10 Coordinating services in connection with the work of separate persons or
entities retained by the Owner,
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #4
<PAGE>
subsequent to the execution of this Part 1 Agreement.
1.4.11 Providing analyses of owning and operating costs.
1.4.12 Providing interior design and other similar services required for or in
connection with the selection, procurement or installation of furniture,
furnishings, and related equipment.
1.4.13 Providing services for planning tenant or rental spaces.
1.4.14 Making investigations, inventories of materials or equipment, or
valuations and detailed appraisals of existing facilities.
ARTICLE 2
OWNER
2.1 RESPONSIBILITIES
2.1.1 The Owner shall provide full information in a timely manner regarding
requirements for the Project, including a written program which shall set
forth the Owner's objectives, schedule, constraints and criteria.
2.1.2 The Owner shall establish and update an overall budget for the Project,
including reasonable contingencies. This budget shall not constitute the
contract sum.
2.1.3 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner or such authorized
representative shall render decisions in a timely manner pertaining to
documents submitted by the Design/Builder in order to avoid unreasonable delay
in the orderly and sequential progress of the Design/Builder's services. The
Owner may obtain independent review of the documents by a separate architect,
engineer, contractor, or cost estimator under contract to or employed by the
Owner. Such independent review shall be undertaken at the Owner's expense in a
timely manner and shall not delay the orderly progress of the Design/Builder's
services.
2.1.4 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a written
legal description of the site. The surveys and legal information shall include,
as applicable, grades and lines of streets, alleys, pavements, and adjoining
property and structures; adjacent drainage; rights-of-way, restrictions,
easements, encroachments, zoning, deed restrictions, boundaries and contours of
the site; locations, dimensions and necessary data pertaining to existing
buildings, other improvements and trees; and information concerning available
utility services and lines, both public and private, above and below grade,
including inverts and depths. All the information on the survey shall be
referenced to a Project benchmark.
2.1.5 The Owner shall furnish the services of geotechnical engineers when such
services are stipulated in this Part 1 Agreement, or deemed reasonably necessary
by the Design/Builder. Such services may include but are not limited to test
borings, test pits, determinations of soil bearing values, percolation tests,
evaluations of hazardous materials, ground corrosion and resistivity tests, and
necessary operations for anticipating subsoil conditions. The services of
geotechnical engineer(s) or other consultants shall include preparation and
submission of all appropriate reports and professional recommendations.
2.1.6 The Owner shall disclose, to the extent known to the Owner, the results
and reports of prior tests, inspections or investigations conducted for the
Project involving: structural or mechanical systems; chemical, air and water
pollution; hazardous materials; or other environmental and subsurface
conditions. The Owner shall disclose all information known to the Owner
regarding the presence of pollutants at the Project's site.
2.1.7 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including such
auditing services as the Owner may require to verify the Design/Builder's
Applications for Payment.
2.1.8 The Owner shall promptly obtain easements, zoning variances, and legal
authorizations regarding site utilization where essential to the execution of
the Owner's program.
2.1.9 Those services, information, surveys, and reports required by Paragraphs
2.1.4 through 2.1.8 which are within the Owner's control shall be furnished at
the Owner's expense, and the Design/Builder shall be entitled to rely upon the
accuracy and completeness thereof, except to the extent the Owner advises the
Design/Builder to the contrary in writing.
2.1.10 If the Owner requires the Design/Builder to maintain any special
insurance coverage, policy, amendment, or rider, the Owner shall pay the
additional cost thereof,
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #5
<PAGE>
except as otherwise stipulated in this Part 1 Agreement.
2.1.11 The Owner shall communicate with persons or entities employed or retained
by the Design/Builder through the Design/Builder, unless otherwise directed by
the Design/Builder.
ARTICLE 3
OWNERSHIP AND USE OF DOCUMENTS
AND ELECTRONIC DATA
3.1 Owner acknowledges that Design/Builder's Plans, and any other drawings,
specifications and materials for construction are instruments of service.
Notwithstanding the foregoing, however, all such instruments of service shall be
the property of Owner throughout the term of this Agreement and thereafter.
Owner agrees, to the fullest extent permitted by law, to indemnify
Design/Builder and Design/Builder's consultants (collectively, the
"Indemnitees") from any claim, liability or cost (including reasonable
attorneys' fees and costs) arising out of or in connection with any reuse or
modification of the aforesaid instruments of service by Owner or by any third
party or entity authorized to use them by Owner, even if the claim, liability or
cost arises out of the alleged negligence of the Indemnitees, unless
Design/Builder has been retained to perform the architectural and engineering
services accompanying any such reuse or modification.
3.4 Submission or distribution of the Design/Builder's documents to meet
official regulatory requirements or for similar purposes in connection with the
Project is not to be construed as publication in derogation of the rights
reserved in Paragraph 3.1.
ARTICLE 4
TIME
4.1 The Design/Builder shall prepare a schedule for the performance of the Basic
and Additional Services which shall not exceed the time limits contained in
Paragraph 10.1 and shall include allowances for periods of time required for the
Owner's review and for approval of submissions by authorities having
jurisdiction over the Project.
4.2 If the Design/Builder is delayed in the performance of services under this
Part 1 Agreement through no fault of the Design/Builder, any applicable
schedule shall be equitably adjusted.
ARTICLE 5
PAYMENTS
5.1 Design/Builder acknowledges that $102,850.00 of the compensation payable to
Design/Builder under this Agreement has been paid as of the date of execution
hereof.
5.2 Subsequent payments for Basic Services, Additional
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #6
<PAGE>
Services, and Reimbursable Expenses provided for in this Part 1 Agreement shall
be made monthly on the basis set forth in Article 9.
5.3 Within ten (10) days of the Owner's receipt of a properly submitted and
correct Application for Payment, the Owner shall make payment to the
Design/Builder.
5.4 Payments due the Design/Builder under this Part 1 Agreement which are not
paid when due shall bear interest from the date due at the rate specified in
Paragraph 9.5, or in the absence of a specified rate, at the legal rate
prevailing where the Project is located.
ARTICLE 6
DISPUTE RESOLUTION--MEDIATION
AND ARBITRATION
6.1 Claims, disputes or other matters in question between the parties to this
Part 1 Agreement arising out of or relating to this Part 1 Agreement or breach
thereof shall be subject to and decided by mediation or arbitration. Such
mediation or arbitration shall be conducted in accordance with the Construction
Industry Mediation or Arbitration Rules of the American Arbitration
Association currently in effect.
6.2 In addition to and prior to arbitration, the parties shall endeavor to
settle disputes by mediation. Demand for mediation shall be filed in writing
with the other party to this Part 1 Agreement and with the American Arbitration
Association. A demand for mediation shall be made within a reasonable time
after the claim, dispute or other matter in question has arisen. In no event
shall the demand for mediation be made after the date when institution of legal
or equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of repose or limitations.
6.3 Demand for arbitration shall be filed in writing with the other party to
this Part 1 Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of repose or limitations.
6.4 An arbitration pursuant to this Paragraph may be joined with an arbitration
involving common issues of law or fact between the Design/Builder and any
person or entity with whom the Design/Builder has a contractual obligation to
arbitrate disputes. No other arbitration arising out of or relating to this
Part 1 Agreement shall include, by consolidation, joinder or in any other
manner, an additional person or entity not a party to this Part 1 Agreement or
not a party to an agreement with the Design/Builder, except by written consent
containing a specific reference to this Part 1 Agreement signed by the Owner,
the Design/Builder and all other persons or entities sought to be joined.
Consent to arbitration involving an additional person or entity shall not
constitute consent to arbitration of any claim, dispute or other matter in
question not described in the written consent or with a person or entity not
named or described therein. The foregoing agreement to arbitrate and other
agreements to arbitrate with an additional person or entity duly consented to
by the parties to this Part 1 Agreement shall be specifically enforceable in
accordance with applicable law in any court having jurisdiction thereof.
6.5 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Unless otherwise provided, this Part 1 Agreement shall be governed by the
law of the place where the Project is located.
7.2 The Owner and the Design/Builder, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Part 1 Agreement and to the partners, successors and assigns of such other
party with respect to all covenants of this Part 1 Agreement. Neither the Owner
nor the Design/Builder shall assign this Part 1 Agreement without the written
consent of the other.
7.3 Unless otherwise provided, neither the design for nor the cost of
remediation of hazardous materials shall be the responsibility of the
Design/Builder.
7.4 This Part I Agreement represents the entire and integrated agreement between
the Owner and the Design/Builder and supersedes all prior negotiations,
representations or agreements, either written or oral. This Part 1 Agreement may
be amended only by written instrument signed by both the Owner and the
Design/Builder.
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #7
<PAGE>
7.5 Prior to the termination of the services of the Architect or any other
design professional designated in this Part 1 Agreement, the Design/Builder
shall identify to the Owner in writing another architect or design professional
with respect to whom the Owner has no reasonable objection, who will provide the
services originally to have been provided by the Architect or other design
professional whose services are being terminated.
ARTICLE 8
TERMINATION OF THE AGREEMENT
8.1 This Part 1 Agreement may be terminated by either party upon seven (7) days'
written notice should the other party fail to perform substantially in
accordance with its terms through no fault of the party initiating the
termination.
8.2 This Part 1 Agreement may be terminated by the Owner without cause upon at
least seven (7) days' written notice to the Design/Builder.
8.3 In the event of termination not the fault of the Design/Builder, the
Design/Builder shall be compensated for services performed to the termination
date, together with Reimbursable Expenses then due.
ARTICLE 9
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5,
Payments, and the other provisions of this Part 1 Agreement as described below.
9.1 COMPENSATION FOR BASIC SERVICES
9.1.1 FOR BASIC SERVICES, compensation shall be as follows:
One Hundred Thirty-Two Thousand Thirty and No/l00 Dollars ($132,030.00).
Design/Builder acknowledges receipt of the sum of $102,850.00 paid by Owner to
the date of this Part I Agreement, leaving a balance of $29,180.00 to be paid
upon Applications for Payment as set forth hereinabove.
9.1.3 SUBSEQUENT PAYMENTS shall be as follows:
Monthly installments will be payable to Design/Builder based upon Applications
for Payment, with such installments to be charged in a fair and equitable
manner and in the proportion that the Basic Services performed during the
preceding monthly period bear to all of the Basic Services performed and to be
performed pursuant to this Part 1 Agreement.
9.2 COMPENSATION FOR ADDITIONAL SERVICES
9.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows:
Additional services provided pursuant to the request of Owner will be billed
based upon the hourly rates for the person rendering the service at the time,
based upon the following schedule:
Professional Engineer $ 90.00/hour
Principal in Charge $110.00/hour
Project Manager $ 50.00/hour
Project Architect $ 90.00/hour
CAD Technician $ 35.00/hour
9.3 REIMBURSABLE EXPENSES
9.3.1 Reimbursable Expenses are in addition to Compensation for Basic and
Additional Services, and include actual expenditures made by the Design/Builder
and the Design/Builder's employees and contractors in the interest of the
Project, as
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #8
<PAGE>
follows:
Reimbursable Expenses will be reimbursed only upon prior approval by Owner, in
Owner's sole discretion.
9.3.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of one (1.0)
times the amounts expended. It is the intent of the section that all expenses
of Design/Builder which have been approved by Contractor will be invoiced at
cost.
9.4 DIRECT PERSONNEL EXPENSE is defined as the direct salaries of personnel
engaged on the Project, and the portion of the cost of their mandatory and
customary contributions and benefits related thereto, such as employment taxes
and other statutory employee benefits, insurance, sick leave, holidays,
vacations, pensions, and similar contributions and benefits.
9.5 INTEREST PAYMENTS
9.5.1 The rate of interest for past due payments shall be as follows:
(USURY LAWS AND REQUIREMENTS UNDER THE FEDERAL TRUTH IN LENDING ACT, SIMILAR
STATE AND LOCAL CONSUMER CREDIT LAWS AND OTHER REGULATIONS AT THE OWNER'S AND
DESIGN/BUILDERS PRINCIPAL PLACES 0F BUSINESS, AT THE LOCATION OF THE PROJECT AND
ELSEWHERE MAY AFFECT THE VALIDITY OF THIS PROVISION. SPECIFIC LEGAL ADVICE
SHOULD BE OBTAINED WITH RESPECT TO DELETION, MODIFICATION OR OTHER REQUIREMENTS,
SUCH AS WRITTEN DISCLOSURES OR WAIVERS.)
9.6 IF THE SCOPE of the Project is changed materially, the amount of
compensation shall be equitably adjusted.
ARTICLE 10
OTHER CONDITIONS AND SERVICES
10.1 The Basic Services to be performed shall be commenced on and, subject to
authorized adjustments and to delays not caused by the Design/Builder, shall be
completed and the Plans ready for submission to the City of St. Petersburg for
purposes of obtaining all applicable permits for construction, on or before July
15, 1998 ( ). The Design/Builder's Basic Services consist of those described in
Paragraph 1.3 as part of Basic Services, and include normal professional
engineering and preliminary design services, unless otherwise indicated.
10.2 Services beyond those described in Paragraph 1.4 are as follows:
(INSERT DESCRIPTIONS OF OTHER SERVICES, IDENTIFY ADDITIONAL SERVICES INCLUDED
WITHIN BASIC COMPENSATION AND MODIFICATIONS TO THE PAYMENT AND COMPENSATION
TERMS INCLUDED IN THIS AGREEMENT.)
Project management services to the extent necessary to coordinate the plans,
specifications, drawings and other materials prepared by FPR with the Plans
being prepared by Design/Builder.
10.3 The Owner's preliminary program, budget, and other documents, if any, are
enumerated as follows:
Title Date
Design/Builder has been previously advised with respect to such matters and is
familiar with the Owner's program, budget and other parameters for
construction.
This Agreement entered into as of the day and year first written above.
OWNER DESIGN/BUILDER
/s/ STACY WAGNER /s/ JERRY N. PERRY
- -------------------------- ----------------------------
(SIGNATURE) (SIGNATURE)
PLASMA-THERM, INC. THE PERRY COMPANY
(PRINTED NAME AND TITLE)
- --------------------------------------------------------------------------------
AIA DOCUMENT A191 OWNER-DESIGN/BUILDER AGREEMENT /bullet/ SECOND EDITION
/bullet/ AIA(R) /bullet/ (c)1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, NW, WASHINGTON, DC 20006-5292 /bullet/ WARNING: Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
Electronic Format A191 -1996
User Document: PLASMA--7/2/1998.
AIA License Number 105133, which expires on 3/31/1999 --Page #9
EXHIBIT 10.54
[GRAPHIC OMITTED]
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONTRACTOR WHERE THE BASIS OF PAYMENT IS
THE COST OF THE WORK PLUS A FEE WITH OR
WITHOUT A GUARANTEED MAXIMUM PRICE
AIA DOCUMENT A111 - ELECTRONIC FORMAT
- --------------------------------------------------------------------------------
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY
IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
The 1987 Edition of AIA Document A201, General Conditions of the Contract for
Construction, is adopted in this document by reference. Do not use with other
general conditions unless this document is modified. This document has been
approved and endorsed by The Associated General Contractors of America.
Copyright 1920, 1925, 1951, 1958, 1961, 1967, 1974, 1978, 1987 by The American
Institute of Architects, 1735 New York Avenue N.W., Washington D.C. 20006-5292.
Reproduction of the material herein or substantial quotation of its provisions
without written permission of the AIA violates the copyright laws of the United
States and will be subject to legal prosecution.
- --------------------------------------------------------------------------------
AGREEMENT
made as of the 5th day of February in the year of Nineteen Hundred and
NINETY-NINE
BETWEEN the Owner:
(NAME AND ADDRESS)
PLASMA THERM, INC.
c/o 10050 16TH STREET NORTH
ST. PETERSBURG. FLORIDA 33716
ATTN: STACY L. WAGNER
VICE PRESIDENT - FINANCE AND ADMINISTRATION
PHONE: 813-577-4999
FAX: 813-577-6844
and the Contractor:
(NAME AND ADDRESS)
THE PERRY COMPANY
1901 EAST 7TH AVENUE
TAMPA, FLORIDA 33605
ATTN: MR. JERRY PERRY
PHONE: 813-248-6556
Fax: 813-248-9645
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #1
<PAGE>
the Project is:
(NAME AND ADDRESS)
A SINGLE-STORY MANUFACTURING FACILITY CONSISTING OF APPROXIMATELY 33,000 SQUARE
FEET, TO BE CONSTRUCTED ON APPROXIMATELY 6.46 ACRES LOCATED IN METROPOINTE
COMMERCE PARK AT THE SOUTHWEST CORNER OF 16TH STREET AND 102ND AVENUE, ST.
PETERSBURG, FLORIDA 33716
the Architect is:
(NAME AND ADDRESS)
FACILITY PLANNING AND RESOURCES, INC.
2101 GREENTREE ROAD
PITTSBURGH, PA 15220
PHONE: 412-278-8000
FAX: 412-278-3771
The Owner and Contractor agree as set forth below.
ARTICLE I
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Agreement, Conditions of the Contract
(General, Supplementary and other Conditions), Drawings, Specifications, Addenda
issued prior to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement; these form
the Contract, and are as fully a part of the Contract as if attached to this
Agreement or repeated herein. The Contract represents the entire and integrated
agreement between the parties hereto and supersedes prior negotiations,
representations or agreements, either written or oral. An enumeration of the
Contract Documents, other than Modifications, appears in Article 16. If anything
in the other Contract Documents is inconsistent with this Agreement, this
Agreement shall govern.
ARTICLE 2
THE WORK OF THIS CONTRACT
2.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, or as follows:
THE WORK WILL CONSIST OF ALL LABOR, MATERIALS, EQUIPMENT AND SERVICES NECESSARY
TO FULFILL ALL OF CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT DOCUMENTS. THE
CONTRACT DOCUMENTS EXPRESSLY INCLUDE THE DOCUMENT CAPTIONED "THE PERRY COMPANY
PLASMA-THERM PHASE II COST BREAKDOWN," DATED SEPTEMBER 24, 1998, A COPY OF WHICH
IS ATTACHED HERETO AS EXHIBIT "A" AND MADE A PART HEREOF.
OWNER AND CONTRACTOR UNDERSTAND AND AGREE THAT THE CONTINUITY OF THE TEAM OF
PROFESSIONAL, MANAGERIAL AND SUPERVISORY PERSONNEL (COLLECTIVELY, THE
"PROFESSIONAL TEAM") ASSIGNED TO THE PROJECT BY CONTRACTOR AND OWNER FOR THE
ENTIRE TERM OF THE CONTRACT IS A MATTER OF MATERIAL IMPORTANCE BOTH TO OWNER AND
CONTRACTOR. ACCORDINGLY, OWNER AND CONTRACTOR AGREE THAT, THROUGHOUT THE ENTIRE
TERM OF THIS CONTRACT, BOTH PARTIES WILL USE BEST EFFORTS TO MAINTAIN THE
CONTINUITY AND SAME IDENTITY OF THE PROFESSIONAL TEAM. WITHOUT LIMITING THE
FOREGOING, CONTRACTOR AGREES THAT MR. FRED LAY (THE "CONTRACTOR'S PROJECT
MANAGER") IS AND WILL BE CONTRACTOR'S SENIOR PROJECT MANAGER FOR THE PROJECT,
FOR AS LONG AS THE PROJECT MANAGER IS EMPLOYED BY CONTRACTOR. MR. JERRY PERRY IS
AND WILL CONTINUE TO BE THE PRINCIPAL IN CHARGE OF THE PROJECT THROUGHOUT THE
COURSE OF CONSTRUCTION AND WILL BE RESPONSIBLE FOR SUPERVISION OF CONTRACTOR'S
PROJECT MANAGER.
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence established
by this Agreement and covenants with the Owner to cooperate with the Architect
and utilize the Contractor's best skill, efforts and judgment in furthering the
interests of the Owner; to furnish efficient business administration and
supervision; to make best efforts to furnish at all times an adequate supply of
workers and materials; and to perform the Work in the best way and most
expeditious and economical manner consistent with the interests of the Owner.
The Owner agrees to exercise best efforts to enable the Contractor to perform
the Work in the best way and most expeditious manner by furnishing and approving
in a timely way information required by the Contractor and making payments to
the Contractor in accordance with requirements of the Contract Documents.
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #2
<PAGE>
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
(INSERT THE DATE OF COMMENCEMENT, IF IT DIFFERS FROM THE DATE OF THIS AGREEMENT
OR, IF APPLICABLE, STATE THAT THE DATE WILL BE FIXED IN A NOTICE TO PROCEED.)
CONTRACTOR WILL COMMENCE WITHIN THREE (3) BUSINESS DAYS AFTER (a) ISSUANCE OF A
PERMIT FOR THE CONSTRUCTION OF FOUNDATIONS, GROUND LEVEL IMPROVEMENTS, BUILDING
SHELL AND OTHER HORIZONTAL AND VERTICAL IMPROVEMENTS FOR THE PROJECT BY THE CITY
OF ST. PETERSBURG (THE "PERMIT"), AND (b) CLOSING BY OWNER OF A CONSTRUCTION
MORTGAGE LOAN FROM NATIONSBANK (FOR WHICH OWNER HAS RECEIVED A WRITTEN AND
BINDING COMMITMENT). OWNER AND CONTRACTOR AGREE TO USE DILIGENCE AND THEIR BEST
EFFORTS TO CAUSE THE CITY OF ST. PETERSBURG TO ISSUE THE PERMIT AT THE EARLIEST
POSSIBLE DATE.
Unless the date of commencement is established by a notice to proceed issued by
the Owner, the Contractor shall notify the Owner in writing not less than five
days before commencing the Work to permit timely filing of mortgages,
mechanic's liens and other security interests.
4.2 The Contractor shall achieve Substantial Completion of the entire Work not
later than
(INSERT THE CALENDAR DATE OR NUMBER OF CALENDAR DAYS AFTER THE DATE 0F
COMMENCEMENT. ALSO INSERT ANY REQUIREMENTS FOR EARLIER SUBSTANTIAL COMPLETION OF
CERTAIN PORTIONS OF THE WORK, IF NOT STATED ELSEWHERE IN THE CONTRACT
DOCUMENTS.)
TWO HUNDRED TEN (210) DAYS AFTER THE DATE OF COMMENCEMENT OF CONSTRUCTION.
, subject to adjustments of this Contract Time as provided in the Contract
Documents.
(INSERT PROVISIONS, IF ANY, FOR LIQUIDATED DAMAGES RELATING TO FAILURE TO
COMPLETE ON TIME.)
SEE THE ATTACHED SUPPLEMENTAL CONDITIONS
ARTICLE 5
CONTRACT SUM
5.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the Contract Sum consisting of the Cost of the Work
as defined in Article 7 and the Contractor's Fee, GENERAL CONDITIONS COSTS, AND
CONTRACTOR'S INSURANCE, ALL determined as follows:
(STATE A LUMP SUM, PERCENTAGE OF COST OF THE WORK OR OTHER PROVISION FOR
DETERMINING THE CONTRACTOR'S FEE, AND EXPLAIN HOW THE CONTRACTOR'S FEE IS TO BE
ADJUSTED FOR CHANGES IN THE WORK.)
CONTRACTOR WILL BE PAID A LUMP SUM FEE OF $414,465.00 ("CONTRACTOR'S FEE"). THE
CONTRACTOR'S FEE WILL BE ADJUSTED FOR CHANGES IN THE WORK BY AN INCREASE OF
EIGHT PERCENT (8%) OF THE COST OF THE WORK INCLUDED IN THE CHANGE. CONTRACTOR
WILL ALSO BE PAID A LUMP SUM OF $247,605.00 IN RESPECT OF CONTRACTOR'S GENERAL
OPERATING COSTS ("GENERAL CONDITIONS COSTS") AND A LUMP SUM FOR CONTRACTOR'S
INSURANCE ("CONTRACTOR'S INSURANCE") IN THE TOTAL SUM NOT TO EXCEED $3,500.00
CONTRACTOR'S FEE, GENERAL CONDITIONS COSTS, AND CONTRACTOR'S INSURANCE WILL BE
BILLED TO OWNER IN A FAIR AND EQUITABLE MANNER IN PROPORTION TO CONTRACTOR'S
MONTHLY APPLICATIONS FOR PAYMENT IN CONNECTION WITH THE COST OF THE WORK.
NOTWITHSTANDING ANY PROVISION OF THE CONTRACT TO THE CONTRARY, CONTRACTOR'S FEE,
GENERAL CONDITIONS COSTS, AND CONTRACTOR'S INSURANCE ARE INTENDED TO BE CHARGED
AS A FIXED AMOUNT, TO BE BILLED RATABLY THROUGHOUT THE COURSE OF CONSTRUCTION OF
THE PROJECT, AS AFORESAID, AND NOT TO BE SUBJECT TO REDUCTION BASED UPON SAVINGS
IN ANY COST COMPONENT COMPRISING SUCH CATEGORIES.
5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1 The sum of the Cost of the Work, GENERAL CONDITIONS COSTS, CONTRACTOR'S
INSURANCE and the Contractor's Fee is guaranteed by the Contractor not to exceed
FIVE MILLION SIX HUNDRED FIFTY-ONE THOUSAND TWO HUNDRED THIRTY-NINE AND NO/100
DOLLARS Dollars ($5,651,239.00), subject to additions and deductions by Change
Order as provided in the Contract Documents. Such maximum sum is referred to in
the Contract Documents as the Guaranteed Maximum Price. Costs which would cause
the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor
without reimbursement by the Owner.
(INSERT SPECIFIC PROVISIONS IF THE CONTRACTOR IS TO PARTICIPATE IN ANY SAVINGS.)
IF THE SUM OF THE ACTUAL COST OF WORK FOR THE PROJECT, GENERAL CONDITIONS COSTS,
CONTRACTOR'S INSURANCE AND THE CONTRACTOR'S FEE IS LESS THAN THE GUARANTEED
MAXIMUM PRICE, SUCH DIFFERENCE WILL BE DEEMED TO CONSTITUTE A "SAVINGS," UNDER
THIS CONTRACT. IF CONTRACTOR ACHIEVES ANY SAVINGS IN CONNECTION WITH ITS
EXECUTION OF THE WORK, THE SAVINGS WILL BE ALLOCATED THIRTY PERCENT (30%) TO
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #3
<PAGE>
CONTRACTOR AND SEVENTY PERCENT (70%) TO OWNER. SAVINGS ALLOCATED TO CONTRACTOR
WILL BE PAID TO CONTRACTOR IN LUMP SUM UPON FINAL PAYMENT IN THE MANNER PROVIDED
BY THIS CONTRACT.
5.2.2 The Guaranteed Maximum Price is based upon the following alternates, if
any, which are described in the Contract Documents and are hereby accepted by
the Owner:
(STATE THE NUMBERS OR OTHER IDENTIFICATION OF ACCEPTED ALTERNATES, BUT ONLY IF A
GUARANTEED MAXIMUM PRICE IS INSERTED IN SUBPARAGRAPH 5.2.1. IF DECISIONS ON
OTHER ALTERNATES ARE TO BE MADE BY THE OWNER SUBSEQUENT TO THE EXECUTION OF THIS
AGREEMENT, ATTACH A SCHEDULE OF SUCH OTHER ALTERNATES SHOWING THE AMOUNT FOR
EACH AND THE DATE UNTIL WHICH THAT AMOUNT IS VALID.)
NONE
5.2.3 The amounts agreed to for unit prices, if any, are as follows:
(STATE UNIT PRICES ONLY IF A GUARANTEED MAXIMUM PRICE IS INSERTED IN
SUBPARAGRAPH 5.2.1.)
NONE
ARTICLE 6
CHANGES IN THE WORK
6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in the
Work may be determined by any of the methods listed in Subparagraph 7.3.3 of the
General Conditions.
INSERT A: IN CONNECTION WITH ANY CHANGE IN THE WORK, THE TOTAL MARKUP BY
SUBCONTRACTORS FOR FEES, OVERHEAD AND PROFIT WILL NOT EXCEED EIGHT PERCENT (8%)
OF THE COST OF WORK COVERED BY THE SUBCONTRACT.
6.1.2 In calculating adjustments to subcontracts (except those awarded with the
Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Clause 7.3.3.3 of the General Conditions and the terms "costs"
and "a reasonable allowance for overhead and profit" as used in Subparagraph
7.3.6 of the General Conditions shall have the meanings assigned to them in the
General Conditions and shall not be modified by Articles 5, 7 and 8 of this
Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on
the basis of cost plus a fee shall be calculated in accordance with the terms of
those subcontracts.
6.1.3 In calculating adjustments to this Contract, the terms "cost" and "costs"
as used in the above-referenced provisions of the General Conditions shall mean
the Cost of the Work as defined in Article 7 of this Agreement and the terms
"fee" and "a reasonable allowance for overhead and profit" shall mean the
Contractor's Fee as defined in Paragraph 5.1 of this Agreement.
ARTICLE 7
COSTS TO BE REIMBURSED
7.1 The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work. Such costs shall be at rates
not higher than the standard paid at the place of the Project except with prior
consent of the Owner. The Cost of the Work shall include only the items set
forth in this Article 7.
7.1.1 LABOR COSTS
7.1.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or,
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #4
<PAGE>
with the Owner's agreement, at off-site workshops.
INSERT B: FOR PURPOSES OF CALCULATION OF THE COST OF THE WORK, THE AFORESAID
WAGES WILL BE MULTIPLIED BY A FACTOR OF 1.0.
7.1.1.2 Wages or salaries of the Contractor's supervisory and administrative
personnel when stationed at the site with the Owner's agreement.
(IF IT IS INTENDED THAT THE WAGES OR SALARIES OF CERTAIN PERSONNEL STATIONED AT
THE CONTRACTOR'S PRINCIPAL OR OTHER OFFICES SHALL BE INCLUDED IN THE COST OF THE
WORK, IDENTIFY IN ARTICLE 14 THE PERSONNEL TO BE INCLUDED AND WHETHER FOR ALL OR
ONLY PART OF THEIR TIME.)
7.1.1.3 Wages and salaries of the Contractor's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work,
but only for that portion of their time required for the Work.
7.1.1.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining
agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and
pensions, provided such costs are based on wages and salaries included in the
Cost of the Work under Clauses 7.1.1.1 through 7.1.1.3.
7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with the
requirements of the subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.1.3.1 Costs, including transportation, of materials and equipment incorporated
or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in excess
of those actually installed but required to provide reasonable allowance for
waste and for spoilage. Unused excess materials, if any, shall be handed over to
the Owner at the completion of the Work or, at the Owner's option, shall be sold
by the Contractor; amounts realized, if any, from such sales shall be credited
to the Owner as a deduction from the Cost of the Work.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED
ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance, dismantling
and removal of materials, supplies, temporary facilities, machinery, equipment,
and hand tools not customarily owned by the construction workers, which are
provided by the Contractor at the site and fully consumed in the performance of
the Work; and cost less salvage value on such items if not fully consumed,
whether sold to others or retained by the Contractor. Cost for items previously
used by the Contractor shall mean fair market value.
7.1.4.2 Rental charges for temporary facilities, machinery, equipment, and hand
tools not customarily owned by the construction workers, which are provided by
the Contractor at the site, whether rented from the Contractor or others, and
costs of transportation, installation, minor repairs and replacements,
dismantling and removal thereof. Rates and quantities of equipment rented shall
be subject to the Owner's prior approval.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of telegrams and long-distance telephone calls, postage and parcel
delivery charges, telephone service at the site and reasonable petty cash
expenses of the site office.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties connected
with the Work.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #5
<PAGE>
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the Contract
Documents to pay.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of the General Conditions or
other provisions of the Contract Documents and which do not fall within the
scope of Subparagraphs 7.2.2 through 7.2.4 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from such requirement
by the Contract Documents; payments made in accordance with legal judgments
against the Contractor resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of
legal defenses, judgment and settlements shall not be included in the
calculation of the Contractor's Fee or of a Guaranteed Maximum Price, if any,
and provided that such royalties, fees and costs are not excluded by the last
sentence of Subparagraph 3.17.1 of the General Conditions or other provisions of
the Contract Documents.
7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the extent
approved in advance in writing by the Owner.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph 7.1 which
are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case of
an emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
7.2.2 In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such damage or
improper execution did not result from the fault or negligence of the Contractor
or the Contractor's foremen, engineers or superintendents, or other supervisory,
administrative or managerial personnel of the Contractor.
7.2.3 In repairing damaged Work other than that described in Subparagraph 7.2.2,
provided such damage did not result from the fault or negligence of the
Contractor or the Contractor's personnel, and only to the extent that the cost
of such repairs is not recoverable by the Contractor from others and the
Contractor is not compensated therefor by insurance or otherwise.
7.2.4 In correcting defective or nonconforming Work performed or supplied by a
Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault or neglect of the
Contractor or the Contractor's personnel adequately to supervise and direct the
Work of the Subcontractor or material supplier, and only to the extent that the
cost of correcting the defective or nonconforming Work is not recoverable by the
Contractor from the Subcontractor or material supplier.
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel stationed at
the Contractor's principal office or offices other than the site office, except
as specifically provided in Section 5.1 in connection with General Conditions
Costs and Contractor's Overhead.
8.1.2 Expenses of the Contractor's principal office and offices other than the
site office.
8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #6
<PAGE>
8.1.4 The Contractor's capital expenses, including interest on the Contractor's
capital employed for the Work.
8.1.5 Rental costs of machinery and equipment, except as specifically provided
in Clause 7.1.4.2.
8.1.6 Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph 13.5
of this Agreement, costs due to the fault or negligence of the Contractor,
Subcontractors, anyone directly or indirectly employed by any of them, or for
whose acts any of them may be liable, including but not limited to costs for the
correction of damaged, defective or nonconforming Work, disposal and replacement
of materials and equipment incorrectly ordered or supplied, and making good
damage to property not forming part of the Work.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 9
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts obtained on payments made by the Contractor shall accrue to
the Owner if (1) before making the payment, the Contractor included them in an
Application for Payment and received payment therefor from the Owner, or (2) the
Owner has deposited funds with the Contractor with which to make payments;
otherwise, cash discounts shall accrue to the Contractor. Trade discounts,
rebates, refunds and amounts received from sales of surplus materials and
equipment shall accrue to the Owner, and the Contractor shall make provisions so
that they can be secured.
9.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily perform
with the Contractor's own personnel shall be performed under subcontracts or by
other appropriate agreements with the Contractor. The Contractor shall obtain
bids from Subcontractors and from suppliers of materials or equipment fabricated
especially for the Work and shall deliver such bids to the Owner. The Contractor
shall not be required to contract with anyone to whom the Contractor has
reasonable objection.
10.2 If a Guaranteed Maximum Price has been established and a specific bidder
among those whose bids are delivered by the Contractor to the Owner (1) is
recommended to the Owner by the Contractor; (2) is qualified to perform that
portion of the Work; and (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exceptions, but
the Owner requires that another bid be accepted; then the Contractor may require
that a Change Order be issued to adjust the Guaranteed Maximum Price by the
difference between the bid of the person or entity recommended to the Owner by
the Contractor and the amount of the subcontract or other agreement actually
signed with the person or entity designated by the Owner. As provided in
subparagraph 10.1 above, Contractor will provide Owner and Architect with a list
of subcontractors for their review. Should either Owner or Architect have a
reasonable objection to any subcontractor, then the terms of this subparagraph
10.2 will control. However, as this is a Guaranteed Maximum Price Contract, it
will be the right of the Contractor to select subcontractors for the purpose of
insuring Substantial Completion of the work in conformity to this Contract,
subject to the right of approval of such subcontractors by Owner in conformity
to the provisions of this subparagraph 10.2, which approval will not be
unreasonably withheld or delayed.
10.3 Subcontracts or other agreements shall conform to the payment provisions of
Paragraphs 12.7 and 12.8, and shall not be awarded on the basis of cost plus a
fee without the prior consent of the Owner.
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #7
<PAGE>
ARTICLE 11
ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the Owner's accountants shall be afforded access to the
Contractor's records, books, correspondence, instructions, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to
this Contract, and the Contractor shall preserve these for a period of three
years after final payment, or for such longer period as may be required by law.
Contractor agrees to provide Owner monthly, on the date on which Applications
for Payment are due from Contractor (or at such other or further times as may be
required by Owner), a detailed financial accounting for all costs incurred by
Contractor both for the preceding month and to the then-current date, in such
detail and format as is reasonably satisfactory to Owner, and certified to Owner
to be true, accurate and complete in all respects by the chief financial officer
of Contractor. All accounting records of Contractor will be maintained in a
place of convenient inspection by Owner in Tampa, Florida and available for
inspection by Owner at all reasonable times during the term of this Agreement
and for a period of three years after final payment to Contractor.
ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the Owner shall
make progress payments on account of the Contract Sum to the Contractor as
provided below and elsewhere in the Contract Documents.
12.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month, or as follows:
12.3 Provided an Application for Payment is received by the Architect not later
than the first (1st) day of a month, the Owner shall make payment to the
Contractor not later than the fifteenth (15th) day of the same month. If an
Application for Payment is received by the Architect after the application date
fixed above, payment shall be made by the Owner not later than fifteen (15) days
after the Architect receives the Application for Payment.
12.4 Upon request of Owner or Architect in connection with any Application for
Payment, the Contractor shall submit payrolls, petty cash accounts, receipted
invoices or invoices with check vouchers attached, and any other evidence
required by the Owner or Architect to demonstrate that cash disbursements
already made by the Contractor on account of the Cost of the Work equal or
exceed (1) progress payments already received by the Contractor; less (2) that
portion of those payments attributable to the Contractor's Fee; plus (3)
payrolls for the period covered by the present Application for Payment; plus (4)
retainage provided in Subparagraph 12.5.4, if any, applicable to prior progress
payments.
INSERT C: UNLESS OWNER OR ARCHITECT SPECIFICALLY REQUESTS THE DOCUMENTARY
EVIDENCE REQUIRED BY SECTION 12.4 ABOVE, CONTRACTOR WILL SUBMIT ONLY A COMPLETED
APPLICATION FOR PAYMENT, INCLUDING A SCHEDULE OF VALUES APPLICABLE TO THE WORK
COMPLETED THROUGH THE DATE OF THE APPLICATION FOR PAYMENT.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent schedule
of values submitted by the Contractor in accordance with the Contract Documents.
The schedule of values shall allocate the entire Guaranteed Maximum Price among
the various portions of the Work, except that the Contractor's Fee, General
Conditions Costs and Contractor's Insurance shall each be shown as a single
separate item. The schedule of values shall be prepared in such form and
supported by such data to substantiate its accuracy as the Architect may
require. This schedule, unless objected to by the Architect, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #8
<PAGE>
the Work in the schedule of values.
12.5.3 Subject to other provisions of the Contract Documents, the amount of each
progress payment shall be computed as follows:
Insert D: See the Supplemental Conditions to this Contract for additional
provisions relating to retainage.
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly allocable to
completed Work as determined by multiplying the percentage completion of each
portion of the Work by the share of the Guaranteed Maximum Price allocated to
that portion of the Work in the schedule of values, less retainage of ten
percent (10%). Pending final determination of cost to the Owner of changes in
the Work, amounts not in dispute may be included as provided in Subparagraph
7.3.7 of the General Conditions, even though the Guaranteed Maximum Price has
not yet been adjusted by Change Order.
12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing, less retainage of ten
percent (10%).
12.5.3.3 Add the Contractor's Fee, less retainage of ten percent (10%). The
Contractor's Fee shall be computed upon the Cost of the Work described in the
two preceding Clauses at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, shall be an amount
which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the
two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior Applications for
Payment, or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of the General
Conditions.
12.5.4 Additional retainage, if any, shall be as follows:
(IF IT IS INTENDED TO RETAIN ADDITIONAL AMOUNTS FROM PROGRESS PAYMENTS TO THE
CONTRACTOR BEYOND (1) THE RETAINAGE FROM THE CONTRACTOR'S FEE PROVIDED IN CLAUSE
12.5.3.3. (2) THE RETAINAGE FROM SUBCONTRACTORS PROVIDED IN PARAGRAPH 12.7
BELOW, AND (3) THE RETAINAGE, IF ANY, PROVIDED BY OTHER PROVISIONS OF THE
CONTRACT, INSERT PROVISION FOR SUCH ADDITIONAL RETAINAGE HERE. SUCH PROVISION,
IF MADE, SHOULD ALSO DESCRIBE ANY ARRANGEMENT FOR LIMITING OR REDUCING THE
AMOUNT RETAINED AFTER THE WORK REACHES A CERTAIN STATE OF COMPLETION.)
SEE THE SUPPLEMENTAL CONDITIONS TO THIS CONTRACT FOR ADDITIONAL PROVISIONS
RELATING TO RETAINAGE.
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #9
<PAGE>
ARTICLE 13
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1) the
Contract has been fully performed by the Contractor except for the Contractor's
responsibility to correct defective or nonconforming Work, as provided in
Subparagraph 12.2.2 of the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final
Application for Payment and a final accounting for the Cost of the Work have
been submitted by the Contractor and reviewed by the
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #10
<PAGE>
Owner's accountants; and (3) a final Certificate for Payment has then been
issued by the Architect; such final payment shall be made by the Owner not more
than 30 days after the issuance of the Architect's final Certificate for
Payment, and as follows:
(4) full compliance with all requirements of the Florida Construction Lien Law
for the benefit of Owner, including delivery of a final contractor's affidavit,
as well as any requirements of the attached General Conditions (AIA Document
A201) and Contractors Surety.
(5) delivery to Owner of a complete and correct copy of the final invoice from
the subcontractors responsible for the mechanical, electrical and clean room
ceiling and floor portions of the Work.
13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the Guaranteed
Maximum Price, if any.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole or
in part, a final Certificate for Payment as provided in Subparagraph 9.5.1 of
the General Conditions or other provisions of the Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner.
If the aggregate of previous payments made by the Owner exceeds the amount due
the Contractor, the Contractor shall reimburse the difference to the Owner.
13.3 The Owner's accountants will review and report in writing on the
Contractor's final accounting within fifteen (15) days after delivery of the
final accounting to the Architect by the Contractor. Based upon such Cost of the
Work as the Owner's accountants report to be substantiated by the Contractor's
final accounting, and provided the other conditions of Paragraph 13.1 have been
met, the Architect will, within seven days after receipt of the written report
of the Owner's accountants, either issue to the Owner a final Certificate for
Payment with a copy to the Contractor, or notify the Contractor and Owner in
writing of the Architect's reasons for withholding a certificate as provided in
Subparagraph 9.5.1 of the General Conditions. The time periods stated in this
Paragraph 13.3 supersede those stated in Subparagraph 9.4.1 of the General
Conditions.
13.4 If the Owner's accountants report the Cost of the Work as substantiated by
the Contractor's final accounting to be less than claimed by the Contractor,
the Contractor shall be entitled to demand arbitration of the disputed amount
without a further decision of the Architect. Such demand for arbitration shall
be made by the Contractor within 30 days after the Contractor's receipt of a
copy of the Architect's final Certificate for Payment; failure to demand
arbitration within this 30-day period shall result in the substantiated amount
reported by the Owner's accountants becoming binding on the Contractor. Pending
a final resolution by arbitration, the Owner shall pay the Contractor the amount
certified in the Architect's final Certificate for Payment.
13.5 If, subsequent to final payment and at the Owner's request, the Contractor
incurs costs described in Article 7 and not excluded by Article 8 to correct
defective or nonconforming Work, the Owner shall reimburse the Contractor such
costs and the Contractor's Fee applicable thereto on the same basis as if such
costs had been incurred prior to final payment, but not in excess of the
Guaranteed Maximum Price, if any. If the Contractor has participated in savings
as provided in Paragraph 5.2, the amount of such savings shall be recalculated
and appropriate credit given to the Owner in determining the net amount to be
paid by the Owner to the Contractor.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the General
Conditions or another Contract Document, the reference refers to that provision
as amended or supplemented by other provisions of the Contract Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from the
date payment is due at the rate stated below, or in the absence thereof, at the
legal rate prevailing from time to time at the place where the Project is
located.
(INSERT RATE OF INTEREST AGREED UPON, IF ANY.)
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #11
<PAGE>
(USURY LAWS AND REQUIREMENTS UNDER THE FEDERAL TRUTH IN LENDING ACT, SIMILAR
STATE AND LOCAL CONSUMER CREDIT LAWS AND OTHER REGULATIONS AT THE OWNER'S AND
CONTRACTOR'S PRINCIPAL PLACES OF BUSINESS, THE LOCATION OF THE PROJECT AND
ELSEWHERE MAY AFFECT THE VALIDITY OF THIS PROVISION. LEGAL ADVICE SHOULD BE
OBTAINED WITH RESPECT TO DELETIONS OR MODIFICATIONS, AND ALSO REGARDING
REQUIREMENTS SUCH AS WRITTEN DISCLOSURES OR WAIVERS.)
14.3 Other provisions:
(a) Owner and Contractor have discussed and agree that the Project is located
adjacent to the parking area of the existing Phase I building of Owner's
business operation. Because Owner is conducting an ongoing business in the Phase
I building, the general condition of housekeeping, attractiveness and
cleanliness of the parking areas, building grounds and their surrounding
environs are matters of great concern to Owner. Accordingly, in support of
Owner's objectives, Contractor agrees that it will maintain, and require its
Subcontractors, Sub-subcontractors, material and equipment suppliers to
maintain, the highest degree of cleanliness, good order, appearance and neatness
in connection with any activities of Contractor upon or around the buildings and
grounds which are now a part of the Phase I project. Contractor further agrees
that any construction trailer, mobile field office or other structure maintained
by Contractor on the Project site will be of first-class condition, quality and
appearance at all times and will be of at least equal condition, quality and
appearance to the construction trailer maintained by Owner or its affiliate on
the Phase I Property at the time that the Phase I building was constructed
(b) Contractor acknowledges and agrees that Contractor is responsible for the
good and workmanlike construction of all portions of the "clean rooms" which are
a part of the Work, in Accordance with the Contract Documents. If any of the
clean rooms fail to receive clean room and vibration isolation certification by
the test firms or certifying agencies responsible for providing such
certification, then Contractor will be responsible for all costs of correction
of the Work so that the aforesaid certification can be obtained; provided,
however, that Contractor will not be responsible for costs of correction of the
Work to the extent that correction is required because of defects in design or
specifications provided by parties other than Contractor and persons employed,
controlled or directed by Contractor.
ARTICLE 15
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Contractor as provided in Article 14
of the General Conditions; however, the amount to be paid to the Contractor
under Subparagraph 14.1.2 of the General Conditions shall not exceed the amount
the Contractor would be entitled to receive under Paragraph 15.3 below, except
that the Contractor's Fee shall be calculated as if the Work had been fully
completed by the Contractor, including a reasonable estimate of the Cost of the
Work for Work not actually completed.
