Contract
EXHIBIT
10.02
THIS
NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE
MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY
APPLICABLE STATES SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO XXX.XXX, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
AMENDED
AND RESTATED SECURED CONVERTIBLE MINIMUM BORROWING
NOTE
FOR
VALUE
RECEIVED, XXX.XXX, INC., a Delaware corporation (the “Borrower”),
promises to pay to LAURUS MASTER FUND, LTD., c/o Ironshore Corporate Services
Ltd., P.O. Box 1234 G.T., Queensgate House, South Church Street, Grand Cayman,
Cayman Islands, Fax: 000-000-0000 (the “Holder”)
or its
registered assigns, on order, the sum of Four Million Dollars Two Hundred Fifty
Thousand Dollars ($4,250,000) without duplication of any amounts owing by
Borrower to Holder under the Revolving Note, together with any accrued and
unpaid interest hereon, on November 1, 2006 (the “Maturity
Date”).
Capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in the Security Agreement between Borrower and the Holder dated as of
August 31, 2004 (as amended, modified and supplemented from time to time, the
“Security
Agreement”).
The
following terms shall apply to this Amended and Restated Secured Convertible
Minimum Borrowing Note (this “Note”):
ARTICLE
I
INTEREST
RATE
1.1 Contract
Rate.
Subject
to Sections 5.3 and 6.7 hereof, interest payable on this Note shall accrue
at a
rate per annum equal to (a) seven percent (7%) through August 1, 2006 and (b)
ten percent (10.00%) after August 1, 2006 (the “Contract
Rate”).
1.2
Contract
Rate and Payments.
Interest shall be (i) calculated on the basis of a 360 day year, and (ii)
payable monthly, in arrears, commencing on October 1, 2004 and on the first
business day of each consecutive calendar month thereafter until the Maturity
Date (and on the Maturity Date), whether by acceleration or otherwise (each,
a
“Contract
Rate Payment Date”).
ARTICLE
II
ADVANCES,
PAYMENTS UNDER NOTE
2.1. Mechanics
of Advances.
All
Loans evidenced by this Note shall be made in accordance with the terms and
provisions of the Security Agreement.
2.2. Fixed
Conversion Price.
For
purposes hereof, subject to Section 3.5 hereof, the initial “Fixed
Conversion Price”
means
$0.28 (105% of the average of the closing price of the Common Stock for the
ten
(10) trading days immediately prior to the date hereof).
2.3. Payments
in Common Stock.
Subject
to Sections 2.4 and 3.2, if the average closing price of the Common Stock on
the
Principal Market is at least 115% of the Closing Price, with the product rounded
to the nearest xxxxx, for any period of ten (10) consecutive trading days (each,
a “Determination
Period”),
then
on the next trading day following the completion of each such Determination
Period, the Holder shall provide the Borrower with written notice (a
“Call
Notice”)
requiring the conversion at the Fixed Conversion Price of all (or such lesser
amount as may be necessary to comply with the provisions of Section 3.2) of
the
outstanding interest and principal of this Note as of the date set forth in
the
Call Notice (the “Call
Date”)
(it
being acknowledged and agreed that Holder shall specify any limitation imposed
by Section 3.2 in its Call Notice, and, so long as a Determination Period shall
be continuing, as soon as Holder reduces its holdings of Common Stock so as
not
to be in violation of Section 3.2, Holder shall deliver a subsequent Call Notice
requiring the conversion of the remaining outstanding interest and principal
of
this Note up to the limitations of Section 3.2). The Call Date associated with
any Call Notice shall be at least three (3) trading days following the date
of
the Call Notice. On the Call Date, the Borrower shall deliver to the Holder
certificates evidencing the shares of Common Stock issued in satisfaction of
the
principal and interest being retired. Notwithstanding the foregoing, the
Borrower’s issuance of shares of Common Stock in payment of its obligations
under this Note pursuant to this Section 2.3 shall be subject to the limitation
that the number of shares of Common Stock to be issued in connection with any
Call Notice shall not exceed thirty percent (30%) of the aggregate dollar
trading volume (the “Trading
Volume Limitation”)
of the
Common Stock (as such volume is reported by Bloomberg, L.P.) during the
Determination Period corresponding to such Call Notice. Notwithstanding anything
herein to the contrary, the parties agree that if any conversion hereunder
is
limited by the Trading Volume Limitation and the closing price of the Common
Stock on the Principal Market shall continue to be at least 115% of the Closing
Price beyond the Determination Period for which an initial Call Notice shall
have been delivered, a new Determination Period shall occur each trading day
thereafter on a rolling ten (10) trading day basis until such time as the Common
Stock on the Principal Market shall cease to trade at least at 115% of the
Closing Price; provided, however, that if new Trading Volume Limitation(s)
shall
be calculated on a rolling basis for a five (5) trading day period, no more
than
an aggregate of two (2) conversions at such new Trading Volume Limitation(s)
may
be made during any calendar month. For purposes hereof, the “Closing Price”
means $0.27.
