Exhibit 10.22
NATIONSBANK-REGISTERED TRADEMARK-
DISBURSEMENT REQUEST AND AUTHORIZATION
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Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$6,000,000.00 05-24-1999 05-24-2000 4290542-273 441 K44
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
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Borrower: Regeneration Technologies, Inc. Lender: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===================================================================================================================
LOAN TYPE. This is a Variable Rate (1.500% over "Wall Street Journal LIBOR
Rate" which is a fluctuating rate of interest equal to the 1 month London
interbank offered rate as published in the "Money Rates" section of The Wall
Street Journal on the immediately preceding business day as adjusted from
time to time in ▇▇▇▇▇▇'s sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs,
making an initial rate of 6.885%). Revolving Line of Credit Loan to a
Corporation for $6,000,000.00 due on September 24, 2000. This is a secured
renewal loan.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
/ / Personal, Family, or Household Purposes or Personal investment.
/X/ Business (including Real Estate Investment).
SPECIFIC PURPOSE. The specific purpose of this loan is: Support Receivables.
DISBURSEMENT INSTRUCTIONS. ▇▇▇▇▇▇▇▇ understands that no loan proceeds will be
disbursed until all of ▇▇▇▇▇▇'s conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $5,000,000.00 as follows:
Undisbursed Funds: $4,596,189.85
Amount paid to others on ▇▇▇▇▇▇▇▇'s behalf: $1,403,810.15
$1,403,810.15 Renewal of Loan No. 4295542-273
Other Charges Financed: $0.00
-------------
Note Principal: $6,000,000.00
CHARGES PAID IN CASH. ▇▇▇▇▇▇▇▇ has paid or will pay in cash as agreed the
following charges:
Prepaid Finance Charges Paid in Cash: $0.00
Other Charges Paid in Cash: $10,175.00
$10,000.00 Loan Origination Fee
$175.00 Closing Agent Fee
-------------
Total Charges Paid in Cash: $10,175.00
AUTHORIZATION TO DEBIT ACCOUNT FOR CLOSING COSTS. An exhibit, titled
"AUTHORIZATION TO DEBIT ACCOUNT FOR CLOSING COSTS," is attached to this
Authorization and by this reference is made a part of this Authorization just
as if all the provisions, terms and conditions of the Exhibit had been fully
set forth in this Authorization.
AUTOMATIC PAYMENT. An exhibit, titled "AUTOMATIC PAYMENT," is attached to
this Authorization and by this reference is made a part of this Authorization
just as if all the provisions, terms and conditions of the Exhibit had been
fully set forth in this Authorization.
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, ▇▇▇▇▇▇▇▇ REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT
AND THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL
CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO
▇▇▇▇▇▇. THIS AUTHORIZATION IS DATED SEPTEMBER 24, 1999.
BORROWERS:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NATIONSBANK-REGISTERED TRADEMARK-
PROMISSORY NOTE
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Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$6,000,000.00 09-24-1999 09-24-2000 4296542-273 441 K44
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
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Borrower: Regeneration Technologies, Inc. Lender: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===================================================================================================================
Principal Amount: $6,000,000.00 Initial Rate: 6.881% Date of Note:
September 24, 1999
PROMISE TO PAY. Regeneration Technologies, Inc. ("Borrower") promises to pay
to Bank of America, N.A. ("Lender"), or order, in lawful money of the United
States of America, the principal amount of Six Million & 00/100 Dollars
($6,000,000.00) or so much as may be outstanding, together with interest on
the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding
principal plus all accrued unpaid interest on September 24, 2000. In
addition, ▇▇▇▇▇▇▇▇ will pay regular monthly payments of accrued unpaid
interest beginning October 24, 1999, and all subsequent interest payments are
due on the same day of each month after that. The annual interest rate for
this Note is computed on a 365/360 basis; that is, by applying the ratio of
the annual interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at ▇▇▇▇▇▇'s
address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will
be applied first to any unpaid collection costs and any late charges, then to
any unpaid interest, and any remaining amount to principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an independent index which is the "Wall
State Journal LIBOR Rate" which is a fluctuating rate of interest equal to
the 1 month London interbank offered rate as published in the "Money Rates"
section of The Wall Street Journal on the immediately preceding business day
as adjusted from time to time in Lender's sole discretion for then applicable
reserve requirements, deposit insurance assessment rates and other regulatory
costs (the "Index"). The Index is not necessarily the lowest rate charged by
Lender on its loans. If the index becomes unavailable during the term of this
loan, Lender may designate a substitute index after notice to Borrower.
Lender will tell Borrower the current index rate upon ▇▇▇▇▇▇▇▇'s request.
Borrower understands that Lender may make loans based on other rates as
well. The interest rate change will not occur most often than each date of
such change in the Index. The Index currently is 5.381% per annum. The
interest rate to be applied to the unpaid principal balance of this Note will
be at a rate of 1.500 percentage points over the index, resulting in an
initial rate of 6.881% per annum. NOTICE: Under no circumstances will the
effective rate of interest on this Note be more than the maximum rate allowed
by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount
owed earlier than it is due. Early payments will not, unless agreed to by
▇▇▇▇▇▇ in writing, relieve ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇'s obligation to continue to
make payments of accrued unpaid interest. Rather, they will reduce the
principal balance due.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
4.000% of the unpaid portion of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform
when due any other term, obligation, covenant, or condition contained in this
Note or any agreement related to this Note, or in any other agreement or loan
Borrower has with Lender. (c) Any representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf is false or
misleading in any material respects either now or at the time made or
furnished. (▇) ▇▇▇▇▇▇▇▇ becomes insolvent, a receiver is appointed for any
part of ▇▇▇▇▇▇▇▇'s property. ▇▇▇▇▇▇▇▇ makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or against
Borrower under any bankruptcy or insolvency laws. (e) Any creditor tries to
take any of ▇▇▇▇▇▇▇▇'s property on or in which ▇▇▇▇▇▇ has a lien or security
interest. This includes a garnishment of any of ▇▇▇▇▇▇▇▇'s accounts with
▇▇▇▇▇▇. (f) Any guarantor dies or any of the other events described in this
default section occurs with respect to any guarantor of this Note. (g) A
material adverse change occurs in Borrower's financial condition, or ▇▇▇▇▇▇
believes the prospect of payment or performance of the indebtedness is
impaired. (h) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure.
LENDER's RIGHTS. Upon default, ▇▇▇▇▇▇ may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. This Note has been delivered
to Lender and accepted by Lender in the State of Florida. If there is a
lawsuit, ▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇'s request to submit to the jurisdiction
of the courts of ▇▇▇▇▇ County, the State of Florida. This Note shall be
governed by and construed in accordance with the laws of the State of Florida.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest
in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender
all Borrower's right, title and interest in and to, ▇▇▇▇▇▇▇▇'s accounts with
Lender (whether checking, savings, or some other account), including without
limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and ▇▇▇▇▇
accounts, and all trust accounts for which the grant of a security interest
would be prohibited by law. Borrower authorizes ▇▇▇▇▇▇, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note
against any and all such accounts, and, at ▇▇▇▇▇▇'s option, to
administratively freeze all such accounts to allow Lender to protect ▇▇▇▇▇▇'s
charge and setoff rights provided on this paragraph.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances
under this Note, as well as directions for payment from ▇▇▇▇▇▇▇▇'s accounts,
may be requested orally or in writing by Borrower or by an authorized person.
Lender may, but need not, require that all oral requests be confirmed in
writing. ▇▇▇▇▇▇▇▇ agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person or (b) credited to
any of ▇▇▇▇▇▇▇▇'s accounts with ▇▇▇▇▇▇. The unpaid principal balance owing on
this Note at any time may be evidenced by endorsements on this Note or by
▇▇▇▇▇▇'s internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Note if: (a) Borrower or any
guarantor is in default under the terms of this Note or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (b) Borrower or any guarantor
ceases doing business or is insolvent; (c) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of
this Note or any other loan with Lender; (d) Borrower has applied funds
provided pursuant to this Note for purposes other than those authorized by
Lender; or (e) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure under this Note or
any other agreement between Lender and Borrower.
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
Page 2
PROMISSORY NOTE
(Continued)
===============================================================================
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.
DEFAULT INTEREST RATE. Upon default under this Note, including failure to pay
upon final maturity, to the extent permitted by law, the rate of interest on
the unpaid principal shall be increased at ▇▇▇▇▇▇'s discretion up to the
maximum rate allowed by law, or if not, 25% per annum.
NON-USAGE FEE. A non-refundable, non-proratable fee of .25% per annum of the
unused portion of the original principal amount of this Note shall be due and
payable annually, in arrears, commencing September 24, 1999. This fee may be
modified from time to time by Lender upon prior written notice to ▇▇▇▇▇▇▇▇.
YEAR 2000 REPRESENTATIONS AND WARRANTIES. An exhibit, titled "YEAR 2000
REPRESENTATIONS AND WARRANTIES," is attached to this Note and by this
reference is made a part of this Note just as if all the provisions, terms
and conditions of the Exhibit had been fully set forth in this Note.
FINANCIAL COVENANTS. An exhibit, titled "FINANCIAL COVENANTS," is attached to
this Note and by this reference is made a part of this Note just as if all
the provisions, terms and conditions of the Exhibit had been fully set forth
in this Note.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact
will not affect the rest of the Note. Borrower does not agree or intend to
pay, and ▇▇▇▇▇▇ does not agree or intend to contract for, charge, collect,
take, reserve or receive (collectively referred to herein as "charge or
collect"), any amount in the nature of interest or in the nature of a fee for
this loan, which would in any way or event (including demand, prepayment, or
acceleration) cause Lender to charge or collect more for this loan than the
maximum Lender would be permitted to charge or collect by federal law or the
law of the State of Florida (as applicable). Any such excess interest or
unauthorized fee shall, instead of anything stated to the contrary, be
applied first to reduce the principal balance of this loan, and when the
principal has been paid in full, be refunded to Borrower. Lender may delay or
forgo enforcing any of its rights or remedies under this Note without losing
them. Borrower and any other person who signs, guarantees or endorses this
Note, to the extent allowed by law, waive presentment, demand for payment,
protest and notice of dishonor. Upon any change in the terms of this Note,
and unless otherwise expressly stated in writing, no party who signs this
Note, whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan, or release any
party or guarantor or collateral; or impair, fail to realize upon or perfect
▇▇▇▇▇▇'s security interest in the collateral; and take any other action
deemed necessary by Lender without the consent of or notice to anyone. All
such parties also agree that ▇▇▇▇▇▇ may modify this loan without the consent
of or notice to anyone other than the party with whom the modification is
made.
PRIOR TO SIGNING THIS NOTE, ▇▇▇▇▇▇▇▇ READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. ▇▇▇▇▇▇▇▇
AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY
OF THE NOTE.
BORROWER: THIS INSTRUMENT WAS MADE, EXECUTED
AND DELIVERED OUTSIDE THE STATE OF
Regeneration Technologies, Inc. FLORIDA, AND NO FLORIDA DOCUMENTARY
STAMP TAX IS DUE HEREON IN
ACCORDANCE WITH F.A.C. 128-4.053
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
===============================================================================
NATIONSBANK-Registered Trademark-
LOAN AGREEMENT
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Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$5,000,000.00 09-24-1999 09-24-2000 4296542-273 441 K44
-----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
-----------------------------------------------------------------------------------------------------------------------------------
Borrower: Regeneration Technologies, Inc. Lender: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===================================================================================================================
THIS LOAN AGREEMENT between Regeneration Technologies, Inc. ("Borrower") and
Bank of America, N.A. ("Lender") is made and executed on the following terms
and conditions. Borrower has received prior commercial loans from Lender or
has applied in Lender for a commercial loan or loans and other financial
accommodations, including those which may be described on any exhibit or
schedule attached to this Agreement. All such loans and financial
accommodations, together with all future loans and financial accommodations
from Lender to Borrower, are referred to in this Agreement individually as
the "Loan" and collectively as the "Loans." Borrower understands and agrees
that: (a) in granting, renewing, or extending any Loan, Lender is relying
upon Borrower's representations, warranties, and agreements, as set forth in
this Agreement; (b) the granting, renewing, or extending of any Loan by
Lender at all times shall be subject to ▇▇▇▇▇▇'s sole judgment and
discretion; and (c) all such Loans shall be and shall remain subject to the
following terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of September 24, 1999, and shall
continue thereafter until all indebtedness of Borrower to Lender has been
performed in full and the parties terminate this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement 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.