15.2 If a Guaranteed Maximum Price is established in Article 5, the Contract may
be terminated by the Owner for cause as provided in Article 14 of the General
Conditions; however, the amount, if any, to be paid to the Contractor under
Subparagraph 14.2.4 of the General Conditions shall not cause the Guaranteed
Maximum Price to be exceeded, nor shall it exceed the amount the Contractor
would be entitled to receive under Paragraph 15.3 below.
15.3 If no Guaranteed Maximum Price is established in Article 5, the Contract
may be terminated by the Owner for cause as provided in Article 14 of the
General Conditions; however, the Owner shall then pay the Contractor an amount
calculated as follows:
15.3.1 Take the Cost of the Work incurred by the Contractor to the date of
termination.
15.3.2 Add the Contractor's Fee computed upon the Cost of the Work to the date
of termination at the rate stated in Paragraph 5.1 or, if the Contractor's Fee
is stated as a fixed sum in that Paragraph, an amount which bears the same ratio
to that fixed-sum Fee as the Cost of the Work at the time of termination bears
to a reasonable estimate of the probable Cost of the Work upon its completion.
15.3.3 Subtract the aggregate of previous payments made by the Owner. The Owner
shall also pay the Contractor fair compensation, either by purchase or rental at
the election of the Owner, for any equipment owned by the Contractor which the
Owner elects to retain and which is not otherwise included in the Cost of the
Work under Subparagraph 15.3.1. To the extent that the Owner elects to take
legal assignment of subcontracts and purchase orders (including rental
agreements), the Contractor shall, as a condition of receiving the payments
referred to in this Article 15, execute and deliver all such papers and take all
such steps, including the legal assignment of such subcontracts and other
contractual rights of the Contractor, as the Owner may require for the
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #12
<PAGE>
purpose of fully vesting in the Owner the rights and benefits of the Contractor
under such subcontracts or purchase orders.
15.4 The Work may be suspended by the Owner as provided in Article 14 of the
General Conditions; in such case, the Guaranteed Maximum Price, if any, shall be
increased as provided in Subparagraph 14.3.2 of the General Conditions except
that the term "cost of performance of the Contract" in that Subparagraph shall
be understood to mean the Cost of the Work and the term "profit" shall be
understood to mean the Contractor's Fee as described in Paragraphs 5.1 and 6.3
of this Agreement.
ARTICLE 16
ENUMERATION OF CONTRACT DOCUMENTS
16.1 The Contract Documents, except for Modifications issued after execution of
this Agreement, are enumerated as follows:
16.1.1 The Agreement is this executed Standard Form of Agreement Between Owner
and Contractor, AIA Document A1ll - Electronic Format, 1987 Edition, with
revisions as indicated throughout.
16.1.2 The General Conditions are the General Conditions of the Contract for
Construction, AIA Document A201 - Electronic Format, 1987 Edition, with
revisions as indicated throughout.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated, and are as follows:
DOCUMENT TITLE PAGES
The Supplemental Conditions are attached to this Contract.
16.1.4 The Specifications are those contained in the Project Manual dated as in
Paragraph 16.1.3, and are as follows:
(EITHER LIST THE SPECIFICATIONS HERE OR REFER TO AN EXHIBIT ATTACHED TO THIS
AGREEMENT.)
SECTION TITLE PAGES
None except as provided in Exhibit "B" which is physically attached hereto and
made a part hereof.
16.1.5 The Drawings are as follows, and are dated unless a different date is
shown below:
(EITHER LIST THE DRAWINGS HERE OR REFER TO AN EXHIBIT ATTACHED TO THIS
AGREEMENT.)
NUMBER TITLE DATE
See Exhibit "A," which is physically attached hereto and made a part hereof, for
an enumeration of the Drawings.
16.1.6 The Addenda, if any, are as follows:
NUMBER DATE PAGES
None, but see the Supplemental Conditions and Exhibits "A" through "G"
scheduled below which are physically attached hereto and made a part of this
Contract.
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 16.
16.1.7 Other Documents, if any, forming part of the Contract Documents are as
follows:
(LIST HERE ANY ADDITIONAL DOCUMENTS WHICH ARE INTENDED TO FORM PART OF THE
CONTRACT DOCUMENTS. THE GENERAL CONDITIONS PROVIDE THAT BIDDING REQUIREMENTS
SUCH AS ADVERTISEMENT OR INVITATION TO BID, INSTRUCTIONS TO BIDDERS, SAMPLE
FORMS AND THE CONTRACTOR'S BID ARE NOT PART OF THE CONTRACT DOCUMENTS UNLESS
ENUMERATED IN THIS AGREEMENT. THEY SHOULD BE LISTED HERE ONLY IF INTENDED TO BE
PART OF THE CONTRACT DOCUMENTS.)
Exhibit "A" Contract Drawings, prepared by FPR, dated 1-13-99, as marked and
agreed upon by Owner and Contractor with accompanying data
sheets, upon which the Guaranteed Maximum Price has been based.
Exhibit "B" Project Manual and Technical Specifications, prepared by FPR
dated 7-13-98, as marked up and agreed upon by Owner and
Contractor.
Exhibit "D" Updated proposal of The Perry Company, dated 2-4-99 with
accompanying pricing and schedules
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #13
<PAGE>
Exhibit "E" Schedule of Insurance Requirements
Exhibit "F" Schedule of Bonding Requirements
Exhibit "H" Contractor's Exceptions and Clarifications in letter form, dated
2-2, 1998.
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the Administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
PLASMA-THERM, INC. Insert E: THE PERRY COMPANY
/s/ STACY WAGNER /s/ JERRY N. PERRY
- ------------------------------ ---------------------------------------
(SIGNATURE) (SIGNATURE)
By: Stacy Wagner, as its CFO -President By: Jerry Perry, as its Pres -President
- --------------------------------------- ---------------------------------------
(PRINTED NAME AND TITLE) 2/5/99 (PRINTED NAME AND TITLE) Pres
- --------------------------------------------------------------------------------
AIA DOCUMENT A111 - OWNER-CONTRACTOR AGREEMENT - TENTH EDITION - AIA - COPYRIGHT
1987 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W.,
WASHINGTON D.C. 20006-5292. Unlicensed photocopying violates U.S. copyright laws
and is subject to legal prosecution. This document was electronically produced
with permission of the AIA and can be reproduced without violation until the
date of expiration as noted below.
Electronic Format A111-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #14
<PAGE>
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
ALA DOCUMENT A201 - ELECTRONIC FORMAT
- -------------------------------------------------------------------------------
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AlA DOCUMENT D401.
This document has been approved and endorsed by the Associated General
Contractors of America.
Copyright 1911, 1915, 1918, 1925, 1927, 1951, 1958, 1961, 1963, 1967, 1970,
1976, 1987 by The American Institute of Architects, 1735 New York Avenue N.W.,
Washington D.C. 20006-5292. Reproduction of the material herein or substantial
quotation of its provisions without written permission of the AIA violates the
copyright laws of the United States and will be subject to legal prosecutions.
- --------------------------------------------------------------------------------
TABLE OF ARTICLES
1. GENERAL PROVISIONS 8. TIME
2. OWNER 9. PAYMENTS AND COMPLETION
3. CONTRACTOR 10. PROTECTION OF PERSONS AND
PROPERTY
4. ADMINISTRATION OF THE CONTRACT
11. INSURANCE AND BONDS
5. SUBCONTRACTORS
12. UNCOVERING AND CORRECTION OF
6. CONSTRUCTION BY OWNER OR BY WORK
SEPARATE CONTRACTORS
13. MISCELLANEOUS PROVISIONS
7. CHANGES IN THE WORK
14. TERMINATION OR SUSPENSION OF THE
CONTRACT
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #1
<PAGE>
INDEX
ACCEPTANCE OF NONCONFORMING WORK 9.6.6, 9.9.3, 12.3
Acceptance of Work 9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3
ACCESS TO WORK 3.16, 6.2.1, 12.1
Accident Prevention 4.2.3, 10
Acts and Omissions 3.2.1, 3.2.2, 3.3.2, 3.12.8, 3.18, 4.2.3,
4.3.2, 4.3.9, 8.3.1, 10.1.4, 10.2.5, 13.4.2, 13.7, 14.1
Addenda 1.1.1, 3.11
Additional Costs, Claims for 4.3.6, 4.3.7, 4.3.9, 6.1.1, 10.3
Additional Inspections and Testing 4.2.6, 9.8.2, 12.2.1, 13.5
Additional Time, Claims for 4.3.6, 4.3.8, 4.3.9, 8.3.2
ADMINISTRATION OF THE CONTRACT 3.3.3, 4, 9.4, 9.5
Advertisement or Invitation to Bid 1.1.1
Aesthetic Effect 4.2.13, 4.5.1
ALLOWANCES 3.8
All-risk Insurance 11.3.1.1
APPLICATIONS FOR PAYMENT 4.2.5, 7.3.7, 9.2, 9.3, 9.4, 9.5.1,
9.6.3, 9.8.3, 9.10.1, 9.10.3, 9.10.4, 11.1.3, 14.2.4
Approvals 2.4, 3.3.3, 3.5, 3.10.2, 3.12.4 through 3.12.8,
3.18.3, 4.2.7, 9.3.2, 11.3.1.4, 13.4.2, 13.5
ARBITRATION 4.1.4, 4.3.2, 4.3.4, 4.4.4, 4.5, 8.3.1,
10.1.2, 11.3.9, 11.3.10
ARCHITECT 4.1
Architect, Definition of 4.1.1
Architect, Extent of Authority 2.4, 3.12.6, 4.2, 4.3.2, 4.3.6, 4.4,
5.2, 6.3, 7.1.2, 7.2.1, 7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5,
9.6.3, 9.8.2, 9.8.3, 9.10.1, 9.10.3, 12.1,
12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4
Architect, Limitations of Authority and Responsibility 3.3.3,
3.12.8, 3.12.11, 4.1.2, 4.2.1,4 .2.2, 4.2.3, 4.2.6,
4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.3.2, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6
Architect's Additional Services and Expenses 2.4, 9.8.2, 11.3.1.1,
12.2.1, 12.2.4, 13.5.2, 13.5.3, 14.2.4
ARCHITECT'S ADMINISTRATION OF THE CONTRACT 4.2, 4.3.6,
4.3.7, 4.4, 9.4, 9.5
Architect's Approvals 2.4, 3.5.1, 3.10.2, 3.12.6,
3.12.8, 3.18.3, 4.2.7
Architect's Authority to Reject Work 3.5.1, 4.2.6, 12.1.2, 12.2.1
Architect's Copyright 1.3
Architect's Decisions 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13. 4.3.2,
4.3.6, 4.4.1, 4.4.4, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2,
9.4, 9.5.1, 9.8.2, 9.9.1, 10.1.2, 13.5.2, 14.2.2, 14.2.4
Architect's Inspections 4.2.2, 4.2.9, 4.3.6, 9.4.2, 9.8.2,
9.9.2, 9.10.1, 13.5
Architect's Instructions 4.2.6, 4.2.7, 4.2.8, 4.3.7,
7.4.1, 12.1, 13.5.2
Architect's Interpretations 4.2.11, 4.2.12, 4.3.7
Architect's On-Site Observations 4.2.2, 4.2.5, 4.3.6, 9.4.2,
9.5.1, 9.10.1, 13.5
Architect's Project Representative 4.2.10
Architect's Relationship with Contractor 1.1.2, 3.2.1, 3.2.2,
3.3.3, 3.5.1, 3.7.3, 3.11, 3.12.8, 3.12.11, 3.16, 3.18, 4.2.3,
4.2.4, 4.2.6, 4.2.12, 5.2, 6.2.2, 7.3.4,
9.8.2, 11.3.7, 12.1, 13.5
Architect's Relationship with Subcontractors 1.1.2, 4.2.3, 4.2.4,
4.2.6, 9.6.3, 9.6.4, 11.3.7
Architect's Representations 9.4.2, 9.5.1, 9.10.1,
Architect's Site Visits 4.2.2, 4.2.5, 4.2.9, 4.3.6, 9.4.2,
9.5.1, 9.8.2, 9.9.2, 9.10.1, 13.5
Asbestos 10.1
Attorneys' Fees 3.18.1, 9.10.2, 10.1.4
Award of Separate Contracts 6.1.1
AWARD OF SUBCONTRACTS AND OTHER CONTRACTS
FOR PORTIONS OF THE WORK 5.2
BASIC DEFINITIONS 1.1
Bidding Requirements 1.1.1, 1.1.7, 5.2.1, 11.4.1
BOILER AND MACHINERY INSURANCE 11.3.2
Bonds, Lien 9.10.2
Bonds, Performance and Payment 7.3.6.4, 9.10.3, 11.3.9, 11.4
Building Permit 3.7.1
CAPITALIZATION. 1.4
Certificate of Substantial Completion 9.8.2
Certificates for Payment 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1,
9.6.6, 9.7.1, 9.8.3, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Certificates of Inspection, Testing or Approval 3.12.11, 13.5.4
Certificates of Insurance 9.3.2, 9.10.2, 11.1.3
CHANGE ORDERS 1.1.1, 2.4.1, 3.8.2.4, 3.11, 4.2.8, 4.3.3, 5.2.3,
7.1, 7.2, 7.3.2, 8.3.1, 9.3.l.l, 9.10.3, 11.3.1.2,
11.3.4, 11.3.9, 12.1.2
Change Orders, Definition of 7.2.1
CHANGES 7.1
CHANGES IN THE WORK 3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 10.1.3
Claim, DEFINITION of 4.3.1
CLAIMS AND DISPUTES 4.3, 4.4, 4.5, 6.2.5, 8.3.2, 9.3.1.2,
9.3.3, 9.10.4, 10.1.4
CLAIMS AND TIMELY ASSERTION OF CLAIMS 4.5.6
CLAIMS FOR ADDITIONAL COST 4.3.6, 4.3.7, 4.3.9, 6.1.1, 10.3
CLAIMS FOR ADDITIONAL TIME 4.3.6, 4.3.8, 4.3.9, 8.3.2
CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS 4.3.6
Claims for Damages 3.18, 4.3.9, 6.1.1, 6.2.5, 8.3.2,
9.5.1.2, 10.1.4
Claims Subject to Arbitration 4.3.2, 4.4,4, 4.5.1
CLEANING UP 3.15, 6.3
COMMENCEMENT OF STATUTORY LIMITATION PERIOD 13.7
Commencement of the Work, Conditions Relating to 2.1.2, 2.2.1,
3.2.1, 3.2.2, 3.7.1, 3.10.1, 3.12.6, 4.3.7, 5.2.1, 6.2.2,
8.1.2, 8.2.2, 9.2, 11.1.3, 11.3.6, 11.4.1
Commencement of the Work, Definition of 8.1.2
Communications Facilitating Contract
Administration 3.9.1, 4.2.4, 5.2.1
Completion, Conditions Relating to 3.11, 3.15, 4.2.2, 4.2.9,
4.3.2, 9.4.2, 9.8, 9.9.1, 9.10, 11.3.5, 12.2.2, 13.7.1
COMPLETION, PAYMENTS AND 9
Completion, Substantial 4.2.9, 4.3.5.2, 8.1.1, 8.1.3, 8.2.3, 9,8,
9.9.1, 12.2.2, 13.7
Compliance with Laws l.3, 3.6, 3.7, 3.13, 4.1.1, 10.2.2,
11.1, 11.3, 13.1, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3
Concealed or Unknown Conditions 4.3.6
Conditions of the Contract 1.1.1, 1.1.7, 6.1.1
Consent, Written l.3.1, 3.12.8, 3.14.2, 4.1.2, 4.3.4. 4.5.5, 9.3.2,
9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.1.2, 10.1.3, 11.3.1,
11.3.1.4, 11.3.11, 13.2, 13.4.2
CONSTRUCTION BY OWNER OR BY
SEPARATE CONTRACTORS 1.1.4, 6
Construction Change Directive, Definition of 7.3.1
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #2
<PAGE>
Construction Change Directives 1.1.1, 4.2.8, 7.1, 7.3, 9.3.1.1
Construction Schedules, Contractor's 3.10, 6.1.3
CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.4
Continuing Contract Performance 4.3.4
Contract, Definition of 1.1.2
CONTRACT, TERMINATION OR SUSPENSION
OF THE 4.3.7, 5.4.1.1, 14
Contract Administration 3.3.3, 4, 9.4, 9.5
Contract Award and Execution, Conditions Relating to 3.7.1,
3.10, 5.2, 9.2, 11.1.3, 11.3.6, 11.4.1
CONTRACT DOCUMENTS, THE 1.1, 1.2, 7
Contract Documents, Copies Furnished and Use of 1.3, 2.2.5, 5.3
Contract Documents, Definition of 1.1.1
Contract Performance During Arbitration 4.3.4, 4.5.3
CONTRACT SUM 3.8, 4.3.6, 4.3.7, 4.4.4, 5.2.3, 6.1.3,
7.2, 7.3, 9.1, 9.7, 11.3.1, 12.2.4, 12.3, 14.2.4
CONTRACT SUM, Definition of 9.1
Contract Time 4.3.6, 4.3.8, 4.4.4, 7.2.1.3, 7.3, 8.2.1,
8.3.1, 9.7, 12.1.1
Contract Time, DEFINITION of 8.1.1
CONTRACTOR 3
Contractor, Definition of 3.1, 6.1.2
Contractor's Bid 1.1.1
CONTRACTOR'S CONSTRUCTION SCHEDULES 3.10, 6.1.3
Contractor's Employees 3.3.2, 3.4.2, 3.8.1, 3.9, 3.18, 4.2.3,
4.2.6, 8.1.2, 10.2, 10.3, 11.1.1, 14.2.1.1
CONTRACTOR'S LIABILITY INSURANCE 11.1
Contractor's Relationship with Separate Contractors
and Owner's Forces 2.2.6, 3.12.5, 3.14.2, 4.2.4, 6, 12.2.5
Contractor's Relationship with Subcontractors 1.2.4, 3.3.2,
3.18.1, 3.18.2, 5.2, 5.3, 5.4, 9.6.2, 11.3.7, 11.3.8, 14.2.1.2
Contractor's Relationship with the Architect 1.1.2, 3.2.1, 3.2.2,
3.3.3, 3.5.1, 3.7.3, 3.11, 3.12.8, 3.16, 3.18, 4.2.3, 4.2.4, 4.2.6,
4.2.12, 5.2, 6.2.2, 7.3.4, 9.8.2, 11.3.7, 12.1, 13.5
Contractor's Representations 1.2.2, 3.5.1, 3.12.7, 6.2.2,
8.2.1, 9.3.3
Contractor's Responsibility for Those Performing the Work 3.3.2,
3.18, 4.2.3, 10
Contractor's Review of Contract Documents 1.2.2, 3.2, 3.7.3
Contractor's Right to Stop the Work 9.7
Contractor's Right to Terminate the Contract 14.1
Contractor's Submittals 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3,
7.3.6, 9.2, 9.3.1, 9.8.2, 9.9.1, 9.10.2, 9.10.3,
10.1.2, 11.4.2, 11.4.3
Contractor's Superintendent 3.9, 10.2.6
Contractor's Supervision and Construction Procedures 1.2.4, 3.3,
3.4, 4.2.3, 8.2.2, 8.2.3, 10
Contractual Liability Insurance 11.1.1.7, 11.2.1
Coordination and Correlation 1.2.2, 1.2.4, 3.3.1, 3.10, 3.12.7,
6.1.3, 6.2.1
Copies Finished of Drawings and Specifications 1.3, 2.2.5, 3.11
Correction of Work 2.3, 2.4, 4.2.1, 9.8.2, 9.9.1,
12.1.2, 12.2, 13.7.1.3
Cost, Definition of 7.3.6, 14.3.5
Costs 2.4, 3.2.1, 3.7.4, 3.8.2, 3.15.2., 4.3.6, 4.3.7, 4.3.8.1,
5.2.3, 6.1.1, 6.2.3, 6.3, 7.3.3.3, 7.3.6, 7.3.7, 9.7, 9.8.2, 9.10.2,
11.3.1.2, 11.3.1.3, 11.3.4, 11.3.9, 12.1, 12.2.1, 12.2.4,
12.2.5, 13.5, 14
CUTTING AND PATCHING 3.14, 6.2.6
Damage to Construction of owner or Separate Contractors 3.14.2,
6.2.4, 9.5.1.5, 10.2.1.2, 10.2.5, 10.3, 11,1. 11.3, 12.2.5
Damage to the Work 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.3, 11.3
Damages, Claims for 3.18, 4.3.9, 6.1.1, 6.2.5.
8.3.2, 9.5.1.2, 10.1.4
Damages for Delay 6.1.1, 8.3.3, 9.5.1.6, 9.7
Date of Commencement of the Work, Definition of 8.1.2
Date of Substantial Completion, Definition of 8.1.3
Day, Definition of 8.1.4
Decisions of the Architect 4.2.6, 4.2.7, 4.2.11,
4.2.12, 4.2.13, 4.3.2, 4.3.6, 4.4.1, 4.4.4, 4.5, 6.3,
7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.2,
9.9.1, 10.1.2, 13.5.2, 14.2.2, 14.2.4
DECISIONS TO WITHHOLD CERTIFICATION 9.5, 9.7, 14.1.1.3
Defective or Nonconforming Work, Acceptance,
Rejection and Correction of 2.3, 2.4, 3.5.1, 4.2.1,
4.2.6, 4.3.5, 9.5.2, 9.8.2, 9.9.1, 10.2.5, 12, 13.7.1.3
Defective Work, Definition of 3.5.1
Definitions l.l, 2.1.1, 3.1, 3.5.l, 3.12.l, 3.12.2, 3.12.3,
4.1.1, 4.3.l, 5.l, 6.1.2, 7.2.1, 7.3.l, 7.3.6, 8.1, 9.1, 9.8.1
DELAYS AND EXTENSIONS OF TIME 4.3.1, 4.3.8.1, 4.3.8.2,
6.1.1, 6.2.3, 7.2.1, 7.3.1, 7.3.4, 7.3.5, 7.3.8,
7.3.9, 8.1.1, 8.3, 10.3.1, 14.1.1.4
Disputes 4.1.4, 4.3, 4.4, 4.5, 6.2.5, 6.3, 7.3.8, 9.3.1.2
Documents and Samples at the Site 3.11
Drawings, Definition of 1.1.5
Drawings and Specifications, Use and Ownership of 1.1.1, 1.3,
2.2.5, 3.11, 5.3
Duty to Review Contract Documents and Field Conditions 3.2
Effective Date of Insurance 8.2.2, 11.1.2
Emergencies 4.3.7, 10.3
Employees, Contractor's 3.3.2., 3.4.2, 3.8.1, 3.9, 3.18.1,
3.18.2, 4.2.3, 4.2.6, 8.1.2, 10.2, 10.3, 11.1.1, 14.2.1.1
Equipment, Labor, Materials and 1.1.3, 1.1.6, 3.4, 3.5.1,
3.8.2, 3.12.3, 3.12.7, 3.12.11, 3.13, 3.15.1, 4.2.7,
6.2.1, 7.3.6, 9.3.2, 9.3.3, 11.3, 12.2.4, 14
Execution and Progress of the Work 1.1.3, 1.2.3, 3.2, 3.4.1,
3.5.1, 4.2.2, 4.2.3, 4.3.4, 4.3.8, 6.2.2, 7.1.3,
7.3.9, 8.2, 8.3, 9.5, 9.9.1, 10.2, 14.2, 14.3
EXECUTION, CORRELATION AND INTENT of the
Contract Documents 1.2, 3.7.1
Extensions of Time 4.3.1, 4.3.8, 7.2.1.3, 8.3, 10.3.1
Failure of Payment by Contractor 9.5.1.3, 14.2.1.2
Failure of Payment by Owner 4.3.7, 9.7, 14.1.3
Faulty Work (See Defective or Nonconforming Work)
FINAL COMPLETION AND FINAL PAYMENT 4.2.1, 4.2.9, 4.3.2,
4.3.5, 9.10, 11.1.2, 11.1.3, 11.3.5, 12.3.1, 13.7
Financial Arrangements, Owner's 2.2.1
Fire and Extended Coverage Insurance 11.3
GENERAL PROVISIONS 1
Governing Law 1.3.1
Guarantees (See Warranty and Warranties)
Hazardous Materials 10.1, 10.2.4
Identification of Contract Documents 1.2.1
Identification of Subcontractors and Suppliers 5.2.1
Indemnification 3.17, 3.18, 9.10.2, 10.1.4, 11.3.1.2, 11.3.7
Information and Services Required of the Owner 2.1.2, 2.2,
4.3.4, 6.1.3, 6.1.4, 6.2.6, 9.3.2, 9.6.1, 9.6.4, 9.8.3, 9.9.2,
9.10.3, 10.1.4, 11.2, 11.3, 13.5.1, 13.5.2
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #3
<PAGE>
INJURY OR DAMAGE TO PERSON OR PROPERTY 4.3.9
Inspections 3.3.3, 3.3.4, 3.7.1, 4.2.2,
4.2.6, 4.2.9, 4.3.6, 9.4.2, 9.8.2, 9.9.2, 9.10.1, 13.5
Instructions to Bidders 1.1.1
Instructions to the Contractor 3.8.1, 4.2.8, 5.2.1, 7, 12.1, 13.5.2
Insurance 4.3.9, 6.1.1, 7.3.6.4, 9.3.2, 9.8.2, 9.9.1, 9.10.2, 11
INSURANCE, BOILER AND MACHINERY 11.3.2
INSURANCE, CONTRACTOR'S LIABILITY 11.1
Insurance, Effective Date of 8.2.2, 11.1.2
Insurance, Loss of Use 11.3.3
Insurance, Owner's Liability 11.2
Insurance, Property 10.2.5, 11.3
Insurance, Stored Materials 9.3.2, 11.3.1.4
INSURANCE AND BONDS 11
Insurance Companies, Consent to Partial
Occupancy 9.9.1, 11.3.11
Insurance Companies, Settlement with 11.3.10
Intent of the Contract Documents 1.2.3, 3.12.4,
4.2.6, 4.2.7, 4.2.12, 4.2.13, 7.4
INTEREST 13.6
Interpretation 1.2.5, 1.4, 1.5, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4
Interpretations, Written 4.2.11, 4.2.12, 4.3.7
Joinder and Consolidation of Claims Required 4.5.6
JUDGMENT ON FINAL AWARD 4.5.1, 4.5.4.1, 4.5.7
LABOR AND MATERIALS, EQUIPMENT 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2,
3.12.2, 3.12.3, 3.12.7, 3.12,11, 3.13, 3.15.1,
4.2.7, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 12.2.4, 14
Labor Disputes 8.3.1
Laws and Regulations 1.3, 3.6, 3.7, 3.13, 4.1.1, 4.5.5
4.5.7, 9.9.1, 10.2.2, 11.1, 11.3, 13.1, 13.4, 13.5.1, 13.5.2, 13.6
Liens 2.1.2, 4.3.2, 4.3.5.1, 8.2.2, 9.3.3, 9.10.2
LIMITATION ON CONSOLIDATION OR JOINDER 4.5.5
Limitations, Statutes of 4.5.4.2, 12.2.6, 13.7
Limitations of Authority 3.3.1, 4.1.2, 4.2.1,
4.2.3, 4.2.7, 4.2.10, 5.2.2, 5.2.4, 7.4, 11.3.10
Limitations of Liability 2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.11,
3.17, 3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.10.4,
10.1.4, 10.2.5, 11.1.2, 11.2.1, 11.3.7, 13.4.2, 13.5.2
Limitations of Time, General 2.2.1, 2.2.4, 3.2.1, 3.7.3, 3.8.2,
3.10, 3.12.5, 3.15.1, 4.2.1, 4.2.7, 4.2.11, 4.3.2,
4.3.3, 4.3.4, 4.3.6, 4.3.9, 4.5.4.2, 5.2.1, 5.2.3, 6.2.4, 7.3.4, 7.4,
8.2, 9.5, 9.6.2, 9.8, 9.9, 9.10, 11.1.3, 11.3.1, 11.3.2, 11.3.5,
11.3.6, 12.2.1, 12.2.2, 13.5, 13.7
Limitations of Time, Specific 2.1.2, 2.2.1, 2.4, 3.10, 3.11,
3.15.1, 4.2.1, 4.2.11, 4.3, 4.4, 4.5, 5.3, 5.4, 7.3.5, 7.3.9,
8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.6.1, 9.7, 9.8.2, 9.10.2, 11.1.3,
11.3.6, 11.3.10, 11.3.11, 12.2.2, 12.2.4, 12.2.6, 13.7, 14
LOSS OF USE INSURANCE 11.3.3
Material Suppliers 1.3.1, 3.12.1, 4.2.4, 4.2.6, 5.2.1,
9.3.1, 9.3.1.2, 9.3.3, 9.4.2, 9.6.5, 9.10.4
Materials, Hazardous 10.1, 10.2.4
Materials, Labor, Equipment and 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2,
3.12.2, 3.12.3, 3.12.7, 3.12.11, 3.13, 3.15.1, 4.2.7, 6.2.1,
7.3.6, 9.3.2, 9.3.3, 12.2.4, 14
Means, Methods, Techniques, Sequences and
Procedures of Construction 3.3.1, 4.2.3, 4.2.7, 9.4.2
MINOR CHANGES IN THE WORK 1.1.1, 4.2.8, 4.3.7, 7.1, 7.4
MISCELLANEOUS PROVISIONS 13
Modifications, Definition of 1.1.1
Modifications to the Contract 1, 1.1, 1.1.2, 3.7.3, 3.11,
4.2.1, 5.2.3, 7, 8.3.1, 9.7
Mutual Responsibility 6.2
NONCONFORMING WORK, ACCEPTANCE OF 12.3
NONCONFORMING WORK, REJECTION AND CORRECTION OF 2.3.1,
4.3.5, 9.5.2, 9.8.2, 12, 13.7.1.3
Notice 2.3, 2.4, 3.2.1, 3.2.2, 3.7.3, 3.7.4, 3.9, 3.12.8,
3,12.9, 3.17, 4.3, 4.4.4, 4.5, 5.2.1, 5.3, 5.4.1.1, 8.2.2, 9.4.1,
9.5.1, 9.6.1, 9.7, 9.10, 10.1.2, 10.2.6, 11.1.3, 11.3, 12.2.2,
12.2.4, 13.3, 13.5.1, 13.5.2. 14,
NOTICE, WRITTEN 2.3, 2.4, 3.9, 3.12.8, 3.12.9, 4.3,
4.4.4, 4.5, 5.2.1, 5.3, 5.4.1.1, 8.2.2, 9.4.1, 9.5.1, 9.7, 9.10.
10.1.2, 10.2.6, 11.1.3, 11.3, 12.2.2, 12.2.4, 13.3, 13.5.2. 14
Notice of Testing and Inspections 13.5.1, 13.5.2
Notice to Proceed 8.2.2
NOTICES, PERMITS, FEES AND 2.2.3, 3.7, 3.13, 7.3.6.4, 10.2.2
Observations, Architect's On-Site 4.2.2, 4.2.5,
4.3.6, 9.4.2, 9.5.1, 9.10.1, 13.5
Observations, Contractor's 1.2.2, 3.2.2
Occupancy 9.6.6, 9.8.1, 9.9, 11.3.11
On-Site Inspections by the Architect 4.2.2, 4.2 9, 4 3 6,
9.4.2, 9.8.2, 9,9.2, 9.10 1
On-Site Observations by the Architect 4.2.2, 4.2.5, 4.3.6,
9.4.2, 9.5.1, 9.10.1, 13.5
Orders, Written 2.3, 3.9, 4.3.7, 7, 8.2.2, 11.3.9, 12.1,
12.2, 13.5.2. 14.3.1
OWNER 2
Owner, DEFINITION of 2.1
OWNER, INFORMATION AND SERVICES REQUIRED OF THE 2.1.2,
2.2, 4.3.4, 6, 9, 10.1.4, 11.2, 11.3, 13.5.1, 14.1.1.5, 14.1.3
Owner's Authority 3.8.1, 4.1.3, 4.2.9, 5.2.1, 5.2.4, 5.4.1,
7.3.1, 8.2.2, 9.3.1, 9.3.2, 11.4.1, 12.2.4, 13.5.2, 14.2, 14.3.1
Owner's Financial Capability 2.2.1, 14.1.1.5
OWNER'S LIABILITY INSURANCE 11.2
Owner's Loss of Use Insurance 11.3.3
Owner's Relationship with Subcontractors 1.1.2, 5.2.1, 5.4.1. 9.6.4
Owner's Right to Carry Out the Work 2.4, 12.2.4, 14.2.2.2
OWNER'S RIGHT TO CLEAN UP 6.3
OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1
OWNER'S RIGHT TO STOP THE WORK 2.3, 4.3.7
Owner's Right to Suspend the Work 14.3
Owner's Right to Terminate the Contract 14.2
OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER
DOCUMENTS 1.1.1, 1.3, 2.2.5, 5.3
Partial Occupancy or Use 9.6.6, 9.9, 11.3.11
PATCHING, CUTTING AND 3.14, 6.2.6
PATENTS, ROYALTIES AND 3.17
PAYMENT, APPLICATIONS FOR 4.2.5, 9.2, 9.3, 9.4,
9.5.1, 9.8.3, 9.10.1, 9.10.3, 9.10.4, 14.2.4
PAYMENT, CERTIFICATES FOR 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5,
9.6.1, 9.6.6, 9.7.1, 9.8.3, 9.10.1, 9.10.3, l3.7, 14.1.1.3, 14.2.4
PAYMENT, FAILURE OF 4.3.7, 9.5.1.3, 9.7,
9.10.2, 14.1.3, 14.2.1.2
Payment, Final 14.2.1, 4.2.9, 4.3.2, 4.3.5, 9.10, 11.1.2
11.1.3, 11.3.5, 12.3.1
PAYMENT POND, PERFORMANCE BOND AND 7.3.6.4, 9.10.3,
11.3.9, 11.4
Payments, Progress 4.3.4, 9.3, 9.6, 9.8.3, 9.10.3, 13.6, 14.2.3
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #4
<PAGE>
PAYMENTS AND COMPLETION 9 14
Payments to Subcontractors 5.4.2, 9.5.1.3,
9.6.2, 9.6.3, 9.6.4, 11.3.8, 14.2.1.2
PCB 10.1
Performance Bond and Payment Bond 7.3.6.4,
9.10.3, 11.3.9, 11.4
PERMITS, FEES AND NOTICES 2.2.3, 3.7. 3.13, 7.3.6.4, 10.2.2
PERSONS AND PROPERTY, PROTECTION OF 10
Polychlorinated Bipheny 10.1
Product Data, Definition of 3.12.2
PRODUCT DATA AND SAMPLES, SHOP DRAWINGS .11, 3.12, 4.2.7
PROGRESS AND COMPLETION 4.2.2, 4.3.4, 8.2
PROGRESS PAYMENTS 4.3.4, 9.3,
9.6, 9.8.3, 9.10.3, 13.6, 14.2.3
PROJECT, Definition of the 1.1.4
PROJECT MANUAL, Definition of the 1.1.7
Project Manuals 2.2.5
Project Representatives 4.2.10
PROPERTY INSURANCE 10.2.5, 11.3
PROTECTION OF PERSONS AND PROPERTY 10
Regulations and Laws 1.3, 3.6, 3.7, 3.13, 4.1.1, 4.5.5
4.5.7, 10.2.2, 11.1, 11.3, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14
Rejection of Work 3.5.1, 4.2.6, 12.2
Releases of Waivers and Liens 9.10.2
Representations 1.2.2, 3.5.1, 3.12.7, 6.2.2, 8.2.1, 9.3.3,
9.4.2, 9.5.1, 9.8.2, 9.10.1
Representatives 2.1.1, 3.1.1, 3.9, 4.1.1,
4.2.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1
RESOLUTION OF CLAIMS AND DISPUTES 4.4, 4.5
Responsibility for Those Performing the
Work 3.3.2, 4.2.3, 6.1.3, 6.2, 10
Retainage 9.3.1, 9.6.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3
REVIEW OF CONTRACT DOCUMENTS AND FIELD
CONDITIONS BY CONTRACTOR 1.2.2, 3.2, 3.7.3, 3.12.7
Review of Contractor's Submittals by Owner and Architect 3.10.1,
3.3.10.2, 3.11, 3.12,
4.2.7, 4.2.9, 5.2.1, 5.2.3, 9.2, 9.8.2
Review of Shop Drawings, Product Data and Samples
by Contractor 3.12.5
RIGHTS AND REMEDIES 1.1.2, 2.3, 2.4, 3.5.1, 3.15.2,
4.2.6, 4.3.6, 4.5, 5.3, 6.1, 6.3, 7.3.1, 8.3.1, 9.5.1, 9.7, 10.2.5,
10.3, 12.2.2, 12.2.4, 13.4, 14
ROYALTIES AND PATENTS 3.17
RULES AND NOTICES FOR ARBITRATION 4.5.2
SAFETY OF PERSONS AND PROPERTY 10.2
SAFETY PRECAUTIONS AND PROGRAMS 4.2.3, 4.2.7, 10.1
Samples, Definition of 3.12.3
SAMPLES, SHOP DRAWINGS, PRODUCT DATA AND 3.11,3.12,4.2.7
SAMPLES AT THE SITE, DOCUMENTS AND 3.11
SCHEDULE OF VALUES 9.2, 9.3.1
Schedules, Construction 3.10
Separate Contracts and Contractors 1.1.4, 3.14.2, 4.2.4,
4.5.5, 6, 11.3.7, 12.1.2, 12.2.5
Shop Drawings, Definition of 3.12.1
SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.11, 3.12, 4.2.7
SITE, USE OF 3.13, 6.1.1, 6.2.1
Site Inspections 1.2.2, 3.3.4, 4.2.2, 4.2.9,
4.3,6, 9.8.2, 9.10.1, 13.5
Site Visits, Architect's 4.2.2, 4.2.5, 4.2.9, 4.3.6,
9.4.2, 9.5.1, 9.8.2, 9.9.2, 9.10.1, 13.5
Special Inspections and Testing 4.2.6, 12.2.1, 13.5
SPECIFICATIONS, Definition of the 1.1.6
SPECIFICATIONS, THE 1.1.1, 1.1.6, 1.1.7, 1.2.4, 1.3, 3.11
Statute of Limitations 4.5.4.2, 12.2.6, 13.7
Stopping the Work 2.3, 4.3.7, 9.7, 10.1.2, 10.3, 14.1
Stored Materials 6.2.1, 9.3.2, 10.2.1.2, 11.3.1.4, 12.2.4
Subcontractor, Definition of 5.1.1
SUBCONTRACTORS 5
Subcontractors, Work by 1.2.4, 3.3.2, 3.12.1, 4.2.3, 5.3, 5.4
Subcontractual Relations 5.3, 5.4, 9.3.1.2, 9.6.2,
9.6.3, 9.6.4, 10.2.1, l1.3.7, 11.3.8, 14.1.1, 14.2.1.2, 14.3.2
Submittals 1.3, 3.2.3, 3.l0, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3,
7.3.6, 9.2, 9.3.1, 9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.1.2, 11.1.3
SUBROGATION, WAIVERS OF 6.1.1, 11.3.5, 11.3.7
SUBSTANTIAL COMPLETION 4.2.9, 4.3.5.2, 8.1.1, 8.1.3,
8.2.3, 9.8, 9.9.1, 12.2.1, 12.2.2, 13.7
Substantial Completion, Definition of 9.8.1
Substitution of Subcontractors 5.2.3, 5.2.4
Substitution of the Architect 4.1.3
Substitutions of Materials 3.5.1
Sub-subcontractor, Definition of 5.1.2
Subsurface Conditions 4.3.6
SUCCESSORS AND ASSIGNS 13.2
SUPERINTENDENT 3.9, 10.2.6
SUPERVISION AND CONSTRUCTION PROCEDURES 1.2.4, 3.3, 3.4,
4.2.3, 4.3.4, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 8.2, 8.3.1, 10, 12, 14
Surety 4.4.1, 4.4.4, 5.4.1.2, 9.10.2, 9.10.3, 14.2.2
Surety, Consent of 9.9.1, 9.10.2, 9.10.3
Surveys 2.2.2, 3.18.3
SUSPENSION BY THE OWNER FOR CONVENIENCE 14.3
Suspension of the Work 4.3.7, 5.4.2, 14.1.1.4, 14.3
Suspension or Termination of the Contract 4.3.7, 5.4.1, 1, 14
TAXES 3.6, 7.3.6.4
TERMINATION BY THE CONTRACTOR 14.1
TERMINATION BY THE OWNER FOR CAUSE 5.4.1.1, 14.2
Termination of the Architect 4.1.3
Termination of the Contractor 14.2.2
TERMINATION OR SUSPENSiON OF THE CONTRACT 14
TESTS AND INSPECTIONS 3.3.3, 4.2.6, 4.2.9, 9.4.2, 12.2.1, 13.5
TIME 8
Time, Delays and Extensions of 4.3.8, 7.2.1, 8.3
Time Limits, Specific 2.1.2, 2.2.1, 2.4, 3.10, 3.11, 3.15.1,
4.2.1, 4.2.11, 4.3, 4.4, 4.5, 5.3, 5.4, 7.3.5, 7.3.9, 8.2, 9.2, 9.3.1,
9.3.3, 9.4.1, 9.6.1, 9.7, 9.8.2, 9.10.2, 11.1.3, 11,3.6, 11.3.10,
11.3.11, 12.2.2, 12.2.4, 12.2.6, 13.7, 14
TIME LIMITS ON CLAIMS 4.3.2, 4.3.3, 4.3.6, 4.3.9, 4.4, 4.5
Title to Work 9.3.2, 9.3.3
UNCOVERING AND CORRiECT1ON OF WORK 12
Uncovering of Work 12.1
Unforeseen Conditions 4.3.6, 8.3.1, 10.1
Unit Prices 7.1.4, 7.3.3.2
Use of Documents 1.1.1, 1.3, 2.2.5, 3.12.7, 5.3
USE OF SITE 3.13, 6.1.1, 6.2.1
VALUES, SCHEDULE OF 9.2, 9.3.1
WAIVER OF CLAIMS: FINAL PAYMENT 4.3.5, 4.5.1, 9.10.3
Waiver of Claims by the Architect 13.4.2
Waiver of Claims by the Contractor 9.10.4, 11.3.7, 13.4.2
Waiver of Claims by the Owner 4.3.5, 4.5.1, 9.9.3,
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #5
<PAGE>
9.10.3, 11.3.3, 1.1.3.5, 11.3.7, 13.4.2
Waiver of Liens 9.10.2
Waivers of Subrogation 6.1.1, 11.3.5, 11.3.7
WARRANTY AND WARRANTIES 3.5, 4.2.9,
4.3.5.3, 9.3.3, 9.8.2, 9.9.1, 12.2.2, 13.7.1.3
Weather Delays 4.3.8.2
WHEN ARBITRATION MAY BE DEMANDED 4.5.4
Work, Definition of 1.1.3
Written Consent 1.3.1, 3.12.8, 3.14.2, 4.1.2, 4.3.4,
4.5.5, 9.3.2, 9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.1.2, 10.1.3
11.3.1, 11.3.1.4, 11.3.11, 13.2, 13.4.2
Written Interpretations 4.2.11, 4.2.12, 4.3.7
WRITTEN NOTICE 2.3, 2.4, 3.9, 3.12.8, 3.12.9, 4.3, 4.4.4,
4.5, 5.2.1, 5.3, 5.4.1.1, 8.2.2, 9.4.1, 9.5.1, 9.7, 9.10, 10.1.2,
10.2.6, 11.1.3, 11.3, 12.2.2, 12.2.4, 13.3, 13.5.2, 14
Written Orders 2.3, 3.9, 4.3.7.
7, 8.2.2, 11.3.9, 12.1, 12.2, 13.5.2, 14.3.1
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #6
<PAGE>
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
ARTICLE I
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement between Owner and Contractor
(hereinafter the Agreement), Conditions of the Contract (General, Supplementary
and other Conditions), Drawings, Specifications, addenda issued prior to
execution of the Contract, other documents listed in the Agreement and
Modifications issued after execution of the Contract. A Modification is (1) a
written amendment to the Contract signed by both parties, (2) a Change Order,
(3) a Construction Change Directive or (4) a written order for a minor change in
the Work issued by the Architect. Unless specifically enumerated in the
Agreement, the Contract Documents do not include other documents such as bidding
requirements (advertisement or invitation to bid, Instructions to Bidders,
sample forms, the Contractor's bid or portions of addenda relating to bidding
requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract
represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or
oral. The Contract may be amended or modified only by a Modification. The
Contract Documents shall not be construed to create a contractual relationship
of any kind (1) between the Architect and Contractor, (2) between the Owner and
a Subcontractor or Sub-subcontractor or (3) between any persons or entities
other than the Owner and Contractor. The Architect shall, however, be entitled
to performance and enforcement of obligations under the Contract intended to
facilitate performance of the Architect's duties.
1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all other
labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the
whole or a part of the Project.
1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction
by the Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location and
dimensions of the Work, generally including plans, elevations, sections,
details, schedules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the
written requirements for materials, equipment, construction systems, standards
and workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is the volume usually assembled for the Work which may
include the bidding requirements, sample forms, Conditions of the Contract and
Specifications.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed by the Owner and Contractor as
provided in the Agreement. If either the Owner or Contractor or both do not sign
all the Contract Documents, the Architect shall identify such unsigned Documents
upon request.
1.2.2 Execution of the Contract by the Contractor is a representation that the
Contractor has visited the site, become familiar with local conditions under
which the Work is to be performed and correlated personal observations with
requirements of the Contract Documents.
1.2.3 The intent of the Contract Documents is to include all items necessary for
the proper execution and completion of the Work by the Contractor. The Contract
Documents are complementary, and what is required by one shall be as binding as
if required by all; performance by the Contractor shall be required only to the
extent consistent with the Contract Documents and reasonably inferrable from
them as being necessary to produce the intended results.
1.2.4 Organization of the Specifications into divisions,
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #7
<PAGE>
sections and articles, and arrangement of Drawings shall not control the
Contractor in dividing the Work among Subcontractors or in establishing the
extent of Work to be performed by any trade.