2.4. No
Effective Registration.
Notwithstanding anything to the contrary herein, no repayment of any amount
hereunder in shares of Common Stock shall be made if at any time from the Call
Date for such payment through the date upon which such payment is made by
delivery of certificates for shares of Common Stock there fails to exist an
effective
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current
Registration Statement (as defined in the Registration Rights Agreement)
covering the shares of Common Stock to be issued, or if an Event of Default
(as
defined in Article V hereof) hereunder exists and is continuing, unless such
requirement is otherwise waived in writing by the Holder in whole or in part
at
the Holder’s option.
2.5. Optional
Prepayment in Cash.
(a)
Subject to Section 2.5(b) hereof, the Borrower will have the option of prepaying
this Note in whole or in part (“Optional
Prepayment ”)
by
paying to the Holder a sum of money equal to the sum of (i) one hundred fifteen
percent (115%) of the outstanding principal amount of this Note to be prepaid
and (ii) any accrued and unpaid interest on such outstanding principal amount
of
this Note and any and all other sums due accrued or payable to Holder under
the
Note, the Security Agreement or any other Ancillary Agreement (as defined in
the
Security Agreement) (the “Prepayment Amount”)
on the
day written notice of redemption (the “Notice
of Prepayment ”)
is
given to the Holder
(b)
If a Registration Statement (as defined in the Registration Rights Agreement)
covering the Securities has been filed as required by the Registration Rights
Agreement and has been declared and remains effective, the Borrower will have
the option irrespective of 2.5(a) above of prepaying this Note in whole or
in
part by paying to the Holder a sum of money equal to the sum of (i) one hundred
five percent (105%) of the outstanding principal amount of this Note to be
prepaid by delivering a Notice of Prepayment to the Holder and (ii) any accrued
and unpaid interest on such outstanding principal amount of this Note and any
and all other sums due accrued or payable to Holder under this Note, the
Security Agreement or any other Ancillary Agreement (as defined in the Security
Agreement).
(c)
Any Notice of Prepayment delivered pursuant to this Section 2.5 shall specify
the date for such Optional Prepayment (the “Prepayment
Payment Date”)
which
date shall be seven (7) days after the date of the Notice of Prepayment (the
“Prepayment
Period”).
A
Notice of Prepayment shall not be effective with respect to any portion of
this
Note for which the Holder has previously delivered a Notice of Conversion
(defined below) pursuant to Section 3.1, or for conversions made by the Holder
pursuant to Section 3.1 during the Prepayment Period. The Prepayment Amount
shall be determined as if such Xxxxxx’s conversion elections had been completed
immediately prior to the date of the Notice of Prepayment. On the Prepayment
Payment Date, the Prepayment Amount (plus any additional interest and fees
accruing on the Notes during the Prepayment Period) must be irrevocably paid
in
full in immediately available funds to the Holder. In the event the Borrower
fails to pay the Prepayment Amount on the Prepayment Payment Date, then such
Prepayment Notice will be null and void.
ARTICLE
III
HOLDER’S
CONVERSION RIGHTS
3.1. Optional
Conversion.
