FUTURE ADVANCE, CONSOLIDATION AND MODIFICATION AGREEMENT
THIS AGREEMENT, executed the 17th day of November, 1995,
and effective the 17th day of November, 1995, by and between
PLASMA-THERM, INC., a Florida-corporation (hereinafter
referred to as "Borrower") and NATIONSBANK OF FLORIDA, N.A., a
national banking association (hereinafter referred to as
"Lender").
R E C I T A L S:
A. Borrower is successor by merger to Plasma-Therm I.P.
Inc., a Delaware corporation ("Plasma-Therm I.P.").
B. Plasma-Therm, I.P. and Lender entered into a
Revolving Credit Agreement dated January 21, 1992 (the "Credit
Agreement"), as amended and restated in its entirety pursuant
to those certain Amended and Restated Revolving Credit
Agreements dated May 19, 1994 and January 19, 1995, as amended
by Amendment thereto dated August 14, 1995, and Second
Amendment dated of even date herewith by and between Borrower
and Lender (together the "Restated Credit Agreement").
C. Pursuant to the Credit Agreement, Plasma-Therm I.P.
executed a certain Revolving Line of Credit Promissory Note in
the original principal sum of SEVEN HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($750,000.00), dated January 21, 1992 and
renewed pursuant to certain letter extension dated December 7,
1992, and that certain Renewal Line of Credit Promissory Note
in the original principal sum of $750,000.00 dated as of April
21, 1993 and subsequently renewed and increased to
$1,000,000.00 pursuant to that certain $250,000.00 Future
Advance Note dated May 19, 1994 and the total indebtedness
consolidated as evidenced by that certain $1,000,000.00
Renewal and Consolidation Line of Credit Promissory Note dated
May 19, 1994, and subsequently renewed and increased to
$2,000,000.00 pursuant to that certain $1,000,000.00 Future
Advance Promissory Note dated January 19, 1995, and the total
indebtedness consolidated as evidenced by that certain
$2,000,000.00 Consolidation Line of Credit Promissory Note
dated January 19, 1995 (together the "Line of Credit Note"),
which Line of Credit Note is secured by a Security Agreement
dated January 21, 1992, as amended and restated in its
entirety pursuant to that certain Amended and Restated
Security Agreement dated January 19, 1995 which, together with
the Restated Credit Agreement, the Future Advance,
Consolidation and Modification Agreement dated as of January
19, 1995, the UCC-1 financing statements filed in the offices
of the Secretary of State of Florida and New Jersey, the
Commitment Letters of November 21, 1991, May 28, 1993, March
28, 1994 (as amended May 9, 1994), December 8, 1994 and
November 8, 1995, and any other documents or instruments
executed in connection therewith are hereinafter collectively
referred to as the "Security Instruments."
D. Borrower desires to obtain an additional advance in
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Future Advance, Consolidation & Modification
the amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00)
from Lender and Lender is willing to advance such sum provided
that repayment of such sum is secured as a future advance (the
"Third Future Advance") under the terms of the Security
Instruments and as set forth herein.
E. Borrower desires to consolidate the outstanding
principal balance of the Line of Credit Note and the Third
Future Advance, and Lender is willing to consolidate such sums
pursuant to the terms set forth herein.
F. The outstanding principal balance of the Line of
Credit Note as of the date of execution hereof is TWO MILLION
AND NO/100 DOLLARS ($2,000,000.00).
NOW, THEREFORE, in consideration of the Third Future
Advance and other good and valuable consideration, receipt of
which is hereby acknowledged, and in consideration of the
premises and of the mutual covenants contained herein, the
parties agree as follows:
1. Recitals. The above recitals are true and correct
and are incorporated herein.
2. Interest. Accrued interest on the Line of Credit
Note shall be paid in full at the time of execution and
delivery of the Third Consolidation Line of Credit Promissory
Note described herein.
