Exhibit 10.47
THIRD ALLONGE
to
AGREEMENT OF AMENDMENT
TO
LOAN AND SECURITY AGREEMENT, MORTGAGE,
ASSIGNMENT OF LEASES
AND OTHER DOCUMENTS
This modification ("Third Allonge to Agreement of Amendment") made this
30th day of April, 2004 to the Agreement of Amendment to Loan and Security
Agreement, Mortgage, Assignment of Leases and Other Documents effective March
13, 2002, as amended ("Agreement of Amendment") among FLEET NATIONAL BANK,
("Lender"); OSTEOTECH, INC., a Delaware Corporation, CAM IMPLANTS, INC., a
Colorado Corporation, OSTEOTECH, B.V., H.C. IMPLANTS, B.V., OSTEOTECH IMPLANTS,
B.V., OSTEOTECH/CAM SERVICES, B.V., each a Company of The Netherlands,
OSTEOTECH, S.A., and OST DEVELOPPEMENT, S.A., each a Corporation of France
jointly and severally "Borrower") and to which Agreement of Amendment these
presents are so firmly affixed as to become a part thereof.
A. Notwithstanding anything to the contrary set forth in the Agreement of
Amendment, the Agreement of Amendment is hereby amended as follows:
1. Paragraph 3A(1) (relating to the Revolving Note) is hereby amended to
read as follows:
(1) The term "Conversion Date" is hereby redefined as the "Maturity
Date." The Maturity Date is defined as April 30, 2006. Upon the
Maturity Date, the full amount of unpaid principal, together with
unpaid accrued interest, is due and payable.
2. Paragraph 3A(2) (relating to the second paragraph of the Revolving
Note) is hereby amended to read as follows:
Prior to January 1, 2002, this Note bore interest at the option of
the Borrower, at either Lender's Prime Rate minus three-quarters of
one percent or the applicable Base LIBOR Rate plus 175 basis points.
Effective January 1, 2002 and ending on the date Lender receives
Borrower's Quarterly Report on Form 10Q for the quarter ending March
31, 2003, this Note bears interest and is repayable in monthly
installments of interest only (and not principal) at a fluctuating
interest rate per annum equal at all times to either (a) the
Lender's Prime Rate (as hereinafter defined) of interest in effect
from time to time plus 150 basis points, each change in such
fluctuating rate to take effect simultaneously with the
corresponding change in such Prime Rate, without notice to the
undersigned or (b) the applicable Base LIBOR Rate as defined in the
Loan Agreement plus 400 basis points, at the option of the Borrower
pursuant to the Loan Agreement. Commencing with the
receipt by Lender of Borrower's March 31, 2003 financial statements,
and effective following the filing with the Securities and Exchange
Commission ("SEC") and delivery to Lender thereafter of Borrower's
Quarterly Report on Form 1OQ for the quarter ending March 31, 2003,
interest is repayable in accordance with the following at the option
of Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles - consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.5:1 Base LIBOR + 225 bp ("Libor Rate") Prime Rate - 25bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 50 bp
2.5:1 - 3.99:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 100 bp
4.0 and greater Base LIBOR + 400 bp ("Libor Rate") Prime Rate + 150 bp
From the date of the execution of the Third Allonge to Agreement of
Amendment and until receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of the
Borrower as more fully described below:
Option -or- Option
------ ------
Base LIBOR +225 bp ("Libor Rate") Prime Rate - 25bp
Commencing with the receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of
Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.1:l Base LIBOR + 140 bp ("Libor Rate") Prime Rate - 110bp
1.1:1 - 1.5:1 Base LIBOR + 190 bp ("Libor Rate") Prime Rate - 60 bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 25 bp
2.5:1 - 3.99:l Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 75 bp
4.0 and greater Base LIBOR + 375 bp ("Libor Rate") Prime Rate + 125 bp
-2-
For purposes of determining the Ratio:
(i) The first determination will be made by Lender for the first
quarter, 2003. Each determination by Lender will be made by
dividing (a) the Senior Funded Debt of the Borrower as of the
last day of each fiscal quarter by (b) the Borrower's EBITDA
determined on a rolling four quarter basis. Each determination
of the Ratio will be made by Lender, upon delivery to Lender
of either the Borrower's Quarterly Report on Form 1OQ or
Annual Report on Form 10K, on a rolling four quarter basis;
and
(ii) Senior Funded Debt means all indebtedness of the Borrower
owing to financial institutions, all bonds, notes and
debentures payable by the Borrower (unless subordinated to
Fleet National Bank), all outstanding letters of credit issued
for the account of the Borrower, and all capital leases of the
Borrower.
