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Exhibit 10.23
RECORDED IN OFFICIAL RECORDS
INSTRUMENT # 1669892 8 PGS
2000 APR 03 03:23 PM BK 2283 PG 707
J.K. "BUDDY" IRBY
CLERK OF CIRCUIT COURT
ALACHUA COUNTY, FLORIDA
WHEN RECORDED MAIL TO: CLERK2 RECEIPT #011043
NATIONSBANK, N.A. Doc Stamp-Mort: 9,800.00
P.O. BOX 40329 Intang. Tax: 5,600.00
JACKSONVILLE, FL 32231-0329 By: Sandra L. Copeland D.C.
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THIS MORTGAGE PREPARED BY:
NAME: FAYE S. STORMS
COMPANY: BANK OF AMERICA, N.A.
ADDRESS: P.O. BOX 40329,, JACKSONVILLE, FL,
32203-0239
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NATIONSBANK
MORTGAGE
THIS MORTGAGE IS DATED MARCH 30, 2000, BETWEEN REGENERATION TECHNOLOGIES,
INC., A FLORIDA CORPORATION, WHOSE ADDRESS IS 1 INNOVATION DRIVE, ALACHUA, FL
32615 (REFERRED TO BELOW AS "GRANTOR"); AND BANK OF AMERICA, N.A., WHOSE
ADDRESS IS P.O. BOX 40329, JACKSONVILLE, FL 32203-0329 (REFERRED TO BELOW AS
"LENDER").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages to Lender
all of Grantor's right, title, and interest in and to the following described
real property, together with all existing or subsequently erected or affixed
buildings, improvements and fixtures; all easements, rights of way, and
appurtenances; all water, water rights, watercourses and ditch rights
(including stock in utilities with ditch or irrigation rights); and all other
rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters,
LOCATED IN ALACHUA COUNTY, STATE OF FLORIDA (THE "REAL PROPERTY"):
REAL PROPERTY AS DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE
A PART HEREOF BY REFERENCE THE REAL PROPERTY OR ITS ADDRESS IS COMMONLY KNOWN
AS 1 INNOVATION DRIVE, ALACHUA, FL 32615.
Grantor presently assigns to Lender all of Grantor's right, title, and
interest in and to all leases of the Property and all Rents from the
Property. In addition, Grantor grants to Lender a Uniform Commercial Code
security interest in the Personal Property and Rents.
DEFINITIONS. The following words shall have the following meanings when used
in this Mortgage. Terms not otherwise defined in this Mortgage shall have the
meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
GRANTOR. The word "Grantor" means REGENERATION TECHNOLOGIES, INC. The
Grantor is the mortgager under this Mortgage.
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
IMPROVEMENTS. The word "Improvements" means and includes without limitation
all existing and future improvements, buildings, structures, mobile homes
affixed on the Real Property, facilities, additions, replacements and
other construction on the Real Property.
INDEBTEDNESS. The word "Indebtedness" means all principal and interest
payable under the Note and any amounts expended or advanced by Lender to
discharge obligations of Grantor or expenses incurred by Lender to
enforce obligations of Grantor under this Mortgage, together with
interest on such amounts as provided in this Mortgage. Specifically,
without limitation, this Mortgage secures, in addition to the amounts
specified in the Note, all future amounts Lender in its discretion may
loan to Grantor within twenty (20) years of the date of this Mortgage,
together with all interest thereon; however, in no event shall such
future advances (excluding interest) exceed in the aggregate
$5,600,000.00. The total amount of indebtedness secured by this Mortgage
may decrease or increase from time to time, but the maximum amount of
principal indebtedness which may be outstanding at any one time shall not
exceed $8,400,000.00, plus interest, and amounts expended or advanced by
Lender for the payment of taxes, levies or insurance on the Property, and
interest on such amounts.
LENDER. The word "Lender" means Bank of America, N.A., its successors and
assigns. The Lender is the mortgagee under this Mortgage.
MORTGAGE. The word "Mortgage" means this Mortgage between Grantor and
Lender, and includes without limitation all assignments and security
interest provisions relating to the Personal Property and Rents.
NOTE. The word "Note" means the promissory note or credit agreement dated
March 30, 2000, IN THE ORIGINAL PRINCIPAL AMOUNT OF $2,800,000.00 from
Grantor to Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions
for the promissory note or agreement. NOTICE TO GRANTOR: THE NOTE
CONTAINS A VARIABLE INTEREST RATE.
