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 (if and to
the extent permitted by law) all expenses incurred in collection, including
Payee’s actual attorneys’ fees.  Maker
and each Obligor agrees that fees not in excess of twenty percent (20%) of the
amount then due shall be deemed reasonable.


 


Maker and Payee intend to strictly comply with all applicable federal
and Virginia laws, including applicable usury laws (or the usury laws of any
jurisdiction whose usury laws are deemed to apply to the Note or any other Debt
Document despite the intention and desire of the parties to apply the usury
laws of the Commonwealth of Virginia). 
Accordingly, the provisions of this paragraph shall govern and control
over every other provision of this Note or any other Debt Document which
conflicts or is inconsistent with this Section, even if such provision declares
that it controls.  As used in this
paragraph, the term “interest”
includes the aggregate of all charges, fees, benefits or other compensation
which constitute interest under applicable law, provided that, to the
maximum extent permitted by applicable law, (a) any non-principal payment
shall be characterized as an expense or as compensation for something other
than the use, forbearance or detention of money and not as interest, and (b) all
interest at any time contracted for, reserved, charged or received shall be
amortized, prorated, allocated and spread, in equal parts during the full term
of the obligations.  In no event shall
Maker or any other person be obligated to pay, or Payee have any right or
privilege to reserve, receive or retain, (a) any interest in excess of the
maximum amount of non-usurious interest permitted under the laws of the
Commonwealth of Virginia or the applicable laws (if any) of the United States
or of any other state, or (b) total interest in excess of the amount which
Payee could lawfully have contracted for, reserved, received, retained or
charged had the interest been calculated for the full term of the
obligations.  On each day, if any, that the interest rate (the “Stated Rate”)
called for under this Note or any other Debt Document exceeds the maximum
non-usurious rate, the rate at which interest shall accrue shall automatically
be fixed by operation of this sentence at the maximum non-usurious rate for
that day.  Thereafter, interest shall
accrue at the Stated Rate unless and until the Stated Rate again exceeds the
maximum non-usurious rate, in which case, the
provisions of the immediately preceding sentence shall again automatically
operate to limit the interest accrual rate to the maximum non-usurious
rate.  The daily interest


 





















 


rates to be used
in calculating interest at the maximum non-usurious rate shall be determined by
dividing the applicable maximum non-usurious rate by the number of days in the
calendar year for which such calculation is being made.  None of the terms and provisions contained in
this Note or in any other Debt Document which directly or indirectly relate to
interest shall ever be construed without reference to this paragraph, or be
construed to create a contract to pay for the use, forbearance or detention of
money at an interest rate in excess of the maximum non-usurious rate.  If the term of any obligation is shortened by
reason of acceleration of maturity as a result of any Default or by any other
cause, or by reason of any required or permitted prepayment, and if for that
(or any other) reason Payee at any time, including but not limited to, the
stated maturity, is owed or receives (and/or has received) interest in excess
of interest calculated at the maximum non-usurious rate, then and in any such
event all of any such excess interest shall be canceled automatically as of the
date of such acceleration, prepayment or other event which produces the excess,
and, if such excess interest has been paid to Payee, it shall be credited pro
tanto against the then-outstanding principal balance of Maker’s obligations
to Payee, effective as of the date or dates when the event occurs which causes
it to be excess interest, until such excess is exhausted or all of such
principal has been fully paid and satisfied, whichever occurs first, and any
remaining balance of such excess shall be promptly refunded to its payor.


 


THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY,
THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
(INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.)  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. 
IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.


 


This Note and any Security Agreement constitute the entire agreement of
the Maker and Payee with respect to the subject matter hereof and supercedes
all prior understandings, agreements and representations, express or implied.


 


No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. 
Any such waiver, consent, modification or change shall be effective only
in the specific instance and for the specific purpose given.


 


Any provision in this Note or any Security Agreement which is in conflict
with any statute, law or applicable rule shall be deemed omitted, modified
or altered to conform thereto.


