Exhibit 10.1
GLOBAL BEVERAGE SOLUTIONS, INC.
0 X. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
January 23, 2008
Xx. Xxxxxx Xxxxxx
Chief Executive Officer and President
XStream Beverage Network, Inc.
00000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Re: REPURCHASE OF SHARES OF COMMON STOCK AND ISSUANCE OF RELATED CONVERTIBLE
NOTE
Dear Xx. Xxxxxx:
This letter agreement sets forth our understanding regarding the
repurchase by Global Beverage Solutions, Inc. ("Global Beverage") of 60,500,000
shares (the "Shares") of Global Beverage's common stock, par value $0.001 per
share (the "Common Stock"), from XStream Beverage Network, Inc. ("XStream").
In consideration of the mutual agreements and understandings set
forth herein, the parties hereto hereby agree as follows:
1. AGREEMENT TO SELL AND REPURCHASE. Upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, XStream hereby agrees to sell, and Global Beverage hereby agrees to
repurchase, the Shares for an aggregate purchase price of $700,000 (the
"Purchase Price").
2. PAYMENT AND DELIVERY.
(a) Payment of the Purchase Price for the Shares shall be made by
delivery by Global Beverage to XStream of a convertible note in the principal
amount of the Purchase Price and in the form attached hereto as EXHIBIT A (the
"Convertible Note"), against delivery of the Shares by XStream to Global
Beverage. The Convertible Note is convertible into Common Stock. The shares of
Common Stock issuable upon conversion of the Convertible Note are referred to
herein as the "Conversion Shares." The Convertible Note and the Conversion
Shares are collectively referred to herein as the "Securities."
(b) Payment of the Purchase Price and delivery of the Shares shall
be made within three (3) business days after the execution by the parties of
this Agreement.
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3. NATURE OF OFFERING; LEGEND.
(a) The offer and sale of the Securities is being made in reliance
upon the provisions of Section 4(2) of the Securities Act of 1933 (the
"Securities Act") and Rule 506 of Regulation D promulgated under the Securities
Act.
(b) Each certificate or other instrument for capital stock issued
upon the conversion of the Convertible Note shall bear such restrictive legends
as Global Beverage shall deem necessary or advisable pursuant to applicable
federal and state securities laws including the following:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY
STATE OR OTHER SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF, NOR WILL ANY ASSIGNEE OR
TRANSFEREE THEREOF BE RECOGNIZED BY THE ISSUER AS HAVING AN INTEREST IN
SUCH SECURITIES, IN THE ABSENCE OF, WITH RESPECT TO EACH OF THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, (1) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SAID ACT OR LAW, OR
(2) AN OPINION OF COUNSEL, WHICH OPINION OF COUNSEL SHALL BE
SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT THE TRANSACTION BY WHICH
SUCH SECURITIES WILL BE OFFERED FOR SALE, HYPOTHECATED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF, IS EXEMPT FROM OR OTHERWISE IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF SAID ACT OR LAW."
4. OPTIONAL CONVERSION.
(a) From and after the date of an Event of Default (as defined
below), XStream shall have the right, at its option, by giving written notice to
Global Beverage at its principal office at any time prior to the cure of such
Event of Default by Global Beverage, to convert in whole or in part the
principal amount of the Convertible Note and any accrued interest thereon into
Conversion Shares, at the Conversion Rate (as hereinafter defined). The number
of Conversion Shares issuable upon conversion of any Conversion Amount (as
hereinafter defined) shall be determined by dividing (x) such Conversion Amount
by (y) the Conversion Price (as hereinafter defined) (such formula being
referred to herein as the "Conversion Rate"). The "Conversion Amount" means the
portion of the principal amount of the Convertible Note and any accrued interest
thereon to be converted with respect to which this determination is being made.
The "Conversion Price" shall be equal to $0.01157024793, subject to equitable
adjustment in the event of any stock split, combination, reclassification or
similar event.
