EXHIBIT 10.56
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Third Amendment"), is
executed as of the 31st day of May, 1999, by and between PLASMA-THERM, INC., a
Florida corporation whose address is 10050 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 (hereinafter called "Borrower") and NATIONSBANK, N.A., a national
banking association, f/k/a NationsBank, N.A. (South), whose address is 000 X.
Xxxxxxx Xxxxxxxxx, 5th Floor (FL1-400-05-03), Xxxxx, Xxxxxxx 00000 (hereinafter
called "Lender").
W I T N E S S E T H:
WHEREAS, on April 18, 1997, Borrower and Lender executed that certain
Credit Agreement (the "Credit Agreement") to set forth the terms and provisions
relating to certain loans made by Lender to Borrower.
WHEREAS, the Credit Agreement was amended on March 25, 1998 (the "First
Amendment"), December 8, 1998 (by letter agreement) (the "Letter Amendment") and
on February 18, 1999 (the "Second Amendment").
WHEREAS, simultaneously with entering into this Third Amendment,
Borrower has renewed its revolving line of credit loan from Lender in the
maximum principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00),
pursuant to the terms and provisions set forth in that certain Commitment Letter
dated May 31, 1999.
WHEREAS, on or about May 27, 1999, Borrower closed on a real estate
mortgage loan from the Lender as evidenced by a Promissory Note in the amount of
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($700,000.00), made pursuant to the
terms and provisions set forth in that certain Commitment Letter dated April 19,
1999.
WHEREAS, Lender and Borrower desire to amend the Credit Agreement, as
previously amended by the First Amendment, Letter Amendment and Second
Amendment.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The terms of the Credit Agreement,
First Amendment, Letter Amendment and Second Amendment are hereby modified,
supplemented and amended as follows:
a. The Borrowing Base Certificate attached as Exhibit "A" to
the Credit Agreement is hereby deleted in its entirety and replaced by that
certain Borrowing Base Certificate Form attached hereto as Exhibit "A" to this
Third Amendment.
b. The definition of "Eligible Account" set forth in Section
1(l) of the Credit Agreement is deleted in its entirety and replaced by the
following definition:
"Eligible Account" means an Account owing to
Borrower, now existing or hereafter arising, which Account
meets the following specifications at the time it came into
existence and continues to meet the same until it is collected
in full unless otherwise agreed to by Lender in writing:
(i) the Account is due and payable and not more than
sixty (60) days have elapsed since the initial invoice was
issued;
(ii) the Account arose from the outright sale or
lease of goods or from the performance of services by
Borrower; such goods have been shipped to the account debtor
or debtor has taken title of such goods using other acceptable
accounting practices and a third party xxxx and hold agreement
has been established between the account debtor, Lender and
Borrower, or such services have been performed, and the
Account is evidenced by such invoices, shipping documents, or
other instruments ordinarily used in the trade as shall be
reasonably satisfactory to Lender; no return, rejection or
repossession has occurred and such goods and services have
been delivered.
(iii) the Account is not subject to any assignment,
claim, lien, or security interest, except in favor of Lender;
(iv) the Account is a valid and legally enforceable
obligation of the account debtor and is not subject to credit,
allowance, defense, offset, counterclaim or adjustment by the
account debtor, other than any discount allowed for prompt
payment;
(v) the Account arose in the ordinary course of
business of Borrower and no notice of the bankruptcy,
insolvency, failure, or suspension or termination of business
of the account debtor has been received by Borrower;
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(vi) the account debtor is not an affiliate of
Borrower nor a supplier (or an affiliate of a supplier) of
goods or services to Borrower;
(vii) the Account otherwise conforms to all
representations, warranties and other provisions of this
Agreement; and
(viii) Bank in its sole reasonable discretion has not
deemed the Account or account debtor unsatisfactory.
c. The definition of "Closing" set forth in Section 1(i) of
the Credit Agreement is deleted in its entirety and replaced by the following
definition:
"Closing" shall mean the closing which occurred on
April 18, 1997 in Chicago, Illinois, or the date of the
execution of the First Amendment, the Letter Amendment, the
Second Amendment, or the Third Amendment, in such locations as
the parties hereto mutually select for the closings.
d. The definition of "Commitment Letter" set forth in Section
1(k) of the Credit Agreement is deleted in its entirety and replaced by the
following definition:
"Commitment Letter" means the Commitment Letter dated
March 19, 1997, the Commitment Letter dated March 18, 1998,
and the Commitment Letter dated May 31, 1999.
e. The definition of "Notes" set forth in Section 1(z) of the
Credit Agreement is deleted in its entirety and replaced by the following
definition:
"Notes" mean the Line Note of Borrower payable to the
order of Lender, in the maximum principal amount of
$10,000,000.00, substantially in the form and substance of
Exhibit "B" which is attached to the First Amendment and made
a part hereof, as said Line Note has been renewed from time to
time, that certain Term Note of Borrower payable to the order
of Lender, in the original principal amount of $1,000,000.00,
substantially in the form and substance of Exhibit "C" which
is attached to the Credit Agreement and made a part hereof,
that certain Promissory Note of Borrower payable to the order
of Lender in the original principal amount of $3,375,000.00,
dated August 14, 1995, evidencing a real estate mortgage loan
made by Lender to Borrower, which is attached to the Credit
Agreement as Exhibit "D" and made a part hereof, and that
certain Promissory Note
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of Borrower payable to the order of Lender in the original
principal amount of $4,500,000.00, dated February 18, 1999,
evidencing a real estate mortgage loan made by Lender to
Borrower, which is attached to the Second Amendment as Exhibit
"D-1" and made a part hereof, and that certain Promissory Note
of Borrower payable to the order of Lender in the original
principal amount of $700,000.00, dated on or about May 27,
1999, evidencing a real estate mortgage loan made by Lender to
Borrower, which is attached to the Third Amendment as Exhibit
"E" and made a part hereof, all as further described in
Section II of this Agreement.