PERSONAL PROPERTY. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned
by Grantor, and now or hereafter attached or affixed to the Real
Property; together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such property; and
together with all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other disposition of
the Property.
PROPERTY. The word "Property" means collectively the Real Property and
the Personal Property.
REAL PROPERTY. The words "Real Property" mean the property, interests
and rights described above in the "Grant of Mortgage" section.
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RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages,
deeds of trust, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the
indebtedness.
RENTS. The word "Rents" means all present and future rents, revenues,
income, issues, royalties, profits, and other benefits derived from the
Property.
THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN
THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE
INDEBTEDNESS AND (2) PERFORMANCE OF ALL OBLIGATIONS OF GRANTOR UNDER THIS
MORTGAGE AND THE RELATED DOCUMENTS. THIS MORTGAGE IS GIVEN AND ACCEPTED ON
THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage,
Grantor shall pay to Lender all amounts secured by this Mortgage as they
become due, and shall strictly perform all of Grantor's obligations under
this Mortgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's
possession and use of the Property shall be governed by the following
provisions:
POSSESSION AND USE: Until Grantor's interest in any or all of the
Property is foreclosed or until Lender exercises its right to collect
Rents as provided for in the Assignment of Rents form executed by Grantor
in connection with the Property, Grantor may remain in possession and
control of and operate and manage the Property and collect the Rents from
the Property.
DUTY TO MAINTAIN. Grantor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "Hazardous substance,"
"disposal," "release," and "threatened release," as used in this
Mortgage, shall have the same meanings as set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"),
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., or other applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing. The terms "hazardous waste" and
"hazardous substance" shall also include, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos. Grantor
represents and warrants to Lender that: (a) During the period of
Grantor's ownership of the Property, there has been no use, generation,
manufacture, storage, treatment, disposal, release or threatened release
of any hazardous waste or substance by any person on, under, about or
from the Property; (b) Grantor has no knowledge of, or reason to believe
that there has been, except as previously disclosed to and acknowledged
by Lender in writing, (i) any use, generation, manufacture, storage,
treatment, disposal, release, or threatened release of any hazardous
waste or substance on, under, about or from the Property by any prior
owners or occupants of the Property or (ii) any actual or threatened
litigation or claims of any kind by any person relating to such matters;
and (c) Except as previously disclosed to and acknowledged by Lender in
writing, (i) neither Grantor nor any tenant, contractor, agent or other
authorized user of the Property shall use, generate, manufacture, store,
treat, dispose of, or release any hazardous waste or substance on, under,
about or from the Property and (ii) any such activity shall be conducted
in compliance with all applicable federal, state, and local laws,
regulations and ordinances, including without limitation those laws,
regulations, and ordinances described above. Grantor authorizes Lender
and its agents to enter upon the Property to make such inspections and
tests, at Grantor's expense, as Lender may deem appropriate to determine
compliance of the Property with this section of the Mortgage. Any
inspections or tests made by Lender shall be for Lender's purposes only
and shall not be construed to create any responsibility or liability on
the part of Lender to Grantor or to any other person. The representations
and warranties contained herein are based on Grantor's due diligence in
investigating the Property for hazardous waste and hazardous substances.
Grantor hereby (a) releases and waives any future claims against Lender
for indemnity or contribution in the event Grantor becomes liable for
cleanup or other costs under any such laws, and (b) agrees to indemnify
and hold harmless Lender against any and all claims, losses, liabilities,
damages, penalties, and expenses which Lender may directly or indirectly
sustain or suffer resulting from a breach of this section of the Mortgage
or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release of a hazardous waste or substance
on the properties. The provisions of this section of the Mortgage,
including the obligation to indemnify, shall survive the payment of the
indebtedness and the satisfaction and reconveyance of the lien of this
Mortgage and shall not be affected by Lender's acquisition of any
interest in the Property, whether by foreclosure or otherwise.
NUISANCE, WASTE. Grantor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the
Property or any portion of the Property. Without limiting the generality
of the foregoing, Grantor will not remove, or grant to any other party
the right to remove, any timber, minerals (including oil and gas), soil,
gravel or rock products without the prior written consent of Lender.
REMOVAL OF IMPROVEMENTS. Grantor shall not demolish or remove any
improvements from the Real Property without the prior written consent of
Lender. As a condition to the removal of any improvements, Lender may
require Grantor to make arrangements satisfactory to Lender to replace
such improvements with improvements of at least equal value.
