SUBORDINATED CONVERTIBLE DEBENTURE
Exhibit 10.8
$[Amount]
|
Greenwood Village, Colorado | |
| [January___, 2006] |
FOR VALUE RECEIVED, A SMART MOVE L.L.C., a Colorado limited liability company, 0000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, and its successors and assigns, (the “Maker”)
promises to pay to the order of [INVESTOR] at [INVESTOR ADDRESS] (the “Holder”) or at such other
place as Holder may from time to time designate in writing, the principal sum of [Seven Thousand
Five Hundred Dollars ($7,500.00)] in lawful money of the United States of America, together with
interest on so such thereof as is from time to time outstanding at the rate hereinafter provided,
and payable as hereinafter provided.
1. Interest Rate. The unpaid balance of this Debenture shall bear interest at the
rate of six percent (10%) per annum, simple interest.
2. Payment/Maturity Date. Interest on the Debenture shall be paid annually, on the
31st day of December, beginning December 31, 2006, and continuing until (a) the
Debenture entire principal amount of the Debenture has been converted pursuant to paragraph 5
below, or (b) the total outstanding principal balance hereof, together with accrued and unpaid
interest, is be paid.
3. Default Interest and Attorney Fees. Upon declaration of a default hereunder, the
balance of the principal remaining unpaid, interest accrued thereon, and all other costs, and fees
shall bear interest at the rate of eighteen percent (18%) per annum from the date of default. In
the event of default, the Maker and all other parties liable hereon agree to pay all costs of
collection, including reasonable attorneys’ fees.
4. Interest Calculation. Daily interest shall be calculated on a 365-day year and the
actual number of days in each month.
5. Conversion. Holder may convert the balance of the Debenture, or any portion
thereof, and all accrued interest into common shares of the Company at any time. The conversion
price shall be the lower of (a) $7.50 per share or (b) 75% of the initial unit (or share, if shares
are offered to the public instead of units) offering price to the public in the Company’s initial
public offering (“IPO”) but not lower than $5.00.
6. Prepayment. This Debenture may be prepaid, in whole only, at any time without
premium or penalty. The Company may exercise its right to prepay all or a portion of the
outstanding principal balance by sending to Holder ten (10) days’ prior written notice of such
prepayment.
7. Costs of Collection. Maker agrees that if, and as often as, this Debenture is
placed in the hands of an attorney for collection or to defend or enforce any of Holder’s rights
hereunder or under any instrument securing payment of this Debenture, Maker shall pay to Holder its
reasonable attorneys’ fees and all court costs and other expenses incurred in connection therewith,
regardless of whether a lawsuit is ever commenced or whether, if commenced, the same proceeds to
judgment or not. Such costs and expenses shall include, without limitation, all costs, reasonable
attorneys’ fees, and expenses incurred by Holder in connection with any insolvency, bankruptcy,
reorganization, foreclosure, deed in lieu of foreclosure or similar proceedings involving Maker or
any endorser, surety, guarantor, or other person liable for this Debenture which in any way affect
the exercise by Holder of its rights and remedies under
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this Debenture, or any other document or instrument securing, evidencing, or relating to the
indebtedness evidenced by this Debenture.
8. Default. At the option of Holder, the unpaid principal balance of this Debenture
and all accrued interest thereon shall become immediately due, payable, and collectible, without
notice or demand, upon the occurrence at any time of any of the following events, each of which
shall be deemed to be an event of default hereunder.
(a) Maker’s failure to make any payment of principal, interest, or other charges on or
before the date on which such payment becomes due and payable under this Debenture;
(b) Maker’s breach or violation of any agreement or covenant contained in this
Debenture, or in any other document or instrument securing, evidencing, or relating to the
indebtedness evidenced by this Debenture;
(c) The default in (a) any material agreement to which Maker is a party, (b) any Notes,
or any agreement referenced therein or related thereto and such default (i) occurs at the
final maturity of the obligations thereunder or (ii) results in a right by the other party
thereto, irrespective of whether exercised, to accelerate the maturity of the Maker’s
obligations thereunder, to terminate such agreement, or to refuse to renew such agreement
pursuant to an automatic renewal right therein;
(d) Dissolution, liquidation or termination of Maker.