f. The definition of "Real Estate Mortgage Loan" set forth in
Section 0.xx. of the Credit Agreement is deleted in its entirety and replaced by
the following definition:
"Real Estate Mortgage Loan" means that certain
construction/term loan made by Lender to Borrower in the
principal amount of $3,375,000.00, as evidenced by a
Promissory Note in said amount dated August 14, 1995, which is
attached to the Credit Agreement as Exhibit "D" and made a
part hereof, for the purpose of constructing an
office/manufacturing facility, including leasehold
improvements in which the Borrower conducts its business, that
certain construction/term loan made by Lender to Borrower in
the principal amount of $4,500,000.00, as evidenced by a
Promissory Note in said amount dated February 18, 1999, which
is attached to the Second Amendment as Exhibit "D-1" and made
a part hereof, for the purpose of constructing a second
office/manufacturing facility, including leasehold
improvements, in which the Borrower will conduct its business,
and that certain term loan to be made by Lender to Borrower in
the principal amount of $700,000.00, as evidenced by a
Promissory Note in said amount to be dated on or about May 27,
1999, which is attached to the Third Amendment as Exhibit "E"
and made a part hereof, for the purpose of acquiring real
estate for the future expansion of the Borrower's business.
g. The definition of "Real Estate Mortgage Note" set forth in
Section 0.xx. of the Credit Agreement is deleted in its entirety and replaced by
the following definition:
"Real Estate Mortgage Note" means that certain Promissory Note
of Borrower payable to the order of Lender in the original
principal amount of $3,375,000.00, dated August 14, 1995,
evidencing the Real Estate Mortgage Loan which is attached to
the Credit Agreement as Exhibit "D" and made a part hereof,
that certain Promissory Note of
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Borrower payable to the order of Lender in the original
principal amount of $4,500,000.00, dated February 18, 1999,
evidencing the Real Estate Mortgage Loan which is attached to
the Second Amendment as Exhibit "D-1" and made a part hereof,
and that certain Promissory Note of Borrower payable to the
order of Lender in the original principal amount of
$700,000.00, dated on or about May 27, 1999, evidencing the
Real Estate Mortgage Loan which is attached to the Third
Amendment as Exhibit "E" and made a part hereof.
h. Section 2(I)(b) of the Credit Agreement is hereby deleted
in its entirety and replaced by the following:
b. The Borrowing Base shall be equal to the sum of
(i) eighty percent (80%) of the book value of Borrower's
domestic Eligible Accounts (ii) the lesser of: forty percent
(40%) of the total book value of raw materials on hand through
August 31, 1999, and twenty-five percent (25%) of the total
book value of raw materials on hand for each period
thereafter, OR $3,000,000.00, and (iii) eighty percent (80%)
of the book value of Borrower's foreign Eligible Accounts
backed by letters of credit, as set forth on the Borrowing
Base Certificate attached to the Third Amendment and made a
part hereof as Exhibit "A". Provided, however, that all raw
material inventory on hand in excess of one year old shall be
excluded entirely from the Borrowing Base calculations.
i. The description of the Collateral attached as Exhibit "E"
in Section 3 of the Credit Agreement is hereby deleted in its entirety and
replaced by that certain Exhibit "F" attached to this Third Amendment.
j. Sections 6a. and b. of the Credit Agreement are deleted in
their entirety and replaced by the following:
a. Deliver to Lender, within forty-five (45) days
after the end of each fiscal quarter, quarterly unaudited
financial statements (Form 10Q) concerning its business on a
consolidated and consolidating basis, prepared by the
Borrower's Authorized Representative, including income
statements, balance sheets and other accounting data as may be
reasonably requested by Lender, for the Borrower and for any
subsidiaries of Borrower; provided, however, that the
financial statements required for any subsidiary entities
shall not include the schedule of cash flows or the change in
shareholder equity statements.
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b. Deliver to Lender, within one hundred twenty (120)
days after the end of each fiscal year of Borrower, a balance
sheet and income statement prepared in accordance with
generally accepted accounting principles on an audited basis
by an independent certified public account, including
statements of financial condition, income, cash flows, and
changes in shareholders' equity for the Borrower and for any
subsidiaries of Borrower; provided, however, that the
financial statements required for any subsidiary entities
shall not include the schedule of cash flows and the change in
shareholder equity statements.
k. Section 6q. of the Credit Agreement is hereby deleted in
its entirety and replaced by the following:
q. Deliver to Lender, within thirty (30) days after
the end of each fiscal month of the Borrower, a report showing
a detailed aging of accounts receivable and a Borrowing Base
Certificate, all in form and substance satisfactory to Lender.
l. Section 6r. of the Credit Agreement is hereby deleted in
its entirety and replaced by the following:
r. Provide to Lender a Borrowing Base Certificate in
the form of Exhibit "A" prior to each Advance on the Line
Commitment and within thirty (30) days after the end of each
fiscal month, if there is an outstanding principal balance or
if any letters of credit have been issued under the Line Loan,
all in form and substance satisfactory to Lender. At each
submission made for the purpose of obtaining an Advance, the
Borrowing Base Certificate will be calculated based on the
Accounts and Inventory as of the most current applicable
fiscal month, and will be signed by an officer of the Borrower
or designee.
m. The Credit Agreement is hereby amended to add the following
subsections x., y., z., aa. and bb. to Section 6:
x. The Borrower shall be required to maintain minimum
revenues of not less than $8,500,000.00 during each fiscal
quarter period.
y. The Borrower shall be required to maintain an
EBITDA of not less than ($600,000.00) for the three-month
period ending May 31, 1999, $300,000.00 for the three-month
period ending
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August 31, 1999, $300,000.00 for the three-month period ending
November 30, 1999 and $1,000,000.00 for the three-month period
ending February 28, 2000. For purposes of this Agreement,
EBITDA shall be defined as Net Income plus Interest Expense
plus Tax expense plus depreciation plus amortization. For
purposes of calculating EBITDA, Net Income shall exclude any
net gains on the sale, conversion or other disposition of
capital assets, net gains on the acquisition, retirement, sale
or other disposition of capital stock and other securities of
the Borrower and its subsidiaries, net gains on the collection
of proceeds of life insurance policies, any write-up of any
asset, any other net gain or credit of an extraordinary
nature, all as determined in accordance with GAAP.
