THIS NOTE AND THE COMMON SHARES ISSUABLE UPON
CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. 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 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
DATASCENSION, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE NOTE
FOR VALUE RECEIVED, DATASCENSION, INC., a Nevada corporation (hereinafter
called "Borrower"), hereby promises to pay to LONGVIEW EQUITY FUND, LP, 000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Fax: 000-000-0000,
(the "Holder") or its registered assigns or successors in interest or order,
without demand, the sum of ___________________________________ Dollars
($___________) ("Principal Amount"), with simple and unpaid interest thereon,
on November ____, 2007 (the "Maturity Date"), if not sooner paid.
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"), and shall be governed by the terms of such
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
INTEREST AND AMORTIZATION
1.1. Interest Rate. Subject to Section 5.7 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 three
percent (3%). The interest 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. The Interest Rate shall not be less than
eight percent (8%). Interest shall be calculated on the basis of a 360 day
year. Interest on the Principal Amount shall be payable monthly, in arrears,
commencing on [FIRST DAY OF THE MONTH AFTER 120 DAYS AFTER CLOSING] 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.
1.2. Minimum Monthly Principal Payments. Amortizing payments of the
outstanding Principal Amount of this Note shall commence on the first (1st)
Repayment Date and shall recur on each succeeding Repayment Date thereafter
until the 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 one-
thirty-second (1/32nd) of the initial Principal Amount (the "Monthly Principal
Amount"), together with any accrued and unpaid interest then due on such
portion of the 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"). Amounts of Conversions of Principal
Amount made by the Holder or Borrower pursuant to Section 2.1 or Article III,
and Redemption Amounts actually paid to Borrower shall be applied to Monthly
Amounts commencing with the Monthly Amounts first payable and then Monthly
Amounts thereafter in chronological order. Any Principal Amount that remains
outstanding on the Maturity Date shall be due and payable on the Maturity Date.
1.3.Default Interest Rate. Following the occurrence and during the
continuance of an Event of Default, subject to Section 6.7, the annual interest
rate on this Note shall automatically be increased by two percent (2%) per
month, 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.
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 could 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 an amount equal to 104% of the Monthly
Amount due and owing to the Holder on the 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 portion of 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 thirty cents
($0.30).
(b) Monthly Amount Conversion Guidelines. Subject to Sections
2.1(a), 2.2 and 3.2 hereof, the Holder shall convert into shares of Common
Stock all at the Fixed Conversion Price or the maximum portion of the Monthly
Amount due on each Repayment Date provided that the average closing price of
the Common Stock as reported by Bloomberg, L.P. on the Principal Market (as
defined below) for the twenty (20) consecutive trading days immediately
preceding such Repayment Date shall be greater than or equal to 15% above the
Fixed Conversion Price ("Conversion Criterion"). 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 Criterion shall be paid by
the Borrower at the Borrower's election (i) in cash at the rate of 104% of such
Monthly Amount otherwise due on such Repayment Date within three (3) business
days of the applicable Repayment Date, or (ii) in registered, unlegended, free-
trading Common Stock at an applied conversion rate equal to eighty-five percent
(85%) of the average of the five (5) lowest closing bid prices of the Common
Stock as reported by Bloomberg L.P. for the twenty (20) trading days preceding
such Repayment Date. Such shares of Common Stock must be delivered to the
Holder not later than three (3) business days of the applicable Repayable Date.
Whichever of the OTC Pink Sheets, NASD OTC Bulletin Board, NASDAQ SmallCap
Market, NASDAQ National Market System, American Stock Exchange, or New York
Stock Exchange or such other principal market or exchange where the Common
Stock is listed or traded is the principal trading exchange or market for the
Common Stock is the Principal Market.
(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 (i) first, against outstanding fees, (ii) second, against
accrued interest on the Principal Amount, and (iii) third, against the
Principal Amount.
0.0.Xx Effective Registration. Notwithstanding anything to the
contrary herein, no amount payable hereunder may be converted into Common Stock
by the Borrower without the Holder's consent unless (a) either (i) an effective
current Registration Statement 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(k) 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 Principal Amount. Provided an Event of
Default has not occurred, whether or not such Event of Default has been cured,
the Borrower will have the option of prepaying the outstanding Principal Amount
("Optional Redemption"), in whole or in part, by paying to the Holder a sum of
money equal to one hundred twenty percent (120%) of the 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
Subscription Agreement or any Transaction Document through the Redemption
Payment Date as defined below (the "Redemption Amount"). Borrower's election
to exercise its right to prepay must be by notice in writing ("Notice of
Redemption"). The Notice of Redemption shall specify the date for such
Optional Redemption (the "Redemption Payment Date"), which date shall be not
less than thirty (30) business days after the date of the Notice of Redemption
(the "Redemption Period"). A Notice of Redemption shall not be effective with
respect to any portion of the 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. On the Redemption Payment Date, the Redemption Amount less any
portion of the Redemption Amount against which the Holder has exercised its
rights pursuant to Section 3.1, shall be paid in good funds to the Holder. In
the event the Borrower fails to pay the Redemption Amount on the Redemption
Payment Date as set forth herein, then (i) such Notice of Redemption will be
null and void, (ii) Borrower will have no right to deliver another Notice of
Redemption, and (iii) Borrower's failure may be deemed by Holder to be a non-
curable Event of Default.
