Contract
Exhibit
10.2
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF THE SAID ACT
AND APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH
OR
UNLESS COMPLIANCE WITH SUCH PROVISIONS IS NOT REQUIRED.
NEXMED,
INC.
8.0%
Senior Secured Note
Due
June 30, 2009
New
York,
NY
October
26,
2007
FOR
VALUE
RECEIVED, the undersigned, NEXMED, INC., a Nevada corporation (the
"Company"),
hereby promises to pay to TWIN RIVERS ASSOCIATES LLC, or its registered assigns,
the principal
sum of THREE MILLION DOLLARS AND ZERO CENTS ($3,000,000.00), or so much
thereof as shall not have been prepaid, on June 30, 2009 (the "Maturity
Date"),
with
interest (computed on the basis of a 360-day year of twelve 30-day months)
on
the principal amount hereof from
time
to time outstanding and unpaid (the "Interest"),
payable as provided in the next succeeding
paragraph hereof, at the rate of 8.0% per annum from the date of issuance hereof
(being the date
first written above, or the most recent date to which interest has been paid
hereon), to the date on which said principal amount shall be paid in
full.
The
Company shall pay interest (a) quarterly, commencing on January 1, 2008, and
until
the
date on which the principal of and all accrued and unpaid interest on this
Note
shall be paid in
full,
(b) on the Maturity Date, and (c) upon the payment or prepayment of any
principal owing under this Note (but only on the principal amount so prepaid
or
paid). If the first day of the calendar month on which Interest is due is not
a
Business Day, then such day for payment of Interest shall be the next succeeding
Business Day and interest shall accrue by reason of such extension.
The
principal of this Note may be prepaid, in whole or ratably in part, at any
time
upon
not
less than five (5) nor more than twenty (20) days' prior written notice to
the
holder hereof, together
with all interest then accrued and unpaid thereon (or on the portion thereof
being so prepaid,
as the case may be), but without premium or penalty.
All
cash
payments
shall be in such coin or currency of the United States of America as at the
time
of payment shall be legal tender for payment of public and private
debts.
For
purposes hereof the following terms shall have the meanings ascribed to them
below:
"Bankruptcy
Event"
means
any of the following events: (a) the Company or any subsidiary
commences a case or other proceeding under any bankruptcy, reorganization,
arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction
relating to the Company or any subsidiary thereof; (b) there is commenced
against the Company or any subsidiary any such case or proceeding that is not
dismissed within 60 days after commencement; (c) the Company or any subsidiary
is adjudicated insolvent or bankrupt or any order of relief
or
other order approving any such case or proceeding is entered; (d) the Company
or
any subsidiary suffers
any appointment of any custodian or the like for it or any substantial part
of
its property that is not discharged
or stayed within 60 days; (e) the Company or any subsidiary makes a general
assignment for the
benefit of creditors; (f) the Company or any subsidiary fails to pay, or states
that it is unable to pay or is unable
to
pay, its debts generally as they become due; or (g) the Company or any
subsidiary, by any act or failure
to act, expressly indicates its consent to, approval of or acquiescence in
any
of the foregoing or takes any corporate or other action for the purpose of
effecting any of the foregoing.
"Business
Day"
shall
mean any day other than a Saturday, Sunday or a day on which commercial
banks in the City of New York are authorized or required by law or executive
order to remain closed.
“Environmental
Compliance and Indemnification Agreement”
means
the agreement, dated October 26, 2007, executed by the Company and the Operating
Subsidiary providing an environmental indemnity to Twin Rivers Associates
LLC.
“Operating
Subsidiary”
means
NexMed (U.S.A.), Inc., a Delaware corporation which is wholly-owned by the
Company.
“Purchase
Agreement”
means
the agreement, dated as of October 26, 2007, between the Company and Twin River
Associates LLC, providing for the issuance of this Note.
“Subsidiary
Guaranty”
means
the guaranty, dated as of October 26, 2007, executed by XxxXxx (U.S.A.), Inc.
in
favor of Twin River Associates LLC.
The
Company's obligations under this Note are guaranteed by the Operating Subsidiary
pursuant to the Subsidiary Guaranty and the Operating Subsidiary's obligations
under the Subsidiary Guaranty
are secured by the Mortgaged Property (as defined in the Mortgages) pursuant
to
the terms of the
two
mortgages made by NexMed (USA), Inc. to Twin Rivers Associates LLC dated October
26, 2007 one mortgage relating to property known as 000 Xxxxxxx Xxxx, Xxxx
Xxxxxxx, Xxx Xxxxxx and the other mortgage relating to property known as 00
Xxxx
Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx (collectively, the “Mortgages”).
