CALLABLE SECURED CONVERTIBLE NOTE

 

 

 

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER

THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").   THE SECURITIES MAY NOT BE

SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION

STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL IN FORM,

SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE

TRANSACTIONS THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD

PURSUANT TO RULE 144 OR REGULATION S UNDER SAID ACT.

 

                CALLABLE SECURED CONVERTIBLE NOTE

 

Brooklyn, New York

November 4, 2005                                                     $423,800

 

     FOR VALUE RECEIVED, MT ULTIMATE HEALTHCARE CORP., a Nevada corporation

(hereinafter called the "Borrower"), hereby promises to pay to the order of

AJW QUALIFIED PARTNERS, LLC or registered assigns (the "Holder") the sum of

$423,800, on November 4, 2008 (the "Maturity Date"), and to pay interest on

the unpaid principal balance hereof at the rate of eight percent (8%) (the

"Interest Rate") per annum from November 4, 2005 (the "Issue Date") until the

same becomes due and payable, whether at maturity or upon acceleration or by

prepayment or otherwise.   Any amount of principal or interest on this Note

which is not paid when due shall bear interest at the rate of fifteen percent

(15%) per annum from the due date thereof until the same is paid ("Default

Interest").   Interest shall commence accruing on the Issue Date, shall be

computed on the basis of a 365-day year and the actual number of days elapsed

and shall be payable quarterly provided that no interest shall be due and

payable for any month in which the Trading Price (as such term is defined

below) is greater than $.02 for each Trading Day (as such term is defined

below) of the month. All payments due hereunder (to the extent not converted

into common stock, $.001 par value per share (the "Common Stock") in

accordance with the terms hereof) shall be made in lawful money of the United

States of America.   All payments shall be made at such address as the Holder

shall hereafter give to the Borrower by written notice made in accordance with

the provisions of this Note.   Whenever any amount expressed to be due by the

terms of this Note is due on any day which is not a business day, the same

shall instead be due on the next succeeding day which is a business day and,

in the case of any interest payment date which is not the date on which this

Note is paid in full, the extension of the due date thereof shall not be taken

into account for purposes of determining the amount of interest due on such

date.   As used in this Note, the term "business day" shall mean any day other

than a Saturday, Sunday or a day on which commercial banks in the city of New

York, New York are authorized or required by law or executive order to remain

closed.   Each capitalized term used herein, and not otherwise defined, shall

have the meaning ascribed thereto in that certain Securities Purchase

Agreement, dated November 4, 2005, pursuant to which this Note was originally

issued (the "Purchase Agreement").

 

     This Note is free from all taxes, liens, claims and encumbrances with

respect to the issue thereof and shall not be subject to preemptive rights or

other similar rights of shareholders of the Borrower and will not impose

personal liability upon the holder thereof.   The obligations of the Borrower

under this Note shall be secured by that certain Security Agreement and

Intellectual Property Security Agreement, each dated November 4, 2005 by and

between the Borrower and the Holder.

 

     The following terms shall apply to this Note:

 

 

                   ARTICLE I. CONVERSION RIGHTS

 

     1.1   Conversion Right.   The Holder shall have the right from time to

time, and at any time on or prior to the earlier of (i) the Maturity Date and

(ii) the date of payment of the Default Amount (as defined in Article III)

pursuant to Section 1.6(a) or Article III, the Optional Prepayment Amount (as

defined in Section 5.1 or any payments pursuant to Section 1.7, each in

respect of the remaining outstanding principal amount of this Note to convert

all or any part of the outstanding and unpaid principal amount of this Note

into fully paid and non-assessable shares of Common Stock, as such Common

Stock exists on the Issue Date, or any shares of capital stock or other

securities of the Borrower into which such Common Stock shall hereafter be

changed or reclassified at the conversion price   (the "Conversion Price")

determined as provided herein (a "Conversion"); provided, however, that in no

event shall the Holder be entitled to convert any portion of this Note in

excess of that portion of this Note upon conversion of which the sum of (1)

