EXHIBIT
10.1
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS
OF ANY STATE, AND MAY NOT BE OFFERED OR SOLD UNLESS A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER OR
SALE.
NANOSENSORS,
INC.
SENIOR PROMISSORY
NOTE
Issue
Date as of: September 16, 2008
FOR VALUE RECEIVED, NANOSENSORS,
INC., a Nevada
corporation (the “ Company ”), hereby
unconditionally promises to pay to the order of THE GAMING
NETWORK, A. G., a Panamanian corporation having its
offices c/o Shirley y Asociados, Edificio ADR, Piso 13, Avenida
Samuel Lewis, Obarrio, Panama City, Republic of Panama, or its
permitted successors or assigns (the “ Holder
”), the principal sum (“ Principal ”) of
THREE HUNDRED THOUSAND DOLLARS
($300,000.00) , or, if less, TWO HUNDRED
FIFTY THOUSAND DOLLARS ($250,000.00) plus the sum of all
Advances (not to exceed $50,000.00), in the
lawful money of the United States of America in immediately
available funds, on the date and in the amount set forth in this
Senior Promissory Note (this “ Note ”),
provided, however, that the aggregate unpaid Principal balance (the
“ Principal Balance ”) of this Note shall in all
events be due and payable, on April 30, 2009, or, if earlier, upon
(i) the thirtieth day after the occurrence of an Acceleration Event
or (ii) the occurrence of an Event of Default (the “
Maturity Date ”). All Advances and all payments made
on account of the principal thereof shall be endorsed by the Holder
on the grid attached hereto, which is part of this Promissory
Note.
The Company also promises to pay interest
(computed on the basis of a 365-day year for actual days elapsed)
at said office in like money on the unpaid principal amount of this
Note from time to time outstanding at a rate of five percent (5%)
per annum simple interest (“ Interest ”).
Interest on this Note shall be payable on the Maturity Date, except
as provided in Section 4(c).
The Company further agrees that upon and
following an Event of Default (as defined herein) and/or after any
stated or any accelerated maturity of the indebtedness evidenced
hereby, the aggregate Principal Balance of this Note shall bear
Interest (computed daily) at a rate equal to five percent (5%) per
annum in excess of the rate then applicable to this Note, payable
on demand (“ Default Interest Rate ”). In no
event shall Interest payable hereunder be in excess of the maximum
rate of interest permitted under applicable law. If any payment to
be so made hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day, and to the extent permitted by applicable law,
interest thereon shall be payable at the then applicable rate
during such extension.
All payments hereunder shall be made to the
Holder unconditionally in full without set-off, counterclaim or, to
the extent permitted by applicable law, other defense, and free and
clear of, and without reduction for or on account of, any present
and future taxes or withholdings, and all liabilities with respect
thereto.
All payments shall be made by wire transfer to
an account or accounts designated by Holder which shall provide
federal wire transfer instructions to the Company.
The following
additional terms shall apply to this Note:
1.
DEFINITIONS
.
“ Advance ” means an advance
of money made by the Holder to the Company
“ Business Day ” means any
day other than a Saturday, a Sunday or a day on which the New York
Stock Exchange is closed or on which banks are authorized by law to
close in New York, New York.
“ Governmental Authority ”
means any nation or government, any state, provincial or political
subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, including without limitation any stock
exchange, securities market or self-regulatory
organization.
“ Letter of Intent ” means
Letter of Intent, dated May 9, 2008, between the Company and The
Gaming Network, A. G., a Panamanian corporation, as amended and
extended.
“ Liquidation Event ” means
the (i) institution of any insolvency or bankruptcy proceedings, or
any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Company, or to
its creditors, as such, or to its assets; or (ii) the
liquidation, dissolution or other winding up of the Company,
whether voluntary (including without limitation by a vote or action
of the Board of Directors of the Company) or involuntary and
whether or not involving insolvency or bankruptcy proceedings;
(iii) any assignment for the benefit of creditors or any
marshalling of the material assets or material liabilities of the
Company; (iv) the admission, in writing, by the Company of its
inability to pay its debts as such debts become due or the failure
of the Company generally to pay its debts as they come due; or (v)
the Company fails to pay the Principal or Interest or any other
amounts payable under this Promissory Note when the same becomes
due and payable.
“ Merger Agreement ” means
the Merger Agreement contemplated by and as defined in the Letter
of Intent.
“ Person ” means any
individual, corporation, trust, association, company, partnership,
joint venture, limited liability company, joint stock company,
Governmental Authority or other entity.
All definitions contained in this Promissory
Note are equally applicable to the singular and plural forms of the
terms defined. The words “hereof”, “herein”
and “hereunder” and words of similar import referring
to this Promissory Note refer to this Promissory Note as a whole
and not to any particular provision of this Promissory
Note.
2.
INTEREST.
(a) The Holder shall be entitled to receive
Interest in cash at the annual rate of 5.0% simple interest per
annum payable on the Maturity Date.
(b) All payments made by the Company on this
Promissory Note shall be applied first to the payment of accrued
and unpaid Interest on this Promissory Note and then to the
reduction of the unpaid Principal amount of this Promissory Note.
Payments of Principal and Interest shall be deemed made on the date
such payment is received in an account or accoun
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