Each payment is to be made on the first day of each month. In no
event is the interest rate to be higher than the maximum lawful
rate. The Prime Rate of Lender means the fluctuating Prime Rate of
interest established by Fleet National Bank from time to time
whether or not such rate shall be otherwise published. The Prime
Rate is established for the convenience of Lender. It is not
necessarily Lender's lowest rate. In the event that there should be
a change in the Prime Rate of Lender, such change shall be effective
on the date of such change without notice to Borrower or any
guarantor, endorser or surety. Any such change will not effect or
alter any other term or conditions of this Note.
3. Paragraph 3A(5) (relating to the sixth paragraph of the Revolving Note)
is hereby amended to read as follows:
In the event of Default, interest accrues on all amounts payable
hereunder at a rate equal to four (4%) percent above the interest
rate otherwise payable. Borrower acknowledges that: (i) such
additional rate is material inducement to Lender to make the loans;
(ii) Lender would not have made the loans evidenced by this Note in
the absence of the agreement of the Borrower to pay such default
rate; (iii) such additional rate represents compensation for
increased risk to Lender that the loans evidenced by this Note will
not be repaid; and (iv) such rate is not a penalty and represents a
reasonable estimate of (a) the cost to Lender in allocating its
resources (both personnel and financial) to the ongoing review,
monitoring, administration and collection of the loans evidenced by
this Note and (b) compensation to Lender for losses that are
difficult to ascertain.
4. Paragraph 3B(1) (relating to the second paragraph of the Equipment Loan
Note) is hereby amended to read as follows:
Prior to January 1, 2002, this Note bore interest, at the option of
the Borrower at either the Lender's Prime Rate minus one-half of one
percent or
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the applicable Base LIBOR Rate plus 175 basis points. Effective as
of the Conversion Date, the Borrower began monthly payments of
principal and interest, such principal payments repayable in 84
equal monthly installments, the first of such payments was made as
of the second month following the Conversion Date and on the same
day of each successive month. As of the Conversion Date through
December 31, 2001,this Note bore interest at the applicable LIBOR
Rate (Equipment) defined in the Loan Agreement. Effective January 1,
2002 and ending on the date Lender receives Borrower's Quarterly
Report on Form 1OQ for the quarter ending March 31, 2003, this Note
bears interest and is repayable in monthly installments of interest,
such interest to be at a fluctuating interest rate per annum equal
at all times to either (a) the Lender's Prime Rate (as hereinafter
defined) of interest in effect from time to time plus 150 basis
points, each change in such fluctuating rate to take effect
simultaneously with the corresponding change in such Prime Rate,
without notice to the undersigned or (b) the applicable Base LIBOR
Rate as defined in the Loan Agreement plus 400 basis points, at the
option of the Borrower pursuant to the Loan Agreement. Effective
September 10, 2001 the Borrower was to commence payment of
principal, together with interest, in 84 equal monthly installments
on the same day of each successive month thereafter commencing
December 1, 2001. Borrower is to continue making such principal and
interest payments and, upon the 84th such installment payment (the
"Maturity Date"), the full amount of unpaid principal together with
unpaid accrued interest is due and payable. Commencing with the
receipt by Lender of Borrower's March 31, 2003 financial statements,
and effective following the filing with the SEC and delivery to
Lender thereafter of Borrower's Quarterly Report on Form 10Q for the
quarter ending March 31, 2003, interest is repayable in accordance
with the following at the option of Borrower, if the ratio of the
Borrower's Senior Funded Debt as determined in accordance with
generally accepted accounting principles consistently applied, to
EBITDA as more fully described below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.5:1 Base LIBOR + 225 bp ("Libor Rate") Prime Rate - 25bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 50 bp
2.5:1 - 3.99:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 100 bp
4.0 and greater Base LIBOR + 400 bp ("Libor Rate") Prime Rate + 150 bp
From the date of the execution of the Third Allonge to Agreement of
Amendment and until receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of the
Borrower as more fully described below:
Option -or- Option
------ ------
Base LIBOR +225 bp ("Libor Rate") Prime Rate - 25bp
-4-
Commencing with the receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of
Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.1:l Base LIBOR + 140 bp ("Libor Rate") Prime Rate - 110bp
1.1:1 - 1.5:1 Base LIBOR + 190 bp ("Libor Rate") Prime Rate - 60 bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 25 bp
2.5:1 - 3.99:l Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 75 bp
4.0 and greater Base LIBOR + 375 bp ("Libor Rate") Prime Rate + 125 bp
For purposes of determining the Ratio:
(i) The first determination will be made by Lender for the first
quarter, 2003. Each determination by Lender will be made by
dividing (a) the Senior Funded Debt of the Borrower as of the
last day of each fiscal quarter by (b) the Borrower's EBITDA
determined on a rolling four quarter basis. Each determination
of the Ratio will be made by Lender upon delivery to Lender of
either the Borrower's Quarterly Report on Form 1OQ or Annual
Report on Form 10K, on a rolling four quarter basis; and
(ii) Senior Funded Debt means all indebtedness of the Borrower
owing to financial institutions, or bonds, notes and
debentures payable by the Borrower (unless subordinated to
Fleet National Bank), all outstanding letters of credit issued
for the account of the Borrower, and all capital leases of the
Borrower.
