Exhibit 10.7
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO ACCENTIA
BIOPHARMACEUTICALS, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
AMENDED AND RESTATED SECURED
NON-CONVERTIBLE REVOLVING NOTE
FOR VALUE RECEIVED, each of ACCENTIA
BIOPHARMACEUTICALS, INC., a Florida corporation (the “
Parent ”), and the other companies listed on
Exhibit A attached hereto (such other companies together
with the Parent, each a “ Company ” and
collectively, the “ Companies ”), jointly and
severally, promises to pay to LAURUS MASTER FUND, LTD., c/o M&C
Corporate Services Limited, P.O. Box 309 GT, Ugland House, South
Church Street, George Town, Grand Cayman, Cayman Islands, Fax:
345-949-8080 (the “ Holder ”) or its registered
assigns or successors in interest, the sum of Five Million Dollars
($5,000,000), without duplication of any amounts owing by the
Companies to the Holder under the Second Minimum Borrowing Note (as
defined in the Security Agreement referred to below), or, if
different, the aggregate principal amount of all Loans (as defined
in the Security Agreement referred to below), together with any
accrued and unpaid interest hereon, on April 29, 2006 (the
“ Maturity Date ”) if not sooner indefeasibly
paid in full; provided , however , if the Parent
shall have consummated the Initial Public Offering (as defined in
the Security Agreement referred to below) on or prior to
March 31, 2006, the Maturity Date shall be April 29,
2008. This Secured Non-Convertible Revolving Note amends and
restates in its entirety (and is given in substitution for and not
in satisfaction of) that certain $5,000,000 Secured Revolving Note
made by the Company in favor of Holder on April 29,
2006.
Capitalized terms used herein
without definition shall have the meanings ascribed to such terms
in the Security Agreement among the Companies and the Holder dated
as of the date hereof (as amended and restated, further amended,
modified and/or supplemented from time to time, the “
Security Agreement ”).
The following terms shall apply to
this Amended and Restated Secured Non-Convertible Revolving Note
(this “ Note ”):
ARTICLE I
CONTRACT RATE AND MINIMUM
BORROWING NOTE
1.1 Contract Rate . Subject
to Sections 3.2 and 4.10, interest payable on the outstanding
principal amount of this Note (the “ Principal Amount
”) shall accrue at a rate per annum equal to the “prime
rate” published in The Wall Street Journal from time
to time (the “ Prime Rate ”), plus two percent
(2.0%) (the “ Contract Rate ”). The
Contract Rate shall be increased or decreased as the case may be
for each increase or decrease in the Prime Rate in an amount equal
to such increase or decrease in the Prime Rate; each change to be
effective as of the day of the change in the Prime Rate. Subject to
Section 1.2, the Contract Rate shall not at
any time be less than seven and three-quarters
percent (7.75%). Interest shall be (i) calculated on the basis
of a 360 day year, and (ii) payable monthly, in arrears,
commencing on May 4, 2005 on the first business day of each
consecutive calendar month thereafter through and including the
Maturity Date, and on the Maturity Date, whether by acceleration or
otherwise.
1.2 Contract Rate Adjustments and
Payments . The Contract Rate shall be calculated on the last
business day of each calendar month hereafter (other than for
increases or decreases in the Prime Rate which shall be calculated
and become effective in accordance with the terms of
Section 1.1) until the Maturity Date (each a “
Determination Date ”) and shall be subject to
adjustment as set forth herein.
ARTICLE II
[INTENTIONALLY
OMITTED]
ARTICLE III
EVENTS OF DEFAULT AND DEFAULT
RELATED PROVISIONS
3.1 Events of Default . The
occurrence of an Event of Default under the Security Agreement
shall constitute an event of default (“ Event of
Default ”) hereunder.
3.2 Default Interest .
Following the occurrence and during the continuance of an Event of
Default, the Companies shall, jointly and severally, pay additional
interest on the outstanding principal balance of this Note in an
amount equal to one and one half percent (1.5%) per month, and
all outstanding Obligations, including unpaid interest, shall
continue to accrue interest at such additional interest rate from
the date of such Event of Default until the date such Event of
Default is cured or waived.
3.3 Default Payment .
Following the occurrence and during the continuance of an Event of
Default, the Holder, at its option, may elect, in addition to all
rights and remedies of the Holder under the Security Agreement and
the other Ancillary Agreements and all obligations and liabilities
of each Company under the Security Agreement and the other
Ancillary Agreements, to require the Companies, jointly and
severally, to make a Default Payment (“ Default
Payment ”). The Default Payment shall be 130% of the
outstanding principal amount of the Note, plus accrued but unpaid
interest, all other fees then remaining unpaid, and all other
amounts payable hereunder. The Default Payment shall be applied
first to any fees due and payable to the Holder pursuant to the
Notes, the Security Agreement and/or the Ancillary Agreements, then
to accrued and unpaid interest due on the Notes and then to the
outstanding principal balance of the Notes. The Default Payment
shall be due and payable immediately on the date that the Holder
has exercised its rights pursuant to this
Section 3.3.
ARTICLE IV
MISCELLANEOUS
4.1 [Intentionally
Omitted].
2
4.2 Cumulative Remedies . The
rem
