SECOND AMENDMENT TO LINE OF CREDIT
TERM LOAN AND SECURITY AGREEMENT
This Second Amendment to Line of Credit Term Loan and Security Agreement
("Second Amendment") is entered into effective the 23rd day of December, 1999 by
and between PROGRESS BANK (the "Bank"), a Federal savings bank with offices at 4
Sentry Parkway, Suite 200, Blue Bell, Pennsylvania 19422, and ORTHOVITA, INC., a
Pennsylvania corporation ("Borrower"), with offices at 45 Great Valley Parkway,
Malvern, Pennsylvania 19355.
BACKGROUND
A. Borrower and the Bank are parties to a Line of Credit, Term Loan and
Security Agreement dated September 19, 1997 as amended by a First Amendment to
Line of Credit, Term Loan and Security Agreement dated August 31, 1998 (the
"Agreement").
B. Borrower has requested the Bank to renew and increase the amount of
the Line of Credit Facility.
C. The Bank has agreed to renew and increase the amount of the Line of
Credit Facility under the terms and conditions of the Agreement, as hereby
amended.
D. The Bank and Borrower desire to enter into this Second Amendment for,
among other reasons, the following:
(i) to renew and increase the amount of the Line of Credit Facility;
and
(ii) to amend certain other covenants with which Borrower must comply.
E. The Agreement shall remain in full force and effect, without
modification or amendment, except as specifically set forth below.
NOW, THEREFORE, Borrower and the Bank intending to be legally bound, and in
consideration of the aforementioned Background which is incorporated herein by
reference, and in consideration of the terms and conditions set forth herein
hereby agree as follows:
1. All references in the Agreement and/or any of the Loan Documents to
"the Agreement" or "this Agreement" shall be understood to refer to the Line of
Credit, Term Loan and Security Agreement dated September 19, 1997, as amended by
the First Amendment to Line of Credit, Term Loan and Security Agreement dated
August 31, 1998 and as amended by this Second Amendment, and as the same may
hereafter be amended from time to time. All terms not defined herein shall have
the meanings given to them in the Agreement.
2. CONFIRMATION OF EXISTING LOANS. Borrower hereby ratifies, confirms and
acknowledges that the statements contained in the foregoing Background are true,
accurate and
correct and that the Loan Documents are valid, binding and in full force and
effect as of the date hereof, Borrower further acknowledges, confirms,
represents and warrants that it has no defenses, set-offs, counterclaims, or
challenges to or against the payment of any sums owing under the Loan Documents,
or to the enforceability or validity of the terms thereof. Borrower further
acknowledges and confirms and represents and warrants that it has no claims,
suits or causes of action against the Bank and hereby remises, releases and
forever discharges the Bank, its officers, directors, shareholders,
representatives and their successors and assigns, and any of them, from any
claims, causes of action, suits, or demands whatsoever in law and equity, which
it has or may have from the beginning of the world to the date of this Second
Amendment. Neither this Second Amendment nor any of the documents executed in
connection herewith, is in any way intended to constitute a novation of or to
the Loan Documents.
3. CONFIRMATION OF INDEBTEDNESS. Borrower confirms and acknowledges that
as of June 30, 1999 no indebtedness was owed to the Bank by Borrower under the
Loan Documents.
4. Section 1.1 of the Agreement is hereby amended by deleting there from
the definition of "Borrowing Base."
5. The definition of "Warrant Agreement" in Section 1.1 of the Agreement
is hereby amended to read in its entirety as follows:
WARRANT AGREEMENT. Individually and collectively the Warrant
Agreement issued to Progress Capital, Inc. on or about September
19, 1997 entitling Progress Capital, Inc. to purchase 5,000
shares of Borrower's Common Stock pursuant to the terms and
conditions contained therein, the Warrant Agreement issued to
Progress Capital, Inc. in April, 1998 entitling Progress Capital,
Inc. to purchase 5,000 shares of Borrower's Common Stock pursuant
to the terms and conditions therein and the Warrant Agreement
issued to Progress Capital, Inc. on or about December __, 1999
entitling Progress Capital, Inc. to purchase 10,000 shares of
Borrower's Common Stock pursuant to the terms and conditions
contained therein.
