ENVIRONMENTAL INDEMNITY AGREEMENT
This Agreement, which is dated as of August 14, 1995, is
executed by PLASMA-THERM, INC., a Florida corporation
("Borrower") as a condition to, and to induce NationsBank of
Florida, N.A., a national banking association ("Lender") to
make, a loan (the "Loan") to Borrower evidenced or to be
evidenced by a Promissory Note of even date herewith made by
Borrower payable to the order of Lender in the principal face
amount of $3,375,000.00, which Loan is secured or to be
secured by a first Mortgage, Assignment, Security Agreement
and Financing Statement (the "Mortgage") of even date herewith
encumbering certain real and personal property as therein
described (collectively, the "Property") including the land
described in Exhibit A which is attached hereto and made a
part hereof. The term "Loan Documents" is used herein as
defined in the Mortgage. This Agreement is one of the Loan
Documents.
1. Certain Definitions. As used in this Agreement:
(a) "Environmental Claim" means any investigative,
enforcement, cleanup, removal, containment, remedial or
other private or governmental or regulatory action at any
time threatened, instituted or completed pursuant to any
applicable Environmental Requirement, against Borrower or
against or with respect to the Property or any condition,
use or activity on the Property (including any such
action against Lender), and any claim at any time
threatened or made by any person against Borrower or
against or with respect to the Property or any condition,
use or activity on the Property (including any such claim
against Lender), relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or
in any way arising in connection with any Hazardous
Material or any Environmental Requirement.
(b) "Environmental Requirement" means any
Environmental Law, agreement or restriction (including
but not limited to any condition or requirement imposed
by any insurance or surety company), as the same now
exists or may be changed or amended or come into effect
in the future, which pertains to health, safety, any
Hazardous Material, or the environment, including but not
limited to ground or air or water or noise pollution or
contamination, and underground or aboveground tanks.
(c) "Hazardous Material" means any substance,
whether solid, liquid or gaseous which is listed, defined
or regulated as a "hazardous substance", "hazardous
waste" or "solid waste", or pesticide, or otherwise
classified as hazardous or toxic, in or pursuant to any
Environmental Requirement; or which is or contains
asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, explosive or radioactive
material, or motor fuel or other petroleum hydrocarbons;
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Environmental Indemnity Agreement
or which causes or poses a threat to cause a
contamination or nuisance on the Property or any adjacent
property or a hazard to the environment or to the health
or safety of persons on the Property.
(d) "Environmental Law" means any federal, state or
local law, statute, ordinance, code, rule, regulation,
license, authorization, decision, order, injunction,
decree, or rule of common law, and any judicial or agency
interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the
environment (including but not limited to ground or air
or water or noise pollution or contamination, and
underground or above ground tanks) and shall include
without limitation, the Solid Waste Disposal Act, 42
U.S.C. Section 6901 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization
Act of 1986 ("XXXX"); the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. Section
1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401
et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq.; the Florida Resource
Recovery and Management Act, The Water Quality Assurance
Act of 1983, The Florida Resource Conservation and
Recovery Act, the Florida Air and Water Pollution Control
Act, The Florida Safe Drinking Water Act, The Pollution
Spill Prevention and Control Act and any other local,
state or federal environmental statutes, and all rules,
regulations, orders and decrees now or hereafter
promulgated under any of the foregoing, as any of the
foregoing now exist or may be changed or amended or come
into effect in the future.
(e) "On" or "on", when used with respect to the
Property or any property adjacent to the Property, means
"on, in, under, above or about".
2. Representations and Warranties. Borrower, after due
inquiry and investigation in accordance with good commercial
or customary practices, hereby represents and warrants to
Lender, without regard to whether Lender has or hereafter
obtains any knowledge or report of the environmental condition
of the Property, except as to that certain Environmental Site
Assessment prepared by Atlanta Testing & Engineering, Inc.
