Exhibit 10.2
[SCHEDULE B]
[Listing of Additional
Indebtedness]
PROMISSORY NOTE
To Master Security Agreement
No. 5081095
(Date)
FOR VALUE RECEIVED,
Acusphere, Inc., a Delaware corporation, located at the
address stated below ( “Maker” ) promises,
jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation or any subsequent holder hereof
(each, a “Payee” ) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314 or at such other
place as Payee or the holder hereof may designate, the principal
sum of One Million Three Hundred Fourteen Thousand Seven
Hundred Nineteen and 66/100 Dollars ($1,314,719.66) , 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 seventy five hundredths percent (10.75%) per annum,
in forty eight (48) consecutive monthly installments of principal
and interest as follows:
Periodic
Installment
|
|
Amount
|
|
|
|
|
|
|
1-48
|
|
$
|
33,519.94
|
|
|
|
|
|
|
|
each ( “Periodic
Installment” ) and a final installment which shall be in
the amount of the total outstanding principal and interest.
The first Periodic Installment shall be due and payable on or
around November 14, 2005 and the following Periodic
Installments and the final installment shall be due and payable on
the first day of each succeeding month (each, a “Payment
Date” ) beginning January 1, 2006. 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
Payee, be calculated and applied on an assumption that such payment
would be made on its due date. Maker agrees to pay any initial
partial month interest payment from the date of this Note to the
first day of the following month (“Interim
Interest”).
The acceptance by Payee 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 Payee’s
right to receive payment in full at such time or at any prior or
subsequent time.
The Maker hereby expressly
authorizes the Payee to insert the date value is actually given in
the blank space on the face hereof and on all related documents
pertaining hereto.
This Note may be secured by a
security agreement, chattel mortgage, pledge agreement or like
instrument (each of which is hereinafter called a
“Security Agreement” and any Security Agreement,
this Note and any other document evidencing or securing this loan
is hereinafter called a “Debt Document”
).
Time is of the essence hereof.
If any installment or any other sum due under this Note or any
Security Agreement is not received when due (subject to applicable
cure periods, if any), the Maker 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) Maker
fails to make payment of any amount due hereunder ; or
(ii) Maker is in default under, or fails to perform under any
term or condition contained in any Security Agreement, in either
case, subject to applicable cure periods, if any, then the entire
principal sum remaining unpaid, together with all accrued interest
thereon and any other sum payable under this Note or any Security
Agreement, at the election of Payee, 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).
Notwithstanding anything to the
contrary contained herein or in the Security Agreement, Maker may
prepay in full, but not in part, its entire Indebtedness hereunder
by payment of the entire Indebtedness plus an additional sum as a
premium equal to the following percentages of the remaining
principal balance for the indicated period:
From the date of this Note until the
first annual anniversary date of this Note: six percent
(6%)
From the first annual anniversary
date of this Note until the second annual anniversary date of this
Note: five percent (5%)
From the second annual anniversary
date of this Note until the third annual anniversary date of this
Note: four percent (4%)
From the third annual anniversary
date of this Note until the fourth annual anniversary date of this
Note: two percent (2%)
Notwithstanding the foregoing, Maker
may prepay in full, but not in part, its entire Indebtedness
hereunder by payment of the entire Indebtedness without having to
pay the additional sums described above as premiums in the event
that Payee does not consent on a timely basis to (i) any of
the distributions described in Section 3(i) of the
Security Agreement, (ii) any of the payments described in
Section 3(j) of the Security Agreement or (iii) any of
the transactions described in Section 7(a)(xiv) of the
Security Agreement.
The Maker and all sureties,
endorsers, guarantors or any others (each such person, other than
the Maker, an “Obligor” ) who may at any time
become liable for the payment hereof jointly and severally consent
hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or
of any party primarily or secondarily liable on this Note or any
Security Agreement or any term and provision of either, which may
be made, granted or consented to by Payee, and agree that suit may
be brought and maintained against any one or more of them, at the
election of Payee without joinder of any other as a party thereto,
and that Payee shall not be required first to foreclose, proceed
against, or exhaust any security hereof in order to enforce payment
of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest,
notice of protest, notice of dishonor, and all other notices in
connection herewith, as well as filing of suit (if permitted by
law) and diligence in collecting this Note or enforcing any of the
security hereof, and agrees to pay (