6. Section 2.1(a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) Subject to, and in accordance with, the terms and
conditions of this Agreement, the Bank agrees to make advances in
integral multiples of 51,000 (the "Advances") to Borrower upon
request at any time and from time to time during the period
commencing on the date hereof and ending on the earlier of (i)
the occurrence of an Event of Default, or (ii) the Loan
Termination Date, in an amount which in the aggregate shall not
exceed $2,000,000 in all cases less the sum of the then unpaid
principal amount of all previous Advances.
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7. Section 2.1(d) of the Agreement is hereby amended to read in its
entirety as follows:
(d) The term of this Line of Credit shall commence as of
September 19, 1997 and, unless earlier terminated, shall
terminate on the earlier to occur of (i) an Event of Default (as
defined herein), or (ii) December 23, 2000 (the "Loan Termination
Date"). The Loan Termination Date may be extended or renewed by
the Bank, in its sole discretion, on a day-to-day basis or
otherwise, at the request of Borrower and upon a review of, among
other things, Borrower's financial condition, business,
operations and assets as reflected in Borrower's financial
statements for the year ended December 31, 1999, which extension
or renewal, if any, shall be evidenced by a letter to such affect
from the Bank and by Borrower's execution and delivery of such
other documents and instruments as the Bank may require.
8. The first phrase of Section 2.2 and Section 2.2(a) of the Agreement
are hereby amended to read in their entirety as follows:
2.2 LINE OF CREDIT NOTE. The obligation of Borrower to pay
the principal of, and accrued interest on the Line of Credit
shall be evidenced by its promissory note (the "Line of Credit
Note")
(a) payable to the order of the Bank in the face
amount of Two Million Dollars ($2,000,000.00);
9. Section 6.1(a)(vi) of the Agreement is hereby amended to read in its
entirety as follows:
(vi) BORROWER'S CERTIFICATE. Within thirty (30) days after
the end of each period, a quarterly certificate of the officer of the
Borrower who certified such statements, to the effect that:
(A) no Event of Default or Default has occurred
and is continuing under this Agreement, or, if any such
Event of Default or Default exists, specifying its
nature, the period of its existence and the curative
action Borrower has taken or proposes to take, and
(B) Borrower is not in default of any material
provision under any material agreement to which it is a
party, and
(C) from time to time, such additional
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financial and other information as the Bank may
request.
10. The title to Section 6.1 is hereby amended to read in its entirety
as follows:
6.1 FINANCIAL STATEMENTS: COMPLIANCE REPORT
11. Section 6.1(a) of the Agreement is hereby amended to add thereto a
new subsection (vii), as follows:
(vii) 10Q REPORTS. As soon as available, and in any
event, not later than 60 days after the end of each period,
Borrower shall furnish to the Bank its quarterly 10Q Reports.
12. Section 6.1 is hereby amended to add thereto a new subsection (b)
as follows:
(b) Within thirty (30) days after the end of each fiscal
quarter, Borrower shall submit to the Bank a quarterly covenant
compliance certificate certifying to Borrower's compliance with
the financial covenants set forth in Sections 6.2 - 6.5, signed
by its chief financial officer in form and substance satisfactory
to the Bank.
13. Section 6.2 of the Agreement is hereby amended to read in its
entirety as follows:
6.2 MAXIMUM DEBT TO TANGIBLE NET WORTH. Borrower will
maintain a ratio of Debt to Tangible Net Worth, which shall be
verified at the close of each fiscal quarter of Borrower in
accordance with GAAP, of no more than:
(a) from September 19, 1997 through June 30, 1999, 1.75:1.0: and
(b) from July 1, 1999 through the Loan Termination Date,
1.0:1.0.