SUBSEQUENT LIENS. Grantor shall not allow any subsequent liens or
mortgages on all or any portion of the Property without the prior written
consent of Lender.
LENDER'S RIGHT TO ENTER. Lender and its agents and representatives may
enter upon the Real Property at all reasonable times to attend to
Lender's interests and to inspect the Property for purposes of Grantor's
compliance with the terms and conditions of this Mortgage.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in effect,
of all governmental authorities applicable to the use or occupancy of the
Property, including without limitation, the Americans With Disabilities
Act. Grantor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Grantor has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Property are not jeopardized. Lender may require Grantor
to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender's interest.
DUTY TO PROTECT. Grantor agrees neither to abandon nor leave unattended
the Property. Grantor shall do all other acts, in addition to those acts
set forth above in this section, which from the character and use of the
Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Lender may, at its option, declare
immediately due and payable all sums secured by this Mortgage upon the
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sale or transfer, without the Lender's prior written consent, of all or any
part of the Real Property, or any interest in the Real Property. A "sale or
transfer" means the conveyance of Real Property or any right, title or
interest therein; whether legal, beneficial or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment sale contract,
land contract, contract for deed, leasehold interest with a term greater than
three (3) years, lease-option contract, or by sale, assignment, or transfer
of any beneficial interest in or to any land trust holding title to the Real
Property, or by any other method of conveyance of Real Property Interest. If
any Grantor is a corporation, partnership or limited liability company,
transfer also includes any change in ownership of more than twenty-five
percent (25%) of the voting stock, partnership interests or limited liability
company interests, as the case may be, of Grantor. However, this option shall
not be exercised by Lender if such exercise is prohibited by federal law or
by Florida law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on
the Property are a part of this Mortgage.
PAYMENT. Grantor shall pay when due (and in all events prior to
delinquency) all taxes, payroll taxes, special taxes, assessments, water
charges and sewer service charges levied against or on account of the
Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Grantor shall
maintain the Property free of all liens having priority over or equal to
the interest of Lender under this Mortgage, except for the lien of taxes
and assessments not due, and except as otherwise provided in the
following paragraph.
RIGHT TO CONTEST. Grantor may withhold payment of any tax, assessment or
claim in connection with a good faith dispute over the obligation to pay,
so long as Lender's interest in the Property is not jeopardized. If a
lien arises or is filed as a result of nonpayment, Grantor shall within
fifteen (15) days after the lien arises or, if a lien is filed, within
fifteen (15) days after Grantor has notice of the filing, secure the
discharge of the lien, or if requested by Lender, deposit with Lender
cash or a sufficient corporate surety bond or other security satisfactory
to Lender in an amount sufficient to discharge the lien plus any costs
and reasonable attorneys' fees or other charges that could accrue as a
result of a foreclosure or sale under the lien. In any contest, Grantor
shall defend itself and Lender and shall satisfy any adverse judgment
before enforcement against the Property. Grantor shall name Lender as an
additional obligee under any surety bond furnished in the contest
proceedings.
EVIDENCE OF PAYMENT. Grantor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at
any time a written statement of the taxes and assessments against the
Property.
NOTICE OF CONSTRUCTION. Grantor shall notify Lender at least fifteen (15)
days before any work is commenced, any services are furnished, or any
materials are supplied to the Property, if any mechanic's lien,
materialmen's lien, or other lien could be asserted on account of the
work, services, or materials. Grantor will upon request of Lender furnish
to Lender advance assurances satisfactory to Lender that Grantor can and
will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Mortgage.
MAINTENANCE OF INSURANCE. Grantor shall procure and maintain policies of
fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all improvements
on the Real Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of
Lender. Grantor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request with
Lender being named as additional insureds in such liability insurance
policies. Additionally, Grantor shall maintain such other insurance,
including but not limited to hazard, business interruption and boiler
insurance as Lender may require. Policies shall be written by such
insurance companies and in such form as may be reasonably acceptable to
Lender. Grantor shall deliver to Lender certificates of coverage from
each insurer containing a stipulation that coverage will not be cancelled
or diminished without a minimum of thirty (30) days' prior written notice
to Lender and not containing any disclaimer of the insurer's liability
for failure to give such notice. Each insurance policy also shall include
an endorsement providing that coverage in favor of Lender will not be
impaired in any way by any act, omission or default of Grantor or any
other person. Should the Real Property at any time become located in an
area designated by the Director of the Federal Emergency Management
Agency as a special flood hazard area, Grantor agrees to obtain and
maintain Federal Flood Insurance for the full unpaid principal balance of
the loan and any prior liens on the property securing the loan, up to the
maximum policy limits set under the National Flood Insurance Program, or as
otherwise required by Lender, and to maintain such insurance for the term
of the loan.