Each payment is to be made on the first day of each month. In no
event is the interest rate to be higher than the maximum lawful
rate. The Prime Rate of Lender means the fluctuating Prime Rate of
interest established by Fleet National Bank from time to time
whether or not such rate shall be otherwise published. The Prime
Rate is established for the convenience of Lender. It is not
necessarily Lender's lowest rate. In the event that there should be
a change in the Prime Rate of Lender, such change shall be effective
on the date of such change without notice to Borrower or any
guarantor, endorser or surety. Any such change will not effect or
alter any other term or conditions of this Note.
5. Paragraph 3B(4) (relating to the sixth paragraph of the Equipment Loan
Note) is hereby amended to read as follows:
In the event of Default, interest accrues on all amounts payable
hereunder at a rate equal to four (4%) percent above
-5-
the interest rate otherwise payable. Borrower acknowledges that: (i)
such additional rate is material inducement to Lender to make the
loans; (ii) Lender would not have made the loans evidenced by this
Note in the absence of the agreement of the Borrower to pay such
default rate; (iii) such additional rate represents compensation for
increased risk to Lender that the loans evidenced by this Note will
not be repaid; and (iv) such rate is not a penalty and represents a
reasonable estimate of (a) the cost to Lender in allocating its
resources (both personnel and financial) to the ongoing review,
monitoring, administration and collection of the loans evidenced by
this Note and (b) compensation to Lender for losses that are
difficult to ascertain.
6. Paragraph 3C(l) (relating to the second paragraph of the Mortgage
Note) is hereby amended to read as follows:
Prior to January 1, 2002, this Note bore interest during each
calendar month at a fixed rate of 7.38% per annum. Effective January
1, 2002 and ending on the date Lender receives Borrower's Quarterly
Report on Form 10Q for the quarter ending March 31, 2003, this Note
bears interest and is repayable in monthly installments of interest
at a fluctuating interest rate per annum equal at all times to
either (a) the Lender's Prime Rate (as hereinafter defined) of
interest in effect from time to time plus 150 basis points, each
change in such fluctuating rate to take effect simultaneously with
the corresponding change in such Prime Rate, without notice to the
undersigned or (b) the applicable Base LIBOR Rate as defined in the
Loan Agreement plus 400 basis points, at the option of the Borrower
pursuant to the Loan agreement. Commencing with the receipt by
Lender of Borrower's March 31, 2003 financial statements, and
effective following the filing with the SEC and delivery to Lender
thereafter of Borrower's Quarterly Report on Form 10Q for the
quarter ending March 31, 2003, interest is repayable in accordance
with the following at the option of Borrower, if the ratio of the
Borrower's Senior Funded Debt as determined in accordance with
generally accepted accounting principles consistently applied, to
EBITDA as more fully described below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.5:1 Base LIBOR + 225 bp ("Libor Rate") Prime Rate - 25bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 50 bp
2.5:1 - 3.99:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 100 bp
4.0 and greater Base LIBOR + 400 bp ("Libor Rate") Prime Rate + 150 bp
-6-
From the date of the execution of the Third Allonge to Agreement of
Amendment and until receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of the
Borrower as more fully described below:
Option -or- Option
------ ------
Base LIBOR +225 bp ("Libor Rate") Prime Rate - 25bp
Commencing with the receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of
Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.1:l Base LIBOR + 140 bp ("Libor Rate") Prime Rate - 110bp
1.1:1 - 1.5:1 Base LIBOR + 190 bp ("Libor Rate") Prime Rate - 60 bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 25 bp
2.5:1 - 3.99:l Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 75 bp
4.0 and greater Base LIBOR + 375 bp ("Libor Rate") Prime Rate + 125 bp
For purposes of determining the Ratio:
(i) The first determination will be made by Lender for the first