z. In the event that the total Advances outstanding
at any time under the Line Loan exceed the permitted Borrowing
Base, the Borrower shall be required to maintain a minimum
liquidity in an amount as established pursuant to the
provisions herein. In the event that an Advance will result in
the total principal amount outstanding under the Line Loan
being in excess of the most current Borrowing Base, the total
minimum liquidity required shall be equal to the difference
between the total outstanding balance of the Line Loan and the
most current Borrowing Base until such time as the Advances
under the Line Loan are reduced to an amount equal to or less
than the most current Borrowing Base. The Borrower shall be
required to compute the Borrowing Base according to the
provisions of Section 2Ib of this Agreement. From time to time
as may be necessary throughout the term of the Line Loan,
Lender shall have the right to place a "hold" on funds held in
a designated account of Borrower at NationsBank, N.A. up to
the amount necessary to establish and maintain the minimum
liquidity covenant required herein.
aa. Provide to the Lender copies of all invoices and
shipping/title transfer documentation upon request by the
Lender.
bb. Deposit and keep all operating revenues of the
Borrower in an account at NationsBank, N.A.
n. The covenants set forth in Section 7(i) of the Credit
Agreement are deleted in their entirety and replaced with the following
covenants:
Allow its Cash Flow Coverage Ratio to be less than
2.00:1.00. The Cash Flow Coverage Ratio shall be defined as:
EBITDA less
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cash taxes, less fifty percent (50%) of all capital
expenditures, less stock repurchases and dividends, all
divided by Interest Expense plus all Current Maturities of
Long Term Debt and Current Maturities of Capital Lease
Obligations. Borrower's compliance with this covenant shall be
measured quarterly on a rolling four quarter basis. At each
quarter end, the numerator will be determined based on the
previous four (4) fiscal quarters while the current maturities
of long term debt and capital lease obligations will be
determined based on the subject fiscal quarter end. The
Borrower shall not be required to be in compliance with this
covenant except for purposes related to funding the
$4,500,000.00 Real Estate Mortgage Loan. Further, if the
Borrower is in compliance with this covenant for two (2)
consecutive fiscal quarters, the Borrower shall be required to
maintain compliance with this covenant for all periods
subsequent to such compliance. In the event that the Borrower
must be in compliance with this covenant due to the fact it
achieved compliance for two consecutive fiscal quarters, the
Lender will no longer enforce compliance and measurement of
the minimum revenue, EBITDA and liquidity covenants described
in Sections 6x, y and z hereinabove. Until such time as the
Borrower is in full compliance with the Cash Flow Coverage
Ratio for two consecutive fiscal quarters, the Borrower shall
not be permitted to make any dividend payments or incur any
cash outflow for the repurchase of its capital stock without
the prior written consent of the Bank.
The Credit Agreement, as modified by the First Amendment, the Letter Amendment,
the Second Amendment and this Third Amendment shall remain in full force and
effect, shall conform fully with this Third Amendment, and shall apply with full
force and effect to the Loans described in the Credit Agreement.
1. FIELD EXAM AUDITS. During the term of this Third Amendment, the
Lender shall have the right to require asset field examinations if the Lender
deems it necessary, provided, however, that such examinations shall not be
required more than once in each fiscal quarter of the Borrower. The cost of such
examinations shall be paid by the Borrower, but shall not exceed $3,500.00 per
examination, unless the field examiners incur costs in excess of such amount due
to circumstances outside of the Lender's control.
2. PROCEDURES FOR MAKING REQUEST FOR ADVANCES. Until otherwise notified
in writing by Lender to Borrower, the Borrower shall send all requests for
Advances under the Line Note to the attention of the Commercial Banking
Department at the following address: 000 X. Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
(FL1-400-05-03), Xxxxx, Xxxxxxx 00000, facsimile (000) 000-0000.
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3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
restates, reaffirms, and where necessary updates, all representations and
warranties set forth in Section 8 of the Credit Agreement and elsewhere in the
Credit Agreement, as amended from time to time.
4. OTHER TERMS AND CONDITIONS. Except as set forth herein, all other
terms and conditions of the Credit Agreement and the First Amendment, the Letter
Amendment and the Second Amendment shall remain in full force and effect and
shall be binding upon the Lender and the Borrower pursuant to their terms, and
the Borrower and Lender hereby ratify and reaffirm all covenants, obligations,
terms, conditions and provisions under the Credit Agreement.
5. CONTROLLING AGREEMENT. It is understood by the parties hereto that
the terms, provisions, covenants, warranties and representations contained
herein shall supersede and replace in their entirety the terms, provisions,
covenants, warranties and representations set forth in that certain Third
Amendment To Credit Agreement dated as of the 31st day of May, 1999, and
executed by the Borrower and Lender on May 20, 1999 and delivered into escrow,
which instrument is hereby deemed to be null and void and without any force and
effect whatsoever.
IN WITNESS WHEREOF, Borrower and Lender have executed this Third
Amendment the day and year first above written.
