Exhibit 10.47
THIRD ALLONGE
TO
LOAN AND SECURITY AGREEMENT
This modification, effective September 10, 2001, to the Loan and Security
Agreement ("Agreement") effective June 10, 1999, as amended, between OSTEOTECH,
INC., a Delaware Corporation; OSTEOTECH INVESTMENT CORPORATION, a New Jersey
Corporation; CAM IMPLANTS, INC., a Colorado Corporation; OSTEOTECH, B.V., H.C.
IMPLANTS, B.V., CAM IMPLANTS, B.V., OSTEOTECH/CAM SERVICES, B.V., each a Company
of The Netherlands; and OST DEVELOPPEMENT, a Corporation of France (jointly and
severally "Borrower") and FLEET NATIONAL BANK, Successor in Interest to Summit
Bank ("Lender") and to which Agreement these presents are so firmly affixed as
to become a part thereof.
Notwithstanding anything to the contrary set forth in the Agreement, the
Agreement is hereby amended as follows:
1. The "DEFINITIONS" section is hereby amended by the addition of the
following:
"Banking Day" - as defined in Section 11.6(d)
"LIBOR Rate (Equipment)" - as defined in Section 1.4(c)
"Prime Rate" - as defined in Section 1.4(g)
2. All references in the Agreement to "Base Rate" are hereby amended to
refer to the "Prime Rate."
3. Paragraph 1.4(c) is hereby amended to read as follows:
1.4(c) Interest accrues on Loan III at Borrower's option, at either
(i) Lender's floating Prime Rate minus one-half of one percent (1/2%)
per annum or (ii) the LIBOR Rate, as selected by the Borrower during
the initial monthly interest only payable period. Upon conversion
pursuant to Section 1.3(b) above, interest accrues at Borrower's
option at either (i) Lender's floating Prime Rate or (ii) the 30, 60,
90 or 180 day Base LIBOR (London Interbank Offered Rate) plus 225
basis points [the "Libor Rate (Equipment)"] as selected by the
Borrower.
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4. Paragraph 1.4(g) is hereby amended to read as follows:
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
any promissory note or this Agreement.
5. Paragraph 1.5(a) is hereby amended to read as follows:
1.5(a) At each and every Re-Set Date during the term of this
Agreement, Borrower is to have the right to select either the LIBOR
Rate, LIBOR Rate (Equipment) or variable rates set forth in Sections
1.4(a) and 1.4(c) as applicable pursuant to the terms of this
Agreement to a designated principal balance unless such principal
balance has been previously designated as being repayable at a LIBOR
Rate or LIBOR Rate (Equipment), and is subject to an Interest Period
which has not yet expired. Each interest rate from time to time so
selected by Borrower is to take effect and is to end on a Re-Set Date.
If Borrower does not select an interest rate by written notice given
to Lender at least three (3) banking days prior to a particular Re-Set
Date, the interest rate applicable to the principal balance for such
Re-Set Date is to be the applicable alternate variable rate set forth
in Sections 1.4(a) and 1.4(c) of this Agreement; or in the case of
Section 1.4(c) following conversion, the applicable interest rate is
to be the LIBOR Rate (Equipment) or the applicable alternate variable
rate set forth in Section 1.4(c). The LIBOR Rate, LIBOR Rate
(Equipment) or variable rate selected by Borrower or otherwise
designated for a particular Re-Set Date in accordance with the
foregoing provisions of this paragraph, are to be in effect from and
including the first day of the Interest Period to which such rate
pertains to, but not including, the Roll Over Date applicable to such
Interest Period, and will (subject to the following provisions of this
paragraph) be applicable to the portion of the principal balance of
the Loan with respect to which a LIBOR Rate or
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LIBOR Rate (Equipment) are due to be re-set on such Re-Set Date, as
well as to any portion of the principal balance bearing interest at a
variable rate and any advance scheduled to be made on such Re-Set
Date.