dated March 8, 1995, which report has been furnished to
Lender, as follows:
(a) During the period of Borrower's ownership of
the Property, the Property has not been used for
industrial or manufacturing purposes, for landfill,
dumping or other waste disposal activities or operations,
for generation, storage, use, sale, treatment,
processing, recycling or disposal of any Hazardous
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Environmental Indemnity Agreement 2
Material, for underground or aboveground storage tanks,
or for any other use that could give rise to the release
of any Hazardous Material on the Property; to the best of
Borrower's knowledge, no such use of the Property
occurred at any time prior to the period of Borrower's
ownership of the Property; and to the best of Borrower's
knowledge, no such use on any adjacent property occurred
at any time prior to the date hereof;
(b) to the best of Borrower's knowledge, there is
no Hazardous Material, storage tank (or similar vessel)
whether underground or otherwise, sump or well currently
on the Property;
(c) Borrower has received no notice and has no
knowledge of any Environmental Claim regarding the
Property or any adjacent property;
(d) to the best of Borrower's knowledge, the
present conditions, uses and activities on the Property
do not violate any Environmental Requirement and the use
of the Property which Borrower (and each tenant and
subtenant, if any) makes and intends to make of the
Property complies and will comply with all applicable
Environmental Requirements; and neither Borrower, nor to
Borrower's knowledge, any tenant or subtenant, has
obtained or is required to obtain any permit or other
authorization to construct, occupy, operate, use or
conduct any activity on any of the Property by reason of
any Environmental Requirement;
(e) to the best of Borrower's knowledge, the
Property does not appear on the National Priorities List
or any other list or database of properties maintained by
any local, state or federal agency or department showing
properties which are known to contain or which are
suspected of containing a Hazardous Material; and
(f) to the best of Borrower's knowledge, Borrower
has never applied for and been denied environmental
impairment liability insurance coverage relating to the
Property.
For purposes of this Agreement, the phrase "to the best of
Borrower's knowledge" shall be deemed to mean the actual
knowledge or present recollection of the following current
officers of Borrower: Xxxxxx X. Xxxxxxxxx, Xxxxx X.
XxXxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxx.
3. Violations. Borrower will not cause, commit, permit
or allow to continue (i) any violation of any Environmental
Requirement by (A) Borrower or (B) by or with respect to the
Property or any use of or condition or activity on the
Property, or (ii) the attachment of any environmental lien to
the Property. Borrower hereby discloses to Lender that in the
course of conducting Borrower's business upon the Property,
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Environmental Indemnity Agreement 3
Borrower will use various chemicals in its manufacturing and
assembly processes, some of which may constitute a Hazardous
Material, such as by way of example, chlorine gas. Lender
hereby recognizes that such chemicals may be used in the
ordinary course of Borrower's business operations upon the
Property. Provided, however, that any such use, handling and
storage of Hazardous Material must be in compliance with all
Environmental Requirements and Environmental Laws, and shall
not constitute a violation of such Environmental Requirements
and Environmental Laws or this Agreement. Borrower will not
place, install, dispose of or release, or cause, permit, or
allow the placing, installation, disposal, spilling, leaking,
dumping or release of, any Hazardous Material or storage tank
(or similar vessel) on the Property in violation of any
Environmental Requirements or Environmental Laws and will keep
the Property free of Hazardous Material, except for such
material used in the ordinary course of Borrower's business
operations upon the Property in compliance with Environmental
Laws and Environmental Requirements.
4. Notice to Lender. Borrower shall promptly deliver
to Lender a copy of each report pertaining to the Property or
to Borrower prepared by or on behalf of Borrower pursuant to
any Environmental Requirement or investigation of compliance
therewith. Borrower shall immediately advise Lender in
writing of any Environmental Claim or of the discovery of any
Hazardous Material on the Property, as soon as Borrower first
obtains knowledge thereof, including a full description of the
nature and extent of the Environmental Claim and/or Hazardous
Material and all relevant circumstances.