Signed, sealed and delivered in the presence of: PLASMA-THERM, INC., a Florida corporation
("Borrower")
/s/ XXXXXXX X. XXXXX
--------------------------------------
Signature of Witness
XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------------- ------------------------------------------
Legibly Print Name of Witness Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
/s/ XXXXXXX X. XXXXX
-------------------------------------- (CORPORATE SEAL)
Signature of Witness
XXXXXXX X. XXXXX
--------------------------------------
Legibly Print Name of Witness
NATIONSBANK, N.A., a national banking
/s/ XXXXX X. XXXXX association, f/k/a NATIONSBANK, N.A. (SOUTH)
-------------------------------------- ("Lender")
Signature of Witness
XXXXX X. XXXXX By: /s/ SADAHRI X. XXXXX
-------------------------------------- ------------------------------------------
Legibly Print Name of Witness Sadahri X. Xxxxx
Vice President
/s/ XXXXX X. XXXXXX
-------------------------------------- (CORPORATE SEAL)
Signature of Witness
XXXXX X. XXXXXX
--------------------------------------
Legibly Print Name of Witness
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STATE OF ALABAMA )
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this 11th day of
June, 1999, by XXXXX X. XXXXXX, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[ ] personally known to me or [X] has produced FLORIDA DRIVER'S LICENSE as
identification.
My commission expires: 11/12/99 /s/ XXXXXXX X. XXXXX
-----------------------------------
Signature of Notary Public
(SEAL) XXXXXXX X. XXXXX
-----------------------------------
Legibly Print Name of Notary Public
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 10th day of
June, 1999, by SADAHRI X. XXXXX, as the Vice President of NATIONSBANK, N.A., a
national banking association, f/k/a NATIONSBANK, N.A. (SOUTH), on behalf of the
association. She is [X] personally known to me or [ ] has produced _____________
as identification.
My commission expires: JULY 26, 1999 /s/ XXXXX X. XXXXXX
-----------------------------------
Signature of Notary Public
(SEAL)
XXXXX X. XXXXXX
-----------------------------------
Legibly Print Name of Notary Public
EXHIBIT "A"
BORROWING BASE CERTIFICATE FORM
Page 1 of 2
NATIONSBANK, N.A. DATE: __________________
X.X. Xxx 00000
FL1-010-02-01
Xxxxx, Xxxxxxx 00000
Credit Agreement between us, the undersigned hereby certifies to you, as of the
above date, the following:
(A) Aggregate amount of domestic Accounts as of the applicable month end $
------------------------
(B) Less Ineligible Accounts (Accounts which do not meet the definition of
Eligible Accounts): $
------------------------
(C) Net Amount of Eligible domestic Accounts (A)-(B) $
------------------------
(D) 80% of Item (C) $
------------------------
(E) Foreign accounts less than 60 days old backed by letters of credit $
------------------------
(F) 80% of Item (E) $
------------------------
(G) The lesser of: 40% of raw materials inventory (excluding all raw
material inventory on hand in excess of one year old) through 8/31/99
and 25% thereafter, OR $3,000,000.00 $
------------------------
(H) Total items (D), (F) and (G) $
------------------------
(I) The lesser of $10,000,000 and Item (H) $
------------------------
(J) The aggregate unpaid principal Line Loan we now owe Lender as of the applicable
month end $
------------------------
(K) The aggregate amount of issued, outstanding Standby Letters of Credit
as of the applicable month end $
------------------------
(L) Total of unpaid principal Line Loan and issued Standby Letters of
Credit is as of the applicable month end $
------------------------
(M) Availability [(I)-(J)] [If Item (M) is negative, paydown of at least a
like amount is required or establishment of minimum liquidity of equal
amount, to Lender's satisfaction] $
------------------------
EXHIBIT "A"
BORROWING BASE CERTIFICATE FORM
Page 2 of 2
The undersigned hereby certifies, represents and warrants to NationsBank, N.A.,
a national banking association as follows:
1. All of the representations and warranties contained in the Credit
Agreement or in any other Loan Document are true and correct in all
material respects on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
2. No event has occurred, or would result from the Advance made in
connection herewith, that constitutes an Event of Default or a Default
that, with the giving of notice, the passage of time, or both would
constitute an Event of Default under the Credit Agreement or any other
Loan Document.
3. The description of Eligible Accounts and the values assigned thereto
are true and correct in all material respects.
4. The aggregate unpaid principal balance of the Line Loan does not exceed
the lesser of (i) the Line Commitment or (ii) the Borrowing Base,
unless adequate minimum liquidity has been established to Lender's
satisfaction.
Unless the context otherwise requires, all capital terms used in this
Certificate if not separately defined herein, shall have the meanings assigned
to them in the Credit Agreement
PLASMA-THERM, INC., a Florida corporation
By:
--------------------------------------------
Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
Date:
--------------------------------------------
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SECOND
AMENDMENT TO SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SECURITY AGREEMENT (the "Second Amendment"),
is executed this 31st day of May, 1999, by and between PLASMA-THERM, INC., a
Florida corporation whose address is 10050 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 (hereinafter called "Debtor") and NATIONSBANK, N.A., a national
banking association, f/k/a NationsBank, N.A. (South), whose address is 000 Xxxxx
Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter called the "Secured
Party").
W I T N E S S E T H:
WHEREAS, on April 18, 1997, the Debtor and the Secured Party executed
that certain Security Agreement (the "Security Agreement") to secure certain
loans made by the Secured Party to Debtor, including without limitation, the
revolving line of credit loan evidenced by that certain Line of Credit
Promissory Note in the amount of SEVEN MILLION AND NO/100 DOLLARS
($7,000,000.00), dated April 18, 1997, executed by the Debtor in favor of the
Secured Party, which loan is referred to in the Security Agreement, and in this
Amendment, as the "Line Loan".
WHEREAS, on March 25, 1998, the Debtor increased the credit limit of
the Line Loan to TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), and the
Secured Party and Debtor amended the Security Agreement pursuant to an Amendment
to Security Agreement dated March 25, 1998.
WHEREAS, on or about even date herewith, the Debtor desires to renew
the Line Loan, and the Secured Party is agreeable to such renewal subject to the
terms and provisions set forth in that certain Commitment Letter dated April 27,
1999, and the terms an provisions of this Second Amendment.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. AMENDMENTS TO SECURITY AGREEMENT. Section 1 of the Security
Agreement is deleted in its entirety and the following section is inserted in
lieu thereof:
SECURITY INTEREST. For value received, Debtor hereby grants
Secured Party a security interest (the "Security Interest") in
and to all of the following goods, instruments, accounts,
chattel paper, contract rights, and general intangibles,
whether now owned or hereafter acquired, and in all proceeds
and products thereof, in any form, including, without
limitation, proceeds of insurance policies from the loss
thereof (hereinafter called the "Collateral"):
1.1 ACCOUNTS. All accounts now owned or hereafter acquired by
Debtor, including but not limited to accounts receivable and
other rights to payment for goods sold or leased or for
services rendered.