6. Paragraph 1.5(b) is hereby amended to read as follows:
1.5(b) The term "Interest Period" means the period of time during
which a particular LIBOR Rate or LIBOR Rate (Equipment) will be
applicable to all or any particular portion of the principal balance
in accordance with the provisions of this Section, it being agreed
that (a) each Interest Period is to commence and is to terminate on a
Re-Set Date, (b) each Interest Period (for a LIBOR Rate) is to be of a
duration of either one month, two months or three months, and each
Interest Period [for a LIBOR Rate (Equipment)] is to of a duration of
either one month, two months, three months or six months (c) no
Interest Period is to extend beyond the term of this Agreement or the
term of an applicable portion of the Loan (whichever is earlier) and
(d) the portion of the principal balance with respect to which a
particular Interest Period is applicable will bear interest at the
LIBOR Rate or LIBOR Rate (Equipment) pertaining to such Interest
Period from and including the first day of such Interest Period to,
but not including, the last day of such Interest Period. At no time
are there to be more than three (3) Interest Periods under Loan III.
At no time is the principal balance repayable during an applicable
Interest Period to be less than $100,000.00.
7. Paragraph 1.5(c) is hereby amended to read as follows:
1.5(c) The "Base LIBOR Rate" applicable to a particular Interest
Period means, the rate per annum as determined on the basis of the
offered rates for deposits in U.S. Dollars, for a period of time
comparable to such Interest Period which appears on the Telerate page
3750 as of 11:00 A.M. London time on the day that is two London
Banking Days preceding the first day of such Interest Period,
provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, the
Base LIBOR rate shall be the rate (rounded upward, if necessary, to
the nearest one hundred-thousandth of a percentage point), determined
on the basis of the offered
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rates for deposits in U.S. dollars for a period of time comparable to
such Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 A.M. London time, on
the day that is two (2) London Banking Days preceding the first day of
such Interest Period as selected by Lender. The principal London
office of each of the four major London banks will be requested to
provided a quotation of its U.S. Dollar deposit offered rate. If at
least two such quotations are provided, the rate for that date will be
the arithmetic mean of the quotations. If fewer than two quotations
are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in U.S. Dollars to leading
European banks for a period of time comparable to such Interest Period
offered by major banks in New York City at approximately 11:00 A.M.
New York City time, on the day that is two London Banking Days
preceding the first day of such Interest Period. In the event that
Lender is unable to obtain any such quotation as provided above, it
will be deemed that the Base LIBOR Rate pursuant to an Interest Period
cannot be determined. In the event that the Board of Governors of the
Federal Reserve system shall impose a Reserve Percentage with respect
to LIBOR deposits of Lender, then for any period during which such
Reserve Percentage shall apply, Base LIBOR shall be equal to the
amount determined above divided by an amount equal to 1 minus the
Reserve Percentage. "Reserve Percentage" shall mean the maximum
aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed on member banks of the
Federal Reserve system against "Euro-currency Liabilities" as defined
in Regulation D.
8. Paragraph 1.5(f) is hereby deleted in its entirety.
9. The following is added to Paragraph 1.5(g):
If any change in any law or regulation or in the interpretation
thereof by any governmental authority charged with the administration
or interpretation thereof makes it unlawful or impossible for Lender
to make or maintain a LIBOR Rate (Equipment) or to determine same, the
applicable annual
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interest rate for Loan III, following conversion, is the Prime Rate.
10. Paragraph 1.5(h) is hereby amended to read as follows:
1.5(h) Borrower recognizes that the cost to Lender of making or
maintaining a LIBOR Rate or LIBOR Rate (Equipment) loan with respect
to the prin cipal balance or any portion thereof imposed upon Banks,
generally, including Lender, may fluctuate and Borrower agrees to pay
Lender within ten (10) days after demand by Lender such additional
amount or amounts as Lender reasonably determines will compensate
Lender for actual costs incurred by Lender in maintaining such rates
on the principal balance or any portion thereof.
11. Section 1.8 is hereby amended to read as follows:
Section 1.8 Reimbursement of Increased Cost to Lender
a. If any law, regulation or guideline, or change in any law,
regulation or guideline or in the interpretation thereof, or any order
or ruling by any regulatory body, court or other governmental
authority, or compliance by the Lender with any request or directive
(whether or not having the force of law) of any such regulatory body,
court or authority, imposes, modifies, or deems applicable any
reserve, capital, special deposit or other requirement or condition
which results in an increased cost or reduced benefit to banks,
generally, including Lender (and as determined by reasonable
allocation of the aggregate of such increased costs or reduced
benefits to Lender resulting from such event), then Borrower is to pay
to Lender from time to time upon demand additional amounts sufficient
to compensate Lender for such increased costs or reduced benefits,
together with interest on each such amount from a date ten (10) days
after the date of such demand until payment in full thereof at the
highest interest rate then applicable to any of the Debt. A
certificate setting forth in reasonable detail such increased cost
incurred or reduced benefit realized by Lender as a result of any such
event is to be conclusive as to the amount thereof, absent manifest
error.