AGREEMENT. The word "Agreement" means this Loan Agreement, as this Loan
Agreement may be amended or modified from time to time, together with
all exhibits and schedules attached to this Loan Agreement from time to
time.
ACCOUNT. The word "Account" means a trade account, account receivable,
or other right to payment for goods sold or services rendered owing to
Borrower (or to a third party grantor acceptable to Lender).
ACCOUNT DEBTOR. The words "Account Debtor" mean the person or entity
obligated upon an Account.
ADVANCE. The word "Advance" means a disbursement of Loan funds under
this Agreement.
BORROWER. The word "Borrower" means Regeneration Technologies, Inc. The
word "Borrower" also includes, as applicable, all subsidiaries and
affiliates of Borrower as provided below in the paragraph titled
"Subsidiaries and Affiliates."
BORROWING BASE. The words "Borrowing Base" mean, as determined by ▇▇▇▇▇▇
from time to time, the lesser of (a) $5,000,000.00; or (b) 80.000% of
the aggregate amount of Eligible Accounts.
CERCLA. The word "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
COLLATERAL. The word "Collateral" means and includes without limitation
all property and assets granted as collateral security for a Loan,
whether real or personal property, whether granted directly or
indirectly, whether granted now or in the future, and whether granted in
the form of a security interest, mortgage, deed of trust, assignment,
pledge, chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention
contract, lease or consignment intended as a security device, or any
other security or lien interest whatsoever, whether created by law,
contract, or otherwise. The word "Collateral" includes without
limitation all collateral described below in the section titled
"COLLATERAL."
ELIGIBLE ACCOUNTS. The words "Eligible Accounts" mean, at any time, all
of Borrower's Accounts which contain selling terms and conditions
acceptable to Lender. The net amount of any Eligible Account against
which Borrower may borrow shall exclude all returns, discounts, credits,
and offsets of any nature. Unless otherwise agreed to by ▇▇▇▇▇▇ in
writing. Eligible Accounts do not include:
(a) Accounts with respect to which the Account Debtor is an
officer, an employee or agent of ▇▇▇▇▇▇▇▇.
(b) Accounts with respect to which the Account Debtor is a
subsidiary of, or affiliated with or related to Borrower or its
shareholders, officers, or directors.
(c) Accounts with respect to which goods are placed on consignment,
guaranteed sale, or other terms by reason of which the payment by
the Account Debtor may be conditional.
(d) Accounts with respect to which the Borrower is or may become
liable to the Account Debtor for goods sold or services rendered by
the Account Debtor to Borrower.
(e) Accounts which are subject to dispute, counterclaim, or setoff.
(f) Accounts with respect to which the goods have not been shipped
or delivered, or the services have not been rendered, to the
Account Debtor.
(g) Accounts with respect to which ▇▇▇▇▇▇, in its sole discretion,
deems the creditworthiness or financial condition of the Account
Debtor to be unsatisfactory.
(h) Accounts of any Account Debtor who has filed or has had filed
against it a petition in bankruptcy or an application for relief
under any provision of any state or federal bankruptcy, insolvency,
or debtor-in-relief acts; or who has had appointed a trustee,
custodian, or receiver for the assets of such Account Debtor; or
who has made an assignment for the benefit of creditors or has
become insolvent or fails generally to pay its debts (including its
payrolls) as such debts become due.
(i) Accounts with respect to which the Account Debtor is the United
States government or any department or agency of the United States.
(j) Accounts which have not been paid in full within 90 DAYS from
the invoice date. The entire balance of any Account of any single
Account debtor will be ineligible whenever the portion of the
Account which has not been paid within 90 DAYS from the invoice
date is in excess of 50.000% of the total amount outstanding on
the Account.
(k) (k) Any portion of any Account Debtor's total balance is
subject to potential offset by virtue of outstanding amounts
simultaneously owed by the Borrower to that Account Debtor, than an
amount equal to the lessor of remaining eligible trade receivable
balance or outstanding
RA
09-24-1999 LOAN AGREEMENT Page 2
(Continued)
===============================================================================
payable; (l) any balance of any Account Debtor which exceeds
20.000% of total outstanding trade receivables of the Borrower; (m)
any balance of a foreign-based Account Debtor, unless supported by
a letter of credit or credit insurance naming ▇▇▇▇▇▇ as
beneficiary; (n) any outstanding finance charges accessed to an
Account Debtor; (o) any outstanding invoices of an Account Debtor
issued with cash or COD terms shall be deemed ineligible if on the
books for more than standard sales terms; (p) Lender, at its sole
discretion, reserves the right to deem any accounts receivable
balance ineligible. This includes Equipment Receivables, dating
Term Receivables, and Unapplied Credits that are greater than 90
days from invoice date.
ERISA. The word "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "EVENTS OF DEFAULT."
EXPIRATION DATE. The words "Expiration Date" mean the date of
termination of ▇▇▇▇▇▇'s commitment to lend under this Agreement.
GRANTOR. The word "Grantor" means and includes without limitation each
and all of the persons or entities granting a Security Interest in any
Collateral for the Indebtedness, including without limitation all
Borrowers granting such a Security Interest.
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with any indebtedness.
INDEBTEDNESS. The word "Indebtedness" means and includes without
limitation all Loans, together with all other obligations, debts and
liabilities of Borrower to Lender, or any one or more of them, as well
as all claims by Lender against Borrower, or any one or more of them;
whether now or hereafter existing, voluntary or involuntary, due or not
due, absolute or contingent, liquidated or unliquidated; whether
Borrower may be liable individually or jointly with others; whether
Borrower may be obligated as a guarantor, surety, or otherwise; whether
recovery upon such indebtedness may be or hereafter may become barred by
any statute of limitations; and whether such indebtedness may be or
hereafter may become otherwise unenforceable.
LENDER. The word "Lender" means Bank of America, N.A., its successors
and assigns.
LINE OF CREDIT. The words "Line of Credit" mean the credit facility
described in the Section titled "LINE OF CREDIT" below.
LOAN. The word "Loan" or "Loans" means and includes without limitation
any and all commercial loans and financial accommodations from Lender to
Borrower, whether now or hereafter existing, and however evidenced,
including without limitation these loans and financial accommodations
described herein or described on any exhibit or schedule attached to
this Agreement from time to time.
NOTE. The word "Note" means and includes without limitation Borrower's
promissory note or notes, if any, evidencing Borrower's Loan obligations
in favor of Lender, as well as any substitute, replacement or
refinancing note or notes therefor.
PERMITTED LIENS. The words "Permitted Liens" mean: (a) liens and
security interests securing indebtedness owed by ▇▇▇▇▇▇▇▇ to Lender, (b)
liens for taxes, assessments, or similar charges either not yet due or
being contested in good faith; (c) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary
course of business and securing obligations which are not yet
delinquent; (d) purchase money liens or purchase money security
interests upon or in any property acquired or held by Borrower in the
ordinary course of business to secure indebtedness outstanding on the
date of this Agreement or permitted to be incurred under the paragraph
of this Agreement titled "Indebtedness and Liens"; (e) liens and
security interests which, as of the date of this Agreement, have been
disclosed to and approved by the Lender in writing; and (f) those liens
and security interests which in the aggregate constitute an immaterial
and insignificant monotary amount with respect to the net value of
Borrower's assets.
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.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
SECURITY INTEREST. The words "Security Interest" mean and include
without limitation any type of collateral security, whether in the form
of a lien, charge, mortgage, deed of trust, assignment, pledge, chattal
mortgage, chattel trust, factor's lien, equipment trust, conditional
sale, trust receipt, lien or title retention contract, lease or
consignment intended as a security device, or any other security or lien
interest whatsoever, whether created by law, contract, or otherwise.
▇▇▇▇. The word "▇▇▇▇" means the Superfund Amendments and Reauthorization
Act of 1986 as now or hereafter amended.
LINE OF CREDIT. ▇▇▇▇▇▇ agrees to make Advances to Borrower from time to time
from the date of this Agreement to the Expiration Date, provided the
aggregate amount of such Advances outstanding at any time does not exceed the
Borrowing Base. Within the foregoing limits, Borrower may borrow, partially
or wholly prepay, and reborrow under this Agreement as follows.
CONDITIONS PRECEDENT TO EACH ADVANCE. ▇▇▇▇▇▇'s obligation to make any
Advance to or for the account of Borrower under this Agreement is
subject to the following conditions precedent, with all documents,
instruments, opinions, reports, and other items required under this
Agreement to be in form and substance satisfactory to Lender.
(a) Lender shall have received evidence that this Agreement and all
Related Documents have been duly authorized, executed, and
delivered by ▇▇▇▇▇▇▇▇ to Lender.
(b) ▇▇▇▇▇▇ shall have received such opinions of counsel,
supplemental opinions, and documents as ▇▇▇▇▇▇ may request.
(c) The security interests in the Collateral shall have been duly
authorized, created, and perfected with first lien priority and
shall be in full force and effect.
(d) All guaranties required by Lender for the Line of Credit shall
have been executed by each Guarantor, delivered to Lender; and be
in full force and effect.
(e) Lender, at its option and for its sole benefit, shall have
conducted an audit of ▇▇▇▇▇▇▇▇'s Accounts, books, records, and
operations, and Lender shall be satisfied as to their condition.
(f) Borrower shall have paid to Lender all fees, costs, and
expenses specified in this Agreement and the Related Documents as
are then due and payable.
(g) There shall not exist at the time of any Advance a condition
which would constitute an Event of Default under this Agreement,
and Borrower shall have delivered to Lender the compliance
certificate called for in the paragraph below titled "Compliance
Certificate."
MAKING LOAN ADVANCES. Advances under the credit facility, as well as
directions for payment from ▇▇▇▇▇▇▇▇'s accounts, may be requested orally
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09-24-1999 LOAN AGREEMENT Page 3
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or in writing by authorized persons. Lender may, but need not, require that
all oral requests be confirmed in writing. Each Advance shall be
conclusively deemed to have been made at the request of and for the benefit
of Borrower (a) when credited to any deposit account of ▇▇▇▇▇▇▇▇ maintained
with Lender or (b) when advanced in accordance with the instructions of an
authorized person. Lender, at its option, may set a cutoff time, after
which all requests for Advances will be treated as having been requested on
the next succeeding Business Day.
MANDATORY LOAN REPAYMENTS. If at any time the aggregate principal amount of
the outstanding Advances shall exceed the applicable Borrowing Base,
Borrower, immediately upon written or oral notice from Lender, shall pay to
Lender an amount equal to the difference between the outstanding principal
balance of the Advances and the Borrowing Base. On the Expiration Date,
Borrower shall pay to Lender in full the aggregate unpaid principal amount
of all Advances then outstanding and all accrued unpaid interest, together
with all other applicable fees, costs and charges, if any, not yet paid.
LOAN ACCOUNT. Lender shall maintain on its books a record of account in
which Lender shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the credit facility.
Lender shall provide Borrower with periodic statements of ▇▇▇▇▇▇▇▇'s
account, which statements shall be considered to be correct and
conclusively binding on Borrower unless Borrower notifies Lender to the
contrary within thirty (30) days after ▇▇▇▇▇▇▇▇'s receipt of any such
statement which Borrower deems to be incorrect.