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(b) The date on which notice of conversion is given (the "Conversion
Date") shall be deemed to be the date on which XStream faxes or otherwise
delivers the conversion notice ("Notice of Conversion") to Global Beverage so
that it is received by Global Beverage on or before such specified date,
provided that, if such conversion would convert the entire remaining principal
of the Convertible Note, XStream shall deliver to Global Beverage the original
Convertible Note being converted no later than five (5) business days
thereafter. As soon as practicable after any Conversion Date, but in any event
within 3 business days thereafter, Global Beverage, at its expense, will cause
to be issued in the name of and delivered to XStream, a certificate or
certificates for the number of fully paid and non-assessable Conversion Shares
to which XStream shall be entitled on such conversion. No fractional shares of
Common Stock will be issued on conversion of the Convertible Note. If on
conversion of the Convertible Note a fraction of a share results, Global
Beverage will round such fraction of a share of Common Stock up to the nearest
whole share.
(c) Notwithstanding anything to the contrary contained herein and in
the Convertible Note, the Convertible Note may not be converted, in whole or in
part, into Conversion Shares unless and until any then-applicable requirements
of all federal and state securities laws and regulatory agencies charged with
enforcing securities laws shall have been fully complied with to the
satisfaction of Global Beverage and its counsel; PROVIDED, HOWEVER, that Global
Beverage shall at all times use its best efforts to comply with such
requirements. Global Beverage may, in its reasonable discretion, condition any
conversion of the Convertible Note upon XStream's delivery to Global Beverage of
a written agreement, in form and substance satisfactory to Global Beverage,
whereby XStream makes, at the time of conversion, such representations and
warranties to and for the benefit of Global Beverage as are comparable to the
representations and warranties of XStream set forth herein as and to the extent
applicable to the issuance of the Conversion Shares upon conversion of the
Convertible Note.
5. REPRESENTATIONS AND WARRANTIES OF XSTREAM. XStream represents and
warrants to Global Beverage that:
(a) XStream has the full power and authority to enter into, execute
and deliver this letter agreement and perform the obligations contained herein;
(b) the execution and delivery by XStream of this letter agreement
and the performance by it of its obligations contemplated in this letter
agreement have been duly authorized by all necessary corporate or other action
of XStream;
(c) the execution, delivery and performance of this letter agreement
by XStream will not conflict with or result in any material breach or violation
of any of the terms and conditions of, or constitute (with notice or lapse of
time or both) a default under, any instrument, contract or other agreement to
which XStream is a party or by which it is bound;
(d) XStream has not entered into any other agreement or
understanding with any person or entity relating to the sale, hypothecation,
pledge, assignment, disposal or transfer of the Shares and is the owner of, and
has good and marketable title to the Shares, free and clear of all liens,
pledges and encumbrances of any kind, other than liens granted in favor of
Laurus Master Fund, Ltd. ("Laurus");
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(e) XStream has such knowledge and experience in financial and
business matters, including investments of the type represented by the
Securities, is capable of evaluating the merits of investment in Global Beverage
and can bear the economic risk of an investment in the Securities;
(f) XStream is an "accredited investor" as such term is defined in
Rule 501 of Regulation D under the Securities Act;
(g) XStream is acquiring the Securities for investment purposes
only, for its own account and not with a view to, or for resale in connection
with, the distribution or other disposition thereof in contravention of the
Securities Act or any state securities law, without prejudice, however, to
XStream's right at all times to sell or otherwise dispose of all or any part of
the Securities under an exemption from registration available under the
Securities Act and other applicable state securities laws;
(h) XStream acknowledges and agrees that the Convertible Note and
the Conversion Shares issuable upon conversion of the Convertible Note are
subject to, and that XStream will be bound by, the additional transfer
restrictions set forth in Section 5 of the Convertible Note;
(j) XStream understands that the Securities have not been and are
not being registered under the Securities Act or any state securities laws, and
may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, (B) XStream shall have delivered to Global
Beverage an opinion of counsel, in a generally acceptable form, to the effect
that such Securities to be sold, assigned or transferred may be sold, assigned
or transferred pursuant to an exemption from such registration requirements, or
(C) XStream provides Global Beverage with reasonable assurances (in the form of
seller and broker representation letters) that such Securities can be sold,
assigned or transferred pursuant to Rule 144 or Rule 144(k) promulgated under
the Securities Act, as amended (or a successor rule thereto) (collectively,
"RULE 144"), in each case following the applicable holding period set forth
therein; (ii) any sale of the Securities made in reliance on Rule 144 may be
made only in accordance with the terms of Rule 144 and further, if Rule 144 is
not applicable, any resale of the Securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations thereunder; and (iii) neither Global Beverage nor any other person
is under any obligation to register the Securities under the Securities Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder; and
(k) XStream has received all documents, records, books and other
publicly available information pertaining to XStream's investment in Global
Beverage that have been requested by XStream. Global Beverage is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934 (the
"Exchange Act"), and XStream has reviewed or received copies of all documents
that Global Beverage has filed under the Exchange Act that have been requested
by it.