the number of shares of Common Stock beneficially owned by the Holder and its

affiliates (other than shares of Common Stock which may be deemed beneficially

owned through the ownership of the unconverted portion of the Notes or the

unexercised or unconverted portion of any other security of the Borrower

(including, without limitation, the warrants issued by the Borrower pursuant

to the Purchase Agreement) subject to a limitation on conversion or exercise

analogous to the limitations contained herein) and (2) the number of shares of

Common Stock issuable upon the conversion of the portion of this Note with

respect to which the determination of this proviso is being made, would result

in beneficial ownership by the Holder and its affiliates of more than 4.99% of

the outstanding shares of Common Stock and provided further that the Holder

shall not be entitled to convert any portion of this Note during any month

immediately succeeding a Determination Date on which the Borrower exercises

its prepayment option pursuant to Section 5.2 of this Note.   For purposes of

the proviso to the immediately preceding sentence, beneficial ownership shall

be determined in accordance with Section 13(d) of the Securities Exchange Act

of 1934, as amended, and Regulations 13D-G thereunder, except as otherwise

provided in clause (1) of such proviso.   The number of shares of Common Stock

to be issued upon each conversion of this Note shall be determined by dividing

the Conversion Amount (as defined below) by the applicable Conversion Price

then in effect on the date specified in the notice of conversion, in the form

attached hereto as Exhibit A (the "Notice of Conversion"), delivered to the

Borrower by the Holder in accordance with Section 1.4 below; provided that the

Notice of Conversion is submitted by facsimile (or by other means resulting

in, or reasonably expected to result in, notice) to the Borrower before 6:00

p.m., New York, New York time on such conversion date (the "Conversion Date").

The term "Conversion Amount" means, with respect to any conversion of this

Note, the sum of (1) the principal amount of this Note to be converted in such

conversion plus (2) accrued and unpaid interest, if any, on such principal

amount at the interest rates provided in this Note to the Conversion Date plus

(3) Default Interest, if any, on the amounts referred to in the immediately

preceding clauses (1) and/or (2) plus (4) at the Holder's option, any amounts

owed to the Holder pursuant to Sections 1.3 and 1.4(g) hereof or pursuant to

Section 2(c) of that certain Registration Rights Agreement, dated as of

November 4, 2005, executed in connection with the initial issuance of this

Note and the other Notes issued on the Issue Date (the "Registration Rights

Agreement").   The term "Determination Date" means the last business day of

each month after the Issue Date.

 

     1.2   Conversion Price.

 

          (a)   Calculation of Conversion Price.   The Conversion Price shall be

the lesser of (i) the Variable Conversion Price (as defined herein) and (ii)

the Fixed Conversion Price (as defined herein) subject, in each case, to

equitable adjustments for stock splits, stock dividends or rights offerings by

the Borrower relating to the Borrower's securities or the securities of any

subsidiary of the Borrower, combinations, recapitalization, reclassifications,

extraordinary distributions and similar events (each of which being

hereinafter referred to as an "Adjustment").   The "Variable Conversion Price"

shall mean the Applicable Percentage (as defined herein) multiplied by the

Market Price (as defined herein).   "Market Price" means the average of the

lowest three (3) Trading Prices (as defined below) for the Common Stock during

the twenty (20) Trading Day period ending one Trading Day prior to the date

the Conversion Notice is sent by the Holder to the Borrower via facsimile (the

"Conversion Date").   "Trading Price" means, for any security as of any date,

the intraday trading price on the Over-the-Counter Bulletin Board (the

"OTCBB") as reported by a reliable reporting service mutually acceptable to

and hereafter designated by Holders of a majority in interest of the Notes and

the Borrower or, if the OTCBB is not the principal trading market for such

security, the intraday trading price of such security on the principal

securities exchange or trading market where such security is listed or traded

or, if no intraday trading price of such security is available in any of the

foregoing manners, the average of the intraday trading prices of any market

makers for such security that are listed in the "pink sheets" by the National

Quotation Bureau, Inc.   If the Trading Price cannot be calculated for such

security on such date in the manner provided above, the Trading Price shall be

the fair market value as mutually determined by the Borrower and the holders

of a majority in interest of the Notes being converted for which the

calculation of the Trading Price is required in order to determine the

Conversion Price of such Notes.   "Trading Day" shall mean any day on which the

Common Stock is traded for any period on the OTCBB, or on the principal

securities exchange or other securities market on which the Common Stock is

then being traded.   "Applicable Percentage" shall mean 50.0%.   The "Fixed

Conversion Price" shall mean $.01.