APPLICATION OF PROCEEDS. Grantor shall promptly notify Lender of any loss
or damage to the Property. Lender may make proof of loss if Grantor fails
to do so within fifteen (15) days of the casualty. Whether or not
Lender's security is impaired, Lender may, at its election, apply the
proceeds to the reduction of the indebtedness, payment of any lien
affecting the Property, or the restoration and repair of the Property. If
Lender elects to apply the proceeds to restoration and repair, Grantor
shall repair or replace the damaged or destroyed improvements in a manner
satisfactory to Lender. Lender shall, upon satisfactory proof of such
expenditure, pay or reimburse Grantor from the proceeds for the reasonable
cost of repair or restoration if Grantor is not in default under this
Mortgage. Any proceeds which have not been disbursed within 180 days
after their receipt and which Lender has not committed to the repair or
restoration of the Property shall be used first to pay any amount owing
to Lender under this Mortgage, then to pay accrued interest, and the
remainder, if any, shall be applied to the principal balance of the
indebtedness. If Lender holds any proceeds after payment in full of the
indebtedness, such proceeds shall be paid to Grantor.
UNEXPIRED INSURANCE AT SALE. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this
Mortgage at any trustee's sale or other sale held under the provisions of
this Mortgage, or at any foreclosure sale of such Property.
GRANTOR'S REPORT ON INSURANCE. Upon request of Lender, however not more
than once a year, Grantor shall furnish to Lender a report on each
existing policy of insurance showing: (a) the name of the insurer;
(b) the risks insured; (c) the amount of the policy; (d) the property
insured, the then current replacement value of such property, and the
manner of determining that value; and (e) the expiration date of the
policy. Grantor shall, upon request of Lender, have an independent
appraiser satisfactory to Lender determine the cash value replacement cost
of the Property.
EXPENDITURES BY LENDER. If Grantor fails to comply with any provision of this
Mortgage, or if any action or proceeding is commenced that would materially
affect Lender's interests in the Property, Lender on Grantor's behalf may,
but shall not be required to, take any action that Lender deems appropriate.
Any amount that Lender expends in so doing will bear interest at the rate
provided for in the Note from the date incurred or paid by Lender to the date
of repayment by Grantor. All such expenses, at Lender's option, will (a) be
payable on demand, (b) be added to the balance of the Note and be apportioned
among and be payable with any installment payments to become due during
either (i) the term of any applicable insurance policy or (ii) the remaining
term of the Note, or (c) be treated as a balloon payment which will be due
and payable at the Note's maturity. This Mortgage also will secure payment of
these amounts. The rights provided for in this paragraph shall be in addition
to any other rights or any remedies to which Lender may be entitled on
account of the default. Any such action by Lender shall not be construed as
curing the default so as to bar Lender from any remedy that it otherwise
would have had.
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WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of
the Property are a part of this Mortgage.
TITLE. Grantor warrants that: (a) Grantor holds good and marketable title
of record to the Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description
or in any title insurance policy, title report, or final title opinion
issued in favor of, and accepted by, Lender in connection with this
Mortgage, and (b) Grantor has the full right, power, and authority to
execute and deliver this Mortgage to Lender.
DEFENSE OF TITLE. Subject to the exception in the paragraph above,
Grantor warrants and will forever defend the title to the Property
against the lawful claims of all persons. In the event any action or
proceeding is commenced that questions Grantor's title or the interest of
Lender under this Mortgage, Grantor shall defend the action at Grantor's
expense. Grantor may be the nominal party in such proceeding, but Lender
shall be entitled to participate in the proceeding and to be represented
in the proceeding by counsel of Lender's own choice, and Grantor will
deliver, or cause to be delivered, to Lender such instruments as Lender
may request from time to time to permit such participation.
COMPLIANCE WITH LAWS. Grantor warrants that the Property and Grantor's
use of the Property complies with all existing applicable laws,
ordinances, and regulations of governmental authorities.
CONDEMNATION. The following provisions relating to condemnation of the
Property are a part of this Mortgage.