COLLATERAL. To secure payment of the Line of Credit and performance of all other
Loans, obligations and duties owned by Borrower to Lender. Borrower (and others,
if required) shall grant to Lender Security Interests in such property and
assets as Lender may require (the "Collateral"), including without limitation
Borrower's present and future Accounts and general intangibles. Lender's
Security Interests in the Collateral shall be continuing liens and shall include
the proceeds and products of the Collateral, including without limitation the
proceeds of any insurance. With respect to the Collateral, ▇▇▇▇▇▇▇▇ agrees and
represents and warrants to ▇▇▇▇▇▇:
PERFECTION OF SECURITY INTEREST. ▇▇▇▇▇▇▇▇ agrees to execute such financing
statements and to take whatever other actions are requested by ▇▇▇▇▇▇ to
perfect and continue ▇▇▇▇▇▇'s Security Interests in the Collateral. Upon
request of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ will deliver to Lender any and all of the
documents evidencing or constituting the Collateral, and Borrower will note
▇▇▇▇▇▇'s interest upon any and all chattel paper if not delivered to Lender
for possession by ▇▇▇▇▇▇. Contemporaneous with the execution of this
Agreement. Borrower will execute one or more UCC financing statements and
any similar statements as may be required by applicable law, and will file
such financing statements and all such similar statements in the
appropriate location or locations. Borrower hereby appoints ▇▇▇▇▇▇ as its
irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect or to continue any Security Interest. Lender may at
any time, and without further authorization from Borrower, file a carbon,
photograph, facsimile, or other reproduction of any financing statement for
use as a financing statement. Borrower will reimburse Lender for all
expenses for the perfection, termination, and the continuation of the
perfection of ▇▇▇▇▇▇'s security interest in the Collateral. Borrower
promptly will notify Lender of any change in ▇▇▇▇▇▇▇▇'s name including any
change to the assumed business names of ▇▇▇▇▇▇▇▇. Borrower also promptly
will notify Lender of any change in Borrower's Social Security Number or
Employer identification Number. ▇▇▇▇▇▇▇▇ further agrees to notify ▇▇▇▇▇▇ in
writing prior to any change in address or location of ▇▇▇▇▇▇▇▇'s principal
governance office or should Borrower merge or consolidate with any other
entity.
COLLATERAL RECORDS. Borrower does now, and at all times hereafter shall,
keep correct and accurate records of the Collateral, all of which records
shall be available to Lender or ▇▇▇▇▇▇'s representative upon demand for
inspection and copying at any reasonable time. With respect to the
Accounts, ▇▇▇▇▇▇▇▇ agrees to keep and maintain such records as Lender may
require, including without limitation information concerning Eligible
Accounts and Account balances and agings.
COLLATERAL SCHEDULES. Concurrently with the execution and delivery of this
Agreement, ▇▇▇▇▇▇▇▇ shall execute and deliver to Lender a schedule of
Accounts and Eligible Accounts, in form and substance satisfactory to the
Lender. Thereafter and at such frequency as Lender shall require, Borrower
shall execute and deliver to Lender such supplemental schedules of Eligible
Accounts and such other matters and information relating to ▇▇▇▇▇▇▇▇'s
Accounts as Lender may request.
REPRESENTATIONS AND WARRANTIES CONCERNING ACCOUNTS. With respect to the
Accounts, Borrower represents and warrants to Lender: (a) Each Account
represented by Borrower to be an Eligible Account for purposes of this
Agreement conforms to the requirements of the definition of an Eligible
Account; (b) All Account information listed on schedules delivered to
Lender will be true and correct, subject to immaterial variance; and (c)
Lender, its assigns, or agents shall have the right at any time and at
Borrower's expense to inspect, examine, and audit ▇▇▇▇▇▇▇▇'s records and to
confirm with Account Debtors the accuracy of such Accounts.
REMITTANCE ACCOUNT. ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ may at any time require
Borrower to institute procedures whereby the payments and other proceeds of
the Accounts shall be paid by the Account Debtors under a remittance
account or lock box arrangement with ▇▇▇▇▇▇, or ▇▇▇▇▇▇'s agent, or with one
or more financial institutions designated by Lender. Borrower further
agrees that, if no Event of Default exists under this Agreement, any and
all of such funds received under such a remittance account or lock box
arrangement shall, at ▇▇▇▇▇▇'s sole election and discretion, either be (a)
paid or turned over to Borrower; (b) deposited into one or more accounts
for the benefit of Borrower (which deposit accounts shall be subject to a
security assignment in favor of Lender); (c) deposited into one or more
accounts for the joint benefit of Borrower and Lender (which deposit
accounts shall likewise be subject to a security assignment in favor of
▇▇▇▇▇▇); (d) paid or turned over to Lender to be applied to the
indebtedness in such order and priority as Lender may determine within its
sole discretion; or (a) any combination of the foregoing as Lender shall
determine from time to time. ▇▇▇▇▇▇▇▇ further agrees that, should one or
more Events of Default exist, any and all funds received under such a
remittance account or lock box arrangement shall be paid or turned over to
Lender to be applied to the indebtedness, again in such order and priority
as Lender may determine within its sole discretion.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any indebtedness exists:
ORGANIZATION. Borrower is a corporation which is duly organized, validly
existing, and in good standing under the laws of the state of Borrower's
incorporation and is validly existing and in good standing in all states in
which Borrower is doing business. Borrower has the full power and authority
to own its properties and to transact the businesses in which it is
presently engaged or presently proposes to engage. Borrower also is duly
qualified as a foreign corporation and is in good standing in all states in
which the failure to so qualify would have a material adverse effect on its
businesses or financial condition.
AUTHORIZATION. The execution, delivery, and performance of this Agreement
and all Related Documents by Borrower, to the extent to be executed,
delivered or performed by Borrower, have been duly authorized by all
necessary action by Borrower; do not require the consent or approval of any
other person, regulatory authority or governmental body; and do not
conflict with, result in a violation of, or constitute a default under
(a) any provision of its articles of incorporation or organization, or
bylaws, or any agreement or other instrument binding upon Borrower or
(b) any law, governmental regulation, court decree, or order applicable to
Borrower.
FINANCIAL INFORMATION. Each financial statement of ▇▇▇▇▇▇▇▇ supplied to
Lender truly and completely disclosed ▇▇▇▇▇▇▇▇'s financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by ▇▇▇▇▇▇▇▇ when delivered will constitute,
legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms.
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09-24-1999 LOAN AGREEMENT Page 4
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PROPERTIES. Except for Permitted Liens, ▇▇▇▇▇▇▇▇ owns and has good title to
all of Borrower's properties free and clear of all Security interests, and
has not executed any security documents or financing statements relating
to such properties. All of ▇▇▇▇▇▇▇▇'s properties are titled in Borrower's
legal name, and ▇▇▇▇▇▇▇▇ has not used, or filed a financing statement
under, any other name for at least the last five (5) years.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the "CERCLA," "▇▇▇▇," the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1501, 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. Except as disclosed to and
acknowledged by ▇▇▇▇▇▇ in writing, ▇▇▇▇▇▇▇▇ represents and warrants that:
(a) During the period of Borrower's ownership of the properties, 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 any of the properties. (b) Borrower has no knowledge
of, or reason to believe that there has been (i) any use, generation,
manufacture, storage, treatment, disposal, release, or threatened release
of any hazardous waste or substance on, under, about or from the properties
by any price owners or occupants of any of the properties, or (ii) any
actual or threatened litigation or claims of any kind by any person
relating to such matters. (c) Neither Borrower nor any tenant, contractor,
agent or other authorized user of any of the properties shall use,
generate, manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from any of the properties; and 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. Borrower
authorizes Lender and its agents to enter upon the properties to make such
inspections and tests as Lender may deem appropriate to determine
compliance of the properties with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Borrower or to any
other person. The representations and warranties contained herein are based
on Borrower's due diligence in investigating the properties for hazardous
waste and hazardous substances. Borrower hereby (a) releases and waives any
future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and
(b) agrees to indemnity 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 Agreement 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 Agreement, including the obligation to indemnify, shall
survive the payment of the indebtedness and the termination or expiration
of this Agreement and shall not be affected by Lender's acquisition of any
interest in any of the properties, whether by foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by ▇▇▇▇▇▇ in writing.
TAXES. To the best of ▇▇▇▇▇▇▇▇'s knowledge, all tax returns and reports of
Borrower that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have
been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
▇▇▇▇▇▇▇▇ has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Loan and Note, that would be prior or that may in any way be
superior to ▇▇▇▇▇▇'s Security Interests and rights in and to such
Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements directly
or indirectly securing repayment of ▇▇▇▇▇▇▇▇'s Loan and Note and all of the
Related Documents are binding upon Borrower as well as upon ▇▇▇▇▇▇▇▇'s
successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
COMMERCIAL PURPOSES. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes.
EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which Borrower may
have any liability complies in all material respects with all applicable
requirements of law and regulations, and (i) no Reportable Event nor
Prohibited Transaction (as defined in ERISA) has occurred with respect to
any such plan, (ii) Borrower has not withdrawn from any such plan or
initiated steps to do so, (iii) no steps have been taken to terminate any
such plans, and (iv) there are no unfunded liabilities other than those
previously disclosed to Lender in writing.
LOCATION OF BORROWER'S OFFICES AND RECORDS. Borrower's place of business,
or ▇▇▇▇▇▇▇▇'s Chief executive office, if ▇▇▇▇▇▇▇▇ has more than one place
of business, is located at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Unless
borrower has designated otherwise in writing this location is also the
office or offices where Borrower keeps its records concerning the
Collateral.
INFORMATION. All information heretofore or contemporaneously herewith
furnished by Borrower to Lender for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrower to Lender will
be true and accurate in every material respect on the date as of which such
information is dated or certified; and none of such information is or will
be incomplete by omitting to state any material fact necessary to make such
information not misleading.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ▇▇▇▇▇▇▇▇ understands and agrees
that ▇▇▇▇▇▇, without independent investigation, is relying upon the above
representations and warranties in extending Loan Advances to Borrower.
▇▇▇▇▇▇▇▇ further agrees that the foregoing representations and warranties
shall be continuing in nature and shall remain in full force and effect
until such time as ▇▇▇▇▇▇▇▇'s indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with ▇▇▇▇▇▇ that, while
this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform ▇▇▇▇▇▇ in writing of (a) all material adverse
changes in Borrower's financial condition, and (b) all existing and all
threatened litigation, claims, investigations, administrative proceedings
or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial
condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit ▇▇▇▇▇▇ to examine and audit ▇▇▇▇▇▇▇▇'s books and records at all
reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but in no
event later than one hundred fifty (150) days after the end of each fiscal
year, ▇▇▇▇▇▇▇▇'s balance sheet and income statement for the year ended,
audited by a certified public accountant satisfactory to Lender, and, as
soon as available, but in no event later than fifty (50) days after the end
of each fiscal quarter, Borrower's balance sheet and profit and loss
statement for the period ended, prepared and certified as correct to the
best knowledge and belief by ▇▇▇▇▇▇▇▇'s chief financial officer or other
officer or person acceptable to ▇▇▇▇▇▇. All financial reports required to
be provided under this Agreement shall be prepared in accordance with
generally accepted accounting principles, applied on a consistent basis,
and certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables,
inventory schedules, budgets, forecasts, tax returns, and other reports
with respect to ▇▇▇▇▇▇▇▇'s financial condition and business operations as
Lender may request from time to time.
