UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
POSITRON
CORPORATION
(Name of Issuer)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
737397109
(CUSIP Number)
Cecil O’Brate
3118 N Cummings Road, P.O. Box 399
Garden City, Kansas 46038
(620) 275-9231
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
December 9, 2013
(Date of Event which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for
other parties to whom copies are to be sent.
| * |
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be
deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
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| 1. |
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Names of
Reporting Person Cecil O’Brate |
| 2. |
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Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ¨ (b) ¨ |
| 3. |
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SEC Use Only
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| 4. |
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Source of Funds (See Instructions)
PF |
| 5. |
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Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨ |
| 6. |
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Citizenship or Place of
Organization United States of America |
| Number of
Shares Beneficially
Owned by Each
Reporting Person
With |
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7. |
|
Sole Voting Power
3,276,297.22 (1) |
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8. |
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Shared Voting Power
0 |
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9. |
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Sole Dispositive Power
3,276,297.22 (1) |
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10. |
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Shared Dispositive Power
0 |
| 11. |
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Aggregate Amount Beneficially Owned by Each Reporting Person
3,276,297.22 (1) |
| 12. |
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ¨ |
| 13. |
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Percent of Class Represented by Amount
in Row (11) 23% (2) |
| 14. |
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Type of Reporting Person (See
Instructions) IN |
| (1) |
Reflects the number of shares held by the reporting person following a reverse split of the issuer’s common stock, par value $0.0001 per share, on a 1 for 400 basis, effective April 8, 2015. |
| (2) |
Based upon 14,275,797 shares of the issuer’s common stock, par value $0.0001 per share, outstanding as of May 15, 2015, as disclosed in the issuer’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2015, that was filed by the issuer with the Securities and Exchange Commission on May 15, 2015. |
Item 1. Security and the Issuer
This statement on Schedule 13D (this “Schedule 13D”) relates to shares (“Shares”) of common
stock, par value $0.0001 per share (the “Common Stock”) of Positron Corporation, a Texas corporation (the “Issuer”). The address of the principal executive office of the Issuer is 530 Oakmont Lane,
Westmont, Illinois 60559. Except as otherwise provided in this Schedule 13D, all Shares referenced in this Schedule 13D reflect the reverse split of the Issuer’s Common Stock on a 1 for 400 basis that was effective April 8, 2015 (the
“Reverse Split”).
Item 2. Identity and Background
(a) This Schedule 13D is filed by and on behalf of Cecil O’Brate (the “Reporting Person”).
The Reporting Person declares that neither the filing of this Schedule 13D nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended
(“Act”), the beneficial owner of any securities covered by this Schedule 13D.
(b) The address
of the Reporting Person is 3118 N Cummings Road, P.O. Box 399, Garden City, Kansas 46038.
(c) The principal occupation of the Reporting
Person is as President of American Warrior, Inc. The principal business of American Warrior, Inc. is oil and gas exploration. The principal business address of American Warrior, Inc. is 3118 N Cummings Road, Garden City, Kansas 67846.
(d) During the last five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, the Reporting Person has not been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which the Reporting Person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
Item 3. Source and Amount of Funds or other Consideration
The Reporting Person used personal funds to acquire Shares. The Reporting Person expended an aggregate of approximately $3,878,251.20 to
acquire 3,276,297.22 Shares in various transactions, as described below:
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On December 9, 2013, the Reporting Person acquired 1,000,000 Shares following a conversion of $1,000,000 of a loan made by the Reporting Person to the Issuer (the “Loan”). |
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• |
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On May 16, 2014, the Reporting Person acquired an additional 1,041,666.67 Shares following the conversion of the remaining $1,500,000 of the Loan. |
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• |
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On August 11, 2014, the Reporting Person purchased 833,333.33 Shares directly from the Issuer for a total purchase price of $1,000,000. |
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• |
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On February 2, 2015, the Reporting Person purchased 347,222.22 Shares directly from the Issuer for a total purchase price of $250,000. |
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• |
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In various open market transactions between October 30, 2013 and October 21, 2014, the Reporting Person purchased 54,075 Shares for a total purchase price of $128,251.20. |
Item 4. Purpose of Transaction
The
Reporting Person initially acquired Shares for investment purposes.
Pursuant to a Loan Purchase and Sale Agreement (the
“Purchase Agreement”), dated April 30, 2015, between DX, LLC, a Kansas limited liability company of which the Reporting Person is the sole member (“DX”) and Los Alamos National Bank, a national
banking association (“Los Alamos”), DX purchased a promissory note (the “Note”) given by Los Alamos to Manhattan Isotope Technology, LLC, a New Mexico Limited liability company and wholly-owned
subsidiary of the Issuer (“Manhattan”) for $400,000. The Note is guaranteed by the Issuer and secured by all of the assets of the Issuer.
As of April 29, 2015, the Note was in default and the principal balance of the Note was
$451,589.74 with accrued interest in the amount of $6,186.16 and accrued late fees in the amount of $24,173.81. Interest continues to accrue on the Note at the default rate of interest which is sixteen percent (16%) per annum from
March 11, 2015. On June 12, 2015, the Reporting Person sent a demand letter (the “Demand Letter”) to each of Manhattan and the Issuer demanding payment in full of the balance of the Note together with all interest
and late fees. The Reporting Person has not received any response from Manhattan or the Issuer and has not received any additional payments from Manhattan or the Issuer. The Reporting Person has attempted to engage in discussions with the
Issuer’s management, but has been unable to do so in any meaningful way. Accordingly, the Reporting Person is currently evaluating his options with respect to the Note, including initiating bankruptcy proceedings against each of Manhattan and
the Issuer or making a proposal to the Issuer to acquire or restructure the Issuer.
The foregoing is qualified in its entirety by
reference to the Purchase Agreement and Demand Letter, each of which is attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and incorporated by reference herein.
Furthermore, the Reporting Person intends from time to time to review its investment in the Issuer on the basis of various factors, including
the Issuer’s business, financial condition, results of operations and prospects, general economic and industry conditions, the securities markets in general and those for Shares in particular, as well as other developments and other investment
opportunities. Based upon such review, the Reporting Person will take such actions in the future as the Reporting Person may deem appropriate in light of the circumstances existing from time to time, which may include further acquisitions of Shares
or disposal of some or all of the Shares currently owned by the Reporting Person or otherwise acquired by the Reporting Person, either in the open market or in privately negotiated transactions.