 

          (b)   Conversion Price During Major Announcements.   Notwithstanding

anything contained in Section 1.2(a) to the contrary, in the event the

Borrower (i) makes a public announcement that it intends to consolidate or

merge with any other corporation (other than a merger in which the Borrower is

the surviving or continuing corporation and its capital stock is unchanged) or

sell or transfer all or substantially all of the assets of the Borrower or

(ii) any person, group or entity (including the Borrower) publicly announces a

tender offer to purchase 50% or more of the Borrower's Common Stock (or any

other takeover scheme) (the date of the announcement referred to in clause (i)

or (ii) is hereinafter referred to as the   "Announcement Date"), then the

Conversion Price shall, effective upon the Announcement Date and continuing

through the Adjusted Conversion Price Termination Date (as defined below), be

equal to the lower of (x) the Conversion Price which would have been

applicable for a Conversion occurring on the Announcement Date and (y) the

Conversion Price that would otherwise be in effect. From and after the

Adjusted Conversion Price Termination Date, the Conversion Price shall be

determined as set forth in this Section 1.2(a).   For purposes hereof,

"Adjusted Conversion Price Termination Date" shall mean, with respect to any

proposed transaction or tender offer (or takeover scheme) for which a public

announcement as contemplated by this Section 1.2(b) has been made, the date

upon which the Borrower (in the case of clause (i) above) or the person, group

or entity (in the case of clause (ii) above) consummates or publicly announces

the termination or abandonment of the proposed transaction or tender offer (or

takeover scheme) which caused this Section 1.2(b) to become operative.

 

     1.3   Authorized Shares.   The Borrower covenants that during the period

the conversion right exists, the Borrower will reserve from its authorized and

unissued Common Stock a sufficient number of shares, free from preemptive

rights, to provide for the issuance of Common Stock upon the full conversion

of this Note and the other Notes issued pursuant to the Purchase Agreement.

The Borrower is required at all times to have authorized and reserved two

times the number of shares that is actually issuable upon full conversion of

the Notes (based on the Conversion Price of the Notes or the Exercise Price of

the Warrants in effect from time to time) (the "Reserved Amount").   The

Reserved Amount shall be increased from time to time in accordance with the

Borrower's obligations pursuant to Section 4(h) of the Purchase Agreement.

The Borrower represents that upon issuance, such shares will be duly and

validly issued, fully paid and non-assessable.   In addition, if the Borrower

shall issue any securities or make any change to its capital structure which

would change the number of shares of Common Stock into which the Notes shall

be convertible at the then current Conversion Price, the Borrower shall at the

same time make proper provision so that thereafter there shall be a sufficient

number of shares of Common Stock authorized and reserved, free from preemptive

rights, for conversion of the outstanding Notes.   The Borrower (i)

acknowledges that it has irrevocably instructed its transfer agent to issue

certificates for the Common Stock issuable upon conversion of this Note, and

(ii) agrees that its issuance of this Note shall constitute full authority to

its officers and agents who are charged with the duty of executing stock

certificates to execute and issue the necessary certificates for shares of

Common Stock in accordance with the terms and conditions of this Note.

 

     If, at any time a Holder of this Note submits a Notice of Conversion, and

the Borrower does not have sufficient authorized but unissued shares of Common

Stock available to effect such conversion in accordance with the provisions of

this Article I (a "Conversion Default"), subject to Section 4.8, the Borrower

shall issue to the Holder all of the shares of Common Stock which are then

available to effect such conversion.   The portion of this Note which the

Holder included in its Conversion Notice and which exceeds the amount which is

then convertible into available shares of Common Stock (the "Excess Amount")

