EXHIBIT 10.3
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THIS NOTE IS SUBJECT TO THE TERMS OF THAT CERTAIN INTERCREDITOR AGREEMENT OF
EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., FINOVA
MEZZANINE CAPITAL INC. AND ARGOSY INVESTMENT PARTNERS, L.P., WHICH HAS BEEN
ACKNOWLEDGED BY MAKER AND BY SUPERIOR PHARMACEUTICAL COMPANY.
FIRST AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$750,000.00 February 23, 2001
FOR VALUE RECEIVED, the undersigned, XXXXXXXX.XXX, INC.("Maker"), a
Delaware corporation and assumptor of the obligations previously evidenced by
that Secured Promissory Note dated June 18, 1997 in the original principal
amount of ONE MILLION AND NO/100THS DOLLARS ($1,000,000.00) made by DYNAGEN,
INC., a Delaware corporation, which previous Secured Promissory Note (the "1997
Note") is amended and restated hereby, promises to pay to the order of ARGOSY
INVESTMENT PARTNERS, L.P., a Pennsylvania limited partnership formerly known as
Odyssey Investment Partners, L.P. ("Payee"; Payee and any subsequent holder[s]
hereof are hereinafter referred to collectively as "Holder"), at the office of
Payee at 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxx, Xxxxxxxxxxxx 00000, or at such
other place as Holder may designate to Maker in writing from time to time, the
principal sum of SEVEN HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS
($750,000.00), together with interest on the outstanding principal balance
hereof from the date hereof at the rate of thirteen and one-half percent (13.5%)
per annum (computed on the basis of a 360-day year); provided, however, that
Holder may charge and receive interest upon any renewal or extension hereof at
the greater of (i) the rate set out above, or (ii) any rate agreed to by the
undersigned that is not in excess of the maximum rate of interest allowed to be
charged under applicable law (the "Maximum Rate") at the time of such renewal or
extension.
Interest only on the outstanding principal balance hereof shall be due
and payable monthly, in arrears on the first (1st) day of each succeeding month
until June 17, 2004 (the "Maturity Date"), at which time the entire outstanding
principal balance, together with all accrued and unpaid interest, shall be
immediately due and payable in full.
The indebtedness evidenced hereby may be prepaid in whole or in part,
at any time and from time to time, without penalty. Any such prepayments shall
be credited first to any accrued and unpaid interest and then to the outstanding
principal balance hereof.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any default be made in the payment of principal or interest as
stipulated above, which default is not cured within five (5) business days; or
in the event that any default or event of default shall occur under that certain
First Amended and Restated Loan Agreement of even date herewith, among Maker,
DynaGen, Inc., Superior Pharmaceutical Company, FINOVA Mezzanine Capital Inc.
and Argosy Investment Partners, L.P. (as may be amended from time to time, the
"Loan Agreement"), which default or event of default is not cured following the
giving of any applicable notice and within any applicable cure period set forth
in said Loan Agreement; or should any default by
Maker be made in the performance or observance of any covenants or conditions
contained in any other instrument or document now or hereafter evidencing,
securing or otherwise relating to the indebtedness evidenced hereby (subject to
any applicable notice and cure period provisions that may be set forth therein);
then, and in such event, the entire outstanding principal balance of the
indebtedness evidenced hereby, together with any other sums advanced hereunder,
under the Loan Agreement and/or under any other instrument or document now or
hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby, together with all unpaid interest accrued thereon, shall, at
the option of Holder and without notice to Maker, at once become due and payable
and may be collected forthwith, regardless of the stipulated date of maturity.
Upon the occurrence of any default as set forth herein, at the option of Holder
and without notice to Maker, all accrued and unpaid interest, if any, shall be
added to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
seven percentage points (7.0%) in excess of the above-specified interest rate,
or (ii) the Maximum Rate in effect from time to time, regardless of whether or
not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any indorsers hereof agree to pay to
Holder an amount equal to all such costs, including without limitation all
actual reasonable attorney's fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto. No
failure to accelerate the indebtedness evidenced hereby by reason of default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist
upon strict compliance with the terms of this Note or to prevent the exercise of
such right of acceleration or any other right granted hereunder or by applicable
laws. No extension of the time for payment of the indebtedness evidenced hereby
or any installment due hereunder, made by agreement with any person now or
hereafter liable for payment of the indebtedness evidenced hereby, shall operate
to release, discharge, modify, change or affect the original liability of Maker
hereunder or that of any other person now or hereafter liable for payment of the
indebtedness evidenced hereby, either in whole or in part, unless Holder agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
The indebtedness and other obligations evidenced by this Note are
further evidenced by (i) the Loan Agreement and (ii) certain other instruments
and documents, as may be required to protect and preserve the rights of Maker
and Payee as more specifically described in the Loan Agreement.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the Maximum Rate. If, from any circumstances
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whatsoever, the fulfillment of any provision of this Note or any other agreement
or instrument now or hereafter evidencing, securing or in any way relating to
the indebtedness evidenced hereby shall involve the payment of interest in
excess of the Maximum Rate, then, ipso facto, the obligation to pay interest
hereunder shall be reduced to the Maximum Rate; and if from any circumstance
whatsoever, Holder shall ever receive interest, the amount of which would exceed
the amount collectible at the Maximum Rate, such amount as would be excessive
interest shall be applied to the reduction of the principal balance remaining
unpaid hereunder and not to the payment of interest. This provision shall
control every other provision in any and all other agreements and instruments
existing or hereafter arising between Maker and Holder with respect to the
indebtedness evidenced hereby.
This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Tennessee, except to the
extent that federal law may be applicable to the determination of the Maximum
Rate.
As set forth in the Loan Agreement, this Note is executed to evidence
the assumption of the obligations arising under the 1997 Note without release of
DynaGen, Inc. as an obligor, and consistent with the assumption, DynaGen, Inc.'s
liability for the obligations arising hereunder is now evidenced by an
Unconditional Guaranty of even date herewith. All previously existing collateral
for the obligations evidenced hereby remain in effect with no change in their
attachment, perfection or priority, as set forth more fully in the Loan
Agreement. Any accrued and unpaid interest or expenses under the 1997 Note as of
the date hereof remains outstanding under this Note.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law.
MAKER:
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XXXXXXXX.XXX, INC., a Delaware corporation
By: /s/ C. Xxxxxx Xxxxxx
Executive Vice President
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