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6. REPRESENTATIONS AND WARRANTIES OF GLOBAL BEVERAGE. Global
Beverage represents and warrants to XStream and Laurus that:
(a) Global Beverage has the full power and authority to enter into,
execute and deliver this letter agreement and perform the obligations contained
herein;
(b) the execution and delivery by Global Beverage of this letter
agreement and the performance by it of its obligations contemplated in this
letter agreement have been duly authorized by all necessary corporate or other
action of Global Beverage; and
(c) the execution, delivery and performance of this letter agreement
by Global Beverage will not conflict with or result in any material breach or
violation of any of the terms and conditions of, or constitute (with notice or
lapse of time or both) a default under, any instrument, contract or other
agreement to which Global Beverage is a party or by which it is bound.
7. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under the Convertible Note:
(a) Default in the payment when due of the principal of the
indebtedness evidenced by the Convertible Note or any interest due thereon in
accordance with the terms of the Convertible Note; and
(b) Failure of Global Beverage to make a payment, pursuant to that
certain letter agreement, dated even date herewith, by and between Global
Beverage and Laurus, to Laurus in the amount of $500,000 on or before May 1,
2008 (the "$500,000 Payment"); PROVIDED that any 35% Payment (as defined below)
made by Global Beverage on or before May 1, 2008 shall be applied to and shall
reduce the amount of such $500,000 Payment as set forth in SECTION 8(A) below.
8. COVENANTS OF GLOBAL BEVERAGE.
(a) In the event that Global Beverage receives proceeds from the
sale of shares of its Common Stock or the issuance of convertible debt at a time
when the Convertible Note has not been repaid in full, then Global Beverage
shall use 35% of the net proceeds received in connection with such sale or
issuance (a "35% Payment") to repay the outstanding principal amount of the
Convertible Note and/or that certain $2,000,000 Secured Promissory Note by
Global Beverage for the benefit of XStream, dated as of January 31, 2007 and
amended on February 23, 2007 and again on January 23, 2008 (the "Secured Note").
Any 35% Payment shall first be used to pay down in full the Secured Note, and
after the Secured Note has been paid in full, any 35% Payment thereafter (or
remaining portion thereof) shall be used to pay down the Convertible Note.
Global Beverage shall not have to pay any portion of a 35% Payment beyond any
such amount that pays down in full both the Secured Note and the Convertible
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Note. Furthermore, any 35% Payment paid on or before May 1, 2008 shall be deemed
to satisfy all or a portion, as the case may be, of the $500,000 Payment to the
extent of the dollar amount of such 35% Payment.
(b) At all times from and after the date hereof and until the
maturity date of the Convertible Note, Global Beverage shall maintain a
sufficient number of authorized shares of Common Stock to be available for
issuance in a timely manner upon conversion of the Convertible Note in
accordance with the terms hereof and thereof.
9. GOVERNING LAW. This letter agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to the principles of conflict of laws that would provide for application
of another law.
10. ENTIRE AGREEMENT; COUNTERPARTS. This letter agreement and the
Convertible Note contain the entire agreement between the parties with respect
to the Shares and the Convertible Note. Any oral or written agreements,
representations, warranties, written inducements, or other communications made
prior to the execution of this letter agreement with respect to the Shares and
the Convertible Note shall be null and void. This letter agreement may be
executed in counterparts, each of which when taken together shall constitute an
original of this letter agreement.
11. NOTICES. All notices, other communications or documents provided
for or permitted to be given hereunder shall be made in writing and shall be
given either personally by hand-delivery, by facsimile transmission, by mailing
the same in a sealed envelope, registered first-class mail, postage prepaid,
return receipt requested, or by reputable courier guaranteeing overnight
delivery:
(a) if to XStream, to:
XStream Beverage Network, Inc.
