NOTE
NEITHER
THIS NOTE NOR THE SECURITIES THAT MAY BE ISSUED BY THE BORROWER UPON CONVERSION
HEREOF (COLLECTIVELY, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. NEITHER THE SECURITIES NOR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED:
(i) IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE 1933 ACT, OR APPLICABLE STATE SECURITIES LAWS; OR (ii) IN THE ABSENCE
OF AN OPINION OF COUNSEL, IN A FORM ACCEPTABLE TO THE ISSUER, THAT REGISTRATION
IS NOT REQUIRED UNDER THE 1933 ACT OR; (iii) UNLESS SOLD, TRANSFERRED OR
ASSIGNED PURSUANT TO RULE 144 UNDER THE 1933 ACT.
|
$27,000
|
July
18, 2008 (the "Issuance
Date")
|
FOR VALUE RECEIVED, American
Scientific Resources, Inc., a New York corporation (the "Company"), hereby
promises to pay to the order of ASR Realty, LLC., a New York entity, or
registered assigns (the "Holder") the principal amount of TWENTY SEVEN THOUSAND
DOLLARS ($27,000.00), on demand of the Holder (the "Maturity
Date"). The principal balance of this Note shall be payable pursuant
to Paragraph 1.
1. Payments of Principal and
Interest.
Payment of
Principal. The principal
balance of this Note shall be paid to the Holder hereof on the Demand, but in no
event shall Demand be before August 8, 2008. The Company shall not prematurely
pay or prepay any outstanding principal balance to the Holder. This principal
shall be paid from the proceeds of the sale at the closing of the following
property:00 Xxxxx Xxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000.
Default Interest. Any
amount of principal on this Note which is not paid when due shall bear interest
at the rate of fifteen percent (15%) per annum from the date thereof until the
same is paid ("Default
Interest") and the Holder, at the Holder's sole discretion, may include
any accrued but unpaid Default Interest in the Conversion
Amount. This is in addition to, and not in substitution for the
rights of the Holder under the Escrow Agreement.
(c)General Payment
Provisions. This Note shall be made in lawful money of
the United States of America by check to such account as the Holder may from
time to time designate by written notice to the Company in accordance with the
provisions of this Note. Notwithstanding anything contained herein to the
contrary, upon Demand, the Company shall retain the option of paying either in
(i) cash or (ii) in Common Stock, at the Conversion Price. Whenever
any amount expressed to be due by the terms of this Note is due on any day which
is not a Business Day (as defined below), the same shall instead be due on the
next succeeding day which is a Business Day and, in the case of any interest
payment date which is not the date on which this Note is paid in full, the
extension of the due date thereof shall not be taken into account for purposes
of determining the amount of interest due on such date. For purposes of this
Note, "Business Day"
shall mean any day other than a Saturday, Sunday or a day on which commercial
banks in the State of Nevada are authorized or required by law or executive
order to remain closed.
2. Demand of Note. At
any time after the Maturity Date, this Note may be demanded.
(a) Certain Defined
Terms. For purposes of this Note, the following terms shall
have the following meanings:
"Demand Amount" in the case the
property at such address 00 Xxxxx Xxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, will
not close; means the sum of (A) the principal amount of this Note may be
demanded with respect to which this determination is being made, and (B) Default
Interest, if any, on unpaid interest and principal, if so included at the
Holder's sole discretion.
"Other Note" means the
convertible notes, other than this Note, issued by the Company to the Holder
whether prior, simultaneously with or hereinafter executed.
"Person" means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
Company's Response.
Upon receipt by the Company of a copy of a Demand Notice, the Company shall as
soon aspracticable, but in no event later than one (1) Business Day after
receipt of such Demand Notice, send, via facsimile and regular mail, a
confirmation of receipt of such Demand Notice (the "Demand Confirmation") to such
Holder indicating that the Company will process such Demand Notice in accordance
with the terms herein. Within one (1) Business Day after the date of the Demand
Confirmation, the Company shall cause to be issued and surrendered to an
overnight courier for delivery to the address as specified in the Demand Notice,
the entire amount of the NOTE then the Company shall within five (5) Business
Days after receipt of the Note and at its own expense, issue and deliver to the
Holder a new Note for the outstanding principal amount not so converted;
provided that such new Note shall be substantially in the same form as this
Note.
Taxes. The Company shall
pay any and all taxes that may be payable with respect to the issuance and
delivery of such Note.
3. Other Rights of
Holders.