1.2 EQUIPMENT. All equipment purchased with the proceeds of
the Term Loan including, without limitation, all parts,
accessories, attachments, additions and replacements to or
with respect to such equipment, as such equipment and other
items are now owned or hereafter acquired.
1.3 GOODS. All goods (except consumer goods, all of which
consumer goods are hereby specifically excluded from the term
"goods" as used in this Agreement), and all parts,
accessories, attachments, additions and replacements thereto,
including but not limited to all furniture, furnishings,
fixtures, leasehold improvements, inventory (including without
limitation goods held for sale or lease or to be furnished
under contracts of service, raw materials, work in process,
and materials to be used or consumed in Debtor's business and
all products thereof) and equipment, now owned or hereafter
acquired by Debtor or used in Debtor's business, wherever such
goods shall be located;
1.4 INSTRUMENTS. All instruments now owned or hereafter
acquired by Debtor;
1.5 CHATTEL PAPER. All chattel paper now owned or hereafter
acquired by Debtor;
1.6 GENERAL INTANGIBLES. All general intangibles now owned or
hereafter acquired by Debtor, including without limitation all
present and future: trade secrets and other proprietary
information; trademarks, service marks and business names and
the goodwill of the business relating thereto; copyrights and
copyright registrations (including, without limitation,
copyrights for computer programs) and all tangible property
embodying the copyrights; unpatented inventions (whether or
not patentable); patent applications and patents; license
agreements related to any of the foregoing and income
therefrom; books, records, computer tapes or disks, flow
diagrams, specification sheets, source codes, object codes and
other physical manifestations of the foregoing; the right to
xxx in Secured Party's own name for all past, present and
future infringements or violations of the foregoing, tax
refunds, and deposit accounts;
1.7 CONTRACT RIGHTS. All contract rights now owned or
hereafter acquired by Debtor;
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The definition of the "Line of Credit Note" set forth in Section 2.2 of the
Security Agreement is deleted in its entirety and replaced by the following
definition:
Renewal Line of Credit Promissory Note dated May
31st, 1999 in the original principal amount of
$10,000,000.00 (the "Line of Credit Note");
The Security Agreement, as modified by this Second Amendment, shall remain in
full force and effect, shall conform fully with this Second Amendment, and shall
apply with full force and effect to the renewal of the Line Loan described
herein.
2. REPRESENTATIONS AND WARRANTIES OF DEBTOR. The Debtor hereby
restates, reaffirms, and where necessary updates, all representations and
warranties set forth in Section 3 of the Security Agreement and elsewhere in the
Security Agreement, and hereby ratifies and reaffirms all obligations of the
Debtor under the Security Agreement.
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Second
Amendment the day and year first above written.
Signed, sealed and delivered in the presence of: PLASMA-THERM, INC., a Florida corporation
("Debtor")
/s/ XXXXXX X. XXXXXX
--------------------------------------
Signature of Witness
XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------------- ------------------------------------------
Legibly Print Name of Witness Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
/s/ X. XXXXXX XXXXXXXXX
-------------------------------------- (CORPORATE SEAL)
Signature of Witness
X. XXXXXX XXXXXXXXX
--------------------------------------
Legibly Print Name of Witness
NATIONSBANK, N.A., a national banking
/s/ XXXXX X. XXXXXXX association, f/k/a NATIONSBANK, N.A. (SOUTH)
-------------------------------------- ("Lender")
Signature of Witness
XXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXX, XX.
-------------------------------------- ------------------------------------------
Legibly Print Name of Witness Xxxxx X. Xxxxxx, Xx.
Senior Vice President
/s/ X. XXXXXX XXXXXXXXX
-------------------------------------- (CORPORATE SEAL)
Signature of Witness
X. XXXXXX XXXXXXXXX
--------------------------------------
Legibly Print Name of Witness
3
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by XXXXX X. XXXXXX, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[X] personally known to me or [ ] has produced
as identification.
My commission expires: 8-18-99 /s/ XXXXX X. XXXXXXX
---------- ------------------------------------
Signature of Notary Public
(SEAL) XXXXX X. XXXXXXX
------------------------------------
Legibly Print Name of Notary Public
(Commissioned: Xxxxx X. Xxxxxx)
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by XXXXX X. XXXXXX, XX., as Senior Vice President of NATIONSBANK,
N.A., a national banking association, f/k/a NATIONSBANK, N.A. (SOUTH), on behalf
of the association. He is [X] personally known to me or [ ] has produced
____________________________ as identification.
My commission expires: 2-5-2000 /s/ XXXXXXXX X. XXXXXX
---------- ------------------------------------
Signature of Notary Public
(SEAL)
XXXXXXXX X. XXXXXX
------------------------------------
Legibly Print Name of Notary Public
4
RATIFICATION AND REAFFIRMATION OF GUARANTY AGREEMENT
THIS RATIFICATION AND REAFFIRMATION OF GUARANTY AGREEMENT (the
"Ratification"), is executed as of the 31st day of May, 1999 and is effective as
of the 31st day of May, 1999, by and between MAGNETRAN, INC., a New Jersey
corporation ("Guarantor"), in favor of NATIONSBANK, N.A., a national banking
association, f/k/a NATIONSBANK, N.A. (SOUTH) ("Bank"), and its successors and
assigns.
W I T N E S S E T H:
WHEREAS, on or about March 25, 1998, the Guarantor executed that
certain Guaranty Agreement ("Guaranty"), wherein the Guarantor unconditionally
and irrevocably guaranteed to the Bank the payment and performance of that
certain Line of Credit Consolidation Promissory Note ("Note") in the amount of
$10,000,000.00.