3. Future Advance. This Agreement evidences an
additional advance made by Lender pursuant to the future
advance provision of the Security Instruments. It is agreed
that this additional advance, as evidenced by the Third Future
Advance Promissory Note in the principal amount of ONE MILLION
AND NO/100 DOLLARS ($1,000,000.00) (the "Third Future Advance
Note"), a copy of which is attached hereto as Exhibit "A" and
made a part hereof, shall be equally secured with and have the
same priority as the original indebtedness and is subject to
all the terms and provisions of the Security Instruments. The
undersigned Borrower promises to pay the indebtedness
evidenced by the Third Future Advance Note in accordance with
the terms and conditions, including the rate of interest and
other terms of repayment, as set forth in the Third Future
Advance Note.
4. Modification and Consolidation. The Line of Credit
Note shall be modified and consolidated with the Third Future
Advance Note in accordance with the terms and provisions of
the Third Consolidation Revolving Line of Credit Promissory
Note in the principal amount of THREE MILLION AND NO/100
DOLLARS ($3,000,000.00) (the "Third Consolidation Note"), a
copy of which is attached hereto as Exhibit "B" and made a
part hereof, and is subject to all the terms and provisions of
the Security Instruments. The undersigned Borrower promises
to pay the indebtedness evidenced by the Third Consolidation
Note (hereinafter sometimes referred to as the "Indebtedness")
in accordance with the terms and conditions, including the
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Future Advance, Consolidation & Modification 2
rate of interest and other terms of repayment, as set forth in
the Third Consolidation Note. In the event of any conflict
between the terms and conditions of the Line of Credit Note,
the Third Future Advance Note or the Third Consolidation Note,
the terms and provisions of the Third Consolidation Note shall
control and prevail and the Third Consolidation Note shall be
deemed to supersede the Line of Credit Note and the Third
Future Advance Note.
5. Modification of Security Instruments. The terms of
the Security Instruments are hereby modified so as to provide
that the repayment terms of the indebtedness secured thereby
shall also include the Third Future Advance.
6. Cross Default. Any default by Borrower under the
terms of any promissory note, any Security Instrument, or any
agreement, document or instrument executed with respect to any
thereof, shall be a default hereof, and any default by
Borrower under the terms hereof shall be a default of said
other promissory notes, agreements, documents and instruments.
7. Security. The parties hereto acknowledge and agree
that the payment of the Indebtedness shall be secured by the
Security Instruments and shall be subject to all of the terms
and conditions of the Security Instruments.
8. Ratification. Except as herein modified and
amended, the terms and conditions of the Security Instruments,
and all of the agreements, documents and instruments executed
with respect to the foregoing are hereby ratified and affirmed
and shall remain in full force and effect. THIS FUTURE
ADVANCE SHALL NOT BE DEEMED TO ESTABLISH ANY COURSE OF DEALING
OR TO BIND LENDER TO MAKE ANY FURTHER FUTURE ADVANCES. THE
THIRD CONSOLIDATION NOTE IS PAYABLE IN FULL ON MAY 19,1997.
AT THAT TIME YOU MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF
THE THIRD CONSOLIDATION NOTE AND UNPAID INTEREST THEN DUE.
LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LINE OF CREDIT
NOTE THAT TIME.
9. Novation. It is the intent of the parties that this
instrument shall not constitute a novation and shall in no way
adversely affect the lien priority of the Security Instruments
referred to above.
10. Costs. Borrower shall pay all costs of the Third
Future Advance, except legal fees, to include without
limitation documentary stamp tax. Such costs shall be due at
closing hereunder and the payment thereof shall be a condition
precedent to Lender's duties hereunder. In the event it is
determined that additional costs relating to this transaction
are due, Borrower agrees to pay such costs immediately upon
demand.
11. Restated Credit Agreement. All disbursements made
hereunder shall be conditioned, upon compliance by the
Borrower, with the terms and conditions of the Restated Credit
Agreement, and such disbursements shall be made in accordance
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Future Advance, Consolidation & Modification 3
with the terms thereof.