14. Section 6.3 of the Agreement hereby amended to read in its entirety
as follows:
6.3 MINIMUM WORKING CAPITAL. Borrower will maintain a
minimum Working Capital, which shall be verified at the close of
each fiscal quarter of Borrower in accordance with GAAP, of at
least:
(a) from September 19, 1997 through August 31, 1998,
$1,000,000.00;
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(b) from September 1, 1998 through June 30, 1999,
$2,000,000.00; and
(c) from July 1, 1999 through the Loan Termination Date,
$4,000,000.00.
15. Section 6.4 of the Agreement is hereby amended to read in its
entirety as follows:
6.4 MINIMUM CASH LEVEL. Borrower will maintain a minimum
cash and cash equivalent balance, which shall be verified at the
close of each fiscal quarter of Borrower in accordance with GAAP,
of:
(a) from September 19, 1997 through June 30, 1999,
$1,000,000.00; and
(b) from July 1, 1999 through the Loan Termination Date,
$4,000,000.00.
16. Section 6.18 of the Agreement is hereby amended to read in its
entirety as follows:
6.18 USE OF PROCEEDS. Initially, Borrower shall use the
proceeds of the Line of Credit for working capital and short-term
borrowing purposes. All Advances from September 1, 1998 through
June 30, 1999, shall be used to finance Qualified Accounts and
Qualified Inventory. All Advances from July 1, 1999 through the
Loan Termination Date shall be used for short term Working
Capital. Borrower shall use the proceeds of the Term Loan to
re-finance the acquisition of certain equipment previously
purchased by Borrower.
17. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants that, as of the date hereof:
(a) Borrower has obtained all necessary authorization from its board
of directors and shareholders to enter into this Second Amendment and the
transactions contemplated hereby;
(b) The representations and warranties of Borrower set forth in
Article 4 of the Agreement are true and correct as of the date of this Second
Amendment as if made on the date hereof;
(c) There has been no material adverse change in the business,
properties, operations or condition (financial or otherwise) of Borrower since
December 31, 1998, the date of the financial statements most recently furnished
by Borrower to Bank; and
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(d) As of the date of this Second Amendment there does not exist any
Event of Default under the Agreement nor does there exist any event which, with
the passage of time, the giving of notice, or both, would constitute an Event of
Default under the Agreement.
18. CERTIFICATE(S) OF INSURANCE. Borrower shall deliver to Bank
certificate(s) of insurance evidencing that Borrower is in compliance with
Section 6.10 of the Agreement concurrently with the signing of this Second
Amendment.
19. EXPENSES. Borrower agrees to reimburse the Bank for its out-of-pocket
expenses, including but not limited to attorneys' fees and other costs of
preparation and filing concerning this Second Amendment and other documents as
required by law or deemed necessary by the Bank, including but not limited to
the cost of all filing fees and lien searches deemed necessary by the Bank. Such
costs and expenses shall be paid by Borrower concurrently with the execution of
this Second Amendment and all such expenses hereafter incurred shall be paid
within fifteen (15) days after notice by the Bank.
20. ADDITIONAL EVENTS OF DEFAULT. Without limiting the generality of the
terms and conditions of the Agreement or this Second Amendment, the occurrence
of any one or more of the following events shall constitute additional Events of
Default under the Agreement:
(a) The failure of Borrower's to duly perform or observe any
obligation, covenant or agreement set forth in this Second Amendment;
(b) Any representation or warranty of Borrower set forth herein is
discovered to be materially untrue as of the date of this Second Amendment, or
any statement, certificate or date furnished by Borrower to the Bank heretofore
is discovered to be materially untrue as of the date as of which the facts
therein set forth were stated or certified to be true.
21. INCONSISTENCIES AND INTEGRATION. All of the terms, conditions and
covenants, to the extent not expressly inconsistent with those set forth herein,
of the Agreement or the other Loan Documents are incorporated herein by
reference and shall remain in full force and effect unaffected and unaltered by
the terms of this Second Amendment. To the extent there is any inconsistency
between the terms of this Second Amendment and any of the Loan Documents, the
terms of this Second Amendment shall control.