APPLICATION OF NET PROCEEDS. If all or any part of the Property is
condemned by eminent domain proceedings or by any proceeding or purchase
in lieu of condemnation, Lender may at its election require that all or
any portion of the net proceeds of the award be applied to the
indebtedness or the repair or restoration of the Property. The net
proceeds of the award shall mean the award after payment of all
reasonable costs, expenses, and attorneys' fees incurred by Lender in
connection with the condemnation.
PROCEEDINGS. If any proceeding in condemnation is filed, Grantor shall
promptly notify Lender in writing, and Grantor shall promptly take such
steps as may be necessary to defend the action and obtain the award.
Grantor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Grantor will deliver or
cause to be delivered to Lender such instruments as may be requested by
it from time to time to permit such participation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The
following provisions relating to governmental taxes, fees and charges are a
part of this Mortgage:
CURRENT TAXES, FEES AND CHARGES. Upon request by Lender, Grantor shall
execute such documents in addition to this Mortgage and take whatever
other action is requested by Lender to perfect and continue Lender's lien
on the Real Property. Grantor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in recording,
perfecting or continuing this Mortgage, including without limitation all
intangible personal property taxes, documentary stamp taxes, fees, and
other charges for recording or registering this Mortgage.
TAXES. The following shall constitute taxes to which this section
applies: (a) a specific tax, including without limitation an intangible
personal property tax, upon this type of Mortgage or upon all or any
part of the indebtedness secured by this Mortgage; (b) a specific tax on
Grantor which Grantor is authorized or required to deduct from payments
on the indebtedness secured by this type of Mortgage; (c) a tax on this
type of Mortgage chargeable against the Lender or the holder of the Note;
and (d) a specific tax on all or any portion of the indebtedness or on
payments of principal and interest made by Grantor.
SUBSEQUENT TAXES. If any tax to which this section applies is enacted
subsequent to the date of this Mortgage, this event shall have the same
effect as an Event of Default (as defined below), and Lender may exercise
any or all of its available remedies for an Event of Default as provided
below unless Grantor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the Taxes and
Liens section and deposits with Lender cash or a sufficient corporate
surety bond or other security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating
to this Mortgage as a security agreement are a part of this Mortgage.
SECURITY AGREEMENT. This instrument shall constitute a security agreement
to the extent any of the Property constitutes fixtures or other personal
property, and Lender shall have all of the rights of a secured party
under the Uniform Commercial Code as amended from time to time.
SECURITY INTEREST. Upon request by Lender, Grantor shall execute
financing statements and take whatever other action is requested by
Lender to perfect and continue Lender's security interest in the Rents
and Personal Property. In addition to recording this Mortgage in the real
property records, Lender may, at any time and without further
authorization from Grantor, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. Grantor shall
reimburse Lender for all expenses incurred in perfecting or continuing
this security interest. Upon default, Grantor shall assemble the Personal
Property in a manner and at a place reasonably convenient to Grantor and
Lender and make it available to Lender within three (3) days after
receipt of written demand from Lender.
ADDRESSES. The mailing addresses of Grantor (debtor) and Lender (secured
party), from which information concerning the security interest granted
by this Mortgage may be obtained (each as required by the Uniform
Commercial Code), are as stated on the first page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Mortgage.
FURTHER ASSURANCES. At any time, and from time to time, upon request of
Lender, Grantor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Lender's designee, and when
requested by Lender, cause to be filed, recorded, refiled, or rerecorded,
as the case may be, at such times and in such offices and places as
Lender may deem appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements, continuation
statements, instruments of further assurance, certificates, and other
documents as may, in the sole opinion of Lender, be necessary or
desirable in order to effectuate, complete, perfect, continue, or
preserve (a) the obligations of Grantor under the Note, this Mortgage,
and the Related Documents, and (b) the liens and security interests
created by this Mortgage as first and prior liens on the Property,
whether now owned or hereafter acquired by Grantor. Unless prohibited by
law or agreed to the contrary by Lender in writing, Grantor shall
reimburse Lender for all costs and expenses incurred in connection with
the matters referred to in this paragraph.
ATTORNEY-IN-FACT. If Grantor fails to do any of the things referred to in
the preceding paragraph, Lender may do so for and in the name of Grantor
and at Grantor's expense. For such purposes, Grantor hereby irrevocably
appoints Lender as Grantor's attorney-in-fact for the purpose
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of making, executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender's sole opinion, to
accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Grantor pays all the Indebtedness, including without
limitation all future advances, when due, and otherwise performs all the
obligations imposed upon Grantor under this Mortgage, Lender shall execute and
deliver to Grantor a suitable satisfaction of this Mortgage and suitable
statements of termination of any financing statement on file evidencing
Lender's security interest in the Rents and the Personal Property. Grantor will
pay, if permitted by applicable law, any reasonable termination fee as
determined by Lender from time to time.
