ASTRIS ENERGI INC. Secured Convertible Promissory Note
Exhibit
99.2
Dated:
April 30, 2007
NEITHER
THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
Up
to
$600,000
This
Secured Convertible Promissory Note (this “Note”)
is
issued by ASTRIS
ENERGI INC., a
corporation organized under the laws of the province of Ontario, Canada (the
“Obligor”),
to
GREEN
SHELTERS INNOVATIONS LTD. (the
“Holder”),
in
connection with, and subject to, that certain Letter Agreement, dated as of
the
date hereof, by and between ▇▇▇▇▇▇ and Obligor.
FOR
VALUE RECEIVED,
the
Obligor hereby promises to pay to the Holder an initial principal sum of One
Hundred Fifty Thousand Dollars ($150,000), which initial principal sum shall
be
increased (but in no event to a sum greater than Six Hundred Thousand Dollars
($600,000)) or decreased from time to time, in either case to reflect the actual
outstanding amount of due under this Note, together with all accrued but unpaid
interest earned thereon, if any, at the Maturity Date (defined below).
The
advances to be evidenced by this Note shall be itemized on the grid attached
hereto as Schedule “A”. The endorsement of the grid by the Holder shall, absent
manifest error, be conclusive evidence of the date and amount of each advance
and of each repayment on account of the principal amount outstanding hereunder,
provided, however that the failure of the Holder to record an advance on the
grid will in no way relieve the Obligor of its obligation to repay such
advance.
Section
1. Interest
Interest
shall accrue on the outstanding principal balance hereof at an annual rate
equal
to ten percent (10%). Interest shall be calculated on the basis of a 365-day
year and the actual number of days elapsed, to the extent permitted by
applicable law. Interest hereunder will be due at the Maturity Date and shall
be
paid to the Holder or its assignee in cash or in shares of common stock of
the
Obligor, no par value (the “Common
Stock”)
at the
Conversion Price (defined below) in effect at the time payment is made in
accordance with the provisions hereof.
Section
2. Conversion
At
option
of the Obligor, at the Maturity Date, the then outstanding principal amount
of
this Note plus all accrued but unpaid interest thereon may be converted into
Common Stock of the Obligor at a conversion price equal to the lesser of (a)
$0.05 per share; or (b) ninety percent (90%) of the lowest daily volume weighted
average price of the Common Stock during the ten (10) trading days immediately
preceding the Maturity Date as quoted by Bloomberg, LP (the “Conversion
Price”).
Section
3. Security
As
security for the due payment of this Note, interest thereon and all other
indebtedness and liability from time to time payable hereunder and for the
fulfillment of the obligations of the Obligor hereunder, the Obligor
hereby:
(a) Mortgages
and charges (subject to the exceptions as to leaseholds hereinafter contained)
as and by way of a fixed and specific mortgage and charge to and in favour
of
the Holder, and grants to the Holder a security interest in, all personal and
immoveable property (including, by way of sub-lease) any leased premises now
or
hereafter owned or acquired by the Obligor and all buildings erections,
improvements, fixtures and plants now or hereafter owned or acquired by the
Obligor (whether the same form part of the realty or not) and all appurtenances
to any of the foregoing; for the purposes of this subsection 3(a), all
references to "real and immoveable property" shall be read to include any estate
or interest in or right with respect to real and immoveable
property;
(b) Mortgages
and charges to the Holder and grants to the Holder a security interest in,
all
its present and future equipment, and all fixtures, plant, machinery, tools
and
furniture now or hereafter owned or acquired by it;
(c) Mortgages
and charges to and in favour of the Holder, and grants to the Holder a security
interest in, all its present and future inventory, including, without limiting
the generality of the foregoing, all raw materials, goods in process, finished
goods and packaging material and goods acquired or held for sale or furnished
or
to be furnished under contracts of rental or service;
(d) Grants
to
the Holder a security interest in, all its present and future intangibles,
including, without limiting the generality of the foregoing, all its present
and
future book debts, accounts and other amounts receivable, contract rights and
choses in action of every kind or nature including insurance rights arising
from
or out of any insurance now or hereafter placed on or in respect of the assets
referred to in subsections 3(a), (b) or (c), goodwill, chattel paper,
instruments of title, investments, money, securities and all intellectual
property rights;
(e) Charges
in favour of the Holder as and by way of a floating charge, and grants to the
Holder as a security interest in, its business and undertaking and all its
property and assets, real and personal, moveable or immoveable, of whatsoever
nature and kind, both present and future (other than property and assets hereby
validly assigned or subjected to a specific mortgage, charge or security
interest by this subsections 3(a), (b), (c) or (d) and subject to the exceptions
hereinafter contained); and
(f) Assigns,
mortgages and charges to and in favour of the Holder, and grants to the Holder
a
security interest in, the proceeds arising from any of the assets referred
to in
this Section 3;
All
of
which present and future property and assets of the Company referred to in
the
foregoing subparagraphs of this Section 3 are hereinafter collectively called
the "Charged
Assets".
