EX-10.4






EXHIBIT 10.4



SECURED PROMISSORY NOTE




Principal Amount: $1,330,312.50 Issue Date: May 7, 2009


Purchase Price: $1,182,500.00



FOR VALUE RECEIVED, CONVERTED ORGANICS INC., a Delaware corporation (hereinafter called
“Borrower”), hereby promises to pay to IROQUOIS MASTER FUND LTD., 641 Lexington Avenue, 26th Floor,
New York, NY 10022, Fax: (212) 207-3452 (the “Holder”), without demand, the sum of One Million
Three Hundred and Thirty Thousand Three Hundred and Twelve Dollars and Fifty Cents ($1,330,312.50)
(“Principal Amount”), on November 7, 2009 (the “Maturity Date”), if not paid sooner.



The Principal Amount of this Note represents an original issue discount of 12.5% (the “OID”)
and this Note does not bear any additional interest.



This Note has been entered into pursuant to the terms of a subscription agreement between the
Borrower and the Holder dated of even date herewith (the “Subscription Agreement”). Unless
otherwise separately defined herein, all capitalized terms used in this Note shall have the same
meaning as is set forth in the Subscription Agreement. The following terms shall apply to this
Note:



ARTICLE I




GENERAL PROVISIONS




1.1 Default Interest Rate. The Borrower shall not have any grace period to pay any
monetary amounts due under this Note. After the Maturity Date, accelerated or otherwise, and
during the pendency of an Event of Default (as defined in Article III) a default interest rate of
fifteen percent (15%) per annum shall apply to the amounts owed hereunder.



ARTICLE II




PREPAYMENT AND EXTENSION




2.1. Prepayment. This Note may be paid prior to the Maturity Date, without penalty,
upon three days written notice to Holder.



2.2. Mandatory Repayment. The entire Principal Amount and all other sums due under
and in connection with this Note and the Transaction Documents shall be immediately due and payable
out of the net proceeds from the sale and issuance by the Borrower and/or a Subsidiary of Borrower
of debt and/or equity in a single or series of offerings of such debt and/or equity for cash in
excess of $1,330,312.50.



ARTICLE III




EVENT OF DEFAULT




The occurrence of any of the following events of default (“Event of Default”) shall, at the
option of the Holder hereof, make all sums of principal and accrued interest then remaining unpaid
hereon and all other amounts payable hereunder immediately due and payable, upon demand, without
presentment or grace period, all of which hereby are expressly waived, except as set forth below:



3.1 Failure to Pay Principal. The Borrower fails to pay any principal, or other sum
due under this Note when due.



3.2 Breach of Covenant. The Borrower or any Subsidiary of Borrower breaches any
material covenant or other material term or condition of the Subscription Agreement or this Note in
any material respect and such breach, if subject to cure, continues for a period of five (5)
business days after written notice to the Borrower or any such Subsidiary of Borrower from the
Holder.



3.3 Breach of Representations and Warranties. Any material representation or warranty
of the Borrower or any Subsidiary of Borrower made herein, in any Transaction Document, or in any
agreement, statement or certificate given in writing pursuant hereto or in connection herewith or
therewith shall be false or misleading in any material respect as of the date made and as of the
Closing Date.



3.4 Liquidation. Any dissolution, liquidation or winding up of Borrower or any
operating Subsidiary of Borrower or any substantial portion of its business.



3.5 Cessation of Operations. Any cessation of operations by Borrower or any
operating Subsidiary of Borrower for a period of 30 consecutive days.



3.6 Maintenance of Assets. The failure by Borrower or any Subsidiary of Borrower to
maintain any material intellectual property rights, personal, real property or other assets which
are necessary to conduct its business (whether now or in the future).



3.7 Receiver or Trustee. The Borrower or any Subsidiary of Borrower shall make an
assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business; or such a receiver or
trustee shall otherwise be appointed.



3.8 [Reserved].



3.9 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or
other proceedings or relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by the Borrower or any Subsidiary of Borrower or any such proceeding shall be instituted
against the Borrower or any Subsidiary of Borrower, which proceedings are not, within sixty (60)
days after institution thereof discharged or stayed pending appeal.



3.10 Delisting. Failure of the Borrower’s Common Stock to be listed for trading or
quotation on a Principal Market for ten (10) or more consecutive days.



3.11 [Reserved].



3.12 Stop Trade. An SEC or judicial stop trade order or Principal Market trading
suspension with respect to the Borrower’s Common Stock that lasts for seven (7) or more consecutive
trading days.



3.13 Reservation Default. The failure by the Borrower to have reserved for issuance
upon exercise of the Warrant at the exercise price in effect at such time the number of shares of
Common Stock as required in the Subscription Agreement.



3.14 [Reserved].



3.15 [Reserved]



3.16 Event Described in Subscription Agreement. The occurrence of an Event of Default
as described in the Subscription Agreement that, if susceptible to cure, is not cured during any
designated cure period.



3.17 Material Adverse Effect. The occurrence of any Material Adverse Effect as
defined in the Subscription Agreement as to Borrower or any Subsidiary of Borrower.



3.18 Financial Statement Restatement. A restatement of any financial statements filed
by the Borrower with the Securities and Exchange Commission for any date or period from two years
prior to the Issue Date of this Note and until this Note is no longer outstanding, if the result of
such restatement would, by comparison to the unrestated financial statements, have constituted a
Material Adverse Effect.



3.19 Reverse Splits. The Borrower effectuates a reverse split of its Common Stock
without twenty (20) days prior written notice to the Holder.



3.20 Material Breach of Security Agreement. Any default by Borrower or any
Subsidiary of Borrower of any of its material obligations pursuant to the Security Agreement.



