Exhibit 10.34
PROMISSORY NOTE
7/22/02
----------------
(Date)
FOR VALUE RECEIVED, Orthovita, Inc. a corporation located at the address stated
below ("Maker") promises, jointly and severally if more than one, to pay to the
order of General Electric Capital Corporation or any subsequent holder hereof
(each, a "Payee") at its office located at 401 Merritt 7 Suite 23, Norwalk, CT
06856 or at such other place as Payee or the holder hereof may designate, the
principal sum of Three Hundred Eighty Eight Thousand Four Hundred Ninety
Three--71/00 Dollars ($388,493.71), with interest on the unpaid principal
balance, from the date hereof through and including the dates of payment, at a
fixed interest rate of Eleven and Thirty One Hundredths percent (11.31%) per
annum, to be paid in lawful money of the United States, in Thirty-Six (36)
consecutive monthly installments of principal and interest as follows:
Periodic
Installment Amount
------------------------------------
Thirty-Five (35) $ 12,656.61
each ("Periodic Installment") and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on 8/1/02 and the following Periodic
Installments and the final installment shall be due and payable on the same day
of each succeeding month (each, a "Payment Date"). Such installments have been
calculated on the basis of a 360 day year of twelve 30-day months. Each payment
may, at the option of the Payee, be calculated and applied on an assumption that
such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "Security
Agreement").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in default under,
or fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment).
In the event Maker violates its cash covenant as contained in Section 1(a) of
the Financial Covenants Addendum No. 001 to Security Agreement, Maker may prepay
in full, but not in part, its entire indebtedness hereunder without penalty.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this No. of any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under
any of such circumstances the amount of interest contracted for, charged or
received under this Note or any Security Agreement on the principal balance
shall exceed the maximum amount of interest permitted by applicable law, then in
such event (a) the provisions of this paragraph shall govern and control, (b)
neither Maker nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest permitted by
applicable law, (c) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal balance or refunded
to Maker, at the option of the Payee, and (d) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction
thereof. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for,
charged or received under this Note or any Security Agreement which are made for
the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full
stated term of the indebtedness evidenced hereby, all interest at any time
contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a
greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may be,
the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States of
America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "Obligor") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provisions of either, which may
be made, granted or consented to by Payee, and agree that suit may be brought
and maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, and all other notices in connection herewith, as
well as filing of suit (if permitted by law) and diligence in collecting this
Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual reasonable
attorneys' fees. Maker and each Obligor agrees that fees not in excess of twenty
percent (20%) of the amount then due shall be deemed reasonable.
Maker hereby irrevocably authorizes and empowers the Prothonotary or Clerk, or
any attorney for any Court of record to appear for Maker in such Courts, at any
time, and confess a judgement against Maker, without process, in favor of any
holder hereof, without the filing of a declaration of default, with release of
errors, without stay of execution, for such amount as may appear from the face
hereof to be due hereunder (or, if such attorney so elects, for the amount which
may be due hereon as evidenced by an affidavit signed by a representative of
holder setting forth the amount then due) together with charges, reasonable
attorney's fees and costs as herein provided, and Maker hereby waives and
releases all benefits and relief from any and all appraisement, stay or
exemption laws of any state, now in force or hereafter to be passed. If a copy
hereof, verified by an affidavit, shall have been filed in said proceeding, it
shall not be necessary to file the original as a warrant of attorney. No single
exercise of the foregoing warrant and power to confess judgement shall be deemed
to exhaust the power, whether or not such exercise shall be held by any Court to
be invalid, voidable, or void, but the power shall continue undiminished and may
be exercised for time to time as often as the holder hereof shall elect, until
all sums payable or that may become payable hereunder by Maker have been paid in
full.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING. AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
ORTHOVITA, INC.