The
security interest granted hereby in the Charged Assets shall continue until
the
earlier of the (i) payment in full of this Note, including any amount of
interest and fees due hereunder or (ii) the conversion of this Note in
accordance with its terms. So long as no Event of Default has occurred and
is
continuing, Obligor shall remain in full possession, enjoyment and control
of
the Charged Assets, subject to the terms of this Note.
Section
4. Representations
and Warranties.
(a) Organization.
The
Obligor (i) is a corporation duly organized, validly existing and in good
standing under the laws of the Province of Ontario, Canada, and (ii) has all
requisite corporate power and authority to own, lease and operate its
properties, and to carry on its business as presently conducted and as proposed
to be conducted.
(b) Authorization;
Binding Effect.
The
execution, delivery, and performance by the Obligor of this Note have been
duly
authorized by all requisite corporate action by the Obligor. This Note to which
the Obligor is party have been duly executed and delivered by the Obligor as
of
the date hereof and constitute the legal, valid and binding obligations of
the
Obligor, enforceable against the Obligor in accordance with their respective
terms, subject to bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights in general, and general principles of equity.
The Obligor need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any governmental authority in order to
consummate the transactions contemplated by this Note.
(c) Noncontravention.
Neither
the execution and the delivery of this Note, nor the consummation of the
transactions contemplated hereby, will (i) violate any injunction, judgment,
order, decree, ruling, charge or any provision of the Obligor’s charter
documents and/or governing documents, as amended, or, to the Obligor’s
knowledge, any restriction of any governmental authority, or court to which
the
Obligor is subject, or (ii) conflict with, result in a material breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, any material agreement,
contract, lease, license, instrument, or other arrangement to which the Obligor
is a party or by which it is bound or to which any of its assets is
subject.
(d) Title
to Assets; Condition of Assets.
(i) Except
as
disclosed on Schedule
4,
the
Obligor has good and indefeasible title to its assets, including without
limitation those reflected in the financial statements that Obligor has filed
with the U.S. Securities and Exchange Commission (other than those since
disposed of in the ordinary course of business), free and clear of all security
interests, liens, charges and other encumbrances, except for (A) liens for
taxes
not yet due and payable or being contested in good faith in appropriate
proceedings and (B) encumbrances that are incidental to the conduct of the
Obligor’s business or ownership of property, not incurred in connection with the
borrowing of money or the obtaining of credit, and which do not in the aggregate
materially detract from the value of the assets affected or materially impair
their use by the Obligor. With respect to the assets of the Obligor that are
leased, the Obligor is in compliance with all material provisions of such
leases. All facilities, machinery, equipment, fixtures, vehicles and other
properties owned, leased or used by the Obligor are in good operating condition
and repair, normal wear and tear excepted, are reasonably fit and usable for
the
purposes for which they are being used, will not likely require a major overhaul
or repair in the foreseeable future (as a result of structural defects or
otherwise), are adequate and sufficient for the Obligor’s business and conform
with all applicable ordinances, regulations and laws.