12. Warranties and Representations. Borrower hereby
affirms, warrants and represents that:
a. all of the warranties and representations made
by Borrower in the Restated Credit Agreement, Line of Credit
Note, Third Consolidation Note, all Security Instruments, and
in any agreements, documents and instruments executed with
respect to any thereof, are true and correct as of the date
hereof;
b. the Restated Credit Agreement, Line of Credit
Note, Third Consolidation Note, all Security Instruments and
all agreements, documents and instruments executed with
respect to any thereof are in full force and effect as of the
date hereof, are enforceable according to their terms, and
there are no defenses to the collection by Lender of sums due
thereunder;
c. there is no default under the Restated Credit
Agreement, Line of Credit Note, any Security Instrument, or
any agreement, document or instrument executed with respect to
any thereof and no event has occurred which, with notice
and/or passage of time, would become an event of default under
the Restated Credit Agreement, Line of Credit Note, Third
Consolidation Note, any Security Instrument, or any agreement,
document or instrument executed with respect to any thereof;
and
d. there is no claim, cause of action or set-off
against Lender arising from any of the Security Instruments
and Borrower hereby waives and releases Lender from any and
all claims which may have arisen pursuant to the Security
Instruments.
13. Miscellaneous.
a. Paragraph headings used herein are for
convenience only and shall not be construed as controlling the
scope of any provision hereof.
b. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
c. Time is of the essence of this Agreement.
d. As used herein, the neuter gender shall include
the masculine and feminine genders, and vice versa, and the
singular the plural, and vice versa, as the context demands.
e. In the event that Lender resorts to litigation
to enforce this Agreement, all costs of such litigation, to
include reasonable attorneys' fees through all trials, appeals
and proceedings, to include, without limitation, any
proceedings pursuant to the bankruptcy laws of the United
States, shall be paid by Borrower.
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Future Advance, Consolidation & Modification 4
f. This Agreement shall inure to the benefit of
and be binding upon the parties hereto as well as their
successors and assigns.
g. LENDER AND BORROWER AND ANY OTHER PERSON LIABLE
FOR PAYMENT HEREOF, BY EXECUTING THIS AGREEMENT OR ANY OTHER
DOCUMENT CREATING SUCH LIABILITY, WAIVE THEIR RIGHTS TO A
TRIAL BY JURY IN ANY ACTION WHETHER ARISING IN CONTRACT OR
TORT, BY STATUTE OR OTHERWISE, IN ANY WAY RELATING TO THE
AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
LENDER'S EXTENDING CREDIT TO BORROWER AND NO WAIVER OR
LIMITATION OF LENDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE
UNLESS IN
WRITING AND MANUALLY SIGNED ON LENDER'S BEHALF.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement under seal as of the day and year first above
written.
Signed, sealed and delivered
in the presence of:
/s/Xxxxx XxXxxxxxx
(Signature of Witness)
Xxxxx XxXxxxxxx
(Print Name of Witness)
/s/Xxxx X. Street
(Signature of Witness)
Xxxx X. Street
(Print Name of Witness)
BORROWER:
PLASMA-THERM, INC., a Florida corporation
By: /s/Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, President
(CORPORATE SEAL)
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Future Advance, Consolidation & Modification 5
/s/Sadahri X. Xxxxx
(Signature of Witness)
Sadahri X. Xxxxx
(Print Name of Witness)
/s/Xxxx X. Street
(Signature of Witness)
Xxxx X. Street
(Print Name of Witness)
LENDER:
NATIONSBANK OF FLORIDA, N.A., a
national banking association
By: /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its Vice President
(CORPORATE SEAL)
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this
17 day of November, 1995, by XXXXXX X. XXXXXXXXX, as the
President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He XX is personally known to me or
has produced
as identification.
(SEAL)
/s/Xxxx X. Street
Xxxx X. Street
(Print Name of Notary Public)
Notary Public
My Commission Expires:
NOTARY PUBLIC
STATE OF FLORIDA
"OFFICIAL SEAL"
Xxxx X. Street
My Commission Expires 4/26/96
Commission #CC 196605
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Future Advance, Consolidation & Modification 6
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Future Advance, Consolidation & Modification 7
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this
17 day of November, 1995, by XXXXX X. XXXXX, as Vice President
of NATIONSBANK OF FLORIDA, N.A., a national banking
association, on behalf of the association. She XX is
personally known to me or has produced
as identification.