1.2.5 Unless otherwise stated in the Contract Documents, words which have
well-known technical or construction industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
1.3 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER
DOCUMENTS
13.1
Insert A. The Drawings, Plans, Specifications and other similar or related
documents and copies thereof (including those in electronic form) are furnished
to Contractor for the purpose of performing the Work and are and shall remain
the property of Owner and Architect, as provided by the terms of the Agreement
between Owner and Architect. Neither Contractor nor any Subcontractor,
Sub-subcontractor, or material or equipment supplier shall own or claim a
copyright interest in the Drawings, Plans, Specifications and other similar or
related documents, and Owner Architect will retain all common law, statutory and
other reserved rights, in addition to the copyright (including without
limitation, the right to create derivative works therefrom). Upon completion of
the Work, Contractor will provide Owner with a record set of Drawings.
Specifications and other Similar related documents representing the final,
as-built conditions of the Project. Drawings, Specifications and other similar
or related documents and copies thereof furnished to Contractor are for use
solely with respect to this Project. They are not to be used by Contractor or
any Subcontractor, Sub-contractor or material or equipment supplier on other
projects or for additions to the Project outside the scope of the Work without
the specific written consent of Owner. The Contractor, Sub-contractors,
Sub-subcontractors and material or equipment suppliers are granted a limited
license to use and reproduce applicable portions of the Drawings. Specifications
and other similar or related documents appropriate to and solely for use in the
execution of their Work under the Contract Documents. All copies made under this
license shall bear the statutory copyright notice, if any, shown on the
Drawings, Specifications and other similar or related documents. Submittal or
distribution to meet official regulatory requirements for other purposes in
connection with this project is not to be construed as publication in derogation
of any copyright or other reserved rights of Owner or Architect.
1.4 CAPITALIZATION
1.4.1 Terms capitalized in these General Conditions include those which are (1)
specifically defined, (2) the titles of numbered articles and identified
references to Paragraphs, Subparagraphs and Clauses in the document or (3) the
titles of other documents published by the American Institute of Architects.
1.5 INTERPRETATION
1.5.1 In the interest of brevity the Contract Documents frequently omit
modifying words such as "all" and "any" and articles such as "the" and "an," but
the fact that a modifier or an article is absent from one statement and appears
in another is not intended to affect the interpretation of either statement.
ARTICLE 2
OWNER
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #8
<PAGE>
2.1 DEFINITION
2.1.1 The Owner is the person or entity identified as such in the Agreement and
is referred to throughout the Contract Documents as if singular in number. The
term "Owner" means the Owner or the Owner's authorized representative.
2.1.2 The Owner upon reasonable written request shall furnish to the Contractor
in writing information which is necessary and relevant for the Contractor to
evaluate, give notice of or enforce mechanic's lien rights. Such information
shall include a correct statement of the record legal title to the property on
which the Project is located, usually referred to as the site, and the Owner's
interest therein at the time of execution of the Agreement and, within five days
after any change, information of such change in title, recorded or unrecorded.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.2 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a legal
description of the site.
2.2.3 Except for permits and fees which are the responsibility of the Contractor
under the Contract Documents, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or
occupancy of permanent structures or for permanent changes in existing
facilities.
2.2.4 Information or services in Owner's possession shall be furnished by the
Owner with reasonable promptness to avoid delay in orderly progress of the Work.
2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will
be furnished, free of charge, five sets of Drawings and sepias thereof and
Project Manuals for execution of the Work.
2.2.6 The foregoing are in addition to other duties and responsibilities of the
Owner enumerated herein and especially those in respect to Article 6
(Construction by Owner or by Separate Contractors), Article 9 (Payments and
Completion) and Article 11 (Insurance and Bonds).
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If Contractor fails to correct defective Work as required by Paragraph
12.2 or fails to complete the Work on time or is in default of any of its
obligations hereunder, then Owner, by a written order signed by any agent
specifically so authorized by Owner, in writing, may order Contractor to stop
the Work or any portion thereof until the cause for such order has been
eliminated; however this right of Owner to stop the Work shall not give rise to
any duty on the part of Owner to exercise this right for the benefit of
Contractor or any other person or entity. This right shall be in addition to and
not in lieu or restriction of Owner's rights under Subparagraph 12.2 hereof.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance
with the Contract Documents and fails within a seven-day period after receipt of
written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, the Owner may after such
seven-day period give the Contractor a second written notice to correct such
deficiencies within a second seven-day period. If the Contractor within such
second seven-day period after receipt of such second notice fails to commence
and continue to correct any deficiencies, the Owner may, without prejudice to
other remedies the Owner may have, correct such deficiencies. In such case an
appropriate Change Order shall be issued deducting from payments then or
thereafter due the Contractor the cost of correcting such deficiencies,
including compensation for the Architect's additional services and expenses made
necessary by such default, neglect or failure.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page 9
<PAGE>
If payments then or thereafter due the Contractor are not sufficient to cover
such amounts, the Contractor shall pay the difference to the Owner.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Contractor is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Contractor" means the Contractor or the Contractor's authorized
representative.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 The Contractor shall carefully study and compare the Contract Documents
with each other and with information furnished by the Owner pursuant to
Subparagraph 2.2.2 and shall at once report to the Architect errors,
inconsistencies or omissions discovered. The Contractor shall not be liable to
the Owner or Architect for damage resulting from errors, inconsistencies or
omissions in the Contract Documents unless the Contractor recognized such error,
inconsistency or omission and knowingly failed to report it to the Architect. If
the Contractor performs any construction activity knowing it involves a
recognized error, inconsistency or omission in the Contract Documents without
such notice to the Architect, the Contractor shall assume appropriate
responsibility for such performance and shall bear an appropriate amount of the
attributable costs for correction.
3.2.2 The Contractor shall take field measurements and verify field conditions
and shall carefully compare such field measurements and conditions and other
information known to the Contractor with the Contract Documents before
commencing activities. Errors, inconsistencies or omissions discovered shall be
reported to the Architect at once.
3.2.3 The Contractor shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's
best skill and attention. The Contractor shall be solely responsible for and
have control over construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under the Contract, and
for safety precautions and programs in connections with the Work, unless
Contract Documents give other specific instructions concerning these matters.
Insert B: The Contractor accepts the relationship of trust and confidence
established between Contractor and Owner by this Agreement. Contractor covenants
to cooperate with the Architect in furthering the interests of Owner. Contract
agrees to furnish efficient business administration and superintendence and to
furnish at all times an adequate supply of workmen and materials and to perform
the Work in the best way and in the most expeditious and economical manner
consistent with the interests of Owner and Contractor.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of
the Contractor's employees. Subcontractors and their agents and employees, and
other persons performing portions of the work under a contract with the
contractor.
3.3.3 The Contractor shall not be relieved of obligations to performing the Work
in accordance with the Contract Documents either by activities or duties of the
Architect in the Architect's administration of the Contract, or by tests,
inspections or approvals required or performed by persons other than the
Contractor.
3.3.4 The Contractor shall be responsible for inspection of portions of Work
already performed under this Contract to determine that such portions are in
proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for labor, materials, equipment, tools, construction equipment
and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Work.
3.4.2 The Contractor shall enforce strict discipline and good order among the
Contractor's employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them.
Insert C: Contractor will not voluntarily permit any construction or similar
liens to be filed or otherwise imposed on any part of the Work or the property
on which the Work is performed. If any construction lien or similar lien is
filed and if Contractor does not cause
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #10
<PAGE>
such lien to be released and discharged forthwith, Owner shall have the right to
pay all sums necessary to obtain such release and discharge and deduct all
amounts so paid from any Guaranteed Maximum Price or deduct same from the
Contractor's Fee portion of the next succeeding Application for Payment until
the total amount of the lien has been recouped, as Owner may elect. If any such
lien is filed or otherwise imposed, then, at the request of Owner, Contractor
will cause such lien to be released or otherwise discharged. Contractor will
indemnify and hold harmless Owner, its agents and employees, from all claims,
losses, demands, causes of action or suits of any nature arising out of any such
lien or that part of the Work covered thereby. Contractor will use best effort
to cause such subcontractors and other parties furnishing labor or materials to
Work as Owner shall designate to subordinate their liens to the lien securing
payment of sums now or hereafter borrowed by Owner in connection with the
construction of the Project. This section will not apply to liens of any portion
of the Work performed by Owner or by separate contractors under separate
contracts with Owner.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and Architect that materials and
equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be
free from defects not inherent in the quality required or permitted, and that
the Work will conform with the requirements of the Contract Documents. Work not
conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. The Contractor's warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the
Contractor, improper or insufficient maintenance, improper operation, or normal
wear and tear under normal usage. If required by the Architect, the Contractor
shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.
Insert D: All Work and materials are and will be warranted as to quality and
workmanship and against defects by Contractor for a period of one (1) year from
the date of Substantial Completion (unless the Contract Documents call for a
longer period of warranty, in which event the warranty period provided by the
Contract Documents will prevail [the "Warranty Period"]). During the Warranty
Period, Contractor will, at its expense, promptly repair and put any defective
workmanship and/or materials into the condition required by the Contract
Documents and shall, at its own expense, promptly replace all defective fixtures
and materials to the full satisfaction of Owner and will repair or replace with
similar and equal material any existing Work or equipment installed by others
and damaged by Contractor while carrying out such Work. As a condition precedent
to final payment, Contractor will prepare a "Warranty Manual" for Owner which
includes all Sub-contractor, Sub-subcontractor and manufacturers' warranties for
any portion of the Work and the Project, duly assigned to Owner, as well as all
owner's manuals or other information about the equipment, materials supplies or
other aspects of the Work. The foregoing warranty shall survive any termination
of this Agreement with respect to all Work performed prior to termination.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the
Work or portions thereof provided by the Contractor which are legally enacted
when bids are received or negotiations concluded, whether or not yet effective
or merely scheduled to go into effect.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall
secure and pay for the building permit and other permits and governmental fees,
licenses and inspections necessary for proper execution and completion of the
Work which are customarily secured after execution of the Contract and which are
legally required when bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance therewith, the Contractor
shall promptly notify the Architect and Owner in writing, and necessary changes
shall be accomplished by appropriate Modification.
3.7.4 if the Contractor performs Work knowing it to be contrary to laws,
statutes, ordinances, building codes, and rules and regulations without such
notice to the Architect and Owner, the Contractor shall assume full
responsibility for such Work and shall bear the attributable costs.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #11
<PAGE>
all allowances stated in the Contract Documents. Items covered by allowances
shall be supplied for such amounts and by such persons or entities as the Owner
may direct, but the Contractor shall not be required to employ persons or
entities against which the Contractor makes reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 materials and equipment under an allowance shall be selected
promptly by the Owner to avoid, unreasonable delay in the Work;
.2 allowances shall cover the cost to the Contractor of materials and
equipment delivered at the site and all required taxes, less
applicable trade discounts;
.3 Contractor's costs for unloading and handing at the site, labor,
installation costs, overhead, profit and other expenses
contemplated for stated allowance amounts shall be included in the
Contract Sum and not in the allowances;
NOTWITHSTANDING ANY PROVISION OF THESE GENERAL CONDITIONS TO THE CONTRARY. ALL
ALLOWANCES STATED IN THE CONTRACTOR'S PROPOSAL INCLUDE LABOR, MATERIALS, TOOLS,
EQUIPMENT AND SUBCONTRACTOR MARKUP.
.4 whenever costs are more than or less than allowances, the Contract
Sum shall be adjusted accordingly by Change Order. The amount of
the Change Order shall reflect (1) the difference between actual
costs and the allowances under Clause 3.8.2.2 and (2) changes in
Contractor's costs under Clause 3.8.2.3.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and necessary
assistants who shall be in attendance at the Project site during performance of
the Work. The superintendent shall represent the Contractor, and communications
given to the superintendent shall be as binding as if given to the Contractor.
Important communications shall be confirmed in writing. Other communications
shall be similarly confirmed on written request in each case.
Insert E: Owner will have the right to approve the Contractor's appointment of
any project superintendent, such approval not to be unreasonably withheld or
delayed. For just cause shown, Owner has the right to request the dismissal of
the project superintendent and shall have approval rights over any replacement
for such party. Contractor will make reasonable efforts to comply with Owner's
request with respect to the project superintendent within a reasonable time and
in a reasonable manner.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare
and submit for the Owner's and Architect's information a Contractor's
construction schedule for the Work. The schedule shall not exceed time limits
current under the Contract Documents, shall be revised at appropriate intervals
as required by the conditions of the Work and Project, shall be related to the
entire Project, and shall provide for expeditious and practicable execution of
the Work. Contractor shall use best efforts to maintain the continuity and same
identity of the Professional Team, as provided in the A111 Document to which
these General Conditions pertain.
Insert F: Contractor shall prepare at least monthly a schedule summary report in
a form and of sufficient detail and character as approved by Owner and Owner's
lender if such a lender exists. The report, at minimum, shall specify whether
the Project is on schedule and if not the reasons therefor and the revised
schedule. The schedule may be revised subject to the approval of Owner and
Architect at appropriate intervals as may be required by the conditions.
Insert G: Contractor shall also prepare a report, not later than thirty (30)
calendar days after the Contract is entered into, which shall include a complete
list of all suppliers, items to be purchased from Suppliers or fabricators, time
required for fabrication and the scheduled delivery dates for each item. As soon
as available, copies of purchase orders will be furnished to Owner, if and when
issued.
Insert H: Contractor will include with each monthly report form an updated
current Project schedule, and a listing and status of all change requests,
bulletins and modifications. Contractor will obtain any necessary information
from subcontractors that is necessary to complete any Project schedules
pertaining to subcontractor activities. Contractor will submit to Owner progress
reports with each application for payment which will consist, among other
things, of a check list showing the date of commencement of any activity on the
main Project schedule which is then commenced, the date of completion of those
activities completed and the approximate percentage of completion of each
activity. If any revised schedule sets a date for Substantial Completion of the
Work beyond the date required for Substantial Completion, Contractor will submit
to Owner and Architect for review and approval a narrative description of the
means and methods which Contractor intends to employ in order to
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #12
<PAGE>
expedite the progress of the Work to ensure timely completion of the Project. To
ensure such timely completion, the Contractor will take all necessary action,
including without limitation increasing the number of personnel and labor on the
Project and implementing overtime and double shifts. In such event, Contractor
will not be entitled to any adjustment in the Guaranteed Maximum Price or in the
time for Substantial Completion.
Insert I: Contractor, if advised by Owner from time to time of the existence of
a construction lender to the Project, will prepare such additional report forms
in such form as the lender may require from time to time. Contractor will hold
bi-weekly progress meetings at the Project site or at such other time and
frequency as are acceptable to Owner. Progress of the Work will be reported in
detail with reference to construction schedules. Each interested Subcontractor
will have present at such meetings a competent representative to report the
condition of the Subcontractor's work and to receive information.
3.10.2 The Contractor shall prepare and keep current, for the Owner's and
Architect's approval, a schedule of submittals which is coordinated with the
Contractor's construction schedule and allows the Owner and Architect reasonable
time to review submittals.
3.10.3 The Contractor shall conform to the most recent schedules.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor shall maintain at the site for the Owner one record copy
of the Drawings, Specifications, addenda, Change Orders and other Modifications,
in good order and marked currently to record changes and selections made during
construction, and in addition approved Shop Drawings, Product Data, Samples and
similar required submittals. These shall be available to the Architect and shall
be delivered to the Architect for submittal to the Owner upon completion of the
Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor,
manufacturer, supplier or distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not
Contract Documents. The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required the way the Contractor
proposes to conform to the information given and the design concept expressed in
the Contract Documents. Review by the Architect is subject to the limitations of
Subparagraph 4.2.7.
3.12.5 The Contractor shall review, approve and submit to the Architect Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents with reasonable promptness and in such sequence as to cause no delay
in the Work or in the activities of the Owner or of separate contractors.
Submittals made by the Contractor which are not required by the Contract
Documents may be returned without action.
3.12.6 The Contractor shall perform no portion of the Work requiring submittal
and review of Shop Drawings, Product Data, Samples or similar submittals until
the respective submittal has been approved by the Architect. Such Work shall be
in accordance with approved submittals.
3.12.7 By approving and submitting Shop Drawings, Product Data, Samples and
similar submittals, the Contractor represents that the Contractor has determined
and verified materials, field measurements and field construction criteria
related thereto, or will do so, and has checked and coordinated the information
contained within such submittals with the requirements of the Work and of the
Contract Documents.
3.1 2.8 The Contractor shall not be relieved of responsibility for deviations
from requirements of the Contract Documents by the Architect's approval of Shop
Drawings, Product Data, Samples or similar submittals unless the Contractor has
specifically informed the Architect in writing of such deviation at the time of
submittal and the Architect has given written approval to the specific
deviation. The Contractor shall not be relieved of responsibility for errors or
omissions in Shop Drawings, Product Data, Samples or similar submittals by the
Architect's approval thereof.
3.12.9 The Contractor shall direct specific attention, in
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #13
<PAGE>
writing or on resubmitted Shop Drawings, Product Data, Samples or similar
submittals, to revisions other than those requested by the Architect on previous
submittals.
3.12.10 Informational submittals upon which the Architect is not expected to
take responsive action may be so identified in the Contract Documents.
3.12.11 When professional certification of performance criteria of materials,
systems or equipment is required by the Contract Documents, the Architect and
Owner shall be entitled to rely upon the accuracy and completeness of such
calculations and certifications.
Insert J: No portion of the work requiring submission of a Shop Drawing, samples
or product data will be commenced until the submittal has been approved by the
Architect and Owner. Architect and Owner will have five (5) business days in
which to approve submittals from Contractor. If review and approval or other
action on the submittals requires more than five (5) business days, Contractor
will be entitled to an extension of the time for Substantial Completion equal to
the number of business days in excess of five (5) required for communication of
approval or other action by Owner or Architect. Subsequent to approval, all such
portions of the Work will proceed in accordance with the approved submittals.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cuffing, fitting or patching
required to complete the Work or to make its parts fit together properly.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or
fully or partially completed construction of the Owner or separate contractors
by cutting, patching or otherwise altering such construction, or by excavation.
The Contractor shall not cut or otherwise alter such construction by the Owner
or a separate contractor except with written consent of the Owner and of such
separate contractor; such consent shall not be unreasonably withheld. The
Contractor shall not unreasonably withhold from the Owner or a separate
contractor the Contractor's consent to cutting or otherwise altering the Work.
3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the
Contract. At completion of the Work the Contractor shall remove from and about
the Project waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
3.15.2 If the Contractor fails to clean up as provided in the Contract
Documents, the Owner may do so and the cost thereof shall be charged to the
Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and Architect access to the Work
in preparation and progress wherever located.
Insert K: Contractor will copy both Architect and Owner on all written
communications to either party.
3.17 ROYALTIES AND PATENTS
3.17.1 The Contractor shall pay all royalties and license fees. The Contractor
shall defend suits or claims for infringement of patent rights and shall hold
the Owner and Architect harmless from loss on account thereof, but shall not be
responsible for such defense or loss when a particular design, process or
product of a particular manufacturer or manufacturers is required by the
Contract Documents. However, if the Contractor has reason to believe that the
required design, process or product is an infringement of a patent, the
Contractor shall be responsible for such loss unless such information is
promptly furnished to the Architect.
3.18 INDEMNIFICATION
3.18.1 In and for the special consideration of $1000.00 and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, to the fullest extent permitted by law, the Contractor shall
indemnify and hold harmless the Owner, Architect, Architect's consultants, and
agents and employees of any of them from and against claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or
resulting from performance of the Work, provided that such claim, damage, loss
or expense is attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property (other than the Work itself)
including loss of use resulting therefrom, but only to the extent caused in
whole or in part by negligent acts or omissions of the Contractor, a
Subcontractor, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, regardless
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #14
<PAGE>
of whether or not such claim, damage, loss or expense is caused in part by a
party indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Paragraph 3.18.
3.18.2 In claims against any person or entity indemnified under this Paragraph
3.18 by an employee of the Contractor, a Subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under this Paragraph 3.18 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or
for the Contractor or a Subcontractor under workers' or workmen's compensation
acts, disability benefit acts or other employee benefit acts.
3.18.3 The obligations of the Contractor under this Paragraph 3.18 shall not
extend to the liability of the Architect or Owner, the Architect's or Owner's
consultants, and agents and employees of any of them arising out of (1) the
preparation or approval of maps, drawings, opinions, reports, surveys, Change
Orders, designs or specifications, or (2) the giving of or the failure to give
directions or instructions by the Architect, the Architect's consultants, and
agents and employees of any of them provided such giving or failure to give is
the primary cause of the injury or damage.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT
4.1.1 The Architect is the person lawfully licensed to practice architecture or
an entity lawfully practicing architecture identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Architect" means the Architect or the Architect's authorized
representative.
4.1.2 Duties, responsibilities and limitations of authority of the Architect as
set forth in the Contract Documents shall not be restricted, modified or
extended without written consent of the Owner, Contractor and Architect. Consent
shall not be unreasonably withheld.
4.1.3 In case of termination of employment of the Architect, the Owner shall
appoint an architect reasonably acceptable to Contractor and whose status under
the Contract Documents shall be that of the former architect.
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect will provide administration of the Contract as described in
the Contract Documents, and will be the Owner's representative (1) during
construction. (2) until final payment is due and (3) with the Owner's
concurrence, from time to time during the correction period described in
Paragraph 12.2. The Architect will advise and consult with the Owner. The
Architect will have authority to act on behalf of the Owner only to the extent
provided in the Contract Documents, unless otherwise modified by written
instrument in accordance with other provisions of the Contract.
4.2.2 The Architect will visit the site at intervals appropriate to the stage of
construction to become generally familiar with the progress and quality of the
completed Work and to determine in general if the Work is being performed in a
manner indicating that the Work, when completed, will be in accordance with the
Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check quality or quantity of the
Work. On the basis of on-site observations as an architect, the Architect will
keep the Owner informed of progress of the Work, and will endeavor to guard the
Owner against defects and deficiencies in the Work.
4.2.3 The Architect will not have control over or charge of and will not be
responsible for construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the Work,
since these are solely the Contractor's responsibility as provided in Paragraph
3.3. The Architect will not be responsible for the Contractor's failure to carry
out the Work in accordance with the Contract Documents. The Architect will not
have control over or charge of and will not be responsible for acts or omissions
of the Contractor, Subcontractors, or their agents or employees, or of any other
persons performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION. Except as otherwise
provided in the Contract Documents or when direct communications have been
specially authorized, the Owner and Contractor shall endeavor to communicate
through the Architect. Communications by and with Subcontractors and material
suppliers shall be through the
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #15
<PAGE>
Contractor. Communications by and with separate contractors shall be through the
Owner. The foregoing shall not prohibit direct communications between Owner and
Contractor, between Owner, subcontractors and material suppliers or between
Contractor, Owner and Architect's consultants.
4.2.5 Based on the Architect's observations and evaluations of the Contractor's
Applications for Payment, the Architect will review and certify the amounts due
the Contractor and will issue Certificates for Payment in such amounts.
4.2.6 The Architect and Owner will have authority to reject Work which does not
conform to the Contract Documents. Whenever the Architect and owner considers it
necessary or advisable for implementation of the intent of the Contract
Documents, the Architect will have authority to require additional inspection or
testing of the Work in accordance with Subparagraphs 13.5.2 and 13.5.3, whether
or not such Work is fabricated, installed or completed. However, neither this
authority of the Architect and Owner nor a decision made in good faith either to
exercise or not to exercise such authority shall give rise to a duty or
responsibility of the Architect to the Contractor, Subcontractors, material and
equipment suppliers, their agents or employees, or other persons performing
portions of the Work.
4.2.7 The Architect will review and approve or take other appropriate action
upon the Contractor's submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
The Architect's action will be taken with such reasonable promptness as to cause
no delay in the Work or in the activities of the Owner, Contractor or separate
contractors, while allowing sufficient time to permit adequate review.
4.2.8 With Owner's prior written approval, the Architect will prepare Change
Orders and Construction Change Directives, and may authorize minor changes in
the Work as provided in Paragraph 7.4.
4.2.9 The Architect will conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, will receive and
forward to the Owner for the Owner's review and records written warranties and
related documents required by the Contract and assembled by the Contractor, and
if authorized by Owner, will issue a final Certificate for Payment upon
compliance with the requirements of the Contract Documents.
4.2.10 If the Owner and Architect agree, the Architect will provide one or more
project representatives to assist in carrying out the Architect's
responsibilities at the site. The duties, responsibilities and limitations of
authority of such project representatives shall be as set forth in an exhibit to
be incorporated in the Contract Documents.
4.2.11 The Architect will interpret and decide matters concerning performance
under and requirements of the Contract Documents on written request of either
the Owner or Contractor.
Insert L: Upon receipt of such request from Owner or Contractor, Architect will
promptly notify the other parties in writing of the details of such request.
Architect's response to such request will be made with reasonable promptness and
in no event later than five (5) business days after the date on which the
request is made. Architect's response to such request will be advisory only and
will not be a prerequisite to mediation or litigation and will not be binding on
the parties.
4.2.12 Interpretations and decisions of the Architect will be consistent with
the intent of and reasonably inferable from the Contract Documents and will be
in writing or in the form of drawings. When making such interpretations and
decisions, the Architect will endeavor to secure faithful performance by both
Owner and Contractor, will not show partiality to either and will not be liable
for results of interpretations or decisions so rendered in good faith.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #16
<PAGE>
4.3 CLAIMS AND DISPUTES
4.3.1 DEFINITION. A Claim is a demand or assertion by one of the parties
seeking, as a matter of right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of
the Contract. The term "Claim" also includes other disputes and matters in
question between the Owner and Contractor arising out of or relating to the
Contract. Claims must be made by written notice. The responsibility to
substantiate Claims shall rest with the party making the Claim.
4.3.2 Decision of ARCHITECT. Claims, including those alleging an error or
omission by the Architect, shall be referred initially to the Architect for
action as provided in Paragraph 4.4. A decision by the Architect, as provided in
Subparagraph 4.4.4, shall be required as a condition precedent to litigation of
a Claim between the Contractor and Owner as to all such matters arising prior to
the date final payment is due, regardless of (1) whether such matters relate to
execution and progress of the Work or (2) the extent to which the Work has been
completed. The decision by the Architect in response to a Claim shall not be a
condition precedent to litigation in the event (1) the position of Architect is
vacant, (2) the Architect has not received evidence or has failed to render a
decision within agreed time limits, (3) the Architect has failed to take action
required under Subparagraph 4.4.4 within 30 days after the Claim is made, or (4)
45 days have passed after the Claim has been referred to the Architect or (5)
the Claim relates to a mechanic's lien.
4.3.3 TIME LIMITS ON CLAIMS. Claims by either party must be made within 21 days
after occurrence of the event giving rise to such Claim or within 21 days after
the claimant first recognizes the condition giving rise to the Claim, whichever
is later. Claims must be made by written notice. An additional Claim made after
the initial Claim has been implemented by Change Order will not be considered
unless submitted in a timely manner.
4.3.4 CONTINUING CONTRACT PERFORMANCE. Pending final resolution of a Claim
including arbitration, unless otherwise agreed in writing the Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue
to make payments in accordance with the Contract Documents.
4.3.5 WAIVER OF CLAIMS: FINAL PAYMENT. The making of final payment shall
constitute a waiver of Claims by the Owner except those arising from:
.1 liens, Claims, security interests or encumbrances arising out of
the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the
Contract Documents; or
.3 terms of special warranties required by the Contract Documents.
Insert M: .4 faulty or defective Work appearing after the date of Substantial
Completion.
4.3.6 CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS. If conditions are encountered
at the site which are (1) subsurface or otherwise concealed physical conditions
which differ materially from those indicated in the Contract Documents or (2)
unknown physical conditions of an unusual nature, which differ materially from
those ordinarily found to exist and generally recognized as inherent in
construction activities of the character provided for in the Contract Documents,
then notice by the observing party shall be given to the other party promptly
before conditions are disturbed and in no event later than 10 days after
first observance of the conditions. The Architect will promptly investigate such
conditions and, if they differ materially and cause an increase or decrease in
the Contractor's cost of, or time required for, performance of any part of the
Work, will recommend an equitable adjustment in the Contract Sum or Contract
Time, or both. If the Architect determines that the conditions at the site are
not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect shall so
notify the Owner and Contractor in writing, stating the reasons. Claims by
either party in opposition to such determination must be made within 10
days after the Architect has given notice of the decision. If the Owner and
Contractor cannot agree on an adjustment in the Contract Sum or Contract Time,
the adjustment shall be referred to the Architect for initial determination,
subject to further proceedings pursuant to Paragraph 4.4.
4.3.7 CLAIMS FOR ADDITIONAL COST. If the Contractor wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given
before proceeding to execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising under Paragraph
10.3. If the Contractor believes additional cost is involved for reasons
including but not limited to (1) a written interpretation from the Architect,
(2) an order by the Owner to stop the Work where the Contractor was not at
fault, (3) a written order for a minor change in the Work issued by the
Architect, (4) failure of payment by the Owner, (5) termination of the Contract
by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim
shall be filed in accordance with the procedure established herein.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #17
<PAGE>
Insert N: 4.3.7.1 Any Claim for increased cost for delay shall be asserted in
accordance with the provisions of Subparagraph 4.3.7 unless the time is extended
in writing by Owner.
4.3.8 CLAIMS FOR ADDITIONAL TIME
4.3.8.1 If the Contractor wishes to make Claim for all increase in the Contract
Time, written notice as provided herein shall be given. The Contractor's Claim
shall include an estimate of cost and of probable effect of delay on progress of
the Work. In the case of a continuing delay only one Claim is necessary.
4.3.8.2 If adverse weather conditions are the basis for a Claim for additional
time, such Claim shall be documented by data substantiating that weather
conditions were abnormal for the period of time and could not have been
reasonably anticipated, and that weather conditions had an adverse effect on the
scheduled construction.
4.3.9 INJURY OR DAMAGE TO PERSON OR PROPERTY. If either party to the Contract
suffers injury or damage to person or property because of an act or omission of
the other party, of any of the other party's employees or agents, or of others
for whose acts such party is legally liable, written notice of such injury or
damage, whether or not insured, shall be given to the other party within a
reasonable time not exceeding 21 days after first observance. The notice shall
provide sufficient detail to enable the other party to investigate the matter.
If a Claim for additional cost or time related to this Claim is to be asserted,
it shall be filed as provided in Subparagraphs 4.3.7 or 4.3.8.
4.4 RESOLUTION OF CLAIMS AND DISPUTES
4.4.1 The Architect will review Claims and take one or more of the following
preliminary actions within ten days of receipt of a Claim: (1) request
additional supporting data from the claimant, (2) submit a schedule to the
parties indicating when the Architect expects to take action, (3) reject the
Claim in whole or in part, stating reasons for rejection, (4) recommend approval
of the Claim by the other party or (5) suggest a compromise. The Architect may
also, but is not obligated to, notify the surety, if any, of the nature and
amount of the Claim.
4.4.2 If a Claim has been resolved, the Architect will prepare or obtain
appropriate documentation.
4.4.3 If a Claim has not been resolved, the party making the Claim shall, within
ten days after the Architect's preliminary response, take one or more of the
following actions: (1) submit additional supporting data requested by the
Architect, (2) modify the initial Claim or (3) notify the Architect that the
initial Claim stands.
4.4.4 If a Claim has not been resolved after consideration of the foregoing and
of further evidence presented by the parties or requested by the Architect, the
Architect will notify the parties in writing that the Architect's decision will
be made within seven days, which decision shall be final and binding on the
parties but subject to arbitration. Upon expiration of such time period, the
Architect will render to the parties the Architect's written decision relative
to the Claim, including any change in the Contract Sum or Contract Time or both.
If there is a surety and there appears to be a possibility of a Contractor's
default, the Architect may, but is not obligated to, notify the surety and
request the surety's assistance in resolving the controversy.
4.5 ARBITRATION
4.5.1 CONTROVERSIES AND CLAIMS SUBJECT TO ARBITRATION. Insert O: Notwithstanding
the provisions of the Contract Documents to the contrary, Contractor and Owner
each reserve their respective remedies at law or in equity, including the right
to institute litigation or other proceedings in any court of competent
jurisdiction.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #18
<PAGE>
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the
Contractor to perform a portion of the Work at the site. The term
"Subcontractor" is referred to throughout the Contract Documents as if singular
in number and means a Subcontractor or an authorized representative of the
Subcontractor. The term "Subcontractor" does not include a separate contractor
or subcontractors of a separate contractor.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect
contract with a Subcontractor to perform a portion of the Work at the site. The
term "Sub-subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Sub-subcontractor or an authorized representative
of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding
requirements, the Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the Owner through the Architect the names
of persons or entities (including those who are to furnish materials or
equipment fabricated to a special design) proposed for each principal portion of
the Work. The
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #19
<PAGE>
Architect will promptly reply to the Contractor in writing stating whether or
not the Owner or the Architect, after due investigation, has reasonable
objection to any such proposed person or entity. Failure of the Owner or
Architect to reply promptly shall constitute notice of no reasonable objection.
Insert P: Objections will be governed by the provisions of subparagraph 10.2 of
the Owner-Contractor Contract on form AIA Document A111 - Electronic Format,
1987 Edition.
5.2.2 The Contractor shall not contract with a proposed person or
entity to whom the Owner or Architect has made reasonable and timely objection.
The Contractor shall not be required to contract with anyone to whom the
Contractor has made reasonable objection.
5.2.3 If the Owner or Architect has reasonable objection to a person or entity
proposed by the Contractor, the Contractor shall propose another to whom the
Owner or Architect has no reasonable objection. The Contract Sum shall be
increased or decreased by the difference in cost occasioned by such change and
an appropriate Change Order shall be issued. However, no increase in the
Contract Sum shall be allowed for such change unless the Contractor has acted
promptly and responsively in submitting names as required.
5.2.4 The Contractor shall not change a Subcontractor, person or entity
previously selected if the Owner or Architect makes reasonable objection to such
change.
Insert Q: Owner may require Contractor to change any Subcontractor previously
approved by Owner and, if at such time Contractor is not in default hereunder,
the Contract Sum will be adjusted by the difference in cost occasioned by such
change.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement in the form provided for herein, the Contractor
shall require each Subcontractor, to the extent of the Work to be performed by
the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and
responsibilities which the Contractor, by these Documents, assumes toward the
Owner and Architect. Each subcontract agreement shall preserve and protect the
rights of the Owner and Architect under the Contract Documents with respect to
the Work to be performed by the Subcontractor so that subcontracting thereof
will not prejudice such rights, and shall allow to the Subcontractor, unless
specifically provided otherwise in the subcontract agreement, the benefit of all
rights, remedies and redress against the Contractor that the Contractor, by the
Contract Documents, has against the Owner. Where appropriate, the Contractor
shall require each Subcontractor to enter into similar agreements with
Sub-subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of
the Contract Documents to which the Subcontractor will be bound, and, upon
written request of the Subcontractor, identify to the Subcontractor terms and
conditions of the proposed subcontract agreement which may be at variance with
the Contract Documents. Subcontractors shall similarly make copies of applicable
portions of such documents available to their respective proposed
Sub-subcontractors.
Insert R: Any part of the Work performed for the Contractor by a Subcontractor
shall be pursuant to a written Subcontract between Contractor and the
Subcontractor, which shall be prepared on Contractor's standard form of
Subcontract (or if none exists, on a form approved by Owner). Each such
Subcontract will, at minimum: (a) require that such Work to be performed by
Subcontractor will be performed in accordance with the requirements of the
Contract Documents, (b) require the Subcontractor to carry and maintain
liability insurance in accordance with the Contract Documents and (c) require
Subcontractor to furnish such certificates, affidavits and waivers of liens as
any lender or title insurer may from time to time require or request, including
waivers of construction lien rights to the extent required by law. Nothing
contained in the Contract Documents is intended to, nor shall it, create any
contractual relationship between Owner and any subcontractor or
sub-subcontractor. Contractor will be responsible to Owner for acts and
omissions of its employees and of subcontractors of all tiers and their
employees. Contractor will also be responsible for the coordination of its work
and the work of all subcontractors and sub-subcontractors.
Insert S: If Owner or Contractor terminates this Agreement, whether on account
of a default or pursuant to any right that Owner may have to terminate without a
default, each subcontractor will, at Owner's option, allow Owner or Owner's
designee to assume the obligations of Contractor under such subcontract as such
obligations accrue from and after the date of termination of this Agreement.
Upon such a substitution each such subcontractor will be deemed to have agreed,
and will agree, to be bound contractually under such subcontract to Owner or
Owner's designee just as if Owner or such designee were the contractor and such
subcontract, as so amended, will remain in full force and effect.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1. Each subcontract agreement for a portion of the Work is assigned by the
Contractor to the Owner provided
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #20
<PAGE>
that:
.1 assignment is effective only after termination of the Contract by
the Owner for cause pursuant to Paragraph 14.2 and only for those
subcontract agreements which the Owner accepts by notifying the
Subcontractor in writing; and
.2 assignment is subject to the prior rights of the surety, if any,
obligated under bond relating to the Contract.
5.4.2 If the Work has been suspended for more than 30 days, the Subcontractor's
compensation shall be equitably adjusted.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY SEPARATE
CONTRACTORS
6.1 OWNERS RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related
to the Project with the Owner's own forces, and to award separate contracts in
connection with other portions of the Project or other construction or
operations on the site under Conditions of the Contract identical or
substantially similar to these including those portions related to insurance and
waiver of subrogation. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Contractor shall make such
Claim as provided elsewhere in the Contract Documents.
6.1.2 When separate contracts are awarded for different portions of the Project
or other construction or operations on the site, the term "Contractor" in the
Contract Documents in each case shall mean the Contractor who executes each
separate Owner-Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's
own forces and of each separate contractor with the Work of the Contractor, who
shall cooperate with them. The Contractor shall participate with other separate
contractors and the Owner in reviewing their construction schedules when
directed to do so. The Contractor shall make any revisions to the construction
schedule and Contract Sum deemed necessary after a joint review and mutual
agreement. The construction schedules shall then constitute the schedules to be
used by the Contractor, separate contractors and the Owner until subsequently
revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner
performs construction or operations related to the Project with the Owner's own
forces, the Owner shall be deemed to be subject to the same obligations and to
have the same rights which apply to the Contractor under the Conditions of the
Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable
opportunity for introduction and storage of their materials and equipment and
performance of their activities and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract
Documents.
Insert T: Without limiting the foregoing, Contractor will arrange the
storage of its materials and location of its staging areas in a manner which
permits Landlord to enter the portions of the work necessary for preparation of
Owner's leasing offices and display rooms for showing to Tenant at the earliest
possible date and, in addition, storage of materials in the building lobbies, as
well as location of hoistways, scaffolds, other equipment and staging areas,
shall be subject to Owner's prior approval.
6.2.2 If part of the Contractor's Work depends for proper execution or results
upon construction or operations by the Owner or a separate contractor, the
Contractor shall, prior to proceeding with that portion of the Work, promptly
report to the Architect apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and
results. Failure of the Contractor so to report shall constitute an
acknowledgment that the Owners or separate contractors' completed or partially
completed construction is fit and proper to receive the Contractor's Work,
except as to defects not then reasonably discoverable.
6.2.3 Costs caused by delays or by improperly timed activities or defective
construction shall be borne by the party responsible therefor.
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed or partially completed construction or to property of
the Owner or separate contractors as provided in Subparagraph 10.2.5.
6.2.5 Claims and other disputes and matters in question between the Contractor
and a separate contractor shall be
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA --2/4/1999.
AIA License Number 105133, which expires on 3/31/1999--Page #21
<PAGE>
subject to the provisions of Paragraph 4.3 provided the separate contractor has
reciprocal obligations.
6.2.6 The Owner and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the Contractor in
Paragraph 3.14.
Insert U: Should Contractor wrongfully cause damage to the work of any separate
Contractor or its property, then Contractor will, upon due notice, promptly
attempt to settle with such contractor by agreement or otherwise to resolve the
dispute. If such separate contractor sues Owner on account of any damage alleged
to have been caused by Contractor, then Owner will notify Contractor who shall
defend such proceedings and indemnify Owner against loss or expense in
connection with such action.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, separate contractors and the
Owner as to the responsibility under their respective contracts for maintaining
the premises and surrounding area free from waste materials and rubbish as
described in Paragraph 3.15, the Owner may clean up and allocate the cost among
those responsible as the Architect determines to be just.
ARTICLE 7
CHANGES IN THE WORK
7.1 CHANGES
7.1.1 Changes in the Work may be accomplished after execution of the Contract,
and without invalidating the Contract, by Change Order, Construction Change
Directive or order for a minor change in the Work, subject to the limitations
stated in this Article 7 and elsewhere in the Contract Documents.
7.1.2 A Change Order shall be based upon agreement among the Owner, and
Contractor; a Construction Change Directive to be issued by the Owner and
Architect and may or may not be agreed to by the Contractor; an order for a
minor change in the Work may be issued by the Owner or Architect alone.
7.1.3 Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the Contractor shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.1.4 If unit prices are stated in the Contract Documents or subsequently agreed
upon, and if quantities originally contemplated are so changed in a proposed
Change Order or Construction Change Directive that application of such unit
prices to quantities of Work proposed will cause substantial inequity to the
Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Architect and
signed by the Owner, Contractor and Architect, stating their agreement upon all
of the following:
.1 a change in the Work;
.2 the amount of the adjustment in the Contract Sum, if any; and
.3 the extent of the adjustment in the Contract Time, if any.
7.2.2 Methods used in determining adjustments to the Contract Sum may include
those listed in Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared by the
Architect and signed by the Owner and Architect, directing a change in the Work
and stating a proposed basis for adjustment, if any, in the Contract Sum, or
Contract Time, or both. The Owner may by Construction Change Directive, without
invalidating the Contract, order changes in the Work within the general scope of
the Contract consisting of additions, deletions or other revisions, the Contract
Sum and Contract Time being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total
agreement on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the
Contract Sum, the adjustment shall be based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed
upon;
.3 cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #22
<PAGE>
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall
promptly proceed with the change in the Work involved and advise the Architect
of the Contractor's agreement or disagreement with the method, if any, provided
in the Construction Change Directive for determining the proposed adjustment in
the Contract Sum or Contract Time.
7.3.5 A Construction Change Directive signed by the Contractor indicates the
agreement of the Contractor therewith, including adjustment in Contract Sum and
Contract Time or the method for determining them. Such agreement shall be
effective immediately and shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly or disagrees with the method
for adjustment in the Contract Sum, the method and the adjustment shall be
determined by the Architect on the basis of reasonable expenditures and savings
of those performing the Work attributable to the change, including, in case of
an increase in the Contract Sum, a reasonable allowance for overhead and profit.
In such case, and also under Clause 7.3.3.3, the Contractor shall keep and
present, in such form as the Architect may prescribe, an itemized accounting
together with appropriate supporting data. Unless otherwise provided in the
Contract Documents, costs for the purposes of this Subparagraph 7.3.6 shall be
limited to the following:
.1 costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and workers'
or workmen's compensation insurance;
.2 costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
.3 rental costs of machinery and equipment, exclusive of hand tools,
whether rented from the Contractor or others;
.4 costs of premiums for all bonds and insurance, permit fees, and sales,
use or similar taxes related to the Work; and
.5 additional costs of supervision and field office personnel directly
attributable to the change.
7.3.7 Pending final determination of cost to the Owner, amounts not in dispute
may be included in Applications for Payment. The amount of credit to be allowed
by the Contractor to the Owner for a deletion or change which results in a net
decrease in the Contract Sum shall be actual net cost as confirmed by the
Architect. When both additions and credits covering related Work or
substitutions are involved in a change, the allowance for overhead and profit
shall be figured on the basis of net increase, if any, with, respect to that
change.
7.3.8 If the Owner and Contractor do not agree with the adjustment in Contract
Time or the method for determining it, the adjustment or the method shall be
referred to the Architect for determination.
7.3.9 When the Owner and Contractor agree with the determination made by the
Architect concerning the adjustments in the Contract Sum and Contract Time, or
otherwise reach agreement upon the adjustments, such agreement shall be
effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 Owner will have authority to order minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Contract Time and not
inconsistent with the intent of the Contract Documents. Such changes shall be
effected by written order and shall be binding on the Owner and Contractor. The
Contractor shall carry out such written orders promptly.
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including
authorized adjustments, allotted in the Contract Documents for Substantial
Completion of the Work.
8.1.2 The date of commencement of the Work is the date established in the
Agreement. The date shall not be postponed by the failure to act of the
Contractor or of persons or entities for whom the Contractor is responsible.
8.1.3 The date of Substantial Completion is the date certified by the Architect
in accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically defined.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #23
<PAGE>
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agreement or instruction of
the Owner in writing, prematurely commence operations on the site or elsewhere
prior to the effective date of insurance required by Article 11 to be furnished
by the Contractor. The date of commencement of the Work shall not be changed by
the effective date of such insurance. Unless the date of commencement is
established by a notice to proceed given by the Owner, the Contractor shall
notify the Owner in writing not less than five days or other agreed period
before commencing the Work to permit the timely filing of mortgages, mechanic's
liens and other security interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at any time in progress of the Work by an act
or neglect of the Owner or Architect, or of an employee of either, or of a
separate contractor employed by the Owner, or by changes ordered in the Work, or
by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or
other causes beyond the Contractor's control, or by delay authorized by the
Owner pending litigation, or by other causes which the Owner determines may
justify delay, then the Contract Time shall be extended by Change Order for
such reasonable time as Owner and COntractor may determine.
8.3.2 Claims relating to time shall be made in accordance with applicable
provisions of Paragraph 4.3.
8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by
either party under other provisions of the Contract Documents.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and, including authorized
adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the Contractor shall submit to
the Architect a schedule of values allocated to various portions of the Work,
prepared in such form and supported by such data to substantiate its accuracy as
the Architect or Owner may require.
Insert V: The schedule of values, when approved by Architect and Owner, will be
used to monitor progress of the Work and as a basis for Certificates for Payment
and will be updated to include the latest approved Change Orders. The
Application for Payment will be on form AIA Document G702 or electronic version
thereof.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least ten days before the date established for each progress payment,
the Contractor shall submit to the Architect an itemized Application for Payment
for operations completed in accordance with the schedule of values. Such
application shall be notarized, if required, and supported by such data
substantiating the Contractor's right to payment as the Owner or Architect may
require, such as copies of requisitions from Subcontractors and material
suppliers, and reflecting retainage if provided for elsewhere in the Contract
Documents.
