Exhibit 10.3
THIS NOTE AND THE COMMON STOCK 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 STOCK 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 STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO CREATIVE VISTAS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED CONVERTIBLE TERM NOTE
FOR VALUE RECEIVED, CREATIVE VISTAS, INC., an Arizona corporation (the
"BORROWER"), hereby promises to pay to LAURUS MASTER FUND, LTD., M&C Corporate
Services Limited, P.O. Box 309 GT, Xxxxxx House, South Church Street, Xxxxxx
Town, Grand Cayman, Cayman Islands, Fax: 000-000-0000 (the "HOLDER") or its
registered assigns or successors in interest, on order, the sum of Four Million
Five Hundred Thousand Dollars ($4,500,000), together with any accrued and unpaid
interest hereon, on September 30, 2007 (the "MATURITY DATE") if not sooner paid.
The original principal amount of this Note subject to amortizing payments
pursuant to Section 1.2 hereof is hereinafter referred to as the "AMORTIZING
PRINCIPAL AMOUNT" and the remaining original principal amount of this Note is
hereinafter referred to as the "NON-AMORTIZING PRINCIPAL AMOUNT."
Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in that certain Securities Purchase Agreement
dated as of the date hereof between the Borrower and the Holder (the "PURCHASE
AGREEMENT").
The following terms shall apply to this Note:
ARTICLE I
INTEREST & AMORTIZATION
1.1 (a) Interest Rate. Subject to Sections 1.1(b), 4.11 and 5.6 hereof,
interest payable on this Note shall accrue at a rate per annum (the "Interest
Rate") equal to the "prime rate" published in The Wall Street Journal from time
to time, plus two percent (2%). The prime rate shall be increased or decreased
as the case may be for each increase or decrease in the prime rate in an amount
equal to such increase or decrease in the prime rate; each change to be
effective as of the day of the change in such rate. Subject to Section 1.1(b)
hereof, the Interest Rate shall not be less than six percent (6%). Interest
shall be calculated on the basis of a 360 day year. Interest shall accrue but
not be payable during the period commencing on the date hereof and ending on
October 31, 2004. Interest on the Amortizing Principal Xxxxxx shall be payable
monthly, in arrears, commencing on November 1, 2004 and on the first day of each
consecutive calendar month thereafter (each, a "REPAYMENT DATE") and on the
Maturity Date, whether by acceleration or otherwise. Accrued interest on the
Non-Amortizing Principal Amount shall be payable only on the Maturity Date or,
in the event of the redemption or conversion of all or any portion of the
Non-Amortizing Principal
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Amount, accrued interest on the amount so redeemed or converted shall be paid on
the date of redemption or conversion, as the case may be.
1.1 (b) Interest Rate Adjustment. The Interest Rate shall be subject to
adjustment on the last business day of each month hereafter until the Maturity
Date (each a "Determination Date"). If on any Determination Date (i) the
Borrower shall have registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the shares of Common Stock underlying each of the conversion
of the entire amount of this Note and the exercise of the Warrant and related
Option issued in connection herewith on a registration statement declared
effective by the Securities and Exchange Commission (the "SEC"), and (ii) the
market price (the "Market Price") of the Common Stock as reported by Bloomberg,
L.P. on the Principal Market (as defined below) for the five (5) consecutive
trading days immediately preceding such Determination Date exceeds the then
applicable Fixed Conversion Price by at least twenty five percent (25%), the
Interest Rate for the succeeding calendar month shall automatically be reduced
by 25 basis points (25 b.p.) (0.25%) for each incremental twenty five percent
(25%) increase in the Market Price of the Common Stock above the then applicable
Fixed Conversion Price. Notwithstanding the foregoing (and anything to the
contrary contained in herein), in no event shall the Interest Rate be less than
zero percent (0%).