DEFAULT. Each of the following, at the option of Lender, shall constitute an
event of default ("Event of Default") under this Mortgage:
DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any payment when due
on the Indebtedness.
DEFAULT ON OTHER PAYMENTS. Failure of Grantor within the time required by
this Mortgage to make any payment for taxes or insurance, or any other
payment necessary to prevent filing of or to effect discharge of any lien.
COMPLIANCE DEFAULT. Failure of Grantor to comply with any other term,
obligation, covenant or condition contained in this Mortgage, the Note or
in any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor under this Mortgage, the
Note or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished.
DEFECTIVE COLLATERALIZATION. This Mortgage or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral documents to create a valid and perfected security interest or
lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor.
FORECLOSURE, FORFEITURE, ETC. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or
any other method, by any creditor of Grantor or by any governmental
agency against any of the Property. However, this subsection shall not
apply in the event of a good faith dispute by Grantor as to the validity
or reasonableness of the claim which is the basis of the foreclosure or
forfeiture proceeding, provided that Grantor gives Lender written notice
of such claim and furnishes reserves or a surety bond for the claim
satisfactory to Lender.
BREACH OF OTHER AGREEMENT. Any breach by Grantor under the terms of any
other agreement between Grantor and Lender that is not remedied within
any grace period provided therein, including without limitation any
agreement concerning any indebtedness or other obligation of Grantor to
Lender, whether existing now or later.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or any Guarantor dies
or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
INSECURITY. LENDER IN GOOD FAITH DEEMS ITSELF INSECURE.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default
and at any time thereafter, Lender, at its option, may exercise any one or
more of the following rights and remedies, in addition to any other rights or
remedies provided by law:
ACCELERATE INDEBTEDNESS. Lender shall have the right at its option
without notice to Grantor to declare the entire Indebtedness immediately
due and payable, including any prepayment penalty which Grantor would be
required to pay.
UCC REMEDIES. With respect to all or any part of the Personal Property,
Lender shall have all the rights and remedies of a secured party under
the Uniform Commercial Code.
JUDICIAL FORECLOSURE. Lender may obtain a judicial decree foreclosing
Grantor's interest in all or any part of the Property.
DEFICIENCY JUDGMENT. If permitted by applicable law, Lender may obtain a
judgment for any deficiency remaining in the Indebtedness due to Lender
after application of all amounts received from the exercise of the rights
provided in this section.
TENANCY AT SUFFERANCE. If Grantor remains in possession of the Property
after the Property is sold as provided above or Lender otherwise becomes
entitled to possession of the Property upon default of Grantor, Grantor
shall become a tenant at sufferance of Lender or the purchaser of the
Property and shall, at Lender's option, either (a) pay a reasonable
rental for the use of the Property, or (b) vacate the Property
immediately upon the demand of Lender.
OTHER REMEDIES. Lender shall have all other rights and remedies provided
in this Mortgage or the Note or available at law or in equity.
SALE OF THE PROPERTY. To the extent permitted by applicable law, Grantor
hereby waives any and all right to have the property marshalled. In
exercising its rights and remedies, Lender shall be free to sell all or
any part of the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any public sale on all
or any portion of the Property.
NOTICE OF SALE. Lender shall give Grantor reasonable notice of the time
and place of any public sale of the Personal Property or of the time
after which any private sale or other intended disposition of the Personal
Property is to be made. Reasonable notice shall mean notice given at
least ten (10) days before the time of the sale or disposition.
WAIVER; ELECTION OF REMEDIES. A waiver by any party of a breach of a
provision of this Mortgage shall not constitute a waiver of or prejudice
the party's rights otherwise to demand strict compliance with that
provision or any other provision. Election by Lender to pursue any remedy
shall not exclude pursuit of any other remedy, and an election to make
expenditures or take action to perform an obligation of Grantor under
this Mortgage after failure of Grantor to perform shall not affect
Lender's right to declare a default and exercise its remedies under this
Mortgage.
