COLLATERAL ASSIGNMENT OF GENERAL CONSTRUCTION CONTRACT,
SUBCONTRACTS, PLANS AND SPECIFICATIONS, AND PERMITS
THIS COLLATERAL ASSIGNMENT OF GENERAL CONSTRUCTION
CONTRACT, SUBCONTRACTS, PLANS AND SPECIFICATIONS, AND PERMITS
(the "Assignment") is made as of this 14th day of August,
1995, by and between PLASMA-THERM, INC., a Florida
corporation, with its principal place of business at 0000
Xxxxxxxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000
("Borrower") in favor of NATIONSBANK OF FLORIDA, N.A., with
offices at 000 X. Xxxxxx Xxxxx (XX0-010-07-01), Tampa, FL
33602, Attn: Real Estate Loan Administration, its successors,
nominees, and assigns ("Lender").
This Assignment is made on the basis of the following
facts and intentions of the parties:
X. Xxxxxxxx has obtained a commitment from Lender for a
construction/term loan in the principal amount of THREE
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,375,000.00) (the "Loan"), which Loan is evidenced by a
Promissory Note (the "Note") of even date herewith and secured
by, among other documents, a first Mortgage, Assignment of
Rents and Security Agreement of even date herewith, to be
recorded in the Public Records of Pinellas County, Florida,
(the "Mortgage"), encumbering the real property in Pinellas
County, Florida, described in Exhibit "A" which is attached
hereto and, by this reference, made a part hereof (the
"Property"). The Loan is subject to the provisions of that
certain Construction Loan Agreement (the "Loan Agreement") of
even date herewith. The Note, Mortgage, Loan Agreement and
any other documents executed and delivered by Borrower in
connection with the Loan or any other loans from Lender to
Borrower shall be referred to collectively as the "Loan
Documents" and singularly as "Loan Document".
B. Borrower intends to use the proceeds of the Loan to
construct a 60,639.50 square foot (MOL) office/manufacturing
facility, including leasehold improvements, upon the Property
(the "Project").
C. To further secure the Loan, Lender requires Borrower
to assign to Lender all Borrower's right, title, and interest,
as owner, in all contracts pertaining to the construction of
the improvements.
NOW, THEREFORE, in consideration of these premises, the
Loan, and other financial accommodations made or to be made by
Xxxxxx to Borrower, Xxxxxxxx agrees as follows:
1. Collateral Assignment. Borrower hereby assigns to
Xxxxxx Xxxxxxxx's entire right, title, interest, and position
as "Owner" in and to: (i) that certain Standard Form of
Agreement Between Owner and Contractor, executed by Xxxxxxxx
and The Perry Company ("Contractor") dated August 14, 1995, a
true and correct copy of which is attached hereto as Exhibit
"B", providing for the construction of the Project, and all
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Collateral Assignment of General Construction Contract
addenda, modifications, and amendments (collectively, the
"Contract"); and (ii) any plans, specifications, drawings, and
design documents pertaining to the Project, if any, and all
addenda, modifications, change orders, and amendments thereto
(the "Plans and Specifications"), and grants to Lender, its
successors and assigns, a security interest in the Contract
and the Plans and Specifications and in all Borrower's rights
and remedies under the Contract, to provide additional
security for the following (the "Secured Obligations"):
(a) Payment of all sums due Lender under the
Note, together with all modifications, renewals,
extensions, and replacements thereof, and all future
advances under the Mortgage;
(b) Payment of any other sums due Lender under
the Mortgage, the Loan Agreement, or any Loan
Document; and
(c) Performance of each obligation contained
in this Assignment, the Mortgage, the Loan
Agreement, or any other Loan Document.
Although Xxxxxxxx and Xxxxxx intend this to be a present
assignment of Xxxxxxxx's interest in the Contract and Plans
and Specifications, Xxxxxx agrees that, so long as no default
exists under this Assignment or the Loan Documents, Borrower
may continue to exercise the rights and powers granted to
Borrower in the Contract. The security of this Assignment is
primary and on a parity with Xxxxxx's Mortgage and not
secondary.