/s/ Lisa S. Casel By: /s/ Joseph M. Paiva
- -------------------- --------------------------
(Witness)
LISA S. CASEL Name: Joseph M. Paiva
- -------------------- Title: CFO
(Print name)
45 Great Valley PKWY, Malvern, PA 19355
- ---------------------------------------
(Address) Federal Tax ID #: 232694857
Address: 45 Great Valley Parkway,
Malvern, Chester County, PA 19355
PROMISSORY NOTE
8/16/02
-------
(Date)
FOR VALUE RECEIVED, Orthovita, Inc. a corporation located at the address stated
below ("Maker") promises, jointly and severally if more than one, to pay to the
order of General Electric Capital Corporation or any subsequent holder hereof
(each, a "Payee") at its office located at 401 Merritt 7 Suite 23, Norwalk, CT
06856 or at such other place as Payee or the holder hereof may designate, the
principal sum of Three Hundred Twenty-Seven Thousand Two Hundred
Twenty-Eight--96/100 Dollars ($327,228,96), with interest on the unpaid
principal balance, from the date hereof through and including the dates of
payment, at a fixed interest rate of Eleven and Forty-Six Hundredths percent
(11.46%) per annum, to be paid in lawful money of the United States, in
Thirty-Six (36) consecutive monthly installments of principal and interest as
follows:
Periodic
Installment Amount
-----------------------------------------
Thirty-Five (35) $ 10,682,46
each ("Periodic Installment") and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on ___________________ and the following
Periodic Installments and the final installment shall be due and payable on the
same day of each succeeding month (each, a "Payment Date"). Such installments
have been calculated on the basis of a 360 day year of twelve 30-day months.
Each payment may, at the option of the Payee, be calculated and applied on an
assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "Security
Agreement").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in default under,
or fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgement).
In the event Maker violates its cash covenant as contained in Section 1(a) of
the Financial Covenants Addendum No. 001 to Security Agreement, Maker may prepay
in full, but not in part, its entire indebtedness hereunder without penalty.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of
interest contracted for, charged or received under this Note or any Security
Agreement on the principal balance shall exceed the maximum amount of interest
permitted by applicable law, then in such event (a) the provisions of this
paragraph shall govern and control, (b) neither Maker nor any other person or
entity now or hereafter liable for the payment hereof shall be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid
principal balance or refunded to Maker, at the option of the Payee, and (d) the
effective rate of interest shall be automatically reduced to the maximum lawful
contract rate allowed under applicable law as now or hereafter construed by the
courts having jurisdiction thereof. It is further agreed that without limitation
of the foregoing, all calculations of the rate of interest contracted for,
charged or received under this Note or any Security Agreement which are made for
the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full
stated term of the indebtedness evidenced hereby, all interest at any time
contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a
greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may be,
the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States of
America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "Obligor") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, and all other notices in connection herewith, as
well as filing of suit (if permitted by law) and diligence in collecting this
Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual reasonable
attorneys' fees. Maker and each Obligor agrees that fees not in excess of twenty
percent (20%) of the amount then due shall be deemed reasonable.
Maker hereby irrevocably authorizes and empowers the Prothonotary or Clerk, or
any attorney for any Court of record to appear for Maker in such Courts, at any
time, and confess a judgement against Maker, without process, in favor of any
holder hereof, without the filing of a declaration of default, with release of
errors, without stay of execution, for such amount as may appear from the face
hereof to be due hereunder (or, if such attorney so elects, for the amount which
may be due hereon as evidenced by an affidavit signed by a representative of
holder setting forth the amount then due) together with charges, reasonable
attorney's fees and costs as herein provided, and Maker hereby waives and
releases all benefits and relief from any and all appraisement, stay or
exemption laws of any state, now in force or hereafter to be passed. If a copy
hereof, verified by an affidavit, shall have been filed in said proceeding, it
shall not be necessary to file the original as a warrant of attorney. No single
exercise of the foregoing warrant and power to confess judgement shall be deemed
to exhaust the power, whether or not such exercise shall be held by any Court to
be invalid, voidable, or void, but the power shall continue undiminished and may
be exercised from time to time as often as the holder hereof shall elect, until
all sums payable or that may become payable hereunder by Maker have been paid in
full.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION, IN THE EVENT
OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
ORTHOVITA, INC.