Subject
to the terms of this Article III, the Holder shall have the right, but not
the
obligation, at any time until the Maturity Date, or thereafter during an Event
of Default, and, subject to the limitations set forth in Section 3.2 hereof,
to
convert all or any portion of the outstanding principal amount under this Note
and/or accrued interest and fees due and payable into fully paid and
nonassessable shares of the Common Stock
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at
the
then applicable Fixed Conversion Price. The shares of Common Stock to be issued
upon such conversion are herein referred to as the “Conversion
Shares.”
3.2
Conversion
Limitation.
A.
4.99%
Limitation.
Notwithstanding anything contained herein to the contrary, the Holder shall
not
be entitled to convert pursuant to the terms of Section 3.1 of this Note an
amount that would be convertible into that number of shares of Common Stock
which, when added to the number of shares of Common Stock otherwise beneficially
owned by such Holder (with respect to such Holder, such number of shares of
Common Stock herein referred to as the Holder’s “Beneficial
Ownership”)
including those issuable upon exercise of Warrants held by such Holder would
exceed 4.99% of the outstanding shares of Common Stock of the Borrower at the
time of conversion. For the purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of
the
Exchange Act and Regulation 13d-3 thereunder. In connection with any obligation
of the Borrower to issue to the Holder shares of Common Stock pursuant to the
terms hereof, the Holder will inform the Borrower of such Holder’s Beneficial
Ownership. Subject to Section 3.2 B below, the conversion limitation described
in this Section 3.2A shall automatically become null and void without any notice
to Borrower upon the occurrence and during the continuance beyond any applicable
grace period of an Event of Default, or upon 75 days prior notice to the
Borrower by the Holder.
B.
19.99%
Limitation.
Notwithstanding anything contained herein to the contrary, the number of shares
of Common Stock issuable by the Borrower and acquirable by the Holder at a
price
below $0.24 per share pursuant to the terms of this Note, the Security Agreement
or any Ancillary Agreement, shall not exceed an aggregate of 19.99% of the
total
issued and outstanding shares (calculated in accordance with applicable
Principal Market rules and regulations) of the Borrower’s Common Stock (subject
to appropriate adjustment for stock splits, stock dividends, or other similar
recapitalizations affecting the Common Stock) or otherwise violate the
Borrower’s obligations under the rules and regulations of the Principal Market
(the “Maximum
Common Stock Issuance”),
unless Stockholder approval shall first be obtained in accordance with Section
13(u) of the Security Agreement. Borrower shall not be obligated to issue such
shares of Common Stock in excess of the Maximum Common Stock Issuance unless
and
until the Borrower obtains the Stockholder Approval in accordance with Section
13(u) of the Security Agreement and applicable Principal Market rules and
regulations.
3.3
Mechanics
of Xxxxxx’s Conversion.
In the
event that the Holder elects to convert this Note into Common Stock, the Holder
shall give notice of such election by delivering an executed and completed
notice of conversion (“Notice
of Conversion”)
to the
Borrower and such Notice of Conversion shall provide a breakdown in reasonable
detail of the principal amount, accrued interest and fees that are being
converted and include the Holder’s then current Beneficial Ownership. On each
Conversion Date (as hereinafter defined) and in accordance with its Notice
of
Conversion, the Holder shall make the appropriate reduction to the principal
amount, accrued interest and fees as entered in its records and shall provide
written notice thereof to the Borrower within two (2) business days after the
Conversion Date. Each date on which a Notice of Conversion is delivered or
telecopied to the Borrower in accordance with the
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provisions
hereof shall be deemed a Conversion Date (the “Conversion
Date”).
A
form of Notice of Conversion to be employed by the Holder is annexed hereto
as
Exhibit A. Pursuant to the terms of the Notice of Conversion, the Borrower
will
issue instructions to the transfer agent accompanied by an opinion of counsel
within three (3) business days of the date of the delivery to Borrower of the
Notice of Conversion and shall cause the transfer agent to transmit the
certificates representing the Conversion Shares to the Holder by crediting
the
account of the Holder’s designated broker with the Depository Trust Corporation
(“DTC”)
through its Deposit Withdrawal Agent Commission (“DWAC”)
system
within three (3) business days after receipt by the Borrower of the Notice
of
Conversion (the “Delivery
Date”).