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
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09-24-1999 LOAN AGREEMENT Page 5
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Borrower's properties and operations, in form, amounts, coverages and
with insurance companies reasonably acceptable to Lender. Borrower, upon
request of ▇▇▇▇▇▇, will deliver to Lender from time to time the policies
or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without
at least thirty (30) days' prior written notice to Lender. 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 Borrower or any other person. In connection with all policies covering
assets in which Lender holds or is offered a security interest for the
Loans, Borrower will provide Lender with such loss payable or other
endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (a) the
name of the insurer; (b) the risks insured; (c) the amount of the policy;
(d) the properties insured; (e) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
these values; and (f) the expiration date of the policy. In addition,
upon request of Lender (however not more often than annually), Borrower
will have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
The cost of such appraisal shall be paid by Borrower.
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for ▇▇▇▇▇▇▇▇'s business
operations, unless specifically consented to the contrary by ▇▇▇▇▇▇ in
writing.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon Borrower or its properties, income, or profits,
prior to the date on which penalties would attach, and all lawful claims
that, if unpaid, might become a lien or charge upon any of Borrower's
properties, income, or profits. Provided however, ▇▇▇▇▇▇▇▇ will not be
required to pay and discharge any such assessment, tax, charge, ▇▇▇▇,
▇▇▇▇ or claim so long as (a) the legality of the same shall be contested
in good faith by appropriate proceedings, and (b) Borrower shall have
established on its books adequate reserves with respect to such contested
assessment, tax, charge, levy, lien, or claim in accordance with
generally accepted accounting practices. ▇▇▇▇▇▇▇▇, upon demand of
Lender, will furnish to Lender evidence of payment of the assessments,
taxes, charges, levies, liens and claims and will authorize the
appropriate governmental official to deliver to Lender at any time a
written statement of any assessments, taxes, charges, levies, liens and
claims against ▇▇▇▇▇▇▇▇'s properties, income, or profits.
PERFORMANCE. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and in the Related Documents in a
timely manner, and promptly notify ▇▇▇▇▇▇ if ▇▇▇▇▇▇▇▇ learns of the
occurrence of any event which constitutes an Event of Default under this
Agreement or under any of the Related Documents.
OPERATIONS. Maintain executive and management personnel with
substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of
any change in executive and management personnel; conduct its business
affairs in a reasonable and prudent manner and in compliance with all
applicable federal, state and municipal laws, ordinances, rules and
regulations respecting its properties, charters, businesses and
operations, including without limitation, compliance with the Americans
With Disabilities Act and with all minimum funding standards and other
requirements of ERISA and other laws applicable to Borrower's employee
benefit plans.
INSPECTION. Permit employees or agents of Lender at any reasonable time
to inspect any and all Collateral for the Loan or Loans and ▇▇▇▇▇▇▇▇'s
other properties and to examine or audit ▇▇▇▇▇▇▇▇'s books, accounts, and
records and to make copies and memoranda of ▇▇▇▇▇▇▇▇'s books, accounts,
and records. If Borrower now or at any time hereafter maintains any
records (including without limitation computer generated records and
computer software programs for the generation of such records) in the
possession of a third party, Borrower, upon request of ▇▇▇▇▇▇, shall
notify such party to permit Lender free access to such records at all
reasonable times and to provide Lender with copies of any records it may
request, all at Borrower's expense.
COMPLIANCE CERTIFICATE. Unless waived in writing by ▇▇▇▇▇▇, provide
▇▇▇▇▇▇ at ▇▇▇▇▇▇'s request and at the time of each disbursement of Loan
proceeds with a certificate executed by ▇▇▇▇▇▇▇▇'s chief financial
officer, or other officer or person acceptable to ▇▇▇▇▇▇, certifying that
the representations and warranties set forth in this Agreement are true
and correct as of the date of the certificate and further certifying
that, as of the date of the certificate, no Event of Default exists under
this Agreement.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Borrower shall comply in all
respects with all environmental protection federal, state and local laws,
statutes, regulations and ordinances; not cause or permit to exist, as a
result of an intentional or unintentional action or omission on its part
or on the part of any third party, on property owned and/or occupied by
Borrower, any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate
federal, state or local governmental authorities; shall furnish to Lender
promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other
communication from any governmental agency or instrumentality concerning
any intentional or unintentional action or omission on Borrower's part in
connection with any environmental activity whether or not there is damage
to the environment and/or other natural resources.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security agreements,
financing statements, instruments, documents and other agreements as
Lender or its attorneys may reasonably request to evidence and secure the
Loans and to perfect all Security Interests.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (a) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital losses, (b) except as allowed as a Permitted Lien, sell,
transfer, mortgage, assign, pledge, lease, grant a security interest in, or
encumber any of Borrower's assets, or (c) sell with recourse any of
Borrower's Accounts, except to Lender.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(b) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change ownership, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business, (c) pay
any dividends on Borrower's stock (other than dividends payable in its
stock), provided, however that notwithstanding the foregoing, but only so
long as no Event of Default has occurred and is continuing or would result
from the payment of dividends, if Borrower is a "Subchapter S Corporation"
(as defined in the Internal Revenue Code of 1988, as amended), Borrower may
pay cash dividends on its stock to its shareholders from time to time in
amounts necessary to enable the shareholders to pay income taxes and make
estimated income tax payments to satisfy their liabilities under federal
and state law which arise solely from their status as Shareholders of a
Subchapter S Corporation because of their ownership of shares of stock of
Borrower, or (d) purchase or retire any of Borrower's outstanding shares or
alter or amend Borrower's capital structure.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance money or
assets, (b) purchase, create or acquire any interest in any other
enterprise or entity, or (c) incur any obligation as surety or guarantor
other than in the ordinary course of business.
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09-24-1999 LOAN AGREEMENT Page 6
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================================================================================
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(a) Borrower or any Guarantor in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (b) Borrower or any Guarantor becomes insolvent,
files a petition in bankruptcy or similar proceedings, or is adjudged a
bankrupt; (c) there occurs a material adverse change in Borrower's financial
condition, in the financial condition of any Guarantor, or in the value of any
Collateral securing any Loan; (d) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or
any other loan with Lender; or (e) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure,
even though no Event of Default shall have occurred.
AGING REPORTS REQUIREMENT. Unless otherwise waived or modified in writing by
▇▇▇▇▇▇, in addition to such other information, statements and reports. Borrower
shall from time to time hereafter but not less than monthly, execute and deliver
to Lender no later than the 30th day of each month during the term of this
Agreement, a detailed aging of ▇▇▇▇▇▇▇▇'s accounts receivable by total, a
summary aging of accounts receivable by account debtor and a reconciliation
statement. In addition, ▇▇▇▇▇▇▇▇ shall also execute and deliver to Lender a
detailed aging of ▇▇▇▇▇▇▇▇'s accounts payable by total, a summary aging of
accounts payable by account creditor and a reconciliation statement.
BORROWING BASE REPORTING. Notwithstanding anything to the contrary contained in
this Agreement, Borrower shall supply a weekly borrowing base certificate (or
more frequently, if required due to availability shortfall). Monthly borrowing
base certificate supported by accounts receivable aging, accounts payable aging,
and end of month company prepared financial statements. Ineligible collateral
figures adjusted at each month and or more frequently by the Borrower, at the
discretion of ▇▇▇▇▇▇'s Asset Based Lending Services. All monthly required
reports will be due no later than 30 days after the end of each month.
SEMI-ANNUAL AUDITS. Semi-annual audits of Borrower's Collateral will be
performed by Lender or its Agent, and the Borrower will be responsible for all
costs of said audits. If circumstances warrant, ▇▇▇▇▇▇'s Asset Based Lending
Services may recommend changes in frequency of audits at it's sole discretion.
CONTINGENT LIABILITIES. Notwithstanding anything to the contrary contained in
this Agreement, Borrower shall inform Lender of any actual or potential
contingent liabilities in excess of $250,000.00.
ADDITIONAL DEBT. Notwithstanding anything to the contrary contained in this
Agreement, Borrower shall not incur any additional debt in excess of $100,000.00
without prior consent from Lender. In addition, Borrower shall not pledge or
mortgage any assets except for purchase money as within $100,000.00 limitation.
FINANCIAL COVENANTS AND RATIOS. Borrower shall maintain a Fixed Charge Ratio of
1.10 to 1.00 or greater to be measured on a rolling four (4) quarters basis
beginning December 31, 1999. Fixed charge shall be defined as Earnings Before
Interest, Taxes, Depreciation and Amortization plus lease payments divided by
lease payments plus interest expense. Borrower shall maintain a ratio of Funded
Debt/EBITDA of not greater than of 4.00 to 1.00 to be measured on a rolling four
(4) quarters basis beginning December 31, 1999.
TREASURY MANAGEMENT PRODUCT LIMITATIONS. Notwithstanding anything to the
contrary contained in this Agreement, AutoBorrower, Controlled Disbursement or
any other cash management product shall not be utilized in conjunction with this
Asset Based Lending revolving line of credit unless approved by ▇▇▇▇▇▇'s Asset
Based Lending Services in advance.
ACCOUNT VERIFICATIONS. Notwithstanding anything to the contrary contained in
this Agreement, verification of outstanding Account Debtor balances shall be
conducted by ▇▇▇▇▇▇'s Asset Based Lending Services. Furthermore, Borrower
shall provide to Lender's Asset Based Lending Services a quarterly customer
list update (or more frequently, at the discretion of Asset Based Lending
Services).
FUNDED DEBT DEFINITION. Notwithstanding anything to the contrary contained
in the "Financial Covenants and Ratios" section of this Agreement, the term
"Funded Debt" shall be define as outstanding line balances, current and
non-current portion of long term debt, current and long term portion of
capitalized leases.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest
in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender
all Borrower's right, title and interest in and to, ▇▇▇▇▇▇▇▇'s accounts with
Lender (whether checking, savings, or some other account), including without
limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and ▇▇▇▇▇
accounts, and all trust accounts for which the grant of a security interest
would be prohibited by law. Borrower authorizes ▇▇▇▇▇▇, to the extent
permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at ▇▇▇▇▇▇'s option,
to administratively freeze all such accounts to allow Lender to protect
▇▇▇▇▇▇'s charge and setoff rights provided on this paragraph.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when due
on the Loans.
OTHER DEFAULTS. Failure of Borrower or any Grantor to comply with or to
perform when due any other term, obligation, covenant or condition
contained in this Agreement or in any of the Related Documents, or failure
of Borrower to comply with or to perform any other term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower or any Grantor under this
Agreement or the Related Documents is false or misleading in any material
respect at the time made or furnished, or becomes false or misleading at
any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any Security
Agreement to create a valid and perfected Security Interest) at any time
and for any reason.
INSOLVENCY. The dissolution or termination of ▇▇▇▇▇▇▇▇'s existence as a
going business, the insolvency of ▇▇▇▇▇▇▇▇, the appointment of a receiver
for any part of ▇▇▇▇▇▇▇▇'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 Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower, any creditor
of any Grantor against any collateral securing the indebtedness, or by any
governmental agency. This includes a garnishment, attachment, or levy on or
of any of Borrower's deposit accounts with Lender.
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.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in ▇▇▇▇▇▇▇▇'s financial
condition, or ▇▇▇▇▇▇ believes the prospect of payment or performance of the
indebtedness is impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except
where otherwise provided in this Agreement or the Related Documents, all
commitments and obligations of Lender under this Agreement or the Related
Documents or any other agreement immediately will
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09-24-1999 LOAN AGREEMENT Page 7
(Continued)
===============================================================================
terminate (including any obligation to make Loan Advances or disbursements),
and, at Lender's option, all indebtedness immediately will become due and
payable, all without notice of any kind to Borrower, except that in the case
of an Event of Default of the type described in the "Insolvency" subsection
above, such acceleration shall be automatic and not optional. In addition,
Lender shall have all the rights and remedies provided in the Related
Documents or available at law, in equity, or otherwise. Except as may be
prohibited by applicable law, all of Lender's rights and remedies shall be
cumulative and may be exercised singularly or concurrently. Election by
▇▇▇▇▇▇ to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform an
obligation of Borrower or of any Grantor shall not affect ▇▇▇▇▇▇'s right to
declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement 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.