5. Site Assessments and Information. Except as to
Hazardous Material lawfully used by the Borrower in the
ordinary course of Borrower's business operations on the
Property, if Lender shall ever have reason to believe that any
other Hazardous Material affects the Property, or if required
by any governmental law or regulation, or if any Environmental
Claim is made or threatened, or if a default shall have
occurred under the Loan Documents, or if the lien of the
Mortgage is foreclosed upon or upon a conveyance by deed in
lieu of foreclosure wherein possession of the Property has
been given to and accepted by the purchaser or grantee, if
requested by Lender, Borrower will at its expense provide to
Lender from time to time, in each case within 45 days after
Lender's request, an Environmental Assessment (defined below)
made after the date of Lender's request. As used in this
Agreement, the term "Environmental Assessment" means a report
(including all drafts thereof) of an environmental assessment
of the Property of such scope (including but not limited to
the taking of soil borings and air and groundwater samples and
other above and below ground testing) as Lender may request,
by a consulting firm acceptable to Lender and made in
accordance with Lender's established guidelines. Borrower
will cooperate with each consulting firm making any such
Environmental Assessment and will supply to the consulting
firm, from time to time and promptly on request, all
information available to Borrower to facilitate the completion
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Environmental Indemnity Agreement 4
of the Environmental Assessment. If Borrower fails to furnish
Lender within ten (10) days after Lender's request with a copy
of an agreement with an acceptable environmental consulting
firm to provide such Environmental Assessment, or if Borrower
fails to furnish to Lender such Environmental Assessment
within forty-five (45) days after Lender's request, Lender may
cause any such Environmental Assessment to be made at
Borrower's expense and risk. Lender and its designees are
hereby granted access to the Property at any time or times,
upon reasonable notice (which may be written or oral), and a
license which is coupled with an interest and irrevocable, to
make or cause to be made such Environmental Assessments.
Lender may disclose to interested parties any information
Lender ever has about the environmental condition or
compliance of the Property, but shall be under no duty to
disclose any such information except as may be required by
law. Lender shall be under no duty to make any Environmental
Assessment of the Property, and in no event shall any such
Environmental Assessment by Lender be or give rise to a
representation that any Hazardous Material is or is not
present on the Property, or that there has been or shall be
compliance with any Environmental Requirement, nor shall
Borrower or any other person be entitled to rely on any
Environmental Assessment made by Lender or at Lender's
request. Lender owes no duty of care to protect Borrower or
any other person against, or to inform them of, any Hazardous
Material or other adverse condition affecting the Property.
In the event Lender causes an Environmental Assessment of the
Property to be conducted, Lender agrees to provide a copy of
such Environmental Assessment to Borrower, upon Borrower's
request.
6. Remedial Actions.
(a) If any Hazardous Material is discovered on the
Property at any time and regardless of the cause, i)
Borrower shall solely under Borrower's name comply with
all applicable Environmental Requirements to promptly,
and at Borrower's sole risk and expense, remove, treat,
and dispose of the Hazardous Material or if such action
is prohibited by any Environmental Requirement, take
whatever action is required by any Environmental
Requirement, in addition to taking such other action as
is necessary to have the full use and benefit of the
Property as contemplated by the Loan Documents, and
provide Lender with satisfactory evidence thereof; and
ii) if requested by Lender, provide to Lender within 30
days of Lender's request a bond, letter of credit or
other financial assurance evidencing to Lender's
satisfaction that all necessary funds are readily
available to pay the costs and expenses of the actions
required by clause (i) preceding and to discharge any
assessments or liens established against the Property as
a result of the presence of the Hazardous Material on the
Property. Within 15 days after completion of such
remedial actions, Borrower shall obtain and deliver to
Lender an Environmental Assessment of the Property made
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Environmental Indemnity Agreement 5
after such completion and confirming to Lender's
satisfaction that all required remedial action as stated
above has been taken and successfully completed and that
there is no evidence or suspicion of any contamination or
risk of contamination on the Property or any adjacent
property, or of violation of any Environmental
Requirement, with respect to any such Hazardous Material.
(b) Lender may, but shall never be obligated to,
remove or cause the removal of any Hazardous Material
from the Property (or if removal is prohibited by any
Environmental Requirement, take or cause the taking of
such other action as is required by any Environmental
Requirement) if Borrower fails to promptly commence such
remedial actions following discovery and thereafter
diligently prosecute the same to the satisfaction of
Lender (without limitation of Lender's rights to declare
a default under any of the Loan Documents and to exercise
all rights and remedies available by reason thereof); and
Lender and its designees are hereby granted access to the
Property at any time or times, upon reasonable notice
(which may be written or oral), and a license which is
coupled with an interest and irrevocable, to remove or
cause such removal or to take or cause the taking of any
such other action.