1.2 Minimum Monthly Principal Payments. Amortizing payments of the
outstanding principal amount of this Note not contained in the Restricted
Account (as defined in the Restricted Account Agreement) shall begin on April 1,
2005 and shall recur on each succeeding Repayment Date thereafter until the
Amortizing Principal Amount has been repaid in full, whether by the payment of
cash or by the conversion of such principal into Common Stock pursuant to the
terms hereof. Subject to Section 2.1 and Article 3 below, on each Repayment
Date, the Borrower shall make payments to the Holder in the amount of $100,000
(the "MONTHLY PRINCIPAL AMOUNT"), together with any accrued and unpaid interest
then due on such portion of the Amortizing Principal Amount plus any and all
other amounts which are then owing under this Note that have not been paid (the
Monthly Principal Amount, together with such accrued and unpaid interest and
such other amounts, collectively, the "MONTHLY AMOUNT") ; provided that,
following a release of an amount of funds from the Restricted Account (as
defined in the Restricted Account Agreement) for the purposes set forth in the
Restricted Account Side Letter (other than with respect to a release that occurs
as a result of a conversion of any Principal Amount represented by funds
contained in the Restricted Account) (each, a "RELEASE AMOUNT") each Monthly
Principal Amount due on any Repayment Date following any such release shall be
increased by an amount equal to (x) such Release Amount divided by (y) the sum
of (I) the number of Repayment Dates remaining until the Maturity Date plus (II)
one (1). Any Amortizing Principal Amount that remains outstanding on the
Maturity Date shall be due and payable on the Maturity Date.
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ARTICLE II
CONVERSION REPAYMENT
2.1 (a) Payment of Monthly Amount in Cash or Common Stock. If the
Monthly Amount (or a portion thereof of such Monthly Amount if such portion of
the Monthly Amount would have been converted into shares of Common Stock but for
Section 3.2) is required to be paid in cash pursuant to Section 2.1(b), then the
Borrower shall pay the Holder the Monthly Amount due on such Repayment Date in
cash. If the Monthly Amount (or a portion of such Monthly Amount if not all of
the Monthly Amount may be converted into shares of Common Stock pursuant to
Section 3.2) is required to be paid in shares of Common Stock pursuant to
Section 2.1(b), the number of such shares to be issued by the Borrower to the
Holder on such Repayment Date (in respect of such portion of the Monthly Amount
converted into in shares of Common Stock pursuant to Section 2.1(b)), shall be
the number determined by dividing (x) the Monthly Amount converted into shares
of Common Stock, by (y) the then applicable Fixed Conversion Price. For purposes
hereof, the initial "FIXED CONVERSION PRICE" means $3.00.
(b) Monthly Amount Conversion Guidelines. Subject to Sections
2.1(a), 2.2 and 3.2 hereof, the Borrower will pay the Monthly Amount due to the
Holder on each Repayment according to the following guidelines (collectively,
the "CONVERSION CRITERIA"): (i) the average closing price of the Common Stock as
reported by Bloomberg, L.P. on the Principal Market for the five (5) consecutive
trading days immediately preceding such Notice Date shall be greater than or
equal to 110% of the Fixed Conversion Price and (ii) the amount of such
conversion does not exceed twenty five percent (25%) of the aggregate dollar
trading volume of the Common Stock for the twenty two (22) day trading period
immediately preceding delivery of a Repayment Notice. If the Conversion Criteria
are not met, the Holder shall convert only such part of the Monthly Amount that
meets the Conversion Criteria. Any part of the Monthly Amount due on a Repayment
Date that the Holder has not been able to convert into shares of Common Stock
due to failure to meet the Conversion Criteria, shall be paid by the Borrower in
cash on such Repayment Date, within three (3) business days of the applicable
Repayment Date.
(c) Subject to Sections 2.1, 2.2 and 3.2 hereof, if the
average closing price of the Common Stock on the Principal Market is less than
one hundred ten percent (110%) of the Fixed Conversion Price for the five (5)
trading days immediately preceding a Repayment Date, then the Holder shall
provide the Borrower with a Repayment Notice requiring the conversion of the
Monthly Amount (together with accrued and unpaid interest and applicable fees),
as of the date of the Repayment Notice at a Fixed Conversion Price equal to the
lesser of (i) eighty five percent (85%) of the average of the closing prices of
the Common Stock during the twenty (20) trading days immediately prior to the
date of the delivery of such respective Repayment Notice and (ii) eighty five
percent (85%) of the average of the three closing prices of the Common Stock for
the three trading days immediately prior to the date of the delivery of such
respective Repayment Notice; provided, however, that such conversion of the
Monthly Amount due on each Repayment Date does not exceed twenty five percent
(25%) of the aggregate dollar trading volume of the Common Stock for the twenty
two (22) day trading period immediately preceding delivery of a Repayment
Notice. Any part of the Monthly Amount due on such Repayment Date that the
Holder has not been able to
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convert into shares of Common Stock as set forth in this Section 2.1(c) shall be
paid in cash on such Repayment Date, within three (3) business days of the
applicable Repayment Date. In no event shall the Fixed Conversion Price for the
purposes of this Section 2.1(c) be less than $2.20.