In addition, the Reporting Person may engage in communications with one or more shareholders, officers or directors of the Issuer, including
discussions regarding the Issuer’s operations and strategic direction and ideas that, if effected, could result in, among other things: (a) the acquisition by the Reporting Person of additional securities of the Issuer, or the disposition
of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer
or any of its subsidiaries; (d) changes in the present board of directors or management of the Issuer; (e) a material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the
Issuer’s business or corporate structure; (g) changes in the Issuer’s articles of incorporation, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person;
(h) causing any class of the Issuer’s securities to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a
class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) any action similar to those enumerated above.
Except to the extent that the foregoing may be deemed to be a plan or proposal, the Reporting Person has no plans or proposals that relate to
or would result in any of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D. The Reporting Person reserves the right, based on all relevant factors and subject to applicable law, at any time and from time
to time, to review or reconsider its position, change its purpose, take other actions (including actions that could involve one or more of the types of transactions or have one or more of the results described in paragraphs (a) through
(j) of Item 4 of Schedule 13D) or formulate and implement plans or proposals with respect to any of the foregoing.
Item 5.
Interest in Securities of the Issuer
(a) The aggregate number and percentage of the class of securities identified pursuant to
Item 1 beneficially owned by the Reporting Person is stated in Items 11 and 13 on the cover page(s) hereto.
The Reporting Person
declares that neither the filing of this Schedule 13D nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act or any other purpose, the beneficial owner of any securities
covered by this Schedule 13D.
(b) Number of Shares as to which each Reporting Person has:
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(i) |
sole power to vote or to direct the vote: |
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See Item 7 on the cover page(s) hereto. |
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(ii) |
shared power to vote or to direct the vote: |
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See Item 8 on the cover page(s) hereto. |
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(iii) |
sole power to dispose or to direct the disposition of: |
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See Item 9 on the cover page(s) hereto. |
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(iv) |
shared power to dispose or to direct the disposition of: |
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See Item 10 on the cover page(s) hereto. |
As of the date hereof, the Reporting Person
does not own any Shares other than as set forth in this Item 5.
(c) Transactions in the class of securities reported on that were
effected by the Reporting Person are described below:
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| Transaction
Date |
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Shares
Acquired (1) |
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Shares
Disposed (1) |
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Price
Per Share |
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Description
of Transaction |
| 10/30/2013 |
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300,000.00 |
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0.0050 |
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Open Market Purchase |
| 11/1/2013 |
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300,000.00 |
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0.0050 |
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Open Market Purchase |
| 11/1/2013 |
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245,000.00 |
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0.0049 |
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Open Market Purchase |
| 11/7/2013 |
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150,500.00 |
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0.0050 |
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Open Market Purchase |
| 11/8/2013 |
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149,500.00 |
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0.0050 |
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Open Market Purchase |
| 11/8/2013 |
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55,000.00 |
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0.0049 |
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Open Market Purchase |
| 12/19/2013 |
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400,000,000.00 |
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0.0025 |
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Conversion of Loan to Shares |
| 1/3/2014 |
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1,293,500.00 |
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0.0048 |
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Open Market Purchase |
| 3/10/2014 |
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375,000.00 |
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0.0066 |
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Open Market Purchase |
| 3/10/2014 |
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125,000.00 |
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0.0061 |
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Open Market Purchase |
| 3/17/2014 |
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100,000.00 |
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0.0065 |
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Open Market Purchase |
| 3/19/2014 |
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25,000.00 |
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0.0073 |
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Open Market Purchase |
| 3/19/2014 |
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25,000.00 |
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0.0071 |
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Open Market Purchase |
| 3/19/2014 |
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25,000.00 |
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0.0072 |
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Open Market Purchase |
| 3/19/2014 |
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480,000.00 |
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0.0070 |
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Open Market Purchase |
| 3/20/2014 |
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50,000.00 |
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0.0072 |
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Open Market Purchase |
| 3/20/2014 |
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40,000.00 |
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0.0071 |
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Open Market Purchase |
| 3/21/2014 |
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100,000.00 |
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0.0070 |
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Open Market Purchase |
| 3/21/2014 |
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50,000.00 |
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0.0072 |
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Open Market Purchase |
| 3/21/2014 |
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50,000.00 |
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0.0071 |
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Open Market Purchase |
| 3/21/2014 |
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244,900.00 |
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0.0070 |
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Open Market Purchase |
| 3/21/2014 |
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77,000.00 |
|
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0.0065 |
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Open Market Purchase |
| 3/24/2014 |
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323,000.00 |
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0.0065 |
|
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Open Market Purchase |
| 3/24/2014 |
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255,100.00 |
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0.0070 |
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Open Market Purchase |
