SECURITIES ACCOUNT CONTROL
AGREEMENT
This agreement,
dated as of October 27, 2008 (this “Agreement”)
sets forth the agreement between DEUTSCHE BANK SECURITIES INC. (the
“Intermediary”), BioMimetic Therapeutics, Inc., a
Delaware corporation (the “Debtor”), and Deutsche Bank
AG, Cayman Islands Branch and its affiliates referred to in
Section 9 (the “Secured Party”). All references
herein to the “UCC” shall mean the Uniform Commercial
Code as in effect in the State of New York.
Section 1. Establishment of Securities Account .
The Intermediary hereby confirms that:
1.1
Account Number and Name . The Intermediary has established
account number 5XR 209589 (hereinafter referred to as the
“Securities Account”) and the account is maintained in
the name of the Debtor.
1.2
Status as a Securities Account . The Securities Account is a
“securities account” as such term is defined in
Section 8-501(a)
of the UCC.
Section 2. Maintenance of Securities Account
.
2.1
Clearance and Settlement . Debtor and Secured Party
understand and agree that any clearing and settlement firm used by
Intermediary in administering the Securities Account is not
authorized to accept, and Debtor and Secured Party agree not to
attempt to give, instructions to such firm. The Securities Account
shall include any sub-accounts as may be established for its proper
administration and maintenance.
2.2.1
The Securities Account will be used solely to hold financial assets
as collateral for the Secured Party provided that, in the sole
discretion of Secured Party, Secured Party may approve the trading
of financial assets held in the Securities Account.
2.2.2
The Debtor understands and agrees that each of Intermediary (to
secure the obligations provided for in Section 3 below) and
Secured Party has a lien on the Securities Account. Secured Party
has a first lien on the Securities Account. The Debtor agrees that
no additional liens shall be permitted without the prior written
consent of the Secured Party.
2.3
Entitlement Orders Given by the Secured Party . If at any
time the Intermediary shall receive an entitlement order (as such
term is defined in the UCC) in substantially the form set forth as
Exhibit A from the Secured Party directing transfer or
redemption of any financial asset credited to the Securities
Account or any free credit balances with respect to such Securities
Account (hereinafter an “Entitlement Order”), the
Intermediary shall comply with such Entitlement Order without
further consent by the Debtor or any other person.
2.4
Debtor’s Rights to Instruct the Intermediary Prior to
Delivery of a Notice of Sole Control .
2.4.1
Securities Account . The Intermediary will not honor any
instructions from the Debtor with respect to (i) orders from
the Debtor to redeem or transfer financial assets in the Securities
Account or (ii) orders from the Debtor to trade financial
assets in the Securities Account. However, Intermediary will honor
instructions from the Debtor with respect to the exercise of voting
rights until Intermediary has received a written notice from
Secured Party that Debtor shall no longer be entitled to exercise
such voting rights.
2.4.2
Entitlement Order . In the event that the Intermediary
receives an Entitlement Order from the Secured Party that is
inconsistent with any order and/or instructions received from the
Debtor, the Intermediary shall honor the Entitlement Order of the
Secured Party.
2.5
Notice of Sole Control . Without limiting the provisions of
Section 2.4.1, if at any time the Intermediary shall receive
from the Secured Party a Notice of Sole Control in substantially
the form set forth in Exhibit B hereto, the Intermediary
agrees that after receipt of such notice, it will take all orders
and instructions (including but not limited to instructions and/or
orders with respect to voting, selection of investments, redemption
and transfer) with respect to the Securities Account (or, if
applicable, the specific security entitlements so identified in
such notice) solely from the Secured Party and thereafter shall not
honor any orders or instructions of the Debtor with respect to the
Securities Account (or, if applicable, the specific security
entitlements so identified in such notice). In the event that a
Notice of Sole Control identifies only particular security
entitlements, and not all security entitlements, with respect to
the Securities Account, the Secured Party may thereafter send one
or more additional Notices of Sole Control identifying additional
securities entitlements.