(c) Application of Conversion Amounts. Any amounts converted
by the Holder pursuant to Section 2.1(b) shall be deemed to constitute payments
of, or applied against, (i) first, outstanding fees, (ii) second, accrued
interest on the Amortizing Principal Xxxxxx, (iii) third, accrued interest on
the Non-Amortizing Principal Xxxxxx and (iv) fourth, the Amortizing Principal
Xxxxxx.
2.2 No Effective Registration. Notwithstanding anything to the contrary
herein, no amount payable hereunder may be converted into Common Stock unless
(a) either (i) an effective current Registration Statement (as defined in the
Registration Rights Agreement) covering the shares of Common Stock to be issued
in satisfaction of such obligations exists, or (ii) an exemption from
registration of the Common Stock is available pursuant to Rule 144 of the
Securities Act, and (b) no Event of Default hereunder exists and is continuing,
unless such Event of Default is cured within any applicable cure period or is
otherwise waived in writing by the Holder in whole or in part at the Holder's
option.
2.3 Optional Redemption of Amortizing Principal Amount. The Borrower
will have the option of prepaying the outstanding Amortizing Principal Amount
("OPTIONAL AMORTIZING REDEMPTION"), in whole or in part, by paying to the Holder
a sum of money equal to one hundred twenty five percent (125%) of the Amortizing
Principal Amount to be redeemed, together with accrued but unpaid interest
thereon and any and all other sums due, accrued or payable to the Holder arising
under this Note, the Purchase Agreement or any Related Agreement (the
"AMORTIZING REDEMPTION AMOUNT") on the day written notice of redemption (the
"NOTICE OF AMORTIZING REDEMPTION") is given to the Holder. The Notice of
Amortizing Redemption shall specify the date for such Optional Amortizing
Redemption (the "AMORTIZING REDEMPTION PAYMENT DATE"), which date shall be not
less than seven (7) business days after the date of the Notice of Amortizing
Redemption (the "REDEMPTION PERIOD"). A Notice of Amortizing Redemption shall
not be effective with respect to any portion of the Amortizing Principal Amount
for which the Holder has a pending election to convert pursuant to Section 3.1,
or for conversions initiated or made by the Holder pursuant to Section 3.1
during the Redemption Period. The Amortizing Redemption Amount shall be
determined as if such Xxxxxx's conversion elections had been completed
immediately prior to the date of the Notice of Amortizing Redemption. On the
Amortizing Redemption Payment Date, the Amortizing Redemption Amount shall be
paid in good funds to the Holder. In the event the Borrower fails to pay the
Amortizing Redemption Amount on the Amortizing Redemption Payment Date as set
forth herein, then such Notice of Amortizing Redemption will be null and void.