(ii) The
Obligor enjoys peaceful and undisturbed possession under all real property
leases under which the Obligor is operating, and, to the best knowledge of
the
Obligor, all such leases are valid and subsisting and none of them is in
default. A listing of such real property leases and a summary of their material
terms (including total lease payments) is set forth on Schedule
4.
(iii) Except
as
disclosed on Schedule
4,
the
Obligor does not own any real property and, to the best knowledge of the
Obligor, there are no condemnation, environmental, zoning or other land use
regulation proceedings, either instituted or planned to be instituted, which
would materially and adversely affect the use or operation of the Obligor’s
properties and assets for their respective intended uses and purposes, or the
value of such properties, and the Obligor has not received notice of any special
assessment proceedings which could affect such properties and
assets.
Section
5. Covenants.
(a) Affirmative
Covenants.
Until
all
obligations of the Obligor to the Holder herein have been fully satisfied,
the
Obligor shall:
(i) Duly
and
punctually pay to the Holder all amounts payable by it hereunder as and when
the
same shall become due;
(ii) Preserve
and maintain its corporate existence and rights;
(iii) Comply,
and cause its operations upon all lands to comply, in all material respects,
with all applicable laws, regulations and orders;
(iv) Provide
the Holder with full, complete and timely disclosure of all material matters
pertaining to its business, financial condition and the Charged Assets and
at
any reasonable time or times during normal business hours and subject to
twenty-four (24) hours prior notice, permit the Holder and its representatives
access to the premises of the Obligor;
(v) Keep
proper books of record and account in which full and correct entries shall
me
made of all financial transactions, assets and business of the Obligor in
accordance with GAAP;
(vi) Use
proceeds of this Note for working capital and general corporate purposes only;
provided, however, no proceeds shall be used to pay any other forms of
indebtedness for borrowed funds of Obligor or any deferred compensation, salary
increase or bonuses to any of the Obligor’s directors, officers, employees,
consultants or agents.
(vii) Furnish
to the Holder, as soon as available:
1. All
financial statements of the Obligor;
2. Promptly
after becoming aware thereof, notice of all existing or threatened actions,
suits and proceedings before any regulatory authority which may materially
adversely affect the Obligor;
3. Promptly
upon becoming aware thereof, notice of any material fact or material change
which has had, is having, or is expected to have, a material adverse effect
on
the business or condition, financial or otherwise, of the Obligor;
4. Such
other information respecting the business and affairs, financial or otherwise
of
the Obligor, or the Charged Assets, as the Holder may from time to time
reasonably request; and
5. The
Obligor shall provide the Holder on a timely basis, notice of all the meetings
of the board of directors of the Obligor and copies of any financial statements,
agendas, minutes or other information provided to participants in advance of
such meetings.
(b) Negative
Covenants.
So
long
as the Obligor shall have any obligation to the Holder hereunder or the Obligor
is indebted or liable to the Holder in respect of amounts secured by this Note
or is otherwise obligated to the Holder:
(i) The
Obligor shall not create or, except as set forth on Schedule 5(b), suffer to
exist any encumbrance or security interest on the Charged Assets or otherwise
to
secure or provide for the payment of any debt or any other obligation without
the prior written consent of the Holder; and
(ii) Each
of
the following matters shall require the prior written approval of the
Holder:
1. Any
change or amendment to the articles or by-laws of the Obligor;
2. The
amalgamation, continuance, merger, consolidation or reorganization of the
Obligor;
3. The
entering into of any transaction outside the ordinary course of
business;
4. The
issuance of any shares of the Obligor except pursuant to options or warrants
issued prior to the date hereof or any securities convertible into shares of
the
Obligor issued prior to the date hereof;
5. The
engagement in any commercial transaction with any person not dealing at arm’s
length with the Obligor;
6. Obligor
making any loans or any investments in any other person;
7. The
incurrence of any new debt by the Obligor or the Obligor guaranteeing any other
person’s debt;
8. Any
expenditure by Obligor exceeding $5,000;
9. The
sale,
lease, exchange or disposition of any of the Charged Assets outside
of the ordinary course of business;
10. The
entrance into any arrangement for the sharing of profits, joint venture or
any
arrangement involving the sale, assignment or dilution of any rights, patents,
trade secrets, licences, registered trademarks or any intellectual or industrial
property of the Obligor which would have a material effect on the use and
enjoyment by the Obligor of its rights, patents, trade secrets, licences,
registered trademarks or any intellectual or industrial property;
11. The
commencement of any process to wind up, dissolve or terminate the corporate
existence of the Obligor;
or
12. Obligor
agreeing or otherwise committing to do any of the foregoing.