2.6
[Intentionally Omitted.]
2.7
Intermediary’s Duties With_Respect_to Agreements between
the Debtor and the Secured Party . The Intermediary shall have
no duty or obligation whatsoever of any kind or character to
determine whether or not an event of default exists under any
agreement between the Debtor and the Secured Party. The
Intermediary shall honor Entitlement Orders and/or a Notice of Sole
Control irrespective of any knowledge of the Intermediary whether
or not an event of default shall exist or the Secured Party shall
have any agreement with the Debtor limiting or conditioning its
right to give such Entitlement Orders or Notice of Sole Control.The
Intermediary shall have no duty to investigate the circumstances
under which the Secured Party is entitled to give any Entitlement
Orders or Notice of Sole Control.
2.8
“Financial Assets” Election . The Intermediary
hereby agrees that each item of property, including cash, credited
to the Securities Account on or after the date of the Agreement
shall be treated as a “financial asset” within the
meaning of Section 8-102(a)(9) of the UCC.
2.9
Statements . The Intermediary will send copies of all
monthly statements concerning the Securities Account and/or any
financial assets credited thereto simultaneously to
2
both the Debtor
and the Secured Party. Such statements shall be sent to the Debtor
and the Secured Party at the address for each set forth in this
Agreement.
2.10
Tax Reporting . All items of income, gain, expense and loss
recognized in the Securities Account shall be reported to the
Internal Revenue Service and all state and local taxing authorities
under the name and taxpayer identification number of the
Debtor.
Section 3. Intermediary’s Liens and Rights of
Set-Off . In addition to the relative priority of the
security interests of the Intermediary and Secured Party in the
Securities Account, the Intermediary shall also have a security
interest prior to that of Secured Party in the Securities Account
as and to the extent necessary to secure Intermediary for the
payment of any usual and customary commissions or fees owing to the
Intermediary with respect to the Securities Account. The
Intermediary shall have rights of set-off with respect to the
Securities Account, however, the Intermediary shall not exercise
any such right of set-off unless and until the Intermediary
notifies the Secured Party.
Section 4. Choice of Law .
4.1
Choice of Law . Both this Agreement and the Securities
Account shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to its conflict of
laws principles. Regardless of any provision in any other
agreement, for purposes of the UCC, New York shall be deemed to be
the Intermediary’s jurisdiction and the Securities Account
(as well as the security entitlements with respect to any financial
assets credited thereto) shall be governed by the laws of the State
of New York.
4.2
Submission to Jurisdiction; Jury Waiver . EACH OF DEBTOR,
INTERMEDIARY AND SECURED PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A JURY
TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT. In any action or proceeding arising out of or
relating to this Agreement, the parties hereto hereby irrevocably
submit to the exclusive jurisdiction of the courts of the State of
New York and the federal courts in New York City, and agree that
effective service of process may be made by hand delivery or
courier delivery as provided in Section 10 below on Notices.
The Secured Party may proceed against the Debtor in any other
applicable jurisdiction, and may serve process in any other manner
permitted by applicable law. Debtor hereby irrevocably waives any
objection Debtor may now or hereafter have to the laying of venue
in the aforesaid courts, and any claim that any of the aforesaid
courts is an inconvenient forum. To the extent that Debtor or
Debtor’s property may have or hereafter acquire immunity, on
the grounds of sovereignty or otherwise, from any judicial process
in connection with this Agreement, Debtor hereby irrevocably
waives, to the fullest extent permitted by applicable law, any such
immunity and agrees not to claim same. Debtor agrees that a final
judgment in any such action or proceeding shall be conclusive, and
may be enforced in any other jurisdiction by suit on the judgment
or in any other permitted manner. Debtor further agrees that any
action or proceeding by Debtor against Secured Party or the
Intermediary in respect to any matters arising out of, or in any
way relating to, this Agreement or the obligations of Debtor
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