2.4 Optional Redemption of Non-Amortizing Principal Amount. The
Borrower will have the option of repaying the outstanding Non-Amortizing
Principal Amount ("OPTIONAL NON-AMORTIZING REDEMPTION"), in whole or in part, by
paying the Holder a sum of money equal to one hundred twenty percent (120%) of
the Non-Amortizing Principal Amount to be redeemed, together with accrued but
unpaid interest thereon (the "NON-AMORTIZING REDEMPTION AMOUNT") on the day
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written notice of redemption (the "NOTICE OF NON-AMORTIZING REDEMPTION") is
giving to the Holder. The Notice of Non-Amortizing Redemption shall specify the
date for such Optional Non-Amortizing Redemption (the "NON-AMORTIZING REDEMPTION
DATE"), which date shall be not less than seven (7) business days after the date
of the Notice of Non-Amortizing Redemption (the "NON-AMORTIZING REDEMPTION
PERIOD"). A Notice of Non-Amortizing Redemption shall not be effective with
respect to any portion of the Non-Amortizing Principal Amount for which the
Holder has a pending election to convert pursuant to Section 3.1, or for
conversions initiated or made by the Holder pursuant to Section 3.1 during the
Non-Amortizing Redemption Period. The Non-Amortizing Redemption Amount shall be
determined as if the Holder's conversion elections had been completed
immediately prior to the date of the Notice of Non-Amortizing Redemption. On the
Non-Amortizing Redemption Date, the Non-Amortizing Redemption Amount shall be
paid (i) in good funds to the Holder, (ii) by furnishing the Holder written
direction to notify the bank holding the Restricted Account to release from the
Restricted Account and deliver to the Holder a sum of money equal to the
Non-Amortizing Redemption Amount, or (iii) if the amount on deposit in the
Restricted Account is less than the Non-Amortizing Redemption Amount, by
furnishing the Holder written direction to notify the bank holding the
Restricted Account to release all amounts on deposit in the Restricted Account
to the Holder and delivering to the Holder good funds in an amount equal to the
balance of the Non-Amortizing Redemption Amount.
ARTICLE III
CONVERSION RIGHTS
3.1. Holder's Conversion Rights. Subject to Section 2.2, the Holder
shall have the right, but not the obligation, to convert all or any portion of
the then aggregate outstanding Principal Amount of this Note, together with
interest and fees due hereon, into shares of Common Stock, subject to the terms
and conditions set forth in this Article III. The Holder may exercise such right
by delivery to the Borrower of a written Notice of Conversion pursuant to
Section 3.3. The shares of Common Stock to be issued upon such conversion are
herein referred to as the "CONVERSION SHARES."
3.2 Conversion Limitation. Notwithstanding anything contained herein to
the contrary, the Holder shall not be entitled to convert, or be required to
receive pursuant to the terms of this Note, an amount that would be convertible
into that number of shares of Common Stock which, at such time, would, when
added to the number of shares of Common Stock otherwise beneficially owned by
such Holder including those issuable upon exercise of warrants held by such
Holder, 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. The conversion
limitation described in this Section 3.2 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.
3.3 Mechanics of Xxxxxx's Conversion. (a) In the event that the Holder
elects to convert any amounts outstanding under this Note into Common Stock, the
Holder shall give notice of such
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election by delivering an executed and completed notice of conversion (a "NOTICE
OF CONVERSION") to the Borrower, which Notice of Conversion shall provide a
breakdown in reasonable detail of the Principal Amount, accrued interest and
fees being converted. 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
provisions hereof shall be deemed a "CONVERSION DATE". A form of Notice of
Conversion to be employed by the Holder is annexed hereto as Exhibit A.
(b) Pursuant to the terms of a Notice of Conversion, the
Borrower will issue instructions to the transfer agent accompanied by an opinion
of counsel, if so required by the Borrower's transfer agent, within two (2)
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 (if eligible, such certificate
shall be delivered 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 shares of Common Stock,
unless the Holder provides the Borrower written instructions to the contrary.
3.4 Conversion Mechanics.
(a) The number of shares of Common Stock to be issued upon
each conversion of this Note pursuant to this Article III shall be determined by
dividing that portion of the Principal Amount and interest and fees to be
converted, if any, by the then applicable Fixed Conversion Price. In the event
of any conversions of outstanding obligations under this Note in part pursuant
to this Article III, such conversions shall be deemed to constitute conversions
(i) first, of the Monthly Amount for the current calendar month, (ii) then, of
the accrued interest on the Non-Amortizing Principal Xxxxxx ,(iii) then of
outstanding Amortizing Principal Amount, by applying the conversion amount to
Monthly Principal Amounts for the remaining Repayment Dates in chronological
order and (iv) then, of outstanding Non-Amortizing Principal Xxxxxx..
(b) The Fixed Conversion Price and number and kind of shares
or other securities to be issued upon conversion is subject to adjustment from
time to time upon the occurrence of certain events, as follows:
A. 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 in shares of Common Stock, the Fixed Conversion Price
or the Conversion Price, as the case may be, 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.