An
"Event
of Default"
is:
(i) a
default
in payment of the principal amount of this Note on or after the Maturity Date,
which default continues for five (5) Business Days after written notice of
such
non-payment
has been received by the Company, or a default in payment of Interest on this
Note on or after the date such payment is due, which default continues for
five
(5) Business Days after written notice
of
such non-payment has been received by the Company;
(ii) failure
by the Company or the Operating Subsidiary for thirty (30) days after
written
notice has been received by the Company to comply with any material provision
of
any of this
Note, the Subsidiary Guaranty, the Environmental Compliance and Indemnification
Agreement, or either of the Mortgages;
(iii) the
Subsidiary Guaranty or either of the Mortgages ceases to be in full force and
effect (including
failure to create a valid and perfected first priority lien on and security
interest in any of the Mortgaged
Property (as defined in the Mortgages) at any time for any reason;
(iv) any
material adverse change in the condition, value or operation of a material
portion of the Mortgaged Property;
(v) the
dissolution or termination of the Company or the Operating Subsidiary as
a
going
concern;
(vi) if
the
Company or the Operating Subsidiary are subject to any Bankruptcy
Event.
Upon
the
occurrence and during the continuation of any Event of Default, the outstanding
principal amount of this Note, and to the extent permitted by applicable law,
any Interest
payments thereon not paid when due, and any fees and other amounts then due
and
payable hereunder,
shall thereafter bear interest (including post-petition interest in any
bankruptcy proceeding
under Title 11 of the United States Code or other applicable insolvency laws)
payable in cash
at a
rate of 13% per annum (computed on the basis of a 360-day year of twelve 30-day
months).
Payment or acceptance of the increased rates of interest is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event
of
Default or otherwise prejudice or limit
any
rights or remedies under the Purchase Agreement. The maximum rate of interest,
including
default interest, charged hereunder shall not exceed the highest rate permitted
by law. Upon the occurrence of any Event of Default, at the option of the holder
of this Note, the entire principal amount of this Note, together with all
interest accrued thereon, shall immediately become due and payable in full;
failure to exercise this option shall not constitute a waiver of the right
to
exercise same in the event of the occurrence of any subsequent Event of Default.
This
Note
shall be governed by and construed in accordance with the laws of the
State
of
New Jersey. The Company irrevocably submits to the exclusive jurisdiction of
any
state or federal court sitting in or for the State of New Jersey, County of
Xxxxxx, over any suit, action or proceeding arising out of or relating to this
Note. The Company irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue
of
any such suit, action, or proceeding brought in such a court and any claim
that
suit, action, or proceeding has been brought in an inconvenient
forum.
The
holder of this Note may, without notice and without releasing liability of
any
party hereto, grant extensions or renewals hereof from time to time and for
any
term or terms, add or release one of more parties hereto, acquire additional
security, or release any security in whole or in part, release or make changes
to the Subsidiary Guaranty, or release the Mortgaged Property from the lien
of
the Mortgages. The holder hereof shall not be liable for or prejudiced by
failure to collect or for lack of diligence in bringing suit on this Note or
on
any renewal or extension hereof.
Presentment
for payment, notice of dishonor, protest and notice of protest are hereby
waived.
No
failure by the holder of this Note to exercise, and no delay in exercising,
any
right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by such holder of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies of the holder hereof as herein
specified are cumulative and not exclusive of any other rights or remedies
with
such holder may otherwise have.
In
the
event that it shall become necessary for the holder of this Note to employ
counsel to collect this Note, the Company also agrees to pay to the holder
of
this Note all reasonable attorney’s fees of the holder of this Note for the
services of such counsel and all reasonable expenses related to such collection,
whether or not suit be brought.
The
Company and, by acceptance of the benefits hereof, the holder of this Note,
knowingly and voluntarily waive any and all rights they may have to a trial
by
jury with respect to any litigation based on, or arising out of, under, or
in
connection with, this Note and for any counterclaim therein.
This
Note
may not be changed or terminated orally.
| NEXMED, INC. | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxx | |
|
Xxxx Xxxxxxxx |
||
| Vice President and Chief Financial Officer | ||