ATTORNEYS' FEES; EXPENSES. If Lender institutes any suit or action to
enforce any of the terms of this Mortgage, Lender shall be entitled to
recover
<PAGE>
03-30-2000 MORTGAGE PAGE 6
(CONTINUED)
================================================================================
such sum as the court may adjudge reasonable as reasonable attorneys'
fees at trial and on any appeal. Whether or not any court action is
involved, all reasonable expenses incurred by Lender that in Lender's
opinion are necessary at any time for the protection of its interest or
the enforcement of its rights shall become a part of the indebtedness
payable on demand and shall bear interest from the date of expenditure
until repaid at the rate provided for in the Note. Expenses covered by
this paragraph include, without limitation, however subject to any limits
under applicable law, Lender's reasonable attorneys' fees and Lender's
legal expenses whether or not there is a lawsuit, including reasonable
attorneys' fees for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals and any anticipated
post-judgment collection services, the cost of searching records,
obtaining title reports (including foreclosure reports), surveyors'
reports, and appraisal fees, and title insurance, to the extent permitted
by applicable law. Grantor also will pay any court costs, in addition to
all other sums provided by law.
NOTICES TO GRANTOR AND OTHER PARTIES. Any notice under this Mortgage,
including without limitation any notice of default and any notice of sale,
may be given manually or by mail or courier service. Notice given by
registered or certified mail is deemed given when deposited in the United
States mail, properly directed to the intended recipient's address shown near
the beginning of this Mortgage and with postage fully prepaid. Notice
otherwise given is deemed given when actually received by the recipient or
when delivered to the address to which properly sent. Any party may change its
address for notices under this Mortgage by giving written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Grantor agrees to keep Lender informed at all
times of Grantor's current address. If more than one person constitutes
Grantor, notice given to either or any of them is deemed given to both or all
of them.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Mortgage:
AMENDMENTS. This Mortgage, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Mortgage. No alteration of or amendment to
this Mortgage shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
ANNUAL REPORTS. If the Property is used for purposes other than Grantor's
residence, Grantor shall furnish to Lender, upon request, a certified
statement of net operating income received from the Property during
Grantor's previous fiscal year in such form and detail as Lender shall
require. "Net operating income" shall mean all cash receipts from the
Property less all cash expenditures made in connection with the operation
of the Property.
APPLICABLE LAW. THIS MORTGAGE HAS BEEN DELIVERED TO LENDER AND ACCEPTED
BY LENDER IN THE STATE OF FLORIDA. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
CAPTION HEADINGS. Caption headings in this Mortgage are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Mortgage.
MERGER. There shall be no merger of the interest or estate created by
this Mortgage with any other interest or estate in the Property at any
time held by or for the benefit of Lender in any capacity, without the
written consent of Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Mortgage to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision
cannot be so modified, it shall be stricken and all other provisions of
this Mortgage in all other respects shall remain valid and enforceable.
SUCCESSORS AND ASSIGNS. Subject to the limitations stated in this
Mortgage on transfer of Grantor's interest, this Mortgage shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Property becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Mortgage and the Indebtedness
by way of forbearance or extension without releasing Grantor from the
obligations of this Mortgage or liability under the indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Mortgage.
WAIVERS AND CONSENTS. Lender shall not be deemed to have waived any
rights under this Mortgage (or under the Related Documents) unless such
waiver is in writing and signed by Lender. No delay or omission on the
part of Lender in exercising any right shall operate as a waiver of such
right or any other right. A waiver by any party of a provision of this
Mortgage shall not constitute a waiver of or prejudice the party's right
otherwise to demand strict compliance with that provision or any other
provision. No prior waiver by Lender, nor any course of dealing between
Lender and Grantor, shall constitute a waiver of any of Lender's rights
or any of Grantor's obligations as to any future transactions. Whenever
consent by Lender is required in this Mortgage, the granting of such
consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent is required.
ARBITRATION. Any claim or controversy ("Claim") between the parties, whether
arising in contract or tort or by statute including, but not limited to,
Claims resulting from or relating to this Agreement shall, upon the request
of either party, be resolved by arbitration in accordance with the Federal
Arbitration Act (Title 9, US Code). Arbitration proceedings will be conducted
in accordance with the rules for arbitration of financial services disputes
of J.A.M.S./Endispute. The arbitration shall be conducted in any state where
real or personal property collateral for the credit is located or if there is
no collateral, in the state of any Borrower's domicile at the time of the
execution of this Agreement or at the commencement of any arbitration
proceeding. The arbitration hearing shall commence within 90 days of the
demand for arbitration and close within 90 days of commencement, and any
award, which may include legal fees, shall be issued (with a brief written
statement of the reasons therefore) within 30 days of the close of hearing.