B. 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.
C. Share Issuances. Subject to the provisions of this
Section 3.4, 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 (i) pursuant to Subsections A or B above; (ii)
pursuant to options, warrants or other obligations to issue shares
outstanding on the date hereof as disclosed to Holder in writing,
including, without limitation, shares issuable upon the conversion of
warrants issued on or prior to the date hereof and held by Xxxxxxx
Securities or its affiliates and shares issuable upon conversion of
that certain $100,000 promissory note of AC Technical Ltd. issued prior
to the date hereof in favor of Xxxxxx Xxxxxx; or (iii) pursuant to
options that may be issued under any employee incentive stock option
and/or any qualified stock option plan adopted by the Borrower; (iv)
pursuant to securities issued to the original Holder on the date
hereof; or (v) pursuant to securities issued pursuant to acquisitions
or strategic transactions the primary purpose of which is not raising
capital, so long as, in the case of this clause (v), such shares of
Common Stock so issued (or securities convertible into Common Stock so
issued) are restricted and do not become freely or publicly traded in
any respect prior to the two year anniversary of the issuance thereof)
for a consideration per share (the "OFFER PRICE") less than any Fixed
Conversion Price in effect at the time of such issuance, then such
Fixed Conversion Price applicable to a portion of the outstanding
principal amount of this Note (and all interest, fees, costs and
expenses related thereto) equal to the fair market value of the
aggregate consideration paid for, or attributable to, such shares of
Common Stock or securities convertible into Common Stock (the
"Aggregate Consideration") shall be immediately reset to such lower
Offer Price at the time of issuance of such securities (provided that,
in the event that the outstanding principal amount of this Note is
greater than the respective Aggregate Consideration, the Holder shall
determine in its sole discretion which portion of the outstanding
principal amount of this Note shall have a "reset" Fixed Conversion
Price as a result of such issuance). For example, in the event that the
Aggregate Consideration equals $1,000,000, a Fixed Conversion Price
applicable a principal amount of this Note equal to $1,000,000 (plus
all interest, fees, costs and expenses related thereto) shall be reset
to the Offer Price if the Offer Price is less than such Fixed
Conversion Price in effect at the time of such issuance. For purposes
hereof, the issuance of any security of the Borrower convertible into
or exercisable or exchangeable for
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Common Stock shall result in an adjustment to the Fixed Conversion
Price at the time of issuance of such securities.
D. 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 immediately prior to such reclassification or other
change.
3.5 Issuance of Replacement Note. Upon any partial conversion of this
Note, a replacement Note containing the same date and provisions of this Note
shall, at the written request of the Holder, be issued by the Borrower to the
Holder for the outstanding Principal Amount of this Note and accrued interest
which shall not have been converted or paid. Subject to the provisions of
Article IV, the Borrower will pay no costs, fees or any other consideration to
the Holder for the production and issuance of a replacement Note.
3.6 Mandatory Conversion. Notwithstanding anything herein to the
contrary, subject to the conversion limitations set forth in Section 3.2, if,
after the date a registration statement covering the resale of the Conversion
Shares is declared effective, and so long as such registration statement remains
effective, (A) the closing price for any ten (10) consecutive trading days (a
"Conversion Period") exceeds 135% of the then effective Fixed Conversion Price,
the Holder will, within ten (10) trading days of any such Conversion Period,
convert all or part of the then outstanding Principal Amount of this Note plus
all accrued, but unpaid interest thereon. The Holder shall only be required to
effect such a conversion referred to in the immediately preceding sentence if
each of the following shall be true: (i) there is an effective registration
statement pursuant to which the Holder is permitted to utilize the prospectus
thereunder to resell all of the Conversion Shares issued to the Holder (or such
Conversion Shares are eligible under Rule 144 of the Securities Act); (ii) there
is a sufficient number of authorized but unissued and otherwise unreserved
shares of Common Stock for the issuance of all the Conversion Shares as are
issuable to the Holder upon such conversion of this Note pursuant to this
Section 3.6 and (iii) the amount of this Note to be so converted pursuant to
this Section 3.6 (when combined with the amount of the secured convertible
minimum borrowing note issued by the Borrower to the Holder on the date hereof
to be so converted pursuant to Section 3.6 thereof and the amount of any other
promissory note issued by the Borrower to the Holder required to be similarly
manditorily converted) does not exceed ten percent (10%) of the aggregate dollar
trading volume of the Common Stock during the Conversion Period.