APPLICABLE LAW. This Agreement has been delivered to Lender and
accepted by Lender in the State of Florida. If there is a lawsuit,
▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇'s request to submit to the jurisdiction of
the courts of ▇▇▇▇▇ County, the State of Florida. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Florida.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Agreement.
CONSENT TO LOAN PARTICIPATION. ▇▇▇▇▇▇▇▇ agrees and consents to ▇▇▇▇▇▇'s
sale or transfer, whether now or later, of one or more participation
interests in the Loans to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any
other matter relating to the Loan, and Borrower hereby waives any rights
to privacy it may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation
interests, as well as all notices of any repurchase of such
participation interests. ▇▇▇▇▇▇▇▇ also agrees that the purchasers of any
such participation interests will be considered as the absolute owners
of such interests in the Loans and will have all the rights granted
under the participation agreement or agreements governing the sale of
such participation interests. Borrower further waives all rights of
offset or counterclaim that it may have now or later against Lender or
against any purchaser of such a participation interest and
unconditionally agrees that either Lender or such purchaser may enforce
▇▇▇▇▇▇▇▇'s obligation under the Loans irrespective of the failure or
insolvency of any holder of any interest in the Loans. ▇▇▇▇▇▇▇▇ further
agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims or defenses
that Borrower may have against ▇▇▇▇▇▇.
COSTS AND EXPENSES. ▇▇▇▇▇▇▇▇ agrees to pay upon demand all of ▇▇▇▇▇▇'s
expenses incurred in connection with the preparation, execution,
enforcement, modification and collection of this Agreement or in
connection with the Loans made pursuant to this Agreement. ▇▇▇▇▇▇ may
pay someone else to help collect the Loans and to enforce this
Agreement, and Borrower will pay that amount. This includes, subject to
any limits under applicable law, ▇▇▇▇▇▇'s legal expenses, whether or not
there is a lawsuit, including expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. ▇▇▇▇▇▇▇▇
also will pay any court costs, in addition to all other sums provided by
law.
NOTICES. All notices required to be given under this Agreement shall be
given in writing, may be sent by telefacsimile (unless otherwise
required by law), and shall be effective when actually delivered or when
deposited with a nationally recognized overnight courier or deposited in
the United States mail, first class, postage prepaid, addressed to the
party to whom the notice is to be given at the address shown above. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's address. To the extent permitted
by applicable law, if there is more than one Borrower, notice to any
Borrower will constitute notice to all Borrowers. For notice purposes,
Borrower will keep Lender informed at all times of ▇▇▇▇▇▇▇▇'s current
address(es).
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement 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 Agreement in all other respects shall remain valid
and enforceable.
SUBSIDIARIES AND AFFILIATES OF BORROWER. To the extent the context of
any provisions of this Agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower"
as used herein shall include all subsidiaries and affiliates of Borrower.
Notwithstanding the foregoing however, under no circumstances shall this
Agreement be construed to require Lender to make any Loan or other
financial accommodation to any subsidiary or affiliate of Borrower.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on
behalf of Borrower shall bind its successors and assigns and shall inure
to the benefit of Lender, its successors and assigns. Borrower shall
not, however, have the right to assign its rights under this Agreement
or any interest therein, without the prior written consent of Lender.
SURVIVAL. All warranties, representations, and covenants made by
Borrower in this Agreement or in any certificate or other instrument
delivered by Borrower to Lender under this Agreement shall be considered
to have been relied upon by ▇▇▇▇▇▇ and will survive the making of the
Loan and delivery to Lender of the Related Documents, regardless of any
investigation made by ▇▇▇▇▇▇ or on ▇▇▇▇▇▇'s behalf.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by ▇▇▇▇▇▇.
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 ▇▇▇▇▇▇
of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
▇▇▇▇▇▇, nor any course of dealing between ▇▇▇▇▇▇ and Borrower, or
between Lender and any Grantor, shall constitute a waiver of any of
Lender's rights or of any obligations of Borrower or of any Grantor as
to any future transactions. Whenever the consent of Lender is required
under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent in subsequent instances
where such consent is required, and in all cases such consent may be
granted or withheld in the solve discretion of Lender.
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09-24-1999 LOAN AGREEMENT Page 8
(Continued)
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▇▇▇▇▇▇▇▇ ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS LOAN AGREEMENT,
AND ▇▇▇▇▇▇▇▇ AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF SEPTEMBER 24,
1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
LENDER:
Bank of America, N.S.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Authorized Officer
===============================================================================
NATIONSBANK-Registered Trademark-
COMMERCIAL SECURITY AGREEMENT
-----------------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$6,000,000.00 09-24-1999 09-24-2000 4296542-273 441 K44
-----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER: Regeneration Technologies, Inc. LENDER: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, Fl 32202-0329
===================================================================================================================
THIS COMMERCIAL SECURITY AGREEMENT is entered into between Regeneration
Technologies, Inc. (referred to below as "Grantor"); and Bank of America, N.A.
(referred to below as "Lender"). For valuable consideration, Grantor grants
to Lender a security interest in the Collateral to secure the Indebtedness
and agrees that ▇▇▇▇▇▇ shall have the rights stated in this Agreement with
respect to the Collateral, in addition to all other rights which Lender may
have by law.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement 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.
AGREEMENT. The word "Agreement" means this Commercial Security Agreement,
as this Commercial Security Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Security Agreement from time to time.
COLLATERAL. The word "Collateral" means the following described property
of Grantor, whether now owned or hereafter acquired, whether now existing
or hereafter arising, and wherever located:
ALL ACCOUNTS
In addition, the word "Collateral" includes all the following, whether
now owned or hereafter acquired, whether now existing or hereafter
arising, and wherever located:
(a) All accessions, accessories, increases, and additions to and all
replacements of and substitutions for any property described above.
(b) All products and produce of any of the property described in this
Collateral section.
(c) All accounts, general intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease, or
other disposition of any of the property described in this
Collateral section.
(d) All proceeds (including insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property
described in this Collateral section.
(e) All records and data relating to any of the property described
in this Collateral section, whether in the form of a writing,
photograph, microfilm, microfiche, or electronic media, together with
all of Grantor's right, title, and interest in and to all computer
software required to utilize, create, maintain, and process any such
records or data on electronic media.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Defaults set forth below in the section
titled "Events of Default."
GRANTOR. The word "Grantor" means Regeneration Technologies, Inc., its
successors and assigns
GUARANTOR. The word "Guarantor" means and includes without limitation
each and all of the guarantors, sureties, and accommodation parties in
connection with the indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note, including all principal and interest, together with all other
indebtedness and costs and expenses for which Grantor is responsible
under this Agreement or under any of the Related Documents. In addition,
the word "Indebtedness" includes all other obligations, debts and
liabilities, plus interest thereon, of Grantor, or any one or more of
them, to Lender, as well as all claims by Lender against Grantor, or any
one or more of them, whether existing now or later, whether they are
voluntary or involuntary, due or not due, direct or indirect, absolute or
contingent, liquidated or unliquidated; whether Grantor may be liable
individually or jointly with others; whether Grantor may be obligated as
guarantor, surety, accommodation party or otherwise; whether recovery
upon such indebtedness may be or hereafter may become barred by any
statute of limitations; and whether such indebtedness may be or hereafter
may become otherwise unenforceable.
LENDER. The word "Lender" means Bank of America, N.A., its successors and
assigns.
NOTE. The word "Note" means the the note or credit agreement dated May 14,
1999 in the original principal amount of $2,000,000.00 as renewed and
increased by the note or credit agreement dated September 24, 1999 in the
principal amount of $6,000,000.00 from Borrower to Lender, together with all
renewals of, extensions of, modifications of, refinancings of,
consolidations of and substitutions for the note or credit agreement.
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.
RIGHT OF SETOFF. Grantor hereby grants ▇▇▇▇▇▇ a contractual security interest
in and hereby assigns, conveys, delivers, pledges, and transfers all of
Grantor's right, title and interest in and to Grantor's accounts with ▇▇▇▇▇▇
(whether checking, savings, or some other account), including all accounts
held jointly with someone else and all accounts Grantor may open in the
future, excluding, however, all IRA and ▇▇▇▇▇ accounts, and all trust
accounts for which the grant of a security interest would be prohibited by
law. Grantor authorizes ▇▇▇▇▇▇, to the extent permitted by applicable law, to
charge or setoff all indebtedness against any and all such accounts.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
PERFECTION OF SECURITY INTEREST. ▇▇▇▇▇▇▇ agrees to execute such financing
statements and to take whatever other actions are requested by ▇▇▇▇▇▇ to
perfect and continue ▇▇▇▇▇▇'s security interest in the Collateral. Upon
request of ▇▇▇▇▇▇, Grantor will deliver to Lender any and all of the
documents evidencing or constituting the Collateral, and Grantor will
note ▇▇▇▇▇▇'s interest upon any and all chattel paper if not delivered to
Lender for possession by ▇▇▇▇▇▇. Grantor hereby appoints ▇▇▇▇▇▇ as its
irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect or to continue the security interest granted in this
Agreement. Lender may at any time, and without further
09-24-1999 COMMERCIAL SECURITY AGREEMENT PAGE 2
(CONTINUED)
===============================================================================
authorization from Grantor, file a carbon, photographic or other
reproduction of any financing statement or of this Agreement for use as a
financing statement. Grantor will reimburse Lender for all expenses for
the perfection and the continuation of the perfection of ▇▇▇▇▇▇'s
security interest in the Collateral. Grantor promptly will notify Lender
before any change in Grantor's name including any change to the assumed
business names of Grantor. THIS IS A CONTINUING SECURITY AGREEMENT AND
WILL CONTINUE IN EFFECT EVEN THOUGH ALL OR ANY PART OF THE INDEBTEDNESS
IS PAID IN FULL AND EVEN THOUGH FOR A PERIOD OF TIME GRANTOR MAY NOT BE
INDEBTED TO LENDER.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party, and its certificate or articles of incorporation and bylaws do not
prohibit any term or condition of this Agreement.
ENFORCEABILITY OF COLLATERAL. To the extent of Collateral consists of
accounts, chattel paper, or general intangibles, the Collateral is
enforceable in accordance with its terms, is genuine, and complies with
applicable laws concerning form, content and manner of preparation and
execution, and all persons appearing to be obligated on the Collateral
have authority and capacity to contract and are in fact obligated as they
appear to be on the Collateral. At the time any account becomes subject
to a security interest in favor of ▇▇▇▇▇▇, the account shall be a good and
valid account representing an undisputed, bona fide indebtedness incurred
by the account debtor, for merchandise held subject to delivery
instructions or theretofore shipped or delivered pursuant to a contract of
sale, or for services theretofore performed by Grantor with or for the
account debtor; there shall be no setoffs or counterclaims against any
such account; and no agreement under which any deductions or discounts
may be claimed shall have been made with the account debtor except those
disclosed to Lender in writing.
REMOVAL OF COLLATERAL. Grantor shall keep the Collateral (or to the
extent the Collateral consists of intangible property such as accounts,
the records concerning the Collateral) at Grantor's address shown above,
or at such other locations as are acceptable to Lender. Except in the
ordinary course of its business, including the sales of inventory,
Grantor shall not remove the Collateral from its existing locations
without the prior written consent of Lender. To the extent that the
Collateral consists of vehicles, or other titled property, Grantor shall
not take or permit any action which would require application for
certificates of title for the vehicles outside the State of Florida,
without the prior written consent of Lender.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, Grantor shall not
sell, offer to sell, or otherwise transfer or dispose of the Collateral.