Any dispute concerning whether a claim is arbitrable or barred by the statute
of limitations shall be determined by the arbitrator. This arbitration
provision is not intended to limit the right of any party to exercise
self-help remedies, to seek and obtain interim or provisional relief of any
kind or to initiate judicial or non-judicial foreclosure against any real or
personal property collateral.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER 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. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
HEDGE OBLIGATION. All obligations incurred by Borrower under any agreement
between Borrower and Lender or any Lender affiliate now existing or hereafter
entered into, which provides for an interest rate, currency, equity, credit
or commodity swap, cap floor or collar, spot or forward foreign
<PAGE>
03-30-2000 MORTGAGE Page 7
(CONTINUED)
===============================================================================
exchange transaction, cross currency rate swap, currency option, any
combination of, or option with respect to, any of the foregoing or any
similar transactions, for the purpose of hedging Borrower's exposure to
fluctuations in interest rates, exchange rates, currency, stock portfolio or
loan valuations or commodity prices (including any sunch or similar agreement
or transaction entered into by Lender or any Lender affiliate thereof in
connection with any other agreement or transactions between Borrower and
Lender or any Lender affiliate thereof (each a "Hedge Agreement").
SWAP AGREEMENT. In addition to securing payment of the Note, Grantor
acknowledges and agrees that this Mortgage shall also secure Grantor's
obligations under that certain international SWAP Dealers Association, Inc.
Master Agreement dated March 20, 2000, and all exhibits, schedules and
addenda attached thereto by and between Grantor and Lender.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
GRANTOR AGREES TO ITS TERMS.
WITNESSES: GRANTOR:
X /s/ MARVIN W. BINGHAM JR. Regeneration Technologies, Inc.
---------------------------------
PRINT NAME: Marvin W. Bingham Jr.
By: /s/ JAMIE M. GROOMS
--------------------------------
X /s/ HEIDI CARPENTERS Jamie M. Grooms, President
---------------------------------
PRINT NAME: Heidi Carpenters
ATTEST
/s/ JAMES D. CARMELL (Corporate Seal)
-----------------------------------------
Secretary or Assistant Secretary
-------------------------------------------------------------------------------
CORPORATE ACKNOWLEDGEMENT
STATE OF Florida )
-----------------------
) ss
COUNTY OF Alachua )
-----------------------
The foregoing instrument was acknowledged before me this 30th day of March
2000 by JAMIE M. GROOMS, PRESIDENT OF REGENERATION TECHNOLOGIES, INC., a
Florida corporation, on behalf of the corporation. He/she is personally known
to me or has produced FLA. DRIVERS LIC. as identification and did / did not
take an oath.
<TABLE>
<S> <C>
/s/ Marvin W. Bingham, Jr.
-------------------------------------------------
(Signature of Person Taking Acknowledgment)
PRINT NAME: /s/ MARVIN W. BINGHAM JR.
-------------------------------------------------
(Name of Acknowledger Typed, Printed or Stamped)
MARVIN W. BINGHAM, JR.
[SEAL] Comm. No. CC 547201
My Comm. Exp. May 22, 2000 -------------------------------------------------
Bonded thru Richard Ins. Agcy. (Title or Rank)
-------------------------------------------------
(Serial Number, if any)
</TABLE>
===============================================================================
<PAGE>
[LETTERHEAD]
February 17, 2000
Legal Description
For: Regeneration Technologies, Inc.
A portion of Government Lots 1 and 2 in Section 24, Township 8 South,
Range 18 East, and being a portion of Replat of Progress Center as per plat
thereof recorded in Plat Book "P", pages 48 and 49 of the Public Records of
Alachua County, Florida; all lying and being in the City of Alachua,
Alachua County, Florida and being more particularly described as follows:
Parcel C of Replat of Progress Center as per plat thereof recorded in Plat
Book P, pages 48 and 49 of the Public Records of Alachua County, Florida.
Containing 6.20 acres (269,847 square feet), more or less.
Together with a non-exclusive easement created under that certain Cross
Ingress-Egress Easement Agreement by and between Innovation Partners, Ltd.,
a Florida limited partnership and Regeneration Technologies, Inc., a Florida
corporation, dated March 30, 2000 and recorded or to be recorded in the
Public Records of Alachua County, Florida.