Insert W: Any allowance included in the Application for Payment will be
separately itemized with supporting data attached. When an Application for
Payment includes the cost of materials stored off the job site or stored on the
site but not incorporated into the Work, for which no previous payment has been
requested, a complete description of such material will be attached to the
Application for Payment. Owner's written approval will be obtained before
Contractor makes any use of off site storage facilities for materials. Each
Application for Payment shall be accompanied by releases or waivers of lien and
such other documentation from subcontractors as may be reasonably required for
the prior month by Owner in order to establish the absence of any claims for
construction or other liens. Copies of all Applications for Payment shall be
submitted to Owner as well as Architect, and, upon Owner's request, directly to
Owner's lender or to any third party. Architect shall not certify any
Application for payment if objected to by Owner or Owner's lender, if
applicable.
9.3.1.1 Such applications may include requests for payment on account of changes
in the Work which have been properly
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #24
<PAGE>
authorized by Construction Change Directives but not yet included in Change
Orders.
9.3.1.2 Such applications may not include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor or material supplier
because of a dispute or other reason.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be
made on account of materials and equipment delivered and suitably stored at the
site for subsequent incorporation in the Work. If approved in advance by the
Owner, payment may similarly be made for materials and equipment suitably stored
off the site at a location agreed upon in writing. Payment for materials and
equipment stored on or off the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's
title to such materials and equipment or otherwise protect the Owner's interest,
and shall include applicable insurance, storage, and transportation to the site
for such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work covered by an Application
for Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's
knowledge, information and belief, be free and clear of liens, claims, security
interests or encumbrances favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having
provided labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect will, within seven days after receipt of the Contractor's
Application for Payment, either issue to the Owner a Certificate for Payment,
with a copy to the Contractor, for such amount as the Architect determines is
properly due, or notify the Contractor and Owner in writing of the Architect's
reasons for withholding certification in whole or in part as provided in
Subparagraph 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation
by the Architect to the Owner, based on the Architect's observations at the site
and the data comprising the Application for Payment, that the Work has
progressed to the point indicated and that, to the best of the Architect's
knowledge, information and belief, quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to an evaluation
of the Work for conformance with the Contract Documents upon Substantial
Completion, to results of subsequent tests and inspections, to minor deviations
from the Contract Documents correctable prior to completion and to specific
qualifications expressed by the Architect. The issuance of a Certificate for
Payment will further constitute a representation that the Contractor is entitled
to payment in the amount certified. However, the issuance of a Certificate for
Payment will not be a representation that the Architect has (1) made exhaustive
or continuous on-site inspections to check the quality or quantity of the Work,
(2) reviewed construction means, methods, techniques, sequences or procedures,
(3) reviewed copies of requisitions received from Subcontractors and material
suppliers and other data requested by the Owner to substantiate the Contractor's
right to payment or (4) made examination to ascertain how or for what purpose
the Contractor has used money previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect may decide not to certify payment and may withhold a
Certificate for Payment in whole or in part, to the extent reasonably necessary
to protect the Owner, if in the Architect's opinion the representations to the
Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable
to certify payment in the amount of the Application, the Architect will notify
the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor
and Architect cannot agree on a revised amount, the Architect will promptly
issue a Certificate for Payment for the amount for which the Architect is able
to make such representations to the Owner. The Architect may also decide not to
certify payment or, because of subsequently discovered evidence or subsequent
observations, may nullify the whole or a part of a Certificate for Payment
previously issued, to such extent as may be necessary in the Architect's opinion
to protect the Owner from loss because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable
filing of such claims;
.3 failure of the Contractor to make payments properly to Subcontractors
or for labor, materials or equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the Contract Sum;
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #25
<PAGE>
.5 damage to the Owner or another contractor;
.6 reasonable evidence that the Work will not be completed within the
Contract Time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
.7 persistent failure to carry out the Work in accordance with the
Contract Documents.
9.5.2 When the above reasons for withholding certification are removed,
certification will be made for amounts previously withheld.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect has issued a Certificate for Payment, the Owner, if
Owner is in agreement with Architect, shall make payment in the manner and
within the time provided in the Contract Documents. Owner may refuse to make
payment on any Certificate for Payment for any default of Contractor and will
not be deemed to be in default by reason of withholding payment in such case.
Contractor will use all sums advanced pursuant to this Contract solely for the
purpose of performing the Work in accordance with the Contract Documents.
9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of
payment from the Owner, out of the amount paid to the Contractor on account of
such Subcontractor's portion of the Work, the amount to which said Subcontractor
is entitled, reflecting percentages actually retained from payments to the
Contractor on account of such Subcontractor's portion of the Work. The
Contractor shall, by appropriate agreement with each Subcontractor, require each
Subcontractor to make payments to Sub-subcontractors in similar manner.
9.6.3 The Architect will, on request, furnish to a Subcontractor, if
practicable, information regarding percentages of completion or amounts applied
for by the Contractor and action taken thereon by the Architect and Owner on
account of portions of the Work done by such Subcontractor.
9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see
to the payment of money to a Subcontractor except as may otherwise be required
by law.
9.6.5 Payment to material suppliers shall be treated in a manner similar to that
provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or
occupancy of the Project by the Owner shall not constitute acceptance of Work
not in accordance with the Contract Documents.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does not issue a Certificate for Payment, through no
fault of the Contractor, within seven days after receipt of the Contractor's
Application for Payment, or if the Owner does not pay the Contractor within
seven days after the date established in the Contract Documents the amount
certified by the Architect or awarded by litigation or other settlement, then
the Contractor may, upon seven additional days' written notice to the Owner and
Architect, stop the Work until payment of the amount owing has been received.
The Contract Time shall be extended appropriately and the Contract Sum shall be
increased by the amount of the Contractor's reasonable costs of shut-down, delay
and start-up, which shall be accomplished as provided in Article 7.
9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when the
Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so the Owner can occupy or utilize the Work for its
intended use, all governmental inspections have been successfully conducted and
a Certificate of Completion or Occupancy has been issued by the proper
governmental authority or agency, unless the failure of such Certificate to be
issued is for reasons outside of the control of Contractor.
9.8.2 When the Contractor considers that the Work, or a portion thereof which
the Owner agrees to accept separately, is substantially complete, the Contractor
shall prepare and submit to the Architect and Owner a comprehensive list of
items to be completed or corrected. The Contractor shall proceed promptly to
complete and correct items on the list. Failure to include an item on such list
does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. Upon receipt of the Contractor's list,
the Architect and Owner will make an inspection to determine whether the Work or
designated portion thereof is substantially complete. If the Architect's and
Owner's inspection discloses any item, whether or not included on the
Contractor's list, which is not in accordance with the requirements of the
Contract Documents, the Contractor shall, before issuance of the Certificate of
Substantial Completion, complete or correct such item, upon notification by the
Architect or Owner. The Contractor shall
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #26
<PAGE>
then submit a request for another inspection by the Architect to determine
Substantial Completion. When the Work or designated portion thereof is
substantially complete, the Architect will prepare a Certificate of Substantial
Completion which shall establish the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security,
maintenance, heat, utilities, damage to the Work and insurance, and shall fix
the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents
shall commence on the date of Substantial Completion of the Work or designated
portion thereof unless otherwise provided in the Certificate of Substantial
Completion. The Certificate of Substantial Completion shall be submitted to the
Owner and Contractor for their written acceptance of responsibilities assigned
to them in such Certificate.
9.8.3 Upon Substantial Completion of the Work or designated portion thereof and
upon application by the Contractor and certification by the Architect, the Owner
shall make payment, reflecting adjustment in retainage, if any, for such Work or
portion thereof as provided in the Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion
of the Work at any stage when such portion is designated by separate agreement
with the Contractor, provided such occupancy or use is consented to by the
insurer as required under Subparagraph 11.3.11 and authorized by public
authorities having jurisdiction over the Work. Such partial occupancy or use may
commence whether or not the portion is substantially complete, provided the
Owner and Contractor have accepted in writing the responsibilities assigned to
each of them for payments, retainage if any, security, maintenance, heat,
utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties
required by the Contract Documents. When the Contractor considers a portion
substantially complete, the Contractor shall prepare and submit a list to the
Architect as provided under Subparagraph 9.8.2. Consent of the Contractor to
partial occupancy or use shall not be unreasonably withheld. The stage of the
progress of the Work shall be determined by written agreement between the Owner
and Contractor or, if no agreement is reached, by decision of the Architect.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor
and Architect shall jointly inspect the area to be occupied or portion of the
Work to be used in order to determine and record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or
portions of the Work shall not constitute acceptance of Work not complying with
the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of written notice that the Work is ready for final
inspection and acceptance and upon receipt of a final Application for Payment,
the Architect and Owner will promptly make such inspection and, when the
Architect and Owner finds the Work acceptable under the Contract Documents and
the Contract fully performed, the Architect will promptly issue a final
Certificate for Payment stating that to the best of the Architect's knowledge,
information and belief, and on the basis of the Architect's observations and
inspections, the Work has been completed in accordance with terms and conditions
of the Contract Documents and that the entire balance found to be due the
Contractor and noted in said final Certificate is due and payable. The
Architect's final Certificate for Payment will constitute a further
representation that conditions listed in Subparagraph 9.10.2 as precedent to the
Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become
due until the Contractor submits to the Architect (1) an affidavit that
payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise
satisfied, (2) a certificate evidencing that insurance required by the Contract
Documents to remain in force after final payment is currently in effect and will
not be cancelled or allowed to expire until at least 30 days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor
knows of no substantial reason that the insurance will not be renewable to cover
the period required by the Contract Documents, (4) consent of surety, if any, to
final payment and (5), if required by the Owner, other data establishing payment
or satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of the Contract, to the
extent and in such form as may be designated by the Owner. If a Subcontractor
refuses to furnish a release or waiver required by the Owner, the Contractor may
furnish a bond satisfactory to the Owner to indemnify the Owner against such
lien. If such lien remains unsatisfied after payments are made, the Contractor
shall refund to the Owner all money that the Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #27
<PAGE>
Insert X: A reasonable sum may be withheld until Contractor delivers to Owner
record drawings and other items required pursuant to Subparagraph 3.11.1 and the
warranties, instructions, and maintenance manuals required to be furnished to
Owner.
9.10.3 If, after Substantial Completion of the Work, final completion thereof is
materially delayed through no fault of the Contractor or by issuance of Change
Orders affecting final completion, and the Architect so confirms, the Owner
shall if Owner agrees with Architect, upon application by the Contractor and
certification by the Architect, and without terminating the Contract, make
payment of the balance due for that portion of the Work fully completed and
accepted. If the remaining balance for Work not fully completed or corrected is
less than retainage stipulated in the Contract Documents, and if bonds have been
furnished, the written consent of surety to payment of the balance due for that
portion of the Work fully completed and accepted shall be submitted by the
Contractor to the Architect prior to certification of such payment. Such payment
shall be made under terms and conditions governing final payment, except that it
shall not constitute a waiver of claims. The making of final payment shall
constitute a waiver of claims by the Owner as provided in Subparagraph 4.3.5.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or
material supplier shall constitute a waiver of claims by that payee except those
previously made in writing and identified by that payee as unsettled at the time
of final Application for Payment. Such waivers shall be in addition to the
waiver described in Subparagraph 4.3.5.
Insert Y: 9.10.5. Contractor agrees to cooperate with Owner in furnishing any
and all information, reports and certificates which are required under any
agreement with any construction or permanent lender to Owner, if such lender
exists or is proposed, to the extent truthful and not inconsistent with the
Contract Documents.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract.
Insert Z: "Hazardous Materials" shall mean any hazardous waste or hazardous
substance as those terms are defined in the Resource Conservation and Recovery
Act, as amended by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Re-authorization Act of 1986, 42 U.S.C. Section 9601 et. seq., the Clean Water
Act, 33 U.S.C. Section 125; et. seq., the Toxic Substances and Control Act, 15
U.S.C. Section 2601, et. seq., the Clean Air Act, 42 U.S.C. Section 7401, et.
seq. and any and all other federal, state or local law, code, ordinance, rule or
regulation governing hazardous substances, wastes, contaminants or pollutants.
10.1.2 In the event the Contractor encounters on the site material reasonably
believed to be asbestos or polychlorinated biphenyl (PCB) which has not been
rendered harmless, the Contractor shall immediately stop Work in the area
affected and report the condition to the Owner and Architect in writing. The
Work in the affected area shall not thereafter be resumed except by written
agreement of the Owner and Contractor if in fact the material is asbestos or
polychlorinated biphenyl (PCB) and has not been rendered harmless. The Work in
the affected area shall be resumed in the absence of asbestos or polychlorinated
biphenyl (PCB), or when it has been rendered harmless, by written agreement of
the Owner and Contractor, or in accordance with final determination by the
Architect on which arbitration has not been demanded, or by arbitration under
Article 4.
10.1.3 The Contractor shall not be required pursuant to Article 7 to perform
without consent any Work relating to asbestos or polychlorinated biphenyl (PCB).
In the event that Contractor encounters on the Project site any material
reasonably believed to be either asbestos containing material ("ACM"), PCB
containing material, or other Hazardous Material which has not been rendered
harmless, then Contractor shall immediately stop the Work in the area affected
and report the condition to Owner in writing. The Work in the affected area
shall not thereafter be resumed except by written agreement of Owner and
Contractor, if in fact the material is asbestos, PCBs or other Hazardous
Material and has not been rendered harmless. The Work in the affected area shall
be resumed in the absence of ACM, PCB containing material, or other Hazardous
Material, or when it has been rendered harmless by written agreement of Owner
and Contractor.
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, and agents and employees of Contractor, and any of
them from and against claims, damages, losses and expenses, including but not
limited to attorneys' fees, arising out of or resulting from performance of the
Work in the affected area if in fact the material is asbestos or polychlorinated
biphenyl (PCB) and has not been rendered harmless, provided that such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property (other than the Work
itself) including loss of use resulting therefrom, but only to the extent caused
in whole or in part by negligent acts or omissions of the Owner, anyone directly
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #28
<PAGE>
or indirectly employed by the Owner or anyone for whose acts the Owner may be
liable, regardless of whether or not such claim, damage, loss or expense is
caused in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of indemnity
which would otherwise exist as to a party or person described in this
Subparagraph 10.1.4. Contractor will not be required to perform without consent
any portion of the Work relating to ACM or PCB containing material or other
Hazardous Material.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall
provide reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein, whether
in storage on or off the site, under care, custody or control of the
Contractor or the Contractor's Subcontractors or Sub-subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of
construction.
10.2.2 The Contractor shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on safety of persons or property or their protection from damage, injury or
loss.
10.2.3 The Contractor shall erect and maintain, as required by existing
conditions and performance of the Contract, reasonable safeguards for safety and
protection, including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage
or loss insured under property insurance required by the Contract Documents) to
property referred to in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part
by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly
or indirectly employed by any of them, or by anyone for whose acts they may be
liable and for which the Contractor is responsible under Clauses 10.2.1.2 and
10.2.1.3, except damage or loss attributable to acts or omissions of the Owner
or Architect or anyone directly or indirectly employed by either of them, or by
anyone for whose acts either of them may be liable, and not attributable to the
fault or negligence of the Contractor. The foregoing obligations of the
Contractor are in addition to the Contractor's obligations under Paragraph 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner and Architect.
10.2.7 The Contractor shall not load or permit any part of the construction or
site to be loaded so as to endanger its safety.
10.3 EMERGENCIES
10.3.1 In an emergency affecting safety of persons or property, the Contractor
shall act, at the Contractor's discretion, to prevent threatened damage, injury
or loss. Additional compensation or extension of time claimed by the Contractor
on account of an emergency shall be determined as provided in Paragraph 4.3 and
Article 7.
ARTICLE 11
INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase from and maintain in a company or companies
lawfully authorized to do business in the jurisdiction in which the Project is
located such insurance as will protect the Contractor from claims set forth
below which may arise out of or result from the Contractor's operations under
the Contract and for which the Contractor may be legally liable, whether such
operations be by the Contractor or by a Subcontractor or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may
be liable:
.1 claims under workers' or workmen's compensation, disability benefit and
other similar employee benefit acts which are applicable to the Work to
be performed;
.2 claims for damages because of bodily injury,
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #29
<PAGE>
occupational sickness or disease, or death of the Contractor's
employees;
.3 claims for damages because of bodily injury, sickness or disease, or
death of any person other than the Contractor's employees;
.4 claims for damages insured by usual personal injury liability coverage
which are sustained (1) by a person as a result of an offense directly
or indirectly related to employment of such person by the Contractor,
or (2) by another person;
.5 claims for damages, other than to the Work itself, because of injury to
or destruction of tangible property, including loss of use resulting
therefrom;
.6 claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle; and
.7 claims involving contractual liability insurance applicable to the
Contractor's obligations under Paragraph 3.18 and .8. Each
Subcontractor involved in the Work of the Project must purchase,
maintain and provide satisfactory evidence to Contractor of such
insurance as will protect Contractor and Owner from claims arising out
of Subcontractor's activities upon the Project, whether by
Subcontractor or its employees, or anyone employed by them, including
claims for bodily injury, sickness or disease, or death, with liability
limits of not less than $1 million per person / $2 million per
accident, without umbrella excess coverage; notwithstanding the
foregoing, however, with respect to any subcontractor engaged by
Contractor in connection with the work whose subcontract provides for
payment of a total of $25,000 or less, the foregoing liability
insurance requirements will be reduced to $250,000 per person and
$500,000 per accident, without umbrella excess coverage.
Insert AA: A complete schedule of insurance coverages required to be maintained
by Contractor is attached as Exhibit "E" to these General Conditions. To the
extent that the requirements and specifications contained in this Article 11 are
inconsistent with such coverages, the terms of Exhibit "E" will control.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not
less than limits of liability specified in the Contract Documents or required by
law, whichever coverage is greater. Coverages, whether written on an occurrence
or claims-made basis, shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
Insert AB: Contractor warrants and represents to Owner that the full limits of
its liability coverage are now available under its policies of liability
insurance and that no claims are pending that would limit or decrease such
coverage. Upon request of Owner from time to time, Contractor will update the
foregoing representation and warranty, disclosing any facts that might render
such warranty and representation untrue in any material respect. Owner reserves
the right to require an increase in the limits of Contractor's liability
insurance coverage should it determine that some portion of the coverage under
Contractor's existing policies might be required to answer to a liability claim.
11.1.3 Certificates of Insurance (binders are not acceptable) acceptable to the
Owner shall be filed with the Owner prior to commencement of the Work. These
Certificates and the insurance policies required by this Paragraph 11.1 shall
contain a provision that coverages afforded under the policies will not be
cancelled or allowed to expire until at least 30 days' prior written notice has
been given to the Owner. If any of the foregoing insurance coverages are
required to remain in force after final payment and are reasonably available,
all additional certificate evidencing continuation of such coverage shall be
submitted with the final Application for Payment as required by Subparagraph
9.10.2. Information concerning reduction of coverage shall be furnished by the
Contractor with reasonable promptness in accordance with the Contractor's
information and belief
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's
usual liability insurance. Optionally, the Owner may purchase and maintain other
insurance for self-protection against claims which may arise from operations
under the Contract. The Contractor shall not be responsible for purchasing and
maintaining this optional Owner's liability insurance unless specifically
required by the Contract Documents.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the Project is located, property insurance in the amount of the initial
Contract Sum as well as subsequent modifications thereto for the entire Work at
the site on a replacement cost
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #30
<PAGE>
basis without voluntary deductibles. Such property insurance shall be
maintained, unless otherwise provided in the Contract Documents or otherwise
agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made as provided in Paragraph 9.10 or
until no person or entity other than the Owner has an insurable interest in the
property required by this Paragraph 11.3 to be covered, whichever is earlier.
This insurance shall include interests of the Owner, the Contractor,
Subcontractors and Sub-subcontractors in the Work.
11.3.1.1 Property insurance shall be on an all-risk policy form and shall insure
against the perils of fire and extended coverage and physical loss or damage
including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, false-work, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal requirements, and
shall cover reasonable compensation for Architect's services and expenses
required as a result of such insured loss. Coverage for other perils shall not
be required unless otherwise provided in the Contract Documents.
11.3.1.2 If the Owner does not intend to purchase such property insurance
required by the Contract and with all of the coverages in the amount described
above, the Owner shall so inform the Contractor in writing prior to commencement
of the Work. The Contractor may then effect insurance which will protect the
interests of the Contractor, Subcontractors and Sub-subcontractors in the Work,
and by appropriate Change Order the cost thereof shall be charged to the Owner.
If the Contractor is damaged by the failure or neglect of the Owner to purchase
or maintain insurance as described above, without so notifying the Contractor,
then the Owner shall bear all reasonable costs properly attributable thereto.
11.3.1.3 If the property insurance requires minimum deductibles and such
deductibles are identified in the Contract Documents, the Contractor shall pay
costs not covered because of such deductibles. If the Owner or insurer increases
the required minimum deductibles above the amounts so identified or if the Owner
elects to purchase this insurance with voluntary deductible amounts, the Owner
shall be responsible for payment of the additional costs not covered because of
such increased or voluntary deductibles. If deductibles are not identified in
the Contract Documents, the Owner shall pay costs not covered because of
deductibles.
11.3.1.4 Unless otherwise provided in the Contract Documents, this property
insurance shall cover portions of the Work stored off the site after written
approval of the Owner at the value established in the approval, and also
portions of the Work in transit.
11.3.2 BOILER AND MACHINERY INSURANCE. The Owner shall purchase and maintain
boiler and machinery insurance required by the Contract Documents or by law,
which shall specifically cover such insured objects during installation and
until final acceptance by the Owner; this insurance shall include interests of
the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and
the Owner and Contractor shall be named insureds.
11.3.3 LOSS OF USE INSURANCE. The Owner, at the Owner's option, may purchase and
maintain such insurance as will insure the Owner against loss of use of the
Owner's property due to fire or other hazards, however caused. The Owner waives
all rights of action against the Contractor for loss of use of the Owner's
property, including consequential losses due to fire or other hazards however
caused.
11.3.4 If the Contractor requests in writing that insurance for risks other than
those described herein or for other special hazards be included in the property
insurance policy, the Owner shall, if possible, include such insurance, and the
cost there of shall be charged to the Contractor by appropriate Change Order.
11.3.5 If during the Project construction period the Owner insures properties,
real or personal or both, adjoining or adjacent to the site by property
insurance under policies separate from those insuring the Project, or if after
final payment property insurance is to be provided on the completed Project
through a policy or policies other than those insuring the Project during the
construction period, the Owner shall waive all rights in accordance with the
terms of Subparagraph 11.3.7 for damages caused by fire or other perils covered
by this separate property insurance. All separate policies shall provide this
waiver of subrogation by endorsement or otherwise.
11.3.6 Before an exposure to loss may occur, the Owner shall file with the
Contractor a copy of each policy that includes insurance coverages required by
this Paragraph 11.3. Each policy shall contain all generally applicable
conditions, definitions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not be cancelled or
allowed to expire until at least 30 days' prior written notice has been given to
the Contractor.
11.3.7 WAIVERS OF SUBROGATION. The Owner and Contractor waive all rights against
(1) each other and any of their subcontractors, sub-subcontractors, agents and
employees, each of the other, and (2) the Architect, Architect's consultants,
separate contractors described in
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #31
<PAGE>
Article 6, if any, and any of their subcontractors, sub-subcontractors, agents
and employees, for damages caused by fire or other perils to the extent covered
by property insurance obtained pursuant to this Paragraph 11.3 or other property
insurance applicable to the Work, except such rights as they have to proceeds of
such insurance held by the Owner as fiduciary. The Owner or Contractor, as
appropriate, shall require of the Architect, Architect's consultants, separate
contractors described in Article 6, if any, and the subcontractors,
sub-subcontractors, agents and employees of any of them, by appropriate
agreements, written where legally required for validity, similar waivers each in
favor of other parties enumerated herein. The policies shall provide such
waivers of subrogation by endorsement or otherwise. A waiver of subrogation
shall be effective as to a person or entity even though that person or entity
would otherwise have a duty of indemnification, contractual or otherwise, did
not pay the insurance premium directly or indirectly, and whether or not the
person or entity had an insurable interest in the property damaged.
11.3.8 A loss insured under Owner's property insurance shall be adjusted by the
Owner as fiduciary and made payable to the Owner as fiduciary for the insureds,
as their interests may appear, subject to requirements of any applicable
mortgagee clause and of Subparagraph 11.3.10. The Contractor shall pay
Subcontractors their just shares of insurance proceeds received by the
Contractor, and by appropriate agreements, written where legally required for
validity, shall require Subcontractors to make payments to their
Sub-subcontractors in similar manner.
11.3.10 The Owner as fiduciary shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing within
five days after occurrence of loss to the Owner's exercise of this power; if
such objection be made, arbitrators shall be chosen as provided in Paragraph
4.5. The Owner as fiduciary shall, in that case, make settlement with insurers
in accordance with directions of such arbitrators. If distribution of insurance
proceeds by arbitration is required, the arbitrators will direct such
distribution.
11.3.11 Partial occupancy or use in accordance with Paragraph 9.9 shall not
commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The
Owner and the Contractor shall take reasonable steps to obtain consent of the
insurance company or companies and shall, without mutual written consent, take
no action with respect to partial occupancy or use that would cause
cancellation, lapse or reduction of insurance.
11.4 PERFORMANCE BOND AND PAYMENT BOND
11.4.1 Contractor will furnish bonds covering faithful performance of the
Contract and payment of obligations arising thereunder as stipulated in bidding
requirements or specifically required in the Contract Documents on the date of
execution of the Contract.
11.4.2 Upon the request of any person or entity appearing-obligations arising
under the Contract, the Contractor shall promptly furnish a copy of the bonds or
shall permit a copy to be made.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Architect's or
Owner's request or to requirements specifically expressed in the Contract
Documents, it must, if required in writing by the Architect or Owner, be
uncovered for the Architect's or Owner's observation and be replaced at the
Contractor's expense without change in the Contract Time.
12.1.2 If a portion of the Work has been covered which the Architect or Owner
has not specifically requested to observe prior to its being covered, the
Architect or Owner may request to see such Work and it shall be uncovered by the
Contractor. If such Work is in accordance with the Contract Documents, costs of
uncovering and replacement shall, by appropriate Change Order, be charged to the
Owner. If such Work is not in accordance with the Contract Documents, the
Contractor shall pay such costs unless the condition was caused by the Owner or
a separate contractor in which event the Owner shall be responsible for payment
of such costs.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #32
<PAGE>
12.2 CORRECTION OF WORK
12.2.1 The Contractor shall promptly correct Work rejected by the Architect or
failing to conform to the requirements of the Contract Documents, whether
observed before or after Substantial Completion and whether or not fabricated,
installed or completed. The Contractor shall bear costs of correcting such
rejected Work, including additional testing and inspections and compensation for
the Architect's services and expenses made necessary thereby.
12.2.2 If, within one year after the date of Substantial Completion of the Work
or designated portion thereof, or after the date for commencement of warranties
established under Subparagraph 9.9.1, or by terms of an applicable special
warranty required by the Contract Documents, any of the Work is found to be not
in accordance with the requirements of the Contract Documents, the Contractor
shall correct it promptly after receipt of written notice from the Owner to do
so unless the Owner has previously given the Contractor a written acceptance of
such condition. This period of one year shall be extended with respect to
portions of Work first performed after Substantial Completion by the period of
time between Substantial Completion and the actual performance of the Work. This
obligation under this Subparagraph 12.2.2 shall survive acceptance of the Work
under the Contract and termination of the Contract. The Owner shall give such
notice promptly after discovery of the condition.
Insert AC: All guarantees or warranties of equipment or materials furnished to
the Contractor or any subcontractor by any manufacturer or supplier shall be
deemed to run for the benefit of Owner as well. Contractor will obtain from all
manufacturers and suppliers of any equipment or material a guarantee or warranty
for a period in excess of one (1) year for the date of acceptance. Contractor's
guarantee, as provided herein, shall be deemed to extend for a like period for
such equipment or material.
12.2.3 The Contractor shall remove from the site portions of the Work which are
not in accordance with the requirements of the Contract Documents and are
neither corrected by the Contractor nor accepted by the Owner.
12.2.4 If the Contractor fails to correct nonconforming Work within a reasonable
time, the Owner may correct it in accordance with Paragraph 2.4. If the
Contractor does not proceed with correction of such nonconforming Work within a
reasonable time fixed by written notice from the Architect, the Owner may remove
it and store the salvageable materials or equipment at the Contractor's expense.
If the Contractor does not pay costs of such removal and storage within ten days
after written notice, the Owner may upon ten additional days' written notice
sell such materials and equipment at auction or at private sale and shall
account for the proceeds thereof, after deducting costs and damages that should
have been borne by the Contractor, including compensation for the Architect's
services and expenses made necessary thereby. If such proceeds of sale do not
cover costs which the Contractor should have borne, the Contract Sum shall be
reduced by the deficiency. If payments then or thereafter due the Contractor are
not sufficient to cover such amount, the Contractor shall pay the difference to
the Owner.
12.2.5 The Contractor shall bear the cost of correcting destroyed or damaged
construction, whether completed or partially completed, of the Owner or separate
contractors caused by the Contractor's correction or removal of Work which is
not in accordance with the requirements of the Contract Documents.
12.2.6 Nothing contained in this Paragraph 12.2 shall be construed to establish
a period of limitation with respect to other obligations which the Contractor
might have under the Contract Documents. Establishment of the time period of one
year as described in Subparagraph 12.2.2 relates only to the specific obligation
of the Contractor to correct the Work, and has no relationship to the time
within which the obligation to comply with the Contract Documents may be sought
to be enforced, nor to the time within which proceedings may be commenced to
establish the Contractor's liability with respect to the Contractor's
obligations other than specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring
its removal and correction, in which case the Contract Sum will be reduced as
appropriate and equitable. Such adjustment shall be effected whether or not
final payment has been made.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place where the Project
is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their partners,
successors, assigns and legal representatives to the other party hereto and to
partners,
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #33
<PAGE>
successors, assigns and legal representatives of such other party in respect to
covenants, agreements and obligations contained in the Contract Documents.
Neither party to the Contract shall assign the Contract as a whole without
written consent of the other. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract; provided, however, that
Owner may assign this Contract and the other Contract Documents one time to any
parent or subsidiary corporation of Owner or partnership in which Owner is the
controlling partner, so long as Owner remains obligated hereunder.
Insert AD: If Owner defaults under any construction loan agreement in connection
with funds provided by a lender in connection with the Project, Contractor will
continue to perform the unperformed part of this Contract for the benefit of
such lender, provided that Contractor receives all sums under this Contract then
owing to Contractor and there is no material interruption in the prosecution of
the Work.
13.3 WRITTEN NOTICE
13.3.1 Written notice shall be deemed to have been duly served if sent by fax
(with a hard copy sent by overnight courier service that guarantees delivery on
the next business day) or if delivered in person to the individual or a member
of the firm or entity or to an officer of the corporation for which it was
intended, or if delivered at or sent by registered or certified mail to the last
business address known to the party giving notice (but notice by registered or
certified mail will only be deemed given on the third business day after the
date of deposit in the U.S. Mail).
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Documents and rights and
remedies available thereunder shall be in addition to and not a limitation of
duties, obligations, rights and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Architect or Contractor shall
constitute a waiver of a right or duty afforded them under the Contract, nor
shall such action or failure to act constitute approval of or acquiescence in a
breach thereunder, except as may be specifically agreed in writing.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the
Contract Documents or by laws, ordinances, rules, regulations or orders of
public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such
tests, inspections and approvals with an independent testing laboratory or
entity acceptable to the Owner, or with the appropriate public authority, and
shall bear all related costs of tests, inspections and approvals. The Contractor
shall give the Architect timely notice of when and where tests and inspections
are to be made so the Architect may observe such procedures. The Owner shall
bear costs of tests, inspections or approvals which do not become requirements
until after bids are received or negotiations concluded.
13.5.2 If the Architect, Owner or public authorities having jurisdiction
determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 13.5.1, the Architect will, upon
written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity
acceptable to the Owner, and the Contractor shall give timely notice to the
Architect of when and where tests and inspections are to be made so the
Architect may observe such procedures. The Owner shall bear such costs except as
provided in Subparagraph 13.5.3.
13.5.3 If such procedures for testing, inspection or approval under
Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, the Contractor
shall bear all costs made necessary by such failure including those of repeated
procedures and compensation for the Architect's services and expenses.
13.5.4 Required certificates of testing, inspection or approval shall, unless
otherwise required by the Contract Documents, be secured by the Contractor and
promptly delivered to the Architect.
13.5.5 If the Architect is to observe tests, inspections or approvals required
by the Contract Documents, the Architect will do so promptly and, where
practicable, at the normal place of testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall
be made promptly to avoid unreasonable delay in the Work.
13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest
from the date payment is due at such rate as the parties may agree upon in
writing or, in the absence thereof, at the legal rate prevailing from time to
time at the place where the Project is located.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #34
<PAGE>
13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1 As between the Owner and Contractor:
.1 BEFORE SUBSTANTIAL COMPLETION. As to acts or failures to act occurring
prior to the relevant date of Substantial Completion, any applicable
statute of limitations shall commence to run and any alleged cause of
action shall be deemed to have accrued in any and all events not later
than such date of Substantial Completion;
.2 BETWEEN SUBSTANTIAL COMPLETION AND FINAL CERTIFICATE FOR PAYMENT. As to
acts or failures to act occurring subsequent to the relevant date of
Substantial Completion and prior to issuance of the final Certificate
for Payment, any applicable statute of limitations shall commence to
run and any alleged cause of action shall be deemed to have accrued in
any and all events not later than the date of issuance of the final
Certificate for Payment; and
.3 AFTER FINAL CERTIFICATE FOR PAYMENT. As to acts or failures to act
occurring after the relevant date of issuance of the final Certificate
for Payment, any applicable statute of limitations shall commence to
run and any alleged cause of action shall be deemed to have accrued in
any and all events not later than the date of any act or failure to act
by the Contractor pursuant to any warranty provided under Paragraph
3.5, the date of any correction of the Work or failure to correct the
Work by the Contractor under Paragraph 12.2 or the date of actual
commission of any other act or failure to perform any duty or
obligation by the Contractor or Owner, whichever occurs last.
Insert AE: 13.8 Exculpation. The liability of Owner under this Contract and the
Contract Documents shall be limited to its interest in the Project, or to the
proceeds derived from sale of the Project and in no event shall any other assets
of Owner or any constituent partner of Owner be subject to any claim against its
assets other than the Project in connection with this Contract or the Contract
Documents. Notwithstanding the foregoing, however, if the portion of the Work
for which payment has not been made exceeds the value of Owner's interest in the
Project or the proceeds derived from sale of the Project (such difference being
referred to as the "Excess Obligation"), then the liability of the Owner under
the Contract and the Contract Documents in addition to Owner's interest in the
Project or the proceeds derived from sale of the Project will be limited to the
Excess Obligation.
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a
period of 30 days through no act or fault of the Contractor or a Subcontractor,
Sub-subcontractor or their agents or employees or any other persons performing
portions of the Work under contract with the Contractor, for any of the
following reasons:
.1 issuance of an order of a court or other public authority having
jurisdiction;
.2 an act of government, such as a declaration of national emergency,
making material unavailable;
.3 because the Architect has not issued a Certificate for Payment and has
not notified the Contractor of the reason for withholding certification
as provided in Subparagraph 9.4.1, or because the Owner has not made
payment on a Certificate for Payment within the time stated in the
Contract Documents, subject to the provisions of subparagraph 9.7.2.;
.4 if repeated suspensions, delays or interruptions by the Owner as
described in Paragraph 14.3 constitute in the aggregate more than 100
percent of the total number of days scheduled for completion, or 120
days in any 365-day period, whichever is less; or
.5 the Owner has failed to furnish to the Contractor promptly, upon the
Contractor's request, reasonable evidence as required by Subparagraph
2.2.1.
14.1.2 If one of the above reasons exists, the Contractor may, upon seven
additional days' written notice to the Owner and Architect, terminate the
Contract and recover from the Owner payment for Work executed and for proven
loss with respect to materials, equipment, tools, and construction equipment and
machinery, including reasonable overhead, profit and damages.
14.1.3 If the Work is stopped for a period of 60 days through no act or fault of
the Contractor or a Subcontractor or their agents or employees or any other
persons performing portions of the Work under contract with the Contractor
because the Owner has persistently failed to fulfill the Owner's obligations
under the Contract Documents with respect to matters important to the progress
of the Work, the Contractor may, upon seven additional days' written notice to
the Owner and the Architect, terminate the Contract and
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #35
<PAGE>
recover from the Owner as provided in Subparagraph 14.1.2.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Contract if the Contractor:
.1 persistently or repeatedly refuses or fails to supply enough properly
skilled workers or proper materials;
.2 fails to make payment to Subcontractors for materials or labor in
accordance with the respective agreements between the Contractor and
the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or
orders of a public authority having jurisdiction; or
.4 otherwise is guilty of substantial breach of a provision of the
Contract Documents.
Insert AF: .5 is ajudged a bankrupt or if Contractor makes a general assignment
for the benefit of creditor, or if a receiver is appointed on account of
Contractor's insolvency:
Insert AG: .6 Contractor fails to commence the Work in accordance with the
Contract Documents.
Insert AH: .7 Contractor fails to prosecute the Work to completion in a
diligent, efficient, timely and skillful and careful manner in accordance with
the Contract Documents, subject to events of force majeure and adjustments
because of changes in the Work agreed upon by Owner.
Insert AI: .8 Contractor presents to Owner or Architect any affidavit, release,
or document of any nature which, to Contractor's actual knowledge, is false or
misleading in any material respect.
14.2.2 When any of the above reasons exist, the Owner, upon certification by the
Architect that sufficient cause exists to justify such action, may without
prejudice to any other rights or remedies of the Owner and after giving the
Contractor and the Contractor's surety, if any, seven days' written notice,
terminate employment of the Contractor and may, subject to any prior rights of
the surety:
1. take possession of the site and of all materials, equipment, tools, and
construction equipment and machinery thereon owned by the Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
.3 finish the Work by whatever reasonable method the Owner may deem
expedient.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 14.2.1, the Contractor shall not be entitled to receive further
payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the
Work, including compensation for the Architect's services and expenses made
necessary thereby, such excess shall be paid to the surety issuing the payment
and performance bond for the Work. If such costs exceed the unpaid balance, the
Contractor shall pay the difference to the Owner. The amount to be paid to the
Contractor or Owner, as the case may be, shall be certified by the Architect,
upon application, and this obligation for payment shall survive termination of
the Contract.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend,
delay or interrupt the Work in whole or in part for such period of time as the
Owner may determine.
14.3.2 An adjustment shall be made for increases in the cost of performance of
the Contract, including profit on the increased cost of performance, caused by
suspension, delay or interruption. No adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended, delayed or
interrupted by another cause for which the Contractor is responsible;
or
.2 that an equitable adjustment is made or denied under another provision
of this Contract.
14.3.3 Adjustments made in the cost of performance may have a mutually agreed
fixed or percentage fee.
- --------------------------------------------------------------------------------
AIA DOCUMENT A201 - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
FOURTEENTH EDITION - AIA - COPYRIGHT 1987 - THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C. 20006-5292. WARNING;
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
Electronic Format A201-1987
User Document: PLASMA -- 2/4/1999.
AIA License Number 105133, which expires on 3/31/1999 -- Page #36
<PAGE>
SUPPLEMENTAL CONDITIONS
These Supplemental Conditions are attached to and made a part of the
"Standard Form of Agreement between Owner and Contractor" on AIA Form Document
A111 ("FORM Al11"), with attached "General Conditions of the Contract for
Construction" on AIA Form Document A201 ("GENERAL CONDITIONS"), which, together
with all Exhibits, attachments and schedules thereto are sometimes herein
collectively referred to as the "CONTRACT," all between PLASMA-THERM, INC. as
Owner and THE PERRY COMPANY as Contractor. These Supplemental Conditions control
over any inconsistent provision of the Contract and the Contract Documents. For
purposes of these Supplemental Conditions, all capitalized terms will have the
meanings ascribed to them in the Contract, unless otherwise provided herein.
Form A111
Section 4.2 ADD: "Liquidated damages of $1,500 per calendar day shall be
incurred if Substantial Completion is not achieved on or before the
date for Substantial Completion as provided under subsection 9.8 of
the General Conditions of the Contract for Construction (AIA
Document A201) and subsection 4.2 of the Owner-Contractor Agreement
(AIA Document A111). Total liquidated damages will not exceed
one-half (1/2) the Contractor's Fee for the project, or Two Hundred
Three Thousand Thirty-Five Dollars and No/100 Dollars ($207,232.50).
Owner and Contractor agree that such measure of liquidated damages
fairly and reasonably approximates the damages that Owner will
suffer in the event of delays in achieving Substantial Completion by
Contractor, and is not intended to be a penalty, actual damages
being difficult to calculate with certainty.
Form A111
Section 5.1 The following items will be included in General Conditions and
shall be a part of the Guaranteed Maximum Price:
Project Management
On-Site Supervision
Safety Programs and OSHA Compliance
Notice to Owner and Waiver of Lien Tracking
Subcontract Administration, Bid Package Preparation and Review with
the Owner Building Permit Application
Form A111
Section 12.1.1 ADD NEW SECTION: "Contractor shall cooperate with Owner
in providing all documents necessary for Owner to comply with
the requirements of Owner's construction lender. Contractor
acknowledges that the construction lender may have some specific
requirements concerning a draw schedule and the release of
payments of work performed on the Project and agrees to comply
with such requirements.
<PAGE>
Form A111
Section 12.5.4 ADD NEW SECTION: "Retainage equal to ten percent (10%) of
the amount of each Application for Payment will be withheld from
each disbursement until the date that Substantial Completion of
the Work has been achieved, a Certificate of Substantial
Completion has been signed by the Architect and a certificate of
occupancy has been issued by the City of St. Petersburg. At that
time, all of the retainage will be released to Contractor, less
a sum equal to 200% of the amount estimated by Architect as
necessary to complete or correct the items on the Punch List (as
defined and provided in Section 13.6 hereinbelow).
Form A111
Section 12.5.5 ADD NEW SECTION: As a condition precedent to progress
payments, each Application for Payment shall be accompanied by a
partial waiver of lien duly executed and notarized by Contractor
for that portion of the Work covered by the Application for
Payment. In addition, and also as a condition precedent to
progress payments, Contractor shall deliver with each
Application for Payment partial waivers of lien duly executed
and notarized by all subcontractors, sub-subcontractors and
material suppliers, in accordance with Florida's Construction
Lien Statute, showing payment through the prior month's
Application for Payment.
Form A111
Section 13.5.1 ADD NEW SECTION: As a condition precedent to final
payment, Contractor shall deliver to Owner a duly executed and
notarized final waiver of lien for the entire Project. In
addition, within ten (10) calendar days from final payment,
Contractor shall deliver to Owner similar final waivers of lien
duly executed and notarized by all subcontractors,
sub-subcontractors and material suppliers in accordance with
Florida's Construction Lien Statute. Contractor shall also
provide, with its final Application for Payment, the Final
Contractor's Affidavit required by Florida's Construction Lien
Statute.
Form A111
Section 13.6 ADD NEW SECTION: Upon receipt of a final Application for
Payment from the Contractor, as provided in subsection 9.10.1 of
the General Conditions of the Contract for Construction (AIA
Document A201), the Architect will issue, subject to the
provisions of Subsection 9.10.1 of the General Conditions, a
Certificate of Substantial Completion which will identify all
minor items of the Work (which do not materially interfere with
Owner's use and enjoyment of the Work) that require completion or
correction (the "PUNCH LIST"). The Certificate of Substantial
Completion will also estimate the cost and time period necessary,
in the opinion of the Architect, to complete or correct the items
shown on the Punch List. Within fifteen (15) days after the
latest of the dates that (i) Architect issues a Certificate of
Substantial Completion to Owner, (ii) the City of St. Petersburg
issues a final certificate of occupancy
-2-
<PAGE>
for the Work, and (iii) Contractor complies with the other
requirements of Article 9, the Contract Documents, and Owner's
Construction Lender, Owner will make final payment of all
remaining sums due Contractor, including the Contract retainage,
less a sum equal to (a) 200% of the amount estimated by Architect
as necessary to complete or correct the Punch List items (the
"PUNCH LIST RESERVE") and (b) any sum claimed by Owner to be due
in respect of liquidated damages due as otherwise provided by the
Contract Documents (a "LIQUIDATED DAMAGES CLAIM"). The Punch List
Reserve will remain undisbursed until Architect certifies to
Owner that all matters on the Punch List have been duly
completed, at which time the Punch List Reserve will be disbursed
to Contractor. Any Liquidated Damages Claim will remain
undisbursed until the underlying claim between Owner and
Contractor has been resolved by any means available under the
Contract Documents.
As a condition to the issuance of a Certificate of Substantial Completion
by Architect, in addition to any inspections of the Work to be conducted
by Architect, Owner or any other party, all portions of the Work relating
to all classes of clean rooms that are a part of the Work (collectively,
the "CLEAN ROOM") must be in compliance with the clean room and material
standards set forth in the Project Specifications, Drawings, and all
other relevant portions of the Contract Documents (collectively, the
"CLEAN ROOM STANDARDS") as demonstrated by the results of tests,
inspections and analyses conducted and prepared by Architect, any
consultant retained by Architect, or any independent third party testing
company which may be designated and paid by Owner (the "CLEAN ROOM
INSPECTOR"). Owner acknowledges and agrees, however, that Contractor is
not a guarantor of the correct, functional or efficient design of the
Clean Room by Architect. Contractor acknowledges that it is solely
responsible for requesting final inspection of the completed Clean Room
and Contractor will give written notice to Owner of the need for
inspection of the Clean Room, to commence not later than 28 calendar days
prior to the date that Substantial Completion of Work is to be achieved
as provided in the Contract (as such time may be extended by proper
Change Orders, if any). Contractor's notice will specify the date (which
must be at least fourteen (14) calendar days prior to the date that
Substantial Completion of Work is to be achieved) on which Contractor
desires that the Clean Room Inspector conduct its inspections and tests
with respect to the Clean Room. If the results of the inspections and
tests conducted by the Clean Room Inspector show the presence of defects,
nonconformities, omissions or irregularities in construction of the Clean
Room, including the failure to comply with Clean Room Standards, then
Architect shall not issue a Certificate of Substantial Completion of the
work until such matters are corrected and the Clean Room made to comply
with Clean Room Standards. All terms and provisions of the Contract
relating to failure of Architect to certify Substantial Completion of the
Work will thereupon apply. If Contractor gives timely notice to Owner of
the need for the Clean Room Inspector to begin its inspections of the
Clean Room, and the Clean Room Inspector thereafter fails to conduct and
issue the results of such inspections and tests of the Clean Room by the
date scheduled for achievement of Substantial Completion of the Work
pursuant to Article 4 of the
-3-
<PAGE>
contract, through no fault of Contractor, then delays in issuance of a
Certificate of Substantial Completion resulting solely from such failure
of the Clean Room Inspector to issue the results of its tests and
inspections will not subject Contractor to liability for liquidated delay
damages under the Contract. Notwithstanding the foregoing, however, if
the results of the tests and inspections conducted by the Clean Room
Inspector show the presence of defects, nonconformities, omissions or
irregularities in construction of the Clean Room, including the failure
to comply with Clean Room Standards, Contractor shall have seven (7)
calendar days (the "CURE PERIOD") to make remedies based on the results
of the inspection of the Owner's Clean Room Inspector, plus subsequent
re-inspection and certification by the Clean Room Inspector, prior to
incurring liquidated damages. The re-inspection will be paid by the
Contractor and performed by the Owner's Clean Room Inspector, and if the
results of the re-inspection show the presence of defects,
nonconformities, omissions or irregularities in the construction of the
Clean Room, including the failure to comply with Clean Room Standards,
liquidated damages will be assessed in accordance with the terms of the
Contract from the date that Substantial Completion of the Work was to
have been achieved pursuant to Article 4 of the Contract, notwithstanding
any previous delays in issuance of the results of the tests and
inspections by the Clean Room Inspector.