ARTICLE III
CONVERSION RIGHTS
3.1.Holder's Conversion Rights. Subject to Section 2.2 and the
mandatory conversion provisions therein, 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.
3.2.Conversion Limitation. Notwithstanding anything contained herein
to the contrary, the Holder shall not be entitled to convert pursuant to the
terms of this Note nor may this Note be converted in whole or in part into an
amount of Common Stock that would be convertible into that number of Common
Stock which would exceed the difference between the number of shares of Common
Stock beneficially owned by such Holder and 4.99% of the outstanding shares of
Common Stock. 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 foregoing limitation
shall be calculated as of each Conversion Date. Aggregate Conversions over
time shall not be limited to 4.99%. The Holder may void the Conversion Share
limitation described in this Section 3.2 upon 61 days prior notice to the
Borrower. The Holder may allocate which of the equity of the Borrower deemed
beneficially owned by the Holder shall be included in the 4.99% amount
described above and which shall be allocated to the excess above 4.99%.
3.3.Mechanics of Holder'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 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. The original Note is not required to be
surrendered to the Borrower until all sums due under the Note have been paid.
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 three (3) 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 one (1)
business day after 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 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.
(b) The Fixed Conversion Price and number and kind of shares or
other securities to be issued upon conversion shall be subject to adjustment
from time to time upon the happening of certain events while this conversion
right remains outstanding, as follows:
A. Merger, Sale of Assets, etc. If the Borrower at any
time shall consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note, as to the
unpaid principal portion thereof and accrued interest thereon, shall thereafter
be deemed to evidence the right to purchase such number and kind of shares or
other securities and property as would have been issuable or distributable on
account of such consolidation, merger, sale or conveyance, upon or with respect
to the securities subject to the conversion or purchase right immediately prior
to such consolidation, merger, sale or conveyance. The foregoing provision
shall similarly apply to successive transactions of a similar nature by any
such successor or purchaser. Without limiting the generality of the foregoing,
the anti-dilution provisions of this Section shall apply to such securities of
such successor or purchaser after any such consolidation, merger, sale or
conveyance.
B. 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 portion thereof 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.
C. 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 Conversion 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.
D. Share Issuance. So long as this Note is outstanding,
if the Borrower shall issue any Common Stock except for the Excepted Issuances
(as defined in the Subscription Agreement), prior to the complete conversion of
this Note for a consideration less than the Fixed Conversion Price that would
be in effect at the time of such issue, then, and thereafter successively upon
each such issuance, the Fixed Conversion Price shall be reduced to such other
lower issue price. For purposes of this adjustment, the issuance of any
security or debt instrument of the Borrower carrying the right to convert such
security or debt instrument into Common Stock or of any warrant, right or
option to purchase Common Stock shall result in an adjustment to the Fixed
Conversion Price upon the issuance of the above-described security, debt
instrument, warrant, right, or option and again upon the issuance of shares of
Common Stock upon exercise of such conversion or purchase rights if such
issuance is at a price lower than the then applicable Conversion Price. The
reduction of the Fixed Conversion Price described in this paragraph is in
addition to the other rights of the Holder described in the Subscription
Agreement.
(c) Whenever the Conversion Price is adjusted pursuant to Section
3.4(b) above, the Borrower shall promptly mail to the Holder a notice setting
forth the Conversion Price after such adjustment and setting forth a statement
of the facts requiring such adjustment.
3.5 Reservation. During the period the conversion right exists,
Borrower will reserve from its authorized and unissued Common Stock not less
than one hundred fifty percent (150%) of the number of shares to provide for
the issuance of Common Stock upon the full conversion of this. Borrower
represents that upon issuance, such shares will be duly and validly issued,
fully paid and non-assessable. 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.
3.6 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.
ARTICLE IV
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 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:
4.1 Failure to Pay Principal or Interest. The Borrower fails to pay
any installment of Principal Amount, interest or other sum due under this Note
or any Transaction Document when due and such failure continues for a period of
five (5) business days after the due date.