quarter, 2003. Each determination by Lender will be made by
dividing (a) the Senior Funded Debt of the Borrower as of the
last day of each fiscal quarter by (b) the Borrower's EBITDA
determined on a rolling four quarter basis. Each determination
of the Ratio will be made by Lender upon delivery to Lender of
either the Borrower's Quarterly Report on Form 1OQ or Annual
Report on Form 10K, on a rolling four quarter basis; and
(ii) Senior Funded Debt means all indebtedness of the Borrower
owing to financial institutions, all bonds, notes and
debentures payable by the Borrower (unless subordinated to
Fleet National Bank), all outstanding letters of credit issued
for the account of the Borrower, and all capital leases of the
Borrower.
The first thirteen (13) months of principal and interest was to be
paid by the Borrower to Lender in equal installments of principal
and interest in the amount of Thirty-Six Thousand Two Hundred Three
Dollars - 56/100 ($36,203.56) commencing February 1, 2001 and on the
same day of each successive month thereafter. Effective as of the
date of the Agreement of Amendment, remaining principal and interest
is to be paid during and
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throughout the period of one hundred seven (107) months in equal
payments of principal in the amount of Nineteen Thousand Three
Hundred Twenty-Nine 36/100 Dollars ($19,329.36), together with
accrued interest by the Borrower to Lender on the first day of each
month commencing on April 1, 2002, and on the same day of each
successive month thereafter. Upon the 107th such installment (the
"Maturity Date"), the full amount of unpaid principal, together with
unpaid accrued interest is due and payable. In no event is the
interest rate to be higher than the maximum lawful rate. The Prime
Rate of Lender means the fluctuating Prime Rate of interest
established by Fleet National Bank from time to time whether or not
such rate shall be otherwise published. The Prime Rate is
established for the convenience of Lender. It is not necessarily
Lender's lowest rate. In the event that there should be a change in
the Prime Rate of Lender, such change shall be effective on the date
of such change without notice to Borrower or any guarantor, endorser
or surety. Any such change will not effect or alter any other term
or conditions of this Note.
7. Paragraph 3C(3) (relating to the fifth paragraph of the Mortgage Note)
is hereby amended to read as follows:
In the event of Default, interest accrues on all amounts payable
hereunder at a rate equal to four (4%) percent above the interest
rate otherwise payable. Borrower acknowledges that: (i) such
additional rate is material inducement to Lender to make the loan;
(ii) Lender would not have made the loan evidenced by this Note in
the absence of the agreement of the Borrower to pay such default
rate; (iii) such additional rate represents compensation for
increased risk to Lender that the loan evidenced by this Note will
not be repaid; and (iv) such rate is not a penalty and represents a
reasonable estimate of (a) the cost to Lender in allocating its
resources (both personnel and financial) to the ongoing review,
monitoring, administration and collection of the loan evidenced by
this Note and (b) compensation to Lender for losses that are
difficult to ascertain.
8. Paragraph 3D(2) (relating to Section 1.1(a) of the Loan Agreement) is
hereby amended to read as follows:
(2) Section 1.1(a) is hereby amended to read as follows:
1.1(a) Lender agrees to provide, at one time or from time to time,
at the request of the Borrower, loans to Osteotech, Inc. in an
aggregate amount up to Five Million Dollars ($5,000,000.00) on a
revolving loan basis ("Loan I") for the purpose of working capital
and for other general corporate purposes, notwithstanding anything
to the contrary herein, including, without limitation, any prior
uses for capital expenditures and costs related to the construction
of an approximate 65,000 square foot addition (the "Project") to
real property and improvements located at 000 Xxxxxxxxxx Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx (the "Property"). Loan I is to be
-8-
payable on the earlier of (i) April 30, 2006 or (ii) upon a Default.
