TIME PROMISSORY NOTE
(Line of Credit)
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US$39,130,000
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As of October 27,
2008
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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.
(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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