(a) Reorganization,
Reclassification, Consolidation, Merger or Sale. Any recapitalization,
reorganization, reclassification, consolidation, merger, sale of all or
substantially all of the Company's assets to another Person or other transaction
which is effected in such a way that holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation) stock, securities or
assets with respect to or in exchange for Common Stock is referred to herein as
"OrganicChange." Prior
to the consummation of any (i) Organic Change or (ii) other Organic Change
following which the Company is not a surviving entity, the Company will secure
from the Person purchasing such assets or the successor resulting from such
Organic Change (in each case, the "Acquiring Entity") a written
agreement (in form and substance reasonably satisfactory to the Holder) to
deliver to Holder in exchange for this Note, a security of the Acquiring Entity
evidenced by a written instrument substantially similar in form and substance to
this Note, and reasonably satisfactory to the Holder. Prior to the
consummation of any other Organic Change, the Company shall make appropriate
provision (in form and substance reasonably satisfactory to the Holders of a
majority of the Conversion Amount of the Note then outstanding) to ensure that
each of the Holders will thereafter have the right to acquire and receive in
lieu of or in addition to (as the case may be) the shares of Common Stock
immediately theretofore acquirable and receivable upon the conversion of such
Holder's Note, such shares of stock, securities or assets that would have been
issued or payable in such Organic Change with respect to or in exchange for the
number of shares of Common Stock which would have been acquirable and receivable
upon the conversion of such Holder's Note as of the date of such Organic Change
(without taking into account any limitations or restrictions on the
convertibility of the Note).
(b).
Security
Interest. Company hereby grants Holder a continuing security
interest in all presently existing and later acquired Collateral to secure all
obligations and performance of Company’s duties hereunder
(collectively, the "Obligations"). The
term "Collateral" shall
include the following categories of assets as defined in Article 9 of the
Uniform Commercial Code of the State of Nevada as amended (the "UCC"): goods
(including inventory, equipment and any accessions thereto, instruments
(including promissory notes), documents, accounts, chattel paper (whether
tangible or electronic), deposit accounts, letter-of-credit rights (whether or
not the letter of credit is evidenced by a writing), commercial tort claims,
securities and all other investment property, supporting obligations and any and
all proceeds of any thereof, wherever located, whether now owned or hereafter
acquired. Notwithstanding anything contained herein to the contrary,
any rights granted to Holder pursuant to the security interest granted hereunder
may only be enforced following prior written notice of a default of the
Obligations to Company with a five (5) day opportunity for each party to cure
such default. If, pursuant to the UCC, prior notice must be given to
the Company upon the occurrence of an event, a five (5) day notice period shall
be sufficient. Company irrevocably authorizes the Holder at any time and from
time to time to file in any Uniform Commercial Code jurisdiction any initial
financing statements and amendments thereto that: (i) indicate the Collateral as
all assets of Company or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope of Article 9
of the UCC, or as being of an equal or lesser scope or with greater detail; and
(ii) contain any other information required by part 5 of Article 9 of the UCC
for the sufficiency or filing office acceptance of any financing statement or
amendment, including (y) whether
Company is an organization, the type of organization, and any organization
identification number issued to Company, and, (z) in the case
of a financing statement filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates; and contain a notification
that Company has granted a negative pledge to the Holder, and that any
subsequent lien or may be tortiouously interfering with the Holder’s rights. Company
agrees to furnish any of the foregoing information to the Holder promptly upon
request. Company ratifies its authorization for the Holder to
have filed any like initial financing statements or amendments thereto if filed
prior to the date hereof. The Holder may add any supplemental language to any
such financing statement as the Holder may determine to be necessary or helpful
in acquiring or preserving rights against third parties.
Defaults and
Remedies.
(a) Events of Default. An "Event of Default" is: (i)
default for thirty (30) days in payment of interest or Default Interest on this
Note; (ii) default in payment of the principal amount of this Note when due;
(iii) failure by the Company for thirty (30) days after notice to it to comply
with any other material provision of this Note; (iv) if the Company pursuant to
or within the meaning of any Bankruptcy Law; (A) commences a voluntary case; (B)
consents to the entry of an order for relief against it in an involuntary case;
(C) consents to the appointment of a Custodian of it or for all or substantially
all of its property; (D) makes a general assignment for the benefit of its
creditors; or (E) admits in writing that it is generally unable to pay its debts
as the same become due; or (vi) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that: (I) is for relief against the
Company in an involuntary case; (2) appoints a Custodian of the Company or for
all or substantially all of its property; or (3) orders the liquidation of the
Company or any subsidiary, and the order or decree remains unstayed and in
effect for thirty (30) days. The Term "Bankruptcy Law" means Title
11, U.S. Code, or any similar Federal or State Law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
(b) Remedies. If an Event
of Default occurs and is continuing, the Holder of this Note may declare all of
this Note, including any interest and Default Interest and other amounts due, to
be due and payable immediately.