9. Application of Payments. Any payment made against the indebtedness evidenced by
this Debenture shall be applied against the following items in the following order: (1) costs of
collection, including reasonable attorneys’ fees incurred or paid and all costs, expenses, default
interest, late charges and other expenses incurred by Xxxxxx and reimbursable to Holder pursuant to
this Debenture (as described herein); (2) default interest accrued to the date of said payment; (3)
ordinary interest accrued to the date of said payment; and (4) finally, outstanding principal.
10. Assignment of Debenture. This Debenture may not be assigned by Maker, except to a
corporation into which Maker merges. The Debenture may be assigned by Xxxxxx with the express
written consent of the Maker.
11. Non-Waiver. No delay or omission on the part of Holder in exercising any rights
or remedy hereunder shall operate as a waiver of such right or remedy or of any other right or
remedy under this Debenture. A waiver on any one or more occasion shall not be construed as a bar
to or waiver of any such right and/or remedy on any future occasion.
12. Maximum Interest. In no event whatsoever shall the amount paid, or agreed to be
paid, to Holder for the use, forbearance, or retention of the money to be loaned hereunder
(“Interest”) exceed the maximum amount permissible under applicable law. If the performance or
fulfillment of any provision hereof, or any agreement between Maker and Holder shall result in
Interest exceeding the limit for Interest prescribed by law, then the amount of such Interest shall
be reduced to such limit. If, from any circumstance whatsoever, Holder should receive as Interest
an amount which would exceed the highest lawful rate, the amount which would be excessive Interest
shall be applied to the reduction of the principal balance owing hereunder (or, at the option of
Holder, be paid over to Maker) and not to the payment of Interest.
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13. Purpose of Loan. Maker certifies that the loan evidenced by this Debenture is
obtained for business or commercial purposes and that the proceeds thereof will not be used
primarily for personal, family, household or agricultural purposes.
14. Waiver of Presentment. Maker and the endorsers, sureties, guarantors and all
persons who may become liable for all or any part of this obligation shall be jointly and severally
liable for such obligation and hereby jointly and severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest, and any and all lack of diligence or
delays in collection or enforcement hereof. Said parties consent to any modification or extension
of time (whether one or more) of payment hereof, the release of all or any part of the security for
the payment hereof, and the release of any party liable for payment of this obligation. Any
modification, extension, or release may be without notice to any such party and shall not discharge
said party’s liability hereunder.
15. Governing Law. As an additional consideration for the extension of credit, Maker
and each endorser, surety, guarantor, and any other person who may become liable for all or any
part of this obligation understand and agree that the loan evidenced by this Debenture is made in
the State of Colorado and the provisions hereof will be construed in accordance with the laws of
the State of Colorado, and such parties further agree that in the event of default this Debenture
may be enforced in any court of competent jurisdiction in the State of Colorado, and they do hereby
submit to the jurisdiction of such court regardless of their residence or where this Debenture or
any endorsement hereof may be executed.
16. Binding Effect. The term “Maker” as used herein shall include the original Maker
of this Debenture and any party who may subsequently become liable for the payment hereof as an
assumer with the consent of the Holder, provided that Holder may, at its option, consider the
original Maker of this Debenture alone as Maker unless Xxxxxx has consented in writing to the
substitution of another party as Maker. “Maker” shall include any corporation into which A Smart
Move L.L.C. merges.
17. Relationship of Parties. Nothing herein contained shall create or be deemed or
construed to create a joint venture or partnership between Maker and Xxxxxx, Xxxxxx is acting
hereunder as a lender only.
18. Severability. Invalidation of any of the provisions of this Debenture or of any
paragraph, sentence, clause, phrase, or word herein, or the application thereof in any given
circumstance, shall not affect the validity of the remainder of this Debenture.
19. Amendment. This Debenture may not be amended, modified, or changed, except only
by an instrument in writing signed by both of the parties.
20. Time of the Essence. Time is of the essence for the performance of each and every
obligation of Maker hereunder.
IN WITNESS WHEREOF, the undersigned has executed this Debenture this ___day of December,
2005.
| A SMART MOVE L.L.C. a Colorado Limited Liability Company |
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| By: | ||||||
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