shall, notwithstanding anything to the contrary contained herein, not be

convertible into Common Stock in accordance with the terms hereof until (and

at the Holder's option at any time after) the date additional shares of Common

Stock are authorized by the Borrower to permit such conversion, at which time

the Conversion Price in respect thereof shall be the lesser of (i) the

Conversion Price on the Conversion Default Date (as defined below) and (ii)

the Conversion Price on the Conversion Date thereafter elected by the Holder

in respect thereof.   In addition, the Borrower shall pay to the Holder

payments ("Conversion Default Payments") for a Conversion Default in the

amount of (x) the sum of (1) the then outstanding principal amount of this

Note plus (2) accrued and unpaid interest on the unpaid principal amount of

this Note through the Authorization Date (as defined below) plus (3) Default

Interest, if any, on the amounts referred to in clauses (1) and/or (2),

multiplied by (y) .24, multiplied by (z) (N/365), where N = the number of days

from the day the holder submits a Notice of Conversion giving rise to a

Conversion Default (the "Conversion Default Date") to the date (the

"Authorization Date") that the Borrower authorizes a sufficient number of

shares of Common Stock to effect conversion of the full outstanding principal

balance of this Note.   The Borrower shall use its best efforts to authorize a

sufficient number of shares of Common Stock as soon as practicable following

the earlier of (i) such time that the Holder notifies the Borrower or that the

Borrower otherwise becomes aware that there are or likely will be insufficient

authorized and unissued shares to allow full conversion thereof and (ii) a

Conversion Default.   The Borrower shall send notice to the Holder of the

authorization of additional shares of Common Stock, the Authorization Date and

the amount of Holder's accrued Conversion Default Payments.   The accrued

Conversion Default Payments for each calendar month shall be paid in cash or

shall be convertible into Common Stock (at such time as there are sufficient

authorized shares of Common Stock) at the applicable Conversion Price, at the

Borrower's option, as follows:

 

          (a)   In the event Holder elects to take such payment in cash, cash

payment shall be made to Holder by the fifth (5th) day of the month following

the month in which it has accrued; and

 

           (b)   In the event Holder elects to take such payment in Common

Stock, the Holder may convert such payment amount into Common Stock at the

Conversion Price (as in effect at the time of conversion) at any time after

the fifth day of the month following the month in which it has accrued in

accordance with the terms of this Article I (so long as there is then a

sufficient number of authorized shares of Common Stock).

 

     The Holder's election shall be made in writing to the Borrower at any

time prior to 6:00 p.m., New York, New York time, on the third day of the

month following the month in which Conversion Default payments have accrued.

If no election is made, the Holder shall be deemed to have elected to receive

cash.   Nothing herein shall limit the Holder's right to pursue actual damages

(to the extent in excess of the Conversion Default Payments) for the

Borrower's failure to maintain a sufficient number of authorized shares of

Common Stock, and each holder shall have the right to pursue all remedies

available at law or in equity (including degree of specific performance and/or

injunctive relief).

 

     1.4   Method of Conversion.

 

          (a)   Mechanics of Conversion.   Subject to Section 1.1, this Note may

be converted by the Holder in whole or in part at any time from time to time

after the Issue Date, by (A) submitting to the Borrower a Notice of Conversion

(by facsimile or other reasonable means of communication dispatched on the

Conversion Date prior to 6:00 p.m., New York, New York time) and (B) subject

to Section 1.4(b), surrendering this Note at the principal office of the

Borrower.  

 

          (b)   Surrender of Note Upon Conversion.   Notwithstanding anything to

the contrary set forth herein, upon conversion of this Note in accordance with

the terms hereof, the Holder shall not be required to physically surrender

this Note to the Borrower unless the entire unpaid principal amount of this

Note is so converted.   The Holder and the Borrower shall maintain records

showing the principal amount so converted and the dates of such conversions or

shall use such other method, reasonably satisfactory to the Holder and the

Borrower, so as not to require physical surrender of this Note upon each such

conversion.   In the event of any dispute or discrepancy, such records of the

Borrower shall be controlling and determinative in the absence of manifest

error.   Notwithstanding the foregoing, if any portion of this Note is

converted as aforesaid, the Holder may not transfer this Note unless the

Holder first physically surrenders this Note to the Borrower, whereupon the

Borrower will forthwith issue and deliver upon the order of the Holder a new

Note of like tenor, registered as the Holder (upon payment by the Holder of

any applicable transfer taxes) may request, representing in the aggregate the

remaining unpaid principal amount of this Note.   The Holder and any assignee,

by acceptance of this Note, acknowledge and agree that, by reason of the

provisions of this paragraph, following conversion of a portion of this Note,

the unpaid and unconverted principal amount of this Note represented by this

Note may be less than the amount stated on the face hereof.

