EXHIBIT 10.2
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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
$1,500,000.00 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 TWO MILLION AND NO/100THS DOLLARS ($2,000,000.00) 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 FINOVA
MEZZANINE CAPITAL INC., a Tennessee corporation formerly known as Sirrom Capital
Corporation ("Payee"; Payee and any subsequent holder[s] hereof are hereinafter
referred to collectively as "Holder"), at the office of Payee at P. O. Xxx
00000, Xxxxxxxxx, Xxxxxxxxx 00000-0000, or at such other place as Holder may
designate to Maker in writing from time to time, the principal sum of ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100THS DOLLARS ($1,500,000.00), 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
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money advanced or to be advanced hereunder exceed the Maximum Rate. If, from any
circumstances 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
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Title: Executive Vice President
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