 


Upon receipt of an affidavit of an officer of Payee as
to the loss, theft, destruction or mutilation of this Note or any Debt Document
which is not of public record, and, in the case of any such loss, theft,
destruction or mutilation, upon surrender and cancellation of such Note or
other Debt Document, Maker will issue, in lieu thereof, a replacement Note or
other Debt Document in the same principal amount thereof and otherwise of like
tenor.


 


It is understood and agreed that this Note and all of
the Debt Documents were negotiated and have been or will be delivered to Payee
in the Commonwealth of Virginia, which State the parties agree has a substantial
relationship to the parties and to the underlying transactions embodied by this
Note and the Debt Documents. Maker agrees to furnish to Payee at Payee’s office
in Alexandria, VA, all further instruments, certifications and documents to be
furnished hereunder.    The parties also
agree that if collateral is pledged to secure the debt evidenced by this Note,
that the state or states in which such collateral is located each have a
substantial relationship to the parties and to the underlying transaction
embodied by this Note and the Debt Documents.


 


MAKER AGREES THAT THE PAYEE OF THIS NOTE SHALL HAVE THE OPTION BY WHICH
STATE LAWS THIS NOTE SHALL BE GOVERNED AND CONSTRUED: (A) THE LAWS OF THE
COMMONWEALTH OF VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE
THE DEBT EVIDENCED BY THIS NOTE, THEN BY THE LAWS OF THE STATE OR STATES WHERE
THE COLLATERAL IS LOCATED, AT PAYEE’S OPTION. 
THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE PAYEE OF THIS NOTE.  MAKER SHALL NOT HAVE ANY OPTION TO CHOOSE THE
LAWS BY WHICH THIS NOTE SHALL BE GOVERNED. 
MAKER AND GUARANTORS HEREBY CONSENT TO THE EXERCISE OF


 





















 


JURISDICTION OVER IT BY ANY FEDERAL COURT SITTING IN VIRGINIA OR ANY
VIRGINIA COURT SELECTED BY PAYEE, FOR THE PURPOSES OF ANY AND ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THE NOTE, THE LOAN AGREEMENT AND ALL
OTHER  DOCUMENTS.  MAKER AND GUARANTORS IRREVOCABLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN ANY
SUCH COURT, ANY CLAIM BASED ON THE CONSOLIDATION OF PROCEEDINGS IN SUCH COURTS
IN WHICH PROPER VENUE MAY LIE IN DIVERGENT JURISDICTIONS, AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.  MAKER AND GUARANTORS
HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS NOTE, THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.


 


 


	
   

  	
   

  	
  Acusphere, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  (Witness)

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  (Print name)

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  (Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Federal Tax
  ID #:

  	
   04-3208947

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
  500 Arsenal
  Street

  
	
   

  	
   

  	
   

  	
  Watertown,
  MA 02472

  
												



 


Schedule of
Loan Amounts


 


	
  Sched. No.

  	
   

  	
  Date

  	
   

  	
  Principal Amount

  	
   

  	
  Rate

  	
   

  	
  Term (mos.)

  	
   

  	
  Monthly Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  No. 1

  	
   

  	
  6/23/2005

  	
   

  	
  113,523.69

  	
   

  	
  10.26

  	
  %

  	
  36

  	
   

  	
  3,645.81

  	
   

  
	
  No. 2

  	
   

  	
  6/23/2005

  	
   

  	
  244,074.48

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  4,697.05

  	
   

  
	
  No. 3

  	
   

  	
  8/29/2005

  	
   

  	
  245,655.16

  	
   

  	
  10.32

  	
  %

  	
  36

  	
   

  	
  7,895.60

  	
   

  
	
  No. 4

  	
   

  	
  8/29/2005

  	
   

  	
  875,929.01

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  22,187.28

  	
   

  
	
  No. 5

  	
   

  	
  9/28/2005

  	
   

  	
  897,513.42

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  22,734.01

  	
   

  
	
  No. 6

  	
   

  	
  11/17/2005

  	
   

  	
  1,314,719.66

  	
   

  	
  10.75

  	
  %

  	
  48

  	
   

  	
  33,519.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  3,691,415.42