00000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Fax: (786) -
(b) if to Global Beverage, to:
Global Beverage Solutions, Inc.
0 X. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
Each party, by written notice given to each other in accordance with
this paragraph 11 may change the address to which notices, other communications
or documents are to be sent to such party. All notices, other communications or
documents shall be deemed to have been duly given: (i) at the time delivered by
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hand, if personally delivered; (ii) when receipt is acknowledged orally by
addressee or by machine confirmation of transmission, if by facsimile
transmission; (iii) five business days after having been deposited in the mail,
postage prepaid, if mailed by first class air mail; and (iv) on the first
business day with respect to which a reputable air courier guarantees delivery;
PROVIDED, HOWEVER, that notices of a change of address shall be effective only
upon receipt.
12. AMENDMENT. This agreement may not be amended or modified, except
upon the written consent of each party hereto approving any such amendment or
modification.
13. SUCCESSORS AND ASSIGNS. This letter agreement shall be binding
upon XStream and Global Beverage and their successors and assigns.
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If this letter agreement correctly sets forth our understanding,
please so acknowledge by signing below and returning a signed copy of the letter
agreement to Global Beverage.
GLOBAL BEVERAGE SOLUTIONS, INC.
By: /S/ XXXXX XXXXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer and President
Acknowledged and Agreed to as of the date first written above:
XSTREAM BEVERAGE NETWORK, INC.
By: /S/ XXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer and President
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EXHIBIT A
---------
THIS CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED
IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS CONVERTIBLE
PROMISSORY NOTE NOR THE SECURITIES ISSUABLE HEREUNDER MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED
OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
$700,000 January 23, 2008
Plantation, Florida
GLOBAL BEVERAGE SOLUTIONS, INC.
CONVERTIBLE
PROMISSORY NOTE
FOR VALUE RECEIVED, Global Beverage Solutions, Inc., a Nevada
corporation ("BORROWER"), located at 0 X. Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, hereby unconditionally promises to pay to the order
of XStream Beverage Network, Inc. ("LENDER"), and its successors, endorsees,
transferees and assigns (together with Lender, "HOLDER"), the principal sum of
Seven Hundred Thousand Dollars ($700,000). The principal amount of this
Convertible Note shall be due and payable in full, together with accrued
interest thereon on October 31, 2008 (the "MATURITY DATE") in the manner
provided for in SECTION 2 below, unless this Convertible Note shall have been
previously converted as provided in SECTION 4 below. Interest on the outstanding
principal amount of this Convertible Note shall accrue at a variable annual
interest rate equal, on any day, to the Prime Rate (as defined below) PLUS two
percent (2.00%), calculated on the basis of a year of three hundred sixty (360)
days. The term "PRIME RATE" shall mean a variable rate of interest per annum
equal, on any day, to the rate of interest published on such day in the Eastern
Edition of THE WALL STREET JOURNAL as the average prime lending rate for
seventy-five percent (75%) of the United States' 30 largest commercial banks, or
if the Eastern Edition of THE WALL STREET JOURNAL or such rate is not published
on such day, such rate as last published in the Eastern Edition of THE WALL
STREET JOURNAL. Accrued interest shall be capitalized and added to the
outstanding principal amount of this Convertible Note.
1. PURCHASE AGREEMENT. This Convertible Note has been executed and
delivered by Borrower pursuant to that certain letter agreement, dated as of
January 23, 2008, between Borrower and Lender (the "PURCHASE AGREEMENT").
Borrower herein agrees with Holder that Borrower will perform and discharge each
of its covenants and agreements contained in the Purchase Agreement as from time
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to time amended and supplemented, the provisions of which Purchase Agreement are
hereby incorporated in this Convertible Note by reference with the same effect
as if it were set forth in full. The Purchase Agreement is subject to amendment
in the manner provided therein, and any such amendment shall be binding upon the
Holder and any subsequent holders of this Convertible Note. All capitalized
terms used herein and not defined herein shall have the meanings given such
terms in the Purchase Agreement.