9. Paragraph 3D(6) relating to Section 1.4(f) of the Loan Agreement) is
hereby amended to read as follows:
(6) Section 1.4(f) is hereby amended to read as follows:
1.4(f) In the event of Default, interest accrues on the Loan and the
Debt at a rate equal to four (4%) percent above the interest rate
otherwise payable. Borrower acknowledges that: (i) such additional
rate is a material inducement to Lender to make the Loan; (ii)
Lender would not have made the Loan in the absence of the agreement
of the Borrower to pay such default rate; (iii) such additional rate
represents compensation for increased risk to Lender that the Loan
will not be repaid; and (iv) such rate is not a penalty and
represents a reasonable estimate of (a) the cost to Lender in
allocating its resources (both personnel and financial) to the
ongoing review, monitoring, administration and collection of the
Loan and (b) compensation to Lender for losses that are difficult to
ascertain.
10. Paragraph 3D(7) (relating to Section 1.4(k) of the Loan Agreement) is
hereby amended to read as follows:
(7) Section 1.4(k) is hereby amended to read as follows:
Notwithstanding the foregoing provisions of Section 1.4, and in the
absence of Default, effective January 1, 2002 and ending on the date
Lender receives Borrower's Quarterly Report on Form 10Q for the
quarter ending March 31, 2003, interest accrues on the Loan and is
repayable in monthly installments of interest at a fluctuating
interest rate per annum equal at all times to either (a) the
Lender's Prime Rate of interest in effect from time to time plus 150
basis points, each change in such fluctuating rate to take effect
simultaneously with the corresponding change in such Prime Rate,
without notice to the Borrower or (b) the applicable Base LIBOR Rate
as defined in the Loan Agreement plus 400 basis points ("LIBOR
Rate"), at the option of the Borrower pursuant to the Agreement of
Amendment. Commencing with the receipt by Lender of Borrower's March
31, 2003 financial statements, and effective following the filing
with the SEC and delivery to Lender thereafter of Borrower's
Quarterly Report on Form 1OQ for the quarter ending March 31, 2003,
interest is repayable in accordance with the following at the option
of Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
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Ratio Option -or- Option
----- ------ ------
Less than 1.5:1 Base LIBOR + 225 bp ("Libor Rate") Prime Rate - 25bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 50 bp
2.5:1 - 3.99:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 100 bp
4.0 and greater Base LIBOR + 400 bp ("Libor Rate") Prime Rate + 150 bp
From the date of the execution of the Third Allonge to Agreement of
Amendment and until receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of the
Borrower as more fully described below:
Option -or- Option
------ ------
Base LIBOR +225 bp ("Libor Rate") Prime Rate - 25bp
Commencing with the receipt by Lender of Borrower's Quarterly Report
on Form 10Q for the quarter ending June 30, 2004, interest is
repayable in accordance with the following at the option of
Borrower, if the ratio of the Borrower's Senior Funded Debt as
determined in accordance with generally accepted accounting
principles consistently applied, to EBITDA as more fully described
below ("Ratio") is as follows:
Ratio Option -or- Option
----- ------ ------
Less than 1.1:l Base LIBOR + 140 bp ("Libor Rate") Prime Rate - 110bp
1.1:1 - 1.5:1 Base LIBOR + 190 bp ("Libor Rate") Prime Rate - 60 bp
1.5:1 - 2.5:1 Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 25 bp
2.5:1 - 3.99:l Base LIBOR + 000 xx ("Xxxxx Rate") Prime Rate + 75 bp
4.0 and greater Base LIBOR + 375 bp ("Libor Rate") Prime Rate + 125 bp
For purposes of determining the Ratio:
(ii) The first determination will be made by Lender for the first
quarter, 2003. Each determination by Lender will be made by
dividing (a) the Senior Funded Debt of the Borrower as of the
last day of each fiscal quarter by (b) the Borrower's EBITDA
determined on a rolling four quarter basis. Each determination
of the Ratio will be made by Lender, upon delivery to Lender
of either the Borrower's Quarterly Report on Form 10Q or
Annual Report on Form 10K, on a rolling four quarter basis;
and
-10-
(iii) Senior Funded Debt means all indebtedness of the Borrower
owing to financial institutions, all bonds, notes and
debentures payable by the Borrower (unless subordinated to
Fleet National Bank), all outstanding letters of credit issued
for the account of the Borrower, and all capital leases of the
Borrower.
