Exhibit 10.46
LOAN AGREEMENT
LOAN AGREEMENT dated as of November 27, 2000, between AMERICAN TISSUE
SERVICES FOUNDATION, a not-for-profit corporation organized under the laws of
Delaware (herein called the "Borrower") and OSTEOTECH, INC., a corporation
organized under the laws of Delaware (herein called the "Lender").
W I T N E S S E T H:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings, unless the context otherwise requires:
"Business Day" shall mean a day other than a Saturday, Sunday or day
on which banks are authorized or required to close under the laws of the
State of New Jersey.
"Events of Default." Each of the following (individually, an "Event of
Default" and collectively, the "Events of Default") shall constitute an
event of default under this Agreement:
(a) The appointment of a receiver or trustee of the Borrower or
insolvency of the Borrower or its liquidation, bankruptcy, making an
assignment for the benefit of creditors or reorganization, whether or
not pursuant to bankruptcy laws, or any other marshalling of the
assets and liabilities of the Borrower;
(b) A default in the payment of any installment of interest upon,
or principal of, any Note (as hereinafter defined) within five (5)
Business Days of when such payment is due and payable, whether at the
maturity or otherwise; and
(c) The Borrower breaches or violates the terms of this
Agreement.
"Notes" shall mean the promissory notes of the Borrower described in
Section 2.2 hereof.
"Termination Date" shall mean the earliest of (a) the date of the
occurrence of an Event of Default or (b) the 90th Business Day following
the giving of written notice of termination by either party hereto or (c)
December 31, 2010.
1.2 Use of Defined Terms. All terms defined in this Agreement shall have
the defined meanings when used in the Notes or other documents made or delivered
pursuant to this Agreement unless the context shall otherwise require.
1.3 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles.
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SECTION 2. AMOUNT AND TERMS OF CREDIT
2.1 Credit Commitment. Subject to the terms and conditions of this
Agreement, the Lender agrees to make loans to the Borrower at any time and from
time to time on or after the date hereof, to but not including the Termination
Date, in an aggregate principal amount up to but not exceeding the sum of
$1,500,000 at any one time outstanding (herein, as the same may be increased
from time to time at the option of the Lender by notice in writing, called the
"Commitment"). During the aforesaid period, the Borrower may use the Commitment
by borrowing, paying, renewing or prepaying the Notes, in whole or in part, and
reborrowing, all in accordance with the terms and conditions of this Agreement.
2.2 Notes. Each borrowing pursuant to Subsection 2.1 hereof shall be
evidenced by a Note, substantially in the form annexed hereto as Exhibit A, with
appropriate insertions or changes therein in accordance with the terms of this
Agreement. Each such Note shall (a) be in the principal amount of the loan it
evidences; (b) be dated the date of such loan; (c) be stated to mature five
years from the date of such loan; and (d) bear interest from the date thereof on
the unpaid principal amount thereof until such principal amount shall become due
and payable (whether at the stated maturity or by acceleration) at a rate per
annum equal to the five year Treasury Xxxx rate as reported in the Wall Street
Journal on the date immediately preceding the date of such Note, plus one
percent (1%). Interest on each Note shall be Payable quarterly on the last day
of March, June, September and December in each year, commencing on the first of
such dates next succeeding the date of such Note and at maturity of such Note or
at such other times as shall be agreed upon by the Borrower and the Lender.
2.3 Notice of Borrowing. The Borrower shall give the Lender at least five
(5) Business Days prior written notice of the date and the amount of each
borrowing pursuant to the Commitment. On the date specified in such notice, the
Lender will make the amount then to be loaned by it available to the Borrower.
2.4 Voluntary Prepayments. The Borrower may, at its option, at any one time
or from time to time, prepay the Notes, without premium or penalty, in whole or
in part, upon at least one Business Day prior written notice to the Lender,
specifying the date and amount of prepayment, and upon the payment of accrued
interest on the amount prepaid to the date of the prepayment.
