Exhibit 10.23
FIRST AMENDMENT TO LOAN
AGREEMENT
THIS FIRST AMENDMENT TO LOAN
AGREEMENT (the
“Amendment”) is made and entered into as of
June 11, 2009, by and between MERCANTILE BANK , a
division of Carolina First Bank, (“Lender”), RTI
Biologics, Inc. (“RTI”), a Florida corporation,
Tutogen Medical, Inc. (“Tutogen”), a Florida
corporation and Tutogen Medical (United States), Inc.
(“Tutogen US”), a Florida corporation (collectively,
RTI, Tutogen and Tutogen US, the “Borrowers”) (Lender
and Borrowers, the “Parties”).
R E C I T A L S
A. Lender and Borrowers entered
into, and executed, that certain Loan Agreement dated as of
January 28, 2009 (the “Loan Agreement”), which
provided for the making of the following loans to Borrowers:
(i) a revolving line of credit loan in the principal amount of
$10,000,000.00; and (ii) a term loan in the principal amount
of $1,750,000.00 (collectively, the “ Existing Loans
”).
B. RTI has requested an additional
term loan in the amount of $848,000.00 (the “Term Loan
2”) evidenced by a promissory note dated the date hereof (the
“Term Note 2”).
C. The Parties are entering into
this Amendment to modify the terms and conditions of the Loan
Agreement to include the Term Loan 2 as a Loan under the Loan
Agreement, to amend the definition of EBIDA, and to amend certain
other terms of the Loan Agreement.
NOW, THEREFORE, for and in
consideration of the premises and the mutual terms and conditions
contained herein, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby
acknowledged by the Parties hereto, the Parties agree as
follows:
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1.
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DEFINITIONS: . All capitalized terms used in this Amendment
shall have the same meaning as used in the Loan Agreement unless
expressly modified, replaced or amended herein. From and after the
effective date of this Amendment, all references to
“Agreement” contained in the Loan Agreement shall mean
the Loan Agreement, as applicable, as modified and amended by this
Amendment.
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2.
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AMENDMENTS
TO LOAN AGREEMENT :
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A.
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The definition
of EBIDA in Section 1.15 of the Loan Agreement shall be
amended and restated to read as follows:
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““EBIDA” means the
sum of earnings before interest expense plus depreciation and
amortization expense plus goodwill impairment plus asset
impairments and abandonments minus any non-cash
income.”
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B.
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The definition
of Loan Documents in Section 1.29 of the Loan Agreement shall
be amended and restated to read as follows:
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“Loan Documents” means
this Loan Agreement, the First Amendment to Loan Agreement, the
Notes, the Security Agreement, the First Amendments to Security
Agreements, any guaranty agreements, financing statements,
collateral documents, consents and all other documents,
instruments, certificates and agreements executed and/or delivered
by Borrowers, or any third party, in favor of Lender in connection
with the Loan or the Lender’s security interest in the
Collateral.
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C.
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The definition
of Loans in Section 1.30 of the Loan Agreement shall be
amended and restated to read as follows: “Loans” means
the Term Loan, the RLOC and the Term Loan 2, as each is described
in Section 2.1 .
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D.
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The definition
of Notes in Section 1.32 of the Loan Agreement shall be
amended and restated to read as follows: “Notes” means,
collectively, the RLOC Note, the Term Loan Note and the Term Note
2.
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E.
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Section 1
of the Loan Agreement shall be amended to add the new terms
“First Amendment to Loan Agreement”, “First
Amendments to Security Agreements”, “Term Loan 2”
and “Term Note 2” as follows:
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“First Amendment to Loan
Agreement” means the first amendment to loan agree