General Conditions
Section 4.5 The parties do not intend to use the arbitration provisions
contained in the standard form AlA Agreement. All claims or
disputes between Contractor and Owner arising out of or relating to
this Agreement, or breach thereof, shall be decided by a court of
law in Pinellas County, Florida. In any dispute arising out of or
relating to this Agreement the prevailing party shall be entitled
to an award of its reasonable attorneys' fees including all such
fees incurred on appeal, or in federal bankruptcy and
reorganization proceedings.
General Conditions
Section 11.3 Contractor shall provide the Builder's Risk Insurance for the
Project and shall bill Owner for such Builder's Risk Insurance as
part of the Cost of the Work.
OWNER: CONTRACTOR:
PLASMA-THERM, INC. THE PERRY COMPANY
By: /s/ STACY WAGNER By: /s/ JERRY N. PERRY
----------------------------- --------------------------
Stacy Wagner Jerry N. Perry
As Its: CFO As Its: Pres.
-4-
<PAGE>
Exhibit "A"
ARCHITECTURAL
1/13/99 Cover sheet
1/14/99 A001 Site plan
1/14/99 A100 Coordination plan
1/14/99 A101 Floor plan
1/14/99 A102 Suppressed slab plan & detail
1/14/99 A103 Mechanical mezzanine plan
1/14/99 A104 Roof plan
1/14/99 A105 Exterior Elevations
1/14/99 A106 Building wall sections & details
1/14/99 A107 Wall Sections
1/14/99 A108 Wall Sections
1/14/99 A109 Cleanroom wall sections
1/14/99 A110 Cleanroom details
1/14/99 A111 Reflected ceiling plan
1/14/99 A112 Finish & Door schedule & details
1/14/99 A113 Stair Sections
1/14/99 A114 Enlarged plans & interior elevations
1/14/99 A115 Cleanroom elevations
1/14/99 A116 Partition details
1/14/99 A117 Miscellaneous details
1/14/99 A118 Office furniture layout
MECHANICAL
1/14/99 M-1 Mechanical symbols & abbreviations
1/14/99 M-2 HVAC first floor plan
1/14/99 M-3 HVAC mezzanine plan
1/14/99 M-4 HVAC roof plan
1/14/99 M-5 Cleanroom HVAC partial plans
1/14/99 M-6 HVAC mezzanine plan
1/14/99 M-7 Cleanroom air flow diagram
1/14/99 M-8 Cleanroom air flow diagram
1/14/99 M-9 Cleanroom air flow diagram
1/14/99 M-10 Cleanroom chilled water flow diagram
1/14/99 M-11 Process piping first floor plan
1/14/99 M-12 Process piping mezzanine plan
1/14/99 M-13 Mechanical sections
1/14/99 M-14 Mechanical sections
1/14/99 M-15 Mechanical details
1/14/99 M-16 Mechanical schedules
1/14/99 M-17 Mechanical control diagrams
1/14/99 M-18 Mechanical control diagrams
1/14/99 M-19 Cleanroom chilled water flow diagram
STRUCTURAL
7/13/98 S1.1 General Notes
7/13/98 S1.2 Foundation Plan
7/13/98 S2.1 Second Floor Framing Plan
7/13/98 S3.1 Third Floor Framing Plan
7/13/98 S3.2 Roof Framing Plan
7/13/98 S3.3 Building Sections & Details
7/13/98 S4.1 Building Sections & Details
7/13/98 S4.2 Sections & Detail
7/13/98 S5.1 Sections & Detail
ELECTRICAL
7/21/98 E001 Lighting fixture schedule & legend
7/21/98 E002 Electrical site plan
7/21/98 E100 Floor plan lighting
7/21/98 E101 Mezzanine plan lighting
7/21/98 E102 Floor plan power & miscellaneous
7/21/98 E103 Mezzanine plan power & misc.
7/21/98 E104 Mechanical equipment schedule
7/21/98 E105 Panel board schedule
7/21/98 E106 Panel board schedule & one line diagram
PLUMBING
7/13/98 P-1 Plumbing plan sanitary
7/13/98 P-2 Plumbing domestic water
7/13/98 P-3 Plumbing condesate
7/13/98 P-4 Plumbing schedules/risers
SITE PLANS
7/27/98 1 Site plan
8/21/98 2 Paving, grading & drainage plan
3/19/98 3 Paving, grading & drainage details
<PAGE>
EXHIBIT D
PLASMA THERM PHASE II COST BREAKDOWN
2/4/99
DESCRIPTION COST
- --------------------------------------------------------------------------------
Contractor General Conditions $247,605
Permits $15,500
Insurance $3,500
Janitorial Clean up $7,850
Survey and Layout $12,500
Dumpster/Trash Removal $15,500
Sitework $145,000
Soil Treatment $3,100
Landscaping and Irrigation (Allowance) $45,000
Sidewalks/House keeping pads $7,500
Concrete $215,575
Masonry $245,000
Structural Steel $285,150
Carpentry/Millwork $16,800
Moisture Control/Roofing $99,500
Wood Doors and Hardware $5,500
Metal Doors and Hardware $6,900
Hardware/Labor & Specialties $18,800
Aluminum Cleanroom Doors and Hardware $45,000
Overhead Doors With Operators $6,500
Exterior Glass and Glazing $60,907
Interior Glass and Glazing $11,910
Automatic Glass Doors $32,683
Metal Studs/Drywall/EIFS $360,000
Cleanroom Walls $290,000
Ceramic Tile $18,500
Acoustical Ceilings $18,500
Cleanroom Ceilings $175,000
Resilient Floors $8,650
Cleanroom Floors $175,000
Carpeting $27,750
Epoxy Coatings $35,000
Painting $61,289
Specialties $29,400
Mechanical System $1,765,000
Fire Protection $48,500
Electrical $450,000
Security System $25,000
Sidewalk including parking modifications to connect new
building to existing $16,500
Dry fog painting of all open structure (deck and bar joist)
ceilings. Not including ceiling. $11,450
Vibration platforms ALLOWANCE $52,000
Contingency $60,002
Fee $414,465
================================================================================
SUB TOTAL $5,595,286
Bond $55,953
TOTAL $5,651,239
<PAGE>
EXHIBIT "E"
Contractor's Insurance Requirements
The following requirements are in addition to any requirements contained
in Article 11 of the General Conditions to the Contract and control over any
provision of such Article to the contrary.
WORKERS COMPENSATION INSURANCE, including claims under workers
compensation, disability benefits and other similar employee benefits acts, and
Employers' Liability insurance with limits of coverage as required by law.
Contractor will obtain the insurance, file a copy of the policy and a current
certificate for insurance with Owner promptly after execution of the Contract.
BUILDERS LIABILITY, GENERAL LIABILITY AND EXCESS UMBRELLA INSURANCE,
including claims for damages arising out of bodily injury, sickness or disease
or death of any person, including Contractor's employees; claims for damages
insured by usual personal injury liability coverage which are sustained by (i)
any person as a result of an offense directly or indirectly related to the
employment of such person by Contractor or (ii) any other person; claims for
damages arising out of injury to or destruction of tangible property, including
loss of use resulting therefrom; and claims for damages because of bodily injury
or property damage arising out of the ownership, maintenance or use of motor
vehicles. Such insurance will be written with commercial general liability
insurance limits of liability of not less than $1,000,000.00 per person and
$3,000,000.00 per accident for bodily injury and property damage on an
occurrence basis with $5,000,000.00 limits of Excess Umbrella coverage and
$500,000 combined single limit for automobile liability. The commercial general
liability insurance will include the following coverages: (i) contractual
liability (applicable to Contractor's obligation to indemnify Owner under the
indemnification provisions of Article 3.18 of the General Conditions [Form A20
1] which are a part of the Contract Documents) (ii) premises operations
(including XCU coverage); (iii) independent contractor's protective; products
and completed operations; (iv) personal injury with employment exclusion
deleted; (v) contractual coverage and (vi) broad form property damage included
completed operations, workers compensation insurance and employer's liability
insurance. All liability insurance coverage will be written by an insurer having
a Best Rating of A-: IX or better and reasonably acceptable to Owner. Contractor
will obtain the insurance, file a copy of the policy and a current certificate
for insurance with Owner promptly after execution of the Contract.
BUILDER'S RISK INSURANCE, will include coverage from all hazards covered under
an "All-Risk" policy for the entire Work of the Contract to the full insurable
value thereof Such insurance will be written by an insurer having a Best Rating
of A-: IX or better and reasonably acceptable to Owner. The insurance policy
will have a deductible amount of not more than $5,000.00 per occurrence.
Contractor will be responsible for deductible losses (not to exceed $5,000.00
per occurrence) to the extent caused by Contractor or its agents, employees and
subcontractors. Builder's Risk Insurance will include the interests of Owner,
Contractor, Subcontractors and Sub-subcontractors in the Work and Owner will be
an additional insured on the policy. Contractor will obtain the insurance, file
a copy of the policy and a current certificate for insurance with Owner promptly
after execution of the Contract.
<PAGE>
EXHIBIT "F"
Bonding Requirements
The following requirements are in addition to any requirements contained
in the General Conditions to the Contract and control over any provision of such
Article to the contrary.
The payment and performance bonds for the Project will be prepared on the
standard form of the American Institute of Architects, with changes necessary to
comply with the Florida Construction Lien Law. Such bonds will be in an amount
equal to the Guaranteed Maximum Price and will include a dual obligee rider
naming Owner and Owner's construction lender as obligees to the bond.
<PAGE>
EXHIBIT "H"
PLASMA-THERM, INC.
PHASE II
BID QUALIFYING STATEMENT
The Perry Company
FEBRUARY 2, 1999
This document outlines the exceptions, clarifications and allowances based on
the project specifications dated (See exhibit A) and the plans provided by
Plasma-Therm, Inc. dated (See exhibit A). Any change in scope not outlined in
the documents, shown on the drawings or contained in the specification provided
by Plasma-Therm is not included.
Plasma-Therm retains the right of review and approval of the products and the
associated manufacture as outlined in this document. Should Plasma-Therm
disapprove one of the products or the associated manufacture the contractor will
find a new product that will satisfy Plasma-Therm and adjust the contract amount
if the new product price more or less than the specified product.
DIVISION 1 - GENERAL REQUIREMENTS
GENERAL CONDITIONS
Impact fees and utility connection fees with the exception of the building
permit are not included and are assumed to be the responsibility of the Owner.
Architectural/Engineering contract administration not included.
LABORATORY TESTING
An allowance $6,500 for soils and construction material testing.
INSURANCE AND BONDS
Builder's risk insurance included.
Liability and property damage insurance included.
Payment and performance bond included.
DIVISION 2 - SITE WORK
1
<PAGE>
SITE PREPARATION
Conduits and a sidewalk for connecting the existing building and the new
building including associated parking lot modifications included. The cover
on the walkway is not included.
Exclusions: Removal and replacement of any unsuitable soils.
LANDSCAPING (Allowance $45,000)
Includes the following items of work:
Architecture
Planting
Sodding
Irrigation
Earth beams
Planting topsoil
Site Lighting (By power company)
DIVISION 3 - CONCRETE
STRUCTURAL CAST-IN-PLACE AND ON-SITE PRECAST CONCRETE
No exceptions or clarifications.
DIVISION 4 - MASONRY
Regular block used on the west elevation.
All block including glass block to match existing.
DIVISION 5 - METALS
STRUCTURAL STEEL / LIGHT GAUGE STEEL FRAMING
Covered walkway to existing building not included.
Metal window canopies not included.
DIVISION 6 - CARPENTRY AND MILL WORK
Reception desk not included.
DIVISION 7 - MOISTURE PROTECTION
Roofing design to match existing building.
All exterior 24 ga. Steel will be locally fabricated and be painted with Kynar
500 finish to match the existing building.
2
<PAGE>
DIVISION 8 - DOORS AND WINDOWS
Exterior glass and glazing to match existing.
Interior wood doors, jams and hardware to match existing.
Exterior metal doors to match existing.
Overhead doors -- Atlas overhead coiling thermal doors.
DIVISION 9 - FINISHES
24" X 48" X 5/8" Armstrong Mylar #884 ceiling panels in a Gordon RG 15 clean
room suspension system for Class 100 and Class 1000 areas.
24" x 48" x 1/4" Plascore or equal ceiling panels in a Gordon DS clean room
suspension system Class 10 areas.
Wallcoverings are included (4,466 S.F. x $1.75) including labor.
Rooms without acoustical ceilings include no paint.
Split faced block to receive Hydrozo clear Double 7 water repellant.
Epoxy Floor- shall be shot blast, one coat moisture tolerant epoxy sealer
Benjamin Moore (M68/M69) and two coats 100% solids amine cured epoxy (M70/M1).
Ceramic Tile -- Bathrooms - match existing
Lobby/ Employee Entrance/Corridor -- match existing
Dry fog painting of all open structure (deck and bar joists) ceilings.
Not including piping or conduit.
DIVISION 10 - SPECIALTIES
Folding partition to be Panelfold Moduflex, 600 Series -- STC45 manually
operated individual panels with Standard Fabrictex or Ropetex vinyl covering,
Type 7/8 aluminum track on 6" allthread and automatic bottom seals with single
closure panel.
GRAPHICS AND EXTERIOR SIGNAGE
An allowance of $1500 for exterior monument sign included.
DIVISION 11 - EQUIPMENT
No exceptions or clarifications.
DIVISION 12 - FURNISHINGS AND BLINDS
Blinds are not included.
Vibration damper platforms - $52,000 Allowance.
Access flooring shall be Maxcess Technologies or equal aluminum panels and
understructure including stringers. We included eight 2" diameter cable cutouts
and grommets.
"Post Expansion Anchors" not included.
3
<PAGE>
DIVISION 13 - SPECIAL CONSTRUCTION
No exceptions or clarifications.
DIVISION 14 - CONVEYING SYSTEMS
No exceptions or clarifications.
DIVISION 15 - MECHANICAL
PROCESS PIPING
FRP will be Perry fiberglass with Hetron FR 992 resin. Flame spread rating less
than 25 and a smoke development rating less than 50.
VENTILATING AND AIR CONDITIONING
Direct Drive Recirculating units to utilize a 49" Plug fan and Inlet Disk in
lieu of speed drive per Hunt Air.
Condensate piping not shown for recirculating units.
Duct insulation -- 2" wrap concealed and exposed.
Pipe insulation - fiberglass.
Cleanroom testing not included.
MECHANICAL
D.I. canisters furnished and installed by others. Perry to coordinate
installation and schedule. Nitrogen tanks and manifold by others final
connection only. Perry to coordinate installation and schedule.
Scrubber system will be Harrington or equal, excluding RTP-1 standard (Not a
typical standard achievable from any of the manufactures).
CONTROLS
Control deviations:
Exclude: requirement for "analog"
Exclude: "binary input" positive position feedback on control valves and VFDs.
Exclude: "binary input" status on smoke detectors.
FIRE PROTECTION
Based on light hazard occupancy. Fire sprinkler system is based on adequate
water supply and pressure. Fire pump or hose stations are not provided for in
base bid. Fire sprinkler system per NFPA standards.
4
<PAGE>
6" DCVA and RPBEP with meter and 6" tap, sleeve and valve to be installed by The
City and paid for by owner. Perry to coordinate installation and schedule.
DIVISION 16 - ELECTRICAL
ELECTRICAL DISTRIBUTION
Future disconnects (notes 1,2,&3 pg El02 only) not included.
Switchboard redesign to include L.S.I.G. phase failure relays. Design to actual
available fault current.
M/C cable will be used wherever possible.
SECURITY SYSTEM
$25,000 allowance included
TELEPHONE/DATA WIRING
Not included
EQUIPMENT HOOKUP
$12,000 allowance for equipment hookup included.
LIGHTNING PROTECTION
Surge protection provided per plans and specifications.
5
EXHIBIT 10.55
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made by NationsBank,
N.A. ("LENDER"), and the Borrower identified in EXHIBIT "B" ("BORROWER"), who
agree as follows:
ARTICLE 1. - THE LOAN
1.1 GENERAL INFORMATION AND PURPOSE. The Basic Information attached as
EXHIBIT "B" and all other exhibits, which are made a part of this Agreement and
incorporated herein by reference, contain definitions of certain terms used
herein, and also contain other terms, provisions, and conditions applicable to
the Loan. The proceeds of the Loan shall be used by Borrower to pay the cost of
the construction of the Improvements on the Land, and other costs regarding the
Property if and to the extent that such costs are specifically provided for in
the Loan Allocation column in the Budget. The Loan Documents, which must be in
form, detail and substance satisfactory to Lender, evidence the agreements of
Borrower and Lender with respect to the Loan. Borrower shall comply with all
Loan Documents.
1.2 COMMITMENT TO LEND. Lender agrees to make the Loan to Borrower in
advances subject to and in accordance with EXHIBIT "F" and the other terms and
conditions of this Agreement. Lender's commitment to lend shall expire and
terminate on the date when the Final Advance for Improvements (as defined
herein) is made; automatically if the Loan is prepaid in full; and at Lender's
option in the event of a Default. The Loan is not revolving. An amount repaid
may not be reborrowed.
1.3 BUDGET. The Loan funds are allocated for the costs of the Project
shown in the Loan Allocation column in the Budget attached as EXHIBIT "D". The
Budget has been prepared by Borrower and Borrower represents to Lender that it
includes all costs and expenses (the "AGGREGATE COST") incident to the Loan and
the Project, through the maturity date of the Loan, after taking into account
the requirements of this Agreement. Lender shall not be required to (a) make any
advance for any cost not set forth in the Budget, (b) make any advance for any
line item in the Budget that, when added to all prior advances for that line
item, would exceed the lesser of i) the actual cost incurred by Borrower for
such line item or ii) the sum allocated in the Loan Allocation column in the
Budget for that line item, or (c) make any advance for interest on the Loan
after commencement of operations in the Improvements if and to the extent that
there is sufficient net operating income from the Property to cover any such
advances. Lender may make advances allocated to line items in the Budget for
other purposes or in different proportions as Lender in its sole discretion
deems necessary or advisable; provided, however, that if Lender is requested by
Borrower to make a reallocation of a hard cost item which would require
contractor and lienor notices under ss. 713.3471(2), FLORIDA STATUTES, written
notice from the owner to the applicable contractor and all required lienors, in
compliance with ss. 713.3471(2), FLORIDA STATUTES, and countersigned by the
applicable contractor and any lienors who have provided notices to owner shall
be given prior to any such reallocation. Without prior written approval of
Lender, Borrower shall not reallocate Loan funds from one Budget line item to
another or otherwise amend the Budget.
1.4 BORROWER'S DEPOSIT. If at any time Lender determines that the sum
of (i) the unadvanced portion of the Loan to which Borrower is entitled, plus
(ii) the amounts of the Aggregate Cost which are scheduled to be paid by
Borrower from other funds which are available, set aside and committed, to
Lender's satisfaction, is or will be insufficient to pay the unpaid actual
Aggregate Cost, Borrower shall, within seven (7) days after written notice from
Lender, deposit with Lender the amount of the deficiency ("Borrower's Deposit")
which Borrower's Deposit shall be deposited in an interest-bearing account with
interest earned thereon to be part of the Borrower's Deposit. Such Borrower's
Deposit is hereby pledged as additional collateral on the Loan, and Borrower
hereby grants and conveys to Lender a security interest in all funds so
deposited with Lender, as additional collateral on the Loan. Upon a Default,
Lender may (but shall have no obligation to) apply all or any part of the
Borrower's Deposit against the unpaid Indebtedness in such order as Lender
determines. As long as the Loan is current and not in default, Borrower shall
have the right to elect whether the
<PAGE>
Borrower's Deposit shall be expended before any further Loan disbursements are
made or in the alternative, whether said Borrower's Deposit shall continue to be
held in the interest-bearing account until all Loan disbursements have been made
by Lender and the Borrower's Deposit is necessary to complete the construction
of the Project.
ARTICLE 2. - ADDITIONAL COVENANTS AND AGREEMENTS
2.1 PLANS. Borrower assumes full responsibility for the compliance of
the Plans and the Property with all laws, governmental requirements and sound
building and engineering practices. No construction shall be undertaken on the
Land except as shown in the Plans. No plans or specifications, or any changes
thereto except Permitted Changes, shall be included as part of the Plans until
consented to by Lender, and approved by Construction Consultant, all applicable
governmental authorities, as may be necessary, and all parties required under
the Loan Documents. As to changes to the Plans which are not Permitted Changes,
Lender shall have fifteen (15) days from the receipt of the requested change in
which to review same and communicate to Borrower its approval or disapproval of
the requested change.
2.2 CONTRACTS. Without Lender's prior written approval as to parties,
terms, and all other matters, Borrower shall not (a) enter into any contract for
the performance of any work or the supplying of any labor, materials, or
services for the design or construction of the Improvements which is in excess
of $50,000.00 (and to the extent such contract is less than $50,000.00, Borrower
shall promptly provide a copy of same to Lender after such contract is fully
executed), (b) enter into any management, leasing, maintenance or other contract
pertaining to the Property not described in clause (a) preceding that is not
unconditionally terminable by Borrower or any successor owner without penalty or
payment on not more than thirty (30) days notice to the other party thereunder,
or (c) modify, amend, or terminate any such contracts. All such contracts shall
provide that all liens of the applicable contractor, architect, supplier,
surveyor or other party and any right to remove removable Improvements are
subordinate to Lender's rights, AND shall require all subcontracts and purchase
orders to contain a provision subordinating the subcontractors' and mechanics'
and materialmen's liens and any right to remove removable Improvements to
Lender's rights, and shall provide that no change order shall be effective
without the prior written consent of Lender except for Permitted Changes.
Borrower shall not default under any contract, Borrower shall not permit any
contract to terminate by reason of any failure of Borrower to perform
thereunder, and Borrower shall promptly notify Lender of any material default
thereunder. Borrower will deliver to Lender, upon request of Lender, the names
of persons or entities with whom each contractor has contracted or intends to
contract for the construction of the Improvements or for the furnishing of labor
or materials therefor, but only to the extent such information is supplied to
Borrower by the Contractor.
2.3 CONSTRUCTION OF THE IMPROVEMENTS. Borrower shall commence
construction of the Improvements within 30 days of the Loan closing date, and
shall prosecute the construction of the Improvements with diligence and
continuity, in a good and workmanlike manner, and in accordance with sound
building and engineering practices, all applicable laws and governmental
requirements, the Loan Documents, and the Plans. Borrower shall not permit
cessation of work for a period in excess of fifteen (15) days (whether or not
consecutive), except for Excusable Delays. Borrower shall complete construction
of the Improvements, and shall obtain a permanent unconditional certificate of
occupancy and all other permits, licenses, and approvals for the occupancy, use
and operation of the Improvements from all applicable governmental authorities
on or before the Completion Date, free and clear of all liens except the Loan
Documents. Borrower shall correct promptly (a) any material defect in the
Improvements, (b) any material departure from the Plans, law, or governmental
requirements, or (c) any encroachment by any Improvements or structure on any
building setback line, easement, property line or restricted area.
2.4 CHANGES. Without Lender's prior written consent, Borrower shall not
materially change or modify the Plans in any manner which changes the general
design, materials, size, quality of construction or structural integrity of the
Improvements as approved by Lender, agree to any change order, or allow any
extras to any contractor or any subcontractor, except that Borrower may make the
Permitted Changes if: (a) Borrower notifies Lender in writing of the change or
extra with appropriate supporting documentation and information; (b) Borrower
obtains the approval of the
2
<PAGE>
applicable contractor, Borrower's architect, and all sureties; (c) the
structural integrity, quality and standard of workmanship of the Improvements is
not impaired; (d) no substantial change in architectural appearance is affected;
(e) no default in any obligation to any person or violation of any law or
governmental requirement would result from such change or extra; (f) Borrower
complies with Section 1.4 of this Agreement to cover any excess cost resulting
from the change or extra; (g) completion of the Improvements by the Completion
Date will not be affected; and (h) all requirements of ss. 713.3471(2), FLORIDA
STATUTES, have been fully satisfied. Lender shall not be obligated to review a
proposed change which Lender is entitled to approve unless it has received all
documents necessary to review such change, such as the change order, cost
estimates, plans and specifications, and evidence that all approvals by all
applicable parties have been obtained. As to changes which are not Permitted
Changes, Lender shall have five (5) days from the receipt of any requested
change order which does not involve a change in the Plans in which to review
same and communicate to Borrower its approval or disapproval of the requested
change order.
2.5 STORAGE OF MATERIALS. Borrower shall cause all materials supplied
for, or intended to be utilized in the construction of the Improvements, but not
yet affixed to or incorporated into the Improvements on the Land, to be stored
on the Land with adequate safeguards as required by Lender to prevent loss,
theft, damage or commingling with other materials or projects. Borrower shall
not purchase or order materials for delivery more than forty-five (45) days
prior to the scheduled incorporation of such materials into the Improvements.
2.6 INSPECTION. Lender may enter upon the Property to inspect the
Property and any materials at any reasonable time. Borrower will furnish to
Lender at any time for inspection and copying all Plans, shop drawings,
specifications, books and records, and other documents and information required
by Lender.
2.7 NOTICE TO LENDER. Borrower shall promptly notify Lender in writing
of any of the following events, specifying in each case the action Borrower has
taken or will take with respect thereto: (a) any violation of any law or
governmental requirement; (b) any litigation, arbitration or governmental
investigation or proceeding instituted or threatened against Borrower or any
Guarantor or the Property or any material development therein; (c) any actual or
threatened condemnation of any portion of the Property, any negotiations with
respect to any such taking, or any loss of or substantial damage to the
Property; (d) any labor controversy pending or threatened against Borrower or
any contractor or any material development in any labor controversy; (e) any
notice received by Borrower with respect to the cancellation, alteration or
non-renewal of any insurance coverage maintained with respect to the Property;
or (f) any failure by Borrower or any contractor to perform any material
obligation under any construction contract, any event or condition which would
permit termination of a construction contract or suspension of work thereunder,
or any notice given by Borrower or any contractor with respect to any of the
foregoing.
2.8 ASSIGNMENT OF CONTRACTS AND PLANS. As additional security for the
payment of the Loan, Borrower hereby transfers and assigns to Lender all of
Borrower's rights and interest, but not its liability, in, under, and to all
construction, architectural and design contracts, permits and the Plans, and
agrees that all of the same are covered by the security agreement provisions of
the Mortgage. Borrower represents and warrants that the copy of any contract
furnished or to be furnished to Lender is and shall be a true and complete copy
thereof, that the copies of the Plans delivered to Lender are and shall be true
and complete copies of the Plans, that there have been no modifications thereof
which are not fully set forth in the copies delivered, and that Borrower's
interest therein is not subject to any claim, setoff, or encumbrance. Neither
this assignment nor any action by Lender shall constitute an assumption by
Lender of any obligation under any contract or with respect to the Plans, and
Borrower shall continue to be liable for all obligations of Borrower with
respect thereto, Borrower hereby agreeing to perform all of its obligations
under any contract. Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of Borrower such action Lender
may determine necessary to cure any default under any contract or with respect
to the Plans or to protect the rights of Borrower or Lender with respect
thereto. Lender shall incur no liability if any action so taken by it or on its
behalf shall prove to be inadequate or invalid. Borrower indemnifies and holds
Lender harmless against and from any loss, cost, liability or expense
(including, but not limited to, attorneys' fees and expenses) incurred in
connection with
3
<PAGE>
Borrower's failure to perform such contracts or any action taken by Lender.
Lender may use the Plans for any purpose relating to the Improvements. Borrower
irrevocably constitutes and appoints Lender as Borrower's attorney-in-fact,
which power of attorney shall be irrevocable and coupled with an interest, in
Borrower's name or in Lender's name to enforce all rights of Borrower under any
contract or with respect to the Plans.
2.9 ADVERTISING BY LENDER. At Lender's request and expense, Borrower
shall place upon the Property at a mutually acceptable location a sign
announcing that financing is being provided by Lender. Also, Lender shall have
the right to secure printed publicity through newspapers and other media
concerning the Property and its financing. All publicity referenced herein shall
require Borrower's prior approval, which shall not be unreasonably withheld.
2.10 FINANCIAL STATEMENTS. Borrower shall deliver to Lender the
Financial Statements and other statements and information at the times and for
the periods described in the Basic Information, and as otherwise required by any
other Loan Documents.
2.11 APPRAISAL. Lender may obtain at Borrower's expense upon request an
appraisal of any part of the Property prepared in accordance with written
instructions from Lender by a third-party appraiser engaged directly by Lender.
Each such appraiser and appraisal shall be satisfactory to Lender (including
satisfaction of applicable regulatory requirements). The cost of each such
appraisal shall be due and payable by Borrower on demand and shall be secured by
the Loan Documents. Borrower shall cooperate fully with the appraisal process,
including, but not limited to, allowing reasonable entry upon and into the
Property. Notwithstanding anything contained herein or in the other Loan
Documents for the Loan to the contrary, Lender shall not request updated
appraisals pursuant to this Section unless: (a) the Loan is in Default, 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., Lender has reason to believe the value
of the Property has declined such that the desired Loan-to-value ratio is no
longer maintained).
2.12 CONSTRUCTION CONSULTANT AND SUPERVISING ARCHITECT. Lender shall
designate a Construction Consultant to perform various services on behalf of
Lender. The services to be performed by Lender's Construction Consultant include
review of the Plans and specifications and all proposed changes to them,
preparation of a "cost take-off" construction analysis, inspection of
construction work for conformity with the approved Plans and specifications, and
approval of requests for Loan disbursements. The cost of these services shall be
paid by Lender, except that the Borrower shall pay the cost of all inspections
of the Property made by the Construction Consultant after the fourteenth (14th)
inspection, if any. Inspections of the construction site shall be limited to one
time per month unless additional site inspections are deemed necessary by the
Lender's Construction Consultant. Borrower shall have a supervising architect,
who is acceptable to the Lender, and who will perform various services in
connection with the construction of the Improvements under a "full-service"
contract with Borrower or Borrower's Contractor. Such services shall include
certifying to Lender the results of regular, periodic inspections of the
construction through completion of the Improvements, including but not limited
to compliance with the Plans and the percentage of Loan funds requested to be
drawn in relation to the percentage of work completed as a condition of Loan
advances. Lender's Construction Consultant and Borrower's supervising architect
shall not be the same person or firm. Borrower shall cooperate with Construction
Consultant and will furnish Construction Consultant whatever Construction
Consultant considers necessary or useful to perform its duties. The duties of
Construction Consultant run solely to Lender, and Construction Consultant shall
have no obligations or responsibilities whatsoever to Borrower, Borrower's
supervising architect, engineer, contractor or to any of their agents or
employees.
2.13 REPORTS AND VOUCHERS. Borrower shall (a) promptly deliver to
Lender copies of all reports, studies, inspections and tests made on the Land,
the Improvements or the materials to be incorporated into the Improvements; (b)
make additional tests Lender reasonably requires; and (c) deliver to Lender, on
demand, any contracts, bills of sale, statements, receipted vouchers or
agreements under which Borrower claims title to any materials, fixtures or
articles incorporated or to be incorporated in the Improvements or otherwise
subject to a lien or security interest in favor of
4
<PAGE>
Lender. Borrower shall immediately notify Lender of such report, study,
inspection or test that indicates any adverse condition in the Land or the
Improvements.
2.14 PAYMENT OF WITHHOLDING TAXES. Borrower shall not use, or knowingly
permit any contractor or subcontractor to use, any portion of the proceeds of
any advance to pay the wages of employees unless a portion of the proceeds or
other funds are also used to make timely payment to or deposit with the United
States all amounts of tax required to be deducted and withheld with respect to
such wages under the Internal Revenue Code, and to make timely payment to or
deposit with any local and/or state governmental authority or agency having
jurisdiction all amounts of tax required to be deducted and withheld with
respect to such wages under any applicable local and/or state laws.
2.15 REPRESENTATIONS AND WARRANTIES. To induce Lender to make the Loan,
Borrower hereby represents and warrants to Lender that (a) prior to the
recordation of the Mortgage, no work of any kind (including the destruction or
removal of any existing improvements, site work, clearing, grading, grubbing,
draining or fencing of the Land) has been or will be commenced or performed on
the Land, no equipment or material has been or will be delivered to or upon the
Land for any purpose whatsoever, and no contract (or memorandum or affidavit
thereof) for the supplying of labor, materials, or services for the design or
construction of the Improvements, or the surveying of the Land or Improvements,
nor any affidavit or notice of commencement of construction of the Improvements,
has been or will be executed or recorded, which could cause a mechanic's or
materialman's lien or similar lien to have an inception so as to achieve
priority over the mortgage or the rights of Lender thereunder; (b) to the extent
required by applicable law, Borrower and Guarantor have filed all necessary tax
returns and reports and have paid all taxes and governmental charges thereby
shown to be owing; (c) the Plans are satisfactory to Borrower, have been
approved by all applicable governmental authorities, have been accepted by each
contractor, are complete in all material respects, contain all detail necessary
and are adequate for the construction of the Improvements, and comply with the
Loan Documents, all applicable laws, restrictive covenants, and governmental
requirements, rules, and regulations; (d) the Land is not part of a larger tract
of land owned by Borrower or its affiliates or any Guarantor and is not
otherwise included under any unity of title or similar covenant with other lands
not encumbered by the Mortgage, and Borrower has obtained or will obtain prior
to the issuance of the first tax bill coming due after the date of this
Agreement, a separate tax lot or lots with a separate tax assessment or
assessments for the Land and Improvements, independent of any other lands or
improvements; (e) the Land and Improvements comply with all laws and
governmental requirements, including all subdivision and platting requirements,
without reliance on any adjoining or neighboring property; (f) the Plans do and
the Improvements when constructed will comply with all legal requirements
regarding access and facilities for handicapped or disabled persons; (g)
Borrower has not directly or indirectly conveyed, assigned or otherwise disposed
of or transferred (or agreed to do so) any development rights, air rights or
other similar rights, privileges or attributes with respect to the Property,
including those arising under any zoning or land use ordinance or other law or
governmental requirement; (h) the construction schedule for the Project is
realistic and the Completion Date is a reasonable estimate of the time required
to complete the Project; (i) the Financial Statements delivered to Lender are
true and correct, and there has been no material change of Borrower's financial
condition from the financial condition of Borrower indicated in such Financial
Statements; and (j) The Borrower has (i) initiated a review and assessment of
all areas within its, Guarantor's and each of their respective affiliates',
subsidiaries' and other related entities (the "Related Entities") business and
operations (including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower, Guarantor or any of their respective Related
Entities (or its suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its, Guarantor's or any of their respective Related Entities'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant"), except to the extent that a failure to do so
could
5
<PAGE>
not reasonably be expected to have material adverse effect on the Borrower's,
Guarantor's or any Related Entities' business, operations, creditworthiness or
financial status.
2.16 YEAR 2000 COMPLIANCE. The Borrower will promptly notify the Lender
in the event the Borrower discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its,
Guarantor's or any of their respective affiliates', subsidiaries', or other
related entities' (the "Related Entities") business and operations will not be
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 on the
Borrower's, Guarantor's or any Related Entities' business, operations,
creditworthiness or financial status.
ARTICLE 3. - DEFAULT AND REMEDIES
3.1 EVENTS OF DEFAULT. The occurrence of any one of the following shall
be a default under this Agreement ("DEFAULT"): (a) any of the Indebtedness is
not paid when due, whether the due date is the scheduled due date or arises by
acceleration or otherwise; (b) any covenant, agreement or condition in any Loan
Document (other than covenants to pay any of the Indebtedness) is not fully and
timely performed, observed or kept; (c) the cessation of the construction of the
Improvements continues for more than fifteen (15) days (whether or not
consecutive) except for Excusable Delays; (d) the construction of the
Improvements, or any materials for which an advance has been requested, fails to
comply with the Plans, the Loan Documents, or any laws or governmental
requirements, which failure is not cured within thirty (30) days after written
notice thereof to Borrower; (e) Borrower fails to satisfy any condition
precedent to the obligation of Lender to make an advance; (f) construction of
the Improvements is abandoned, or Borrower fails to complete construction of the
Improvements (and obtain all applicable permits, licenses, and approvals) in
accordance with this Agreement on or before the Completion Date; (g) any
required permit, license, certificate or approval with respect to the Property
lapses or ceases to be in full force and effect; (h) a Borrower's Deposit is not
made with Lender within seven (7) days after Lender's request therefor in
accordance with Section 1.4; (i) construction is enjoined or Borrower or Lender
is enjoined or prohibited from performing under the Loan Documents; (j) the
owner of the Property enters into any lease of part or all of the Property which
does not comply with the Loan Documents; or (k) any claim of lien for labor or
materials or any other lien or encumbrance of any nature whatsoever is recorded
against Borrower or the Property and is not removed by payment or transferred to
substitute security in the manner provided by law, within ten (10) days after it
is recorded in accordance with applicable law; or (l) any federal, state or
local tax lien is recorded against the Borrower or the Property and is not
removed by payment or transferred to substitute security in the manner provided
by law within thirty (30) days after it is recorded in accordance with
applicable law; (m) Borrower shall cease to exist or to be qualified to do or
transact business in the State in which the Property is located, or shall be
dissolved or shall be a party to a merger or consolidation, or shall sell all or
substantially all of its assets; (n) any sale, conveyance, transfer, assignment,
or other disposition of all or any part of the Property; (o) any statement or
representation of Borrower or any Guarantor contained in the Loan application or
any financial statements or other materials furnished to Lender or any other
lender prior or subsequent to the making of the Loan secured hereby are
discovered to have been materially false or incorrect or incomplete; (p)
Borrower or any Guarantor shall default under any obligation imposed by any
indemnity whether contained within any of the Loan Documents, the Hazardous
Waste Certification and Indemnification, or otherwise; or (q) a default occurs
under any Loan Document other than this Agreement. The events described in
subparagraphs (e) through (j) above shall not be deemed to be events of Default
unless they continue for a period of ten (10) days after written notice thereof
from Lender to Borrower, provided, however, if such event may not reasonably be
cured within such ten (10) day period, an event of Default shall not be deemed
to have occurred so long as same shall be diligently and continuously endeavored
to be cured. Notwithstanding the foregoing, it shall be an event of Default if
the violation has not been cured within sixty (60) days after notice thereof.
3.2 REMEDIES. Upon a Default, Lender may, at its election, but without
any obligation to do so, without further notice, do any one or more of the
following: (a) terminate its commitment to lend and any obligation to disburse
any Borrower's Deposit hereunder; (b) reduce any claim to judgment; (c) exercise
any and all rights and remedies afforded by this Agreement, the other Loan
Documents, law, equity or otherwise; (d) set-off and apply, to the extent
thereof and to the maximum
6
<PAGE>
extent permitted by law, any and all deposits, funds, or assets at any time held
and any and all other indebtedness at any time owing by Lender to or for the
credit or account of Borrower against any Indebtedness; or (e) in its own name
or in the name of Borrower, enter into possession of the Property, perform all
work necessary to complete the construction of the Improvements substantially in
accordance with the Plans (as modified as deemed necessary by Lender), Loan
Documents, laws, and governmental requirements, and continue to employ
Borrower's architect, engineer, and any contractor pursuant to the applicable
contracts or otherwise. Borrower hereby appoints Lender as the attorney-in-fact
of Borrower, which power of attorney is irrevocable and coupled with an
interest, with full power of substitution and in the name of Borrower, if Lender
elects to do so, upon the occurrence of a Default, to i) use such sums as are
necessary, including any proceeds of the Loan and any Borrower's Deposit, make
such changes or corrections in the Plans and employ such architects, engineers,
and contractors as may be required for the purpose of completing the
construction of the Improvements substantially in accordance with the Plans (as
modified as deemed necessary by Lender), Loan Documents, laws and governmental
requirements, or as otherwise may be necessary or desirable for purposes of
completing such construction; ii) execute all applications and certificates in
the name of Borrower which may be required for completion of construction of the
Improvements; iii) endorse the name of Borrower on any checks or drafts
representing proceeds of any insurance policies, or other checks or instruments
payable to Borrower with respect to the Property; iv) do every act with respect
to the construction of the Improvements which Borrower may do; v) prosecute or
defend any action or proceeding incident to the Property, vi) pay, settle, or
compromise all bills and claims so as to clear title to the Property; and vii)
take over and use all or any part of the labor, materials, supplies and
equipment contracted for, owned by, or under the control of Borrower which
relate to the construction, maintenance or operation of the Improvements (but
not any such items related to the Borrower's business conducted in the
Improvements), whether or not previously incorporated into the Improvements. Any
amounts expended by Lender shall be a demand obligation owing by Borrower to
Lender. Lender shall have no liability to Borrower for the sufficiency or
adequacy of any such actions taken by Lender.
ARTICLE 4. - GENERAL TERMS AND CONDITIONS
4.1 USURY LAWS. Borrower, Lender and all other parties to the Loan
Documents intend to conform to and contract in strict compliance with applicable
usury law from time to time in effect. All agreements between Borrower and
Lender (or any other party liable with respect to any Indebtedness under the
Loan Documents) are hereby limited by the provisions of this Section which shall
override and control all such agreements, whether now existing or hereafter
arising. In no way, nor in any event or contingency (including but not limited
to prepayment, default, demand for payment, or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for, charged,
chargeable, or received under this Agreement, the Note, any of the other Loan
Documents, or otherwise, exceed the maximum amount permitted under applicable
law ("MAXIMUM AMOUNT"). If, from any possible construction of any document,
interest would otherwise be payable in excess of the Maximum Amount, any such
construction shall be subject to the provisions of this Section and such
document shall IPSO FACTO be automatically reformed and the interest payable
shall be automatically reduced to the Maximum Amount, without the necessity of
execution of any amendment or new document. If Lender shall ever receive
anything of value which is characterized as interest under applicable law and
which would apart from this provision be in excess of the Maximum Amount, an
amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing on
the Indebtedness in the inverse order of its maturity and not to the payment of
interest, or be refunded to Borrower or the other payor thereof, at the election
of Lender in its sole discretion or as required by applicable law. The right to
accelerate maturity of the Note or any other Indebtedness does not include the
right to accelerate any interest which has not otherwise accrued on the date of
such acceleration, and Lender does not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to be paid to
Lender shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such Indebtedness so that the amount of interest on account of
such Indebtedness does not exceed the Maximum Amount. As used in this Section,
the term "applicable law" shall mean the laws of the State of FLORIDA or the
federal laws of the United States applicable to this transaction, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
7
<PAGE>
4.2 LENDER'S CONSENT. Except where otherwise expressly provided in the
Loan Documents, in any instance where the approval, consent or the exercise of
judgment of Lender is required, the granting or denial of such approval or
consent and the exercise of such judgment shall be (a) within the sole
discretion of Lender and free from any limitation or requirement of
reasonableness if the matter which gives rise to the need for the approval,
consent or exercise of judgment relates to the construction of the Improvements,
and within the reasonable discretion of Lender if the matter which gives rise to
the need for the approval, consent or exercise of judgment does not relate to
the construction of the Improvements; and (b) deemed to have been given only by
a specific writing intended for the purpose given and executed by Lender.
Notwithstanding any approvals or consents by Lender, Lender has no obligation or
responsibility whatsoever for the adequacy, form or content of the Plans, the
Budget, any contract, any change order, any lease, or any other matter incident
to the Property or the construction of the Improvements. Lender's acceptance of
an assignment of the Plans shall not constitute approval of the Plans. Any
inspection or audit of the Property or the books and records of Borrower, or the
procuring of documents and financial and other information, by or on behalf of
Lender shall be for Lender's protection only, and shall not constitute any
assumption of responsibility to Borrower or anyone else with regard to the
condition, construction, maintenance or operation of the Property, or relieve
Borrower of any of Borrower's obligations. Borrower or the Contractor has
selected all surveyors, architects, engineers, contractors, materialmen and all
other persons or entities furnishing services or materials to the Project.
Lender has no duty to supervise or to inspect the Property or the construction
of the Improvements nor any duty of care to Borrower or any other person to
protect against, or inform Borrower or any other person of, the existence of
negligent, faulty, inadequate or defective design or construction of the
Improvements. Lender shall not be liable or responsible for any defect in the
Property or the Improvements, the performance or default of Borrower, Borrower's
or Contractor's architect, engineer, contractor, the Construction Consultant, or
any other party, or for any failure to construct, complete, protect or insure
the Improvements, or for the payment of costs of labor, materials, or services
supplied for the construction of the Improvements, or for the performance of any
obligation of Borrower or Contractor whatsoever. Nothing, including any advance
or acceptance of any document or instrument, shall be construed as a
representation or warranty, express or implied, to any party by Lender.
Inspection shall not constitute an acknowledgment or representation by Lender or
the Construction Consultant that there has been or will be compliance with the
Plans, Loan Documents, applicable laws and governmental requirements or that the
construction is free from defective materials or workmanship. Inspection whether
or not followed by notice of Default shall not constitute a waiver of any
Default then existing, or a waiver of Lender's right thereafter to insist that
the Improvements be constructed in accordance with the Plans, Loan Documents,
applicable laws, and governmental requirements. Lender's failure to inspect
shall not constitute a waiver of any of Lender's rights under the Loan Documents
or at law or in equity.