2.5 Computation of Interest; Payments. Interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. All payments (including
prepayments) by the Company on account of principal and interest on the Notes
hereunder shall be made to the Lender at its office specified in the Notes in
lawful money of the United States of America. If any payment on any Note becomes
due and payable on a day which is not a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day and interest thereon shall be
payable at the then applicable rate during such extension. All outstanding Notes
shall become forthwith due and payable, together with accrued interest thereon,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived on the earlier of the date of an Event of Default or
the Termination Date.
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2.6 Use of Proceeds. The proceeds of any loan made hereunder shall be used
by the Borrower solely to provide working capital to support the Borrower's
written annual business plan and strategy (the "Plan"). The Plan must be
submitted to the Lender for its review no later than 30 days prior to the
beginning of the year covered by the Plan and the Plan must be approved by the
Lender in writing.
SECTION 3. MISCELLANEOUS
3.1 Notices.
All notices or other communications which are required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
given by personal delivery, air courier or registered or certified mail, postage
prepaid, return receipt requested, addressed to such party at the address set
forth below or such other address as may thereafter be designated in a written
notice from such party to the other party:
if to the Lender, to:
Osteotech, Inc.
00 Xxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
if to the Borrower, to:
American Tissue Services Foundation
00000 Xxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
All such notices, advances and communications shall be deemed to have been
delivered and received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of air courier, on the Business Day after the date
when sent and (c) in the case of mailing, on the third Business Day following
such mailing.
3.2 Survival of Agreements. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Agreement, the
Notes, and the making and renewal of loans hereunder, and shall continue in full
force and effect until the indebtedness of the Borrower under the Notes has been
paid in full.
3.3 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrower and the Lender and their respective successors
and assigns, except
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that the Borrower may not transfer or assign any of its rights or interests
hereunder without the prior written consent of the Lender.
3.4 Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, the remaining portion of this Agreement shall continue
in full force and effect.
3.5 Construction. This Agreement and each Note and the rights and
obligations of the parties hereunder and thereunder shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
New Jersey.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
AMERICAN TISSUE SERVICES FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
OSTEOTECH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Exec. VP
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EXHIBIT A
NOTE
$___________________ Eatontown, New Jersey
[Date]
FOR VALUE RECEIVED, the undersigned, AMERICAN TISSUE SERVICES FOUNDATION,
promises to pay to the order of OSTEOTECH, INC. (the "Lender"), on the fifth
anniversary of the date of the Note at the office of the Lender located at 00
Xxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000, in lawful money of the United States,
the principal amount of ______________ Dollars ($_____________).
The undersigned further promises to pay interest in like money at said
office from the date hereof on the unpaid principal amount hereof until such
principal amount shall become due and payable (whether at the stated maturity or
by acceleration) at a rate per annum equal to [_____ percent (__%)]. Interest
shall be payable quarterly on the last day of March, June, September and
December in each year, commencing on the first of such dates next succeeding the
data hereof.
This Note is one of the Notes referred to in a Loan Agreement dated as of
November 27, 2000 between the undersigned and the Lender, and is entitled to the
benefits thereof, and may be prepaid in whole or in part as provided therein.
Upon the occurrence of an Event of Default or the Termination Date as
specified in said Loan Agreement, the amounts then remaining unpaid on this Note
may become immediately due and payable as provided therein.
AMERICAN TISSUE SERVICES FOUNDATION
By:
-------------------------------------
Name:
----------------------------------
Title:
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FIRST AMENDMENT TO LOAN AGREEMENT
This modification, effective January 1, 2002, to the Loan Agreement dated
November 27, 2000 between the AMERICAN TISSUE SERVICES FOUNDATION (the
"Borrower") and OSTEOTECH, INC. (the "Lender") and to which Loan Agreement these
presents are so firmly affixed as to become a part thereof.
Notwithstanding anything to the contrary set forth in the Loan Agreement, the
Loan Agreement is hereby amended to read as follows:
The Commitment made by the Lender to the Borrower as
detailed in Section 2.1 Credit Commitment shall be
increased from $1,500,000 to $2,750,000.
Except as specifically modified herein, all of the terms and conditions of the
Loan Agreement 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 Loan Agreement.
Witness: AMERICAN TISSUE SERVICES FOUNDATION
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
President
Witness: OSTEOTECH, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
Executive Vice President and
Chief Financial Officer
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