Lost or Stolen
Note.Upon receipt by the Company of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Note, and, in the case of
loss, theft or destruction, of an indemnification undertaking by the Holder to
the Company in a form reasonably acceptable to the Company and, in the case of
mutilation, upon surrender and cancellation of the Note, the Company shall
execute and deliver a new Note of like tenor and date and in substantially the
same form as this Note; provided, however, the Company shall not be obligated to
re-issue a Note if the Holder contemporaneously requests the Company to convert
such remaining principal amount into Common Stock.
Payment of Collection,
Enforcement and Other Costs. If: (i) this Note is placed in the hands of
an attorney for collection or enforcement or is collected or enforced through
any legal proceeding; or (ii) an attorney is retained to represent the Holder of
this Note in any bankruptcy, reorganization, receivership or other proceedings
affecting creditors' rights and involving a claim under this Note, then the
Company shall pay to the Holder all reasonable attorneys' fees, costs and
expenses incurred in connection therewith, in addition to all other amounts due
hereunder.
Cancellation. After
all principal and accrued interest at any time owed on this Note has been paid
in full, this Note shall automatically be deemed canceled, shall be surrendered
to the Company for cancellation and shall not be reissued.
Waiver of Notice. To
the extent permitted by law, the Company hereby waives demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note and the Securities Purchase
Agreement.
Governing Law. This
Note shall be construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this
Note shall be governed by, the laws of the State of New York, without giving
effect to provisions thereof regarding conflict of laws. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in New York, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
sending by certified mail or overnight courier a copy thereof to such party at
the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
Remedies, Characterizations,
Other Obligations, Breaches and Injunctive Relief. The remedies provided
in this Note shall be cumulative and in addition to all other remedies available
under this Note, at law or in equity (including a decree of specific performance
and/or other injunctive relief), and no remedy contained herein shall be deemed
a waiver of compliance with the provisions giving rise to such remedy and
nothing herein shall limit a Holder's right to pursue actual damages for any
failure by the Company to comply with the terms of this Note. The Company
covenants to each Holder of Note that there shall be no characterization
concerning this instrument other than as expressly provided herein. Amounts set
forth or provided for herein with respect to payments, conversion and the like
(and the computation thereof) shall be the amounts to be received by the Holder
thereof and shall not, except as expressly provided herein, be subject to any
other obligation of the Company (or the performance thereof).
IN WITNESS WHEREOF, the
Company has caused this Note to be signed on and as of the Issuance
Date.
American
Scientific Resources, Inc.
|
By:
|
 |
|
Xxxxxxxxxxx
X. Xxxxxxx, MD, MBA
|
|
|
CEO/Chairman
of the Board
|
|
EXHIBIT
|
2(d)(I)
|
DEMAND
NOTICE
Reference
is made to the Note issued by American Scientific Resources, Inc. (the
"Note").
Representations, Warranties, and
Agreements of Xxxxxx.Xx connection with this notice hereby makes the
following representations, warranties, and agreements and confirms the following
understandings, each of which are made or confirmed, as the case may be, with
respect to:
(a) Prohibitions on Cancellation,
Termination, Revocation, Transferability, and Assignment. Holder hereby
acknowledges and agrees that, except as may be specifically provided herein or
by applicable law, Holder is not entitled to cancel, terminate, or revoke this
Agreement, and this Agreement shall survive Holder's death or disability or any
assignment of Shares. Xxxxxx further agrees that Xxxxxx may not transfer or
assign Xxxxxx's rights under this Agreement, and Xxxxxx understands that, if
Xxxxxx's subscription is accepted, the transferability of Shares will be
restricted.
(b) Obligation. This Agreement
constitutes a valid and legally binding obligation of Holder and neither the
execution of this Agreement nor the consummation of the transactions
contemplated herein will constitute a violation of or default under, or conflict
with, any judgment, decree, statutes or regulation of any governmental authority
applicable to Holder, or any contract, commitment, agreement, or restriction of
any kind to which Holder is a party or by which Xxxxxx's assets are bound. The
execution and delivery of this Agreement does not, and the consummation of the
transactions described herein will not, violate applicable laws, or any
mortgage, lien, agreement, indenture, lease or understanding (whether oral or
written) of any kind outstanding relative to Xxxxxx.
(c) Required Approvals. No
approval, authorization, consent, order, or other action of, or filing with, any
person, firm or corporation or any court, administrative agency or other
governmental authority is required in connection with the execution and delivery
of this Agreement by Holder or the purchase of the Shares.
(d) No General Solicitation.
Holder is not subscribing for Shares because of or following any advertisement,
article, notice, or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or presented at any seminar
or meeting, or any solicitation or a subscription by a person other than an
authorized representative of the Company.
In
accordance with and pursuant to the Note, the undersigned hereby elects to
demand a portion or all of the principal balance of the Note, indicated below as
of the date specified below.
Date of
Demand:
Principal
Xxxxxx to be
demanded: $
Please
confirm the following information:
Telephone
Number: Facsimile Number:
Authorization:
By:
Title:
Dated:
