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TIME PROMISSORY NOTE (Line of Credit)

Promissory Note

TIME PROMISSORY NOTE (Line of Credit) | Document Parties: BIOMIMETIC THERAPEUTICS, INC. | BioMimetic Therapeutics, Inc | Deutsche Bank AG | Deutsche Bank Securities Inc You are currently viewing:
This Promissory Note involves

BIOMIMETIC THERAPEUTICS, INC. | BioMimetic Therapeutics, Inc | Deutsche Bank AG | Deutsche Bank Securities Inc

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Title: TIME PROMISSORY NOTE (Line of Credit)
Governing Law: New York     Date: 3/12/2009
Industry: Biotechnology and Drugs     Sector: Healthcare

TIME PROMISSORY NOTE (Line of Credit), Parties: biomimetic therapeutics  inc. , biomimetic therapeutics  inc , deutsche bank ag , deutsche bank securities inc
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EXHIBIT 10.44

TIME PROMISSORY NOTE
(Line of Credit)

US$39,130,000

 

As of October 27, 2008

          FOR VALUE RECEIVED, BioMimetic Therapeutics, Inc., a Delaware corporation (“Borrower”), hereby promises to pay on October 27, 2010 (the “Maturity Date”), to the order of Deutsche Bank AG, Cayman Islands Branch, or any of its designated affiliates (collectively, “Lender”), at its office located at 280 Park Avenue, New York, NY 10017 or such other office as Lender shall hereafter specify by notice to Borrower, the principal sum of Thirty Nine Million One Hundred Thirty Thousand U.S. Dollars (the “Maximum Amount”) or, if less, the then outstanding and unpaid principal amount of the Loan (as defined below), and to pay interest on the unpaid principal amount of the Loan from time to time outstanding until paid in full at the interest rates, at the times and in the manner provided for below.

      Section 1. Definitions . As used herein, the following terms shall have the following meanings:

      Borrowing Base has the meaning set forth in Section 2.1(c).

      Business Day means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, and when used in connection with a LIBO Rate Loan, then Business Day shall also exclude any day on which the London interbank market is closed.

      Collateral means the Collateral as defined in the Security Agreement.

      Event of Default has the meaning set forth in Section 10.

      Interest Period means as to any LIBO Rate Loan, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBO Rate Loan and ending one month thereafter.

      Lending Office means Lender’s office at 280 Park Avenue, New York, New York 10017, or such other domestic or foreign office as Lender may designate in writing from time to time to Borrower.

      LIBQ Rate means, with respect to any LIBO Rate Loan for any Interest Period, the rate at which U.S. dollar deposits of amounts comparable to the principal amount of such LIBO Rate Loan and for a maturity comparable to such Interest Period are offered by Lender (or any affiliate of Lender if no such Loan is offered by Lender) in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period. In the event reserves are required to be maintained against eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors of the Federal Reserve System), then the LIBO Rate shall be adjusted to a rate (rounded upwards to the nearest 1/100 of 1%) obtained by dividing the LIBO Rate by a number equal to one minus the stated maximum rate (expressed as a decimal) of all such reserves. LIBO Rate Loans shall be deemed to constitute eurocurrency funding.

      LIBO Rate Loan means that portion of the outstanding principal balance of the Loan bearing interest based on the LIBO Rate.

 


 

      Loan means the aggregate amount of all advances outstanding at any one time, made by Lender to Borrower pursuant to and evidenced by this Note, which shall not, at any time, exceed the Maximum Amount.

      Loan Documents means this Note, the Security Agreement, the SACA and any amendment, waiver, supplement or other modification to any of the foregoing.

      Maturity, Date has the meaning set forth in the introduction to this Note.

      Maximum Amount has the meaning set forth in the introduction of this Note.

      Notice of Borrowing has the meaning set forth in Section 2.1(a).

      Notice of Rate Election has the meaning set forth in Section 3.

      Prime Rate means the prime lending rate as announced by Lender (or any U.S. affiliate of Lender if no such rate is announced by Lender) from time to time as its prime lending rate, which rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any change in the interest rate resulting from a change in the Prime Rate shall be effective on the effective date of each change in the prime lending rate.

      Prime Rate Loan means that portion of the outstanding principal balance of the Loan bearing interest based on the Prime Rate.

      Program Rate means any interest rate offered as part of: (a) a lending program offered by Lender or an affiliate wherein the loans are offered to all or substantially all institutional clients which are either (i) secured by illiquid auction rate securities purchased through the Lender or an affiliate, or (ii) designed to provide customers of Lender or its affiliates with liquidity for illiquid auction rate securities purchased through the Lender or an affiliate; or (b) a settlement with a state Attorney General or any regulatory body, including state, federal, or industry regulators such as the SEC, the North American Securities Administrators Association, or the Financial Industry Regulatory Authority (including any arbitration awards or settlements with third parties thereunder) which requires the Lender to offer a Program Rate to institutional customers who purchased illiquid auction rate securities from the Lender or its affiliates.