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| 3/24/2014 |
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10,000.00 |
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0.0070 |
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Open Market Purchase |
| 3/24/2014 |
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250,000.00 |
|
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0.0071 |
|
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Open Market Purchase |
| 3/25/2014 |
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40,000.00 |
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0.0070 |
|
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Open Market Purchase |
| 3/25/2014 |
|
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250,000.00 |
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0.0070 |
|
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Open Market Purchase |
| 3/25/2014 |
|
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486,000.00 |
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0.0065 |
|
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Open Market Purchase |
| 3/26/2014 |
|
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50,000.00 |
|
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0.0070 |
|
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Open Market Purchase |
| 3/26/2014 |
|
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320,000.00 |
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0.0070 |
|
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Open Market Purchase |
| 3/26/2014 |
|
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49,998.61 |
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0.0072 |
|
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Open Market Purchase |
| 3/27/2014 |
|
|
50,000.00 |
|
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0.0072 |
|
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Open Market Purchase |
| 3/27/2014 |
|
|
50,000.00 |
|
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|
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0.0071 |
|
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Open Market Purchase |
| 3/28/2014 |
|
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500,000.00 |
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0.0070 |
|
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Open Market Purchase |
| 3/28/2014 |
|
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14,000.00 |
|
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0.0065 |
|
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Open Market Purchase |
| 3/28/2014 |
|
|
150,000.00 |
|
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|
|
|
0.0067 |
|
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Open Market Purchase |
| 3/28/2014 |
|
|
193,000.00 |
|
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|
|
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0.0065 |
|
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Open Market Purchase |
| 3/28/2014 |
|
|
20,000.00 |
|
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|
|
|
0.0067 |
|
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Open Market Purchase |
| 3/31/2014 |
|
|
1,500,000.00 |
|
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|
|
|
0.0075 |
|
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Open Market Purchase |
| 3/31/2014 |
|
|
250,000.00 |
|
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0.0070 |
|
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Open Market Purchase |
| 3/31/2014 |
|
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149,954.17 |
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0.0072 |
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Open Market Purchase |
| 4/1/2014 |
|
|
45.71 |
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0.0070 |
|
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Open Market Purchase |
| 4/1/2014 |
|
|
150,000.00 |
|
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0.0070 |
|
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Open Market Purchase |
| 4/1/2014 |
|
|
230,000.00 |
|
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0.0070 |
|
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Open Market Purchase |
| 4/1/2014 |
|
|
500,000.00 |
|
|
|
|
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0.0065 |
|
|
Open Market Purchase |
| 4/1/2014 |
|
|
307,000.00 |
|
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0.0065 |
|
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Open Market Purchase |
| 4/1/2014 |
|
|
502,919.23 |
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0.0065 |
|
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Open Market Purchase |
| 4/4/2014 |
|
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81,300.00 |
|
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0.0065 |
|
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Open Market Purchase |
| 4/11/2014 |
|
|
193,761.54 |
|
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0.0065 |
|
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Open Market Purchase |
| 4/14/2014 |
|
|
10,000.00 |
|
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0.0065 |
|
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Open Market Purchase |
| 4/17/2014 |
|
|
212,018.92 |
|
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|
|
|
0.0065 |
|
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Open Market Purchase |
| 4/17/2014 |
|
|
250,000.00 |
|
|
|
|
|
0.0070 |
|
|
Open Market Purchase |
| 4/17/2014 |
|
|
250,000.00 |
|
|
|
|
|
0.0070 |
|
|
Open Market Purchase |
| 4/17/2014 |
|
|
14,000.00 |
|
|
|
|
|
0.0065 |
|
|
Open Market Purchase |
| 5/12/2014 |
|
|
1,000,000.00 |
|
|
|
|
|
0.0060 |
|
|
Open Market Purchase |
| 5/15/2014 |
|
|
25,000.00 |
|
|
|
|
|
0.0065 |
|
|
Open Market Purchase |
| 5/15/2014 |
|
|
260,000.00 |
|
|
|
|
|
0.0069 |
|
|
Open Market Purchase |
| 5/15/2014 |
|
|
215,000.00 |
|
|
|
|
|
0.0070 |
|
|
Open Market Purchase |
| 5/16/2014 |
|
|
416,666,666.66 |
|
|
|
|
|
0.0036 |
|
|
Conversion of Loan to Shares |
| 5/19/2014 |
|
|
10,000.00 |
|
|
|
|
|
0.0068 |
|
|
Open Market Purchase |
| 5/19/2014 |
|
|
90,000.00 |
|
|
|
|
|
0.0069 |
|
|
Open Market Purchase |
| 5/19/2014 |
|
|
500,000.00 |
|
|
|
|
|
0.0065 |
|
|
Open Market Purchase |
| 5/22/2014 |
|
|
400,000.00 |
|
|
|
|
|
0.0060 |
|
|
Open Market Purchase |
| 5/29/2014 |
|
|
600,000.00 |
|
|
|
|
|
0.0060 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
28,315.63 |
|
|
|
|
|
0.0064 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
10,000.00 |
|
|
|
|
|
0.0065 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
461,683.82 |
|
|
|
|
|
0.0068 |
|
|
Open Market Purchase |
|
|
|
|
|
|
|
|
|
|
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|
|
| 5/30/2014 |
|
|
50,000.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
150,000.00 |
|
|
|
|
|
0.0059 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
92,500.00 |
|
|
|
|
|
0.0060 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
35,000.00 |
|
|
|
|
|
0.0064 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
172,500.00 |
|
|
|
|
|
0.0065 |
|
|
Open Market Purchase |
| 5/30/2014 |
|
|
1,138,500.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 6/13/2014 |
|
|
120,000.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 6/17/2014 |
|
|
100,000.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 6/23/2014 |
|
|
400,000.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 6/24/2014 |
|
|
54,036.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 6/25/2014 |
|
|
83,000.00 |
|
|
|
|
|
0.0049 |
|
|
Open Market Purchase |
| 6/25/2014 |
|
|
104,464.00 |
|
|
|
|
|
0.0050 |
|
|
Open Market Purchase |
| 7/1/2014 |
|
|
500,000.00 |
|
|
|
|
|
0.0048 |
|
|
Open Market Purchase |
| 7/1/2014 |
|
|
90,000.00 |
|
|
|
|
|
0.0047 |
|
|
Open Market Purchase |
| 8/5/2014 |
|
|
2,000,000.00 |
|
|
|
|
|
0.0052 |
|
|
Open Market Purchase |
| 8/6/2014 |
|
|
|
|
|
25,000.00 |
|
|
0.0048 |
|
|
Open Market Sale |
| 8/6/2014 |
|
|
|
|
|
75,000.00 |
|
|
0.0048 |
|
|
Open Market Sale |
| 8/11/2014 |
|
|
333,333,333.00 |
|
|
|
|
|
0.0033 |
|
|
Private Purchase from Issuer |
| 8/25/2014 |
|
|
83,300.00 |
|
|
|
|
|
0.0042 |
|
|
Open Market Purchase |
| 10/14/2014 |
|
|
200,000.00 |
|
|
|
|
|
0.0025 |
|
|
Open Market Purchase |
| 10/21/2014 |
|
|
384,200.00 |
|
|
|
|
|
0.0020 |
|
|
Open Market Purchase |
| 10/21/2014 |
|
|
164,500.00 |
|
|
|
|
|
0.0023 |
|
|
Open Market Purchase |
| 10/21/2014 |
|
|
335,500.00 |
|
|
|
|
|
0.0024 |
|
|
Open Market Purchase |
| 2/12/2015 |
|
|
138,888,888.00 |
|
|
|
|
|
0.0018 |
|
|
Private Purchase from Issuer |
| (1) |
Shares listed in this Item 5(c) refer to the number of Shares before the Reverse Split. |
(d) Not applicable.