7. Indemnity.
(a) Borrower hereby agrees to protect, indemnify
and hold i) Lender; ii) any persons or entities owned or
controlled by, owning or controlling, or under common
control or affiliated with Lender; iii) any participants
in the Loan; iv) the directors, officers, partners,
employees and agents of Lender, and/or such persons or
entities; and v) the heirs, personal representatives,
successors and assigns of each of the foregoing persons
or entities (each an "Indemnified Party") harmless from
and against, and, if and to the extent paid, reimburse
them on demand for, any and all Environmental Damages (as
hereinafter defined). Without limitation, the foregoing
indemnity shall apply to each Indemnified Party with
respect to Environmental Damages which in whole or in
part are caused by or arise out of the negligence of such
(and/or any other) Indemnified Party. However, such
indemnity shall not apply to a particular Indemnified
Party to the extent that the subject of the
indemnification is caused by or arises out of the
negligence or willful misconduct of that particular
Indemnified Party. Upon demand by Lender, Borrower shall
diligently defend any Environmental Claim which affects
the Property or is made or commenced against Lender,
whether alone or together with Borrower or any other
person, all at Borrower's own cost and expense and by
counsel to be approved by Lender in the exercise of its
reasonable judgment. In the alternative, at any time
Lender may elect to conduct its own defense through
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Environmental Indemnity Agreement 6
counsel selected by Lender and at the cost and expense of
Borrower.
(b) As used in this Agreement, the term
"Environmental Damages" means all claims, demands,
liabilities (including strict liability), losses, damages
(including consequential damages), causes of action,
judgments, penalties, fines, costs and expenses
(including fees, costs and expenses of attorneys,
paralegals, consultants, contractors, experts and
laboratories), of any and every kind or character,
contingent or otherwise, matured or unmatured, known or
unknown, foreseeable or unforeseeable, made, incurred,
suffered, brought, or imposed at any time and from time
to time, whether before or after the Transition Date (as
hereinafter defined) and arising in whole or in part
from:
(1) The presence of any Hazardous Material on
the Property, or any escape, seepage, leakage,
spillage, emission, release, discharge or
disposal of any Hazardous Material on or from
the Property, or the migration or release or
threatened migration or release of any
Hazardous Material to, from or through the
Property, on or before the Transition Date; or
(2) any act, omission, event or circumstance
existing or occurring in connection with the
handling, treatment, containment, removal,
storage, decontamination, clean-up, transport
or disposal of any Hazardous Material which is
at any time on or before the Transition Date
present on the Property; or
(3) the breach of any representation,
warranty, covenant or agreement contained in
this Agreement because of any event or
condition occurring or existing on or before
the Transition Date; or
(4) any violation on or before the Transition
Date, of any Environmental Requirement in
effect on or before the Transition Date,
regardless of whether any act, omission, event
or circumstance giving rise to the violation
constituted a violation at the time of the
occurrence or inception of such act, omission,
event or circumstance; or
(5) any Environmental Claim, or the filing or
imposition of any environmental lien against
the Property, because of, resulting from, in
connection with, or arising out of any of the
matters referred to in subparagraphs (1)
through (4) preceding;
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Environmental Indemnity Agreement 7
and regardless of whether any of the foregoing was caused
by Borrower or Borrower's tenant or subtenant, or a prior
owner of the Property or its tenant or subtenant, or any
third party, including but not limited to i) injury or
damage to any person, property or natural resource
occurring on or off of the Property, including but not
limited to the cost of demolition and rebuilding of any
improvements on real property; ii) the investigation or
remediation of any such Hazardous Material or violation
of Environmental Requirement, including but not limited
to the preparation of any feasibility studies or reports
and the performance of any cleanup, remediation, removal,
response, abatement, containment, closure, restoration,
monitoring or similar work required by any Environmental
Requirement or necessary to have full use and benefit of
the Property as contemplated by the Loan Documents
(including any of the same in connection with any
foreclosure action or transfer in lieu thereof); iii) all
liability to pay or indemnify any person or governmental
authority for costs expended in connection with any of
the foregoing; iv) the investigation and defense of any
claim, whether or not such claim is ultimately defeated;
and v) the settlement of any claim or judgment.
Provided, however, that nothing contained in this
subsection (b) shall be construed to be a prohibition of
the lawful use by Borrower of Hazardous Material in the
ordinary course of Borrower's business operations on the
Property in compliance with Environmental Requirements
and Environmental Laws.