      Security Agreement means the Borrower Security and Pledge Agreement dated on or about the date of this Note made by Borrower to Lender as it may be amended or otherwise modified from time to time.

      SACA means the Securities Account Control Agreement dated on or about the date hereof among the Borrower, the Lender and Deutsche Bank Securities, Inc. as it may be amended or otherwise modified from time to time.

      Verbal Instructions has the meaning set forth in Section 2.1(b).

      Section 2.1. The Loan . (a) This Note evidences advances that Lender agrees to make to Borrower from time to time, subject to the provisions hereof and so long as no Event of Default has occurred and is continuing. Subject to the foregoing and the other terms and provisions hereof, Borrower may borrow and prepay, subject to Sections 5.6, 6.1 and 6.2 hereof, all or any part of the Loan, and reborrow same. To request a borrowing hereunder, Borrower shall deliver a notice of borrowing in the form of Exhibit A attached hereto (a “Notice of Borrowing”) to Lender prior to 11:00 a.m. (New York

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City time) (x) on the Business Day of the date of such requested borrowing in case of Prime Rate Loans or Loans bearing interest at the Program Rate and (y) at least three Business Days before the date of such requested borrowing in case of LIBO Rate Loans. Each Notice of Borrowing shall be irrevocable by Borrower, and shall specify the principal amount of the advance requested to be made (which shall not, when taken together with all then outstanding advances of the Loan, exceed the lesser of (x) the Maximum Amount or (y) the Borrowing Base, nor shall any single borrowing be less than (i) $26,000 in case of the initial advance and (ii) in case of all subsequent advances, (x) $100,000 in case of Prime Rate Loans and (y) $250,000 in case of LIBO Rate Loans), the interest rate(s) applicable thereto, the date of borrowing (which shall be a Business Day). Lender may note on any internal records of Lender any advance so made and the interest rate applicable thereto, provided that the failure to make such notations shall not limit or affect Borrower’s obligations to pay all amounts owing hereunder as and when due whether upon the Maturity Date, acceleration or otherwise.

     (b) Lender may, in its sole discretion, act upon a telefaxed or telephonic request (collectively,“Verbal Instructions”) for a borrowing from an authorized representative of Borrower (or, without limitation, for repricing, payment or pay off instructions or any other instructions Lender may so accept). Lender may rely on, and act without liability upon the basis of, any Verbal Instructions believed by Lender in good faith to be given to, or received from Borrower (or any Borrower representative), whether or not Lender subsequently receives from Borrower confirmation thereof. In submitting a Verbal Instruction, Borrower accepts the risks of Verbal Instructions and hereby waives the right to dispute Lender’s record of the terms of such Verbal Instruction and waives any claims against Lender arising from such Verbal Instructions, except those claim(s) arising from Lender’s gross negligence or willful misconduct.

     (c) Without limiting Section 2.1(a), the Borrower may not obtain an advance hereunder to the extent that the outstanding Loan (and accrued interest) would exceed the product of the “Par Value” of the Collateral and the applicable “Maximum Advance Rates” therefor, each as set forth and/or as determined in accordance with Schedule D to the Security Agreement (the “Borrowing Base”).

      Section 2.2. Payments. All payments hereunder for principal, interest and other amounts shall be made in U.S. dollars and in immediately available funds, to the Lending Office no later than 12:00 noon New York City time on the date when due. Without in any way limiting Borrower’s obligations under this Note to make interest payments as and when due, Borrower hereby irrevocably authorizes Lender to deduct from an account, set forth on the signature page hereto, established by Borrower with Lender (or any affiliate of Lender) all payments of interest due under this Note, as and when the same shall become due hereunder.

      Section 3. Rate Election. Any portion of the Loan may bear interest, at Borrower’s option, based on the Prime Rate or the LIBO Rate or any Program Rate (if applicable), provided that (x) Lender shall not be required to make a LIBO Rate Loan unless Lender or its affiliates shall then be making loans based on the LIBO Rate to other customers and (y) with the exception of the initial advance which in accordance with Section 2.1(a) must be at least $26,000, any portion of the Loan which is to bear interest based on the Prime Rate shall be at least $100,000 and any portion of the Loan which is to bear interest based on the LIBO Rate shall be at least $250,000. To make a LIBO Rate election, Borrower shall give Lender, prior to 11:00 A.M. (New York City time), at least three Business Days (x) prior to the expiration of each Interest Period in case of LIBO Rate Loans and (y) prior to the proposed conversion date in case of Prime Rate Loans or Loans bearing interest at the Program Rate, written or telephonic notice of a LIBO Rate election (a “Notice of Rate Election”), which shall be irrevocable, shall specify which portion of the Loan for the next succeeding Interest Period shall be a LIBO Rate Loan. If Borrower fails to give a Notice of Rate Election when required, (x) that portion of the Loan bearing interest based on the LIBO Rate for which no Notice of Rate Election was given shall bear interest, from and after the expiry date of

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the then current Interest Period, based on the LIBO Rate for an Interest Period of one month and (y) that portion of the Loan bearing interest based on the Prime Rate or Program Rate for which no Notice of Rate Election was given shall bear interest, from and after the then current Interest Period, based on the Prime Rate or the Program Rate (as the case may be), until such time as Borrower shall give Lender a timely Notice of Rate Election therefor. Lender shall promptly provide Borrower notice of any Program Rates that its offers. Subject to Section 5.6 hereof, Borrower may elect a Program Rate with respect to any outstanding Loan by providing Lender written or telephonic notice thereof, which shall become effective three (3) Business Days following such notice.