4.2 Breach of Covenant. The Borrower breaches any material covenant or
other term or condition of the Subscription Agreement, this Note or Transaction
Document in any material respect and such breach, if subject to cure, continues
for a period of ten (10) business days after written notice to the Borrower
from the Holder.
4.3 Breach of Representations and Warranties. Any material
representation or warranty of the Borrower made herein, in the Subscription
Agreement, 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 a
Closing Date.
4.4 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 them or for a substantial part
of their 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 Borrower or any subsidiary of Borrower or any of
their property or other assets for more than $50,000, and shall remain
unvacated, unbonded or unstayed for a period of forty-five (45) days.
4.6 Non-Payment. A default by the Borrower under any one or more
obligations in an aggregate monetary amount in excess of $100,000 for more than
twenty days after the due date.
4.7 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings or relief under any bankruptcy law or any law,
or the issuance of any notice in relation to such event, for the relief of
debtors shall be instituted by or against the Borrower or any Subsidiary of
Borrower and if instituted against them are not dismissed within 45 days of
initiation.
4.8 Delisting. Delisting of the Common Stock from the OTC Bulletin
Board ("Bulletin Board") or such other principal exchange on which the
Common Stock is listed for trading; failure to comply with the
requirements for continued listing on the Bulletin Board for a period
of seven consecutive trading days; or notification from the Bulletin
Board or any Principal Market that the Borrower is not in compliance
with the conditions for such continued listing on the Bulletin Board
or other Principal Market.
4.9 Stop Trade. An SEC or judicial stop trade order or Principal
Market trading suspension with respect to Borrower's Common Stock that lasts
for five or more consecutive trading days.
4.10 Failure to Deliver Common Stock or Replacement Note. Borrower's
failure to timely deliver Common Stock to the Holder pursuant to and in the
form required by this Note of the Subscription Agreement, or, if requested by
Borrower, a replacement Note.
4.11 Non-Registration Event. The occurrence of a Non-Registration Event
as described in the Subscription Agreement that is not cured within five (5)
business days after notice from Holder.
4.12 Reverse Splits. The Borrower effectuates a reverse split of its
Common Stock without the prior written consent of the Holder.
4.13 Cross Default. A default by the Borrower of a material term,
covenant, warranty or undertaking of any Transaction Document or other
agreement to which the Borrower and Holder are parties, or the occurrence of a
material event of default under any such other agreement which is not cured
after any required notice and/or cure period.
ARTICLE V
SECURITY INTEREST
5. Security Interest/Waiver of Automatic Stay. This Note is secured
by a security interest granted to the Collateral Agent for the benefit of 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 VI
MISCELLANEOUS
6.1 Failure or Indulgence Not Waiver. No failure or delay on the part
of 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. 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:
Datascension, Inc., 0000 XxXxxx Xxxxx, Xxxxx 0, Xxx Xxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxxxxx, President and CEO , telecopier number: (000) 000-0000, with
a copy by telecopier only to: Xxxx X. Xxxxxxxxx, Esq., Xxxxxxxxx & Associates,
00000 Xxx Xxxxxx Xxxxxx Xxxxx 000, Xxxxxx, XX 00000, telecopier: (949) 851-
9262, and (ii) if to the Holder, to the name, address and telecopy number set
forth on the front page of this Note, with a copy by telecopier only to Grushko
& Xxxxxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
telecopier number: (000) 000-0000.
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.
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.
6.5 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.
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 in favor of the Holder.
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 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.
0.0.Xxxxxxxxxxxx. 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.
6.9 Redemption. This Note may not be redeemed or called without the
consent of the Holder except as described in this Note.
6.10 Shareholder Status. The Holder shall not have rights as a
shareholder of the Borrower with respect to unconverted portions of this Note.
However, the Holder will have the right of a shareholder of the Borrower with
respect to the Shares of Common Stock to be received after delivery by the
Holder of a Conversion Notice to the Borrower.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its
name by an authorized officer as of the 9th day of November, 2004.
DATASCENSION, INC.
/s/ Xxxxxx X. Xxxxxxxx
By:________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President & CEO
WITNESS:
/s/ Xxxxx Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: CFO
NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $_________ of the principal and
$_________ of the interest due on the Note issued by Datascension, Inc. on
November ____, 2004 into Shares of Common Stock of Datascension, Inc. (the
"Borrower") according to the conditions set forth in such Note, as of the date
written below.
Date of
Conversion:_______________________________________________
Conversion
Price:____________________________________________________
Shares To Be
Delivered:________________________________________________
Signature:________________________________________________
Print
Name:_____________________________________________________
Address:__________________________________________________
__________________________________________________________