(e) Not
applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 4 is incorporated by reference herein. Except as described herein, the Reporting Person does not have any contracts, arrangements,
understandings or relationships (legal or otherwise) with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits
|
|
|
| Exhibit |
|
Description of Exhibit |
|
|
| 99.1 |
|
Loan Purchase and Sale Agreement, dated as of April 30, 2015, by and between DX, LLC and Los Alamos National Bank (filed herewith). |
|
|
| 99.2 |
|
Letter Regarding Defaulted Promissory Note, dated as of June 12, 2015, by Andrew R. Seger on behalf of DX, LLC (filed herewith). |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
|
|
|
| Date: July 10, 2015 |
|
CECIL O’BRATE |
|
|
|
|
/s/ Cecil O’Brate |
EXHIBIT INDEX
|
|
|
| Exhibit |
|
Description of Exhibit |
|
|
| 99.1 |
|
Loan Purchase and Sale Agreement, dated as of April 30, 2015, by and between DX, LLC and Los Alamos National Bank (filed herewith). |
|
|
| 99.2 |
|
Letter Regarding Defaulted Promissory Note, dated as of June 12, 2015, by Andrew R. Seger on behalf of DX, LLC (filed herewith). |
Exhibit 99.1
LOAN PURCHASE AND SALE AGREEMENT
THIS LOAN PURCHASE AND SALE AGREEMENT (“Agreement”), made and entered into this 30 day of April, 2015, by and between DX, LLC, a
Kansas limited liability company, whose address is 3118 N. Cummings Road (P.O. Box 399) Garden City, Kansas 67846, hereinafter referred to as “Purchaser”), and LOS ALAMOS NATIONAL BANK, a national banking association, whose address is 6700
Jefferson St NE, Suite D-1, Albuquerque, NM 87109 (hereinafter referred to as (“Seller”).
W I T N E S S E T H
WHEREAS, Seller owns that certain Promissory Note dated November 23, 2010, executed by Manhattan Isotope Technology, LLC in the
original principal amount of Seven Hundred Thousand Dollars and NO Cents ($700,000.00); that certain Promissory Note dated November 23, 2011, executed by Manhattan Isotope Technology, LLC_in the original principal amount of Seven Hundred
Thousand Dollars and NO Cents ($700,000.00); that certain Promissory Note dated February 10, 2012, executed by Manhattan Isotope Technology, LLC_in the original principal amount of Seven Hundred Eight Thousand Three Hundred Twenty-One Dollars
and Thirty-Three Cents ($708,321.33); that certain Change In Terms Agreement dated February 10, 2013 executed by between Manhattan Isotope Technology, LLC; that certain Change In Terms Agreement dated September 26, 2014 executed by and
between Manhattan Isotope Technology, LLC, together with various other loan documents and guaranty agreements that are described on Exhibit A which is attached hereto and incorporated herein by reference (referred to herein collectively as
the “Loan”); and
WHEREAS, the Purchaser has agreed to purchase from Seller and Seller has agreed to sell to Purchaser
the Loan upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and legal sufficiency of which is hereby acknowledged, the parties hereto agree to be bound to the following:
1.
PURCHASE AND SALE On the terms and subject to the conditions of this Agreement and in reliance upon the representations and warranties of the parties herein, at
the closing referred to in Section 4 hereof (the “Closing”), the Seller shall sell, transfer, convey and deliver to the Purchaser, and the Purchaser shall purchase from the Seller, the Loan.
2. PURCHASE PRICE The total purchase price (herein “Purchase Price”) to be
paid to Seller by Purchaser for the Loan is Four Hundred Thousand Dollars ($400,000.00), all of which shall be paid as follows:
(a)
Earnest Money. Purchaser hereby tenders the sum of Twenty-Four Thousand Dollars ($24,000.00) as earnest money (the “Earnest Money”) by way of wire transfer which is to be deposited with Seller. The Earnest Money shall be held
by Seller in accordance with this Agreement, and shall be applied at Closing in the manner set forth below for payment of the Cash Payment.
(b) Cash Payment. At Closing, Purchaser shall pay to the Seller the entire Purchase Price in cash, which shall include the Earnest
Money.
3. DELIVERY OF THE
LOAN At the Closing, Seller shall deliver to the Purchaser:
(a) Except as set forth
herein, all of Seller’s right, title and interest in and to the Loan as documented by the Loan Documents described on Exhibit A, which is attached hereto and incorporated herein by reference. The Loan has a current outstanding principal balance
together with accrued interest and late charges of $487,568.42 as of March 10, 2015. Interest continues to accrue on the Indebtedness at the default rate of interest which is Sixteen Percent (16%) per annum from March 11, 2015. At
Closing, Seller shall execute the Allonge in substantially the form attached here as Exhibit B, which is incorporated herein by reference, assigning all of the Seller’s right, title and interest in the Promissory Note dated
February 10, 2012, the Change in Terms Agreement dated February 10, 2013, and the Change in Terms Agreement dated September 26, 2014, without recourse, warranty or representation, except as specifically set forth in this Agreement.
The Loan has not been renewed, extended or modified at any time subsequent to March 10, 2015.
(b) At Closing, the Seller shall
execute the Assignment of the Loan Documents in the form that is attached as Exhibit C, which is attached hereto and incorporated herein by reference without recourse, warranty or representation, except as specifically set forth in
this Agreement. The Change in Terms Agreement dated February 10, 2013 (Item 5 on Exhibit A), and the Change in Terms Agreement dated September 26, 2014 (Item 6 on Exhibit A) shall be originals. The remaining Loan Documents shall be copies.
(c) At Closing, the Seller shall execute the Assignment of Mortgage in the form that is attached as Exhibit D, which is attached
hereto and incorporated herein by reference without recourse, warranty or representation, except as specifically set forth in this Agreement. Purchaser understands, acknowledges, and agrees that only the Mortgage for the property located at
154 Wheeler Place, Copper Mountain, Summit County, Colorado, is being assigned and such Mortgage is not a first mortgage.
The above
referenced documents are herein referred to as the “Loan Materials”.
(d) Purchaser understands, acknowledges and agrees that
there are documents concerning the Loan that are not included in the Loan Materials that are not being assigned, transferred or delivered to Purchaser and that such documents may include but not be limited to the financial statements, loan
write-ups, reports, title documents and other documents, all of which are not sold, transferred, assigned or conveyed by Seller to Purchaser, and Purchaser shall not request or be provided access to any of said documents. Notwithstanding anything
herein to the contrary, nothing herein shall preclude or prevent Purchaser from seeking discovery of non-privileged documents through ordinary judicial process in the course of its defense or prosecution of any claim by or against any borrower or
guarantor under the loans herein conveyed, nor shall anything herein preclude or waive any objection of Seller to producing any such documents requested under the applicable rules of procedure.