      Section 4. Limitation on LIBQ Rate Loans . Notwithstanding anything to the contrary in this Agreement, no more than five LIBO Rate Loans shall be outstanding at any one time.

     Section 5.1. Interest.

          (a) Borrower agrees to pay interest in respect of the unpaid principal balance of any Prime Rate Loan outstanding from time to time, from the date of borrowing or conversion until the earlier of maturity (whether upon the Maturity Date, acceleration or otherwise) or payment in full, at a rate per annum (calculated for the days elapsed on the basis of a 360-day year) equal to the Prime Rate less 1.50%. Interest shall be payable monthly on the last Business Day of each calendar month, and on each date of repayment or prepayment of all or part of any Prime Rate Loan.

          (b) Borrower agrees to pay interest in respect of the unpaid principal balance of any LIBO Rate Loan outstanding from time to time, from the date of borrowing or conversion until the earlier of maturity (whether upon the Maturity Date, acceleration or otherwise) or payment in full, at a rate per annum (calculated for the days elapsed on the basis of a 360-day year) equal to the LIBO Rate plus 0.50%. Interest shall be payable on the last Business Day of each Interest Period, and on each date of repayment or prepayment of all or part of any LIBO Rate Loan.

          (c) Following maturity (whether upon the Maturity Date, acceleration or otherwise) or upon any Event of Default hereunder, interest shall accrue on the Loan in its entirety (and, to the extent permitted by applicable law, on any past due interest) at a rate per annum equal to (x) 2% plus (y) the higher of the interest rate then in effect or the Prime Rate, and shall be payable ON DEMAND. For purposes of this paragraph interest shall be calculated for the days elapsed on the basis of a 360 day year.

          (d) Notwithstanding anything contained herein to the contrary, Lender shall never be entitled to receive, collect or apply as interest on the Loan any amount in excess of the maximum rate of interest permitted to be charged by applicable law.

      Section 5.2. Interest Periods .

          (a) Any Interest Period which would otherwise expire on a day which is not a Business Day, shall expire on the next succeeding or preceding Business Day in accordance with the then current banking practice in the London interbank market.

          (b) Although Borrower, with Lender’s consent, may elect Interest Periods which may extend beyond the Maturity Date, if any such Interest Period shall be elected, Borrower understands and agrees that in no event shall the Maturity Date be extended by reason thereof and the Loan shall be due and payable on the Maturity Date (subject to acceleration upon the occurrence of an Event of Default) and Borrower shall also be obligated to compensate Lender for any losses as provided in Section 5.6 resulting therefrom. Any Interest Period for a LIBO Rate Loan which would otherwise expire on a day which is

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not a Business Day, shall expire on the next succeeding or preceding Business Day in accordance with the then current banking practice in the London interbank market.

      Section 5.3. Interest Rate Not Ascertainable, etc. In the event that Lender shall have determined (which determination shall, absent manifest error, be final, conclusive and binding on Borrower) that on any date for determining the LIBO Rate, by reason of changes affecting the London interbank market, or Lender’s position therein, adequate and fair means do not exist for ascertaining the LIBO Rate, then in such event, Lender shall give telephonic notice to Borrower of such determination. Until Lender notifies Borrower that the circumstances giving rise to the suspension described herein no longer exist, Lender shall not be required to make or maintain a LIBO Rate Loan.

      Section 5.4. Illegality . In the event that Lender shall have determined (which determination shall, absent manifest error, be final, conclusive and binding on Borrower) at any time that compliance by Lender in good faith with any applicable law, rule, regulation or order, or any request, guideline, or directive (whether or not having the force of law) of any governmental authority, prohibits or restrains the making or continuance of any LIBO Rate Loan, then, in any such event, Lender shall give prompt telephonic notice to Borrower of such determination, whereupon: (i) Borrower’s right to request a LIBO Rate Loan shall be immediately suspended and (ii) that portion of the Loan bearing interest based on the LIBO Rate shall automatically and immediately convert to a Prime Rate Loan, or if applicable a Loan bearing interest at the Program Rate, as elected by Borrower and shall be subject to Section 5.6.

      Section 5.5. Increased Costs . If, by reason of the introduction of or any change (including, without limitation, any change by way of imposition or increase of reserve requirements or regu


 
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