(SEAL)
/s/Xxxx X. Street
Xxxx X. Street
(Print Name of Notary Public)
Notary Public
My Commission Expires:
NOTARY PUBLIC
STATE OF FLORIDA
"OFFICIAL SEAL"
Xxxx X. Street
My Commission Expires 4/26/96
Commission #CC 196605
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Future Advance, Consolidation & Modification 8
THIRD
FUTURE ADVANCE PROMISSORY NOTE
$1,000,000.00 St. Petersburg, Florida
Executed November 17, 1995
Effective November 17, 1995
FOR VALUE RECEIVED, the undersigned PLASMA-THERM, INC.,
a Florida corporation (hereinafter called "Borrower") promises
to pay to the order of NATIONSBANK OF FLORIDA, N.A., a
national banking association (hereinafter sometimes referred
to as "Lender" and together with any holder hereof called
"Holder"), at 000 X. Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx
00000, or at such other place as Holder may from time to time
designate in writing, without grace, UPON DEMAND the principal
sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00), 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 Prime Rate 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.
Principal and interest shall be due and payable UPON
DEMAND.
Interest owing under this Note shall be computed on the
basis of a 360-day year for actual days lapsed.
As used herein, "Prime Rate" shall refer to the
fluctuating rate of interest which is established by
NATIONSBANK OF FLORIDA, N.A., a national banking association,
from time to time as being its Prime Rate whether or not such
rate shall be otherwise published. Such Prime Rate is
established by NATIONSBANK OF FLORIDA, N.A., a national
banking association, as an index or base rate and may or may
not at any time be the best or lowest rate charged by
NATIONSBANK OF FLORIDA, N.A., a national banking association
on any loan. Changes in the Prime Rate shall be effective on
the effective date announced by NATIONSBANK OF FLORIDA, N.A.,
a national banking association.
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. If this Note provides for
installment payments of principal, prepayment of principal
payments shall apply in the inverse order such installment
payments are due, applying first to the last principal
installment due hereunder. 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
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EXHIBIT "A"
Future Advance, Consolidation & Modification Page 1 of 4
remedies available to it hereunder, under the security
instruments securing this indebtedness, or under any other
loan documents or guaranty executed in connection herewith.
This Note is secured by certain Security Instruments
described in the Future Advance, Consolidation and
Modification Agreement dated of even date herewith, which
together with the Amended and Restated Revolving Credit
Agreement dated as of January 19, 1995, as amended by
Amendment thereto dated August 14, 1995 and Second Amendment
dated of even date herewith, the Commitment Letters of
November 8, 1995, December 8, 1994, March 28, 1994 (as amended
May 9, 1994), November 21, 1991, May 28, 1993 and all other
agreements, instruments and documents delivered in connection
herewith, are hereinafter sometimes referred to as the "Loan
Documents."
This Note and the Loan Documents have been executed and
delivered in the State of Florida, and their terms and
provisions 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 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
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EXHIBIT "A"
Future Advance, Consolidation & Modification Page 2 of 4
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 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. In the event no specific
Maximum Rate is applicable, the Maximum Rate hereunder shall
be twenty-five percent (25%) per annum.
Upon a failure by Borrower to repay principal upon
demand 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 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 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 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, from time to time, to debit
any account that Borrower may have with Holder, for any
payment of principal or interest due or 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
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EXHIBIT "A"
Future Advance, Consolidation & Modification Page 3 of 4
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, all other forms of notice whatsoever,
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.
BORROWER AND ANY OTHER PERSON LIABLE FOR PAYMENT
HEREOF, BY EXECUTING THIS NOTE OR ANY OTHER DOCUMENT CREATING
SUCH LIABILITY, WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN ANY
ACTION WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR
OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO
BORROWER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS
HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY
SIGNED ON HOLDER'S BEHALF.
Borrower acknowledges that the above paragraph has 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
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EXHIBIT "A"
Future Advance, Consolidation & Modification Page 4 of 4
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.