4. CLOSING The Closing shall take place at the offices of the Seller at 10:00 a.m., on
April 28, 5, 2015 or at such other date as may be agreed to in writing by the parties hereto. The date upon which the Closing shall take place is hereinafter called the “Closing Date”.
5. REPRESENTATIONS AND WARRANTIES OF
SELLER The Seller hereby represents and warrants to the Purchaser as follows:
(a)
Seller is the legal owner of the Loan. The Seller has, and will have at the time of the Closing good and valid title to the Loan to be sold by the Seller hereunder, free and clear of all Encumbrances. Seller will not renew, extend or modify the Loan
before Closing.
(b) The Loan Materials are not pledged by the Seller as collateral for any purposes, or assigned by the Seller to any
entity.
Page 2 of 15
(c) The real property lien, evidenced by the Mortgage and other collateral securing the Loans
have not been released or terminated and Seller will refrain from accepting any partial payments from any Borrower or Guarantor prior to closing.
(d) Seller is authorized and empowered to enter into this Agreement and to sell the Loan. All requisite action has been taken by Seller in
order to enter into this Agreement and sell the Loan. This Agreement is valid and enforceable against the Seller. The person executing this Agreement and all documents related hereto for Seller is authorized by Seller to sign for Seller. The Seller
is not in bankruptcy.
6. REPRESENTATIONS AND WARRANTIES OF
PURCHASER. The Purchaser hereby represents and warrants to the Seller that Purchaser is authorized and empowered to enter into this Agreement and to purchase the Loan. All requisite actions have
been taken by Purchaser in order to enter into this Agreement and purchase the Loan. This Agreement is valid and enforceable against the Purchaser. The person executing this Agreement and all documents related to it for Purchaser is authorized by
Purchaser to sign for Purchaser. The Purchaser is not in bankruptcy
7. SALE OF LOAN AND
ALL RELATED MATTERS IS WITHOUT RECOURSE, REPRESENTATION OR WARRANTY Except
as specifically set forth in this Agreement, Purchaser acknowledges, understands, and agrees that neither Seller, nor any agent, employee or representative of Seller, has made any representations, warranties, promises, covenants, agreements or
guaranties of any kind or character, whether express or implied, oral or written, past present or future, of, as to, concerning or with respect to:
(a) The nature, quality or condition of the collateral described in the Mortgage, including, without limitation, any environmental, soil or
geology issues;
(b) The income to be derived from the collateral described in the mortgage;
(c) The suitability of the collateral described in the Mortgage and any and all activities and uses, which Purchaser may conduct thereon;
(d) The collectability of the Loan, the accuracy, completeness, or enforceability of the Loan Materials;
(e) Any other matter with respect to the Loan or the collateral described in the Mortgage.
Purchaser further acknowledges and agrees that it is completely familiar with the Loan and the Loan Materials and that it has been given the opportunity to
inspect, investigate and test the collateral that is described in the Mortgage and the Loan and the Loan Materials, and the Purchaser will be purchasing the Loan pursuant to Purchaser’s independent examination, investigation, inspection and
knowledge of the Loan and the collateral described in the Mortgage, and the Purchaser is relying upon its own determination of the value of the Loan and not upon any information provided, or to be provided by the Seller. Except as specifically set
forth in this Agreement, the closing of the transaction shall constitute an acknowledgement by Purchaser that the transaction was closed and accepted without recourse to Seller, without representation or warranty, express or implied and otherwise
the Loan was purchased “AS IS” “WHERE IS” and (“WITH ALL FAULTS”) based solely on Purchaser’s own independent inspection, investigation, testing and judgment.
Page 3 of 15
8. ACKNOWLEDGEMENT AND AGREEMENT OF
PURCHASER
(a) Sale Irrevocable. The Purchaser acknowledges and agrees that the sale
of the Loan by the Seller to the Purchaser is irrevocable, and that the Purchaser shall have no recourse to the Seller, except with respect to the breaches of Representations and Warranties expressly set forth in this Agreement.
(b) Loan Defects. The Purchaser acknowledges that: (i) the Loan is or may be in default, and/or have been restructured or extended;
(ii) title defects, lack of perfection of liens and other defects may exist with respect to the collateral (if any) of the Loan; and (iii) the consideration paid by the Purchaser pursuant to this Agreement for the purchase of the Loan may
differ both in kind and amount from any payments or distributions which may ultimately be received by the Purchaser with respect to the Loan.
(c) Information Not Disclosed. Purchaser acknowledges that Purchaser has copies of certain documentation related to the Loan as set forth in
Exhibit A and the Seller has but will not be giving the Purchaser access to nor transferring to the Purchaser any other information. The Purchaser has decided to buy the Loan notwithstanding its lack of knowledge of such information and the Seller
shall have no liability to the Purchaser for nondisclosure of any such information as long as such information does not affect the truth or accuracy of any such information, representation or warranty made by the Seller in Section 5 of this
Agreement.
(d) Assumption of Seller Obligations. The Purchaser acknowledges and agrees that as of and including the Closing Date,
Purchaser assumes each, every and all of Seller’s obligations under and for the Loan and the Loan Documents arising on or after the Closing Date, agrees that Purchaser will be bound by and will perform in accordance with the provisions which,
under the terms of the Loan Documents, are required to be performed by the “Lender” or “Bank,” as such terms, provisions, and obligations may be amended, restated, modified, or supplemented under the Loan Documents.
9. CONFIDENTIAL AGREEMENT Purchaser agrees (except as may be required by law or as
necessary to enforce the Loan herein conveyed) that Purchaser will not disclose or use and Purchaser will cause its respective officers, directors, employees, representatives, agents, and advisors not to or use any information furnished by Seller to
Purchaser with respect to this Agreement or the Loan or the transaction contemplated by this Agreement at any time or in any manner and will not use such information other than in connection with the closing of the transaction set forth in this
Agreement or enforcing the obligations undertaken by the Borrower or any Guarantor under the Loan. If the transaction as set forth in this Agreement is not consummated, Purchaser will promptly return to the Seller all documents, contracts, records
or Loan Materials supplied to it as part of the proposed transaction.