WHEREAS, on or about even date herewith, the Bank has renewed the Note,
with the condition that the Guarantor ratify and reaffirm its continuing
obligations under the Guaranty.
WHEREAS, for and in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by all of the parties hereto, the parties hereby covenant and agree
as follows:
1. RATIFICATION AND REAFFIRMATION OF GUARANTY. The Guarantor hereby
ratifies and reaffirms all of its warranties, representations, covenants,
obligations, terms, and the conditions and provisions under the Guaranty, to
include all payment and performance obligations as specifically set forth in the
Guaranty, and the Guarantor agrees that the Guaranty shall remain in full force
and effect, shall conform fully with this Ratification and shall apply with full
force and effect to the Note as renewed on even date herewith and from time to
time hereafter.
IN WITNESS WHEREOF, Guarantor has executed this Ratification the day
and year first above written.
MAGNETRAN, INC., a New Jersey corporation
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx, Vice President
(CORPORATE SEAL)
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by XXXXX X. XXXXXX, as Vice President of MAGNETRAN, INC., a New
Jersey corporation, on behalf of the corporation. She [X] is personally known to
me or [ ] has produced ____________________________________ as identification.
My Commission Expires: 8-18-99 /s/ XXXXX X. XXXXXXX
-----------------------------------
Notary Public (SEAL)
XXXXX X. XXXXXXX
-----------------------------------
Legibly Print Name of Notary Public
(Commissioned: Xxxxx X. Xxxxxx)
2
RENEWAL
LINE OF CREDIT PROMISSORY NOTE
Charlotte, North Carolina
$10,000,000.00 Effective Date: May 31, 1999
FOR VALUE RECEIVED, the undersigned PLASMA-THERM, INC., a Florida
corporation (hereinafter called "Borrower") promises to pay to the order of
NATIONSBANK, N.A., a national banking association, f/k/a NationsBank, N.A.
(South) (hereinafter sometimes referred to as "Lender" and together with any
holder hereof called "Holder"), at 000 X. Xxxxxxx Xxxxxxxxx, 5th Floor
(FL1-400-05-03), Xxxxx, Xxxxxxx 00000, or at such other place as Holder may from
time to time designate in writing, the principal sum of TEN MILLION AND NO/100
DOLLARS ($10,000,000.00), or so much thereof as has been advanced hereunder,
together with interest on the unpaid balance of the principal (the "Loan") from
time to time outstanding from the date of each advance of principal at the rate
for each day equal to the "Variable Adjusted LIBOR Rate" (as hereinafter
defined) as determined by Lender and adjusted for reserves, deposit insurance
assessments and other regulatory costs, plus two hundred (200) basis points, per
annum. In no event, however, shall the interest rate be greater than the maximum
rate of interest allowed to be contracted for by applicable law. The term
"Variable Adjusted LIBOR Rate" means the interest rate per annum determined in
accordance with the following definitions and procedures:
a. The "LIBOR Rate" for a particular day shall be the interest rate as
published in the final New York edition of THE WALL STREET JOURNAL as the
appropriate London InterBank Offered Rate (LIBOR) for such particular day for a
non-domestic certificate of deposit in an amount approximately equal to the
amount of the Note having a term of thirty (30) days, or if THE WALL STREET
JOURNAL is not published on any such date, then as published therein for the
immediately preceding business day provided, however, that in the event that THE
WALL STREET JOURNAL is not published, or does not report the London InterBank
Offered Rate, for three consecutive business days, then the "LIBOR Rate" shall
be deemed to be the interest rate which it would be necessary for Lender to pay
in connection with a sale by Lender, if possible, of a certificate of deposit
for a non-domestic deposit in an amount approximately equal to the amount of the
Note and having a term of thirty (30) days.
b. The "Variable Adjusted LIBOR Rate" for a particular day shall be
equal to the quotient of (1) the LIBOR Rate divided by (2) the difference of (a)
one minus (b) the maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable from time to time to any
member bank of the Federal Reserve System, in respect to Eurocurrency
liabilities as specified in Regulation D (or any successor category of
liabilities under Regulation D). The computation of the Variable Adjusted LIBOR
Rate shall also include such adjustments as may be necessary in respect to
impositions on Lender for Federal Deposit Insurance Corporation insurance and
other insurance, fees, assessments and surcharges which occur because of
Lender's sale of a certificate of deposit which would establish the LIBOR Rate
or for insuring time deposits.
c. The LIBOR Rate used in determining the Variable Adjusted LIBOR Rate
for a particular day shall be the LIBOR Rate for such day if the interest rate
is published in The Wall Street Journal as specified above, and otherwise shall
be the LIBOR Rate which is two "business days" prior to the date of
determination, or if such day is not a business day, then the next preceding
business day.
d. A "business day" for purposes of determination of Lender's Variable
Adjusted LIBOR Rate shall mean any day on which Lender is open in Charlotte,
North Carolina for the transaction of domestic and foreign exchange business.
Each determination by Lender of the Variable Adjusted LIBOR Rate shall, in the
absence of manifest error, be conclusive and binding.
Interest owing under this Note shall be computed on the basis of a
360-day year.
Principal and interest shall be due and payable as follows:
a. Accrued interest only, as stated above, shall be payable
monthly commencing on the last day of June, 1999, and continuing on the last day
of each month thereafter until May 19, 2000, at which time all outstanding
indebtedness, whether principal, accrued interest or otherwise, shall be due and
payable in full.
b. The principal amount evidenced hereby may be borrowed (and
to the extent any principal amount advanced hereunder is repaid by Borrower,
such sum may be borrowed again) prior to May 19, 2000, but only in accordance
with the terms of that Credit Agreement dated April 18, 1997, as amended on
March 25, 1998, December 8, 1998 (by letter agreement), February 18, 1999 and on
even date herewith, and only if this Note is not in default as hereinafter
defined. At no time, however, shall the principal balance outstanding hereunder
exceed TEN MILLION AND NO/100 DOLLARS ($10,000,000.00).