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b. Borrower may prepay a loan or advance repayable during an Interest
Period only upon at least three (3) Banking Days prior written notice
to Lender (which notice shall be irrevocable), and any such prepayment
shall occur only on the last day of the Interest Period. Borrower is
to pay to Lender, upon request of Lender, such amount or amounts as
will be sufficient (in the reasonable opinion of Lender) to compensate
it for any loss, cost, or expense incurred as a result of: (1) any
payment on a date other than the last day of the Interest Period; (ii)
any failure by Borrower to borrow at a LIBOR Rate or LIBOR Rate
(Equipment) on the date specified by Borrower's written notice; (iii)
any failure by Borrower to pay a loan repayable at either a LIBOR Rate
or LIBOR Rate (Equipment) on the date for payment specified in
Borrower's written notice. Without limiting the foregoing, Borrower is
to pay to Lender a "yield maintenance fee" in an amount computed as
follows: The current rate for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the term chosen pursuant to the applicable
LIBOR Rate or LIBOR Rate (Equipment) loan or advance as to which the
prepayment is made, shall be subtracted from the rate in effect at the
time of prepayment. If the result is zero or a negative number, there
shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the
principal balance being prepaid. The resulting amount shall be divided
by 360 and multiplied by the number of days remaining in the term
chosen pursuant for the applicable LIBOR Rate or LIBOR Rate
(Equipment) loan or advance as to which the prepayment is made. Said
amount shall be reduced to present value calculated by using the above
referenced United States Treasury securities rate and the number of
days remaining in the term chosen pursuant to the applicable LIBOR
Rate or LIBOR Rate (Equipment) loan or advance as to which prepayment
is made. The resulting amount shall be the yield maintenance fee due
to Lender upon the prepayment of a loan or advance repayable at an
applicable LIBOR Rate or LIBOR Rate (Equipment). If by reason of an
event of Default Lender elects to declare the Debt to be immediately
due and payable, then any yield
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maintenance fee payable becomes due and payable in the same manner as
though Borrower had exercised such right of prepayment.
12. The following is added as Section 2.5:
Section 2.5 Obligations to Federal Reserve Banks
Lender may at any time pledge or assign all or any portion of its
rights under this Agreement (including any portion of any Note) to any
of the twelve (12) Federal Reserve Banks organized under Section 4 of
the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
assignment or enforcement thereof releases Lender from its obligations
under this Agreement.
13. The first sentence of paragraph 11.6(d) is hereby amended to read as
follows:
11.6(d) A banking day or a Banking Day is any day, in respect of any
city, on which commercial banks are open for business in that city.
14. The opening paragraph of Article 14, subsection (a)(ii) is hereby
amended to read as follows:
(ii) paying to Lender, as liquidated damages, the applicable amount
stated below as to that portion of either or both Loan I and/or Loan
II prepaid, to the extent that the principal amount prepaid bears
interest at a then applicable fixed annual interest rate:
Except as specifically modified herein, all of the terms and conditions of the
Agreement, and the certificates and other 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.
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Witness: OSTEOTECH, INC.
A Delaware Corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
Witness: OSTEOTECH INVESTMENT
CORPORATION
A New Jersey Corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
Witness: CAM IMPLANTS, INC.
A Colorado Corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Chief Financial Officer
Witness: OSTEOTECH, B.V.
A Company of The Netherlands
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Managing Director
Witness: H.C. IMPLANTS, B.V.
A Company of The Netherlands
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Managing Director
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Signatures continued ......
............................ continuation of signatures to Third Allonge to Loan
and Security Agreement
Witness: CAM IMPLANTS, B.V.
A Company of The Netherlands
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Managing Director
Witness: OSTEOTECH/CAM SERVICES, B.V.
A Company of The Netherlands
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Managing Director
Witness: OST DEVELOPPEMENT
A Corporation of France
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Managing Director
FLEET NATIONAL BANK
Successor in Interest to
Summit Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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