22. MISCELLANEOUS.
(a) COMMITMENT FEE. Borrower shall pay the Bank a non-refundable fee
in the amount of $10,000.00 for the Bank's commitments to renew and increase the
amount of the Line of Credit. Such fee shall be paid concurrently with the
execution of this Second Amendment.
(b) WARRANT AGREEMENT. Concurrently with its execution of this Second
Amendment, Borrower shall deliver to Progress Capital, Inc., a Warrant Agreement
entitling Progress Capital, Inc. to purchase 10,000 shares of Borrower's Common
Stock.
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(c) COLLATERAL. Borrower shall provide the Bank, prior to or
concurrently with the execution of this Second Amendment, evidence satisfactory
to it and its counsel that the Collateral is free and clear, as of the date
hereof, of any and all security interests, except as set forth in the Agreement.
(d) FURTHER ASSURANCES. From time to time Borrower shall execute and
deliver to the Bank such additional documents and will provide such additional
information as the Bank may reasonably request to carry out the intent of this
Second Amendment.
(e) GOVERNING LAW. This Second Amendment, and the rights and
obligations of the parties under this Second Amendment, shall be governed by,
and construed and interpreted in accordance with, the domestic, internal laws of
the Commonwealth of Pennsylvania, without reference to principles of conflicts
of law.
(f) BINDING EFFECT AND ASSIGNMENT. This Second Amendment shall inure
to the benefit of, and shall be binding upon, the respective successors and
assigns of the parties hereto. Borrower shall not assign any of its rights or
delegate any of its obligations hereunder without the prior written consent of
the Bank.
(g) SEVERABILITY. If any provision of this Second Amendment shall be
invalid under applicable laws, such invalidity shall not affect any other
provision of this Second Amendment that can be given effect without the invalid
provision, and to this end, the provisions hereof are severable.
(h) COUNTERPARTS AND HEADINGS. This First Amendment may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute but one and the same instrument. Section
headings contained herein are for convenience of reference only and shall in no
way affect or be used to construe or interpret this Second Amendment.
(i) SEAL. This Agreement is intended to take effect as an instrument
under seal.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first above written.
ORTHOVITA, INC.
By: /s/ BRUCE A. PEACOCK
---------------------------
Bruce A. Peacock, President
PROGRESS BANK
By: /s/ STEVEN D. HOBMAN
---------------------------------------
Steven D. Hobman, Senior Vice President
THIS SECOND AMENDED AND RESTATED LINE OF CREDIT NOTE AMENDS AND RESTATES, BUT
DOES NOT REPAY, THE AMENDED AND RESTATED LINE OF CREDIT NOTE DATED AUGUST 31,
1998 FROM ORTHOVITA, INC. TO PROGRESS BANK IN THE ORIGINAL PRINCIPAL AMOUNT OF
$1,000,000.00
SECOND AMENDED AND RESTATED LINE OF CREDIT NOTE
$2,000,000.00
FOR VALUE RECEIVED, without set-off or deduction, ORTHOVITA, INC., a
Pennsylvania corporation ("Maker"), in accordance with the terms and conditions
set forth below, hereby promises to pay, as provided herein, to the order of
PROGRESS BANK (the "Bank"), the principal sum of Two Million Dollars
($2,000,000.00) or such lesser amount as may be advanced to Maker, in lawful
money of the United States of America, together with interest thereon at an
annual rate equal to the "Prime Rate" (as defined herein) plus (i) from
September 19, 1997 through August 31, 1998, one and one-half percent (1.50%),
and (ii) from and after September 1, 1998, one percent (1.00%).