(c) As used in this Agreement, the term "Transition
Date" means the earlier of the following two dates: i)
the date on which the indebtedness and obligations
secured by the Mortgage have been paid and performed in
full and the Mortgage has been released; or ii) the date
on which the lien of the Mortgage is fully and finally
foreclosed or a conveyance by deed in lieu of such
foreclosure is fully and finally effective and possession
of the Property has been given to and accepted by the
purchaser or grantee free of occupancy and claims to
occupancy by Borrower and Borrower's heirs, devisees,
representatives, successors and assigns; provided that,
if such payment, performance, release, foreclosure or
conveyance is challenged, in bankruptcy proceedings or
otherwise, the Transition Date shall be deemed not to
have occurred until such challenge is validly released,
dismissed with prejudice or otherwise barred by law from
further assertion.
8. Consideration; Survival; Cumulative Rights.
Borrower acknowledges that Lender has relied and will rely on
the representations, warranties, covenants and agreements
herein in closing and funding the Loan and that the execution
and delivery of this Agreement is an essential condition but
for which Lender would not close or fund the Loan. The
representations, warranties, covenants and agreements in this
Agreement shall be binding upon Borrower and Borrower's
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Environmental Indemnity Agreement 8
successors, assigns and legal representatives and shall inure
to the benefit of Lender and its successors, assigns and legal
representatives and participants in the Loan; and shall not
terminate upon the foreclosure of the Mortgage or conveyance
in lieu of foreclosure, the release or termination of the
Mortgage and any and all of the other Loan Documents (unless
said release or termination occurs as a result of the full
payment and performance of the indebtedness represented by the
Mortgage and other Loan Documents), any investigation by or on
behalf of Lender, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever; provided, however,
said representations, warranties, covenants and agreement
(specifically excluding any indemnity obligations and
agreements) shall terminate on the Transition Date if the
Transition Date occurs as a result of the full payment and
performance of the indebtedness represented by the Mortgage
and other Loan Documents. The indemnity obligations and
agreements contained in this Agreement: shall be binding upon
Borrower and Borrower's successors, assigns and legal
representatives and shall inure to the benefit of Lender and
its successors, assigns and legal representatives and
participants in the Loan; and shall not terminate on the
Transition Date or upon the release, foreclosure or other
termination of the Mortgage, but will survive the Transition
Date, the payment in full of the indebtedness secured by the
Mortgage, foreclosure of the Mortgage or conveyance in lieu of
foreclosure, the release or termination of the Mortgage and
all of the other Loan Documents, any investigation by or on
behalf of Lender, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever. Any amount to be
paid under this Agreement by Borrower shall be a demand
obligation owing by Borrower (which Borrower hereby promises
to pay). Lender's rights under this Agreement shall be in
addition to all rights of Lender under the Loan Documents or
at law or in equity, and payments by Borrower under this
Agreement shall not reduce Borrower's obligations and
liabilities under any of the Loan Documents. The liability of
Borrower or any other person under this Agreement shall not be
limited or impaired in any way by any provision in the Loan
Documents or applicable law limiting Borrower's or such other
person's liability or Lender's recourse or rights to a
deficiency judgment, or by any change, extension, release,
inaccuracy, breach or failure to perform by any party under
the Loan Documents, Borrower's (and, if applicable, such other
person's) liability hereunder being direct and primary and not
as a guarantor or surety. Nothing in this Agreement or in any
other Loan Document shall limit or impair any rights or
remedies of Lender, Trustee and/or any other Indemnified Party
against Borrower or any other person under any Environmental
Requirement or otherwise at law or in equity, including
without limitation any rights of contribution or
indemnification.
9. No Waiver. No delay or omission by Lender to
exercise any right under this Agreement shall impair any such
right nor shall it be construed to be a waiver thereof. No
waiver of any single breach or default under this Agreement
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Environmental Indemnity Agreement 9
shall be deemed a waiver of any other breach or default. Any
waiver, consent or approval under this Agreement must be in
writing to be effective.
10. Notices. Unless specifically provided otherwise,
any notice for purposes of this Agreement shall be given in
writing or by telex or by facsimile (fax) transmission and
shall be addressed or delivered to the respective addresses
set forth at the end of this Agreement, or to such other
address as may have been previously designated by the intended
recipient by notice given in accordance with this Section. If
sent by prepaid, registered or certified mail (return receipt
requested), the notice shall be deemed effective when the
receipt is signed or when the attempted initial delivery is
refused or cannot be made because of a change of address of
which the sending party has not been notified; if sent in any
other manner, the notice shall be effective when received. No
notice of change of address shall be effective except upon
actual receipt. This Section shall not be construed in any
way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice
or demand to or upon any person in any situation or for any
reason.
