Rec ___________
Doc ___________
Int ___________
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MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (the "Agreement") is executed the
6th day of January, 2000, by PLASMA-THERM, INC., a Florida corporation (the
"Borrower") and BANK OF AMERICA, N.A., a national banking association, d/b/a
NationsBank, N.A., successor to NationsBank, N.A. ("Lender"), and is made in
reference to the following facts:
R E C I T A L S:
A. Borrower is the owner of certain real property and all
improvements thereon lying in Pinellas County, Florida, as more particularly
described in Exhibit "A" attached hereto and by this reference made a part
hereof (the "Property").
B. On or about February 18, 1999, Borrower executed a
promissory note in the original principal amount of $4,500,000.00 (the "Note")
in favor of Lender to evidence a construction loan made for the purpose of
constructing a 31,459 square foot (MOL) office/manufacturing facility, including
leasehold improvements, upon the Property (the "Loan").
C. In order to secure the Note, Borrower executed a Mortgage,
Assignment of Rents and Security Agreement dated February 18, 1999, and recorded
in O.R. Book 10412, Page 1 of the Public Records of Pinellas County, Florida
(the "Mortgage"). The Mortgage secures the Note and encumbers the Property.
D. Simultaneously with the execution of the Mortgage, Borrower
also executed, among other documents, the following loan and security documents:
i) UCC-1 Financing Statement recorded in O.R. Book 10412,
Page 26 of the Public Records of Pinellas County, Florida, and UCC-1 Financing
Statement filed with the Secretary of State of the State of Florida, File No.
96-0000038631 ("UCC-1 Financing Statements");
This instrument prepared by and returned to:
XXXX XX XXXXXX
Powell, Carney, Xxxxx & Xxxxxxxxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xx. Xxxxxxxxxx, XX 00000-0000
ii) Collateral Assignment of General Construction Contract,
Subcontracts, Plans and Specifications, and Permits and Collateral Assignment of
Professional Agreements and Plans and Specifications, and Permits (the
"Assignments");
iii) Construction Loan Agreement ("Loan Agreement"); and
iv) Environmental Indemnity Agreement ("Indemnity
Agreement").
E. On or about April 18, 1997, the Borrower and Lender
executed that certain Credit Agreement (the "Credit Agreement"), which Credit
Agreement has been amended from time to time, and which Credit Agreement further
secures the Loan.
F. On or about July 13, 1999, the Loan was modified by letter
agreement between the Lender and Borrower (the "Letter Amendment"), when the
Borrower decided that it did not wish to proceed immediately with the
construction of the research and development facility for which the Loan
proceeds were made available.
G. For purposes of this Agreement, the Notes, Mortgage, UCC-1
Financing Statements, Assignments, Loan Agreement, Indemnity Agreement, Credit
Agreement and Letter Amendment shall be referred to as the "Documents".
H. The Borrower has now decided to proceed with the
construction of the building and office portion of the contemplated
improvements, and the Lender has agreed to advance funds under the Loan, up to
$2,400,000.00, for this purpose, subject to the terms and conditions stated
herein.
NOW THEREFORE, for and in consideration of the premises and
for other good and valuable consideration in hand paid by each of the parties
hereto to the others, the receipt of which is hereby acknowledged by each of
them, the parties do hereby covenant and agree as follows:
1. RECITALS. The parties hereto acknowledge and agree that
the statements contained in the recitals of fact set forth above (the
"Recitals") are true and correct, and the Recitals are by this reference made a
part of this Agreement.
2. EXTENSION OF MATURITY DATE. The Maturity Date of the Note
is hereby extended to September 15, 2000, and the Extension Maturity Date is
hereby extended to September 15, 2005.
3. MODIFICATION OF MORTGAGE. The definition for "Loan
Agreement" set forth in Section 1.1(r) of the Mortgage is hereby deleted in its
entirety, and the following definition is inserted in lieu thereof:
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(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, and as may be further amended or modified
from time to time in the future.
4. MODIFICATION OF LOAN AGREEMENT. The Loan Agreement is
hereby amended to address the Borrower's decision to proceed with the
construction of a portion of the Project (as defined in the Loan Agreement). The
Lender has agreed to advance funds under the Loan of up to $2,400,000.00 for the
construction of the building and the office space located therein. As to the
balance of the Loan funds originally approved (in the amount of $2,100,000.00),
the Lender will keep its Loan commitment open until February 28, 2000, provided,
however, that the Lender shall have no obligation to fund said remaining
proceeds under the Loan commitment and the Documents unless further agreed to in
writing by the Lender and Borrower. More specifically, the Loan Agreement is
hereby amended as follows:
(a) EXHIBIT "B" - BASIC INFORMATION. The Loan Agreement is
hereby amended to modify certain basic information definitions, as follows:
"COMPLETION DATE" means September 15, 2000.
"IMPROVEMENTS" means all on-site and off-site
improvements to the Land for a 31,459 square foot
(MOL) building containing approximately 16,545 square
feet (MOL) of office space, and approximately 14,914
square feet (MOL) of vacant space for future
expansion for manufacturing purposes, 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.
