Exhibit 10.37
MORTGAGE TERM NOTE
$4,500,000.00 _______________, _____
Hackensack, New Jersey
FOR VALUE RECEIVED, the undersigned promises to pay to the order of SUMMIT
BANK (the "Lender") at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000, the
principal sum of Four Million Five Hundred Thousand Dollars ($4,500,000.00)
together with interest as herein provided and in accordance with a certain Loan
and Security Agreement dated June 10, 1999, or as it may be subsequently
amended, signed by the undersigned as "Borrower" ("Loan Agreement").
This Note bears interest during each calendar month from the date hereof at
a fixed rate of 7.38% percent per annum. Principal and interest is to be paid
during and throughout the period of one hundred twenty (120) months in equal
payments of principal and interest (calculated on a twenty year mortgage
amortization basis) in the amount of thirty-six thousand two hundred three
dollars and fifty-six cents ($36,203.56) by the Borrower to Lender on the first
day of each month commencing on the second month following the date hereof and
on the same day of each successive month thereafter. Upon the one hundred
twentieth (120th) such installment payment (the "Maturity Date") the full amount
of unpaid principal, together with unpaid accrued interest is due and payable.
Interest is calculated on a daily basis upon the unpaid balance with each
date representing 1/360th of a year in arrears.
All payments on this Note are to be made in immediately available lawful
money of the United States by direct charge to Xxxxxxxx's deposit accounts with
Xxxxxx. In addition to the provision above for direct charge of payments due,
Lender is hereby authorized, in its sole discretion, to debit any other of the
Borrower's accounts for payments due pursuant to the Loan Agreement. This
authorization shall not affect the Borrower's obligations to pay when due all
amounts payable under this Note, whether or not there are sufficient funds
therefor in such accounts. The foregoing authorization is in addition to, and
not in limitation of, any rights of setoff.
In the event of Default (as defined in the Loan Agreement) interest accrues
on all amounts payable hereunder at a rate equal to two (2%) percent above the
fixed rate of interest provided in this Note. Borrower acknowledges that: (i)
such additional rate is a material inducement to Lender to make the loans
evidenced by this Note; (ii) Lender would not have made the loans evidenced by
this Note in the absence of the agreement of the Borrower to pay such default
rate; (iii) such additional rate represents compensation for increased risk to
Lender that the loans evidenced by this Note will not be repaid; and (iv) such
rate is not a penalty and represents a reasonable estimate of (a) the cost to
Lender in allocating its resources (both personnel and financial) to the ongoing
review, monitoring, administration and collection of the loans evidenced by this
Note and (b) compensation to Lender for losses that are difficult to ascertain.
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In the event any payment is received by Lender more than ten (10) days
after the date due, the undersigned Borrower is to pay, to the extent permitted
by law, Lender a late charge of five (5%) percent of the overdue payment (but in
no event to be less than $25.00 nor more than $2,500.00). Any such late charge
assessed is immediately due and payable. Any payment received after 3:00 P.M. on
a banking day is deemed received on the next succeeding banking day.
Except as otherwise specified herein, each payment made under this Note is
to be applied first to the payment of any expenses or charges payable pursuant
to the Loan Agreement and accrued interest, and the balance only applied to
principal amounts due under this Note.
This Note is secured by such Collateral defined in and pursuant to the Loan
Agreement. All terms of the Loan Agreement are incorporated herein by reference.
In the event of ambiguity or inconsistency between the terms of the Loan
Agreement and the terms hereof, the terms of the Loan Agreement prevail.
In the event that this Note is prepaid prior to the Maturity Date, a
prepayment premium will be payable by Borrower equal to a sum which is
calculated by a formula as follows:
(a) Multiply the outstanding principal balance which is being
prepaid by the difference between the interest rate on this Note
and the Reference Rate (as hereinafter defined), on a monthly
basis, to arrive at a "Monthly Payment Differential"; then
(b) Determining a present value which reflects the number of
scheduled monthly payments foregone as a result of the
prepayment, the size of the Monthly Payment Differential and the
Reference Rate by discounting an annuity equal to the Monthly
Payment Differential for the number of months remaining to and
including the Maturity Date at an interest rate equal to the
Reference Rate. The standard formula for the present value of an
annuity will be used for this calculation.
The Reference Rate is to be equal to the current yield to
maturity, on the date five (5) days prior to prepayment, of the
United States Treasury security closest in maturity to the
remaining term of this Note. If there is more than one United
States Treasury security with such a maturity date, the selection
is to be at the average rate of such Treasury securities. There
will be no discount if the Reference Rate exceeds the interest
rate otherwise payable pursuant to this Note.
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Notwithstanding the foregoing prepayment premiums, prepayments may be made
without premium, in the absence of a Default (as defined in the Loan Agreement),
(i) in amounts up to ten (10%) percent of the original principal amount of this
Note in any given year or (ii) if the prepayment follows a refusal by the Lender
to afford future financing requested in writing by the Borrower, which is
subsequently provided by a financial institution under substantially similar
terms as that requested of the Lender by the Borrower, and as evidenced by a
written commitment received by the Borrower from an institutional lender, and
such prepayment(s) are made to retire all Debt (as defined in the Loan
Agreement) in full simultaneously to enable Borrower to accept such otherwise
committed financing.
The undesigned hereby waives demand, notice of non-payment, protest, and
all other notices or demands whatsoever.
Xxxxxx's books and records are prima facie evidence of the amount due
pursuant to this Note and are binding upon Borrower.
Xxxxxx is hereby authorized to fill in any blank spaces in this Note and to
date this Note as of the applicable date and to correct patent errors herein.
This Note has been executed and delivered in New Jersey and is deemed a
contract made under New Jersey law.
BORROWER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATING
TO THIS NOTE OR RELATED DOCUMENTS AS AN INDUCEMENT TO THE ACCEPTANCE BY XXXXXX
OF THIS NOTE.
Witness: OSTEOTECH, INC.
A Delaware Corporation
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Executive Vice President
Witness: OSTEOTECH INVESTMENT
CORPORATION
A New Jersey Corporation
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Executive Vice President
Signatures continued ......
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.................. continuation of signatures to Mortgage Term Note
Witness: CAM IMPLANTS, INC.
A Colorado Corporation
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Chief Financial Officer
Witness: OSTEOTECH, B.V.
A Company of The Netherlands
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: H.C. IMPLANTS, B.V.
A Company of The Netherlands
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: CAM IMPLANTS, B.V.
A Company of The Netherlands
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Witness: OSTEOTECH/CAM SERVICES, B.V.
A Company of The Netherlands
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Managing Director
Signatures continued ......
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.................. continuation of signatures to Mortgage Term Note
Witness: OST DEVELOPPEMENT
A Corporation of France
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------- -----------------------------
XXXXXXX X. XXXXXXXX
Managing Director
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