ARTICLE IV




SECURITY INTEREST




4. Security Interest/Waiver of Automatic Stay. This Note is secured by a security
interest granted to the Holder pursuant to a Security Agreement, as delivered by Borrower to
Holder. The Borrower acknowledges and agrees that should a proceeding under any bankruptcy or
insolvency law be commenced by or against the Borrower, or if any of the Collateral (as defined in
the Security Agreement) should become the subject of any bankruptcy or insolvency proceeding, then
the Holder should be entitled to, among other relief to which the Holder may be entitled under the
Transaction Documents and any other agreement to which the Borrower and Holder are parties
(collectively, “Loan Documents”) and/or applicable law, an order from the court granting immediate
relief from the automatic stay pursuant to 11 U.S.C. Section 362 to permit the Holder to exercise
all of its rights and remedies pursuant to the Loan Documents and/or applicable law. THE BORROWER
EXPRESSLY WAIVES THE BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE,
THE BORROWER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER
SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION, 11 U.S.C.
SECTION 105) SHALL STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE
HOLDER TO ENFORCE ANY OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW.
The Borrower hereby consents to any motion for relief from stay that may be filed by the Holder in
any bankruptcy or insolvency proceeding initiated by or against the Borrower and, further, agrees
not to file any opposition to any motion for relief from stay filed by the Holder. The Borrower
represents, acknowledges and agrees that this provision is a specific and material aspect of the
Loan Documents, and that the Holder would not agree to the terms of the Loan Documents if this
waiver were not a part of this Note. The Borrower further represents, acknowledges and agrees that
this waiver is knowingly, intelligently and voluntarily made, that neither the Holder nor any
person acting on behalf of the Holder has made any representations to induce this waiver, that the
Borrower has been represented (or has had the opportunity to he represented) in the signing of this
Note and the Loan Documents and in the making of this waiver by independent legal counsel selected
by the Borrower and that the Borrower has discussed this waiver with counsel.



ARTICLE V




MISCELLANEOUS




5.1 Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder
hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies
otherwise available.



5.2 Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and, unless otherwise specified
herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below
or to such other address as such party shall have specified most recently by written notice. Any
notice or other communication required or permitted to be given hereunder shall be deemed effective
(a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the
date of mailing by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for such communications
shall be: (i) if to the Borrower to: Converted Organics Inc., 7A Commercial Wharf West, Boston, MA
02110, Attn: Edward J. Gildea, CEO and President, facsimile: (617) 624-0333, with a copy by
facsimile only to: Cozen O’Connor, 1900 Market Street, Philadelphia, PA 19103, Attn: Cavas Pavri,
Esq., facsimile: (215) 665-2013, and (ii) if to the Holder, to the name, address and facsimile
number set forth on the front page of this Note, with a copy by facsimile only to Grushko &
Mittman, P.C., 551 Fifth Avenue, Suite 1601, New York, New York 10176, facsimile: (212) 697-3575.



5.3 Amendment Provision. The term “Note” and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed, or if later amended
or supplemented, then as so amended or supplemented.



5.4 Assignability. This Note shall be binding upon the Borrower and its successors
and assigns, and shall inure to the benefit of the Holder and its successors and assigns. The
Borrower may not assign its obligations under this Note.



5.5 Cost of Collection. If default is made in the payment of this Note, Borrower
shall pay the Holder hereof reasonable costs of collection, including reasonable attorneys’ fees.



5.6 Governing Law. This Note shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflicts of laws principles that would result
in the application of the substantive laws of another jurisdiction. Any action brought by either
party against the other concerning the transactions contemplated by this Agreement must be brought
only in the civil or state courts of New York or in the federal courts located in the State and
county of New York. Both parties and the individual signing this Agreement on behalf of the
Borrower agree to submit to the jurisdiction of such courts. The prevailing party shall be
entitled to recover from the other party its reasonable attorney’s fees and costs. In the event
that any provision of this Note is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may conflict therewith
and shall be deemed modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity or unenforceability
of any other provision of this Note. Nothing contained herein shall be deemed or operate to
preclude the Holder from bringing suit or taking other legal action against the Borrower in any
other jurisdiction to collect on the Borrower’s obligations to Holder, to realize on any collateral
or any other security for such obligations, or to enforce a judgment or other decision in favor of
the Holder. This Note shall be deemed an unconditional obligation of Borrower for the payment of
money and, without limitation to any other remedies of Holder, may be enforced against Borrower by
summary proceeding pursuant to New York Civil Procedure Law and Rules Section 3213 or any similar
rule or statute in the jurisdiction where enforcement is sought. For purposes of such rule or
statute, any other document or agreement to which Holder and Borrower are parties or which Borrower
delivered to Holder, which may be convenient or necessary to determine Holder’s rights hereunder or
Borrower’s obligations to Holder are deemed a part of this Note, whether or not such other document
or agreement was delivered together herewith or was executed apart from this Note.



5.7 Maximum Payments. Nothing contained herein shall be deemed to establish or
require the payment of a rate of interest or other charges in excess of the maximum rate permitted
by applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by applicable law, any payments in excess of such
maximum rate shall be credited against amounts owed by the Borrower to the Holder and thus refunded
to the Borrower.



5.8 Non-Business Days. Whenever any payment or any action to be made shall be due on
a Saturday, Sunday or a public holiday under the laws of the State of New York, such payment may be
due or action shall be required on the next succeeding business day and, for such payment, such
next succeeding day shall be included in the calculation of the amount of accrued interest payable
on such date.



IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by an authorized
officer as of the 7th day of May, 2009.




CONVERTED ORGANICS INC.



By:       



David R. Allen, CFO



WITNESS:



     


Mary C. Butler, Esq.