(b) BUDGET. The Budget attached to the Loan Agreement as
Exhibit "D" is hereby replaced by the Budget attached hereto as Exhibit "D", and
hereafter, whenever in the Loan Agreement, the term "Budget" is used, it shall
be deemed to mean the Budget attached hereto as Exhibit "D".
(c) CONSTRUCTION OF THE IMPROVEMENTS. Section 2.3 of the
Loan Agreement is amended only insofar as the Borrower shall be required to
commence construction of the Improvements on or before January 1, 2000.
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(d) CONSTRUCTION CONSULTANT AND SUPERVISING ARCHITECT.
Section 2.12 of the Loan Agreement is hereby amended only insofar as the
Borrower shall pay the cost of all services to be performed by the Lender's
Construction Consultant in connection with the construction of the Improvements,
including a review of the Plans and specifications and all proposed changes to
them and preparation of a "cost take-off" construction analysis, except that the
Lender shall pay for the services to be performed by the Lender's Construction
Consultant in approving requests for Loan disbursements, and inspecting the
construction work for conformity with the approved Plans and specifications, up
to the ninth (9th) inspection, if applicable; and thereafter, the Borrower shall
pay the cost of all subsequent inspections of the Property made by the
Construction Consultant, if applicable.
5. MODIFICATION OF OTHER DOCUMENTS. Subsequent to the closing
of the Loan, the name of the Lender changed to Bank of America, N.A.
Accordingly, wherever in the Documents, the name of the Lender appears, it shall
be deemed to mean Bank of America, N.A., a national banking association, d/b/a
NationsBank, N.A., successor to NationsBank, N.A. Wherever in the Documents
references are made to the "Credit Agreement", such references shall be deemed
to include all amendments and modifications made to same as of the date hereof
and in the future. Furthermore, wherever in the Documents the project is
described or defined, such description shall be modified to reflect the
construction of the 31,459 square foot (MOL) building, containing approximately
16,545 square feet (MOL) of office space and 14,914 square feet (MOL) of vacant
space for future expansion for manufacturing purposes, including leasehold
improvements in the office space. Otherwise, the Documents are hereby modified
so that they remain in full force and effect, conform fully with the terms of
this Agreement, and continue to serve as security for the Note remaining unpaid
from time to time.
6. WARRANTY OF TITLE. Borrower hereby warrants and represents
to Lender that there are no mortgages, liens or leases affecting the Property
other than the following:
(a) The Mortgage,
(b) This Agreement,
(c) The UCC-1 Financing Statements,
(d) Ad valorem taxes for the year 2000, and for all
subsequent years, and
(e) Easements, restrictions, agreements, covenants,
mortgages and matters as shown in the Title Insurance
Policy No. FA-M-946453, by First American Title
Insurance Company, as endorsed from time to time
up to the date of this Agreement.
7. STATE DOCUMENTARY STAMP TAXES AND OTHER COSTS. Borrower
shall be liable for and shall promptly pay the full amount of any documentary
stamps, intangible taxes, interest and penalties, if any, levied by the State of
Florida incident to the Loan transaction described in this Agreement.
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8. CONSENT AND WAIVER. Borrower hereby consents to this
Agreement and agrees that the execution of this Agreement shall in no manner or
way whatsoever impair or otherwise adversely affect their liability to Lender
under the Note, Documents, or this Agreement.
9. WAIVER OF DEFENSES. Borrower hereby waives any claim or
defense which it may have up to the date of this Agreement with respect to the
Note, the Documents and this Agreement, and further agrees not to raise any such
claim or defense, if any, in any civil proceeding or otherwise.
10. RELEASE. AS A MATERIAL INDUCEMENT FOR LENDER TO EXECUTE
THIS AGREEMENT, BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO
XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE LENDER, ITS OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY,
CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS,
CONTROVERSIES, AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY
WHICH BORROWER EVER HAD, NOW HAS, OR WHICH ANY PERSONAL REPRESENTATIVE,
SUCCESSOR, HEIR OR ASSIGN OF BORROWER HEREAFTER CAN, SHALL OR MAY HAVE AGAINST
LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, AND CAUSE OR THING
WHATSOEVER THROUGH THE DATE HEREOF. BORROWER FURTHER EXPRESSLY AGREES THAT THE
FOREGOING RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS BROAD AND INCLUSIVE
AS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA. IN ADDITION TO, AND WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AND IN CONSIDERATION OF LENDER'S
EXECUTION OF THIS AGREEMENT, BORROWER COVENANTS WITH AND WARRANTS UNTO LENDER,
AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS,
DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST LENDER OR THE
OBLIGATION OF BORROWER TO PAY THE LOAN TO LENDER WHEN AND AS THE SAME BECOMES
DUE AND PAYABLE.
11. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies
and reaffirms the continued validity and enforceability of the terms, conditions
and obligations set forth in the Note and Documents, and its continuing or new
obligations under such instruments or any other instruments referenced in this
Agreement. Borrower further states that all warranties and representations made
in the Documents in connection with the Loan are hereby restated and reaffirmed
as of the date of this Agreement with regard to the Loan and the Property.
12. NO NOVATION. It is the intent of the parties that this
Agreement shall not constitute a novation and shall in no way adversely affect
the lien priority of the Mortgage and other Documents referred to above. In the
event that this Agreement, or any part hereof, shall be construed by a court of
competent jurisdiction as operating to affect the lien priority of said Mortgage
or other Documents, or any of them, over the claims which would otherwise be
subordinate thereto, then to
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the extent so ruled by such court, and to the extent that third persons
acquiring an interest in the Property between the time of execution of the
Mortgage, other Documents, and the execution hereof, are prejudiced thereby,
this Agreement, or such portion hereof as shall be so construed, shall be at the
option of Lender void and of no force and effect and the Note, Mortgage and
Documents shall be in full force and effect according to their terms prior to
the modifications made in this Agreement. Provided, however, that
notwithstanding the foregoing, the parties hereto, as between themselves, shall
be bound by all terms and conditions hereof until all indebtedness owing from
the Borrower to Lender under the Note, Mortgage and Documents shall have been
paid in full.
13. LIEN. The Borrower affirms, warrants and represents that
the lien of the Mortgage, as modified by this Agreement, is a first lien on the
Property, and that the security interest granted by any security instrument is a
valid security interest in the collateral described therein with the priority as
stated therein. If at any time Lender shall determine that the lien priority of
the Documents as stated therein is invalid or in jeopardy, or if at any time
Lender is unable to obtain title insurance insuring such liens as valid liens
with the priority stated therein on the collateral described therein, then
Lender shall have the option of declaring the entire indebtedness of the Note,
together with all accrued interest, to be immediately due and payable in full.
14. ATTORNEYS' FEES. In the event that Lender must enforce
this Agreement, the Note or any of the Documents to collect any indebtedness
from the Borrower, or to enforce or interpret any provision of this Agreement or
any of the Documents, by law or through attorneys at law, or under advice
therefrom, the Borrower agrees to pay all costs of collection, including
reasonable attorneys' fees (including charges for paralegals and others working
under the direction or supervision of Lender's attorneys) whether or not suit is
brought, and whether incurred in connection with collection, trial, appeal,
bankruptcy or other creditors' proceedings or otherwise, and, if the attorneys
shall include employees of Lender or of any company or bank controlling,
controlled by or under common control with Lender, reasonable attorneys' fees
shall include the costs allocated by Lender's or such affiliated company's or
bank's internal legal department.
15. OTHER PROVISIONS AND DEFINITIONS. Unless otherwise set
forth in this Agreement, all other terms, conditions and obligations set forth
in the Documents shall remain in full force and effect and shall be fully
complied with, and the meaning of any of the defined or other terms herein shall
have the same meaning as ascribed to said terms in the Documents.
16. SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision hereof shall be prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity only, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
17. FLORIDA CONTRACT. This Agreement shall be deemed a Florida
contract and shall be construed according to the laws of the State of Florida,
regardless of whether this Agreement is executed by certain of the parties
hereto in other states or otherwise.
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18. BINDING EFFECT. This Agreement shall bind the successors
and assigns of the parties hereto; it constitutes the entire understanding of
the parties, and it may not be modified except in writing.
19. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
Signed, sealed and delivered in PLASMA-THERM, INC., a Florida corporation
the presence of:
/s/ XXXXXXXXX XXXXXXXX
----------------------
Signature of Witness By: /s/ XXXXX X. XXXXXX
-------------------
/s/ XXXXXXXXX XXXXXXXX Xxxxx X. Xxxxxx, Vice President and
--------------------- Chief Financial Officer
Legibly Print Name of Witness
(CORPORATE SEAL)
/s/ XXXXX X. XXXXXXXXXX
-----------------------
Signature of Witness
/s/ XXXXX X. XXXXXXXXXX
-----------------------
Legibly Print Name of Witness
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 6th day of
January, 2000, by XXXXX X. XXXXXX, as 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/ XXXXXXXXX XXXXXXXX
----------------------
(SEAL) XXXXXXXXX XXXXXXXX
------------------
My Commission Expires: November 4, 2002 (Print Name of Notary Public)
Notary Public
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BANK OF AMERICA, N.A., d/b/a NationsBank,
N.A., successor to NationsBank, N.A., a
national banking association
-------------------------------
Signature of Witness
-------------------------------
Legibly Print Name of Witness
By: __________________________________
Name: __________________________________
Title: __________________________________
-------------------------------
Signature of Witness
(CORPORATE SEAL)
-------------------------------
Legibly Print Name of Witness
STATE OF FLORIDA )
COUNTY OF _________________)
The foregoing instrument was acknowledged before me this _______ day
of January, 2000, by _________________________, as the __________ President of
BANK OF AMERICA, N.A., d/b/a NationsBank, N.A., successor to NationsBank, N.A.,
a national banking association, on behalf of the association. He or she |_| is
personally known to me or |_| has produced___________________ as identification.
_____________________________
_____________________________
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I
Xxx 00, Xxxxx X xx XXXXXXXXXXX XXXXXXXX XXXX XXXXX 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 Xxx 00,
Xxxxx X xx Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 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.
EXHIBIT "D"
BUDGET