2. PAYMENT.
(a) All payments of principal and all other amounts payable in
respect of this Convertible Note shall be made by wire transfer in lawful money
of the United States of America in immediately available Federal funds, to an
account furnished to Borrower in writing for that purpose at least two (2)
business days prior to the Maturity Date. Holder shall, before disposing of this
Convertible Note or any part hereof, make a notation hereon of all principal
payments previously made hereunder; PROVIDED, HOWEVER, that the failure to
correctly make a notation of any payment made on this Convertible Note shall not
limit or otherwise affect the obligation of Borrower under this Convertible Note
with respect to any loan evidenced hereby or payments of principal on this
Convertible Note.
(b) In the event that Borrower receives proceeds from the sale of
shares of its Common Stock or the issuance of convertible debt at a time when
the Convertible Note has not been repaid in full, then Borrower shall use 35% of
the net proceeds received in connection with such sale or issuance (a "35%
Payment") to repay the outstanding principal amount of the Convertible Note
and/or that certain $2,000,000 Secured Promissory Note by Borrower for the
benefit of Lender, dated as of January 31, 2007 and amended on February 23, 2007
and again on January 23, 2008 (the "Secured Note"). Any 35% Payment shall first
be used to pay down in full the Secured Note, and after the Secured Note has
been paid in full, any 35% Payment thereafter (or remaining portion thereof)
shall be used to pay down the Convertible Note. Borrower shall not have to pay
any portion of a 35% Payment beyond any such amount that pays down in full both
the Secured Note and the Convertible Note. Furthermore, any 35% Payment paid on
or before May 1, 2008 shall be deemed to satisfy all or a portion, as the case
may be, of the $500,000 Payment (as defined in SECTION 7(a)(ii) below) to the
extent of the dollar amount of such 35% Payment.
3. PREPAYMENT. Borrower may prepay this Convertible Note, in whole
or in part prior to the Maturity Date. Any partial prepayment shall not affect
the obligation to continue to pay in full the amount of the payments hereunder
until the entire unpaid principal balance hereof is paid.
4. CONVERSION RIGHTS. The Holder, and any subsequent holder of this
Convertible Note, is entitled to the rights and benefits, and is subject to the
obligations, conditions and restrictions, set forth in the Purchase Agreement,
including without limitation the right to convert this Convertible Note into
certain securities of Borrower in the manner provided in the Purchase Agreement.
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5. TRANSFERS.
(a) By acceptance hereof, the Holder acknowledges that this
Convertible Note and the capital stock of Borrower that may be issued upon its
conversion have not been registered under the Securities Act, and Holder agrees
not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose
of this Convertible Note or any capital stock issued upon its conversion in the
absence of (i) an effective registration statement under the Securities Act as
to this Convertible Note or such securities and registration or qualification of
this Convertible Note or such securities under any applicable Blue Sky or state
securities laws then in effect, or (ii) an opinion of counsel, reasonably
satisfactory to Borrower, that such registration and qualification are not
required. Each certificate or other instrument for capital stock issued upon the
conversion of this Convertible Note shall bear a legend in the form set forth in
the Purchase Agreement.
(b) Subject to the provisions of SECTION 5(a) hereof, this
Convertible Note and all rights hereunder are transferable, in whole or in part,
upon surrender of the Convertible Note with a properly executed assignment, in
the form prescribed by Borrower, at the principal office of Borrower; PROVIDED,
HOWEVER, that, except for transfers by Holder of all or any portion of this
Convertible Note to any parent, subsidiary or affiliate of Holder or to any
officer, director, partner or member of any such parent, subsidiary or
affiliate, this Convertible Note may not be transferred in whole or in part
without the prior written consent of Borrower.
(c) Until any transfer of this Convertible Note is made in the
Convertible Note register, Borrower may treat the registered Holder as the
absolute owner hereof for all purposes; PROVIDED, HOWEVER, that if and when this
Convertible Note is properly assigned in blank, Borrower may (but shall not be
required to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
(d) Borrower will maintain a register containing the names and
addresses of the registered Holders of this Convertible Note. Any registered
Holder may change such registered Holder's address as shown on the Convertible
Note register by written notice to Borrower requesting such change.