 

          (c)   Payment of Taxes.   The Borrower shall not be required to pay

any tax which may be payable in respect of any transfer involved in the issue

and delivery of shares of Common Stock or other securities or property on

conversion of this Note in a name other than that of the Holder (or in street

name), and the Borrower shall not be required to issue or deliver any such

shares or other securities or property unless and until the person or persons

(other than the Holder or the custodian in whose street name such shares are

to be held for the Holder's account) requesting the issuance thereof shall

have paid to the Borrower the amount of any such tax or shall have established

to the satisfaction of the Borrower that such tax has been paid.

 

          (d)   Delivery of Common Stock Upon Conversion.   Upon receipt by the

Borrower from the Holder of a facsimile transmission (or other reasonable

means of communication) of a Notice of Conversion meeting the requirements for

conversion as provided in this Section 1.4, the Borrower shall issue and

deliver or cause to be issued and delivered to or upon the order of the Holder

certificates for the Common Stock issuable upon such conversion within three

(3) business days after such receipt (and, solely in the case of conversion of

the entire unpaid principal amount hereof, surrender of this Note) (such third

business day being hereinafter referred to as the "Deadline") in accordance

with the terms hereof and the Purchase Agreement (including, without

limitation, in accordance with the requirements of Section 2(g) of the

Purchase Agreement that certificates for shares of Common Stock issued on or

after the effective date of the Registration Statement upon conversion of this

Note shall not bear any restrictive legend).

 

          (e)   Obligation of Borrower to Deliver Common Stock.   Upon receipt

by the Borrower of a Notice of Conversion, the Holder shall be deemed to be

the holder of record of the Common Stock issuable upon such conversion, the

outstanding principal amount and the amount of accrued and unpaid interest on

this Note shall be reduced to reflect such conversion, and, unless the

Borrower defaults on its obligations under this Article I, all rights with

respect to the portion of this Note being so converted shall forthwith

terminate except the right to receive the Common Stock or other securities,

cash or other assets, as herein provided, on such conversion.   If the Holder

shall have given a Notice of Conversion as provided herein, the Borrower's

obligation to issue and deliver the certificates for Common Stock shall be

absolute and unconditional, irrespective of the absence of any action by the

Holder to enforce the same, any waiver or consent with respect to any

provision thereof, the recovery of any judgment against any person or any

action to enforce the same, any failure or delay in the enforcement of any

other obligation of the Borrower to the holder of record, or any setoff,

counterclaim, recoupment, limitation or termination, or any breach or alleged

breach by the Holder of any obligation to the Borrower, and irrespective of

any other circumstance which might otherwise limit such obligation of the

Borrower to the Holder in connection with such conversion.   The Conversion

Date specified in the Notice of Conversion shall be the Conversion Date so

long as the Notice of Conversion is received by the Borrower before 6:00 p.m.,

New York, New York time, on such date.

    

          (f)   Delivery of Common Stock by Electronic Transfer.   In lieu of

delivering physical certificates representing the Common Stock issuable upon

conversion, provided the Borrower's transfer agent is participating in the

Depository Trust Company ("DTC") Fast Automated Securities Transfer ("FAST")

program, upon request of the Holder and its compliance with the provisions

contained in Section 1.1 and in this Section 1.4, the Borrower shall use its

best efforts to cause its transfer agent to electronically transmit the Common

Stock issuable upon conversion to the Holder by crediting the account of

Holder's Prime Broker with DTC through its Deposit Withdrawal Agent Commission

("DWAC") system.