The interest rates herein provided also apply following any
applicable Conversion Date.
11. Paragraph 3(D)(13) (relating to Article 4 of the Loan Agreement) is
hereby amended to read as follows:
(13) Article 4 is hereby amended to read as follows:
ARTICLE 4. SECURITY INTEREST
(a) To secure the payment and performance by the Borrower of the
Debt and except as otherwise provided by Section 7.3, Osteotech,
Inc. is not to pledge, set over, collaterally assign or grant a
security interest, other than to Lender, in any of its assets,
property or rights, including those more particularly defined on
Exhibit "A" annexed to the Agreement of Amendment and incorporated
herein, except that the Borrower may license, consign, assign, sell,
exchange, settle, or otherwise contract with respect to, as the case
may be, its Accounts, Goods, Inventory and General Intangibles in
the ordinary course of its business as presently conducted and
consistent with its past practices.
(b) To secure the payment and performance by the Borrower of the
Debt to Lender, Osteotech, Inc. hereby pledges, sets over, assigns
and grants a first and only priority security interest to Lender in
all Accounts, Chattel Paper, Deposit Accounts, Equipment, Goods,
Instruments, Inventory, and all collateral described on Exhibit
"A-1" annexed to the Agreement of Amendment and incorporated herein
and pursuant to such other agreements more particularly described on
Exhibit "B" annexed to the Agreement of Amendment and incorporated
herein.
(c) Not later than April 30, 2002, and to further secure the payment
and performance by the Borrower of the Debt to Lender, Osteotech,
Inc., is to pledge, set over, assign and grant a first and only
priority security interest, pledge and charge to Lender in
sixty-five (65%) percent of the issued and outstanding stock issued
to it by Osteotech, S.A. and OST Developpement and pursuant to such
other agreements more particularly described on Exhibit "B" annexed
to the Agreement of Amendment and incorporated herein. All Pledge
Agreements/Charge Agreements relating to Osteotech, B.V., HC
Implants, B.V., CAM Implants, B.V. and Osteotech/Cam
-11-
Services, B.V. referred to on Exhibit "B" are hereby discharged.
(d) The security interests pledged, set over, assigned and granted
by the Borrower to Lender are to be a first and only priority lien
upon all such collateral, except to the extent provided by Section
7.3.
(e) The foregoing is, collectively, the "Collateral" and further
secures payment and performance by the Borrower of all of its
obligations in this Agreement or in the other documents delivered in
connection with this Agreement.
12. Paragraph B(3) of the Second Allonge to Agreement of Amendment to Loan
and Security Agreement, Mortgage, Assignment of Leases and Other Documents
(relating to Section 6.7(f) of the Loan Agreement) is hereby amended to read as
follows:
6.7(f) On or before the tenth (10th) day of each month, a report, in
form and substance satisfactory to Lender, showing the value of cash
and marketable securities held by Borrower as of the close of the
preceding month. In the event that such value, is less than
$5,000,000.00, Lender may (a) engage an independent consultant
acceptable to Lender, at the expense of Borrower, to provide such
reports as Lender may require concerning the operations, management
and affairs of Borrower; and (b) Borrower will promptly execute and
hereby authenticates such documents and the filing of such documents
as Lender may require, at the expense of Borrower, to grant to
Lender a first and only priority perfected security interest in all
of the Borrower's general intangibles, including, but not limited
to, all of Borrower's patents and patent applications, whether or
not registered. The provisions of this Section terminate on December
31, 2004 unless prior thereto there exists or has existed an event
of Default.
13. Paragraph 3D(15) (relating to Section 6.15 of the Loan Agreement) is
hereby amended to read as follows:
Section 6.15 Fees
Section 6.15(a) is hereby amended to read as follows:
6.15(a) Unused Facility Fee. If, for any quarter during the term of
this Agreement, the average daily unpaid balance of the outstanding
advances made pursuant to Loan I for each day of such quarter does
not equal the maximum amount of Loan I, then Borrower is to pay to
Lender a fee at a rate equal to one-half of one percent (1/2%) per
annum on the amount by which such maximum exceeds such average daily
unpaid balance; commencing with the receipt by Lender of Borrower's
Quarterly Report on Form 10Q for the quarter ending June 30,
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2004, Borrower is to pay to Lender a fee at a rate equal to one-
quarter of one percent (1/4%) per annum on the amount by which such
maximum exceeds such average daily unpaid balance. Such fee(s) is
payable to Lender in arrears on the last day of each quarter.