Grantor shall not pledge, mortgage, encumber or otherwise permit the
Collateral to be subject to any lien, security interest, encumbrance, or
charge, other than the security interest provided for in this Agreement,
without the prior written consent of Lender. This includes security
interests even if junior in right to the security interests granted under
this Agreement. Unless waived by ▇▇▇▇▇▇, all proceeds form any
disposition of the Collateral (for whatever reason) shall be held in
trust for Lender and shall not be commingled with any other funds;
provided however, this requirement shall not constitute consent by Lender
to any sale or other disposition. Upon receipt, Grantor shall immediately
deliver any such proceeds to Lender.
TITLE. Grantor represents and warrants to Lender that it holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing
statement covering any of the Collateral is on file in any public office
other than those which reflect the security interest created by this
Agreement or to which Lender has specifically consented. Grantor shall
defend ▇▇▇▇▇▇'s rights in the Collateral against the claims and demands
of all other persons.
COLLATERAL SCHEDULES AND LOCATIONS. As often as Lender shall require, and
insofar as the Collateral consists of accounts, Grantor shall deliver to
Lender schedules of such Collateral, including such information as Lender
may require, including without limitation names and addresses of account
debtors and agings of accounts. Such information shall be submitted for
Grantor and each of its subsidiaries or related companies.
MAINTENANCE AND INSPECTION OF COLLATERAL. Grantor shall maintain all
tangible Collateral in good condition and repair. Grantor will not commit
or permit damage to or destruction of the Collateral or any part of the
Collateral. Lender and its designated representatives and agents shall
have the right at all reasonable times to examine, inspect, and audit the
Collateral wherever located. Grantor shall immediately notify Lender of
all cases involving the return, rejection, repossession, loss or damage
of or to any Collateral; of any request for credit or adjustment or of
any other dispute arising with respect to the Collateral; and generally
of all happenings and events affecting the Collateral or the value or the
amount of the Collateral.
TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation, upon
this Agreement, upon any promissory note or notes evidencing the
indebtedness, or upon any of the other Related Documents. Grantor may
withhold any such payment or may elect to contest any lien if Grantor is
in good faith conducting an appropriate proceeding to contest the
obligation to pay and so long as ▇▇▇▇▇▇'s interest in the Collateral is
not jeopardized in ▇▇▇▇▇▇'s sole opinion. If the Collateral is subjected
to a lien which is not discharged within fifteen (15) days, Grantor shall
deposit with Lender cash, a sufficient corporate surety bond or other
security satisfactory to Lender in an amount adequate to provide for the
discharge of the lien plus any interest, costs or other charges that
could accrue as a result of foreclosure or sale of the Collateral. In any
contest Grantor shall defend itself and ▇▇▇▇▇▇ and shall satisfy any
final adverse judgment before enforcement against the Collateral. Grantor
shall name ▇▇▇▇▇▇ as an additional obligee under any surety bond
furnished in the contest proceedings.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply promptly
with all laws, ordinances, rules and regulations of all governmental
authorities, now or hereafter in effect, applicable to the ownership,
production, disposition, or use of the Collateral. Grantor may contest in
good faith any such law, ordinance or regulation or withhold compliance
during any proceeding, including appropriate appeals, so long as ▇▇▇▇▇▇'s
interest in the Collateral, in ▇▇▇▇▇▇'s opinion, is not jeopardized.
HAZARDOUS SUBSTANCES. Grantor represents and warrants that the Collateral
never has been, and never will be so long as this Agreement remains a
lien on the Collateral, used for the generation, manufacture, storage,
transportation, treatment, disposal, release or threatened release or any
hazardous waste or substance, as those terms are defined 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
("▇▇▇▇"), 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. The representations and warranties contained herein are
based on Grantor's due diligence in investigating the Collateral for
hazardous wastes and substances. Grantor hereby (a) releases and waives
any future claims against ▇▇▇▇▇▇ 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 and losses resulting from a breach of this provision of
this Agreement. This obligation to indemnify shall survive the payment of
the indebtedness and the satisfaction of this Agreement.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain all
risks insurance, including without limitation fire, theft and liability
coverage together with such other insurance as Lender may require with
respect to the Collateral, in form, amounts, coverages and basis
reasonably acceptable to Lender and issued by a company or companies
reasonably acceptable to Lender. Grantor, upon request of ▇▇▇▇▇▇, will
deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least thirty
(30) days' prior written notice to ▇▇▇▇▇▇ and not including any
disclaimer of the insurer's liability for failure to give such a 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. In connection with
all policies covering assets in
09-24-1999 COMMERCIAL SECURITY AGREEMENT Page 3
(Continued)
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which Lender holds or is offered a security interest, Grantor will
provide Lender with such loss payable or other endorsements as Lender
may require. If Grantor at any time fails to obtain or maintain any
insurance as required under this Agreement, Lender may (but shall not be
obligated to) obtain such insurance as Lender deems appropriate,
including if it so chooses "single interest insurance," which will cover
only ▇▇▇▇▇▇'s interest in the Collateral.
APPLICATION OF INSURANCE PROCEEDS. Grantor shall promptly notify Lender
of any loss or damage to the Collateral. Lender may make proof of loss
if Grantor fails to do so within fifteen (15) days of the casualty. All
proceeds of any insurance on the Collateral, including accrued proceeds
thereon, shall be held by Lender as part of the Collateral. If Lender
consents to repair or replacement of the damaged or destroyed
Collateral, Lender shall, upon satisfactory proof of expenditure, pay or
reimburse Grantor from the proceeds for the reasonable cost of repair or
restoration. If Lender does not consent to repair or replacement of the
Collateral, Lender shall retain a sufficient amount of the proceeds to
pay all of the indebtedness, and shall pay the balance to Grantor. Any
proceeds which have not been disbursed within six (6) months after their
receipt and which Grantor has not committed to the repair or restoration
of the Collateral shall be used to prepay the indebtedness.
INSURANCE RESERVES. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be
created by monthly payments from Grantor of a sum estimated by Lender to
be sufficient to produce, at least fifteen (15) days before the premium
due date, amounts at least equal to the insurance premiums to be paid.
If fifteen (15) days before payment is due, the reserve funds are
insufficient, Grantor shall upon demand pay any deficiency to Lender.
The reserve funds shall be held by Lender as a general deposit and shall
constitute a non-interest-bearing account which Lender may satisfy by
payment of the insurance premiums required to be paid by Grantor as they
become due. Lender does not hold the reserve funds in trust by ▇▇▇▇▇▇▇,
and ▇▇▇▇▇▇ is not the agent of Grantor for payment of the insurance
premiums required to be paid by Grantor. The responsibility for the
payment of premiums shall remain Grantor's sole responsibility.
INSURANCE REPORTS. Grantor, upon request of ▇▇▇▇▇▇, shall furnish to
lender reports on each existing policy of insurance showing such
information as Lender may reasonably request including the following:
(a) the name of the insurer; (b) the risks insured; (c) the amount of
the policy; (d) the property insured; (e) the then current value on the
basis of which insurance has been obtained and the manner of determining
that value; and (f) the expiration date of the policy. In addition,
Grantor shall upon request by Lender (however not more often than
annually) have an independent appraiser satisfactory to Lender
determine, as applicable, the cash value or replacement cost of the
Collateral.
▇▇▇▇▇▇▇'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until default and
except as otherwise provided below with respect to accounts, Grantor may have
possession of the tangible personal property and beneficial use of all the
Collateral and may use it in any lawful manner not inconsistent with this
Agreement or the Related Documents, provided that Grantor's right to
possession and beneficial use shall not apply to any Collateral where
possession of the Collateral by Lender is required by law to perfect Lender's
security interest in such Collateral. Until otherwise notified by ▇▇▇▇▇▇,
Grantor may collect any of the Collateral consisting of accounts. At any time
and even though no Event of Default exists, Lender may exercise its rights to
collect the accounts and to notify account debtors to make payments directly
to Lender for application to the Indebtedness. If Lender at any time has
possession of any Collateral, whether before or after an Event of Default,
Lender shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral if Lender takes such action for that purpose
as Grantor shall request or as Lender, in ▇▇▇▇▇▇'s sole discretion, shall
deem appropriate under the circumstances, but failure to honor any request by
Grantor shall not of itself be deemed to be a failure to exercise reasonable
care. Lender shall not be required to take any steps necessary to preserve
any rights in the Collateral against prior parties, nor to protect, preserve
or maintain any security interest given to secure the Indebtedness.
EXPENDITURES BY ▇▇▇▇▇▇. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without
limitation all taxes, liens, security interests, encumbrances, and other
claims, at any time levied or placed on the Colateral. Lender also may (but
shall not be obligated to) pay all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or paid by Lender
for such purposes will then bear interest at the rate charged under the Note
from the date incurred or paid by Lender to the date of repayment by Grantor.
All such expenses shall become a part of the indebtedness and, 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 Agreement also
will secure payment of these amounts. Such right shall be in addition to all
other rights and remedies to which lender may be entitled upon the occurrence
of an Event of Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any payment when due
on the indebtedness.
OTHER DEFAULTS. Failure of Grantor to comply with or to perform any
other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or in any other agreement
between Lender and Grantor.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor under this Agreement, 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 Agreement 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 ▇▇▇▇▇▇▇'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.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help
repossession or any other method, by any credit or Grantor or by any
governmental agency against the Collateral or any other collateral
securing the Indebtedness. This includes a garnishment of any of
Grantor's deposit accounts with ▇▇▇▇▇▇.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or such Guarantor
dies or becomes incompetent.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or ▇▇▇▇▇▇ 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. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a
secured party under the Florida Uniform Commercial Code. In addition and
without limitation, Lender may exercise any one or more of the following
rights and remedies:
ACCELERATE INDEBTEDNESS. ▇▇▇▇▇▇ may declare the entire indebtedness,
including any prepayment penalty which Grantor would be required to pay,
immediately due and payable, without notice.
ASSEMBLE COLLATERAL. Lender may require Grantor to deliver to Lender all
or any portion of the Collateral and any and all certificates of title
and other documents relating to the Collateral. Lender may require
Grantor to assemble the Collateral and make it available to Lender at a
place to be s\designated by Lender. ▇▇▇▇▇▇ also shall have full power to
either upon the property of Grantor to take possession of and remove the
09-24-1999 COMMERCIAL SECURITY AGREEMENT Page 4
(Continued)
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Collateral. If the Collateral contains other goods not covered by this
Agreement at the time of repossession, Grantor agrees Lender may take
such other goods, provided that ▇▇▇▇▇▇ makes reasonable efforts to
return them to Grantor after repossession.
SELL THE COLLATERAL. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lender may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, Lender will give Grantor reasonable notice of the
time after which any private sale or any other intended disposition of
the Collateral is to be made. The requirements of reasonable notice
shall be met if such notice is given at least ten (10) days before the
time of the sale or disposition. All expenses relating to the
disposition of the Collateral, including without limitation the expenses
of retaking, holding, insuring, preparing for sale and selling the
Collateral, shall become a part of the indebtedness secured by this
Agreement and shall be payable on demand, with interest at the Note rate
from date of expenditure until repaid.
APPOINT RECEIVER. To the extent permitted by applicable law, ▇▇▇▇▇▇ shall
have the following rights and remedies regarding the appointment of a
receiver: (a) ▇▇▇▇▇▇ may have a receiver appointed as a matter of right,
(b) the receiver may be an employee of ▇▇▇▇▇▇ and may serve without bond,
and (c) all fees of the receiver shall become part of the indebtedness
secured by this Agreement and shall be payable on demand, with interest
at the Note rate from date of expenditure until repaid.