ARTICLE IV
EVENTS OF DEFAULT
Upon the occurrence and continuance of an Event of Default beyond any
applicable grace period, the Holder may make all sums of principal, interest and
other fees then remaining unpaid hereon and all other amounts payable hereunder
immediately due and payable. In the event of such
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an acceleration, the amount due and owing to the Holder shall be 120% of the
outstanding principal amount of the Note (plus accrued and unpaid interest and
fees, if any) (the "DEFAULT PAYMENT"). The Default Payment shall be applied
first to any fees due and payable to Holder pursuant to this Note, the Purchase
Agreement or the Related Agreements, then to accrued and unpaid interest due on
the Note and then to outstanding principal balance of the Note.
The occurrence of any of the following events set forth in Sections 4.1
through 4.10, inclusive, is an "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 in accordance herewith, or the Borrower fails to pay when due any amount
due under any other promissory note issued by Borrower, and in any such case,
such failure shall continue for a period of three (3) days following the date
upon which any such payment was due.
4.2 Breach of Covenant. The Borrower breaches any covenant or any other
term or condition of this Note or the Purchase Agreement in any material
respect, or the Borrower or any of its Subsidiaries breaches any covenant or any
other term or condition of any Related Agreement in any material respect and,
any such case, such breach, if subject to cure, continues for a period of
fifteen (15) days after the occurrence thereof.
4.3 Breach of Representations and Warranties. Any representation or
warranty made by the Borrower in this Note or the Purchase Agreement, or by the
Borrower or any of its Subsidiaries in any Related Agreement, shall, in any such
case, be false or misleading in any material respect on the date that such
representation or warranty was made or deemed made.
4.4 Receiver or Trustee. The Borrower or any of its Subsidiaries 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.
4.5 Judgments. Any money judgment, writ or similar final process shall
be entered or filed against the Borrower or any of its Subsidiaries or any of
their respective property or other assets for more than $250,000, and shall
remain unvacated, unbonded or unstayed for a period of sixty days.
4.6 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 (i) by the Borrower or any of its
Subsidiaries or (ii) against the Borrower or any of its Subsidiaries and, solely
in the case of this clause (ii), remains undismissed for a period of 60 days.
4.7 Stop Trade. An SEC stop trade order or Principal Market trading
suspension of the Common Stock shall be in effect for five (5) consecutive days
or five (5) days during a period of ten (10) consecutive days, excluding in all
cases a suspension of all trading on a Principal Market, provided that the
Borrower shall not have been able to cure such trading suspension within thirty
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(30) days of the notice thereof or list the Common Stock on another Principal
Market within sixty (60) days of such notice. The "Principal Market" for the
Common Stock shall include the NASD OTC Bulletin Board, NASDAQ SmallCap Market,
NASDAQ National Market System, American Stock Exchange, or New York Stock
Exchange (whichever of the foregoing is at the time the principal trading
exchange or market for the Common Stock).
4.8 Failure to Deliver Common Stock or Replacement Note. The Borrower
shall fail (i) to timely deliver Common Stock to the Holder pursuant to and in
the form required by this Note, and Section 9 of the Purchase Agreement, if such
failure to timely deliver Common Stock shall not be cured within three (3)
business days or (ii) to deliver a replacement Note to Holder within seven (7)
business days following the required date of such issuance pursuant to this
Note, the Purchase Agreement or any Related Agreement (to the extent required
under such agreements).
4.9 Default Under Related Agreements or Other Agreements. The
occurrence and continuance of any Event of Default (as defined in the Purchase
Agreement or any Related Agreement) or any event of default (or similar term)
under any other indebtedness.
4.10 Change in Control. (i) Any "Person" or "group" (as such terms are
defined in Sections 13(d) and 14(d) of the Exchange Act, as in effect on the
date hereof) is or becomes the "beneficial owner" (as defined in Rules 13(d)-3
and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more on a
fully diluted basis of the then outstanding voting equity interest of the
Borrower or (ii) the Board of Directors of the Borrower shall cease to consist
of a majority of the Board of Directors of the Borrower on the date hereof (or
directors appointed by a majority of the Board of Directors in effect
immediately prior to such appointment).