Section
6. Default.
(a) Events
of Default.
The
Obligor shall be in default under this Note if any one or more of the following
events (each, an "Event
of Default")
occurs
whereupon the principal amount of this Note plus all accrued and unpaid interest
and fees hereunder shall, to the extent permitted by applicable law, become
immediately due and payable without any declaration or other act on the part
of
the Holder:
(i) The
Obligor defaults in the payment when due of any amount payable by it hereunder
and such default continues for a period of three (3) business days without
being
remedied by the Obligor;
(ii) The
Obligor is in breach or default under any provision of this Note and such
default has not been cured (if capable of being cured) within ten (10) business
days after notice of such default has been given to the Obligor by the
Holder;
(iii) The
Obligor is in default or breach of its obligations pursuant to that certain
Letter of Intent, by and between Obligor and Holder, dated as of April 13,
2007;
(iv) The
Obligor ceases to carry on business or becomes insolvent or bankrupt or ceases
paying its debts generally as they mature, other than any such debts as are
contested in good faith and by appropriate proceedings and for which adequate
provision has been made, or the Obligor commits any act of bankruptcy or makes
an assignment for the benefit of creditors or otherwise acknowledges its
insolvency, or a trustee, receiver, receiver and manager or liquidator is
appointed for the Obligor or any material part of the Charged Assets or any
bankruptcy, reorganization, proposal (including, without limitation, the serving
of a notice of intention to make a proposal under the Bankruptcy
and Insolvency Act
(Canada)), arrangement, moratorium, compromise or similar proceedings shall
be
instituted by or against the Obligor under the laws of any jurisdiction;
or
(v) The
Common Stock of the Obligor shall cease to be quoted for trading or listed
for
trading on either the Nasdaq OTC Bulletin Board (“OTC”),
Nasdaq Capital Market, New York Stock Exchange, American Stock Exchange or
the
Nasdaq National Market (each, a “Subsequent
Market”)
and
shall not again be quoted or listed for trading thereon within five (5) trading
days of such delisting.
(b) Remedies.
Upon
the
occurrence and continuation of an Event of Default which has not been remedied,
the Holder shall not be required to advance any amount pursuant to this Note.
Upon the occurrence and continuation of an Event of Default which has not been
remedied, the Holder may, in addition to exercising any of its remedies under
or
pursuant to this Note, which are independent of the rights and remedies of
the
Holder hereunder, proceed to realize upon the Security granted hereby and to
enforce its rights by:
(i) Entry
or
taking into possession of all or any part of the Charged Assets;
(ii) The
appointment by instrument in writing of a receiver or receivers of the Charged
Assets or any part thereof (which receiver or receivers may be any person or
persons, whether an officer or officers or employee or employees of the Holder
or not, and the Holder may remove any receiver or receivers so appointed and
appoint another or others in his or her stead);
(iii) Proceedings
in any court of competent jurisdiction for the appointment of a receiver or
receivers or for the sale of the Charged Assets or any part
thereof;
(iv) Any
other
action, suit, remedy or proceeding authorized or permitted hereby or by law
or
by equity;
(v) Collecting
any proceeds arising in respect of the Charged Assets;
(vi) Collecting,
realizing upon or selling or otherwise dealing with any accounts of the Obligor;
or
(vii) Preparing
for the disposition of the Charged Assets, whether on the premises of the
Obligor or otherwise.