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")
Xxxxxx X. Xxxxxxxxx,
President
(CORPORATE SEAL)
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EXHIBIT "A"
Future Advance, Consolidation & Modification Page 5 of 4
THIRD
CONSOLIDATION LINE OF CREDIT PROMISSORY NOTE
$3,000,000.00 St. Petersburg, Florida
Executed November 17, 1995
Effective November 17, 1995
FOR VALUE RECEIVED, the undersigned PLASMA-THERM, INC.,
a Florida corporation (hereinafter called "Borrower") promises
to pay to the order of NATIONSBANK OF FLORIDA, N.A., a
national banking association (hereinafter sometimes referred
to as "Lender" and together with any holder hereof called
"Holder"), at 000 X. Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx
00000, or at such other place as Holder may from time to time
designate in writing, the principal sum of THREE MILLION AND
NO/100 DOLLARS ($3,000,000.00), 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 Prime Rate 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.
Principal and interest shall be due and payable as
follows:
a.Accrued interest only, as stated above, shall be
payable monthly commencing on December 19, 1995, and
continuing on the same day of each month until May 19, 1997,
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, 1997, but only in accordance with the
terms of that certain Amended and Restated Revolving Credit
Agreement dated January 19, 1995, as amended by Amendment
thereto dated August 14, 1995 and Second Amendment dated of
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 THREE MILLION AND NO/100
DOLLARS ($3,000,000.00).
c.For a period of sixty (60) consecutive days
during the term of the loan, Borrower shall repay the
principal below a sum of $100.00.
Interest owing under this Note shall be computed on the
basis of a 360-day year.
As used herein, "Prime Rate" shall refer to the
fluctuating rate of interest which is established by
NATIONSBANK OF FLORIDA, N.A., a national banking association,
from time to time as being its Prime Rate whether or not such
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EXHIBIT "B"
Future Advance, Consolidation & Modification Page 1 of 5
rate shall be otherwise published. Such Prime Rate is
established by NATIONSBANK OF FLORIDA, N.A., a national
banking association, as an index or base rate and may or may
not at any time be the best or lowest rate charged by
NATIONSBANK OF FLORIDA, N.A., a national banking association
on any loan. Changes in the Prime Rate shall be effective on
the effective date announced by NATIONSBANK OF FLORIDA, N.A.,
a national banking association.
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 term 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 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 certain Security Instruments
described in the Future Advance, Consolidation and
Modification Agreement dated of even date herewith, which
together with the Amended and Restated Revolving Credit
Agreement dated January 19, 1995, as amended by Amendment
thereto dated August 14, 1995 and Second Amendment dated of
even date herewith, the Commitment Letters of November 8,
1995, December 8, 1994, March 28, 1994 (as amended May 9,
1994), November 21, 1991, May 28, 1993 and all other
agreements, instruments and documents delivered in connection
herewith, are hereinafter sometimes referred to as the "Loan
Documents."
This Note and the Loan Documents have been executed and
delivered in the State of Florida, and their terms and
provisions 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
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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 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. In the event no specific
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Maximum Rate is applicable, the Maximum Rate hereunder shall
be twenty-five percent (25%) per annum.
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 a default. This
Note shall be deemed to be in default upon the failure of
Borrower to pay, within seven (7) days after the same become
due, any of the installments of interest or principal, 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 this Note or 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 obligations,
instruments or documents between Borrower and Lender after any
applicable grace period. 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 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 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 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 due or 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
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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, all other forms of notice whatsoever,
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.
BORROWER AND ANY OTHER PERSON LIABLE FOR PAYMENT
HEREOF, BY EXECUTING THIS NOTE OR ANY OTHER DOCUMENT CREATING
SUCH LIABILITY, WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN ANY
ACTION WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR
OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO
BORROWER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS
HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY
SIGNED ON HOLDER'S BEHALF.
Borrower acknowledges that the above paragraph has 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.
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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:
Xxxxxx X. Xxxxxxxxx,
President
(CORPORATE SEAL)
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