Form of 15% Debenture
Exhibit
10.1
Form
of 15% Debenture
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE ON 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 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.
November
15, 2006 $___________
15%
DEBENTURE
FOR
VALUE RECEIVED,
the
undersigned, Theater Xtreme Entertainment Group, Inc., a Florida corporation
(the “Company”), hereby promises to pay to the order of Xxxxxx Xxxxxx, an
individual (the “Payee”), the sum of _________________ Thousand Dollars
($_____________), together with interest on the unpaid principal balance thereof
as set forth below.
Maturity.
All
principal, accrued interest, and other amounts due hereunder shall be due and
payable on November 30, 2007 (the “Maturity Date”). The Company may prepay the
amounts due under this Debenture at any time in whole or in part on not less
than twenty (20) days’ prior written notice to the holder; provided, however,
that any prepayment of principal shall be accompanied by a prepayment fee equal
to five percent (5%) of the amount of such principal prepayment.
Interest.
The
Company shall pay interest to the holder on the aggregate outstanding principal
amount of this Debenture at the rate of fifteen percent (15%) per annum, payable
monthly on the last day of each calendar month commencing on December 31, 2006.
If any interest payment date is not a Business Day (as defined in subsection
6(k)), then the applicable payment shall be due on the next succeeding Business
Day.
Xxxxxx’s
Right to Participate in Offering.
If
the
Company, at any time while this Debenture is outstanding, shall sell any Common
Stock or other securities and the gross proceeds of such sales do not exceed
One
Million Dollars ($1,000,000), then the Company shall notify the holder, not
later than ten (10) days following any such sale, of the price and other
principal terms of such sale.
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Thereupon,
the holder shall have the right, by giving notice to the Company within ten
(10)
days of receiving the Company’s notice of such sale, to purchase shares of
Common Stock or other securities, as the case may be, that were sold by the
Company in such sale at the same price per share (or per security, as the case
may be) and on the same other principal terms of such sale as that paid to
the
Company in such sale and, if holder so elects in his notice to the Company,
to
pay
such
purchase price by exchange and cancellation of all or a portion of the then
unpaid principal balance of this Debenture.
In
no
case may the holder purchase shares of Common Stock or other securities pursuant
to this Section 3 for an aggregate purchase price in excess of the then unpaid
principal balance of this Debenture.
For
the
avoidance of doubt, any sale in an aggregate amount in excess of One Million
Dollars ($1,000,000) shall not give rise to holder’s right to purchase shares of
Common Stock or other securities in this Section 3.
The
holder’s rights set forth in this Section 3 shall terminate and be of no further
force or effect if holder fails to exercise his rights hereunder when first
given the opportunity to do so.
Time
is
of the essence in the exercise of xxxxxx’s rights under this Section
3.
Applications
of Payment. All payments, whenever made, shall be applied first, to the payment
of all fees and expenses required to be paid by the Company; second, to the
payment of accrued interest; and third, to the reduction of the unpaid principal
balance of this Debenture. All payments required to be made hereunder shall
be
made in lawful currency of the United States of America.
Waiver.
The Company hereby waives presentment for payment, demand, protest, notice
of
dishonor, notice of presentment, notice of protest, and all other notices to
which it may be entitled, and which may be waived in advance.
Miscellaneous.
Indulgences,
Etc. Neither the failure nor any delay on the part of either party to exercise
any right, remedy, power or privilege under this Debenture shall operate as
a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of
any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Controlling
Law.
This
Debenture and all questions relating to its validity, interpretation,
performance and enforcement (including, without limitation, provisions
concerning
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limitations
of actions), shall be governed by and construed in accordance with the laws
of
the State of Delaware, notwithstanding any conflict-of-laws doctrines of any
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
Notices.
All
notices, requests, demands and other communications required or permitted under
this Debenture shall be in writing and shall be deemed to have been duly given,
made and received only when delivered (personally, by courier service such
FedEx
or by other messenger) against receipt or upon actual receipt of registered
or
certified mail, postage prepaid, return receipt requested, addressed as set
forth below:
If
to the
Company:
000
Xxxxxxxxx Xxxxxxxxx
Suites
E&F
Newark,
Delaware 19702
Attention:
President
If
to
Payee, to the address set forth on the signature page.
In
addition, notice by mail shall be sent by a reputable international courier
(such as FedEx) if posted outside of the continental United States. Any party
may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this
subsection for the giving of notice.
Exhibits.
All
Exhibits attached hereto are hereby incorporated by reference into, and made
a
part of, this Debenture.
Binding
Nature of Debenture; No Assignment.
This
Debenture shall be binding upon and inure to the benefit of the Company and
the
Payee and their respective heirs, personal representatives, successors and
assigns, except that neither the Company nor the Payee may assign or transfer
its rights nor delegate its obligations under this Debenture without the prior
written consent of the other parties hereto.
Provisions
Separable.
The
provisions of this Debenture are independent of and separable from each other,
and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part.
Entire
Agreement.
This
Debenture contains the entire understanding among the parties hereto with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage of
the
trade inconsistent with any of
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the
terms
hereof. This Debenture may not be modified or amended other than by an agreement
in writing.
Section
Headings.
The
Section and subsection headings in this Debenture have been inserted for
convenience of reference only; they form no part of this Debenture and shall
not
affect its interpretation.
Gender,
Etc.
Words
used herein, regardless of the number and gender specifically used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context indicates is
appropriate.
Number
of Days.
In
computing the number of days for purposes of this Debenture, all days shall
be
counted, including Saturdays, Sundays and Holidays; provided, however, that
if
the final day of any time period falls on a Saturday, Sunday or Holiday, then
the final day shall be deemed to be the next day which is not a Saturday, Sunday
or Holiday. For purposes of this Debenture, the term “Holiday” shall mean a day,
other than a Saturday or Sunday, on which national banks with branches in the
State of Delaware are or may elect to be closed. A “Business Day” is a day other
than a Saturday, Sunday, or Holiday.
IN
WITNESS WHEREOF,
the
Company has executed this Debenture as of the date first above
written.
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By:___________________________________
Name:
Title:
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