DEFAULT RELATED PROVISIONS
4.11 Default Interest Rate. Following the occurrence and during the
continuance of an Event of Default and following the expiration of all
applicable notice and cure periods related thereto, the Borrower shall pay
additional interest on this Note on a monthly basis in an amount equal to
eighteen (18%) per annum, and all outstanding obligations under this Note,
including unpaid interest, shall continue to accrue such additional interest
from the date of such Event of Default until the date such Event of Default is
cured or waived.
4.12 Conversion Privileges. 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.
4.13 Cumulative Remedies. The remedies under this Note shall be
cumulative.
ARTICLE V
MISCELLANEOUS
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5.1 General Interest Rules. Notwithstanding any provisions herein, (i)
in no event shall the aggregate "interest" (as that term is defined in Section
347 of the Criminal Code (Canada) paid hereunder result in the receipt by the
Holder of interest at a "criminal rate" (as such term is construed under the
Criminal Code of Canada"); (ii) unless otherwise specified herein, whenever any
amount is payable hereunder as interest or as a fee which requires the
calculation of an amount using a percentage per annum, such amount shall be
calculated as of the date payment is due without application of the "deemed
reinvestment principle" or the "effective yield method"; and (iii) for purposes
of disclosure under the Interest Act (Canada) where interest is calculated
pursuant thereto at a rate based upon a year of 360, 365 or 366 days, as the
case may be (the "First Rate"), the rate or percentage of interest on a yearly
basis is equivalent to such First Rate multiplied by the actual number of days
in the year divided by 360, 365 or 366 , as the case may be.
5.2 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. Any notice herein required or permitted to be given shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the
Borrower at the address provided in the Purchase Agreement executed in
connection herewith, and to the Holder at the address provided in the Purchase
Agreement for such Holder, with a copy to Xxxx X. Xxxxxx, Esq., 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000,
or at such other address as the Borrower or the Holder may designate by ten days
advance written notice to the other parties hereto. A Notice of Conversion shall
be deemed given when made to the Borrower pursuant to the Purchase Agreement.
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, and any successor instrument issued pursuant to Section 3.5
hereof, as it may be 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, and may be assigned by the Holder in accordance with the
requirements of the Purchase Agreement. This Note shall not be assigned by the
Borrower without the consent of the Holder.
5.5 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
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New York. Both parties to this Note 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 in favor of the Holder.
5.6 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 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.
5.7 Security Interest and Guarantee. The Holder has been granted a
security interest (i) in certain assets of the Borrower and its Subsidiaries as
more fully described in the Master Security Agreement dated as of the date
hereof and certain other Related Agreements and (ii) pursuant to the Stock
Pledge Agreement dated as of the date hereof. The obligations of the Borrower
under this Note are guaranteed by certain Subsidiaries of the Borrower pursuant
to the Subsidiary Guaranty dated as of the date hereof.
5.8 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.
5.9 Cost of Collection. If default is made in the payment of this Note,
the Borrower shall pay to Holder reasonable costs of collection, including
reasonable attorney's fees.
[Balance of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the Borrower has caused this Note to be signed in
its name effective as of this 30th day of September, 2004.
CREATIVE VISTAS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: CEO
WITNESS:
/s/ Xxxxxxx Xxxx
-------------------------------
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EXHIBIT A
NOTICE OF CONVERSION
(To be executed by the Holder in order to convert all or part of the Note into
Common Stock
[Name and Address of Holder]
The Undersigned hereby converts $_________ of the principal due on [specify
applicable Repayment Date] under the Convertible Term Note issued by Creative
Vistas, Inc. dated September 30, 2004 by delivery of Shares of Common Stock of
Creative Vistas, Inc. on and subject to the conditions set forth in Article III
of such Note.
1. Date of Conversion _______________________
2. Shares To Be Delivered: _______________________
3. Delivery Instructions: _______________________
_______________________
By:_______________________________
Name:_____________________________
Title:____________________________
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