In
the case of the exercise of the conversion rights set forth herein the
conversion privilege shall be deemed to have been exercised and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued upon
the date of receipt by the Borrower of the Notice of Conversion. The Holder
shall be treated for all purposes as the record holder of such Common Stock,
unless the Holder provides the Borrower written instructions to the
contrary.
3.4
Late
Payments.
The
Borrower understands that a delay in the delivery of the shares of Common Stock
in the form required pursuant to this Article III beyond the Delivery Date
could
result in economic loss to the Holder. As compensation to the Holder for such
loss, the Borrower agrees to pay late payments to the Holder for late issuance
of such shares in the form required pursuant to this Article III upon conversion
of this Note, in the amount equal to $500 per business day after the Delivery
Date. The Borrower shall pay any payments incurred under this Section in
immediately available funds upon demand.
3.5
Adjustment
Provisions.
The
Fixed Conversion Price and number and kind of shares or other securities to
be
issued upon conversion determined pursuant to Section 2.2 shall be subject
to
adjustment from time to time upon the happening of certain events while this
conversion right remains outstanding, as follows:
A. Reclassification,
etc.
If the
Borrower at any time shall, by reclassification or otherwise, change the Common
Stock into the same or a different number of securities of any class or classes,
this Note, as to the unpaid principal amount and accrued interest thereon,
shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock (i) immediately prior to or
(ii)
immediately after such reclassification or other change at the sole election
of
the Holder.
B. Stock
Splits, Combinations and Dividends.
If the
shares of Common Stock are subdivided or combined into a greater or smaller
number of shares of Common Stock, or if a dividend is paid on the Common Stock
or any preferred stock issued by the Borrower in shares of Common Stock, the
Fixed Conversion Price and for the purposes of Section 2.3 hereof, the Closing
Price, shall be proportionately reduced in case of subdivision of shares or
stock dividend or proportionately increased in the case of combination of
shares, in each such case by the ratio which the total number of shares of
Common Stock outstanding immediately after such event bears to the total number
of shares of Common Stock outstanding immediately prior to such
event.
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C. Share
Issuances.
Subject
to the provisions of this Section 3.5, if the Borrower shall at any time prior
to the conversion or repayment in full of the Principal Amount issue any shares
of Common Stock or securities convertible into Common Stock to a person other
than the Holder (except
pursuant to: (i) Subsections A or B above; (ii) securities issued, or deemed
issued (as provided below), to directors, officers, employees or consultants
of
the Borrower or a subsidiary of the Borrower in connection with their service
as
directors of the Borrower or a subsidiary of the Borrower, their employment
by
the Borrower or a subsidiary of the Borrower or their retention as consultants
by the Borrower or a subsidiary of the Borrower under any stock agreement and/or
stock plan adopted by the Borrower, plus such number of shares of Common Stock
which are repurchased by the Borrower from such persons pursuant to contractual
rights held by the Borrower and at repurchase prices not exceeding the
respective original purchase prices paid by such persons to the Borrower
therefor; (iii) shares of Common Stock issuable upon exercise of options,
warrants or other obligations outstanding as of the date hereof; (iv)
shares
of
Common Stock issuable upon the conversion of the Borrower’s Preferred Stock in
existence on the date hereof; and (v) shares of Common Stock issued as payment
of interest in accordance with the terms of the notes issued pursuant to that
Note and Warrant Purchase Agreement dated as of July 18, 2003 by and among
the
Borrower and the investors named therein) for a consideration per share (the
“Offer
Price”)
less
than the Fixed Conversion Price in effect at the time of such issuance, then
the
Fixed Conversion Price shall be immediately reset pursuant to the formula
below:
If
the
Corporation issues any additional shares pursuant to Section 3.5C above then,
and thereafter successively upon each such issue, the Fixed Conversion Price
shall be adjusted by multiplying the then applicable Fixed Conversion Price
by
the following fraction:
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A
+
B
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(A
+ B) + [((C - D) x B) / C]
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A
= Total
amount of shares convertible pursuant to this Note.