4.3 MISCELLANEOUS. This Agreement may be executed in several
counterparts, all of which are identical, and all of which counterparts together
shall constitute one and the same instrument. The Loan Documents are for the
sole benefit of Lender and Borrower and are not for the benefit of any third
party. A determination that any provision of this Agreement is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Agreement to
any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances. Time shall be of the essence with respect to Borrower's
obligations under the Loan Documents. This Agreement, and its validity,
enforcement and interpretation, shall be governed by the laws of the State of
Florida (without regard to any conflict of laws principles) and applicable
United States federal law.
4.4 NOTICES. Unless specifically provided otherwise, any notice for
purposes of this Agreement or any other Loan Document shall be given in writing
or by telex or by facsimile (fax) transmission and shall be addressed or
delivered to the respective addresses set forth at the end of this Agreement, or
to such other address as may have been previously designated by the intended
recipient by notice given in accordance with this Section. If sent by prepaid,
registered or certified mail (return receipt requested), the notice shall be
deemed effective when the receipt is signed or when the attempted initial
delivery is refused or cannot be made because of a change of address of which
the sending party has not been notified; if transmitted by telex, the notice
shall be effective when
8
<PAGE>
transmitted (answerback confirmed); and if transmitted by facsimile or personal
delivery, the notice shall be effective when received. No notice of change of
address shall be effective except upon actual receipt, and service of a notice
required by any applicable statute shall be considered complete when the
requirements of that statute are met. This Section shall not be construed in any
way to affect or impair any waiver of notice or demand provided in any Loan
Document or to require giving of notice or demand to or upon any person in any
situation or for any reason.
4.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Borrower, and Borrower's heirs, devisees, representatives, successors and
assigns, and shall inure to the benefit of Lender and its successors and
assigns, provided, however, that Borrower shall not assign or encumber any
interest of Borrower hereunder without the prior written consent of Lender.
Lender may sell or offer to sell the Loan or interests in the Loan to one or
more assignees or participants. Borrower shall execute, acknowledge, and deliver
any and all instruments reasonably requested by Lender or such assignee or
participant.
4.6 MODIFICATION OR TERMINATION. The Loan Documents may only be
modified or terminated by a written instrument or instruments intended for that
purpose and executed by the party against which enforcement thereof is asserted.
This Agreement shall continue in full force and effect until the Indebtedness is
paid in full; and all representations and warranties and all provisions herein
for indemnity of Lender (and any other provisions herein specified to survive)
shall survive payment in full of the Indebtedness and any release or termination
of this Agreement or of any other Loan Documents.
4.7 COSTS AND EXPENSES. Without limitation of any Loan Document and to
the extent not prohibited by applicable laws, Borrower shall pay when due, and
reimburse to Lender on demand, and indemnify Lender from, all out-of-pocket
fees, costs, and expenses paid or incurred by Lender in connection with the
negotiation, preparation and execution of this Agreement and the other Loan
Documents (and any amendments, approvals, consents, waivers and releases
requested, required, proposed or done from time to time), or in connection with
the disbursement, administration or collection of the Loan or the enforcement of
the obligations or the exercise of any right or remedy of Lender (including
costs of arbitration), including (a) fees and expenses of Lender's counsel; (b)
fees and charges of each Construction Consultant or architect; (c) appraisal,
re-appraisal and survey costs; (d) title insurance charges and premises; (e)
title search or examination costs, including abstracts, abstractors'
certificates and uniform commercial code searches; (f) judgment and tax lien
searches for Borrower and each Guarantor; (g) escrow fees; (h) fees and costs of
environmental investigations and site assessments; (i) recordation taxes,
documentary taxes, transfer taxes and mortgage taxes, (j) filing and recording
fees, and (k) loan brokerage fees. Borrower shall pay all costs and expenses
incurred by Lender, including attorneys' fees, if the obligations or any part
thereof are sought to be collected by or through an attorney at law, whether or
not involving probate, arbitration, appellate, administrative or bankruptcy
proceedings. Borrower shall pay all costs and expenses of complying with the
Loan Documents, whether or not such costs and expenses are included in the
Budget. Borrower's obligations under this Section shall survive the delivery of
the Loan Documents, the making of advances, the payment in full of the
obligations, the release or determination of the Loan Documents, the foreclosure
of the Mortgage or conveyance in lieu of foreclosure, any bankruptcy or other
debtor relief proceeding, and any other event whatsoever.
4.8 FURTHER ASSURANCES. Borrower will, on request of Lender, (a)
promptly correct any defect, error or omission in any Loan Document; (b)
execute, acknowledge, deliver, procure, record or file such further instruments
and do such further acts deemed necessary, desirable or proper by Lender to
carry out the purposes of the Loan Documents and to identify and subject to the
liens and security interest of the Loan Documents any property intended to be
covered thereby, including any renewals, additions, substitutions, replacements,
or appurtenances to the Property; (c) execute, acknowledge, deliver, procure,
file or record any document or instrument deemed necessary, desirable, or proper
by Lender to protect the liens or the security interest under the Loan Documents
against the rights or interests of third persons; and (d) provide such
certificates, documents, reports, information, affidavits and other instruments
and do such further acts deemed necessary, desirable or proper by Lender to
comply with the requirements of any agency having jurisdiction over Lender.
9
<PAGE>
4.9 NO ASSIGNMENT. Borrower shall not assign, transfer or encumber its
rights or obligations under any Loan Document or any proceeds of the Loan
without the prior written consent of Lender.
4.10 INDUCEMENT TO LENDER. The representations and warranties contained
in the Loan Documents (a) are made to induce Lender to make the Loan and Lender
is relying thereon, and (b) shall survive any bankruptcy proceedings involving
Borrower, Guarantor or the Property, foreclosure, or conveyance in lieu of
foreclosure.
4.11 FORUM. Borrower hereby irrevocably submits generally and
unconditionally for itself and in respect of its property to the jurisdiction of
any state court, or any United States federal court, sitting in the State
specified in Section 4.3 of this Agreement and to the jurisdiction of any state
court or any United States federal court, sitting in the state in which any of
the Property is located, over any suit, action or proceeding arising out of or
relating to this Agreement or the Indebtedness. Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection that Borrower may
now or hereafter have to the laying of venue in any such court and any claim
that any such court is an inconvenient forum. Borrower hereby agrees and
consents that, in addition to any methods of service or process provided for
under applicable law, all service of process in any such suit, action or
proceeding in any state court, or any United States federal court, sitting in
the state specified in Section 4.3 may be made by certified or registered mail,
return receipt requested, directed to Borrower at its address for notice stated
in the Loan Documents, or at a subsequent address of which Lender received
actual notice from Borrower in accordance with the Loan Documents, and service
so made shall be complete five (5) days after the same shall have been so
mailed. Nothing herein shall affect the right of Lender to serve process in any
manner permitted by law or limit the right of Lender to bring proceedings
against Borrower in any other court or jurisdiction.
4.12 INTERPRETATION. References to "Dollars", "$", "money", "payments"
or other similar financial or monetary terms are references to lawful money of
the United States of America. References to Articles, Sections, and Exhibits
are, unless specified otherwise, references to articles, sections and exhibits
of this Agreement. Words of any gender shall include each other gender. Words in
the singular shall include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean, each person comprising
same, jointly and severally. References to persons shall include any legal
entities, including public or governmental bodies, agencies or
instrumentalities, and natural persons. The words "herein", "hereof",
"hereunder" and other similar compounds of the word "here" shall refer to the
entire Agreement and not to any particular provision or section. The words
"include" and "including" shall be interpreted as if followed by the words
"without limitation". Captions and headings in the Loan Documents are for
convenience only and shall not affect the construction of the Loan Documents.
4.13 NO PARTNERSHIP, ETC. The relationship between Lender and Borrower
is solely that of lender and borrower. Lender has no fiduciary or other special
relationship with or duty to Borrower and none is created by the Loan Documents.
Nothing contained in the Loan Documents, and no action taken or omitted pursuant
to the Loan Documents, is intended or shall be construed to create any
partnership, joint venture, association, or special relationship between
Borrower and Lender or in any way make Lender a co-principal with Borrower with
reference to the Project, the Property or otherwise. In no event shall Lender's
rights and interests under the Loan Documents be construed to give Lender the
right to control, or be deemed to indicate that Lender is in control of, the
business, properties, management or operations of Borrower.
4.14 RECORDS. The unpaid amount of the Loan set forth on the books and
records of Lender maintained in the ordinary course of its business shall be
presumptive evidence of the amount thereof owing and unpaid, but failure to
record any such amount on the books and records shall not limit or affect the
obligations of Borrower under the Loan Documents to make payments on the Loan
when due.
4.15 EXHIBITS. This Agreement includes the Exhibits listed below which
are marked by "X", all of which Exhibits are attached hereto and made a part
hereof for all purposes, it being agreed
10
<PAGE>
that if any Exhibit to be executed and delivered contains blanks, the same shall
be completed correctly and in accordance with this Agreement prior to or at the
time of the execution and delivery thereof.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
X Exhibit "A" - Legal description of the Land
-----
X Exhibit "B" - Basic Information
-----
X Exhibit "C" - Certain Conditions Precedent to the First Advance
-----
X Exhibit "D" - Budget
-----
X Exhibit "E" - Plans
-----
X Exhibit "F" - Advances
-----
X Exhibit "F-1" - Draw Request
-----
X Exhibit "G" - Survey Requirements
-----
</TABLE>
4.16 CROSS DEFAULT. A Default hereunder or under any of the documents
evidencing or securing the Loan shall constitute an event of default under any
other indebtedness (now or hereafter existing) of Borrower to Lender. Any
default under any document evidencing or securing such other indebtedness shall
constitute a Default hereunder.
4.17 TITLE ENDORSEMENTS. When requested by Lender during the term of
the Loan, Borrower shall provide an endorsement to Lender's title policy which
reflects that (a) the real estate taxes for the Property have been paid; (b) no
new title matters have appeared of record to which Lender has not consented; and
(c) no liens, encumbrances or lis pendenses have been filed against the
Property, other than as specifically approved by Lender.
4.18 MANDATORY ARBITRATION. Any controversy or claim between or among
the parties hereto including but not limited to those arising out of or relating
to this Agreement or any related agreements or instruments, including any claim
based on or arising from an alleged tort, shall be determined by binding
arbitration in accordance with the Federal Arbitration Act (or if not
applicable, the applicable state law), the Rules of Practice and Procedure for
the Arbitration of Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth below. In the event
of any inconsistency, the Special Rules shall control. Judgment upon any
arbitration award may be 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 Endispute, Inc., d/b/a J.A.M.S./Endispute
who will appoint an arbitrator; if J.A.M.S./Endispute is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within 90
days of the demand for arbitration; further, the arbitrator shall only, upon a
showing of cause, be permitted to extend the commencement of such hearing for up
to an additional 60 days.
(b) RESERVATIONS OF RIGHTS. Nothing in this Agreement shall be
deemed to i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Agreement; or ii) be a
waiver by Lender of the protection afforded to it by 12 U.S.C. ss. 91 or any
substantially equivalent state law; or (iii) limit the right of Lender (A) to
exercise self help remedies such as (but not limited to) setoff, or (B) to
foreclose against any real or personal property collateral, or (C) to obtain
from a court provisional or ancillary remedies such as (but not limited to)
injunctive relief or the appointment of a receiver. Lender may exercise such
self help rights, foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any arbitration
proceeding brought pursuant to this Agreement. At Lender's option, foreclosure
under a deed of trust or mortgage may be accomplished by any of the following:
the exercise of a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by judicial foreclosure.
Neither the exercise of self help remedies nor the institution or maintenance of
an action for foreclosure or provisional or ancillary remedies shall constitute
a waiver of the right of any party, including the claimant in any such action,
to arbitrate the merits of the controversy or claim occasioning resort to such
remedies.
11
<PAGE>
No provision in the Loan Documents regarding submission to jurisdiction and/or
venue in any court is intended or shall be construed to be in derogation of the
provisions in any Loan Document for arbitration of any controversy or claim.
4.19 INTEREST RATE PROTECTION AGREEMENTS. Borrower shall duly and
punctually perform all covenants, terms, and agreements expressed as binding
upon Borrower under any Interest Rate Protection Agreements. Borrower
acknowledges that Borrower's obligations under any Interest Rate Protection
Agreements are obligations secured by the Mortgage. Further, Borrower
acknowledges and agrees that the occurrence of any event of default or defaults
under any Interest Rate Protection Agreement shall be a default under this
Agreement, and vice versa.
4.20 ENTIRE AGREEMENT. The Loan Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Loan and supersede all prior written
or oral understandings and agreements between Borrower and Lender with respect
to the matters addressed in the Loan Documents. In particular, and without
limitation, the terms of any commitment by Lender to make the Loan are merged
into the Loan Documents. Lender has not made any commitments to extend the term
of the Loan past its stated maturity date or to provide Borrower with financing
except as set forth in the Loan Documents. Except as incorporated in writing in
the Loan Documents, there are not, and were not, and no persons are or were
authorized by Lender to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the matters addressed
in the Loan Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and DELIVERED as of February 18, 1999.
Borrower's Address for Notices: BORROWER:
10050 16th Street North
St. Petersburg, Florida 33716 PLASMA-THERM, INC., a Florida
corporation
By: /s/ STACY L. WAGNER
----------------------------
The Federal Tax Identification Number Stacy L. Wagner
of Borrower: Vice President and
Chief Financial Officer
04-2554632
(CORPORATE SEAL)
Lender's Address for Notices: LENDER:
Attn: Real Estate Loan Administration NATIONSBANK, N.A., a national
400 North Ashley Drive (FL1-010-07-01) banking association
Tampa, FL 33602
By: /s/ SADAHRI BERRY
----------------------------
Sadahri Berry
----------------------------
Legibly Print Name of Officer
Its Vice President
(CORPORATE SEAL)
12
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I
Lot 27, Block C of METROPOINTE COMMERCE PARK PHASE II, according to the
plat thereof recorded in Plat Book 103, Pages 25 and 26 of the Public
Records of Pinellas County, Florida, less the North 130.00 feet
thereof, together with Lot 26, Block C of Metropointe Commerce Park,
Phase II, according to a plat thereof as recorded in the Public Records
of Pinellas County, Florida recorded in Plat Book 103, Pages 25 and 26.
PARCEL II
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all in Block
C of METROPOINTE COMMERCE PARK PHASE II, according to the map or plat
thereof recorded in Plat Book 103, pages 25 and 26, Public Records of
Pinellas County, Florida.
13
<PAGE>
EXHIBIT "B"
BASIC INFORMATION
A. SPECIFIC DEFINITIONS:
1. "APPRAISED VALUE" means $6,800,000.00 (market - "use" value)
2. "BORROWER" means Plasma-Therm, Inc., a Florida corporation
3. "COMPLETION DATE" means April 18, 2000
4. "CONTRACTOR" means The Perry Company
5. "FINANCIAL STATEMENTS" means, in accordance with the
requirements of this Section, a balance sheet, income statement, statements of
cash flow and amount and sources of contingent liabilities, and a reconciliation
of changes in equity, and, unless Lender otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a parent
of a subsidiary entity. In this Section, each party for whom Financial
Statements are required is a "reporting party" and a specified period to which
the required Financial Statements relate is a "reporting period". Borrower shall
provide or cause to be provided to Lender the following:
(a) Annual unqualified audited Financial Statements of Borrower for
each fiscal year of Borrower, as soon as reasonably practicable and in
any event within one hundred twenty (120) days after the close of each
fiscal year.
(b) Quarterly Borrower-prepared unaudited Financial Statements (Form
10-Q) concerning Borrower's business on a consolidated and
consolidating basis for each fiscal quarter of Borrower, as soon as
reasonable practicable and in any event within forty-five (45) days
after the close of each fiscal quarter.
(c) Such additional financial statements, profit and loss
statements, and other accounting data related to Borrower as may be
reasonably requested by Lender from time to time concerning Borrower.
All Financial Statements shall be in form and detail satisfactory to Lender and
shall contain or be attached to the signed and dated written certification of
the reporting party in form specified by Lender to certify that the Financial
Statements are furnished to Lender in connection with the extension of credit by
Lender and constitute a true and correct statement of the reporting party's
financial position. All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of the entity
satisfactory to Lender. All fiscal year-end Financial Statements of Borrower
shall be audited and certified, without any qualification or exception not
acceptable to Lender, by independent certified public accountants acceptable to
Lender, and shall contain all reports and disclosures required by generally
accepted accounting principles for a fair presentation, including a certificate
of the accountant in form and substance satisfactory to Lender to the effect
that said accountant has no knowledge that any event of Default, or any event
which with notice and/or lapse of time would become an event of Default as set
forth herein, has occurred and is continuing, or, if he has knowledge that any
such event has occurred and is continuing, specifying the details thereof. For
purposes of this Agreement and other Loan Documents, the accounting firm of
Grant Thornton LLP shall be acceptable to Lender until such time as Lender shall
notify Borrower to the contrary.
6. "IMPROVEMENTS" means all on-site and off-site improvements to the
Land for a 33,020 square foot (MOL) office/manufacturing facility, including
leasehold improvements, to be constructed on Parcel I of the Land, together with
all fixtures and appurtenances now or later to be located on the Land and/or in
such improvements.
7. "INITIAL LAND ADVANCE" means N/A.
14
<PAGE>
8. "INTEREST RATE PROTECTION AGREEMENT" means any and all interest rate
swap agreements, interest cap agreements, interest rate collar agreements,
exchange agreements, forward currency exchange agreements, forward rate currency
or interest rate options, foreign currency hedge, or any similar agreements or
arrangements entered into by Borrower and Lender in connection with the Loan to
hedge the risk of variable interest rate volatility or fluctuations of interest
rates, as such agreements or arrangements may be modified, supplemented, and in
effect from time to time, and any and all cancellations, buy backs, reversals,
terminations, or assignments of any of the foregoing.
9. "LOAN" means the construction\term loan by Lender to Borrower, in
the principal amount of $4,500,000.00.
10. "PERMITTED CHANGES" means changes to the Plans or Improvements,
provided the cost of any single change or extra does not exceed $25,000.00 and
the aggregate amount of all such changes and extras (whether positive or
negative) does not exceed $100,000.00.
11. "PROJECT" means the acquisition of Parcel I of the Land, the
construction of the Improvements, and if applicable, the operation of the
Improvements.
12. "STORED MATERIALS ADVANCE LIMIT" means $ -0- .
-----------------
13. "TITLE INSURER" means First American Title Insurance Company.
B. GENERAL DEFINITIONS:
1. "BUDGET" means the budget and cost itemization for the Project
attached as EXHIBIT "D".
2. "CONSTRUCTION CONSULTANT" means the construction consultant, if any,
engaged by Lender with respect to the Project.
3. "DEFAULT" is defined in Section 3.1 of this Agreement.
4. "ENVIRONMENTAL AGREEMENT" means the Environmental Indemnity
Agreement of even date herewith between Borrower and Lender.
5. "EXCUSABLE DELAYS" means unusually adverse weather conditions which
have not been taken into account in the construction schedule, fire, earthquake
or other acts of God, strike, lockout, acts of public enemy, riot or
insurrection or any unforeseen circumstances or events (except financial
circumstances or events or matters which may be resolved by the payment of
money) beyond the control of Borrower, not to exceed a total of thirty (30)
days, provided Borrower shall notify Lender in writing within five (5) days
after such occurrence, but no Excusable Delay shall extend the Completion Date
or suspend or abate any obligation of Borrower or any Guarantor or any other
person to pay any money.
6. "INDEBTEDNESS" means any and all indebtedness to Lender evidenced,
governed or secured by, or arising under, any of the Loan Documents, including
the Loan.
7. "LAND" means the real estate described in EXHIBIT "A".
8. "LOAN DOCUMENTS" means this Agreement (including all exhibits), the
Mortgage, the Note, the Environmental Agreement, any financing statements, the
Budget, each Draw Request and such other documents evidencing, securing or
pertaining to the Loan as shall, from time to time, be executed and/or delivered
by Borrower or any other party to Lender pursuant to this Agreement.
9. "MORTGAGE" means the first Mortgage, Assignment of Rents and
Security Agreement securing repayment of the Indebtedness.
15
<PAGE>
10. "NOTE" means the promissory note executed by Borrower in the amount
of $4,500,000.00.
11. "PLANS" means the plans and specifications listed in EXHIBIT "E",
and all permits issued in connection with construction of the Project.
12. "PROPERTY" means the Land, the Improvements and all other property
constituting the "Mortgaged Property," as described in the Mortgage, or subject
to a right, lien or security interest to secure the Loan pursuant to any other
Loan Document.
13. "TITLE INSURANCE" means the title insurance described in
EXHIBIT "C".
16
<PAGE>
EXHIBIT "C"
CERTAIN CONDITIONS PRECEDENT TO THE FIRST ADVANCE
1. FEES AND EXPENSES. Lender shall have received any required
Commitment Fee and Borrower shall have paid all other fees, costs and expenses
then required to be paid pursuant to this Agreement and any other Loan
Documents.
2. FINANCIAL STATEMENTS. Lender shall have received and approved the
Financial Statements of Borrower and Guarantor or any other party required by
any loan application or commitment or otherwise required by Lender.
3. APPRAISAL. Lender shall have received and approved a market value
appraisal made within sixty (60) days of the date of this Agreement, which
appraises the Property on a "completed value" basis at not less than the
Appraised Value. The appraiser and appraisal must be satisfactory to Lender
(including satisfaction of applicable regulatory requirements) and the appraiser
must be engaged directly by Lender.
4. DRAW SCHEDULE AND BUDGET. Lender shall have received and approved
Borrower's proposed draw schedule, and construction schedule, for the Project.
5. AUTHORIZATION. Lender shall have received and approved evidence
Lender requires of the existence, good standing, authority and capacity of
Borrower to execute, deliver, and perform the Loan Documents, including but not
limited to:
(a) For each corporation: i) a copy of its articles of incorporation
and by-laws, and all amendments thereto, a certificate of incumbency of all of
its officers who will be authorized to execute or attest any of the Loan
Documents, and a copy of resolutions approving the Loan Documents and
authorizing the transactions contemplated in this Agreement; and ii)
certificates of existence, good standing and qualification to do business in the
state of its creation and if different, in the state where the Project is
located, issued by the appropriate governmental officials.
(b) All certificates, resolutions, and consents required by Lender
applicable to the foregoing.
6. LOAN DOCUMENTS. Borrower, Guarantor and each other person or entity
required by Lender shall have duly executed, acknowledged and/or sworn to as
required, recorded or filed, and delivered to Lender all Loan Documents then
required by Lender, dated the date of this Agreement, all in form and content
satisfactory to Lender.
7. OPINIONS. Lender shall have received the written opinion of counsel
for the Borrower addressed to Lender, dated the date of this Agreement, which
satisfies the requirements of the loan commitment letter issued by Lender to
Borrower dated April 16, 1998, as amended by letters dated September 10, 1998
and December 3, 1998.
8. SURVEY; NO SPECIAL FLOOD HAZARD. Lender shall have received three
(3) prints of an original survey of the Land and improvements thereon dated not
more than sixty (60) days prior to the date of this Agreement (or dated such
earlier date, if any, as is satisfactory to the Title Insurer, but in any event
not more than one hundred eighty (180) days prior to the date of this Agreement)
satisfactory to Lender and the Title Insurer and otherwise complying with
EXHIBIT "G", and otherwise in compliance with the requirements of the Loan
Documents, and containing evidence satisfactory to Lender that none of the Land
is located in a flood hazard area.
9. TITLE INSURANCE. Lender shall have received and approved one or more
title insurance policies or a title insurance commitment marked through the Loan
closing date with all Schedule B-1 requirements deleted, as Lender may require,
issued by the Title Insurer in the maximum amount of the Loan, on a coinsurance
and/or reinsurance basis if and as required by Lender, insuring that the
Mortgage constitutes a valid lien covering the Land and all improvements
thereon, having the priority
17
<PAGE>
required by Lender and subject only to those exceptions and encumbrances
(regardless of rank or priority) Lender approves, in a form acceptable to
Lender, and with all "standard" exceptions which can be deleted, including the
exception for matters which a current survey would show, deleted to the fullest
extent authorized under applicable title insurance rules, and Borrower shall
satisfy all requirements therefor; containing no exception for standby fees or
real estate taxes other than those for the year in which the closing occurs to
the extent the same are not then due and payable and endorsed "not yet due and
payable" and no exception for subsequent assessments for prior years; providing
full coverage against mechanics' and materialmen's liens to the extent
authorized under applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring that no restrictive covenants shown in the
Title Insurance have been violated, and that no violation of the restrictions
will result in a reversion or forfeiture of title; insuring that fee simple
indefeasible or marketable (as coverage is available) fee simple title to the
Land and Improvements is vested in Borrower; containing such endorsements as
Lender may require and are available under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; insuring any easements,
leasehold estates or other matters appurtenant to or benefitting the Land and/or
the Improvements as part of the insured estate; insuring the right of access to
the Land to the extent authorized under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; and containing provisions
acceptable to Lender regarding advances of Loan funds after closing. Borrower
and Borrower's counsel shall not have any interest, direct or indirect, in the
Title Insurer (or its agent) or any portion of the premium paid for the Title
Insurance.
10. PLANS. Lender shall have received and approved two (2) true and
correct copies of all existing Plans signed and sealed by the architect
(including the site plan), together with satisfactory evidence that all
applicable governmental authorities, Borrower, Borrower's architect, engineer,
and contractors and Construction Consultant have approved the same, and
Construction Consultant has reviewed the Plans.
11. CONTRACTS. Lender shall have received and approved (a) a list
containing the names and addresses of all existing contractors, architects,
engineers, and other suppliers of services and materials for the Project (but
only to the extent such information is supplied to Borrower by the Contractor),
their respective contract amounts, and a copy of their contracts; and (b) duly
executed, acknowledged and delivered originals from each contractor, architect,
engineer, subcontractor, or supplier of services or materials required by
Lender, of i) consents or other agreements satisfactory to Lender and ii)
agreements satisfactory to Lender subordinating all rights, liens, claims and
charges they may have or acquire against Borrower or the Property to the rights,
liens and security interests of Lender.
12. INSURANCE POLICIES. Lender shall have received and approved
insurance evidence certificates or other certificates deemed acceptable to
Lender of the insurance policies required by Lender, pursuant to the Loan
Documents, together with evidence satisfactory to Lender that all premiums
therefor have been paid and that the policies are in full force and effect; such
insurance policies shall include the following, and Borrower shall cause them to
be maintained in full force and effect at all times throughout the term of the
Loan:
(a) Hazard insurance insuring the Improvements and all Personal
Property, which now or hereafter may constitute part of the Property, against
loss or damage by fire and other hazards included within the term "all risk" or
"extended coverage" and against such other hazards as Lender may require in the
full insurable value thereof (or such lesser amount as Lender may authorize in
writing), with an insurer satisfactory to Lender. Such policy shall include a
Replacement Cost and Agreed Amount/Stipulated Value Endorsement and a Sinkhole
Endorsement, if deemed necessary by Lender.
(b) a "Broad Form Comprehensive General Liability" insurance
coverage for both Borrower and any contractor performing services to the
Property in the minimum coverage amount of One Million Dollars ($1,000,000.00)
per occurrence and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00 or CSL of Ten
Million Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00 or
greater.
18
<PAGE>
(c) if at any time the Land or any portion thereof is located in a
"Flood Hazard Area" pursuant to the Flood Disaster Protection Act of 1973 or any
successor or supplemental act thereto, flood insurance in the maximum amount
available under the Flood Insurance Act or such other amount as Lender may
reasonably request. Lender may require additional flood insurance from the
secondary market.
(d) an "All risk", non-reporting, completed value builder's risk
insurance policy, which policy shall include Agreed Amount, Replacement Cost,
Permit to Occupy and Vandalism/Malicious Mischief Endorsements.
(e) boiler and machinery insurance, worker's compensation insurance,
wind damage insurance, and other insurance coverages as Lender may reasonably
require.
The policy or policies of insurance shall i) be from companies and in
coverage amounts acceptable to Lender, ii) contain a standard mortgagee clause
in favor of Lender naming Lender as a mortgagee and including a lender's loss
payee clause in such policy, as applicable, iii) not be terminable or modified
without thirty (30) days' prior written notice to Lender, and iv) be evidenced
by original policies or certified copies of policies deposited with Lender, as
Lender may elect, to be held by Lender until the Indebtedness shall have been
fully paid and discharged. Borrower shall furnish Lender satisfactory evidence
of payment of all premiums required and similar evidence of renewal or
replacement coverage not later than thirty (30) days prior to the date any
coverage will expire.
Each insurance policy or endorsement required herein shall be written
by an insurer having a rating not less than "A-XII" Best's Rating according to
the most current edition of Best's Key Rating Guide as determined at the time of
the initial policy and at all times during the term hereof. All policies shall
indicate that notices related to such insurance shall be sent to Lender at:
400 North Ashley Drive (FL1-010-07-01)
Tampa, Florida 33602
Attn: Loan Administration Section,
Real Estate Banking Group
13. ENVIRONMENTAL COMPLIANCE/REPORT. Lender shall have received and
approved evidence satisfactory to Lender that no portion of the Land is
"wetlands" under any applicable law and that the Land does not contain and is
not within or near any area designated as a hazardous waste site by any
governmental authority, that neither the Property nor any adjoining property
contains or has ever contained any substance classified as hazardous or toxic
(or otherwise regulated, such as, without limitation, asbestos, radon and/or
petroleum products) under, and that neither the Property nor any use or activity
thereon violates or is or could be subject to any response, remediation,
clean-up or other obligation under, any law or governmental requirement
pertaining to health or the environment, including without limitation, a written
report of an environmental assessment of the Property, made within one hundred
eighty (180) days prior to the date of this Agreement, by an engineering firm,
and of a scope and in form and content satisfactory to Lender, complying with
Lender's established guidelines, showing that there is no evidence of any such
substance which has been generated, treated, stored, released or disposed of in
the Property, and such additional evidence as may be required by Lender. All
reports, drafts of reports, and recommendations, whether written or oral, from
such engineering firm shall be made available and communicated to Lender.
14. SOIL REPORTS. Lender and Construction Consultant shall have
received and reviewed a soil composition and test boring report and a foundation
report satisfactory to Lender regarding the Land, by a licensed professional
engineer satisfactory to Lender. Any recommendations of the engineer in the soil
report shall be incorporated into the Plans.
15. ACCESS, UTILITIES, AND LAWS. Lender shall have received and
approved (a) satisfactory evidence that the Property abuts and has fully
adequate direct and free access to one or more public streets, dedicated to
public use, fully installed and accepted by the appropriate governmental
authority, that all costs and expenses of the installation and acceptance
thereof have been paid in full, and that there are no restrictions on the use
and enjoyment of such streets which would adversely
19
<PAGE>
affect the Project; (b) letters from the applicable utility companies or
governmental authorities confirming that all utilities necessary for the
Improvements are available at the Land in sufficient capacity, together with
evidence satisfactory to Lender of paid impact fees or utility reservation
deposits or connection fees required to assure the availability of such
services; (c) satisfactory evidence that all applicable zoning ordinances,
restrictive covenants and governmental requirements affecting the Property
(including those relating to the local government Comprehensive Planning and
Land Development Regulation Act, ss. 163.3161, ET SEQ., FLORIDA STATUTES) permit
the use for which the Property is intended and have been or will be complied
with without the necessity of variance and without the Property being a
nonconforming use; (d) evidence satisfactory to Lender that the Land and
Improvements comply and will comply with all laws and governmental requirements
regarding subdivision and platting and would so comply if the Land and the
Improvements thereon were conveyed as a separate parcel; (e) a true and correct
copy of a valid building permit for the Improvements, together with all other
permits and approvals necessary for construction of the Improvements; and (f)
evidence satisfactory to Lender of compliance by Borrower and the Property, and
the proposed construction, use and occupancy of the Improvements, with such
other applicable laws and governmental requirements as Lender may request,
including all laws and governmental requirements regarding access and facilities
for handicapped or disabled persons including, without limitation and to the
extent applicable, Part V of the Florida Building Construction Standards Act
entitled "Accessibility by Handicapped Persons", Chapter 553, FLORIDA STATUES;
The Federal Architectural Barriers Act (42 U.S.C. ss. 4151 ET SEQ.), The Fair
Housing Amendments 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.), The Rehabilitation Act
of 1973 (29 U.S.C. ss. 794) and any applicable state requirements.
16. PRIORITY. Lender shall have received and approved (a) evidence
satisfactory to Lender that prior to and as of the time the Mortgage was filed
for record i) no activity or circumstance was visible on or near the Land which
would constitute inception of a mechanic's or materialman's lien against the
Property, ii) no contract, or memorandum thereof, for construction, design,
surveying, or any other service relating to the Project has been filed for
record in the county where the Property is located; iii) no mechanic's or
materialman's lien claim or notice, lis pendens, judgment, or other claim or
encumbrance against the Property has been filed for record in the county where
the Property is located or in any other public record which by law provides
notice of claims or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to Lender, reflecting the results
of searches made not earlier than ten (10) days prior to the date of this
Agreement, i) of the central and local Uniform Commercial Code records, showing
no filings against any of the collateral for the Loan or against Borrower
otherwise except as consented to by Lender; and ii) if required by Lender, of
the appropriate judgment and tax lien records, showing no outstanding judgment
or tax lien against Borrower or any Guarantor.
17. BONDS. Lender shall have received and approved (a) a performance
bond for the Contractor, in form and content satisfactory to Lender and in an
amount equal to 100% of the construction price; and (b) a payment bond for the
Contractor, in form and content satisfactory to Lender and in an amount equal to
100% of the construction contract price; and if required by Lender duly recorded
before any construction is commenced. Each bond shall be issued by a corporate
surety acceptable to Lender and authorized and admitted to do business and to
execute bonds in the state where the Project is located and shall name Lender as
an additional obligee.
18. PAID TAX RECEIPTS. Lender shall have received and approved
satisfactory evidence (a) that all taxes, standby fees and any other similar
charges have been paid, including copies of receipts or statements marked "paid"
by the appropriate authority; and (b) that the Land is or will be prior to the
issuance of the first tax bill coming due after the date of this Agreement, a
separate tax lot or lots with separate assessment or assessments of the Land and
Improvements, independent of any other land or improvements. For purposes of
this Agreement, appropriate notations of paid taxes in the Title Insurance
information described above shall satisfy the requirements of (a) herein.
19. NOTICE TO CONTRACTOR AND LIENORS OF HARD COST REALLOCATION. If the
Draw Request requires an amendment to the Budget or reallocation of hard cost
items which would require contractor and lienor notice under Section
713.3471(2), Florida Statutes, Borrower, as owner, shall serve the Contractor
and all required lienors, written notice in compliance with Section 713.3471(2),
20
<PAGE>
Florida Statutes, and shall deliver such notice to Lender, countersigned by the
Contractor and any lienors who have provided notices to owner.
20. OTHER DOCUMENTS. Borrower and any other person or entity, shall
have delivered to Lender, in form and content satisfactory to Lender, such other
documents and certificates as Lender may reasonably request.
21
<PAGE>
EXHIBIT "D"
BUDGET
22
<PAGE>
EXHIBIT "E"
IDENTIFICATION OF PLANS AND SPECIFICATIONS
23
<PAGE>
EXHIBIT "F"
ADVANCES
1. DRAW REQUEST. A "DRAW REQUEST" means a properly completed and
executed written application by Borrower to Lender in the form of EXHIBIT "F-1"
(or in another form approved by Lender) setting forth the amount of Loan
proceeds desired, together with such schedules, affidavits, releases, waivers,
statements, invoices, bills, and other documents, certificates and information
required by Lender. At least five (5) business days before the requested date of
each advance, Borrower shall deliver a Draw Request to Lender. Borrower shall be
entitled to an advance only in an amount approved by Lender in accordance with
the terms of this Agreement and the Loan Documents. Lender shall not be required
to make advances more frequently than once each calendar month. Lender shall,
only upon the satisfaction of all applicable conditions of this Agreement and
the Loan Documents, make the requested advance to Borrower on a business day
within five (5) business days after such satisfaction. Each Draw Request, and
Borrower's acceptance of any advance, shall be deemed to ratify and confirm that
all representations and warranties in the Loan Documents remain true and correct
as of the date of the Draw Request and the advance, respectively. Borrower
hereby designates Ronald S. DeFerrari or Stacy L. Wagner as having authority to
sign all Draw Requests on Borrower's behalf.
2. ADVANCES. Borrower shall disburse all advances made to Borrower, for
payments of the costs and expenses specified in the Budget for which the
advances were made, and for no other purpose. Following receipt and approval of
a Draw Request, all supporting documentation and information, and receipt and
approval of a written or verbal report from Construction Consultant, Lender will
determine the amount of the advance it will make in accordance with this
Agreement, the Loan Documents, the Budget, and the following standards:
(a) An initial advance in the amount of the Initial Land Advance
will be made for the acquisition of the Land.
(b) For construction work, advances will be made on the basis of
ninety percent (90%) of the costs shown on the application for payment from the
contractor reviewed and approved by Lender and the Lender's Construction
Consultant of the work or material in place on the Improvements that comply with
the terms of the Loan Documents, minus all previous advances and all amounts
required to be paid by Borrower, as described in Columns (B) and (C) of the
Budget.
(c) Loan disbursements will be made for the cost of non-construction
items on the basis of one hundred percent (100%) of the costs of all approved
invoices therefor, up to the maximum amount of such costs set forth in the Loan
Budget.
(d) Advances will not be made for building materials or furnishings
that are not yet incorporated into the Improvements ("stored materials") unless
the stored materials are in Borrower's possession and satisfactorily stored on
the Land, no materials are stored for a time period exceeding forty-five (45)
days, Lender has a lien on such materials which is prior to the lien of any
other secured party, Lender has received and approved all invoices for the
materials to be stored on-site and the aggregate of advances for stored
materials that have not yet been incorporated into the Improvements does not
exceed the Stored Materials Advance Limit. The advances for stored materials
will be limited to 90% of the invoice cost of the materials.
(e) Lender will not make advances for any Borrower "developer fees".
3. CONDITIONS TO THE FIRST ADVANCE. As conditions precedent to the
first advance hereunder: (a) there shall then exist no Default or any event
which, with the giving of notice or the lapse of time, or both, could become a
Default; (b) the representations and warranties made in the Loan Documents shall
be true and correct; (c) each contract to be made by Borrower for any labor,
materials, services and/or other work for or in connection with construction of
the Improvements shall have been duly executed and delivered by all parties
thereto and shall be fully effective, and Lender shall have received a true,
complete executed original counterpart of each such contract;
24
<PAGE>
(d) Borrower must have satisfied the conditions required under the Loan
Documents, including those identified in EXHIBIT "C" and Section 4 below; (e)
Borrower must have paid all amounts required to be paid by Borrower as described
in Columns (B) and (C) of the Budget, and (f) Borrower must have delivered to
Lender a Draw Request.
4. CONDITIONS TO ALL ADVANCES. As conditions precedent to each advance
made pursuant to a Draw Request in addition to all other requirements contained
in the other Loan Documents, Borrower must satisfy the following conditions, and
deliver to Lender evidence of such satisfaction:
(a) All conditions precedent to the first advance have been and
continue to be satisfied.
(b) No Default or any event which, with the giving of notice or the
lapse of time, or both, could become a Default exists.
(c) The representations and warranties made in the Loan Documents
must be true and correct on and as of the date of each advance.
(d) Each subcontract or other contract for labor, materials,
services and/or other work included in a Draw Request shall have been duly
executed and delivered by all parties thereto and shall be effective, and Lender
shall have received a true, complete copy of a fully executed copy of each such
subcontract or other contract as Lender may have requested.
(e) No mechanics or materialmen's lien or other encumbrance shall
have been filed and remain in effect against the Property, and releases or
waivers of mechanics' liens and receipted bills showing payment of all amounts
due to all parties who have furnished materials or services or performed labor
of any kind in connection with the Property shall have been obtained.
Additionally, Borrower shall provide an affidavit stating that the advances made
up to the date of the signing of the affidavit have been paid to the appropriate
parties.
(f) The Title Insurance shall have been endorsed and down-dated in a
manner satisfactory to Lender to increase the coverage by the amount of each
advance through the date of each such advance with no additional title change or
exception not approved by Lender.
(g) Lender shall have received written certification by Borrower's
Construction Consultant, and if required by Lender by the architect, that to the
best of such party's knowledge, information, and belief, construction is in
accordance with the Plans, the quality of the work for which the advance is
requested is in accordance with the applicable contract, the amount of the
advance requested represents work in place based on onsite observations and the
data compromising the Draw Request, the work has progressed as indicated, and
the applicable contractor is entitled to payment of the amount certified.
(h) Lender shall have received a foundation survey made immediately
after, but in no event later than fifteen (15) days after, the laying of the
foundation of each building or structure of the Improvements satisfactory to
Lender complying with EXHIBIT "G", and certifying as to the absence of
encroachments from, or onto, the Property and compliance of the Improvements, as
then-constructed, with zoning laws and other relevant restrictions.
(i) Lender shall have received within fifteen (15) days after the
pouring of concrete for any Improvements, a report satisfactory to Lender and
Construction Consultant of the results of concrete tests made at the time the
concrete is poured. The concrete tests shall not be made by any of the
contractors working on the Improvements.
(j) Lender shall have received within fifteen (15) days after the
compaction of any soil for construction, a report satisfactory to Lender and
Construction Consultant of the results of soil tests.
(k) As of the date of making such advance, no event shall have
occurred, nor shall any condition exist, that could have an adverse effect on
the enforceability of the Loan Documents,
25
<PAGE>
be materially adverse to the financial condition of Borrower, impair the ability
of Borrower to fulfill its material obligations under the Loan Documents, or
otherwise have any adverse effect whatsoever on the Property.
(l) The Improvements shall not have been damaged and not repaired.
(m) Borrower shall have paid all amounts required to be paid by
Borrower under Columns (B) and (C) of the Budget.
(n) Borrower shall have made the Borrower's Deposit if required by
Section 1.4 of this Agreement.
(o) Borrower shall have delivered to Lender such other information,
documents and supplemental legal opinions as may be required by Lender.
(p) With respect to any advance to pay a contractor, Lender shall
have received original applications for payments in form approved by Lender,
containing a breakdown by trade and/or other categories acceptable to Lender,
executed and certified by each contractor and the architect, accompanied by
invoices, and approved by Construction Consultant. Copies of invoices or other
acceptable documentation shall be submitted to substantiate Borrower's requests
for payment of Project-related "soft costs".
5. FINAL ADVANCE FOR IMPROVEMENTS. In the case of the final Draw
Request, Lender shall have received the following as additional conditions
precedent to the requested advance:
(a) Certificates (on a form to be provided by Lender) from the
Borrower, the Contractor and, if required by Lender, from the Construction
Consultant, certifying that the Improvements (including any off-site
improvements) have been completed in accordance with, and as completed comply
with, the Plans and all laws and governmental requirements, together with the
AIA G704 Certificate of Substantial Completion form from each of said
professionals; and Lender shall have received two (2) sets of detailed signed
and sealed "as built" Plans approved in writing by Borrower, the Lender's
Construction Consultant, and Contractor. The Plans must include plans and
specifications for architectural, structural, mechanical, plumbing, electrical
and site development work (including storm drainage, utility lines and
landscaping).
(b) Final affidavits (in a form approved by Lender) from Borrower
and the Contractor certifying that each of them and their subcontractors,
laborers, and materialmen, as applicable, have been paid in full for all labor
and materials for construction of the Improvements; and final lien releases or
waivers (in a form approved by Lender) by Borrower, Contractor, and all
subcontractors, materialmen, and other parties who have supplied labor,
materials, or services for the construction of the Improvements, or who
otherwise might be entitled to claim a contractual, statutory or constitutional
lien against the Property.
(c) The Title Insurance shall be endorsed to remove any exception
for mechanics' or materialmen's liens or pending disbursements, with no
additional title change or exception objectionable to Lender, and with such
other endorsements required by Lender.
(d) Evidence satisfactory to Lender that all laws and governmental
requirements have been satisfied, including receipt by Borrower of all necessary
governmental licenses, certificates and permits (including certificates of
occupancy) with respect to the completion, use, occupancy and operation of the
Improvements, together with evidence satisfactory to Lender that all such
licenses, certificates, and permits are in full force and effect and have not
been revoked, canceled or modified.
(e) Evidence satisfactory to Lender that all impact fees for the
Project have been paid.
(f) Three (3) copies of a final as-built survey of the Property
satisfactory to Lender, showing all Improvements in place, including striping of
parking areas and a statement as to the number of parking spaces, and otherwise
complying with EXHIBIT "G".
26
<PAGE>
(g) A certification by the surety that it has approved the final
Loan disbursement to the contractor, on an AIA form G707 or such other form as
shall be acceptable to Lender.
(h) At such time as the Improvements are occupied, an evidence
certificate of an "all risk" permanent hazard insurance policy must be submitted
to Lender. The policy: shall be from a company satisfactory to Lender with an
A-XII Best's Rating or better; shall be in an amount satisfactory to Lender;
shall include a Replacement Cost and Agreed Amount/Stipulated Value Endorsement;
shall include a Sinkhole Endorsement, if appropriate; and shall include
provisions for a minimum 30-day advance written notice to Lender of any intended
policy cancellation, non-renewal or material modifications; and shall designate
Lender as mortgagee and loss payee. Borrower shall submit satisfactory evidence
that all insurance premiums have been paid.
6. DIRECT ADVANCES. Borrower hereby irrevocably authorizes Lender (but
Lender shall have no obligation) to advance Loan funds directly to itself to pay
interest due on the Loan. Each such direct advance (except for application of a
Borrower's Deposit) shall be added to the outstanding principal balance of the
Loan and shall be secured by the Loan Documents. Unless Borrower pays such
interest from other resources, Lender may advance Loan funds pursuant to this
Section for interest payments as and when due. Nothing contained in this
Agreement shall be construed to permit Borrower to defer payment of interest on
the Loan beyond the date(s) due. The allocation of Loan funds in the Budget for
interest shall not affect Borrower's absolute obligation to pay the same in
accordance with the Loan Documents. Lender may hold, use, disburse and apply the
Loan and the Borrower's Deposit for payment of any obligation of Borrower under
the Loan Documents. Borrower hereby assigns and pledges the proceeds of the Loan
and any Borrower's Deposit to Lender for such purposes. Lender may advance and
incur such expenses as Lender deems necessary for the completion of the
Improvements and to preserve the Property and any other security for the Loan,
and such expenses, even though in excess of the amount of the Loan, shall be
secured by the Loan Documents and shall be payable to Lender on demand. Lender
may disburse any portion of any advance at any time, and from time to time, to
persons other than Borrower for the purposes specified in this Section and the
amount of advances to which Borrower shall thereafter be entitled shall be
correspondingly reduced.