A new section 6.15(e) is hereby added as follows:
6.15(e) Amendment Fee. The Borrower is to pay to Lender an amendment
fee of $15,000.00 payable upon execution of the Third Allonge to
Agreement of Amendment.
14. Paragraph 3D(18) (relating to Section 7.4 of the Loan Agreement) is
hereby amended to read as follows:
(18) Section 7.4 is hereby amended to read as follows:
Section 7.4 Other Liabilities
During such time as either (a) any amount remains outstanding on the
Loan or the agreement of Lender to lend thereunder has not been
terminated pursuant to the terms thereof or (b) there then exists a
Default, Osteotech, Inc., CAM Implants, Inc., Osteotech, B.V., H.C.
Implants, BV., Osteotech Implants, B.V., Osteotech/Cam Services,
B.V., Osteotech, S.A. and OST Developpement are not to incur,
create, assume or permit to exist any indebtedness or liability to
any financial institution on account of either borrowed money, the
deferred purchase price of property, or the capital lease of assets
or property for the conduct of business except (i) the Debt to
Lender; (ii) indebtedness subordinated to payment of the Debt on
terms approved by Lender in writing; (iii) those liabilities of
Osteotech, Inc. and CAM Implants, Inc. otherwise incurred to
financial institutions in an amount in the aggregate less than
$500,000.00; (iv) those leases already in effect as of the effective
date of the Loan Agreement as disclosed in the Delivered Financials
and capital leases not to exceed $1,000,000.00 in the aggregate
outstanding at any time; or (v) line of credit liabilities of
Osteotech, B.V., H.C. Implants, BV., Osteotech Implants, B.V.,
Osteotech/Cam Services, B.V., Osteotech, S.A and OST Developpement
S.A. which may not exceed $2,500,000.00 in the aggregate.
15. Paragraph 3D(19) (relating to Section 7.6 of the Loan Agreement) is
hereby amended to read as follows:
(19) Section 7.6 is hereby amended to read as follows:
Section 7.6 Loans or Investments
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From the date of the Agreement, the Borrower is not to make any new
advances or loans (a) in excess of $1,500,000.00 in the aggregate
outstanding at any given time to Osteotech, B.V., H.C. Implants,
B.V., Osteotech Implants, B.V., Osteotech/Cam Services, B.V.,
Osteotech, S.A. or OST Developpement without the prior written
consent of Lender or (b) in excess of $50,000.00 in the aggregate
outstanding at any given time to any unrelated entity if there then
exists a Default or any amount outstanding on Loan I without the
prior written consent of Lender.
16. All of the Loan Documents are hereby amended to provide that the
"Borrower" is to be hereafter defined, jointly and severally, as Osteotech,
Inc., Osteotech, S.A. and OST Developpement, S.A.
Except as specifically modified herein, all of the terms and conditions of
the Agreement of Amendment, as amended, Loan Agreement, and the certificates and
other Loan Documents executed in connection therewith, shall remain in full
force and effect and any term in initial capitals and not otherwise defined
herein shall have the meaning ascribed thereto in the Agreement of Amendment.
IN WITNESS WHEREOF, the parties have signed this Third Allonge to
Agreement of Amendment.
Witness: OSTEOTECH, INC.
A Delaware Corporation
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Executive Vice President
Witness: OSTEOTECH, B.V.
A Company of The Netherlands
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: H.C. IMPLANTS, B.V.
A Company of The Netherlands
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Signatures continued ......
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......... continuation of signatures to Third Allonge to Agreement of Amendment
Witness: OSTEOTECH IMPLANTS, B.V.
A Company of The Netherlands
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: OSTEOTECH/CAM SERVICES, B.V.
A Company of The Netherlands
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: OSTEOTECH, S.A.
A Corporation of France
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: OST DEVELOPPEMENT, S.A.
A Corporation of France
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: FLEET NATIONAL BANK
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- --------------------------------
XXXXXXX X. XXXXXXX
Xx. Vice President
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