B
=
Actual shares sold in the offering
C
= Fixed
Conversion Price
D
=
Offering price
For
purposes hereof, the issuance of any security of the Borrower convertible into
or exercisable or exchangeable for Common Stock shall result in an adjustment
to
the Fixed Conversion Price at the time of issuance of such securities.
Notwithstanding the immediately foregoing, no adjustment to the then applicable
Fixed Conversion Price shall be made if such adjustment, as calculated pursuant
to this Section 3.5(C), would result in a change to the then applicable Fixed
Conversion Price of less than $0.01.
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D. Computation
of Consideration.
For
purposes of any computation respecting consideration received pursuant to
Subsection C above, the following shall apply:
(a) in
the
case of the issuance of shares of Common Stock for cash, the consideration
shall
be the amount of such cash, provided that in no case shall any deduction be
made
for any commissions, discounts or other expenses incurred by the Borrower for
any underwriting of the issue or otherwise in connection therewith;
(b) in
the
case of the issuance of shares of Common Stock for a consideration in whole
or
in part other than cash, the consideration other than cash shall be deemed
to be
the fair market value thereof as determined in good faith by the Board of
Directors of the Borrower (irrespective of the accounting treatment thereof);
and
(c) Upon
any
such exercise, the aggregate consideration received for such securities shall
be
deemed to be the consideration received by the Borrower for the issuance of
such
securities plus the additional minimum consideration, if any, to be received
by
the Borrower upon the conversion or exchange thereof (the consideration in
each
case to be determined in the same manner as provided in clauses (a) and (b)
of
this Subsection (D)).
3.6
Reservation
of Shares.
During
the period the conversion right exists, the Borrower will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of Common Stock upon the full conversion of this Note. The
Borrower represents that upon issuance, such shares will be duly and validly
issued, fully paid and non-assessable. The Borrower agrees that its issuance
of
this Note shall constitute full authority to its officers, agents, and transfer
agents who are charged with the duty of executing and issuing stock certificates
to execute and issue the necessary certificates for shares of Common Stock
upon
the conversion of this Note.
3.7
Registration
Rights.
The
Holder has been granted registration rights with respect to the shares of Common
Stock issuable upon conversion of this Note as more fully set forth in a
Registration Rights Agreement .
ARTICLE
IV
EVENTS
OF DEFAULT
The
occurrence of any of the events set forth in Sections 4.1 and 4.2, inclusive,
shall be an Event of Default (“Event
of Default”):
4.1
Failure
to Pay Principal, Interest or other Fees.
The
Borrower fails to pay when due any installment of principal, interest or other
fees hereon or on any other promissory note issued pursuant to the Security
Agreement, or the Borrower fails to pay when due any amount due under any other
promissory note issued by the Borrower, when due in accordance with the terms
of
such note.
4.2
Other
Events of Default.
The
occurrence of any other Event of Default as set forth in Section 19 of the
Security Agreement.
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DEFAULT
RELATED PROVISIONS
4.3
Payment
Grace Period.
The
Borrower shall have a three (3) business day grace period to pay any monetary
amounts due under this Note.
4.4
Conversion
Privileges.
The
conversion obligations set forth in Article II and the conversion privileges
set
forth in Article III shall remain in full force and effect immediately from
the
date hereof and until this Note is paid in full.
ARTICLE
V
DEFAULT
PAYMENTS
5.1. Default
Payment.
If an
Event of Default occurs and is continuing beyond any applicable grace period,
the Holder, at its option, may elect, in addition to all rights and remedies
of
Holder under the Security Agreement and all obligations of Borrower under the
Security Agreement, to require the Borrower to make a Default Payment
(“Default
Payment”).