7. CONDITIONS AND WAIVERS. All conditions precedent to the obligation
of Lender to make any advance are imposed hereby solely for the benefit of
Lender, and no other party may require satisfaction of any such condition
precedent or be entitled to assume that Lender will refuse to make any advance
in the absence of strict compliance with such conditions precedent. Any
requirement of this Agreement may be waived, in whole or in part, in a specific
written waiver intended for that purpose and signed by Lender. Lender shall have
the right to approve and verify the periodic progress, costs incurred by
Borrower, and the estimated costs remaining to be incurred, after consultation
with the Construction Consultant. No advance shall constitute an approval or
acceptance by Lender of any construction work, a waiver of any condition
precedent to any further advance, or preclude Lender from thereafter declaring
the failure of Borrower to satisfy such condition precedent to be a Default. No
waiver by Lender of any condition precedent or obligation shall preclude Lender
from requiring such condition or obligation to be met prior to making any other
advance or from thereafter declaring the failure to satisfy such condition or
obligation to be a Default.
8. FUNDING. Borrower shall establish and maintain a special account
with Lender into which advances funded directly to Borrower (but no other
funds), and excluding direct disbursements made to or by Lender pursuant to this
Agreement, shall be deposited by Borrower, and against which checks shall be
drawn only for the payment of costs specified in the Budget, but which special
account shall not be used for any other purpose. Borrower hereby irrevocably
authorizes Lender to deposit each advance requested by Borrower to the credit of
Borrower in that account, by wire transfer or other deposit. Advances may also
be made, in addition to other methods contemplated herein, at Lender's option,
by direct or joint check payment to any or all persons entitled to payment for
work or services performed or material furnished in connection with the Project
or the Loan, or by having the proceeds thereof made available to the Title
Insurer (or its agent) for disbursement. Lender shall not be required to, and
has no responsibility to, supervise the proper application or distribution of
funds to third parties.
27
<PAGE>
9. COMPLIANCE WITH PROMPT PAYMENT LAW. Borrower shall comply with the
Construction Contract Prompt Payment Law contained in the Florida Construction
Lien Law, Chapter 713, FLORIDA STATUTES, notwithstanding Lender's failure or
delay in funding any Draw Requests or Lender's cessation of funding Draw
Requests in accordance with the terms of this Agreement.
10. CONSTRUCTION LIEN LAW NOTIFICATION REQUIREMENTS. Borrower hereby
authorizes Lender to provide written notices to Contractor and lienors providing
notices to owner pursuant to ss. 713.3471(1)(a), FLORIDA STATUTES, and ss.
713.3471(2)(b), FLORIDA STATUTES, to the extent such notices are required by
law. Borrower hereby releases Lender and waives all claims it may have against
Lender for damages Borrower may incur as a result of Lender's failure to deliver
said notices. Borrower hereby agrees to provide all required notices to the
Contractor and all lienors providing notices to owner in compliance with ss.
713.3471(2)(a), FLORIDA STATUTES, in a timely fashion.
11. POST-CLOSING ENVIRONMENTAL ASSESSMENTS. In addition to the
environmental report required to be furnished to Lender as a condition precedent
to the Loan closing and the First Advance, Lender may, at Lender's sole option,
and at the Borrower's expense, require an environmental assessment or updated
assessment of the Property by an engineering firm, and of a scope and in form
and content satisfactory to Lender, complying with Lender's established
guidelines, showing that there is no evidence of any hazardous or toxic
substances which have been generated, treated, stored, released or disposed of
in the Property, except for such hazardous or toxic substances lawfully used by
the Borrower in the ordinary course of Borrower's business operations on the
Property, and such additional evidence as may be required by Lender. Borrower
agrees at its sole expense to provide such environmental assessments when
requested by Lender. If any environmental assessment indicates the past or
present use, handling, storage, transportation or disposal of hazardous or toxic
materials, except for such hazardous or toxic substances lawfully used by the
Borrower in the ordinary course of Borrower's business operations on the
Property, such shall constitute a Default by the Borrower under the Loan
Documents. Notwithstanding anything contained herein to the contrary, Lender
shall not request updated environmental assessments pursuant to this Section
unless: (a) the Loan is in Default, 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.
Lender has reason to believe the Property has been or is presently being used
for the handling, storage, transportation or disposal of hazardous or toxic
materials in violation of any governmental law or regulation).
28
<PAGE>
EXHIBIT "F-1"
DRAW REQUEST
AIA G702 and G703 Application for Payment forms
29
<PAGE>
EXHIBIT "G"
SURVEY REQUIREMENTS
BOUNDARY SURVEY AND FOUNDATION SURVEY
These items are to be included and shown:
1. The complete and correct legal description of the Mortgaged Premises as shown
on the title insurance commitment. (NOTE: It must be possible to trace the legal
description of the Mortgaged Premises on the survey by following the bearings
and dimensions around the boundaries of the Mortgaged Premises.)
2. The location of all recorded easements and unrecorded easements ascertainable
by an inspection of the Mortgaged Premises, which benefit or burden the
Mortgaged Premises. (NOTE: All recorded easements are to be (1) identified by a
document recording number or other document reference or (2) identified as not
plottable with the reason stated.)
3. The location of all adjoining streets, roads, highways and alleys, with
names, rights-of-way widths, and distances from the Mortgaged Premises noted. If
none adjoin the Mortgaged Premises, then the location of the nearest public
street, road or highway and its distance from the Mortgaged Premises.
4. The location of public access to the Mortgaged Premises.
5. A directional indicator.
6. The street address, if known, of any existing improvements.
7. The dimensions of the Mortgaged Premises and the dimensions and location of
existing improvements as measured in all directions from property lines.
8. The perimeter dimensions of existing improvements.
9. Interior lot lines, if any.
10. All applicable governmental set-back lines.
11. The location of existing connections and on-site utility and service lines
for natural gas, electricity, water, and sanitary storm.
12. The area of the Mortgaged Premises.
13. State whether or not the property appears on any U.S. Department of H.U.D.
FLOOD INSURANCE BOUNDARY MAP and, if so, further state the map number, map date
and the property's flood zone as determined from the map.
14. Ingress and egress easements over the property, curb cuts, and driveways as
may be shown on site plan.
15. Identify mineral rights and if there is right to subsurface entry.
30
<PAGE>
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
16. The following certificate of surveyor:
"The undersigned hereby certifies to NATIONSBANK, N.A., PLASMA-THERM,
INC., AND FIRST AMERICAN TITLE INSURANCE COMPANY that (a) this survey
is true and correct and was made on the ground under my supervision as
per the field notes shown hereon and correctly shows the boundary
lines, dimensions and area of the land indicated hereon and each
individual parcel thereof indicated hereon; (b) all monuments shown
hereon actually exist, and the location, size and type of such
monuments are correctly shown; (c) this survey correctly shows the
size, location and type of all buildings, structures, other
improvements and visible items on the subject Property; (d) this survey
correctly shows the location and dimensions of all alleys, streets,
roads, rights-of-way, easements, building setback lines and other
matters of record of which the undersigned has been advised affecting
the subject Property according to the legal description in such
easements and other matters (with instrument, book, and page number
indicated); (e) except as shown, there are not visible (1)
improvements, easements, rights-of-way, party walls, drainage ditches,
streams, uses, discrepancies or conflicts, (2) encroachments onto
adjoining premises, streets, or alleys by any of said buildings,
structures, or other improvements, (3) encroachments onto the subject
Property by buildings, structures, or other improvements on adjoining
premises, or (4) encroachments on any easement, building setback line
or other restricted area by any buildings, structures or other
improvements on the subject property, (f) the subject property abuts a
dedicated public street or road as shown hereon, and (g) meets the
minimum technical standards set forth by the Florida Board of Land
Surveyors pursuant to ss. 472.027, FLORIDA STATUTES and Chapter 61G17-6
Florida Administrative Code."
(SEAL) Dated this _____ day of ______________, 1998
(LICENSED SURVEYOR'S NAME)
--------------------------------------------
By: (ORIGINAL SIGNATURE)
--------------------------------------------
AS-BUILT SURVEY:
In addition to the requirements listed above, include these items:
1. Location of walkways.
2. Street address of each building.
3. Location and size of all paved parking areas with striping and
indicating number of parking spaces.
31
<PAGE>
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
SURVEYOR'S REPORT AND CERTIFICATION
I hereby certify to NationsBank, N.A. and First American Title Insurance
Company, as of ____________________, 1998, that I am a duly registered land
surveyor of the State of Florida; that the attached plat of survey is made at
least in accordance with the minimum standards established by the State of
Florida for surveys and land surveyors; that I have made an accurate survey of
the premises situated at _____________________________________________ (See
Exhibit "A" attached hereto) known as Street Numbers ________________________
and shown on the attached plat of survey dated _______________________, under
Order No. ______________. In connection with such survey, I made a careful
inspection of said premises on __________________, 199___, and at the time of
inspection, I found to be in possession of said premises
_______________________________________ as ________________________. (Tenant or
Owner).
I made a specific examination with respect to (and the survey correctly shows
the location of) the following items and report the existence of evidence of the
following (if none, state "none"):
1. Rights of way, including those for roads, lanes, driveways or walks across
said premises serving other property:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Streams, ponds or lakes located, bordering on or running through said
premises:_______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3. Telephone, telegraph or electric power poles or wires overhanging or crossing
said premises and serving other property or properties:_________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
4. Underground installations such as sewers, water pipes, gas or oil pipe lines,
conduits, across said premises:_________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5. Drainage ditches or underground drain tile across said premises:_____________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. Joint driveways or walkways; party or curtain walls, beam rights, porches;
steps or roofs used in common or joint garages:_________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
32
<PAGE>
EXHIBIT "G"
SURVEY REQUIREMENTS - CONTINUED
7. Encroachments, or overhanging projections. (If a building or its eaves, fire
escapes, bay windows, doors, flue pipes, stoops, or areaways, or signs affixed
thereto, or its fences, walks, drives, gates or entrances encroach upon or
overhang adjoining properties, or similar adjoining properties, or similar
adjoining structures encroach upon or overhang the subject premises, specify all
of same, and if buildings are substantially on property lines, indicate if walls
are plumb and if foundations and footings are within required building setback
lines:__________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. Physical evidence of boundary lines on all sides. (Be specific as to
how boundary lines are evidenced, that is, by fences, plantings, etc.;
indicate whether same differ from deed lines and whether there is
evidence of disagreement as to boundaries):____________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
9. Any unusual elements of use or possession affecting said premises
(cemeteries, parks, etc.):______________________________________________________
________________________________________________________________________________
10. Evidence of contemplated, commenced, or newly completed construction (be
specific as to what has been done):_____________________________________________
________________________________________________________________________________
________________________________________________________________________________
I have examined the Flood Insurance Rate map for ______________ County,_________
_________________ Community Panel Number ________ Panel _________ of ___________
dated _______________ and hereby certify that this property (IS/IS NOT) located
in a Special Flood Hazard Area as determined by the Department of Housing and
Urban Development.
By: ___________________________
Signature of Surveyor
Registered Number:
(Official Seal)
33
<PAGE>
PROMISSORY NOTE
$4,500,000.00 February 18, 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 Real Estate Loan Administration, 400 North Ashley Drive (FL1-010-07-01), in
the City of Tampa, Hillsborough County, Florida 33602, the principal sum of FOUR
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($4,500,000.00) (or the unpaid
balance of all principal advanced against this Note, if that amount is less)
together with interest on the unpaid principal balance of this Note from day to
day outstanding as hereinafter provided, as follows:
The entire principal balance of this Note then unpaid shall be due and
payable and shall be paid on April 18, 2000, the final maturity of this
Note (the "Maturity Date"). Accrued unpaid interest for the preceding
month shall be due and payable and shall be paid commencing on the last
day of March, 1999, and on the last day of each succeeding month
thereafter immediately following the month for which said interest has
accrued until the Maturity Date.
At Maker's option, the Maturity Date may be extended to April 18, 2005 (the
"Extension Maturity Date"), if on or before the Maturity Date the following
conditions have been satisfied:
a. Maker has delivered written notice of its intention to exercise
the extension option to extend the Maturity Date no less than 30 days prior to
the Maturity Date.
b. Maker has complied with all terms and conditions of the Loan
Agreement and Loan Documents (as defined below), including, without limitation,
that construction of the Improvements, and the installation of any required
items of tangible property, have been completed; and Maker has submitted an
acceptable title policy or current "update" endorsement thereto to Lender;
c. At the time Maker delivers its written notice of intention to
exercise the extension option and as of the Maturity Date, no Default then
exists, nor any condition or state of facts which after notice and/or lapse of
time would constitute a Default under this Note, the Loan Agreement, or the Loan
Documents (as defined below);
<PAGE>
d. If required by Lender, Maker has executed an extension agreement
and such other documentation as Lender may require;
e. There has been no adverse change in the financial condition of
Maker or any guarantors of this Note or with respect to the Property which is
the collateral for this Note.
f. All applicable regulatory requirements, including appraisal
requirements as determined by Lender, shall have been satisfied with respect to
the extension of the Maturity Date.
The time period between the Maturity Date and the Extension Maturity Date is
referred to as the "Term Phase." During the Term Phase equal monthly payments of
principal and interest in an amount calculated based upon the applicable
interest rate as applied to the outstanding principal amount of this Note, and
amortized over a fifteen (15) year period shall be due and payable and shall be
paid commencing on the earlier of (i) the last day of the fourteenth (14th)
month following the date of this Note, or (ii) the last day of the first (1st)
month following the first (1st) day of the Term Phase, and shall continue on the
last day of each subsequent month thereafter until the Extension Maturity Date.
Whether or not the extension becomes effective, Maker shall pay all
out-of-pocket costs and expenses incurred by Lender in connection with
processing Maker's request to exercise its extension option, and all costs and
expenses incurred by Maker in connection with documenting the extension (both
pre- and post-closing), including but not limited to such costs and expenses as
are outlined and described in Section 4.7 of the Loan Agreement, and all such
costs and expenses shall be due and payable upon the Lender's demand.
2. SECURITY; LOAN DOCUMENTS. The security for this Note includes a
Mortgage, Assignment of Rents and Security Agreement which, as it may have been
or may hereafter be amended, restated, modified or supplemented from time to
time, is herein called the "Mortgage" dated February 18, 1999, from
PLASMA-THERM, INC., a Florida corporation to Lender, encumbering certain
property in Pinellas County, Florida described therein (the "Property"). This
Note, the Mortgage, the loan commitment letter from Lender to Maker dated April
16, 1998, as amended by letters dated September 10, 1998 and December 3, 1998,
the construction loan agreement between Maker and Lender of even date herewith
and the Credit Agreement between Lender and Maker dated April 18, 1997, as
amended by Amendment to Credit Agreement dated March 25, 1998, and a Second
Amendment to Credit Agreement executed simultaneously herewith (collectively,
the "Loan Agreement"), UCC Financing Statements of even date to be filed for
record in the public records of Pinellas County, Florida and in the Office of
the Secretary of State of the State of Florida (the "Financing Statements"),
Collateral Assignment of General Construction Contract, Subcontracts, Plans and
Specifications and Permits, Collateral Assignment of Professional Agreements and
Plans and Specifications and Permits and any other documents now or hereafter
securing, guaranteeing or executed in connection with the loan evidenced by this
Note, are, as the same have been or may be amended, restated, modified or
supplemented from time to time, herein sometimes called individually a "Loan
Document" and together the "Loan Documents." All of the terms, definitions,
conditions and covenants of the Loan Documents are expressly made a part of this
2
<PAGE>
Note by reference in the same manner and with the same effect as if set forth
herein at length, and any holder of this Note is entitled to the benefit of and
remedies provided in the Loan Documents. Subject to the terms and conditions of
this Note and the Loan Documents, Lender shall advance funds to Maker pursuant
to the terms of the Loan Agreement.
3. INTEREST RATE. Subject to the further provisions of this Section 3, the
unpaid principal balance of this Note from day to day outstanding which is not
past due shall bear interest at a rate per annum equal to the lesser of (i) the
Maximum Rate (hereinafter defined) or (ii) the Stated Rate (hereinafter defined)
computed on the Annual Basis (hereinafter defined). The term "Stated Rate" as
used in this Note means the following:
A floating rate equal to 225 basis points above the "Variable Adjusted
LIBOR Rate", adjusted daily. Prior to commencement of the Term Phase,
Maker will be required to execute an Interest Rate Swap Protection
Agreement to hedge the risk of variable interest rate volatility or
fluctuations of interest rates, which Agreement shall be in form and
content acceptable to Lender. Interest shall be computed based upon the
actual number of days the Loan is outstanding and as if each year were
composed of 360 days.
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
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
3
<PAGE>
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.
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 ss. 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 compensation to Lender for the extra
expense to Lender to process and administer the late payment, Maker agreeing,
4
<PAGE>
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 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).
5
<PAGE>
7. DEFAULT/ACCELERATION. It shall be a default ("Default") under this Note
and each of the other Loan Documents if (a) any principal, interest or other
amount of money due under this Note is not paid in full when due, regardless of
how such amount may have become due; or (c) there shall occur any default or
Event of Default under the Mortgage or any other Loan Document. Upon the
occurrence of a Default, the holder hereof shall have the right to declare the
unpaid principal balance and accrued but unpaid interest on this Note at once
due and payable (and upon such acceleration, the same shall be at once due and
payable without presentation, demand, protest or notice of any kind, which are
all hereby waived by Maker, and this Note shall thereafter bear interest at the
Default Rate), to foreclose any liens and security interests securing payment
hereof and to exercise any of its other rights, powers and remedies under this
Note, under any other Loan Document, or at law or in equity.
All of the rights, remedies, powers and privileges (together, "Rights") of the
holder hereof provided for in this Note and in any other Loan Document are
cumulative of each other and of any and all other Rights at law or in equity.
The resort to any Right shall not prevent the concurrent or subsequent
employment of any other appropriate Right. No single or partial exercise of any
Right shall exhaust it, or preclude any other or further exercise thereof, and
every Right may be exercised at any time and from time to time. No failure by
the holder hereof to exercise, nor delay in exercising any Right, including but
not limited to the right to accelerate the maturity of this Note, shall be
construed as a waiver of any Default or as a waiver of the Right. Without
limiting the generality of the foregoing provisions, the acceptance by the
holder hereof from time to time of any payment under this Note which is past due
or which is less than the payment in full of all amounts due and payable at the
time of such payment, shall not (i) constitute a waiver of or impair or
extinguish the right of the holder hereof to accelerate the maturity of this
Note or to exercise any other Right at the time or at any subsequent time, or
nullify any prior exercise of any such Right, or (ii) constitute a waiver of the
requirement of punctual payment and performance or a novation in any respect.
If any holder of this Note retains an attorney in connection with any Default or
at the Maturity Date or to collect, enforce or defend this Note or any other
Loan Document in any lawsuit, at trial, or in any appellate, probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any holder in
connection with this Note or any other Loan Document and does not prevail, then
Maker agrees to pay to each such holder, in addition to principal, interest and
any other sums owing to Lender under the Loan Documents, all reasonable costs
and expenses incurred by such holder in trying to collect this Note or in any
such suit or proceeding, including without limitation reasonable attorneys'
fees, paralegals' fees and costs.
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
6
<PAGE>
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.
(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. ss. 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.
7
<PAGE>
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.
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
8
<PAGE>
or business day shall be deemed to refer to a banking day which shall be a day
on which Lender is open for the transaction of business, excluding any national
holidays, and any performance which would otherwise be required on a day other
than a banking day shall be timely performed in such instance, if performed on
the next succeeding banking day. Notwithstanding such timely performance,
interest shall continue to accrue hereunder until such payment or performance
has been made.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE
GOVERNED BY FLORIDA LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES)
AND APPLICABLE UNITED STATES FEDERAL LAW.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF 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>
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (the
"Mortgage"), made as of the 18th day of February, 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 400 North Ashley Drive
(FL1-010-07-01), Tampa, Florida 33602.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 DEFINITIONS. As used in this Mortgage and in the exhibits
attached hereto, the following terms shall have the following meanings herein
specified, such definition to be applicable equally to the singular and plural
forms of such terms:
(a) COMMITMENT: The commitment letter from Mortgagee to
Mortgagor dated April 16, 1998, as amended by letters dated September 10, 1998
and December 3, 1998.
(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.
This instrument prepared by and returned to:
MARY JO CARNEY
Powell, Carney, Hayes & Silverstein, P.A.
Post office Box 1689
St. Petersburg, FL 33731-1689
<PAGE>
(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 $9,000,000.00, 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: $4,500,000.00 as evidenced by the Note.
(r) LOAN AGREEMENT: The construction loan agreement of even date
herewith between Mortgagor and Mortgagee and that certain Credit Agreement
between Mortgagee and Mortgagor dated April 18, 1997, as amended on March 25,
1998, and on even date herewith.
(s) LOAN DOCUMENTS: Those items required by the Commitment and
any other document or instrument executed, submitted, or to be submitted by
Mortgagor or others in connection with the Loan, including but not limited to
the: i) Note, ii) Mortgage, iii) Loan Agreement, iv) financing statements, v)
Environmental
-2-
<PAGE>
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;
(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 $4,500,000.00, 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.
-3-
<PAGE>
(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;
(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 (but not related to
the Mortgagor's business conducted in the Improvements), including without
limitation, corporate or other business records and books, computer records
whether on tape, disc or otherwise stored, blueprints, surveys, architectural or
engineering drawings, plans and specifications, licenses, governmental
approvals, franchises, permits, payment and performance bonds, tax refund
claims, and agreements with utility companies, together with any deposits,
prepaid fees and charges paid thereon;
(v) all Leases and Rents (to the extent same are not deemed
to be real property);
(vi) all judgments, awards of damages and settlements from
any condemnation or eminent domain proceedings regarding the Land, the
Improvements or any of the Mortgaged Property;
(vii) all insurance policies required by this Mortgage, the
unearned premiums therefor and all loss proceeds thereof;
(viii) all construction contracts, architectural contracts,
service contracts, engineering contracts, contracts for purchase and sale of any
of the Mortgaged Property, equipment leases, monies in escrow accounts,
reservation agreements, prepaid expenses, deposits and down payments with
respect to the sale or rental of any of the Mortgaged Property, options and
agreements with respect to additional real property for use or development of
the Mortgaged Property (including any rights of first refusal to purchase lands
adjacent to the Mortgaged Property), end-loan commitments, abstracts of title,
all brochures, advertising materials, condominium documents and prospectuses;
and
(ix) all proceeds, products, replacements, additions,
betterments, extensions, improvements, substitutions, renewals and accessions of
any and all of the foregoing.
Provided, however, that trade secrets and other proprietary information owned by
Mortgagor, such as trademarks, copyrights and patents shall not be included
within the definition of Personal Property, and shall not be encumbered by the
lien of this Mortgage.
(cc) RENTS: All rents, revenues, rental income and profits from
leases, franchises, concessions or licenses of or on any part of the Mortgaged
Property.
1.2 RULES OF CONSTRUCTION. The use of any gender shall include all
other genders. The singular shall include the plural and the plural shall
include the singular. The word "or" is not exclusive and the use of the word
"and" may be conjunctive or disjunctive in the sole and absolute discretion of
Mortgagee. The captions of Articles, Sections and Subsections of this Mortgage
are for convenient reference only, and shall not affect the construction or
interpretation of any of the terms and provisions set forth herein.
1.3 SECURITY AGREEMENT. This Mortgage constitutes a "Security
Agreement" within the meaning of and shall create a security interest under the
Uniform Commercial Code-Secured Transactions as adopted by the State of Florida,
with respect to the Fixtures, Leases, Rents and Personal Property. A carbon,
photographic or other reproduction of this Mortgage or of any financing
statement shall be sufficient as a financing statement. The debtor's principal
place of business and the secured party's address is set forth in the
introduction to this Mortgage.
-4-
<PAGE>
ARTICLE II
GRANT
2.1 GRANT. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to secure the payment,
observance, performance and discharge of the Obligations, Mortgagor does by
these presents give, transfer, grant, bargain, sell, alien, remise, release,
assign, mortgage, hypothecate, deposit, pledge, set over, confirm, convey and
warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and
to the Mortgaged Property, whether now owned or held or hereafter acquired by
Mortgagor, subject, however, to the Permitted Title Exceptions, to have and to
hold the Mortgaged Property unto Mortgagee, its successors and assigns forever.
2.2 CONDITION OF GRANT. Subject to the provisions of this Mortgage,
the condition of these presents is such that if Mortgagor shall pay, observe,
perform and discharge the Obligations, or cause same to be paid, observed,
performed and discharged in strict accordance with the terms thereof, then this
Mortgage and the estates, interests, rights and assignments granted hereby shall
be null and void, but otherwise shall remain in full force and effect.
2.3 SUBROGATION. The Mortgagee is hereby subrogated to the claims
and liens of all parties whose claims or liens are fully or partially discharged
or paid with the proceeds of the indebtedness secured by this Mortgage
notwithstanding that such claims or liens may have been canceled and satisfied
of record.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
3.1 ASSIGNMENT. The Mortgagor does hereby absolutely and
unconditionally assign and transfer to Mortgagee all of Mortgagor's estate,
right, title and interest in and to the Leases and Rents, to have and to hold
the Leases and Rents unto Mortgagee, its successors and assigns forever. From
time to time, upon request of Mortgagee, Mortgagor shall give further evidence
of this assignment to Mortgagee by executing and delivering to Mortgagee
specific assignments of the Leases and Rents, in form and content approved by
Mortgagee. All such specific assignments shall be of the same dignity and
priority as this Mortgage. From time to time, upon request of Mortgagee,
Mortgagor shall also execute and deliver to Mortgagee any notification to
tenants or other document reasonably required by Mortgagee.
3.2 PAYMENT OF RENTS TO MORTGAGOR, AS TRUSTEE, UNTIL DEFAULT. So
long as no Event of Default has occurred, Mortgagor may, as trustee for the use
and benefit of Mortgagee, collect, receive and accept the Rents as they become
due and payable (but in no event for more than two (2) months in advance);
provided, however, that if the Rents exceed the payments due under the Note, the
Mortgagor may use such excess, first, for the operation and benefit of the
Mortgaged Property and, second, for the general benefit of the Mortgagor. Upon
the occurrence of an Event of Default Mortgagee may, at its option, remove the
Mortgagor as trustee for the collection of the Rents and appoint any other
person including, but not limited to, itself as a substitute trustee to collect,
receive, accept and use all such Rents in payment of the Obligations, in such
order as Mortgagee shall elect in its sole and absolute discretion, whether or
not Mortgagee takes possession of the Mortgaged Property. Mortgagor hereby
directs each of the respective tenants under the Leases, and any rental agent,
to pay to Mortgagee all such Rents, as may now be due or shall hereafter become
due, upon demand for payment thereof by Mortgagee without any obligation on the
part of any such tenant or rental agent to determine whether or not an Event of
Default has in fact occurred. Upon an Event of Default, the permission hereby
given to Mortgagor to collect, receive and accept such Rents as trustee shall
terminate; however such permission shall be reinstated upon a cure of the Event
of Default with Mortgagee's specific written consent. Further, upon the event of
a Default, Mortgagor shall immediately turn over to Mortgagee all Rents in the
actual or constructive possession of Mortgagor, its affiliates, contractors, or
its agents, together with an accounting thereof. Exercise of Mortgagee's rights
under this Section, and the application of any such Rents to the Obligations,
shall not cure or waive any default or notice of default hereunder or invalidate
any act done pursuant hereto, but shall be cumulative and in addition to all
other rights and remedies of Mortgagee.
3.3 PERFORMANCE UNDER LEASES. Mortgagor covenants that it shall,
at its sole cost and expense, (a) duly and punctually perform and discharge, or
cause to be performed and discharged, all of the obligations and undertakings of
Mortgagor or its agents under the Leases, (b) use its best efforts to enforce or
secure, or cause to be enforced or secured, the performance of each and every
obligation and undertaking of the respective tenants under the Leases, (c)
promptly notify Mortgagee if Mortgagor receives any notice from a tenant
claiming that Mortgagor is in default under a Lease and (d) appear in and defend
any action or proceeding arising under or in any manner connected with the
Leases.
3.4 LEASES IN GOOD STANDING. All Leases are in full force and
effect, and there are no defaults thereunder or any defenses or offsets thereto
on the part of any tenant.
-5-
<PAGE>
3.5 PROVISIONS OF LEASES AND APPROVAL OF TENANTS. All Leases shall
be inferior and subordinate to the lien of this Mortgage and the terms of each
Lease shall so expressly provide. Mortgagor covenants that all Leases hereafter
entered into by Mortgagor shall be in form and substance satisfactory to
Mortgagee. Further, the Mortgagee specifically reserves the right to approve all
proposed tenants, and any assignee or sublessee of any existing tenant.
3.6 TERMINATION OR MODIFICATION. Mortgagor covenants that it shall
not, without the prior express written consent of Mortgagee, enter into a Lease,
or materially modify, terminate, or consent to the cancellation or surrender of
any Lease, or permit any tenant under any Lease to assign or sublet its rights
thereunder.
3.7 NO OBLIGATION OF MORTGAGEE. This Assignment shall not be
deemed or construed to constitute Mortgagee as a mortgagee in possession of the
Mortgaged Property nor shall it obligate Mortgagee to take any action or to
incur expenses or perform or discharge any obligation, duty or liability of
Mortgagor under any Lease.
3.8 CUMULATIVE REMEDIES. Each and every right, remedy and power
granted to Mortgagee by this Article shall be cumulative and in addition to
every other right, remedy and power given by the Loan Documents and now or
hereafter existing in equity, at law, or by virtue of statute or otherwise. The
failure of Mortgagee to avail itself of any of its rights, remedies and powers
shall not be construed or deemed to be a waiver thereof.
3.9 NOTIFICATION OF MORTGAGEE'S RIGHTS. Mortgagee shall have the
right, but not the obligation, at any time and from time to time, to notify any
tenant under any Lease of the rights of Mortgagee as provided in this Article
III and Mortgagor, upon demand from Mortgagee, shall confirm to such tenant the
existence of such rights.
3.10 ATTORNEY-IN-FACT. To further effectuate Mortgagee's rights
under this Article III, Mortgagor hereby constitutes and irrevocably appoints
Mortgagee its true and lawful attorney-in-fact, which appointment is coupled
with an interest, with full power of substitution, and empowers said attorney or
attorneys in the name of Mortgagor, but at the option of said attorney-in-fact,
to (i) collect and receive the Rents and to issue receipts therefor, (ii) to
make, enter into, extend, modify, amend, terminate, consent to the cancellation
or surrender of any Lease, or permit any tenant to assign or sublet its rights
thereunder, (iii) to execute, acknowledge and deliver any and all instruments
and documents that Mortgagee may deem necessary or proper to implement its
rights as provided in this Article III, and (iv) to perform and discharge any
and all obligations and undertakings of Mortgagor under any Lease.
3.11 OTHER ASSIGNMENTS. Mortgagor shall not further assign or
transfer the Leases or Rents except in favor of Mortgagee as provided in this
Article III, and shall not create or permit to be created or to remain, any
mortgage, pledge, lien, encumbrance, claim, or charge on the Leases or Rents.
Any transaction prohibited under this Section shall be null and void.
3.12 SECTION 697.07 OF THE FLORIDA STATUTES. The assignments of
Leases and Rents contained in this Mortgage are intended to provide Mortgagee
with all the rights and remedies of mortgagees pursuant to 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
4.1 REPRESENTATIONS AND WARRANTIES. Mortgagor hereby represents and
warrants to Mortgagee that:
(a) ORGANIZATION, CORPORATE POWER, PARTNERSHIP POWER, Etc.
Mortgagor (i) if a corporation, (A) is duly organized, validly existing and in
good standing under the laws of the state or country of its incorporation, (B)
has the corporate power and authority to own its properties and to carry on its
business as now being conducted, and all of its issued and outstanding stock is
fully paid and nonassessable, (C) is qualified to do business in the State of
Florida, (D) is in compliance with all Governmental Requirements, and (E) has
not amended or modified its articles or certificate of incorporation or its
bylaws except as previously disclosed in writing to Mortgagee prior to the
execution hereof.
-6-
<PAGE>
(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 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
-7-
<PAGE>
authorities having jurisdiction, and electric, gas (if applicable) and telephone
service, all of sufficient capacity to serve the needs of the Land and
Improvements according to their intended purpose.
(k) CONDITION OF MORTGAGED PROPERTY. The Mortgaged Property or
any part thereof, now existing, is not damaged or injured as a result of any
fire, explosion, accident, flood or other casualty. The Improvements, if any, as
of the date of this Mortgage, are free of any defects in material, structure and
construction and do not violate any Governmental Requirements. There is no
existing, proposed or contemplated plan to modify or realign any street or
highway or any existing, proposed or contemplated eminent domain proceeding that
would result in the taking of all or any part of the Mortgaged Property or that
would adversely affect the use or the operation of the Mortgaged Property.
(l) ZONING. The Land is zoned so as to permit the Land and
Improvements to be used for their intended purpose.
(m) NO DEFAULT. No default or Event of Default exists under any
of the Loan Documents; and no event has occurred and is continuing which, with
notice or the lapse of time, or both, would constitute a default under any
provision thereof.
(n) FICTITIOUS NAME STATUTE. Mortgagor, if applicable, has duly
complied with all of the requirements of the Florida Fictitious Name Statute.
(o) JUNIOR MORTGAGE. No Junior Mortgage, if any, existing as of
the date hereof requires the consent of any of the holders thereof to the Loan,
the execution and delivery of the Loan Documents, or to any transaction
contemplated under the Loan Documents. All Junior Mortgages existing as of the
date hereof, if any, are in good standing, all principal, interest and other
payments due thereunder have been paid in accordance with the terms thereof,
there is no default thereunder and no event has occurred which with due notice
or the lapse of time, or both, would constitute a default thereunder.
(p) ENVIRONMENTAL CONTAMINATION/HAZARDOUS MATERIAL. Mortgagor
and the Mortgaged Property are in full compliance with all Environmental Laws,
and there are no civil, criminal or administrative actions, suits, demands,
claims, hearings, notices or demand letters, notices of violation,
investigations, or proceedings pending or threatened against the Mortgagor or
the Mortgaged Property relating in any way to any Environmental Law or any
agreement, plan, order, decree, judgment, injunction, notice or demand letter
issued, entered, promulgated or approved under any Environmental Law. There have
never been nor are there currently any Hazardous Material located on, in, or
under the Mortgaged Property or used in connection therewith, and neither
Mortgagor nor any other person has ever used the Mortgaged Property for the
manufacture, processing, distribution, use, transport, handling, treatment,
storage, disposal, emission, discharge or release of any Hazardous Material. No
notice or advice has been received by Mortgagor of any condition or state of
facts that would be contributing to a claim of pollution or any other damage to
the environment by reason of the conduct of any business on the Mortgaged
Property or operation of the Mortgaged Property, whether past or present.
(q) FACILITIES FOR HANDICAPPED: The Improvements comply with all
legal requirements regarding access and facilities for handicapped or disabled
persons, including, without limitation, and to the extent applicable, Part V of
the Florida Building Construction Standards Act 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, W. Nicholas Goetz, Edmond A.
Richards and Jay Sasserath.
4.2 RELIANCE ON REPRESENTATIONS. The Mortgagor acknowledges that
the Mortgagee has relied upon the Mortgagor's representations, has made no
independent investigation of the truth thereof, is not charged with any
knowledge contrary thereto that may be received by an examination of the public
records in Tallahassee, Florida and wherein the Land is located, or that may
have been received by any officer, director, agent, employee or shareholder of
Mortgagee.
-8-
<PAGE>
ARTICLE V
AFFIRMATIVE COVENANTS
5.1 PAYMENT AND PERFORMANCE. Mortgagor shall promptly pay and
punctually perform, or shall cause to be promptly paid and punctually performed,
all of the Obligations as and when due and payable.
5.2 EXISTENCE. Mortgagor shall preserve and keep in full force and
effect its existence, rights, franchises, trade names and qualification to
transact business in the State of Florida.
5.3 COMPLIANCE WITH LAWS. Mortgagor shall promptly and faithfully
comply with, conform to and obey all Governmental Requirements and the rules and
regulations now existing or hereafter adopted by every Board of Fire
Underwriters having jurisdiction, or similar body exercising similar functions,
that may be applicable to Mortgagor or to the Mortgaged Property or to the use
or manner of use, occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of the Mortgaged Property, whether or not such
Governmental Requirement or rule or regulation shall necessitate structural
changes or improvements or interfere with the use or enjoyment of the Mortgaged
Property.
5.4 IMPOSITIONS.
(a) Mortgagor shall pay all Impositions on the Mortgaged
Property and all taxes levied or assessed upon this Mortgage, the Note and the
Obligations, or any of them. In the event of the passage, after the date of this
Mortgage, of any law (i) making it illegal for the Mortgagor to pay the whole or
any part of the Impositions, or charges or liens herein required to be paid by
Mortgagor, or (ii) rendering the payment by Mortgagor of any and all taxes
levied or assessed upon this Mortgage, the Note, or the Obligations or the
interest in the Mortgaged Property represented by this Mortgage unlawful, or
(iii) rendering the covenants for the payment of the matters set forth in
Subparts (i) and (ii) of this Subsection by Mortgagor legally inoperative, the
Mortgagor shall pay, upon demand, the entire unpaid Obligations notwithstanding
anything in the Note, this Mortgage, or the other Loan Documents to the
contrary.
(b) Mortgagor shall pay all ad valorem taxes on the Mortgaged
Property on or before December 1st of each year in which they become a lien on
the Mortgaged Property, and shall deliver to Mortgagee tax receipts evidencing
said payment on or before December 31 of each year. Mortgagor shall also deliver
to Mortgagee receipts evidencing the payment of all other Impositions within
thirty (30) days after same become due and payable or before same shall become
delinquent, whichever is sooner.
5.5 INSURANCE. Until the Obligations shall have been fully
discharged by Mortgagor, Mortgagor shall cause to be maintained, at Mortgagor's
cost and expense, the following insurance coverages in full force and effect at
all times throughout the term of the Loan:
(a) HAZARD INSURANCE. Mortgagor shall keep the Improvements and
all Personal Property which now or hereafter may constitute part of the
Mortgaged Property insured at all times against loss or damage by fire and other
hazards included within the term "all risk" or "extended coverage" and against
such other hazards as Mortgagee may require in the full insurable value thereof
(or such lesser amount as Mortgagee may authorize in writing), with an insurer
satisfactory to Mortgagee. Such policy shall include a Replacement Cost and
Agreed Amount/Stipulated Value Endorsement and a Sinkhole Endorsement, if deemed
necessary by Mortgagee.
(b) LIABILITY INSURANCE. Mortgagor will obtain and keep in full
force a "Broad Form Comprehensive General Liability" insurance coverage for both
Mortgagor and any contractor performing services to the Mortgaged Property in
the minimum coverage amount of One Million Dollars ($1,000,000.00) per
occurrence and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00 or CSL of Ten
Million Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00 or
greater.
(c) FLOOD INSURANCE. If at any time the Land or any portion
thereof is located in a "Flood Hazard Area" pursuant to the Flood Disaster
Protection Act of 1973 or any successor or supplemental act thereto, flood
insurance in the maximum amount available or such other amount as Mortgagee may
reasonably request.
(d) BUILDER'S RISK INSURANCE. An "All risk", non-reporting,
completed value builder's risk insurance policy, which policy shall include
Agreed Amount, Replacement Cost, Permit to Occupy and Vandalism/Malicious
Mischief Endorsements.
(e) OTHER INSURANCE. Boiler and machinery insurance, worker's
compensation insurance, wind damage insurance, and other insurance coverages as
Mortgagee may reasonably require.
The policy or policies of insurance shall (i) be from companies and
in coverage amounts acceptable to Mortgagee, (ii) contain a standard mortgagee
clause in favor of Mortgagee naming Mortgagee as a mortgagee and including a
lender's loss payee clause in such policy, as applicable (iii) not be terminable
or modified without thirty (30)
-9-
<PAGE>
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:
400 North Ashley Drive (FL1-010-07-01)
Tampa, Florida 33602
Attn: Loan Administration Section,
Real Estate Banking Group
5.6 RESTORATION FOLLOWING CASUALTY.
(a) If all or any part of the Mortgaged Property shall be
damaged or destroyed by a casualty, Mortgagor shall immediately give written
notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is
authorized and empowered (but not obligated or required) to make proof of loss
and to settle, adjust or compromise any claims for loss, damage or destruction
under any policies of insurance required under this Mortgage. All proceeds of
insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be
applied first to the payment of all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in
obtaining such proceeds, and second, at the option of Mortgagee, either to the
payment of the Obligations whether or not due, in such order as Mortgagee may
elect, or to the restoration, repair, or replacement of the Mortgaged Property.
If Mortgagee elects to apply the insurance proceeds to the restoration, repair
or replacement of the Mortgaged Property, such proceeds shall be disbursed to
Mortgagor as work progresses pursuant to a construction and disbursing agreement
in form and content satisfactory to Mortgagee in its sole discretion, and
Mortgagor shall promptly and diligently, regardless of whether there shall be
sufficient insurance proceeds therefor, restore, repair and rebuild the
Mortgaged Property to the equivalent of its condition immediately prior to the
casualty. During the period of restoration and repair, Mortgagor shall continue
to duly and promptly pay, perform, observe and comply with all of the
Obligations. The election by Mortgagee to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property shall not affect
the lien of this Mortgage or affect or reduce the Obligations.
(b) If all or any of the Mortgaged Property shall be damaged or
destroyed by a casualty not covered by insurance under Section 5.5, or, if so
covered, the insurer fails or refuses to pay the claim within thirty (30) days
following the filing thereof, Mortgagor shall immediately give written notice
thereof to Mortgagee, and Mortgagor shall promptly and diligently, at
Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior to the casualty.
During the period of restoration and repair, Mortgagor shall continue to duly
and promptly pay, perform, observe and comply with all of the Obligations.
(c) If any work required to be performed under Subsections (a)
or (b) above, or both, shall involve an estimated expenditure of more than
$25,000.00, no such work shall be undertaken until plans and specifications
therefor, prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
5.7 CONDEMNATION.
(a) Mortgagor shall immediately notify Mortgagee upon obtaining
any knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property or any part thereof.
(b) If all or any part of the Mortgaged Property shall be
damaged or taken through condemnation (which term when used in this Mortgage
shall include any damage or taking by any Governmental Authority and any
transfer by private sale in lieu thereof, either temporarily or permanently),
Mortgagee at its option may declare all of the unpaid Obligations to be
immediately due and payable, and upon ten (10) days written notice from
Mortgagee to Mortgagor all such Obligations shall immediately become due and
payable as fully and to the same effect as if such date were the date originally
specified for the final payment or maturity thereof. The Mortgagee shall be
entitled to all compensation, awards and other payments resulting from such
condemnation and is hereby authorized, at its option, to commence, appear in and
prosecute, in its own or in Mortgagor's name, any action or proceeding relating
to any condemnation, and to settle or compromise any claim in connection
therewith. All such compensation, awards, damages, claims, rights of action and
proceeds and the right thereto are hereby assigned by Mortgagor to Mortgagee and
shall, be applied first to the payment of all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by
Mortgagee in connection with any action or proceeding under this Section 5.7,
and second, at the option of Mortgagee, either to the payment of the Obligations
whether or not due, in such order as Mortgagee may elect, or to the restoration,
repair or alteration of the Mortgaged Property. If Mortgagee elects to apply the
condemnation awards to the restoration, repair or alteration of the Mortgaged
Property, such awards shall be
-10-
<PAGE>
disbursed to Mortgagor as work progresses pursuant to a construction and
disbursing agreement in form and content satisfactory to Mortgagee in its sole
discretion, and Mortgagor shall promptly and diligently, regardless of whether
there shall be sufficient condemnation awards therefor, restore, repair and
alter the Mortgaged Property in a manner satisfactory to Mortgagee. During the
period of restoration, repair and alteration, the Mortgagor shall continue to
duly and promptly pay, perform, observe and comply with all of the Obligations.
The election by Mortgagee to apply the condemnation awards to the restoration,
repair or alteration of the Mortgaged Property shall not affect the lien of this
Mortgage or affect or reduce the Obligations. If any restoration, repair or
alteration of the Mortgaged Property shall involve an estimated expenditure of
more than $25,000.00, same shall not be commenced until plans and specifications
therefor, prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
5.8 MORTGAGOR'S RIGHT TO REBUILD THE MORTGAGED PROPERTY.
(a) Notwithstanding the provisions of Sections 5.6 and 5.7
hereof to the contrary, in the event that any portion or portions of the
Mortgaged Property are damaged or destroyed by fire or by any other casualty, or
are the subject of a "de minimis" (for purposes of this Section 5.8, the term
"de minimis" shall mean an amount, as determined by Mortgagee in its sole
discretion, which does not adversely affect the actual use of the Improvements)
condemnation, and such damage, destruction, or condemnation results in the need
for repair, rebuilding, or restoration work to be performed on the 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;
(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;
-11-
<PAGE>
(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.
5.9 TAX AND INSURANCE ESCROW. Supplementing the provisions of
Sections 5.4 and 5.5 hereof, and if required by Mortgagee, Mortgagor shall pay
to Mortgagee on the payment date of installments of interest as provided in the
Note, together with and in addition to such installments of interest, an
installment of the Impositions and insurance premiums for such insurance as is
required hereunder, next due on the Mortgaged Property in an amount sufficient,
as estimated by Mortgagee, to accumulate the sum required to pay such
Impositions and insurance, as applicable, thirty (30) days prior to the due date
thereof. Amounts held hereunder shall not be, nor be deemed to be, trust funds,
but may be commingled with the general funds of Mortgagee, and no interest shall
be payable with respect thereto. Upon demand of Mortgagee, Mortgagor shall
deliver to Mortgagee, within ten (10) days after such demand, such additional
money as is necessary to make up any deficiencies in the amounts necessary to
enable Mortgagee to pay such Impositions and insurance premiums when due. In
case of an Event of Default, Mortgagee may apply any amount under this Section
remaining to Mortgagor's credit to the reduction of the Obligations, at such
times and in such manner as Mortgagee shall determine. Notwithstanding anything
contained herein to the contrary, Mortgagee will not enforce its rights to
require an escrow hereunder unless an Event of Default has occurred or if a
material adverse change in the financial condition of Mortgagor shall occur.