In
addition, the Holder may file such proofs of claim and other documents as may
be
necessary or advisable in order to have its claim lodged in any bankruptcy,
winding-up or other judicial proceedings relative to the Obligor.
(c) Powers
of Receivers.
Any
receiver or receivers so appointed shall have power to:
(i) Take
possession of and to use the Charged Assets or any part thereof;
(ii) Carry
on
the business of the Obligor (including, but not limited to, the taking or
defending of any actions or legal proceedings, and the doing or refraining
from
doing of all other things which may seem necessary or desirable to the receiver
in connection with the business, operations and affairs of the
Obligor);
(iii) Borrow
money required for the maintenance, preservation or protection of the Charged
Assets or any part thereof or the carrying on of the business of the
Obligor;
(iv) Further
charge the Charged Assets in priority to the charge of this Note as security
for
money so borrowed; and
(v) Sell,
lease or otherwise dispose of the whole or any part of the Charged Assets on
such terms and conditions and in such manner as the receiver shall determine.
The
Holder shall not be responsible for any actions or errors of omission by the
receiver or receivers in exercising any such powers.
Section
7. Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms hereof must be in writing and will be deemed to have
been
delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
when
sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
(1) trading day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.
The
addresses and facsimile numbers for such communications shall be:
|
If
to the Obligor, to:
|
Astris
Energi, Inc.
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
|
|
|
Mississauga,
ON L5L 1X2
|
|
|
Attention: ▇▇▇▇
▇▇▇
|
|
|
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
|
|
With
a copy to:
|
Lang
▇▇▇▇▇▇▇▇ LLP
|
|
BCE
Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
Toronto,
ON M5J 2T7
|
|
|
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
If
to the Holder:
|
48,
Themistokli Dervi
|
|
Centennai
Building, Office
|
|
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701,
1066 Nicosia
|
|
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Cyprus
|
|
|
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
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Telephone:
|
|
|
Facsimile:
|
|
With
a copy to:
|
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ LLP
|
|
One
Financial Place, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
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Toronto,
ON M5C 2V9
|
|
|
Attention:
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
|
|
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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And
with a copy to:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
|
|
▇▇▇▇
▇ ▇▇▇▇▇▇, ▇▇
|
|
|
Washington,
DC 20006-1806
|
|
|
Attention:
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
|
|
|
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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|
|
Facsimile:
202-373-6001
|
or
at
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party three (3) business days prior to the effectiveness of such change.
Written confirmation of receipt (i) given by the recipient of such notice,
consent, waiver or other communication, (ii) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (iii)
provided by a nationally recognized overnight delivery service, shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from
a
nationally recognized overnight delivery service in accordance with clause
(i),
(ii) or (iii) above, respectively.
Section
8. Maturity
Date.
Except
as expressly provided herein, no provision of this Note shall alter or impair
the obligations of the Obligor, which are absolute and unconditional, to pay
the
principal of, interest and other charges (if any) on, this Note at the time,
place, and rate, and in the coin or currency, herein prescribed. This Note
is a
direct obligation of the Obligor. Subject to the earlier acceleration of this
Note, the outstanding principal balance of this Note, together with all accrued
by unpaid interest thereon (and any fees that may be due hereunder), shall
be
due and payable upon the earlier to occur of the following: (a) termination
of
the LOI, for any reason other than pursuant to section 12(c) of the LOI, (ii)
July 31, 2007, if the acquisition contemplated by the LOI is not consummated
on
or prior to such date, (iii) a breach by Obligor of any of its obligations
under
the LOI or an Event of Default under this Note, (iv) failure to obtain approval
of the shareholders of the Obligor of the acquisition contemplated by the LOI
at
a duly called meeting, and (v) the consummation of, or the execution of a
binding agreement relating to, any acquisition by any person other than the
Holder or an affiliate thereof, of the Obligor, any merger or consolidation
with
or involving the Obligor, or any acquisition of all or any portion of the stock
of the Obligor (including without limitation, by tender offer) or all or any
portion of the assets of the Obligor by the Obligor or the shareholders of
the
Obligor (the date of the first to occur, the “Maturity
Date”).