11. Invalid Provisions. A determination that any
provision of this Agreement is unenforceable or invalid shall
not affect the enforceability or validity of any other
provision and a determination that the application of any
provision of this Agreement to any person or circumstance is
illegal or unenforceable shall not affect the enforceability
or validity of such provision as it may apply to other persons
or circumstances.
12. Construction. Whenever in this Agreement the
singular number is used, the same shall include plural where
appropriate, and vice versa; and words of any gender in this
Agreement shall include each other gender where appropriate.
The headings in this Agreement are for convenience only and
shall be disregarded in the interpretation hereof. Reference
to "person" or "entity" means firms, associations,
partnerships, joint ventures, trusts, limited liability
companies, corporations and other legal entities, including
public or governmental bodies, agencies or instrumentalities,
as well as natural persons.
13. Applicable Law; Forum. This Agreement is
performable in Pinellas County, Florida, and the laws of the
State of Florida and applicable United States federal law
shall govern the rights and duties of the parties hereto and
the validity, enforcement and interpretation hereof. Borrower
hereby irrevocably submits generally and unconditionally for
itself and in respect of its property to the non-exclusive
jurisdiction of any Florida state court, or any United States
federal court, sitting in Pinellas County, Florida, and to the
non-exclusive jurisdiction of any state or United States
federal court sitting in the state in which any of the
Property is located, over any suit, action or proceeding
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Environmental Indemnity Agreement 10
arising out of or relating to this Agreement or the
indebtedness secured by the Mortgage.
14. Execution; Modification. This Agreement has been
executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement. This Agreement may
be amended only by an instrument in writing intended for that
purpose executed jointly by an authorized representative of
each party hereto.
15. Entire Agreement. THE WRITTEN LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
16. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Agreement or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Agreement may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Agreement applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in 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
Agreement shall be deemed to (i) limit the applicability of
any otherwise applicable statutes of limitation or repose and
any waivers contained in this Agreement; or (ii) be a waiver
by 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
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Environmental Indemnity Agreement 11
help rights, foreclose upon such property, or obtain such
provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to
this Agreement. At Lender's option, foreclosure under a
mortgage or deed of trust may be accomplished by any of the
following: the exercise of a power of sale under the deed of
trust or mortgage, or by judicial sale under the deed of trust
or mortgage, or by judicial foreclosure. Neither this
exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of
any party, including the claimant in any such action, to
arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Executed and dated as of the date first written above.
Signed, sealed and delivered
in the presence of:
BORROWER:
PLASMA-THERM, INC., a Florida
/s/Xxxx X. Xxxxxxxxx corporation
(Signature of Witness)
Xxxx X. Xxxxxxxxx By: /s/Xxxxxx X. Xxxxxxxxx
(Print Name of Witness) Xxxxxx X. Xxxxxxxxx
President
/s/Xxxxx X. Xxxxxxxx
(Signature of Witness)
Xxxxx X. Xxxxxxxx (CORPORATE SEAL)
(Print Name of Witness)
Address:
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
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Environmental Indemnity Agreement 12
LENDER:
NATIONSBANK OF FLORIDA, N.A.
By: /s/Xxxxx X. Xxxxxx
/s/Xxxxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx, Xx.
(Signature of Witness) (Print Name of Officer)
Xxxxxxxxx X. Xxxxxxx Its Vice President
(Print Name of Witness)
/s/Xxxx Xx Xxxxxx (CORPORATE SEAL)
(Signature of Witness)
Xxxx Xx Xxxxxx Address:
(Print Name of Witness) 000 Xxxxx Xxxxxx Xxxxx (FL1-
010-07-01)
Xxxxx, Xxxxxxx 00000
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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Environmental Indemnity Agreement 13
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this
14th day of August, 1995, by Xxxxx X. Xxxxxx, Xx., as Vice
President of NationsBank of Florida, N.A. a national banking
association, on behalf of the association. He or she 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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Environmental Indemnity Agreement 14
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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Environmental Indemnity Agreement
