SECURED DEBENTURE
Exhibit
A
NEITHER
THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXCHANGEABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXCHANGE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER
LOAN SECURED BY SUCH SECURITIES.
|
Principal
Amount: $__________
|
Issue
Date: April ___,
2006
|
SECURED
DEBENTURE
FOR
VALUE
RECEIVED, MOBILIER INC., a Delaware corporation (hereinafter called “Borrower”),
hereby promises to pay to _____________________________________________, Fax:
____________ (the “Holder”) or order, without demand, the sum of
________________ Dollars ($________), with interest accruing at the compounded
annual rate of ten percent (10%), on October ___, 2007 (the “Maturity Date”).
This
Debenture has been entered into pursuant to the terms of a Securities Purchase
Agreement between the Borrower and the Holder, dated of even date herewith
(the
“Purchase Agreement”), and shall be governed by the terms of such Purchase
Agreement. Unless otherwise separately defined herein, all capitalized terms
used in this Debenture shall have the same meaning as is set forth in the
Purchase Agreement. The following terms shall apply to this
Debenture:
ARTICLE
I
GENERAL
PROVISIONS
1.1
Prepayment.
The
Debenture shall be payable in full on the Maturity Date; and may not be prepaid
without the consent of the Holder.
1.2
Interest
Rate.
Simple
interest payable on this Debenture shall accrue at the annual rate of ten
percent (10%) and be payable on the Maturity Date, accelerated or otherwise,
when the principal and remaining accrued but unpaid interest shall be due
and
payable. If an Event of Default (as defined below)
occurs, whether or not such Event of Default is cured, the interest rate
of this
Debenture shall accrue from the Issue Date at the annual compounded rate
of
eighteen percent (18%).
1
1.3
Payment
Grace Period.
The
Borrower shall have a five (5) business day grace period to pay any monetary
amounts due under this Debenture.
1.4
Exchange.
This
Debenture is exchangeable for Exchange Securities as described in and under
the
terms of the Purchase Agreement. The Exchange Debentures, assuming complete
conversion into Common Stock at the conversion price in effect on the Qualified
Offering Closing Date, in the aggregate shall represent, for each $1,000,000
of
initial principal amount of Debentures being exchanged, not less than _____%
of
the Fully Diluted Outstanding Capital Stock of Borrower after giving effect
to
the Exchange and the Qualified Offering as of the Qualified Offering Closing
Date.
ARTICLE
II
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:
2.1
Failure
to Pay Principal or Interest.
The
Borrower fails to pay any installment of principal, interest or other sum due
under this Debenture when due and such failure continues for a period of five
(5) business days after the due date. The five (5) business day period described
in this Section 2.1 is the same five (5) business day period described in
Section 1.3 hereof.
2.2
Breach
of Covenant.
The
Borrower breaches any material covenant or other term or condition of the
Purchase Agreement or this Debenture 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.
2.3
Breach
of Representations and Warranties.
Any
material representation or warranty of the Borrower made herein, in the Purchase
Agreement, or in any agreement, statement or certificate given in writing
pursuant hereto or in connection therewith shall be false or misleading in
any
material respect as of the date made or as of the Closing Date.
2.4
Receiver
or Trustee.
The
Borrower shall make an assignment for the benefit of creditors, or apply for
or
consent to the appointment of a receiver or trustee for it or for a substantial
part of its property or business; or such a receiver or trustee shall otherwise
be appointed.
2.5
Judgments.
Any
money judgment, writ or similar final process shall be entered or filed against
Borrower or any of its property or other assets for more than $50,000, and
shall
remain unvacated, unbonded or unstayed for a period of forty-five (45) days.
2.6
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 and if instituted against Borrower are
not
dismissed within 45 days of initiation.
2
2.7
Listing
Default.
The
occurrence of a Listing Default (as defined in the Securities Purchase
Agreement).
2.8
Qualified
Offering.
If the
closing of the Qualified Offering does not occur within six months after the
Closing Date (as defined in the Securities Purchase Agreement).
2.9
Cross
Default.
A
default by the Borrower of a material term, covenant, warranty or undertaking
of
any 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
III
SECURITY
INTEREST
3.
Security
Interest/Waiver of Automatic Stay.
This
Debenture 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
Debenture. 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 Debenture 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
IV
MISCELLANEOUS
4.1
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.
3
4.2
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: Mobilier Inc., ▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO & President,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy by telecopier only to: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopier: (▇▇▇)
▇▇▇-▇▇▇▇, and (ii) if to the Holder, to the name, address and telecopy number
set forth on the front page of this Debenture, with a copy by telecopier only
to
Grushko & ▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇.
4.3
Amendment
Provision.
The
term “Debenture” 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.
4.4
Assignability.
This
Debenture 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.
4.5
Cost
of Collection.
If
default is made in the payment of this Debenture, Borrower shall pay the Holder
hereof reasonable costs of collection, including reasonable attorneys’ fees.
4.6
Governing
Law.
This
Debenture shall be governed by and construed in accordance with the laws of
the
State of New York. 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, in each case sitting
in The City of New York, Borough of Manhattan. . Both
parties and the individual signing this Agreement 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.
4.7
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.
4
4.8
Redemption.
This
Debenture may not be redeemed or called without the consent
of the Holder.
IN
WITNESS WHEREOF,
▇▇▇▇▇▇▇▇ has caused this Debenture to be signed in its name by an authorized
officer as of the ____ day of April, 2006.
| MOBILIER INC. | ||
| By: |  |
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO & President |
||
| WITNESS: | ||
|
|
||
5