 

          (g)   Failure to Deliver Common Stock Prior to Deadline.   Without in

any way limiting the Holder's right to pursue other remedies, including actual

damages and/or equitable relief, the parties agree that if delivery of the

Common Stock issuable upon conversion of this Note is more than two (2) days

after the Deadline (other than a failure due to the circumstances described in

Section 1.3 above, which failure shall be governed by such Section) the

Borrower shall pay to the Holder $2,000 per day in cash, for each day beyond

the Deadline that the Borrower fails to deliver such Common Stock.   Such cash

amount shall be paid to Holder by the fifth day of the month following the

month in which it has accrued or, at the option of the Holder (by written

notice to the Borrower by the first day of the month following the month in

which it has accrued), shall be added to the principal amount of this Note, in

which event interest shall accrue thereon in accordance with the terms of this

Note and such additional principal amount shall be convertible into Common

Stock in accordance with the terms of this Note.

 

     1.5   Concerning the Shares.   The shares of Common Stock issuable upon

conversion of this Note may not be sold or transferred unless   (i) such shares

are sold pursuant to an effective registration statement under the Act or (ii)

the Borrower or its transfer agent shall have been furnished with an opinion

of   counsel (which opinion shall be in form, substance and scope customary for

opinions of counsel in comparable transactions) to the effect that the shares

to be sold or transferred may be sold or transferred pursuant to an exemption

from such registration or (iii) such shares are sold or transferred pursuant

to Rule 144 under the Act (or a successor rule) ("Rule 144") or (iv) such

shares are transferred to an "affiliate" (as defined in Rule 144) of the

Borrower who agrees to sell or otherwise transfer the shares only in

accordance with this Section 1.5 and who is an Accredited Investor (as defined

in the Purchase Agreement).   Except as otherwise provided in the Purchase

Agreement (and subject to the removal provisions set forth below), until such

time as the shares of Common Stock issuable upon conversion of this Note have

been registered under the Act as contemplated by the Registration Rights

Agreement or otherwise may be sold pursuant to Rule 144 without any

restriction as to the number of securities as of a particular date that can

then be immediately sold, each certificate for shares of Common Stock issuable

upon conversion of this Note that has not been so included in an effective

registration statement or that has not been sold pursuant to an effective

registration statement or an exemption that permits removal of the legend,

shall bear a legend substantially in the following form, as appropriate:

 

     "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN

     REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.   THE

     SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE

     OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER

     SAID ACT, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE

     CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT

     REGISTRATION IS NOT REQUIRED UNDER SAID ACT UNLESS SOLD PURSUANT

     TO RULE 144 OR REGULATION S UNDER SAID ACT."

 

     The legend set forth above shall be removed and the Borrower shall issue

to the Holder a new certificate therefor free of any transfer legend if (i)

the Borrower or its transfer agent shall have received an opinion of counsel,

in form, substance and scope customary for opinions of counsel in comparable

transactions, to the effect that a public sale or transfer of such Common

Stock may be made without registration under the Act and the shares are so

sold or transferred, (ii) such Holder provides the Borrower or its transfer

agent with reasonable assurances that the Common Stock issuable upon

conversion of this Note (to the extent such securities are deemed to have been

acquired on the same date) can be sold pursuant to Rule 144 or (iii) in the

case of the Common Stock issuable upon conversion of this Note, such security

is registered for sale by the Holder under an effective registration statement

filed under the Act or otherwise may be sold pursuant to Rule 144 without any

restriction as to the number of securities as of a particular date that can

then be immediately sold.   Nothing in this Note shall (i) limit the Borrower's

obligation under the Registration Rights Agreement or (ii) affect in any way

the Holder's obligations to comply with applicable prospectus delivery

requirements upon the resale of the securities referred to herein.

 

     1.6   Effect of Certain Events.

 

          (a)   Effect of Merger, Consolidation, Etc.   At the option of the

Holder, the sale, conveyance or disposition of all or substantially all of the

assets of the Borrower, the effectuation by the Borrower of a transaction or

series of related transactions in which more than 50% of the voting power of

the Borrower is disposed of, or the consolidation, merger or other business

combination of the Borrower with or into any other Person (as defined below)