COLLECT REVENUES, APPLY ACCOUNTS. Lender, either itself or through a
receiver, may collect the payments, rents, income, and revenues from the
Collateral. Lender may at any time in its discretion transfer any
Collateral into its own name or that of its nominee and receive the
payments, rents, income, and revenues therefrom and hold the same as
security for the indebtedness or apply it to payment of the indebtedness
in such order of preference as Lender may determine. Insofar as the
Collateral consists of accounts, general intangibles, insurance
policies, instruments, chattel paper, choses in action, or similar
property, Lender may demand, collect, receipt for, settle, compromise,
adjust, sue for, foreclose, or realize on the Collateral as Lender may
determine, whether or not indebtedness or Collateral is then due. For
these purposes, ▇▇▇▇▇▇ may, on behalf of and in the name of Grantor,
receive, open and dispose of mail addressed to Grantor; change any
address to which mail and payments are to be sent; and endorse notes,
checks, drafts, money orders, documents of title, instruments and items
pertaining to payment, shipment, or storage of any Collateral. To
facilitate collection, ▇▇▇▇▇▇ may notify account debtors and obligors on
any Collateral to make payments directly to Lender.
OBTAIN DEFICIENCY. If ▇▇▇▇▇▇ chooses to sell any or all of the
Collateral, Lender may obtain a judgment against Grantor for any
deficiency remaining on the indebtedness due to Lender after application
of all amounts received from the exercise of the rights provided in this
Agreement. Grantor shall be liable for a deficiency even if the
transaction described in this subsection is a sale of accounts or chattel
paper.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and remedies
of a secured creditor under the provisions of the Uniform Commercial
Code, as may be amended from time to time. In addition, Lender shall
have and may exercise any or all other rights and remedies it may have
available at law, in equity, or otherwise.
CUMULATIVE REMEDIES. All of ▇▇▇▇▇▇'s rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or
concurrently. Election by ▇▇▇▇▇▇ to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Grantor under this Agreement,
after ▇▇▇▇▇▇▇'s failure to perform, shall not affect ▇▇▇▇▇▇'s right to
declare a default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement 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.
APPLICABLE LAW. This Agreement has been delivered to Lender and accepted
by Lender in the State of Florida. If there is a lawsuit, ▇▇▇▇▇▇▇ agrees
upon ▇▇▇▇▇▇'s request to submit to the jurisdiction of the courts of the
State of Florida. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Agreement.
NOTICES. All notices required to be given under this Agreement shall be
given in writing, may be sent by telefacsimile (unless otherwise
required by law), and shall be effective when actually delivered or when
deposited with a nationally recognized overnight courier or deposited in
the United States mail, first class, postage prepaid, addressed to the
party to whom the notice is to be given at the address shown above. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's address. To the extent permitted
by applicable law, if there is more than one Grantor, notice to any
Grantor will constitute notice to all Grantors. For notice purposes,
Grantor will keep ▇▇▇▇▇▇ informed at all times of Grantor's current
address(es).
POWER OF ATTORNEY. Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do the
following: (a) to demand, collect, receive, receipt for, sue and recover
all sums of money or other property which may now or hereafter become
due, owing or payable from the Collateral; (b) to execute, sign and
endorse any and all claims, instruments, receipts, checks, drafts or
warrants issued in payment for the Collateral; (c) to settle or
compromise any and all claims arising under the Collateral, and, in the
place and stead of Grantor, to execute and deliver its release and
settlement for the claim; and (d) to file any claim or claims or to take
any action or institute or take part in any proceedings, either in its
own name or in the name of Grantor, or otherwise, which in the
discretion of Lender may seem to be necessary or advisable. This power
is given as security for the indebtedness, and the authority hereby
conferred is and shall be irrevocable and shall remain in full force and
effect until renounced by ▇▇▇▇▇▇.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement 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 Agreement in all other respects shall remain valid and
enforceable.
SUCCESSOR INTERESTS. Subject to the limitations set forth above on
transfer of the Collateral, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by ▇▇▇▇▇▇. 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 ▇▇▇▇▇▇
of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
▇▇▇▇▇▇, nor any course of dealing between ▇▇▇▇▇▇ and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent
may be granted or withheld in the sole discretion of Lender.
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
09-24-1999 COMMERCIAL SECURITY AGREEMENT Page 5
(Continued)
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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.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
SECURITY AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED
SEPTEMBER 24, 1999.
GRANTOR:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
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--
FINANCING STATEMENT - FOLLOW INSTRUCTIONS FILED
CAREFULLY THIS FINANCING STATEMENT IS JUNE 03, 1999 08:00 AM
PRESENTED FOR FILING PURSUANT TO THE UNIFORM
COMMERCIAL CODE AND WILL REMAIN EFFECTIVE, SECRETARY OF STATE
WITH CERTAIN EXCEPTIONS, FOR 5 YEARS FROM TALLAHASSEE, FLORIDA
DATE OF FILING. 990000124943 TR
4296542-273
990000124943--4--
-06/03/99--01024--006
*****25.00
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A. NAME & TEL. # OF CONTACT AT FILER B. FILING OFFICE ACCT. #
(optional) (optional)
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C. RETURN COPY TO: (Name and Mailing Address)
NATIONSBANK, N.A.
P.O. BOX 40329
JACKSONVILLE, FL 32203-0329
▇▇▇▇ ▇▇▇▇▇▇▇
FL9-100-03-15
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D. OPTIONAL DESIGNATION (if applicable) / /LESSOR/LESSEE
/ /CONSIGNOR/CONSIGNEE
/ /NON-UCC FILING
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1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b)
-------------------------------------------------------------------------------
1a. ENTITY'S NAME
REGENERATION TECHNOLOGIES, INC.
OR ----------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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1c MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------
1d S.S. OR TAX I.D.# OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE
▇▇-▇▇▇▇▇▇▇ ADD'NL INFO RE OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION
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1g. ENTITY'S ORGANIZATIONAL I.D.#. if any
/ / NONE
-------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name
(2a or 2b)
---------------------------------------------------------------------------
2a. ENTITY'S NAME
OR ---------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
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2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE
ADDN'L INFO OR COUNTRY OF
ENTITY DEBTOR ORGANIZATION
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2g. ENTITY'S ORGANIZATIONAL I.D.S, if any
/ / none
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3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME-
Insert only one secured party name (3a or 3b)
--------------------------------------------------------------------------
3a. ENTITY'S NAME
NATIONSBANK, N.A.
OR --------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
P.O. BOX 40329 JACKSONVILLE FL 32203-0329
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4. THIS FINANCING STATEMENT covers the following types or items of property:
ALL ACCOUNTS, WHETHER ANY OF THE FOREGOING IS OWNED NOW OR ACQUIRED LATER;
ALL ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS RELATING TO ANY OF
THE FOREGOING; ALL RECORDS OF ANY KIND RELATING TO ANY OF THE FOREGOING; ALL
PROCEEDS RELATING TO ANY OF THE FOREGOING (INCLUDING INSURANCE, GENERAL
INTANGIBLES AND OTHER ACCOUNTS PROCEEDS).
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5. CHECK / / This FINANCING STATEMENT is signed by the Secured Party instead
BOX of the Debtor to perfect a security interest (a) in collateral
already subject to a security interest in another jurisdiction
when it was brought into this state, or when the debtor's
location was changed to this state, or (b) in accordance with
other statutory provisions (additional data may be required)
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7. If filed in Florida (check one )
/ /Documentary stamp tax paid /x/Documentary stamp tax not applicable
-------------------------------------------------------------------------------
5. REQUIRED SIGNATURES(S) a. / /This FINANCING STATEMENT is to be
filed [for record] (or recorded) in
the REAL ESTATE RECORDS
Attach Addendum [if applicable]
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, b. Check to REQUEST SEARCH CERTIFICATE(S)
Chief Financial Officer on Debtor(s) [ADDITIONAL FEE]
(option) / / All debtors / / Debtor 1
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ / / Debtor 2
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YEAR 2000 REPRESENTATIONS AND WARRANTIES
===============================================================================
Borrower: Regeneration Technologies, Lender: Bank of America, N.A.
Inc. dba NationsBank, N.A.,
1 Innovation Drive Successor to ▇▇▇▇▇▇▇ Bank,
Alachua,FL 32615 N.A.
P.O. Box 40329
Jacksonville, FL 32203-0329
===============================================================================
This YEAR 2000 REPRESENTATIONS AND WARRANTIES is attached to and by this
reference is made part of each Promissory Note or Credit Agreement, dated
September 24,1999, and executed in connection with a loan or other financial
accommodations between Bank of America, N.A. and Regeneration Technologies,
Inc.
(1) Borrower has (i) begun analyzing the operations of Borrower and its
subsidiaries and affiliates that could be adversely affected by failure to
become Year 2000 compliant (that is, that computer applications, embedded
microchips and other systems will be able to perform date-sensitive functions
prior to and after December 31,1999) and; (ii) developed a plan for becoming
Year 2000 compliant in a timely manner, the implementation of which is on
schedule in all material respects. Borrower reasonably believes that it will
become Year 2000 compliant for its operations and those of its subsidiaries
and affiliates on a timely basis except to the extent that a failure to do
so could not reasonably be expected to have a material adverse effect upon
the financial condition of Borrower.
(2) Borrower reasonably believes any suppliers and vendors that are material
to the operations of Borrower or its subsidiaries and affiliates will be Year
2000 compliant for their own computer applications except to the extent that
a failure to do so could not reasonably be expected to have a material
adverse effect upon the financial condition of Borrower.
(3) Borrower will promptly notify Lender in the event Borrower determines
that any computer application which is material to the operations of
Borrower, its subsidiaries or any of its material vendors or suppliers will
not be fully Year 2000 compliant on a timely basis, except to the extent that
such failure could not reasonably be expected to a material adverse effect
upon the financial condition of Borrower.
THIS YEAR 2000 2000 REPRESENTATION AND WARRANTIES IS EXECUTED ON SEPTEMBER
24,1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
LENDER:
Bank of America, N.A.
By: ▇ ▇ ▇▇▇▇▇▇▇▇
---------------------------------
Authorized Officer
===============================================================================
FINANCIAL COVENANTS
==================================================================
Borrower: Regeneration Technologies, Lender: Bank of America, N.A.
Inc. dba NationsBank, N.A.,
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A.
P.O. Box 40329
Jacksonville, FL 32203-0329
==================================================================
This FINANCIAL COVENANTS is attached to and by this reference is made a part
of each Promissory Note or Credit Agreement, dated September 24, 1999, and
executed in connection with a loan or other financial accommodations between
Bank of America, N.A. and Regeneration Technologies, Inc.
COMPLIANCE WITH LOAN DOCUMENTS. Borrower(s) acknowledge(s) and agree(s) that
(its) (their) timely and complete compliance with all of the terms and
conditions contained in the documents evidencing and securing the loan
obligation is material consideration for the loan. Borrower('s)(s') failure
to timely and completely comply with each and every term and condition
contained in the documents evidencing and securing the loan is, at ▇▇▇▇▇▇'s
option, an event of default under the loan. In addition to all other rights
and remedies Lender has, Lender may, in its sole discretion, elect to waive
such default or to forbear to exercise its rights and remedies for such
default and may charge Borrower(s) a fee for agreeing to do so.
FINANCIAL STATEMENT. Borrower(s) acknowledge(s) and agree(s) that ▇▇▇▇▇▇'s
ability to monitor and evaluate the status of the loan is dependent upon
Borrower(s) timely providing financial information required herein. In
addition to all other rights and remedies Lender has should Borrower(s) fail
to timely provide the financial information, including declaring the loan to
be in default, Lender may charge Borrower(s) a late fee up to 10 basis points
(.1%) of the outstanding principal balance or committed loan amount,
whichever is greater, not to be less than $500.00. The charging and/or payment
of the fee is not a waiver of the Borrower('s)(s') continuing obligation to
provide the required financial information.
THIS FINANCIAL COVENANTS IS EXECUTED ON SEPTEMBER 24, 1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
LENDER:
Bank of America, N.S.