10. DEFAULT AND
REMEDIES If Purchaser or Seller fails to consummate the purchase of the Loan pursuant to this Agreement for any reason, the non-defaulting party shall have the remedy to seek all rights, recourses or remedies
available whether hereunder, at law or in equity, and all such rights/remedies and recourses are cumulative. In the event of any litigation between the parties to this Agreement, the parties hereby knowingly, voluntarily and intentionally waive
the rights they may have to a trial by jury with respect to any and all issues presented in any action, proceeding, claim or counterclaim brought by an party against the other with respect to any matter arising out of, or in connection with this
Agreement, the relationship of the parties and/or any claim for injury or damage, or any emergency or statutory remedy. This waiver by the parties of any right they may have to a trial by jury has been negotiated and is a material inducement for
entering into this Agreement.
11. BROKERAGE AND FEES The
parties acknowledge and agree that no brokerage agreement has been executed with respect to this Agreement and that no brokerage fees or commission is due to any party for the transaction contemplated by this Agreement. Seller and Purchaser
represent and warrant that neither Seller nor Purchaser has used the services of a
Page 4 of 15
broker or sales representative in this transaction, and that there are no selling commissions due and payable to anyone. Each party hereby defends, indemnifies, and holds the other party harmless
against any and all claims of brokers, finders or the like, and against the claims of all other persons or entities claiming any right to commission or compensation by or through acts of a party, or a party’s partners, agents or affiliates in
connection with this Agreement. Such indemnity obligations shall include all damages, losses, costs, liabilities and expenses, including reasonable attorneys’ fees, which may be incurred by either party hereto in connection with all matters
against which such party is being indemnified hereunder.
12. NOTICES All notices and other
communications required or permitted hereunder shall be in writing and shall be given either by personal delivery, or by placing with an overnight courier, or by deposit in the United States mail, first class, registered or certified, return receipt
requested, postage prepaid, correctly addressed to the intended recipient as set forth above. All notices will be effective upon receipt, if personally delivered, or one (1) day after delivery by courier or two (2) days after deposit in
the mail as specified above.
Either party hereto may change the names and addresses of the designee, to whom notice shall be sent by
giving written notice of such change to the other party hereto in the same manner as all other notices are required to be delivered.
13.
MISCELLANEOUS
(a) Time is of the essence of this Agreement. Each party shall
exercise due diligence in the satisfaction of all requirements to be satisfied by such party according to the terms of this Agreement.
(b)
Wherever under the terms and provisions of this Agreement, the time for performance falls upon a Saturday, Sunday or legal holiday, such time for performance shall be extended to the next business day.
(c) This Agreement may be executed in counterparts, each of which shall constitute an original that all together shall constitute one and the
same Agreement. This Agreement may be executed by any or all of the parties by facsimile.
(d) The terms, provisions, warranties and
covenants made herein, and all other agreements, shall survive the Closing and delivery of the Loan Materials and other documents and instruments of conveyance and assignment, and this Agreement, and all other agreements, shall not be merged
therein, but shall remain binding upon and for the parties hereto.
(e) In the event of any litigation between Purchaser and Seller as a
result of or arising out of this Agreement, or of any document executed in connection herewith, all costs and expenses of such litigation incurred by the prevailing party, including reasonable attorneys’ fees, shall be paid by the
non-prevailing party and awarded as part of any judgment entered. Each party to this Agreement hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action arising under this Agreement or in any way connected
with or related or incidental to the dealings of the parties hereto or any of them with respect to this Agreement or the transactions related thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort
or otherwise; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to this Agreement may file a copy of this Agreement or this Section of
the Agreement with any court as written evidence of the consent of the signatories hereto to the waiver of their right to trial by jury.
Page 5 of 15
(f) The captions at the beginning of the several paragraphs, respectively, are for convenience in
locating the context, but are not part of the context.
(g) In the event any term or provision of this Agreement shall be held illegal,
invalid, unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement shall not be affected thereby, but each such term and provision shall be valid and shall remain in full force and effect.
(h) This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their successors and assigns.
(i) This Agreement, and the Exhibits attached hereto, embody the entire contract between the parties hereto with respect to the subject matter
described herein and supersedes any and all prior agreements, understandings, explanations, descriptions and statements written or oral, formal or informal. No extensions, changes, modifications or amendments to or of this Agreement, of any kind
whatsoever, shall be made or claimed by Seller or Purchaser (except with respect to permitted unilateral waivers of conditions precedent) or shall have any force or effect whatsoever unless the same shall be endorsed in writing and fully signed by
Seller and Purchaser.
(j) Each party will, whenever and as often as reasonably requested by the other party, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such additional instruments and documents as may be reasonably necessary in order to carry out the intent and purpose of this Agreement.
(k) All of the agreements, representations and warranties contained in this Agreement, and any of the documents or other agreements attached
hereto, are for the sole benefit of Seller and Purchaser, and shall not be construed as creating in any third party any right, contract or interest.
(l) Neither Purchaser nor Seller shall have the right to assign, transfer and convey their rights and interest under this Agreement at any time
without the prior written consent of the other party and such consent may be withheld in the sole discretion of such other party.
14.