/s/ Lisa S. Casel By: /s/ Joseph M. Paiva
- -------------------- --------------------------
(Witness)
LISA S. CASEL Name: Joseph M. Paiva
- --------------------
(Print name) Title: CFO
45 Great Valley PKWY, Malvern, PA 19355
- ---------------------------------------
(Address) Federal Tax ID #: 232694857
Address: 45 Great Valley Parkway,
Malvern, Chester County, PA 19355
PROMISSORY NOTE
12/6/02
-------
(Date)
FOR VALUE RECEIVED, Orthovita, Inc. a corporation located at the address stated
below ("Maker") promises, jointly and severally if more than one, to pay to the
order of General Electric Capital Corporation or any subsequent holder hereof
(each, a "Payee") at its office located at 401 Merritt 7 Suite 23, Norwalk, CT
06856 or at such other place as Payee or the holder hereof may designate, the
principal sum of Seventy-Two Thousand Six Hundred Fifty-Eight--65/100 Dollars
($72,658.65), with interest on the unpaid principal balance, from the date
hereof through and including the dates of payment, at a fixed interest rate of
Eleven and Eight Hundredths percent (11.08%) per annum, to be paid in lawful
money of the United States, in Thirty-Six (36) consecutive monthly installments
of principal and interest as follows:
Periodic
Installment Amount
-----------------------------------------
Thirty-Five (35) $ 2,359.72
each ("Periodic Installment") and final installment which shall be in the amount
of the total outstanding principal and interest. The first Periodic Installment
shall be due and payable on 1/1/03 and the following Periodic Installments and
the final installment shall be due and payable on the same day of each
succeeding month (each, a "Payment Date"). Such installments have been
calculated on the basis of a 360 day year of twelve 30-day months. Each payment
may, at the option of the Payee, be calculated and applied on an assumption that
such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "Security
Agreement").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in default under,
or fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment).
In the event Maker violates its cash covenant as contained in Section 1(a) of
the Financial Covenants Addendum No.001 to Security Agreement, Maker may prepay
in full, but not in part, its entire indebtedness hereunder without penalty.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under
any of such circumstances the amount of interest contracted for, charged or
received
under this Note or any Security Agreement on the principal balance shall exceed
the maximum amount of interest permitted by applicable law, then in such event
(a) the provisions of this paragraph shall govern and control, (b) neither Maker
nor any other person or entity now or hereafter liable for the payment hereof
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit
against the then unpaid principal balance or refunded to Maker, at the option of
the Payee, and (d) the effective rate of interest shall be automatically reduced
to the maximum lawful contract rate allowed under applicable law as now or
hereafter construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received under this Note or any Security
Agreement which are made for the purpose of determining whether such rate
exceeds the maximum lawful contract rate, shall be made, to the extent permitted
by applicable law, by amortizing, prorating, allocating and spreading in equal
parts during the period of the full stated term of the indebtedness evidenced
hereby, all interest at any time contracted for, charged or received from Maker
or otherwise by Payee in connection with such indebtedness; provided, however,
that if any applicable state law is amended or the law of the United States of
America preempts any applicable state law, so that it becomes lawful for the
Payee to receive a greater interest per annum rate than is presently allowed,
the Maker agrees that, on the effective date of such amendment or preemption, as
the case may be, the lawful maximum hereunder shall be increased to the maximum
interest per annum rate allowed by the amended state law or the law of the
United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than Maker, an "Obligor") who may at any time become liable for
the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, and all other notices in connection herewith, as
well as filing of suit (if permitted by law) and diligence in collecting this
Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual reasonable
attorney's fees. Maker and each Obligor agrees that fees not in excess of twenty
percent (20%) of the amount then due shall be deemed reasonable.
Maker hereby irrevocably authorizes and empowers the Prothonotary or Clerk, or
any attorney for any Court of record to appear for Maker in such Courts, at any
time, and confess a judgement against Maker, without process, in favor of any
holder hereof, without the filing of a declaration of default, with release of
errors, without stay of execution, for such amount as may appear from the face
hereof to be due hereunder (or, if such attorney so elects, for the amount which
may be due hereon as evidenced by an affidavit signed by a representative of
holder setting forth the amount then due) together with charges, reasonable
attorney's fees and costs as herein provided, and Maker hereby waives and
releases all benefits and relief from any and all appraisement, stay or
exemption laws of any state, now in force or hereafter to be passed. If a copy
hereof, verified by an affidavit, shall have been filed in said proceeding, it
shall not be necessary to file the original as a warrant of attorney. No single
exercise of the foregoing warrant and power to confess judgement shall be deemed
to exhaust the power, whether or not such exercise shall be held by any Court to
be invalid, voidable, or void, but the power shall continue undiminished and may
be exercised from time to time as often as the holder hereof shall elect, until
all sums payable or that may become payable hereunder by Maker have been paid in
full.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION, IN THE EVENT
OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
ORTHOVITA, INC.
/s/ Lisa S. Casel By: /s/ Joseph M. Paiva
- -------------------- --------------------------
(Witness)
LISA S. CASEL Name: Joseph M. Paiva
- -------------------- Title: CFO
(Print name)
45 Great Valley PKWY, Malvern, PA 19355
- ---------------------------------------
(Address) Federal Tax ID #: 232694857
Address: 45 Great Valley Parkway,
Malvern, Chester County, PA 19355