Borrower may prepay all or part of the principal balance at any time
without penalty. Such prepayment shall be accompanied by payment of any unpaid
interest accrued to the time of such prepayment. All payments made hereunder
shall at Holder's option first be applied to late charges, then to accrued
interest, then to principal.
Permitted partial prepayments shall not affect or vary the duty of
Borrower to pay all obligations when due, and they shall not affect or impair
the right of Holder to pursue all remedies available to it hereunder, under the
security instruments securing this indebtedness, or under any other loan
documents or guaranty executed in connection herewith.
If any event of default set forth in this Note or in any of the Loan
Documents (as defined herein) shall occur, or in the event Lender has, in
accordance with the terms of the Note or the Loan Documents, made a demand for
repayment of the indebtedness evidenced by this Note and the Loan Documents,
Lender, at its option, may notify Borrower that its commitment to lend under
this line
2
of credit is terminated and Lender shall be relieved of all obligations to lend
any further sums thereafter to Borrower.
This Note is secured by a certain Security Agreement dated April 18,
1997, as amended on March 25, 1998 and on even date herewith which, together
with UCC-1 Financing Statements, this Note, the Credit Agreement, as amended on
March 25, 1998, December 8, 1998 (by letter agreement), February 18, 1999, and
on even date herewith, the Guaranty Agreement by Magnetran, Inc., dated March
25, 1998, as ratified and reaffirmed on even date herewith, and all other
agreements, instruments and documents delivered in connection therewith and/or
herewith, are hereinafter sometimes referred to as the "Loan Documents."
This Note and the Loan Documents are to be governed by and construed
under the laws of the State of Florida and of the United States of America, and
the rules and regulations promulgated under the authority thereof. It is the
intent of this Note that such laws shall be interpreted in such a manner that
the maximum rate of interest allowed to be contracted for by applicable law as
changed from time to time which is applicable to this Note (hereinafter called
the "Maximum Rate") be as great as possible. The interest due hereunder is being
charged pursuant to the provisions of The Florida Banking Code (as defined by
statute), and Chapter 687 FLORIDA STATUTES. In the event that any law, rule or
regulation of the United States of America or the State of Florida, as changed
from time to time, allows interest to be contracted for at a rate that is
greater than the rate permitted by The Florida Banking Code (as defined by
statute), and Chapter 687, FLORIDA STATUTES, then such law, rule or regulation
shall apply. References to laws, statutes, rules and regulations in this Note
refer to such as amended from time to time.
In the event that any payment of principal or interest is not made
within ten (10) days after the same become due hereunder, it is hereby agreed
that Holder shall have the option of collecting a late charge equal to four
percent (4%) of the amount of each such delinquent payment. Said late charge
and/or interest shall be immediately due and payable in full on demand by
Holder.
In no event shall Holder have the right to charge or collect, nor shall
Borrower be required or obligated to pay, interest or payments in the nature of
interest, which would result in interest being charged or collected at a rate in
excess of the Maximum Rate. In the event that any payment which is interest or
in the nature of interest is made by Borrower or received by Holder which would
result in the rate of interest being charged or collected by Holder being in
excess of the Maximum Rate, then the portion of any such payment which causes
the rate of interest being charged or collected by Holder to exceed the Maximum
Rate (hereinafter called the "excess sum") shall be credited as a payment of
principal. If Borrower notifies Holder in writing that Borrower elects to have
such excess sum returned to Borrower, such excess sum shall be returned to
Borrower. In the event that any such overcharge is discovered after this Note
has been paid in full, then the amount of such excess sum shall be returned to
Borrower together with interest thereon from the date such excess sum was paid
or collected at the same rate as was due Holder during such period under the
terms of this Note. All excess sums credited to principal shall be credited as
of the date paid to Holder. It is recognized by Borrower that the Maximum Rate
may vary from time to time, and that from time
3
to time the Maximum Rate may be uncertain. Therefore, Holder may seek judicial
determination of the applicable rate of interest. In such event, the withholding
of credit to principal or the withholding of payment to Borrower of any proposed
excess sum during the period of judicial determination (including all appeals)
shall not be deemed a breach of the obligations of Holder hereunder or of
applicable law. It is the intent of Holder to conform strictly to the
limitations of applicable laws governing the charging and collection of interest
as changed from time to time.
The "Default Interest Rate" shall be a rate equal to three percent (3%)
above the rate of interest required to be paid by the terms of this Note.
Holder shall have the optional right to declare the amount of the total
unpaid balance hereof to be due and forthwith payable in advance of the maturity
date of any sum due or installment, as fixed herein, upon the occurrence of an
event of default. An event of default shall be deemed to occur under this Note
upon the failure of Borrower to pay, within fifteen (15) days after the same
become due, any of the installments of interest or principal, or other sums due
hereunder, or upon the occurrence of any other default under or failure to
perform by any party (other than Holder) in accordance with any of the terms and
conditions of this Note within thirty (30) days after notice of such default or
failure from Holder or upon the occurrence of any default under or failure to
perform by any party (other than Holder) in accordance with any of the terms and
conditions of any of the Loan Documents after the expiration of any applicable
grace period, or upon the default under or the failure of Borrower to perform in
accordance with any and all notes, obligations, instruments or documents between
Borrower and Lender after any applicable grace period (including but not limited
to that certain Term Promissory Note by Borrower in favor of Lender in the
principal amount of $1,000,000.00 dated April 18, 1997, that certain Promissory
Note by Borrower in favor of Lender in the original principal amount of
$3,375,000.00 dated August 14, 1995, that certain Promissory Note by Borrower in
favor of Lender in the original principal amount of $4,500,000.00 dated February
18, 1999, and that certain Promissory Note by Borrower in favor of Lender in the
original principal amount of approximately $700,000.00 dated on or about May
27, 1999). Upon exercise of any of these options by Holder, the entire unpaid
principal balance shall bear interest at the "Default Interest Rate." In
addition to the rights described in this paragraph, Holder shall have the right
to exercise all other rights or remedies provided by law or at equity or as
provided in any of the Loan Documents and shall specifically have the right to
recover all damages resulting from such default including, without limitation,
the right to recover the payment of all amounts owing to Holder. Exercise of any
of these options shall be without any additional notice to Borrower, notice of
such exercise being hereby expressly waived.