(a) The "Prime Rate" is the floating annual rate of interest that is
published as such in the Money Rates Section of THE WALL STREET JOURNAL and is
sometimes used by the Bank as a reference base with respect to different rates
charged to borrowers. The Prime Rate shall change simultaneously and
automatically upon any change in such Prime Rate. The Bank's determination and
designation from time to time of the referenced rate shall not in any way
preclude the Bank from making loans to other borrowers at a rate which is higher
or lower than or different from the Prime Rate.
(b) Interest on this Note shall be due and payable monthly in arrears
commencing on October 1, 1997, and continuing on the first day of each month
thereafter until the Bank's credit availability evidenced by this Note has
expired or been terminated, and the principal amount of an all accrued interest
with regard to this Note have been paid in full (it being understood that
interest shall again accrue upon any subsequent borrowing under the Line of
Credit).
(c) Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed (365/360 or 366/360 as appropriate).
(d) Principal shall be due and payable in full on the earlier to
occur of an Event of Default or the Loan Termination Date (as defined in Section
2.1(d) of the Loan Agreement).
(e) Upon the occurrence of a monetary default hereunder, the rate of
interest shall be increased to a rate equal to two percent (2%) above the then
current rate of interest specified herein, payable on the date of default (the
"Default Rate"). Interest shall continue to accrue at the
Default Rate, and continue to be paid even after default, maturity,
acceleration, recovery of judgment, bankruptcy or insolvency proceeding of any
kind, until such monetary default has been cured.
(f) If any of the aforesaid payments of interest shall become overdue
for a period in excess of ten (10) days, Maker shall pay the Bank a "late
charge" of five percent (5%) of the monthly interest payment then past due.
(g) All payments of principal and interest with regard to this Note
shall be made in lawful money of the United States of America in immediately
available funds at the Bank's office at 4 Sentry Parkway, Suite 200, P.O. Box
3036, Blue Bell, PA 19422 or at such other place as the Bank shall designate in
writing.
(h) Maker shall not be obligated to pay and the Bank shall not
collect interest at a rate in excess of the maximum permitted by law or the
maximum that will not subject the Bank to any civil or criminal penalties. If,
because of the acceleration of maturity, the payment of interest in advance or
any other reason, Maker is required, under the provisions of the Line of Credit,
Term Loan and Security Agreement dated September 19, 1997 between Maker and the
Bank, as amended (the "Loan Agreement"), to pay interest at a rate in excess of
such maximum rate, the rate of interest under such provisions shall immediately
and automatically be reduced to such maximum rate, and any payment made in
excess of such maximum rate, together with interest thereon at a rate provided
herein from the date of such payment, shall be immediately and automatically
applied to the reduction of the unpaid principal balance of this Note as of the
date on which such excess payment is made. If the amount to be so applied to
reduction of the unpaid principal balance exceeds the unpaid principal balance,
the amount of such excess shall be refunded by the Bank to Maker.
(i) Notwithstanding the face amount of this Note, the liability of
the Maker under this Note shall be limited at all times to the unpaid principal
amount of, all accrued unpaid interest on, all late charges with respect to, and
all costs incurred in the collection of any sum due under and in connection with
the Line of Credit Facility (as provided in Section 2.1 of the Loan Agreement)
and as reflected on the records of the Bank.
(j) This Note is the Note referred to in Section 2.2 of the Loan
Agreement and is entitled to all the benefits of such Loan Agreement and all the
security referred to therein. In the event of a conflict between the terms of
this Note and the terms of the Loan Agreement, the terms of the Loan Agreement
shall control.
(k) All of the agreements, conditions, covenants, provisions and
stipulations contained in the Loan Agreement which are to be kept and performed
by Maker are hereby made a part of this Note to the same extent and with the
same force and effect as if they were fully set forth herein, and Maker
covenants and agrees to keep and perform them, or cause them to be kept and
performed, strictly in accordance with their terms.
