Exhibit 10.2
AMENDED AND
RESTATED
PROMISSORY NOTE
December 29,
2006
FOR VALUE RECEIVED, GTC
BIOTHERAPEUTICS, INC. ,
a Massachusetts corporation located at the address stated below
(“ Borrower ”), promises to pay to the order of
GENERAL ELECTRIC CAPITAL CORPORATION or any subsequent
holder hereof (each, a “ Lender ”) at its office
located at 83 Wooster Heights Road, Danbury, CT 06810 or at such
other place as Lender or the holder hereof may designate, the
principal sum of TWO MILLION AND 00/100 DOLLARS
($2,000,000.00) , with interest on the unpaid principal
balance, from the date hereof through and including the dates of
payment, at a fixed interest rate of ten and eighty-four hundredths
percent (10.84%) per annum, to be paid in lawful money of the
United States, in thirty-five (35) consecutive monthly
installments of principal and interest commencing February 1,
2007 and continuing on the first day of each month thereafter, in
the amount of $65,326.00, together with a final installment in the
amount of any and all remaining outstanding principal and interest
(i.e. $65,326.00), and all other amounts outstanding, on
January 1, 2010. Such installments have been calculated on the
basis of a 360 day year of twelve 30-day months. Each payment may,
at the option of the Lender, be calculated and applied on an
assumption that such payment would be made on its due
date.
The acceptance by Lender of any
payment which is less than payment in full of all amounts due and
owing at such time shall not constitute a waiver of Lender’s
right to receive payment in full at such time or at any prior or
subsequent time.
The Borrower hereby expressly
authorizes the Lender to insert the date value is actually given in
the blank space on the face hereof and on all related documents
pertaining hereto.
This Amended and Restated Promissory
Note (“ Note ”) is secured by an Amended and
Restated Master Security Agreement (as may be amended, restated,
supplemented or modified from time to time, the “ Master
Security Agreement ”) and an Amended and Restated
Mortgage, Security Agreement and Fixture Filing (as may be amended,
restated, supplemented or modified from time to time), each from
the Borrower to the Lender and dated the date hereof, together with
any other security agreements, pledge agreements, mortgages,
schedules or other collateral documents delivered by the Borrower
to the Lender from time to time to secure the obligations hereunder
(as may be amended, restated, supplemented or modified from time to
time, each a “ Security Document ”).
Time is of the essence hereof. If
any installment or any other sum due under this Note or any
Security Document is not received within ten (10) days after
its due date, the Borrower agrees to pay, in addition to the amount
of each such installment or other sum, a late payment charge of
five percent (5%) of the amount of said installment or other
sum, but not exceeding any lawful maximum. If (i) Borrower
fails to make payment of any amount due hereunder within ten
(10) days after the same becomes due and payable; or
(ii) Borrower is in default under, or fails to perform under
any term or condition contained in any Security Document (other
than those in Section 7(a)(x) and/or (xi) of the Master
Security Agreement) (beyond any applicable grace period), then the
entire principal sum remaining unpaid, together with all accrued
interest thereon and any other sum payable under this Note or any
Security
Document, at the election of Lender, shall
immediately become due and payable, with interest thereon at the
lesser of eighteen percent (18%) per annum or the highest rate
not prohibited by applicable law from the date of such accelerated
maturity until paid (both before and after any judgment). If
Borrower is in default under, or fails to perform under any term or
condition under Section 7(a)(x) or (xi) of the Master
Security Agreement, then this Note and all Security Documents shall
immediately become due and payable, without notice.
The Borrower may prepay in full, but
not in part, its entire indebtedness hereunder plus an
additional sum as a premium on any such prepayment equal to the
following percentages of the then-outstanding principal balance for
the indicated period:
Prior to the first anniversary date
of this Note: Not Allowed
Thereafter and prior to the second
anniversary date of this Note: Five percent (5.0%)
Thereafter and prior to the third
anniversary date of this Note: Four percent (4.0%)
and zero percent (0%)
thereafter,
plus all other sums due hereunder or under any
Security Document; provided, however , that no premium shall
apply to any mandatory prepayment of indebtedness required under
the Mas
