exv10w16






Exhibit 10.16




Unsecured Promissory Note




	 	 	 
	US $35,831.60

	 	Dated: February 11, 2008





FOR VALUE RECEIVED, XStream Systems, Inc, (the Borrower”) hereby promises to pay to Darren Sylvia
(the “Lender”), at such place that the Lender may designate in writing, in lawful money of the
United States of America and in immediately available funds, the principal amount of
thirty-five thousand eight hundred thirty-one dollars and sixty cents together with
interest on the unpaid principal amount owing pursuant to this Unsecured Promissory Note (the
“Note”). The Borrower and Lender acknowledge the principal amount of this Note is deferred Salary
as of February 11, 2008 and represents deferred salary wages earned by Darren Sylvia prior to July
2006.





	 	1.	 	Payments. The Borrower shall pay principal and interest in monthly installments. The
first installment payment shall be $3,182.86 and shall be due and payable June 15, 2008.
Subsequent installment payments shall be due on the 15th day of each calendar month
beginning July 15, 2008, and are payable no later than the 30th day of each
month in accordance with the amortization schedule identified as Exhibit A to this Note.
Each monthly principal payment will be paid to the Lender in a payroll check with the gross
amount of earnings being the amount identified in Exhibit A as principal. The amount paid
to Lender will be net of all required employment related taxes. The related interest
payment will be paid in a separate check.
	 
	 	2.	 	Interest. Borrower promises to pay interest in arrears (calculated on the basis of a
365-day year for the actual number of days elapsed) on the daily principal balance at a
rate per annum, equal to eight percent (8.0%) but in no event greater than the maximum rate
of interest permitted by applicable law.
	 
	 	3.	 	Default. In the event Lender fails to make timely payments of principal and interest,
if such principal and interest are not received by the Lender by the 10th day of
the month following the date such payments were originally due and payable, the Lender may
provide written notice of such breach to the Borrower. If such breach continues for more
than 30 days after receipt of such written notice, such breach shall constitute a default
under this Note. In the event of default, the unpaid principal and interest due on this
Note shall become immediately due and payable, and the unpaid balance of this Note shall
accrue interest at a rate of 12% from the date of this Note.
	 
	 	4.	 	Prepayment. Prepayment of this Note, in whole or in part, may be made on the
outstanding balance amount due and all accrued interest under this Note without penalty.
	 
	 	5.	 	Enforcement Costs. In case suit shall be brought for the collection of this Note, or
it is necessary to place this Note in the hands of an attorney for collection, Borrower
agrees to pay reasonable attorneys’ fees and costs for making such collection, including
but not limited to, all fees, taxes and costs incident to any appellate, post-judgment, or
bankruptcy proceedings which may result, whether the holder of the Note is obligated
therefor or not. Attorneys’ fees include paralegal fees, administrative costs and all
other charges whatsoever billed by counsel to Lender.
	 
	 	6.	 	Binding affect. All terms and provisions of the Note shall be binding upon, inure to
the benefit of, and be enforceable be the parties and their respective administrators,
executors, other legal representatives, heirs and permitted assigns, whether so expressed
or not.
	 
	 	7.	 	Amendments. Modifications and amendments of this Note may be made solely in a writing
signed by the Lender and the Borrower.




 









 






	 	8.	 	Governing Law. This Note and all trasactions contemplated by this Note shall be
governed by, and construed and enforced in accordance with, the interal laws of the State
of Florida, without regard to principles of conflicts of law.
	 
	 	9.	 	Jurisdiction and Venue. Any civil action or legal proceeding arising out of or relating
to this Note shall be brought in the courts of records of the State of Florida in Indian
River County. Each party consents to the jurisdiction or such court in any such civil
action or legal proceeding and waives any objections to the laying of venue of any such
civil action or legal proceeding in such court. Service of any court paper may be affected
on such party by mail, as provided in this Note, or in such other manner as may be provided
under applicable laws, rules of procedure or local rules.
	 
	 	10.	 	Waiver of a Jury Trial. The borrower acknowledges that any dispute or controversy
between the borrower and the lender would be based on difficult and complex issues of law
and fact. Accordingly, execution of acceptance hereof, as the case may be, each of the
lender and the borrower hereby waive trial by jury in any action or proceeding of any kind
or nature in any court or tribunal in which an action may be commenced by or against the
borrower arising out of this note.
	 
	 	11.	 	Entire Agreement. This agreement, and the Note represent the entire understanding and
agreement among the parties with respect to the subject matter of the same, and supersede
all other negotiations, understanding and representations (if any) made by and among such
parties.






IN WITNESS WHEREOF, the undersigned hereby executes this Note under seal as of the date written
above.