(e) In the reasonable discretion of Borrower, Borrower may condition
any transfer of all or any portion of this Convertible Note (other than a
disposition satisfying the conditions set forth in clause (i) of SECTION 5(a)
above) upon the transferee's delivery to Borrower of a written agreement, in
form and substance reasonably satisfactory to Borrower, whereby the transferee
(i) makes such representations and warranties to and for the benefit of Borrower
as are comparable to the representations and warranties of the purchaser of the
Convertible Note as set forth in the Purchase Agreement, as and to the extent
applicable to the proposed disposition, and (ii) agrees to be bound by the
transfer restrictions set forth in this SECTION 5.
6. TRANSFER BY BORROWER. Borrower may not assign, and no person may
assume, any of the obligations of Borrower under this Convertible Note without
the prior written consent of Holder, which consent may be granted or withheld in
Holder's sole discretion, and any attempt to do so without such consent shall be
void.
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7. EVENTS OF DEFAULT; REMEDIES.
(a) EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default hereunder:
(i) Default in the payment when due of the principal of the
indebtedness evidenced by the Convertible Note or any interest due thereon in
accordance with the terms of the Convertible Note; and
(ii) Failure of Borrower to make a payment, pursuant to that certain
letter agreement, dated even date herewith, by and between Borrower and Laurus
Master Fund, Ltd., to Laurus Master Fund, Ltd. in the amount of $500,000 on or
before May 1, 2008 (the "$500,000 Payment"); PROVIDED that any 35% Payment (as
defined above) made by Borrower on or before May 1, 2008 shall be applied to and
shall reduce the amount of such $500,000 Payment as set forth in SECTION 2(b)
above.
(b) ACCELERATION OF MATURITY; REMEDIES. Upon the occurrence of any
Event of Default described above, Holder at any time thereafter may at its
option accelerate the maturity of the indebtedness evidenced by this Convertible
Note without notice of any kind. Upon the occurrence of any such Event of
Default and the acceleration of the maturity of the indebtedness evidenced by
the Convertible Note:
(i) Holder shall be immediately entitled to exercise any and all
rights and remedies possessed by Holder pursuant to the terms of this
Convertible Note and the Purchase Agreement; and
(ii) Holder shall have any and all other rights and remedies that
Holder may now or hereafter possess at law, in equity or by statute.
(c) REMEDIES CUMULATIVE; NO WAIVER. No right, power or remedy
conferred upon or reserved to Holder by this Convertible Note or the Purchase
Agreement is intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy given hereunder,
under any provision of the Purchase Agreement or now or hereafter existing at
law, in equity or by statute. No delay or omission by Holder to exercise any
right, power or remedy accruing upon the occurrence of any Event of Default
shall exhaust or impair any such right, power or remedy or shall be construed to
be a waiver of any such Event of Default or an acquiescence therein, and every
right, power and remedy given by this Convertible Note and the Purchase
Agreement to Holder may be exercised from time to time and as often as may be
deemed expedient by Holder.
8. NOTICES. Any notice required by the provisions of this
Convertible Note to be given to Holder shall be delivered personally,
telecopied, or sent by certified mail or overnight via nationally recognized
courier service (such as Federal Express), addressed to Holder at the address
appearing on the books of Borrower. The date of personal delivery or telecopy or
two (2) business days after the date of mailing (or the next business day after
delivery to such courier service), as the case may be, shall be the date of such
notice.
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9. GOVERNING LAW. THIS CONVERTIBLE NOTE SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
10. WAIVERS. Borrower waives presentment for payment, demand, notice
of demand, notice of nonpayment or dishonor, protest and notice of protest of
this Convertible Note, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this
Convertible Note, and Borrower agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Holder.
11. ATTORNEYS FEES. Borrower promises to pay all reasonable costs
and expenses, including attorneys' fees, incurred in the collection and
enforcement of this Convertible Note, including, without limitation, enforcement
before any court and including all appellate proceedings.
12. SEVERABILITY. Wherever possible each provision of this
Convertible Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Convertible Note shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Convertible Note
and shall be interpreted so as to be effective and valid.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Convertible Note as of the day and year and at the place first written above.
GLOBAL BEVERAGE SOLUTIONS, INC.,
a Nevada corporation
By:
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
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