Exhibit 10.4
THIS INSTRUMENT AND THE INDEBTEDNESS, RIGHTS AND OBLIGATIONS EVIDENCED HEREBY
AND ANY LIENS OR OTHER SECURITY INTERESTS SECURING SUCH RIGHTS AND OBLIGATIONS
ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED FROM
TIME TO TIME, THE "SUBORDINATION AGREEMENT") DATED AS OF MARCH 4, 2014, BY AND
AMONG THE SUBORDINATED CREDITOR IDENTIFIED THEREIN AND OXFORD FINANCE LLC IN ITS
CAPACITY AS AGENT FOR CERTAIN LENDERS (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS,
"SENIOR CREDITOR AGENT"), TO CERTAIN INDEBTEDNESS, RIGHTS, AND OBLIGATIONS OF
NAVIDEA BIOPHARMACEUTICALS, INC. TO SENIOR CREDITOR AGENT AND SENIOR CREDITOR
(AS DEFINED THEREIN) AND LIENS AND SECURITY INTERESTS OF SENIOR CREDITOR AGENT
SECURING THE SAME ALL AS DESCRIBED IN THE SUBORDINATION AGREEMENT; AND EACH
HOLDER AND TRANSFEREE OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
SECOND AMENDED AND RESTATED PROMISSORY NOTE
(Term Loan Facility)
$35,000,000.00 Dublin, Ohio
Date of Original Issuance: July 25, 2012
Date of First Amendment and Restatement: June 25, 2013
Date of Second Amendment and Restatement: March 4, 2014
FOR VALUE RECEIVED, NAVIDEA BIOPHARMACEUTICALS, INC., a Delaware corporation
(the "Borrower"), with its principal place of business at 425 Metro Place North,
Dublin, Ohio 43107, promises to pay to the order of PLATINUM-MONTAUR LIFE
SCIENCES LLC (together with any successors or assigns, the "Lender") at the
office of the Lender, 152 West 57th Street, New York, New York 10019, the sum of
THIRTY FIVE MILLION DOLLARS and zero cents ($35,000,000.00), or, if less, the
amount of all Draws advanced (and not hereafter repaid) by the Lender pursuant
to the Loan Agreement, dated July 25, 2012, between the Borrower and the Lender
(as amended, supplemented or modified, the "Loan Agreement"), together with
interest on the unpaid balance and all other charges, as provided below. This
Note evidences the Term Loan Facility made under and pursuant to the Loan
Agreement; capitalized terms used herein and not otherwise defined shall have
the respective meanings given in the Loan Agreement.
Interest will accrue on the unpaid balance of each Draw at the Applicable Rate.
All interest accruing on each Draw shall be due and payable as set forth in
Section 2.2(b) of the Loan Agreement. The principal sum of each Draw shall be
due and payable as set forth in Section 2.2(c) of the Loan Agreement.
If any payment hereunder is due on a day that is not a Business Day, such
payment shall be due and payable on the next Business Day.
Payments; Prepayments. All payments hereunder shall be made by the Borrower to
the Lender in United States currency at the Lender's address specified above (or
at such other address as the Lender may specify), in immediately available
funds, on the due date thereof. Payments received by the Lender prior to the
occurrence of an Event of Default will be applied: first to accrued interest;
second to outstanding principal; and third to fees, expenses