	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	XStream Systems, Inc.
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Christie Butler
	 

	 	 	 	 
	 

	 	Name:
	 	Christie Butler
	 

	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 
	 	 	LENDER:
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Darren Sylvia
	 

	 	 	 	 
	 

	 	 	 	Darren Sylvia







 












 





02/11/2008 Page 1




D. Sylvia Unsecured Promissory Note Exh. A




	 	 	 	 	 	 	 	 	 
	Compound Period
	 	 	:	 	 	Daily	 
	 
	 	 	 	 	 	 	 	 
	Nominal Annual Rate
	 	 	:	 	 	 	8.000	%
	Effective Annual Rate
	 	 	:	 	 	 	8.328	%
	Periodic Rate
	 	 	:	 	 	 	0.0219	%
	Daily Rate
	 	 	:	 	 	 	0.02192	%






CASH FLOW DATA




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Event	 	Start Date	 	Amount	 	Number	 	Period	 	End Date
	 
	 	1	 	 	Loan
	 	 	02/11/2008	 	 	 	35,831.60	 	 	 	1	 	 	 	 	 	 	 	 	 
	 	2	 	 	Payment
	 	 	06/15/2008	 	 	 	3,182.86	 	 	 	12	 	 	Monthly	 	 	05/15/2009	 






AMORTIZATION SCHEDULE — Normal Amortization




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Date	 	Payment	 	Interest	 	Principal	 	Balance
	 
	Loan	 	02/11/2008
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	35,831.60	 
	 	1	 	 	06/15/2008
	 	 	3,182.86	 	 	 	995.15	 	 	 	2,187.71	 	 	 	33,643.89	 
	 	2	 	 	07/15/2008
	 	 	3,182.86	 	 	 	221.92	 	 	 	2,960.94	 	 	 	30,682.95	 
	 	3	 	 	08/15/2008
	 	 	3,182.86	 	 	 	209.16	 	 	 	2,973.70	 	 	 	27,709.25	 
	 	4	 	 	09/15/2008
	 	 	3,182.86	 	 	 	188.89	 	 	 	2,993.97	 	 	 	24,715.28	 
	 	5	 	 	10/15/2008
	 	 	3,182.86	 	 	 	163.03	 	 	 	3,019.83	 	 	 	21,695.45	 
	 	6	 	 	11/15/2008
	 	 	3,182.86	 	 	 	147.90	 	 	 	3,034.96	 	 	 	18,660.49	 
	 	7	 	 	12/15/2008
	 	 	3,182.86	 	 	 	123.09	 	 	 	3,059.77	 	 	 	15,600.72	 
	 	2008	 	 	Totals
	 	 	22,280.02	 	 	 	2,049.14	 	 	 	20,230.88	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	8	 	 	01/15/2009
	 	 	3,182.86	 	 	 	106.35	 	 	 	3,076.51	 	 	 	12,524.21	 
	 	9	 	 	02/15/2009
	 	 	3,182.86	 	 	 	85.38	 	 	 	3,097.48	 	 	 	9,426.73	 
	 	10	 	 	03/15/2009
	 	 	3,182.86	 	 	 	58.02	 	 	 	3,124.84	 	 	 	6,301.89	 
	 	11	 	 	04/15/2009
	 	 	3,182.86	 	 	 	42.96	 	 	 	3,139.90	 	 	 	3,161.99	 
	 	12	 	 	05/15/2009
	 	 	3,182.86	 	 	 	20.87	 	 	 	3,161.99	 	 	 	0.00	 
	 	2009	 	 	Totals
	 	 	15,914.30	 	 	 	313.58	 	 	 	15,600.72	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grand Totals	 	 	38,194.32	 	 	 	2,362.72	 	 	 	35,831.60	 	 	 	 	 






 









 






02/11/2008 Page 2




D. Sylvia Unsecured Promissory Note Exh. A




Last interest amount increased by 0.01 due to rounding.





 











 





AMENDMENT




TO UNSECURED PROMISSORY NOTE




                    THIS AMENDMENT is entered into as of this 23rd day of July, 2009, between XStream Systems,
Inc., a Delaware corporation (the “Borrower”), and Darren Sylvia (the “Lender”) as defined in the
Unsecured Promissory Note dated February 11, 2008 (the “Promissory Note”)



                    WHEREAS, the Borrower and Lender are parties to that certain Promissory Note providing for the
payment of principal and interest amounts owed to the Lender; and



                    WHEREAS, the Borrower made four (4) payments under the Promissory Note and the remaining
principal balance is $24,715.28 and



                    WHEREAS, the Borrower and the Lender desire to further amend the provisions of the Promissory
Note in order to change the timing of the remaining payments made to the Lender;



                    NOW, THEREFORE, in consideration of the foregoing, the parties hereto hereby agree that the
Promissory Note shall be amended as follows:



                              Section 1 thereof shall be amended to read in its entirety as follows:




	 	1.	 	Payments. The Borrower shall pay principal and interest in monthly installments in
accordance with the attached schedule identified as Exhibit A to the Promissory Note for
the first 4 payments. The first payment shall be due and payable June 15, 2008. The three
(3) subsequent installment payments shall be due on the 15th day of each calendar month
beginning July 15, 2008, and ending September 15, 2008. The remaining payments shall be in
accordance with the attached schedule identified as Exhibit B to this Amendment and are
payable no later than the 15th day of each month beginning August 15, 2009 and
ending May 15, 2010. Each monthly principal payment will be paid to the Lender in a
payroll check with the gross amount of earnings being the amount identified as Principal on
the appropriate Exhibit A or Exhibit B. The amount paid to Lender will be net of all
required employment related taxes. The related interest due will be paid in a separate
check.





IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the
day and year first above written.




	 	 	 	 	 	 	 	 	 
	BORROWER:	 	 	 	LENDER:
	XSTREAM SYSTEMS, INC.	 	 	 	 	 	 
	a Delaware corporation	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Chris Butler
	 	 	 	By:
	 	/s/ Darren Sylvia
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Chris Butler
	 	 	 	 	 	                    Darren Sylvia
	 

	 	Title: Chief Financial Officer