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Authorized Officer
==================================================================
NOTICE OF FINAL AGREEMENT
-----------------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$6,000,000.00 09-24-1999 09-24-2000 4296542-273 441 K44
-----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
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BORROWER: Regeneration Technologies, Inc. LENDER: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===============================================================================
BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THE
WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (C) THE WRITTEN LOAN AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE
OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
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As used in this Notice, the following terms have the following meanings:
LOAN. The term "Loan" means the following described loan: a
Variable Rate (1.500% over "Wall Street Journal LIBOR Rate" which
is a fluctuating rate of interest equal to the 1 month London
interbank offered rate as published in the "Money Rates" section of
The Wall Street Journal on the immediately preceding business day
as adjusted from time to time in Lender's sole discretion for then
applicable reserve requirements, deposit insurance assessment rates
and other regulatory costs, making an initial rate of 6.881%),
Nondisclosable Revolving Line of Credit Loan to a Corporation for
$6,000,000.00 due on September 24, 2000. This is a secured renewal
loan.
PARTIES. The term "Parties" means Bank of America, N.A. and any and
all entities or individuals who are obligated to repay the loan or
have pledged property as security for the Loan, including without
limitation the following:
BORROWER: Regeneration Technologies, Inc.
LOAN AGREEMENT. The term "Loan Agreement" means one or more
promises, promissory notes, agreements, undertakings, security
agreements, deeds of trust or other documents, or commitments, or
any combination of those actions or documents, relating to the
Loan, including without limitation the following:
NECESSARY FORMS
Loan Agreement/Negative Pledge Promissory Note/Change in Terms Agr.
Security Agreement UCC-1
Exhibit(s) Disbursement Request and Authorization
Notice of Final Agreement
OPTIONAL FORMS
Collateral Schedule
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EACH PARTY WHO SIGNS BELOW, OTHER THAN BANK OF AMERICA, N.A., ACKNOWLEDGES,
REPRESENTS, AND WARRANTS TO BANK OF AMERICA, N.A. THAT IT HAS RECEIVED, READ
AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS DATED
SEPTEMBER 24, 1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
LENDER:
Bank of America, N.A.
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Authorized Officer
===============================================================================
NOTICE OF FINAL AGREEMENT
-----------------------------------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$6,000,000.00 09-24-1999 09-24-2000 4296542-273 441 K44
-----------------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER: Regeneration Technologies, Inc. LENDER: Bank of America, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dba NationsBank, N.A., Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===============================================================================
BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THE
WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (C) THE WRITTEN LOAN AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE
OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
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As used in this Notice, the following terms have the following meanings:
LOAN. The term "Loan" means the following described loan: a
Variable Rate (1.500% over "Wall Street Journal LIBOR Rate" which
is a fluctuating rate of interest equal to the 1 month London
interbank offered rate as published in the "Money Rates" section of
The Wall Street Journal on the immediately preceding business day
as adjusted from time to time in Lender's sole discretion for then
applicable reserve requirements, deposit insurance assessment rates
and other regulatory costs, making an initial rate of 6.881%),
Nondisclosable Revolving Line of Credit Loan to a Corporation for
$6,000,000.00 due on September 24, 2000. This is a secured renewal
loan.
PARTIES. The term "Parties" means Bank of America, N.A. and any and
all entities or individuals who are obligated to repay the loan or
have pledged property as security for the Loan, including without
limitation the following:
BORROWER: Regeneration Technologies, Inc.
LOAN AGREEMENT. The term "Loan Agreement" means one or more
promises, promissory notes, agreements, undertakings, security
agreements, deeds of trust or other documents, or commitments, or
any combination of those actions or documents, relating to the
Loan, including without limitation the following:
NECESSARY FORMS
Loan Agreement/Negative Pledge Promissory Note/Change in Terms Agr.
Security Agreement UCC-1
Exhibit(s) Disbursement Request and Authorization
Notice of Final Agreement
OPTIONAL FORMS
Collateral Schedule
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EACH PARTY WHO SIGNS BELOW, OTHER THAN BANK OF AMERICA, N.A., ACKNOWLEDGES,
REPRESENTS, AND WARRANTS TO BANK OF AMERICA, N.A. THAT IT HAS RECEIVED, READ
AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS DATED
SEPTEMBER 24, 1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
LENDER:
Bank of America, N.A.
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Authorized Officer
===============================================================================
AUTOMATIC PAYMENT
===============================================================================
BORROWER: Regeneration Technologies, LENDER: Bank of America, N.A.
Inc. dba NationsBank, N.A.,
1 Innovation Drive Successor to ▇▇▇▇▇▇▇ Bank, N.A.
Alachua, FL 32615 P.O. Box 40329
Jacksonville, FL 32203-0329
===============================================================================
This AUTOMATIC PAYMENT is attached to and by this reference is made a part of
each Disbursement Request, dated September 24, 1999, and executed in
connection with a loan or other financial accommodations between Bank of
America, N.A. and Regeneration Technologies, Inc.
Borrower hereby authorizes Lender to automatically deduct from any of
Borrower's accounts with Lender the amount of any loan payment. If the funds
in the account are insufficient to cover any payment, Lender shall not be
obligated to advance funds to cover the payment. At any time and for any
reason, Borrower or Lender may voluntarily terminate Automatic Payments.
Please debit account number __________________.
THIS AUTOMATIC PAYMENT IS EXECUTED ON SEPTEMBER 24, 1999.
BORROWER:
Regeneration Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chief Financial Officer
LENDER:
Bank of America, N.A.
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------
Authorized Officer
===============================================================================
TAX INDEMNITY AGREEMENT
This Agreement is made the 24th day of September, 1999, by Regeneration
Technologies, Inc. ("Borrower"), and Bank of America, N.A., ("Lender").
WHEREAS, Bank is making, renewing, substituting, consolidating or
modifying a $6,000,000.00 loan dated September 24, 1999 ("Loan"), executed by
▇▇▇▇▇▇▇▇, upon which State of Florida documentary stamp tax and/or
non-recurring intangible taxes (jointly and severally, the "taxes") may or
may not be due, same dependent upon the structure of the Loan; and
WHEREAS ▇▇▇▇▇▇▇▇ is of the opinion that the Loan may not be subject to
the Taxes and has requested that Lender not collect, withhold nor pay the
Taxes; and
WHEREAS ▇▇▇▇▇▇▇▇ has been informed by ▇▇▇▇▇▇ that non-payment of the
Taxes may create a potential liability to Lender in the event that any claims
are brought against Lender by reason of non-payment of the Taxes;
NOW THEREFORE ▇▇▇▇▇▇ has requested, and ▇▇▇▇▇▇▇▇ has agreed to give,
this Agreement with the Borrower indemnifying the Lender as follows:
1. Borrower assumes the risk of all damage, loss, cost and expense
(including interest and penalties, if any), and agrees to indemnify and hold
harmless Lender, its directors, officers, agents and employees from and
against any and all liability, damage, loss, cost, expense, or reasonable
attorney fees which may accrue to or be sustained by ▇▇▇▇▇▇, its directors,
officers, agents or employees on account of or arising from any claim or
action raised by, filed or brought by or in the name of any State of Florida
Governmental or Administrative Department with respect to non-payment of the
Taxes against Lender, its directors, officers, agents or employees in
connection with the Loan.
2. ▇▇▇▇▇▇▇▇ agrees to pay ▇▇▇▇▇▇ against any claim brought or action
filed against Bank with respect to the subject of this indemnity contained
herein, whether such claim or action is rightfully or wrongfully brought or
filed.
3. Bank shall use its best efforts to give written notice to Borrower
of any claim or action which Lender is to be indemnified against herein in a
timely manner after written notice of such claim or action is received by
▇▇▇▇▇▇, by sending notification via certified or registered mail, postage
prepaid, return receipt requested or overnight courier to Borrower at its
billing address shown on ▇▇▇▇▇▇'s billing system. ▇▇▇▇▇▇ shall also request
from the entity making said demand or inquiry that the demand or inquiry be
in writing and sent to Lender, but is not responsible for non-compliance with
its request. Additionally, Borrower shall give immediate notice to Lender if
Borrower receives any notice of any possible or actual claim or action.
4. In case a claim should be brought or action filed with respect to
the subject of indemnity herein, ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ may employ
attorneys of its own selection to appear and defend the claim or action on
behalf of ▇▇▇▇▇▇, at the expense of ▇▇▇▇▇▇▇▇. Lender, at its option, shall
have authority for the direction of the defense, and shall be the judge of
the acceptability of any compromise or settlement or any claims or actions
against Lender; however, ▇▇▇▇▇▇▇▇ has right to be advised of any compromises
or settlements and upon request to the Lender, to be joined in the lawsuit as
a party Defendant, therefore allowing the Borrower to assert its own defenses.
5. Indemnities and obligations provided herein shall continue in full
force and effect notwithstanding the expiration or termination of the Loan
for any reason whatsoever. Nothing in this Agreement or otherwise shall
authorize any of the parties hereto or any other person or entity to act so
as to incur or impose any liability or obligation for or on behalf of the
others.
6. It is further understood and agreed by the parties hereto that if
any of the provisions hereof shall contravene, or be invalid under the laws
of the State of Florida, or any county or jurisdiction where used, such
contravention or invalidity shall not invalidate this Agreement but shall be
construed as if not containing the particular provision or provisions held to
be invalid, and the rights or the obligations of the parties hereto shall be
construed and enforced accordingly.
7. Each party agrees to execute and deliver, or cause to be executed
and delivered, all such instruments, certificates and documents, and to take
all such other actions as the other party to this Agreement may reasonably
request from time to time to effectuate the purpose and intent of this
Agreement.
8. The failure of Lender to insist in any one or more instances upon
performance of any of the provisions of this Agreement or to take advantage
of its rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of such rights, and the same shall continue
and remain in full force and effect. No single or partial exercise by Lender
of any right or remedy shall preclude other or further exercise thereof or
the exercise of any other right or remedy. Waiver by Lender of any branch of
any provision of this Agreement shall not constitute or be construed as a
continuing waiver or as a waiver of any other breach of any other provision
of this Agreement.
9. This Agreement contains the entire agreement between the parties
with respect to the matters contemplated herein and supersedes and cancels
all prior agreements between them whether oral, written or implied. No
modifications, amendments or waivers of this Agreement, or any of its
provisions, shall be binding on any party unless evidenced by a written
instrument duly executed by the parties.
The undersigned have executed this Indemnity Agreement on the day and
year first appearing.
"Bank" "Borrower"
Bank of America, N.A. Regeneration Technologies, Inc.
▇ ▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- ----------------------------
Authorized Agent Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO/Sec/Treas
OUT OF STATE CLOSING AFFIDAVIT
STATE OF GEORGIA
COUNTY OF CAMDEN
Before me, the undersigned, a Notary Public in and for the county and
state aforesaid, personally appeared ▇ ▇ ▇▇▇▇▇▇▇▇, Agent of Bank of
America, N.A. ("Bank") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CFO of Regeneration
Technologies, Inc. (the "Borrower") who, being by me first duly sworn, stated:
1. On the date hereof, the Borrower executed a Promissory Note (the
"Note") of even date herewith in the principal amount of $6,000,000.00 in
favor of the Bank in Camden County, Georgia.
2. The Borrower personally delivered the Note to the Bank in Camden
County, and the Bank accepted the Note on the date hereof in Camden County,
Georgia.
DATED this 24th day of September, 1999.
Signature of the Bank's Agent:
/s/ ▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------
Print Name: ▇ ▇ ▇▇▇▇▇▇▇▇
-------------------
Signature of Borrower's Officer:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Sworn to and subscribed before me
this 24th day of September,1999.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Notary Public
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
State and County Aforesaid
My Commission Expires: [STAMP]