CHOICE OF LAW/JURISDICTION This Agreement and all conduct between PURCHASER and SELLER shall be governed by and construed in accordance with the
laws of the State of New Mexico. The parties hereto each irrevocably submit and agree that all judicial proceedings between the parties to this Agreement shall be brought in the First Judicial District Court, County of Los Alamos, State of New
Mexico.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
|
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| SELLER: |
|
|
|
PURCHASER: |
|
|
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| LOS ALAMOS NATIONAL BANK |
|
|
|
DX, LLC |
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| By: |
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/s/ Michael W. Altum |
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By: |
|
/s/ Cecil O’Brate |
| Its: |
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Loan Workout Officer |
|
|
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Its: |
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President |
Page 6 of 15
EXHIBIT A
| 1. |
That certain Commercial Loan Agreement (Single Advance Loan) dated February 10, 2012 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender, and in reference to a
promissory amount in the original principal amount of $708,321.33, together with any extensions, renewals and/or modifications thereof; |
| 2. |
That certain Promissory Note dated November 23, 2010 in the principal amount of $700,000.00 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender, together with
any extensions, renewals and/or modifications thereof; |
| 3. |
That certain Promissory Note dated November 23, 2011 in the principal amount of $700,000.00 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender, together with
any extensions, renewals and/or modifications thereof; |
| 4. |
That certain Promissory Note dated February 10, 2012 in the principal amount of $708,321.33 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender;
|
| 5. |
That certain Change In Terms Agreement dated February 10, 2013 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender; |
| 6. |
That certain Change In Terms Agreement dated September 26, 2014 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender; |
| 7. |
That certain Security Agreement dated November 23, 2010 and executed by Manhattan Isotope Technology, LLC in favor of Los Alamos National Bank, together with any renewals, extensions, substitutions and/or
modifications thereof; |
| 8. |
That certain Security Agreement dated February 10, 2012 and executed by Positron Corporation in favor of Los Alamos National Bank, together with any renewals, extensions, substitutions and/or modifications thereof;
|
| 9. |
UCC Financing Statement filed February 9, 2012 with the Texas Secretary of State under filing number 12-0004342824 with Los Alamos National Bank as Secured Party and Positron Corporation as Debtor;
|
| 10. |
UCC Financing Statement filed November 23, 2010 with the New Mexico Secretary of State under filing number 2010017312J with Los Alamos National Bank as Secured Party and Manhattan Isotope Technology, LLC as Debtor;
|
| 11. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Suzanne M. Kitten and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan Isotope
Technology, LLC to Los Alamos National Bank; |
Page 7 of 15
| 12. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Jason Kitten and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan Isotope
Technology, LLC to Los Alamos National Bank; |
| 13. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Positron Corporation and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan
Isotope Technology, LLC to Los Alamos National Bank, and; |
| 14. |
That certain Line of Credit Mortgage which is a junior mortgage covering or encumbering certain real property located at 154 Wheeler Place, Copper Mountain, Summit County, Colorado, recorded December 6, 2010 as
Document No. 95287 with the Summit County Recorder. |
Page 8 of 15
EXHIBIT B
FORM OF ALLONGE TO PROMISSORY NOTE
Reference is made to the $708,321.33 Promissory Note dated February 10, 2012, payable to Los Alamos National Bank to the Order of Los
Alamos National Bank, as such Note has been amended or modified prior to the date hereof, specifically including those certain Change in Terms Agreements dated February 10, 2013 and September 26, 2014 (the “Note”). This Allonge
is attached to and made a permanent part of the Note.
PAY TO THE ORDER OF DX, LLC, its successors and assigns, without recourse
representations or warranties of any kind.
Executed as of April 30, 2015.
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| LOS ALAMOS NATIONAL BANK |
|
|
| By: |
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/s/ Michael W. Altum |
| Name: |
|
Michael W. Altum |
| Title: |
|
Loan Workout Officer |
Page 9 of 15
EXHIBIT C
FORM OF ASSIGNMENT OF LOAN DOCUMENTS
ASSIGNMENT OF LOAN DOCUMENTS
THIS ASSIGNMENT OF LOAN DOCUMENTS (“Assignment”) is made as of April 30, 2015 by LOS ALAMOS NATIONAL BANK (the
“Seller”) to DX, LLC (the “Purchaser”).
RECITALS
A. The loan documents described on Schedule 1 hereto (collectively, the “Loan Documents”) were executed in connection with the loan
transaction (the “Loan”).
B. Seller and Purchaser have entered into that certain LOAN PURCHASE
SALE AGREEMENT dated April 30, 2015 (the “Loan Sale Agreement”) in which Seller has agreed to sell and the Purchaser has agreed to purchase the Loan and the Loan Materials (as defined
in the Loan Sale Agreement) concerning the Loan.
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) and other good
and valuable consideration paid by Purchaser at the time of execution hereof, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. Except as set forth in Section 5 of the Loan Sale Agreement, Seller hereby grants, bargains, sells, assigns,
transfers and sets over to Purchaser, without recourse, warranty or representation whatsoever, all of Seller’s right, title, interest, claim and demand in and to the Loan Documents, together with all moneys, principal and interest, now due and
to become due thereon, and all rights, remedies and incidents thereunto belonging. The Change in Terms Agreement dated February 10, 2013 (Item 5 on Schedule 1), and the Change in Terms Agreement dated September 26, 2014 (Item 6 on Schedule
1) shall be originals. The remaining Loan Documents shall be copies. Purchaser accepts the foregoing assignment and assumes all of the obligations of Seller under the Loan Documents.
2. Conflict. Nothing in this Assignment shall be construed to be a modification or waiver of or limitation on any provision of the Loan Sale
Agreement, including representations, warranties and agreements set forth therein. In the event of any inconsistency or conflict between this Assignment and the Loan Sale Agreement, terms and conditions of the Loan Sale Agreement shall control for
all purposes.
3. Successors and Assigns. This Assignment shall be binding upon and shall inure to the benefits of the parties hereto,
their respective legal representatives, successors in title and assigns.
4. Governing Law. The laws of the State of New Mexico shall
govern the interpretation and validity and enforceability hereof without regard to concepts of conflicts of laws.
Page 10 of 15
5. Severability. In the event any provision of this Assignment is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof.
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| SELLER: |
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| LOS ALAMOS NATIONAL BANK |
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| By: |
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/s/ Michael W. Altum |
| Name: |
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Michael W. Altum |
| Title: |
|
Loan Workout Officer |
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| STATE OF NEW MEXICO |
|
) |
|
|
) ss |
| COUNTY OF BERNALILLO |
|
) |
This instrument was acknowledged before me on
April 30th, 2015, by Michael Altum, Loan Workout Officer of Los Alamos National Bank, a national banking institution, on behalf of said banking institution.
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NOTARY PUBLIC |
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| My Commission Expires: |
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| March 25, 2017 |
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| PURCHASER: |
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| DX, LLC |
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| By: |
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/s/ Cecil O’Brate |
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Cecil O’Brate |
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President |
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| STATE OF Kansas |
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| COUNTY OF Finney |
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This instrument was acknowledged before me on April 29, 2015, by Cecil O’Brate, President of DX, LLC
a limited liability company, on behalf of said company.