(l) Upon the occurrence of an Event of Default as that term is
defined in Article 8 of the Loan Agreement, then, and in such event, the Bank
may declare this Note to be due and
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payable, whereupon the entire unpaid balance of principal, together with all
accrued interest thereon, shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything herein or in the Loan Agreement to the
contrary notwithstanding.
(m) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, AS THAT TERM IS
DEFINED IN ARTICLE 8 OF THE LOAN AGREEMENT, MAKER HEREBY IRREVOCABLY AUTHORIZES
AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF THE COMMONWEALTH
OF PENNSYLVANIA OR ELSEWHERE TO APPEAR AT ANY TIME FOR MAKER IN ANY ACTION
BROUGHT AGAINST SUCH MAKER ON THIS NOTE AT THE SUIT OF THE BANK, WITH OR WITHOUT
DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT
AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS
PAYABLE BY OR ON BEHALF OF MAKER PURSUANT TO THE TERMS OF THIS NOTE OR THE LOAN
AGREEMENT, AND ALL ARREARS OF INTEREST THEREON, TOGETHER WITH COSTS OF SUIT,
ATTORNEY'S COMMISSION FOR COLLECTION OF FIVE PERCENT (5%) OF THE TOTAL AMOUNT
THEN DUE BY MAKER TO THE BANK (BUT IN ANY EVENT NOT LESS THAN ONE THOUSAND
DOLLARS ($1,000.00)), AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY
AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS
JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM
TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL THE AMOUNTS DUE
HEREUNDER.
(n) The remedies of the Bank as provided herein or in the Loan
Agreement, and the warranties contained herein or in the Loan Agreement shall be
cumulative and concurrent, and may be pursued singly, successively, or together
at the sole discretion of the Bank, and may be exercised as often as occasion
therefor shall occur; and the failure to exercise any such right or remedy shall
in no event be construed as a waiver or release thereof.
(o) Maker hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the Bank under the terms of this
Note or of the Loan Agreement, as well as all benefit that might accrue to Maker
by virtue of any present or future laws exempting any property, real, personal
or mixed, or any part of the proceeds arising from any sale of any such
property, from attachment, levy, or sale under execution, or providing for any
stay of execution, exemption from civil process, or extension of time for
payment; and Maker agrees that any real estate that may be levied upon pursuant
to a judgment obtained by virtue hereof, on any writ of execution issued
thereon, may be sold upon any such writ in whole or in part in any order desired
by the Bank. MAKER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
(p) Maker and all endorsers, sureties and guarantors hereby jointly
and severally waive presentment for payment, demand, notice of demand, protest
and notice of protest of this Note, and all other notices in connection with the
delivery, acceptance, performance, default, or enforcement of the payment of
this Note, and they agree that the liability of each of them shall be
unconditional, without regard to the liability of any other party, and shall not
be affected in any
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manner by any indulgence, extension of time, renewal, waiver or modification
granted or consent to any and all extensions of time, renewals, waivers, or
modifications that may be granted by the Bank with respect to the payment or
other provisions of this Note, and to the release of the collateral or any part
thereof, with or without authorization and agree that additional makers,
endorsers, guarantors, or sureties may become parties hereto without notice to
them or affecting their liability hereunder.
(q) The Bank shall not be deemed, by any set of omission or
commission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the Bank, and then only to the extent
specifically set forth in the writing. A waiver on one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy to a
subsequent event.
(r) This instrument shall be governed by and construed according to
the domestic, internal laws (but not the law of conflict of laws) of the
Commonwealth of Pennsylvania.
(s) Whenever used, the singular number shall include the plural, the
plural the singular; the use of any gender shall be applicable to all genders,
and the words the "Bank" and "Maker" shall be deemed to include the respective
successors and assigns of the Bank and Maker.
(t) Any provision contained in this Note which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability, without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused
this Note to be duly executed by its authorized officers, and its corporate seal
to be affixed and attested, effective the 23rd day of December, 1999.
ORTHOVITA, INC.
By: /s/ BRUCE A. PEACOCK
---------------------------
Bruce A. Peacock, President