The
Default Payment shall be 112% of the outstanding principal amount of the Note,
plus accrued but unpaid interest, all other fees then remaining unpaid, and
all
other amounts payable hereunder. The Default Payment shall be applied first
to
any fees due and payable to Holder pursuant to the Notes or the Ancillary
Agreements, then to accrued and unpaid interest due on the Notes and then to
outstanding principal balance of the Notes.
5.2. Default
Payment Date and Default Notice Period.
The
Default Payment shall be due and payable on the fifth business day after an
Event of Default as defined in Article IV (“Default
Payment Date”)
has
occurred and is continuing beyond any applicable grace period. The period
between date upon which of an Event of Default has occurred and is continuing
beyond any applicable grace period and the Default Payment Date shall be the
“Default
Period.”
If
during the Default Period, the Borrower cures the Event of Default, the Event
of
Default will no longer exist and any additional rights the Holder had triggered
by the occurrence and continuance of an Event of Default will no longer exist
including, without limitation, the right to receive the Default Payment. If
the
Event of Default is not cured during the Default Notice Period, all amounts
payable hereunder shall be due and payable on the Default Payment Date, all
without further demand, presentment or notice, or grace period, all of which
hereby are expressly waived.
5.3.
Default Interest Rate.
Following the occurrence and during the continuance of an Event of Default,
interest on this Note shall automatically be increased to the Default Rate,
and
all outstanding Obligations under this Note, including unpaid interest, shall
continue to accrue interest from the date of such Event of Default at such
interest rate applicable to such Obligations until such Event of Default is
cured or waived.
5.4. Cumulative
Remedies.
The
remedies under this Note shall be cumulative.
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ARTICLE
VI
MISCELLANEOUS
6.1. 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.
6.2. Notices.
Any
notice herein required or permitted to be given shall be in writing and provided
in accordance with the terms of the Security Agreement.
6.3. 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, and any successor instrument
as it may be amended or supplemented.
6.4. 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, and
may
be assigned by the Holder in accordance with the requirements of the Security
Agreement.
6.5. Cost
of Collection.
If
default is made in the payment of this Note, the Borrower shall pay the Holder
hereof reasonable costs of collection, including reasonable attorneys’
fees.
6.6. Governing
Law.
This
Note shall be governed by and construed in accordance with the laws of the
State
of New York, without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of
New
York or in the federal courts located in the state of New York. Both parties
and
the individual signing this Note 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
court
order in favor of Xxxxxx.
6.7. 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 permitted by applicable
law. In the event that the rate of interest required to be paid or other
9
charges
hereunder exceed the maximum permitted by such law, any payments in excess
of
such maximum shall be credited against amounts owed by the Borrower to the
Holder and thus refunded to the Borrower.
6.8. Security
Interest and Guarantee.
The
Holder has been granted a security interest in certain assets of the Borrower
and its Subsidiaries as more fully described in the Security
Agreement.
6.9. Construction.
Each
party acknowledges that its legal counsel participated in the preparation of
this Note and, therefore, stipulates that the rule of construction that
ambiguities are to be resolved against the drafting party shall not be applied
in the interpretation of this Note to favor any party against the
other.
[Balance
of page intentionally left blank; signature page follows.]
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IN
WITNESS WHEREOF,
the
Borrower has caused this Amended and Restated Secured Convertible Minimum
Borrowing Note to be signed in its name effective as of this 2nd day of June,
2006.
XXX.XXX,
INC.
By: /s/
Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
CFO
WITNESS:
/s/
Xxxx X.
Xxxxxxx
Xxxx
X.
Xxxxxxx
11
NOTICE
OF CONVERSION
(To
be
executed by the Holder in order to convert the Note)
The
undersigned hereby elects to convert $_________ of the principal and $_________
of the interest due on the Secured Convertible Minimum Borrowing Note issued
by
XXX.XXX, INC. on August 31, 2004, as amended, into Shares of Common Stock of
XXX.XXX, INC. (the “Borrower”) according to the conditions set forth in such
Note, as of the date written below.
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Date
of Conversion:
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Conversion
Price:
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Shares
To Be Delivered:
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Signature:
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Print
Name:
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Address:
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Holder
DWAC instructions
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