2. Default under Loan Agreement, Etc. In the event of
the occurrence of any event of default under the Loan
Agreement, the Note, the Mortgage or any Loan Document, Lender
shall have the right and option, in its sole discretion, to
exercise the rights, benefits, and privileges in the Contract
and the Plans and Specifications under this Assignment upon
written notice to Contractor. Neither this Assignment nor any
action or actions on the part of Lender shall constitute an
assumption by Lender of any of the obligations of Borrower
under the Contract, and Borrower shall continue to be liable
for all obligations thereunder. Borrower hereby agrees to
protect, defend, indemnify, and hold Lender harmless from and
against any and all loss, cost, liability or expense,
including but not limited to attorneys' fees, costs, and
expenses (including attorneys' fees, costs, and expenses
incurred as a result of any appeal), resulting from any
failure of Borrower to perform and observe, at the time and in
the manner therein provided, each of the covenants,
agreements, and obligations of Borrower contained in the
Contract.
3. Default under Contract. Upon the occurrence of any
event of default under the Contract, Lender shall have the
right, in its sole discretion, to take in its name or in the
name of Borrower or otherwise, such action as Lender may at
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Collateral Assignment of General Construction Contract 2
any time or from time to time reasonably determine to be
necessary to cure any default under the Contract, but under no
circumstances shall Lender be obligated to take such action.
Lender shall incur no liability on account of any action taken
in good faith by it or on its behalf or otherwise hereunder,
whether or not the same shall prove to be improper,
inadequate, or invalid, in whole or in part, and Xxxxxxxx
agrees to protect, defend, indemnify, and hold Lender harmless
from and against any and all loss, cost, liability, or
expense, including but not limited to attorneys' fees, costs,
and expenses (including attorneys' fees, costs, and expenses
incurred as a result of any appeal), in connection with any
such action or actions. This Assignment shall constitute
Xxxxxxxx's irrevocable direction to and full authority for
Contractor to act at Xxxxxx's written direction, notice, or
demand and to otherwise perform on Xxxxxx's behalf under the
Contract after an event of default has occurred under the
Loan. Contractor shall be fully protected by Borrower in
Contractor's reliance upon and compliance with any written
request, notice, or demand made by Lender with respect to the
Contract and the Plans and Specifications, or for performance
of any undertaking thereunder, and shall have no right or duty
to inquire as to whether any event of default under the Loan
Agreement or any other Loan Document has actually occurred or
is then existing.
4. Attorney-in-Fact. Borrower hereby irrevocably
constitutes and appoints Lender as its true and lawful
attorney-in-fact, empowered to act in Xxxxxxxx's name or in
Xxxxxx's name or otherwise, to enforce all rights of Borrower
under the Contract. This power of attorney, being coupled
with an interest, is irrevocable, but shall not become
operative except on the occurrence of an event of default
under the Loan Agreement, the Note, any Loan Document or the
Contract.
5. Additional Assignment. Borrower and Contractor (by
executing the Consent previously delivered to Lender)
additionally hereby assign to Lender all right, title, and
interest in and to any and all permits, licenses, allocations,
approvals, certificates, and consents heretofore or hereafter
issued by any governmental or private authority or agency
relating to the Project or the Plans and Specifications,
naming Borrower or Contractor, or in which either has an
interest, and all of Borrower's and Contractor's right, title,
and interest in and to any subcontracts or agreements for
services, labor, or materials pertaining to the Project, and
all claims and rights with respect to non-performance or
breach of said contracts and agreements.