5.10 REPAIR. Mortgagor shall keep the Mortgaged Property in good
order and condition and make all necessary or appropriate repairs and
replacements thereof and betterments and improvements thereto, ordinary and
extraordinary, foreseen and unforeseen, and use its best efforts to prevent any
act that might impair the value or usefulness of the Mortgaged Property.
5.11 INSPECTION. Mortgagor shall permit Mortgagee and its agents to
inspect the Mortgaged Property at any time during normal business hours and at
all other reasonable times.
5.12 CONTEST OF TAX ASSESSMENTS, ETC. After prior written notice to
Mortgagee, Mortgagor, at its own expense, may contest by appropriate legal
proceedings, promptly initiated and conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of (a) any
of the Governmental Requirements referred to in Section 5.3, or (b) any
Imposition; provided that: (i) in the case of any unpaid Imposition, such
proceedings shall suspend the collection thereof from Mortgagor and from the
Mortgaged Property, (ii) the Mortgaged Property or any part thereof will not be
in danger of being sold, forfeited, terminated, canceled or lost, (iii) the use
of the Mortgaged Property or any part thereof for its present or future intended
purpose or purposes will not be interrupted, lost or terminated, (iv) Mortgagor
shall have set aside adequate reserves with respect thereto, and (v) Mortgagor
shall have furnished such security as may be required in the proceedings or as
may be reasonably requested by Mortgagee.
5.13 EXPENSES.
(a) Mortgagor shall pay all costs and expenses in connection
with the Loan and the preparation, execution, and delivery of the Loan Documents
including, but not limited to, fees and disbursements of counsel appointed by
Mortgagee, and all recording costs and expenses, documentary stamp tax and
intangible tax on the entire amount of funds disbursed under the Loan, and other
taxes, surveys, appraisals, premiums for policies of title and other insurance
and all other fees, costs and expenses, if any, set forth in the Commitment, the
Loan Agreement, or otherwise connected with the Loan transaction.
-12-
<PAGE>
(b) Mortgagor shall pay or reimburse Mortgagee for all costs,
charges, expenses, and reasonable attorneys' fees paid or incurred by Mortgagee
pursuant to this Mortgage including but not limited to those costs, charges,
expenses and fees paid or incurred for the payment of the Impositions,
insurance, completion of construction, repairs, appraisal fees, environmental
assessment fees, or any other fees paid or incurred in any action, proceeding or
dispute of any kind in which Mortgagee is a party because of any Obligation not
being duly and promptly performed or being violated, including, but not limited
to, the foreclosure or other enforcement of this Mortgage, any condemnation or
eminent domain action involving the Mortgaged Property or any part thereof, any
action to protect the security hereof, or any proceeding in probate,
reorganization, bankruptcy, arbitration, or forfeiture in rem. All such amounts
paid or incurred by Mortgagee, together with interest thereon at the Default
Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and
shall be due and payable by Mortgagor immediately, whether or not there be
notice or demand therefor.
(c) Any reference in this Mortgage to attorneys' or counsels'
fees paid or incurred by Mortgagee shall be deemed to include paralegals' fees
and legal assistants' fees. Moreover, wherever provision is made herein for
payment of attorneys' or counsels' fees or expenses incurred by the Mortgagee,
said provision shall include, but not be limited to, such fees or expenses
incurred in any and all judicial, bankruptcy, reorganization, administrative, or
other proceedings, including appellate proceedings, whether such fees or
expenses arise before proceedings are commenced or after entry of a final
judgment.
5.14 PRESERVATION OF AGREEMENTS. Mortgagor shall preserve and keep
in full force and effect all agreements, approvals, permits and licenses
necessary for the development, use and operation of the Mortgaged Property for
its intended purpose or purposes.
5.15 BOOKS AND RECORDS. The Mortgagor shall keep and maintain, at
all times, full, true and accurate books of accounts and records, adequate to
correctly reflect the cost, performance, maintenance or condition of the
Mortgaged Property. Upon advance notice to Mortgagor, the Mortgagee shall have
the right to examine such books and records and to make such copies or extracts
therefrom as the Mortgagee shall require.
5.16 ESTOPPEL AFFIDAVITS. Mortgagor, within ten (10) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal balance of, and interest on,
the Obligations secured by this Mortgage, and whether or not any off-sets or
defenses exist thereto.
5.17 INDEMNIFICATION.
(a) Mortgagor shall at its own expense, and does hereby agree
to, protect, indemnify, reimburse, defend and hold harmless Mortgagee and its
directors, officers, agents, employees attorneys, successors and assigns from
and against any and all liabilities (including strict liability), losses, suits,
proceedings, settlements, judgments, orders, penalties, fines, liens,
assessments, claims, demands, damages, injuries, obligations, costs,
disbursements, expenses or fees, of any kind or nature (including attorneys'
fees and expenses paid or incurred in connection therewith) arising out of or by
reason of (i) an incorrect legal description of the Land; (ii) any action, or
inaction of Mortgagee in connection with the Note, this Mortgage, the other Loan
Documents or the Mortgaged Property; (iii) the construction of any Improvements;
(iv) the use and operation of the Mortgaged Property; (v) any acts or omissions
of Mortgagor or any other Person at, on or about the Mortgaged Property
regarding the contamination of air, soil, surface waters or groundwaters over,
on or under the Mortgaged Property; (vi) the presence, whether past, present or
future, of any Hazardous Material on, in or under the Mortgaged Property; or
(vii) any past, present or future events, conditions, circumstances, activities,
practices, incidents, actions or plans involving the manufacture, processing,
distribution, use, transport, handling, treatment, storage, disposal, cleanup,
emission, discharge, seepage, spillage, leakage, release or threatened release
of any Hazardous Material on, in, under or from the Mortgaged Property, in
connection with Mortgagor's operations on the Mortgaged Property, or otherwise;
all of the foregoing regardless of whether within the control of Mortgagee.
(b) The indemnifications of this Section 5.17 shall survive the
full payment and performance of the Obligations and the satisfaction of this
Mortgage.
5.18 MORTGAGOR TO FURNISH FINANCIAL STATEMENTS. Mortgagor shall
submit annual and interim financial statements and other accounting data as
required in the Loan Agreement. Such statements shall include, at a minimum: a
balance sheet; an income and expense statement; and a statement showing
contingent liabilities. Each unaudited statement must contain a certification to
Mortgagee of the statement's accuracy and completeness signed by an authorized
officer or the individual, as applicable. Unless otherwise specified in the Loan
Agreement, annual statements of business entities (including corporations) shall
be audited and bear the unqualified opinion of an acceptable certified public
accountant. The annual statements shall be submitted when required in the Loan
Agreement, or if not specified then no later than April 30 of each year of the
Loan term. Interim statements shall be submitted as required in the Loan
Agreement.
5.19 FURTHER ASSURANCES. Mortgagor, at its sole expense, upon the
request of Mortgagee, shall execute, acknowledge and deliver such further
instruments and do such further acts as may, in the opinion of the Mortgagee, be
necessary, desirable, or proper to carry out more effectively the purpose of
this Mortgage and to subject
-13-
<PAGE>
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.
5.20 JUNIOR MORTGAGE(S) AND RIGHTS OF MORTGAGEE.
(a) Mortgagor shall, with respect to any Junior Mortgage, (i)
promptly observe and perform all of the covenants and conditions contained in
the Junior Mortgage, (ii) duly and promptly make all payments required by the
terms of the Junior Mortgage, (iii) promptly notify Mortgagee in writing upon
receipt by Mortgagor of any notice that Mortgagor is in default under the Junior
Mortgage or that an event has occurred which with due notice or the lapse of
time, or both, would constitute a default under the Junior Mortgage, and to
promptly cause a copy of each such notice given by the holder thereof to be
delivered to Mortgagee, and (iv) from time to time upon demand of Mortgagee
submit evidence to Mortgagee that Mortgagor has maintained and is maintaining
the Junior Mortgage in good standing. Upon receipt by Mortgagee of any such
aforesaid notice, Mortgagee may rely thereon even though the existence of such
default or the nature thereof may be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor.
(b) If Mortgagor fails to make any payment required under the
Junior Mortgage as and when due, or fails to perform any condition, covenant, or
term of the Junior Mortgage, then Mortgagee may on behalf of Mortgagor, but
without obligation to do so, and without notice to and demand upon Mortgagor,
and without releasing Mortgagor from any Obligation and without waiving any
Event of Default hereunder, take any action Mortgagee deems necessary or
desirable to prevent or cure any such default by Mortgagor, including, but
without limitation, the right to pay any and all payments of principal and
interest, insurance premiums, taxes and assessments and other sums due or to
become due under the Junior Mortgage. Mortgagor hereby expressly grants to
Mortgagee and agrees that Mortgagee and its agents shall have the absolute and
immediate right to enter upon the Land and the Improvements or any part thereof
to such extent and as often as Mortgagee in its sole discretion deems necessary
or desirable in order to prevent or cure any such default by Mortgagor. All
payments and all costs and expenses incurred by Mortgagee in connection with any
such prevention or cure (including, without limitation, reasonable attorneys'
fees and expenses), together with interest thereon at the Default Rate from the
date incurred by Mortgagee, shall be secured by this Mortgage and shall be due
and payable by Mortgagor immediately, whether or not there be notice, demand, an
attempt to collect same, or suit pending.
(c) Nothing in this Section 5.20 shall in any manner be
construed as consent by Mortgagee to the further encumbering or mortgaging of
the Mortgaged Property.
5.21 FINANCING STATEMENTS. Mortgagor shall execute and deliver to
Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements, continuation statements, and such further assurances as Mortgagee
may from time to time consider reasonably necessary to create, perfect, preserve
and maintain in full force and effect Mortgagee's lien upon the Fixtures,
Leases, Rents and Personal Property; and, Mortgagee, at the expense of
Mortgagor, may cause such statements and assurances to be recorded and
rerecorded, filed and re-filed, in the name of Mortgagor, and Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, which appointment is coupled with an interest, with full power
of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to execute and file any
and all financing statements.
5.22 WITHHOLDING TAXES.
(a) If under any applicable law or regulation 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
-14-
<PAGE>
connection therewith, and interest thereon at the Default Rate; and in the event
any of the aforesaid amounts, interest, penalties or expenses shall be subject
to withholding or deduction, the amount thereof shall be increased to the extent
necessary to ensure that after making such withholding or deduction and any
withholdings or deductions in respect of any such increase, Mortgagee shall
receive an amount equal to the amount which Mortgagee would have received had no
such withholding or deduction been required to be made.
(c) Any increased amount required to be paid by Mortgagor in
accordance with the provisions of this Section 5.22 shall have the same
character as the amount in respect of which such increased amount is determined,
but shall not (i) if characterized as principal, be applied in reduction of the
principal amount outstanding under the Obligations or (ii) if characterized as
interest, be applied in reduction of accrued, unpaid interest under the
Obligations.
5.23 HAZARDOUS MATERIAL. Mortgagor hereby discloses to Mortgagee
that in the course of conducting Mortgagor's business upon the Mortgaged
Property, Mortgagor will use various chemicals in its manufacturing and assembly
processes, some of which may constitute a Hazardous Material, such as by way of
example, chlorine gas. Mortgagee hereby recognizes that such chemicals may be
used in the ordinary course of Mortgagor's business operations upon the
Property. Provided, however, that any such use, handling and storage of
Hazardous Material must be in compliance with all Environmental Requirements and
Environmental Laws, and shall not constitute a violation of such Environmental
Requirements and Environmental Laws or this Mortgage.
(a) Mortgagor shall immediately notify Mortgagee orally and in
writing (i) if Mortgagor becomes aware of the presence of any Hazardous Material
or other environmental problem or liability on, in, under, released from or
associated with the Mortgaged Property except as to Hazardous Material lawfully
used by the Mortgagor in the ordinary course of Mortgagor's business operations
on the Mortgaged Property, or (ii) if an Environmental Claim is then existing
with respect to the Mortgaged Property. Mortgagor shall forthwith transmit to
Mortgagee all information it has received with respect to the Environmental
Claim.
(b) Mortgagor shall, at its own cost and expense, take any
action necessary or advisable for the cleanup of any unlawfully used Hazardous
Material on, in, under, released from or associated with the Mortgaged Property,
including any removal, containment or remedial actions in accordance with all
applicable Environmental Laws, and shall pay or cause to be paid all cleanup,
administrative, enforcement and other costs, expenses or fines which may be
asserted against Mortgagor, Mortgagee, the Mortgaged Property, or any other
Person in connection therewith.
(c) Mortgagee shall have the right but not the obligation, and
without any limitation of Mortgagee's other rights under this Mortgage, to enter
onto the Mortgaged Property or to take any action as it deems necessary or
advisable to cleanup, remove, resolve or minimize the impact of, or otherwise
deal with, any Hazardous Material or any Environmental Claim following receipt
of any notice from any Person or Governmental Authority asserting the existence
of any Hazardous Material or an Environmental Claim pertaining to the Mortgaged
Property or any part thereof which, if true, could result in an order, suit or
other action against Mortgagor or Mortgagee which, in the sole opinion of
Mortgagee, could jeopardize Mortgagee's security under this Mortgage. All costs
and expenses incurred by Mortgagee in the exercise of any such rights shall be
secured by this Mortgage and shall be payable by Mortgagor upon demand.
(d) Except as to Hazardous Material lawfully used by the
Mortgagor in the ordinary course of Mortgagor's business operations on the
Mortgaged Property, if Mortgagee shall have reason to believe that any other
Hazardous Material affects the Mortgaged Property, or if required by any
Governmental Authority or Governmental Requirement, or if any Environmental
Claim is made or threatened, or if an Event of Default shall have occurred
hereunder or under any of the Loan Documents, or if the lien of the Mortgage is
foreclosed upon or upon a conveyance by deed in lieu of foreclosure wherein
possession of the Mortgaged Property has been given to and accepted by the
purchaser or grantee, then Mortgagor shall, within forty-five (45) days of
Mortgagee's written request, cause to be prepared an environmental assessment of
the Mortgaged Property 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.
5.24 FINANCIAL REPORTS, ETC. Mortgagor shall, at Mortgagor's sole
cost and expense, provide Mortgagee with any financial statements, financial
reports, appraisals or other documentation with respect to
-15-
<PAGE>
Mortgagor or the Mortgaged Property which may be required from time to time by
any Governmental Authority having regulatory authority over Mortgagee. Such
information shall be provided by Mortgagor within thirty (30) days after written
request from Mortgagee.
5.25 APPRAISALS. In addition to the appraisals required by Mortgagee
prior to closing of the Loan, updated appraisals shall be prepared at
Mortgagor's expense when requested by Bank or when required in connection with
any extension options in the Note. Such appraisals shall be prepared in
accordance with written instructions from Mortgagee by a professional appraiser
selected and engaged by Mortgagee. Mortgagor shall cooperate fully with the
appraisal process and shall allow the appraisers reasonable access to the
Mortgaged Property and its tenants. Notwithstanding anything contained herein to
the contrary, Mortgagee shall not request updated appraisals pursuant to this
Section unless: (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).
5.26 REAPPRAISAL OF MORTGAGED PROPERTY. Mortgagor acknowledges that
Mortgagee was induced to enter into the subject Loan transaction based upon a
specific loan-to-value ratio (the "Original Loan-to-Value Ratio"). The Original
Loan-to-Value Ratio was based upon the appraised value (the "Original Appraised
Value") of the Mortgaged Property set forth in the appraisal Mortgagor submitted
to Mortgagee prior to the closing of the subject Loan transaction. If any
updated appraisal received by Mortgagee pursuant to Section 5.25 above reflects
that the appraised value of the Mortgaged Property has decreased from the
Original Appraised Value and if such decrease results in a loan-to-value ratio
which is higher than the Original Loan-to-Value Ratio, Mortgagor shall within
ten (10) days of Mortgagee's written request make a principal payment (the
"Prepayment") under the Note in an amount sufficient to maintain the Original
Loan-to-Value Ratio. Such Prepayment shall not entitle Mortgagor to a release of
any of the Mortgaged Property.
5.27 PERFORMANCE OF LOAN DOCUMENTS. Mortgagor shall duly and
punctually perform all covenants, terms and agreements expressed as binding upon
it under all of the Loan Documents.
5.28 PERFORMANCE OF OTHER AGREEMENTS. Mortgagor shall duly and
punctually perform all covenants, terms and agreements expressed as binding upon
it under any Permitted Title Exception, or any other agreement of any nature
whatsoever binding upon it with respect to the Mortgaged Property.
5.29 CONSTRUCTION LOAN AGREEMENT. The Loan evidenced by the Note and
secured by this Mortgage is to be disbursed in accordance with the terms and
provisions of the Loan Agreement. The Note, this Mortgage and the Loan Agreement
shall always be taken and read together as constituting parts of one
transaction. All sums disbursed pursuant to the terms of the Loan Agreement
shall be secured by this Mortgage with the same priority as if advanced on the
date hereof. Mortgagor shall fully, duly and promptly discharge each and every
of its agreements contained in the Loan Agreement and comply with, abide by and
perform all of the provisions and conditions thereof.
5.30 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
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
6.1 USE VIOLATIONS, ETC. Mortgagor shall not use the Mortgaged
Property or allow the same to be used or occupied for any unlawful purpose or in
violation of any Governmental Requirement or restrictive covenant covering,
affecting or applying to the ownership, use or occupancy thereof, commit or
permit or suffer any act to be done or any condition to exist on the Mortgaged
Property or any article to be brought thereon that may be dangerous, or that may
in any way increase any ordinary fire or other hazard, unless safeguarded as
required by law, or that may, in law, constitute a nuisance, public or private.
6.2 CARE OF THE MORTGAGED PROPERTY.
(a) Mortgagor shall not commit or permit any waste, impairment,
or deterioration of the Mortgaged Property, or (except as may be provided for in
the Loan Agreement) perform any clearing, grading, filling or excavation of the
Mortgaged Property, or make or permit to be made to the Mortgaged Property any
alterations or additions that would have the effect of materially diminishing
the value thereof (in Mortgagee's sole opinion) or take or permit any action
that will in any way increase any ordinary fire or other hazard arising out of
the construction or operation thereof.
-16-
<PAGE>
(b) Mortgagor shall not, without the prior written consent of
Mortgagee, remove, demolish or substantially alter, or permit the removal,
demolishment or substantial alteration of, any Improvements on the Land. In the
event such consent is given and if any work to be performed shall involve an
estimated expenditure of more than $25,000.00, no such work shall be undertaken
until plans and specifications therefor, prepared by an architect satisfactory
to Mortgagee, shall have been submitted to and approved by Mortgagee.
(c) Mortgagor shall not permit any of the Fixtures or Personal
Property to be demolished or to be removed from the Land, without the prior
written consent of Mortgagee. In the event such consent is given, the Mortgagee
may require that said Fixture or Personal Property be replaced by an article of
equal suitability and value, owned by Mortgagor free and clear of any vendor's
lien, chattel mortgage, or security interest of any kind, except such as may be
approved in writing by Mortgagee, and that such replacement article be
encumbered by the lien of this Mortgage. Notwithstanding the foregoing, the
Mortgagor may remove or demolish any Fixture or Personal Property without first
obtaining the Mortgagee's prior written consent provided (i) the value of such
article does not exceed in value at the time of disposition thereof $50,000.00
for any single item, or a total of $150,000.00 in any one year for all such
items and (ii) that said article is replaced and subject to the lien of this
Mortgage as aforesaid.
6.3 OTHER LIENS AND MORTGAGES.
(a) Mortgagor shall not, without the prior written consent of
Mortgagee, create or permit to be created or to remain, any mortgage, pledge,
construction lien or other lien, conditional sale or other title retention
agreement, encumbrance, claim, or charge on (whether prior or subordinate to the
lien of this Mortgage or the other Loan Documents) the Mortgaged Property or
income therefrom, other than this Mortgage, the other Loan Documents and the
Permitted Title Exceptions. Any transaction prohibited under this Section shall
be null and void.
(b) Mortgagor shall not, without the prior written consent of
Mortgagee, (i) enter into any agreement either oral or in writing, whereby any
permitted Junior Mortgage is modified or amended in any manner whatsoever, (ii)
permit the release of any guarantor or modification of any guaranty affecting
any permitted Junior Mortgage, or (iii) incur any additional indebtedness
secured thereby.
(c) Mortgagor shall not directly or indirectly, take, acquire,
or permit to be taken or acquired by any other party, any interest whatsoever in
any permitted Junior Mortgage without the prior written consent of Mortgagee.
6.4 TRANSFER OF MORTGAGED PROPERTY. Except as may otherwise be
expressly permitted in the Loan Agreement (if any) executed in connection with
this Mortgage, Mortgagor shall not sell, convey, or transfer or permit to be
sold, conveyed or transferred any interest in the Mortgaged Property or any part
thereof. A contract to deed or agreement for deed, or an assignment, pledge, or
encumbrance of a beneficial interest in any land trust, or a lease for all or
substantially all of the Land or Improvements shall constitute a transfer
prohibited by the provisions of this Section and shall be null and void.
6.5 MORTGAGOR'S CERTIFICATE OF INCORPORATION AND PARTNERSHIP
AGREEMENT. Mortgagor, if a corporation or a Partnership, shall not, without the
prior written consent of Mortgagee, materially amend or modify its articles or
certificate of incorporation or bylaws or its certificate of Partnership or
Partnership agreement.
6.6 ENVIRONMENTAL CONTAMINATION/HAZARDOUS MATERIAL. Mortgagor and
the Mortgaged Property shall at all times remain in full compliance with all
Environmental Laws. Except as to Hazardous Material lawfully used by the
Mortgagor in the ordinary course of Mortgagor's business operations on the
Mortgaged Property, Mortgagor shall not, nor permit any other person to
manufacture, process, distribute, use, transport, handle, treat, store, dispose,
emit, discharge, leak, spill or release any Hazardous Material on, in, under or
from the Mortgaged Property.
ARTICLE VII
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT. An "Event of Default", as used in this
Mortgage, shall occur at any time or from time to time:
(a) FAILURE TO PAY. If any Obligation or any installment thereof
is not paid as and when due and payable;
(b) FAILURE TO PERFORM. If any Obligation other than an
Obligation requiring the payment of money or the occurrence of an event
described in Subsections 7.1(e), (g), (i), (l) or (m) below is not duly and
promptly performed or is violated and such non-performance or violation is not
curable, or if curable continues for a period of ten (10) days after written
notice thereof from Mortgagee to Mortgagor, provided, however, if such
non-performance or violation may not reasonably be cured within such ten (10)
day period, an Event of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be cured.
-17-
<PAGE>
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.
ARTICLE VIII
RIGHTS AND REMEDIES
8.1 REMEDIES. If an Event of Default shall have occurred,
Mortgagee may, at its option, exercise any, some or all of the following
remedies, concurrently or consecutively.
(a) ACCELERATION. Mortgagee may declare all of the unpaid
Obligations, together with all accrued interest thereon, to be due and payable
without notice or demand which are hereby expressly waived, and upon such
declaration all such Obligations shall immediately become due and payable as
fully and to the same effect as if the date of such declaration were the date
originally specified for the full payment or maturity thereof.
(b) MORTGAGEE'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE AND
APPLY INCOME.
(i) Mortgagee may demand that Mortgagor surrender the actual
possession of the Mortgaged Property and upon such demand, Mortgagor shall
forthwith surrender same to Mortgagee and, to the
-18-
<PAGE>
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 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
-19-
<PAGE>
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.
8.2 REMEDIES CUMULATIVE AND CONCURRENT. No right, power or remedy
of Mortgagee as provided in the Note, this Mortgage, the Guaranty, or the other
Loan Documents is intended to be exclusive of any other right, power, or remedy
of Mortgagee, but each and every such right, power and remedy shall be
cumulative and concurrent and in addition to any other right, power or remedy
available to Mortgagee now or hereafter existing at law or in equity and may be
pursued separately, successively or together against Mortgagor, any Guarantor,
or any endorser, co-maker, surety or guarantor of the Obligations, or the
Mortgaged Property or any part thereof, or any one or more of them, at the sole
discretion of Mortgagee. The failure of Mortgagee to exercise any such right,
power or remedy shall in no event be construed as a waiver or release thereof.
8.3 WAIVER, DELAY OR OMISSION. No waiver of any Event of Default
hereunder shall extend to or affect any subsequent or any other Event of Default
then existing, or impair any rights, powers or remedies consequent thereon, and
no delay or omission of Mortgagee to exercise any right, power or remedy shall
be construed to waive any such Event of Default or to constitute acquiescence
therein.
8.4 CREDIT OF MORTGAGEE. To the maximum extent permitted by the
laws of the State of Florida, upon any sale made under or by virtue of this
Article, Mortgagee may bid for and acquire the Mortgaged Property, or any part
thereof, and in lieu of paying cash therefor may apply to the purchase price,
any portion of or all of the unpaid Obligations in such order as Mortgagee may
elect.
8.5 SALE. Any sale or sales made under or by virtue of this
Article shall operate to divest all the estate, right, title, interest, claim
and demand whatsoever at law or in equity, of the Mortgagor and all Persons,
except tenants pursuant to Leases approved by Mortgagee, claiming by, through or
under Mortgagor in and to the properties and rights so sold, whether sold to
Mortgagee or to others.
8.6 PROOFS OF CLAIM. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition, seizure of the
Mortgaged Property by any Governmental Authority, or other judicial proceedings
affecting the Mortgagor, any Guarantor, any endorser, co-maker, surety, or
guarantor of the Obligations, or any of their respective properties, the
Mortgagee, to the extent permitted by law, shall be entitled to file such proofs
of claim and other documents as may be necessary or advisable in order to have
its claim allowed in such proceedings for the entire unpaid Obligations at the
date of the institution of such proceedings, and for any additional amounts
which may become due and payable after such date.
8.7 WAIVER OF REDEMPTION, NOTICE, MARSHALLING, ETC. Mortgagor
hereby waives and releases, for itself and anyone claiming through, by, or under
it, to the maximum extent permitted by the laws of the State of Florida:
-20-
<PAGE>
(a) all benefit that might accrue to Mortgagor by virtue of any
present or future law exempting the Mortgaged Property, or any part of the
proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment,
(b) unless specifically required herein, all notices of default,
or Mortgagee's actual exercise of any option or remedy under the Loan Documents,
or otherwise, and
(c) any right to have the Mortgaged Property marshalled.
8.8 APPLICATION OF PROCEEDS. The proceeds of any sale of all or
any portion of the Mortgaged Property shall be applied by Mortgagee first, to
the payment of receiver's fees and expenses, if any, and to the payment of all
costs and expenses (including, without limitation, reasonable attorneys' fees
and expenses) incurred by Mortgagee, together with interest thereon at the
Default Rate from the date so incurred, in connection with any entry, action or
proceeding under this Article and, second, in such order as Mortgagee may elect,
to the payment of the Obligations. Mortgagor shall be and remain liable to
Mortgagee for any difference between the net proceeds of sale and the amount of
the Obligations until all of the Obligations have been paid in full.
8.9 DISCONTINUANCE OF PROCEEDINGS. If Mortgagee shall have
proceeded to enforce any right under any Loan Document and such proceedings
shall have been discontinued or abandoned for any reason, then except as may be
provided in any written agreement between Mortgagor and Mortgagee providing for
the discontinuance or abandonment of such proceedings, Mortgagor and Mortgagee
shall be restored to their former positions and the rights, remedies and powers
of Mortgagee shall continue as if no such proceedings had been instituted.
8.10 MORTGAGEE'S ACTIONS. Mortgagee may, at any time without
notice to any Person and without consideration, do or refrain from doing any or
all of the following actions, and neither the Mortgagor, any Guarantor, any
endorser, co-maker, surety or guarantor of the Obligations, nor any other Person
(hereinafter in this Section 8.10 collectively referred to as the "Obligor") now
or hereafter liable for the payment and performance of the Obligations shall be
relieved from the payment and performance thereof, unless specifically released
in writing by Mortgagee: (a) renew, extend or modify the terms of the Note, this
Mortgage, the Guaranty and the other Loan Documents, or any of them; (b) forbear
or extend the time for the payment or performance of any or all of the
Obligations; (c) apply payments by any Obligor to the reduction of the unpaid
Obligations in such manner, in such amounts, and at such times and in such order
and priority as Mortgagee may see fit; (d) release any Obligor; (e) substitute
or release in whole or in part the Mortgaged Property or any other collateral or
any portion thereof now or hereafter held as security for the Obligations
without affecting, disturbing or impairing in any manner whatsoever the validity
and priority of the lien of this Mortgage upon the Mortgaged Property which is
not released or substituted, or the validity and priority of any security
interest of the Mortgagee in such other collateral which is not released or
substituted; (f) subordinate the lien of this Mortgage or the lien of any other
security interest in any other collateral now or hereafter held as security for
the Obligations; (g) join in the execution of a plat or replat of the Land; (h)
join in and consent to the filing of a declaration of condominium or declaration
of restrictive covenants regarding all or any part of the Land; (i) consent to
the granting of any easement on the Land; and (j) generally deal with any
Obligor or any other party as Mortgagee may see fit.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 GOVERNMENTAL REGULATION OF MORTGAGEE. Mortgagee is subject to
various Governmental Authorities and the laws, rules and regulations enacted,
adopted and promulgated by them. To the extent that Mortgagee's authority to
perform its obligations (if any) under this Mortgage, now or hereafter, may be
limited or regulated by such Governmental Authorities, Mortgagee is hereby
excused from such performance.
9.2 MORTGAGEE'S FAILURE TO PERFORM. If Mortgagee fails to perform
its obligations (if any) under this Mortgage (except to the extent excused
therefrom as provided in Section 9.1 above), Mortgagor shall notify Mortgagee in
writing (the "Notice") within thirty (30) days after Mortgagor's obtaining
knowledge of such failure. Each such Notice shall describe in detail the act or
event constituting the non-performance by Mortgagee. Mortgagee shall have thirty
(30) days after its receipt of the Notice to cure any such failure to perform,
unless such cure can not be accomplished using reasonable efforts within said
thirty (30) day period, in which case Mortgagee shall have such additional time
as may be necessary, using reasonable efforts, to cure such non-performance (the
"Mortgagee Cure Period").
9.3 MORTGAGOR'S RIGHTS AND REMEDIES. The giving of the Notice and
the expiration of the Mortgagee Cure Period shall be conditions precedent to any
right of the Mortgagor to bring an action against Mortgagee. Mortgagor hereby
expressly agrees that its sole remedy against Mortgagee in any such action shall
be that of specific performance.
-21-
<PAGE>
ARTICLE X
MISCELLANEOUS
10.1 MAXIMUM RATE OF INTEREST. Nothing contained herein, in the
Note, or in any other Loan Document, or the Commitment, or in any instrument or
transaction related thereto, shall be construed or so operate as to require the
Mortgagor or any person liable for the payment of the Loan made pursuant to the
Note, or liable for the payment of any Obligations, to pay interest, or any
charge in the nature of interest, in an amount or at a rate which exceeds the
maximum rate of interest allowed by applicable law, as amended from time to
time. Should any interest or other charges in the nature of interest received by
Mortgagee or paid by the Mortgagor or any parties liable for the payment of the
Loan made pursuant to the Note, or liable for the payment of any Obligations,
exceed the maximum rate of interest allowed by applicable law, as amended from
time to time, then such excess sum shall be credited against the principal
balance of the Note or the balance of the other Obligations, as applicable,
unless the Mortgagor or such other parties liable for such payments, as
applicable, shall notify the Mortgagee, in writing, that the Mortgagor or such
other party elects to have such excess sum returned to it forthwith, it being
the intent of the parties hereto that under no circumstances shall the Mortgagor
or any parties liable for any of the aforesaid payments be required to pay
interest in excess of the maximum rate of interest allowed by applicable law, as
amended from time to time. The Mortgagee may, in determining the maximum rate of
interest allowed under applicable law, as amended from time to time, take
advantage of any state or federal law, rule or regulation in effect from time to
time which may govern the maximum rate of interest which may be reserved,
charged or taken.
10.2 CONTINUING AGREEMENT. This Mortgage and all of the Mortgagor's
representations, warranties and covenants herein, Mortgagee's security interest
in the Mortgaged Property and all of the rights, powers and remedies of
Mortgagee hereunder shall continue in full force and effect until all of the
Obligations have been paid and performed in full; until Mortgagee has no further
obligation to make any advances under the Loan; and until Mortgagee, upon the
request of the Mortgagor, has executed a satisfaction of mortgage. Furthermore,
if for any reason no Obligations are owing, notwithstanding such occurrence,
this Mortgage shall remain valid and in full force and effect as to subsequent
Obligations, so long as Mortgagee has not executed a satisfaction of mortgage;
provided, however, that the indemnifications set forth in Article V of this
Mortgage shall survive the satisfaction of this Mortgage.
10.3 SURVIVAL OF WARRANTIES AND COVENANTS. The warranties,
representations, covenants and agreements set forth in this Mortgage shall
survive the making of the Loan and the execution and delivery of the Note, and
shall continue in full force and effect until all of the Obligations shall have
been paid and performed in full.
10.4 NO REPRESENTATION BY MORTGAGEE. By accepting or approving
anything required to be observed, performed or fulfilled, or to be given to
Mortgagee, pursuant to this Mortgage, or the other Loan Documents, or the
Commitment, including, but not limited to, any officer's certificate, balance
sheet, statement, survey or appraisal, Mortgagee shall not be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not be or constitute any warranty or
representation with respect thereto by Mortgagee.
10.5 NOTICE. All notices, demands, requests and other communications
required under this Mortgage may be given orally (either in person or by
telephone if confirmed in writing within three (3) days thereafter), by telex,
telegram, or telecopy, or in writing delivered by hand or mail and shall be
conclusively deemed to have been received if delivered or attempted to be
delivered by United States first class mail, return receipt requested, postage
prepaid, addressed to the party for whom it is intended at its address set forth
in the introduction to this Mortgage. Any party may designate a change of
address by written notice to the other party, received by such other party at
least ten (10) days before such change of address is to become effective.
10.6 MORTGAGEE'S RIGHT TO PAY AND PERFORM. If Mortgagor shall fail
to duly pay or perform any of the Obligations required by this Mortgage, then at
any time thereafter without notice to or demand upon Mortgagor, and without
waiving or releasing any right, remedy, or power of Mortgagee, and without
releasing any of the Obligations or any Event of Default, Mortgagee may pay or
perform such Obligation for the account of and at the expense of Mortgagor, and
shall have the right to enter and to authorize others to enter upon the
Mortgaged Property for such purpose and to take all such action thereon and with
respect to the Mortgaged Property as may be necessary or appropriate for such
purpose. All payments made and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee,
together with interest thereon at the Default Rate from the date incurred by
Mortgagee shall be secured by this Mortgage and shall be due and payable by
Mortgagor immediately, whether or not there be notice, demand, an attempt to
collect same, or suit pending.
10.7 COVENANTS RUNNING WITH THE LAND. All covenants contained in
this Mortgage shall be binding on the Mortgagor and shall run with the Land.
10.8 SUCCESSORS AND ASSIGNS. All of the terms of this Mortgage shall
apply to and be binding upon, and inure to the benefit of, the heirs, devisees,
personal representatives, successors and assigns of Mortgagor and Mortgagee,
respectively, and all persons claiming under or through them.
-22-
<PAGE>
10.9 INVALIDITY.
(a) If any one or more of the provisions contained in this
Mortgage is declared or found by a court of competent jurisdiction to be
invalid, illegal, or unenforceable, such provision or portion thereof shall be
deemed stricken and severed and the remaining provisions hereof shall continue
in full force and effect.
(b) If any one or more of the Obligations is declared or found
by a court of competent jurisdiction to be invalid, illegal, or unenforceable,
the validity, legality and enforceability of the remaining Obligations shall
continue in full force and effect.
10.10 MODIFICATION. No agreement unless in writing and signed by an
authorized officer of Mortgagee and no course of dealing between the parties
hereto shall be effective to change, waive, terminate, modify, discharge, or
release in whole or in part any provision of this Mortgage. No waiver of any
rights or powers of Mortgagee or consent by it shall be valid unless in writing
signed by an authorized officer of Mortgagee and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
10.11 APPLICABLE LAW. This Mortgage shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State of Florida
(excluding the principles thereof governing conflicts of law), and federal law,
in the event federal law permits a higher rate of interest than Florida law.
10.12 REPLACEMENT OF NOTE. Upon receipt of evidence reasonably
satisfactory to Mortgagor of the loss, theft, destruction or mutilation of the
Note, or any amendment or modification thereto, including without limitation any
renewal note or additional note, and in the case of any such loss, theft, or
destruction, upon delivery of any indemnity agreement, reasonably satisfactory
to Mortgagor or, in the case of any such mutilation, upon surrender of such
mutilated note, Mortgagor will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the Note and dated as of
the date of the Note and upon such execution and delivery all references in any
of the Loan Documents to the Note shall be deemed to refer to the replacement
Note.
10.13 STRICT PERFORMANCE. It is specifically agreed that time is of
the essence as to all matters provided for in this Mortgage and that no waiver
of any Obligation hereunder or secured hereby shall at any time thereafter be
held to be a waiver of the Obligations.
10.14 JOINT AND SEVERAL LIABILITY. If more than one Person executes
this Mortgage, each is and shall be jointly and severally liable hereunder; and
if Mortgagor is a general partnership, then all partners in Mortgagor (and if
Mortgagor is a limited partnership, then all general partners in Mortgagor)
shall be jointly and severally liable hereunder, notwithstanding any contrary
provision in the partnership laws of the State of Florida.
10.15 MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS MORTGAGE OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT
OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS MORTGAGE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS MORTGAGE APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
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.
(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
-23-
<PAGE>
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.
10.16 NO CROSS-COLLATERALIZATION. Notwithstanding anything contained
in this Mortgage or the Loan Documents to the contrary, Mortgagor and Mortgagee
do not intend for the Loan to be cross-collateralized with that certain line of
credit loan from Mortgagee to Mortgagor as evidenced by that certain Line of
Credit Consolidation Promissory Note in the amount of $10,000,000.00 dated March
25, 1998; 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.
Mortgage, Assignment of Rents and Security Agreement Signed, sealed and
delivered in the presence of:
PLASMA-THERM, INC., a Florida corporation
/s/ KATHERINE BARTZOFF
------------------------------ By: /s/ STACY L. WAGNER
Katherine Bartzoff -------------------------------------
Signature of Witness Stacy L. Wagner
Vice President and Chief
/s/ KATHERINE BARTZOFF Financial Officer
------------------------------
Katherine Bartzoff (CORPORATE SEAL)
Legibly Print Name of Witness
/s/ MARY JO CARNEY
------------------------------
Mary Jo Carney
Signature of Witness
/s/ MARY JO CARNEY
------------------------------
Mary Jo Carney
Legibly Print Name of Witness
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 18th day
of February, 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 [x] is personally known to me or [ ] has produced _____________
_____________ as identification.
/s/ MARY JO CARNEY
----------------------------------
/s/ MARY JO CARNEY
----------------------------------
(SEAL) Legibly Print Name of Notary Public
Notary Public
My Commission Expires:
MARY JO CARNEY MARY JO CARNEY
(SEAL) MY COMMISSION CC691150 (SEAL) MY COMMISSION CC691150
EXPIRES NOVEMBER 11, 2001 EXPIRES NOVEMBER 11, 2001
-24-
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I
Lot 27, Block C of METROPOINTE COMMERCE PARK PHASE II, according to the
plat thereof recorded in Plat Book 103, Pages 25 and 26 of the Public
Records of Pinellas County, Florida, less the North 130.00 feet thereof,
together with Lot 26, Block C of Metropointe Commerce Park, Phase II,
according to a plat thereof as recorded in the Public Records of Pinellas
County, Florida recorded in Plat Book 103, Pages 25 and 26.
PARCEL II
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all in Block C
of METROPOINTE COMMERCE PARK PHASE II, according to the map or plat
thereof recorded in Plat Book 103, pages 25 and 26, Public Records of
Pinellas County, Florida.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheets as of February 28, 1999, and consolidated statements
of income for the period ended February, 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> FEB-28-1999
<CASH> 6,528,146
<SECURITIES> 0
<RECEIVABLES> 9,925,804
<ALLOWANCES> 0
<INVENTORY> 9,904,975
<CURRENT-ASSETS> 28,317,559
<PP&E> 18,058,602
<DEPRECIATION> 5,328,656
<TOTAL-ASSETS> 41,184,267
<CURRENT-LIABILITIES> 9,065,318
<BONDS> 2,966,051
0
0
<COMMON> 112,202
<OTHER-SE> 29,040,696
<TOTAL-LIABILITY-AND-EQUITY> 41,184,267
<SALES> 9,296,375
<TOTAL-REVENUES> 9,296,375
<CGS> 6,551,231
<TOTAL-COSTS> 4,832,923
<OTHER-EXPENSES> (80,077)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 150,428
<INCOME-PRETAX> (2,158,130)
<INCOME-TAX> (748,028)
<INCOME-CONTINUING> (1,410,102)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,410,102)
<EPS-PRIMARY> (0.13)
<EPS-DILUTED> (0.13)
</TABLE>
EXHIBIT 99.1
PLASMA-THERM*, INC. ANNOUNCES FIRST QUARTER 1999 RESULTS
March 15, 1999, St. Petersburg, Florida, Plasma-Therm, Inc. (NASDAQ NMS: "PTIS")
announced today its first quarter 1999 results. For the three months ended
February 28, 1999, the Company reported a net loss of $1,410,102, or $.13 per
diluted share, compared to net income of $1,473,680, or $.13 per diluted share,
for the same period last year. Included in the net loss for the three months
ended February 28, 1999 was an additional restructuring charge of $805,036
(pre-tax) related to services provided by TRW/BDM International pertaining to
the Company's implementation of the Supply Chain Management (SCM) program.
Excluding this restructuring charge, the Company's net loss for the three months
ended February 28, 1999 would have been $884,102, or $.08 per diluted share.
Plasma-Therm also reported net sales for the quarter of $9,296,375, compared to
$12,311,720 for the same period in 1998. Backlog for the first quarter of 1999
was approximately $5,000,000, compared to $16,000,000 for the first quarter of
1998.
Management believes the results for the period ended February 28, 1999 are due
to the continued slowdown in the Company's four market segments, specifically
data storage's slower than anticipated recovery (historically, a substantial
marketplace for Plasma-Therm). These markets have experienced a late slowdown,
as compared to the semiconductor marketplace, which appears to be consistent
with its late recovery.
As a result of the continued slowdown in the marketplace, management has made
the decision to implement further reductions. With restructuring of overheads
and reduction in personnel, the Company's overall overhead should be reduced by
approximately 15 - 20%. The effect will not be fully realized until the third
quarter of 1999.
1
<PAGE>
Through its reorganization efforts, the Company has put into place individual
business units for its four key markets, optoelectronics/telecommunications,
data storage, microelectromechanical and photomask. Management believes this
effort will allow Plasma-Therm to make a greater penetration into these existing
marketplaces, with the potential for increased market share into the year 2000
and beyond. This business structure is one of the results of the SCM program. In
addition, throughout the reorganization, the Company is continuing to implement
the SCM process developed with TRW/BDM International. The majority of the costs
associated with the program have already been realized.
The impact of the restructuring and reorganization efforts should allow the
Company to reduce losses in its second quarter and return to approximately break
even for the remainder of 1999. At the present time, looking forward, management
does not have visibility into the year 2000. However, with the new
organizational structure in place, resulting in reduced operating costs and the
anticipated demand for the Company's products, a return to profitability is
expected.
In addition, management has made the decision to take a more conservative
approach with its Physical Vapor Deposition (PVD) system development program, to
ensure that the beta systems have the greatest degree of success in the
production tool marketplace. This will result in a revised shipment date of late
1999, previously targeted for February, 1999. Although the Company is in the
midst of a restructuring, the decision has been made to continue the support of
this unique process and product development program. Dependent on the
marketplace and general product demand in the year 2000, this product line could
add considerable revenue for the Company in the data storage market.
To preserve cash-flow, the construction of the R&D, Customer Applications and
Training Center is being delayed for approximately six months. At the end of
this period, management will re-evaluate the construction project based on the
current market conditions.
Effective March 15, 1999, Scott Deferrari, President and CEO, will be on a
30-day medical leave of absence. During that time, Ronald H. Deferrari, the
Company's founder, Chairman of the Board and former CEO, will resume the duties
of CEO.
Even though the Company is going through a reorganization, we feel that the
strength of our current market position, product lines and technology, and new
organizational structure positions the Company for a bright future.
ABOUT PLASMA-THERM, INC.: With headquarters in St. Petersburg, Florida, the
Company is a leading producer of plasma process equipment primarily used by
manufacturers requiring expertise in thin film etching and deposition. Founded
in 1975, Plasma-Therm is globally positioned, with sales offices in Europe,
South America, Asia and India, offering a complete range of customer services on
all major continents and serves four core market segments; including photomask
etching, data storage, microelectromechanical (MEMS) and
optoelectronics/telecommunications. The Company's worldwide website can be
accessed at www.plasmatherm.com.
# # #
NOTE: From time to time, the Company may issue forward-looking statements, which
involve risks and uncertainties. This press release contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended and Section 21E of the Securities Exchange Act of 1934, as amended. This
news release may include comments that do not refer strictly to historical
results or actions, which although believed to be reasonable, are inherently
uncertain and difficult to predict. Such statements are subject to certain risks
and uncertainties inherent in the Company's business that could cause actual
results to differ materially from those projected. These factors include, but
are not limited to the following:
* Competitive pricing pressures;
* Construction delays;
* The Company's ability to identify, acquire, and integrate other technologies
or acquired companies;
* Changes in business conditions affecting the Company's financial position or
results of operations which significantly increase the Company's working
capital needs;
2
<PAGE>
* Performance of the economies in markets in which the Company operates;
* Continued acceptance of the Company's products and services;
* Competitive factors;
* New products and technological changes;
* Risks related to international transactions;
* Realization of the benefits of the Company's overhead reduction and
restructuring;
* General economic risks and uncertainties and other such risks as we may
identify in this release or in other published documents.
Any forward-looking statements should be considered accordingly.
CONTACT PERSONS:
Stacy L.Wagner, CFO, Treasurer & Secretary
Laurie Stern, Investor Relations Administrator
Plasma-Therm, Inc.
Website: www.plasmatherm.com
Ph. (727) 577-4999 ext. 312
Fax (727) 577-6844
E-mail: [email protected]
Plasma-Therm's First Quarter Results Conference Call will be broadcast live via
the VCALL website, located at http://www.vcall.com on Tuesday, March 16 at 9:00
a.m. EST. Listeners should go to the Vcall website at least fifteen minutes
before the event to register, download and install any necessary audio software.