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| /s/ Shayla Caffee |
| NOTARY PUBLIC |
| Shayla Caffee |
Page 11 of 15
My Commission Expires: 10-9-2017
Page 12 of 15
SCHEDULE 1
[WILL BE THE SAME THING AS EXHIBIT A TO THE LOAN PURCHASE AGREEMENT]
| 1. |
That certain Commercial Loan Agreement (Single Advance Loan) dated February 10, 2012 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender, and in reference to a
promissory amount in the original principal amount of $708,321.33, together with any extensions, renewals and/or modifications thereof; |
| 2. |
That certain Promissory Note dated November 23, 2010 in the principal amount of $700,000.00 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender, together with
any extensions, renewals and/or modifications thereof; |
| 3. |
That certain Promissory Note dated November 23, 2011 in the principal amount of $700,000.00 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender, together with
any extensions, renewals and/or modifications thereof; |
| 4. |
That certain Promissory Note dated February 10, 2012 in the principal amount of $708,321.33 and given by Manhattan Isotope Technology, LLC as Borrower in favor of Los Alamos National Bank, As Lender;
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That certain Change In Terms Agreement dated February 10, 2013 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender; |
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That certain Change In Terms Agreement dated September 26, 2014 by and between Manhattan Isotope Technology, LLC as Borrower and Los Alamos National Bank, As Lender; |
| 7. |
That certain Security Agreement dated November 23, 2010 and executed by Manhattan Isotope Technology, LLC in favor of Los Alamos National Bank, together with any renewals, extensions, substitutions and/or
modifications thereof; |
| 8. |
That certain Security Agreement dated February 10, 2012 and executed by Positron Corporation in favor of Los Alamos National Bank, together with any renewals, extensions, substitutions and/or modifications thereof;
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| 9. |
UCC Financing Statement filed February 9, 2012 with the Texas Secretary of State under filing number 12-0004342824 with Los Alamos National Bank as Secured Party and Positron Corporation as Debtor;
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UCC Financing Statement filed November 23, 2010 with the New Mexico Secretary of State under filing number 2010017312J with Los Alamos National Bank as Secured Party and Manhattan Isotope Technology, LLC as Debtor;
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Page 13 of 15
| 11. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Suzanne M. Kitten and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan Isotope
Technology, LLC to Los Alamos National Bank; |
| 12. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Jason Kitten and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan Isotope
Technology, LLC to Los Alamos National Bank; |
| 13. |
That certain agreement dated September 26, 2014 and entitled Commercial Guaranty, executed by Positron Corporation and guaranteeing the continuing payment and performance of any indebtedness owed by Manhattan
Isotope Technology, LLC to Los Alamos National Bank, and; |
| 14. |
That certain Line of Credit Mortgage which is a junior mortgage covering or encumbering certain real property located at 154 Wheeler Place, Copper Mountain, Summit County, Colorado, recorded December 6, 2010 as
Document No. 95287 with the Summit County Recorder. |
Page 14 of 15
EXHIBIT D
FORM OF ASSIGNMENT OF MORTGAGE
ASSIGNMENT OF MORTGAGE
Los Alamos National Bank, holder of that certain Line of Credit Mortgage from Jason J. Kitten and Suzanne M. Kitten to Los Alamos National
Bank, dated November 23, 2010 and recorded on December 6, 2010 as Document No. 95287 in the records of Summit County, Colorado, hereby assigns said mortgage and the obligation secured thereby to DX, LLC, whose address is 3118 N.
Cummings Road (P.O. Box 399), Garden City, Kansas 67846. The undersigned makes the above ASSIGNMENT OF MORTGAGE without recourse, representation or warranty.
Witness its hand and seal this 30 day of April, 2015.
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| LOS ALAMOS NATIONAL BANK |
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| By: |
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/s/ Michael W. Altum |
| Name: |
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Michael W. Altum |
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Loan Workout Officer |
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| STATE OF NEW MEXICO |
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| COUNTY OF BERNALILLO |
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This instrument was acknowledged before me on
April 30th, 2015, by Michael Altum, Loan Workout Officer of Los Alamos National Bank, a national banking institution, on behalf of said banking institution.
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NOTARY PUBLIC |
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| My Commission Expires: |
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| March 25, 2017 |
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Page 15 of 15
Exhibit 99.2
P.O. Box 98433
Lubbock, Texas 79499
4825 50th St., Ste A
Lubbock, Texas 79414
Andrew R. Seger, Esq.
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| Telephone: (806) 793-1906 |
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Facsimile: (806) 792-2135 |
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E-mail: aseger@thesegerfirm.com |
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June 12, 2015 |
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VIA Certified USPS 7012 3460 0002 9000 1322
and regular USPS mail
Corey Conn
Joe Oliverio
Patrick Rooney
Manhattan Isotope Technology, LLC
2301 122nd Street
Lubbock, Texas 79423
VIA Certified USPS 7012 3460 0002
9000 1315
and regular USPS mail
Corey
Conn
Joe Oliverio
Positron Corporation
530 Oakmont Lane
Westmont, IL 60559
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Re: |
Defaulted Promissory Note |
Dear Sirs:
Please be advised that the Promissory Note (the “Note”) given by Manhattan Isotope Technology, LLC in the original amount of Seven
Hundred Thousand Dollars and NO cents ($700,000), together with all liens, security interests and guarantees has been purchased by my client, DX, LLC. As you are aware, said note has been in default since April 29, 2015, and is accruing
interest at the default rate and pursuant to the terms of the note.
As of April 29, 2015, the principal balance of the Note is
$451,589.74, interest has accrued in the amount of $6,186.16 and the late fees have accrued in the amount of $24,173.81 for a total balance due on the Note as of April 29, 2015 of $481,949.71. Interest continues to accrue on the Indebtedness at
the default rate of interest which is Sixteen Percent (16%) per annum from March 11, 2015. Demand is hereby made for payment in full of the full balance of said Indebteness together with all interest and late fees.
Page 1 of 2
Please be advised that if not paid we will be forced to seek judicial relief in accordance with
the terms of the Note and the respective Guaranty Agreements. I would further request that you familiarize yourself with the applicable laws regarding fraudulent transfers. Please be further advised that this is an attempt to collect a debt, and
that any information supplied or furnished will be used for that purpose.
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| Yours Very Truly, |
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| THE SEGER FIRM, P.C. |
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| BY: |
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/s/ Andrew R. Seger |
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Andrew R. Seger |
ARS/can
Positron (PK) (USOTC:POSC)
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