6. Representations and Warranties of Borrower.
Borrower represents and warrants that it has full power and
authority to make this Assignment, that the Contract is valid,
subsisting, and in full force and effect, that it has obtained
the consent of the Contractor to assign its Contract rights to
Lender, and that no default, right of set-off, or claim for
additional payments exists thereunder. Borrower covenants to
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Collateral Assignment of General Construction Contract 3
make all required payments and otherwise perform its
obligations under the Contract, and to give immediate notice
to Lender of any notice of default served upon Borrower with
respect to its obligations under the Contract, and at
Borrower's sole cost and expense, to enforce or secure the
performance of each and every obligation of Contractor to be
kept or performed under the Contract. Borrower further
covenants that it shall make no changes in or amendments to
the Contract or the Plans and Specifications, including, but
not limited to, any addenda, modifications, or change orders,
without the prior written consent of Lender, except for such
change orders or extras, if any, as are specifically allowed
by the Loan Agreement, and shall not tender or accept a
surrender or cancellation of the Contract, or further assign
or create any further encumbrance or hypothecation of
Borrower's interest under the Contract, without the prior
written consent of Xxxxxx.
7. Binding Effect. This Assignment and the agreements
and undertakings of Borrower hereunder shall be binding upon
Xxxxxxxx and its successors and assigns and shall inure to the
benefit of Lender and its successors, nominees, and assignees
and any purchaser of any interest in the Loan Agreement and
the other Loan Documents.
8. Further Assurances. Xxxxxxxx agrees to make,
execute, and deliver all such further or additional
instruments as may be necessary to satisfy the intents and
purposes hereof and to perfect the assignment made hereby.
9. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Assignment or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Assignment may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Assignment applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in Tampa, Florida, and administered by
Endispute, Inc., d/b/a J.A.M.S./Endispute who will
appoint an arbitrator; if J.A.M.S./Endispute is unable or
legally precluded from administering the arbitration,
then the American Arbitration Association will serve.
All arbitration hearings will be commenced within 90 days
of the demand for arbitration; further, the arbitrator
shall only, upon a showing of cause, be permitted to
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Collateral Assignment of General Construction Contract 4
extend the commencement of such hearing for up to an
additional 60 days.
b. Reservations of Rights: Nothing in this
Assignment shall be deemed to i) limit the applicability
of any otherwise applicable statutes of limitation or
repose and any waivers contained in this Assignment; or
ii) be a waiver by the Lender of the protection afforded
to it by 12 U.S.C. Section 91 or any substantially
equivalent state law; or iii) limit the right of the
Lender hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against
any real or personal property collateral, or (C) to
obtain from a court provisional or ancillary remedies
such as (but not limited to) injunctive relief or the
appointment of a receiver. The Lender may exercise such
self help rights, foreclose upon such property, or obtain
such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought
pursuant to this Assignment. At Lender's option,
foreclosure under a mortgage or deed of trust may be
accomplished by any of the following: the exercise of a
power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action
for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate
the merits of the controversy or claim occasioning resort
to such remedies.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Assignment
this 14th day of August, 1995.
Signed, sealed and delivered
in the presence of:
PLASMA-THERM, INC., a Florida
corporation
/s/Xxxx X. Xxxxxxxxx By: /s/Xxxxxx X. Xxxxxxxxx
(Signature of Witness) Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx President
(Print Name of Witness)
/s/Xxxxx X. Xxxxxxxx (CORPORATE SEAL)
(Signature of Witness)
Xxxxx X. Xxxxxxxx
(Print Name of Witness) Address:
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
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Collateral Assignment of General Construction Contract 5
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by XXXXXX X. XXXXXXXXX, as
the President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me
or X has produced drivers license as identification.
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
XXXXX X. XXXXXXX
MY COMMISSION # CC483663 EXPIRES
AUGUST 3, 1999
BONDED THRU XXXX XXXX INSURANCE, INC.
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Collateral Assignment of General Construction Contract 6
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all
in Block C of METROPOINTE COMMERCE PARK PHASE II, according to
the map or plat thereof recorded in Plat Book 103, pages 25
and 26, Public Records of PINELLAS County, Florida.
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Collateral Assignment of General Construction Contract
EXHIBIT "B"
Agreement
1. Standard Form of Agreement Between Owner and Contractor,
executed by Xxxxxxxx and the Perry Company dated August 14,
1995.
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Collateral Assignment of General Construction Contract