Time is of the essence hereunder. In the event that this Note is
collected by law or through attorneys at law, or under advice therefrom,
Borrower and any other person liable for payment hereof hereby, severally and
jointly, agree to pay all costs of collection, including reasonable
out-of-pocket attorneys' fees and costs (including charges for paralegals and
others working under the direction or supervision of Holder's attorneys) and all
sales or use taxes thereon, whether or not suit is brought, and whether incurred
in connection with collection, trial, appeal, bankruptcy or other creditors'
proceedings or otherwise, and, if Holder's attorneys shall include employees of
Holder or
4
of any person controlling, controlled by or under common control with Holder,
such reasonable attorney's fees shall include costs allocated by Holder's or
such person's internal legal department.
Borrower authorizes Holder, when payment is due, to set off for any
payment of principal or interest past due hereunder for the amount of such
payment of principal or interest. Exercise of this right shall be optional with
Holder and the provisions of this paragraph shall not be construed as releasing
Borrower from the obligation to make payments of principal or interest according
to the terms hereof.
The remedies of Holder as provided herein and in the Loan Documents
shall be cumulative and concurrent, and may be pursued singularly, successively,
or together, at the sole discretion of Holder. No act of omission or commission
of Holder, including specifically any failure to exercise any right, remedy or
recourse, shall be deemed to be a waiver or release of the same, such waiver or
release to be effected only through a written document executed by Holder and
then only to the extent specifically recited therein. A waiver or release with
reference to any one event shall not be construed as continuing, as a bar to, or
as a waiver or release of, any subsequent right, remedy or recourse as to a
subsequent event.
All persons (including corporations) now or at any time liable whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives, successors and assigns,
respectively, hereby (a) expressly waive any presentment, demand for payment,
notice of dishonor, protest, notice of nonpayment or protest, and diligence in
collection; (b) consent that Holder may, from time to time and without notice to
them or demand, (i) extend, rearrange, renew or postpone any or all payments
and/or (ii) release, exchange, add to or substitute all or any part of the
collateral for this Note, without in any way modifying, altering, releasing,
affecting or limiting their respective liability or the lien of any security
instrument; (c) agree that Holder, in order to enforce payment of this Note
against them shall not be required first to institute any suit or to exhaust any
of its remedies against Borrower or any other person or party or to attempt to
realize on the collateral for this Note.
This Note is a renewal of that certain Line of Credit Consolidation
Promissory Note dated March 25, 1998, given by the Borrower to the Lender, in
the original principal amount of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00), secured by the Loan Documents, as same may be amended on even
date herewith. In the event of any conflict between the terms and provisions of
this Note and the terms and provisions of the above-referenced note, the terms
and provisions of this Note shall govern.
ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT
5
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR
THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY
OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO
WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT OR IF THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN
THE COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED, AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90
DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A
SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP
TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. /section/ 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT
THE RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
6
Borrower acknowledges that the above paragraphs have been expressly
bargained for by Holder as part of the Loan evidenced hereby and that, but for
Borrower's agreement and the agreement of any other person liable for payment
hereof thereto, Holder would not have extended the Loan for the term and with
the interest rate provided herein.
If more than one party shall execute this Note, the term "Borrower", as
used herein, shall mean all parties signing this Note and each of them, who
shall be jointly and severally obligated hereunder. In this Note, whenever the
context so requires, the neuter gender includes the feminine and/or masculine,
as the case may be and the singular number includes the plural.
Borrower has (i) begun analyzing the operations of Borrower and its
subsidiaries and affiliates that could be adversely affected by failure to
become Year 2000 compliant (that is, that computer applications, embedded
microchips and other systems will be able to perform date-sensitive functions
prior to and after December 31, 1999); and (ii) developed a plan for becoming
Year 2000 compliant in a timely manner, the implementation of which is on
schedule in all material respects. Borrower reasonably believes that it will
become Year 2000 compliant for its operations and those of its subsidiaries and
affiliates on a timely basis except to the extent that a failure to do so could
not reasonably be expected to have a material adverse effect upon the financial
condition of Borrower. Borrower reasonably believes any suppliers and vendors
that are material to the operations of Borrower or its subsidiaries and
affiliates will be Year 2000 compliant for their own computer applications
except to the extent that a failure to do so could not reasonably be expected to
have a material adverse effect upon the financial condition of Borrower.
Borrower will promptly notify Lender in the event Borrower determines that any
computer application which is material to the operations of Borrower, its
subsidiaries or any of its material vendors or suppliers will not be fully Year
2000 compliant on a timely basis, except to the extent that such failure could
not reasonably be expected to have a material adverse effect upon the financial
condition of Borrower.
IN WITNESS WHEREOF Borrower has caused this Note to be executed in its
name on the day and year first above written.
PLASMA-THERM, INC., a Florida corporation
("Borrower")
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
(CORPORATE SEAL)
7
STATE OF NORTH CAROLINA )
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 20th day of
May, 1999, by XXXXX X. XXXXXX, as Vice President and Chief Financial Officer of
PLASMA-THERM, INC., a Florida corporation, on behalf of the corporation. She is
[X] personally known to me or [ ] has produced _________________________________
as identification.
My commission expires: 8-18-99 /s/ XXXXX X. XXXXXXX
----------- -----------------------------------
Signature of Notary Public
(SEAL)
XXXXX X. XXXXXXX
-----------------------------------
Legibly Print Name of Notary Public
(Commissioned: Xxxxx X. Xxxxxx)
8