All
payments hereunder shall be applied first to accrued but unpaid interest and
then to reduce the principal balance of this Note. The Obligor shall not have
the right at any time to prepay all or any part of the principal balance of
this
Note, or to convert the balance of this Note, without the prior written consent
of the Holder.
Section
9. Loss,
Mutilation of Note.
If this
Note is mutilated, lost, stolen or destroyed, the Obligor shall execute and
deliver, in exchange and substitution for and upon cancellation of the mutilated
Note, or in lieu of or in substitution for a lost, stolen or destroyed Note,
a
new Note for the principal amount of this Note so mutilated, lost, stolen or
destroyed but only upon receipt of evidence of such loss, theft or destruction
of such Note, and of the ownership hereof, and an indemnity, if requested,
all
on terms reasonably satisfactory to the Obligor.
Section
10. Governing
Law.
This
Note shall be governed by and construed in accordance with the laws of the
State
of New York, without giving effect to conflicts of laws thereof. Each of the
parties consents to the jurisdiction of the courts of the State of New York,
and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens
to the
bringing of any such proceeding in such jurisdictions.
Section
11. Costs.
If the
Obligor fails to strictly comply with the terms of this Note, then the Obligor
shall reimburse the Holder promptly for all fees, costs and expenses, including,
without limitation, attorneys’ fees and expenses incurred by the Holder in any
action in connection with this Note, including, without limitation, those
incurred: (i) during any workout, attempted workout, and/or in connection with
the rendering of legal advice as to the Holder’s rights, remedies and
obligations, (ii) collecting any sums which become due to the Holder, (iii)
defending or prosecuting any proceeding or any counterclaim to any proceeding
or
appeal; or (iv) the protection, preservation or enforcement of any rights or
remedies of the Holder.
Section
12. Waiver.
Any
waiver by the Holder of a breach of any provision of this Note shall not operate
as or be construed to be a waiver of any other breach of such provision or
of
any breach of any other provision of this Note. The failure of the Holder to
insist upon strict adherence to any term of this Note on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this Note.
Any
waiver must be in writing.
Section
13. Interpretation.
If any
provision of this Note is invalid, illegal or unenforceable, the balance of
this
Note shall remain in effect, and if any provision is inapplicable to any person
or circumstance, it shall nevertheless remain applicable to all other persons
and circumstances. If it shall be found that any interest or other amount deemed
interest due hereunder shall violate applicable laws governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum permitted rate of interest. The Obligor covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law or other law which would prohibit or forgive
the Obligor from paying all or any portion of the principal of or interest
on
this Note as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
indenture, and the Obligor (to the extent it may lawfully do so) hereby
expressly waives all benefits or advantage of any such law, and covenants that
it will not, by resort to any such law, hinder, delay or impeded the execution
of any power herein granted to the Holder, but will suffer and permit the
execution of every such as though no such law has been enacted.
Section
14. Due
Dates.
Whenever
any payment or other obligation hereunder shall be due on a day other than
a
business day, such payment shall be made on the next succeeding business
day.
Section
15. WAIVER
OF JURY TRIAL.
THE
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY
OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON
OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR
THE PARTIES’ ACCEPTANCE OF THIS AGREEMENT.
IN
WITNESS WHEREOF,
the
Obligor has caused this Secured Convertible Promissory Note to be duly executed
by a duly authorized officer as of the date set forth above.
|
ASTRIS
ENERGI, INC.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||
|
Title: Chief
Financial Officer
|
||
SCHEDULE
“A”
ADVANCES
AND PAYMENT
|
DATE
|
AMOUNT
ADVANCED
|
AMOUNT
PAID
|
TOTAL
PRINCIPAL
|
NOTATION
MADE
BY
|
|||||||||
|
April
30, 2007
|
$
|
200,000
|
$ | 200,000 |
AD
|
||||||||