COLLATERAL ASSIGNMENT OF PROFESSIONAL AGREEMENTS
AND PLANS AND SPECIFICATIONS
THIS COLLATERAL ASSIGNMENT OF PROFESSIONAL AGREEMENTS AND
PLANS AND SPECIFICATIONS (the "Assignment") is made as of this
14th day of August, 1995, by and between THE PERRY COMPANY, a
Florida corporation, with its principal place of business at
0000 Xxxx 0xx Xxxxxx, Xxxxx, Xxxxxxx 00000 ("Contractor"),
joined by PLASMA-THERM, INC., a Florida corporation, with its
principal place of business at 0000 Xxxxxxxxxxxxx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 ("Borrower'), in favor of NATIONS-
BANK OF FLORIDA, N.A., with offices at 000 X. Xxxxxx Xxxxx
(FL1-010-07-01), Xxxxx, XX 00000, Attn: Real Estate Loan
Administration, its successors, nominees, and assigns
("Lender")
This Assignment is made on the basis of the following
facts and intentions of the parties:
A. Borrower has obtained a commitment from Lender for a
construction/term loan in the principal amount of THREE
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,375,000.00) (the "Loan"), which Loan is evidenced by a
Promissory Note (the "Note") of even date herewith and secured
by, among other documents, a first Mortgage, Assignment of
Rents and Security Agreement dated on even date herewith, to
be recorded in the Public Records of Pinellas County, Florida
(the "Mortgage"), encumbering the real property described in
Exhibit "A" which is attached hereto and, by this reference,
made a part hereof (the "Property"). The Loan is subject to
the provisions of that certain Construction Loan Agreement
(the "Loan Agreement") of even date herewith. The Note,
Mortgage, Loan Agreement and any other documents executed and
delivered by Borrower in connection with the Loan or any other
loans from Lender to Borrower shall be referred to
collectively as the "Loan Documents" and singularly as "Loan
Document".
B. Borrower intends to use the proceeds of the Loan to
construct a 60,639.50 square foot (MOL) office/manufacturing
facility, including leasehold improvements, upon the Property
(the "Project").
C. To further secure the Loan, Lender requires
Contractor and Borrower to assign to Lender all of their
respective rights, title, and interests, as owner or as a
third party beneficiary, in all contracts pertaining to the
construction of the improvements.
NOW, THEREFORE, in consideration of these premises, the
Loan, and other financial accommodations made or to be made by
Lender to Borrower, Contractor and Borrower agree as follows:
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1. Collateral Assignment. Borrower and Contractor
hereby assign to Lender their respective rights, title,
interests, and positions as "Owner" or third party
beneficiary, as applicable, in and to those agreements and
proposals described in Exhibit "B", between the Contractor, or
as applicable, the Borrower and the Project architects,
engineers and consultants ("Professionals"), pertaining to the
construction of the Project, and all addenda, modifications,
and amendments thereto and all agreements referenced therein
(collectively, the "Contract"); and (ii) any plans, specifica-
tions, drawings, and design documents pertaining to the
Project, if any, and all addenda, modifications, change
orders, and amendments thereto (the "Plans and
Specifications"), and to the extent of their respective
interests under the Contract, hereby grant to Lender, its
successors and assigns, a security interest in the Contract
and the Plans and Specifications and in all Borrower's and
Contractor's respective rights and remedies under the
Contract, to provide additional security for the following
(the "Secured Obligations"):
(a) Payment of all sums due Lender under the
Note, together with all modifications, renewals,
extensions, and replacements thereof, and all future
advances under the Mortgage;
(b) Payment of any other sums due Lender under
the Mortgage, the Loan Agreement, or any Loan
Document; and
(c) Performance of each obligation contained
in this Assignment, the Mortgage, the Loan
Agreement, or any other Loan Document.
Although Borrower, Contractor and Lender intend this to be a
present assignment of their respective interests in the
Contract and the Plans and Specifications, Lender agrees that,
so long as no default exists under this Assignment or the Loan
Documents, Borrower and Contractor, as applicable, may
continue to exercise the rights and powers granted to them in
the Contract. The security of this Assignment is primary and
on a parity with Lender's Mortgage and not secondary.
2. Default under Loan Agreement, Etc. In the event of
the occurrence of any event of default under the Loan
Agreement, the Note, the Mortgage or any Loan Document, Lender
shall have the right and option, in its sole discretion, to
exercise the rights, benefits, and privileges in the Contract
and the Plans and Specifications under this Assignment upon
written notice to the Professionals. Neither this Assignment
nor any action or actions on the part of Lender shall
constitute an assumption by Lender of any of the obligations
of Borrower or Contractor under the Contract, and Borrower or
Contractor, as applicable, shall continue to be liable for all
obligations thereunder. Borrower hereby agrees to protect,
defend, indemnify, and hold Lender harmless from and against
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any and all loss, cost, liability or expense, including but
not limited to attorneys' fees, costs, and expenses (including
attorneys' fees, costs, and expenses incurred as a result of
any appeal), resulting from any failure of Borrower to perform
and observe, at the time and in the manner therein provided,
each of the covenants, agreements, and obligations of Borrower
contained in the Contract which are binding upon the Borrower.
Contractor hereby agrees to protect, defend, indemnify and
hold Lender harmless from and against any and all loss, cost,
liability or expense, including but not limited to attorneys'
fees, costs and expenses (including attorney's fees, costs and
expenses incurred as a result of any appeal), resulting from
any failure of Contractor to perform and observe, at the time
and in the manner therein provided each of the covenants,
agreements and obligations of Contractor contained in the
Contract which are binding upon the Contractor.
3. Default under Contract. Upon the occurrence of any
event of default under the Contract, Lender shall have the
right in its sole discretion, to take in its name or in the
name of Borrower or Contractor, as applicable, or otherwise,
such action as Lender may, at any time or from time to time,
reasonably determine to be necessary to cure any default under
the Contract, but under no circumstances shall Lender be
obligated to take such action. Lender shall incur no
liability on account of any action taken in good faith by it
or on its behalf or otherwise hereunder, whether or not the
same shall prove to be improper, inadequate or invalid in
whole or in part, and Borrower or Contractor, as applicable,
agree to protect, defend, indemnify, and hold Lender harmless
from and against any and all loss, cost, liability or expense,
including but not limited to attorneys' fees, costs and
expenses (including attorneys' fees, costs and expenses
incurred as a result of any appeal), in connection with any
such action or actions. This Assignment shall constitute
Borrower's and Contractor's irrevocable direction to and full
authority for the Professionals to act at Lender's written
direction, notice or demand and to otherwise perform on
Lender's behalf under the Contract after an event of default
has occurred under the Loan. The Professionals shall be fully
protected by Borrower or Contractor as applicable, in their
reliance upon and compliance with any written request, notice
or demand made by Lender with respect to the Contract and the
Plans and Specifications, or for performance of any
undertaking thereunder, and shall have no right or duty to
inquire as to whether any event of default under the Loan
Agreement or any other Loan Document has actually occurred or
is then existing.
4. Attorney-in-Fact. Borrower and Contractor hereby
irrevocably constitute and appoint Lender as their true and
lawful attorney-in-fact, empowered to act in their names or in
Lender's name or otherwise, in order to enforce the respective
rights of Borrower or Contractor under the Contract. This
power of attorney, being coupled with an interest, is
irrevocable, but shall not become operative except on the
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occurrence of an event of default under the Loan Agreement,
the Note, any Loan Document or the Contract.
5. Additional Assignment. Borrower and Contractor and
the Professionals (by executing the Consent previously
delivered to Lender) additionally hereby assign to Lender all
of their respective rights, title and interests in and to any
and all permits, licenses, allocations, approvals,
certificates and consents heretofore or hereafter issued by
any governmental or private authority or agency relating to
the Project or the Plans and Specifications, naming Borrower,
Contractor or the Professionals or in which any one of them
has an interest, and all of Borrower's, Contractor's and the
Professionals' respective rights, title and interests in and
to any subcontract or agreement for services, labor or
materials pertaining to the Project, and all claims and rights
with respect to non-performance or breach of said contracts
and agreements.
6. Representations and Warranties of Borrower.
Borrower and Contractor, to the extent of their interests
under the Contract, represent and warrant that they have full
power and authority to make this Assignment, that the Contract
is valid, subsisting and in full force and effect, that they
have obtained the consent of the Professionals to assign their
Contract rights to Lender, and that no default, right of
set-off or claim for additional payments exists thereunder.
Borrower and Contractor, to the extent of their interests
under the Contract, covenant to make all required payments and
otherwise perform their obligations under the Contract, and to
give immediate notice to Lender of any notice of default
served upon them with respect to their respective obligations
under the Contract, and at their sole cost and expense, to
enforce or secure the performance of each and every obligation
of the Professionals to be kept or performed under the
Contract. Borrower and Contractor, to the extent of their
interests under the Contract, further covenant that they shall
make no changes in or amendments to the Contract or the Plans
and Specifications, including but not limited to any addendum,
modification or change order, without the prior written
consent of Lender, except for such modifications or change
orders or extras, if any, as are specifically allowed by the
Loan Agreement, and shall not tender or accept a surrender or
cancellation of the Contract, or further assign or create any
further encumbrance or hypothecation of their respective
interests under the Contract, without the prior written
consent of Lender.
7. Binding Effect. This Assignment and the agreements
and undertakings of the parties hereunder shall be binding
upon the parties and their successors and assigns and shall
inure to the benefit of Lender and its successors, nominees
and assignees and any purchaser of any interest in the Loan
Agreement and the other Loan Documents.
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8. Further Assurances. Borrower and Contractor, to the
extent of their interests under the Contract, agree to make,
execute and deliver all such further or additional instruments
as may be necessary to satisfy the intents and purposes hereof
and to perfect the assignment made hereby.
9. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Assignment or any
related Assignments or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Assignment may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Assignment applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in Tampa, Florida, and administered by
Endispute, Inc. d/b/a J.A.M.S./Endispute who will appoint
an arbitrator; if J.A.M.S./Endispute is unable or legally
precluded from administering the arbitration, then the
American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of
the demand for arbitration; further, the arbitrator shall
only, upon a showing of cause, be permitted to extend the
commencement of such hearing for up to an additional 60
days.
b. Reservations of Rights: Nothing in this
Assignment shall be deemed to i) limit the applicability
of any otherwise applicable statutes of limitation or
repose and any waivers contained in this Assignment; or
ii) be a waiver by the Lender of the protection afforded
to it by 12 U.S.C. Section 91 or any substantially
equivalent state law; or iii) limit the right of the
Lender hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against
any real or personal property collateral, or (C) to
obtain from a court provisional or ancillary remedies
such as (but not limited to) injunctive relief or the
appointment of a receiver. The Lender may exercise such
self help rights, foreclose upon such property, or obtain
such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought
pursuant to this Assignment. At Lender's option,
foreclosure under a mortgage or deed of trust may be
accomplished by any of the following: the exercise of a
power of sale under the deed of trust or mortgage, or by
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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.
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IN WITNESS WHEREOF, Contractor and Borrower have executed
this Assignment this 14th day of August, 1995.
Signed, sealed and delivered CONTRACTOR:
in the presence of:
THE PERRY COMPANY, a Florida
corporation
/s/Xxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxx
(Signature of Witness) Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx President
(Print Name of Witness)
/s/Xx Xxxxx (CORPORATE SEAL)
(Signature of Witness)
Xx Xxxxx Address:
(Print Name of Witness) 0000 Xxxx 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
BORROWER:
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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STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by XXXXX X. XXXXX, as the
President of THE PERRY COMPANY, a Florida corporation, on
behalf of the corporation. He X is personally known to me or
has produced -- as identification.
/s/Xxxx X. Street
Xxxx X. Street
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
"OFFICIAL SEAL"
XXXX X. STREET
MY COMMISSION EXPIRES 4/26/96
COMMISSION #CC196605
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by 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
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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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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EXHIBIT "B"
Agreements
1. Consultant Agreement between Plasma-Therm, Inc. and
Xxxxxxx & Xxxx dated July 31, 1995
2. Agreement between The Perry Company and Whitehouse
Engineers dated January 31, 1995
3. Agreement between The Perry Company and King Engineering
Associates, Inc. dated February 23, 1995
4. Agreement between The Perry Company and Xxxxxx & Xxxxxx,
Inc. dated February 28, 1995
5. Abbreviated Form of Agreement between Owner and Architect
between The Perry Company and Xxxxxx and Associates, Inc.
dated March 3, 1995
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