EXHIBIT 99.2
THIS SECURITY HAS NOT 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. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITY.
Original Issue Date: June 1, 2005
$_______________
SECURED DEBENTURE
THIS SECURED DEBENTURE is one of a series of duly authorized and issued
Secured Debentures of All American Plazas, Inc., a __________________
corporation, having a principal place of business at
_____________________________ (the "COMPANY"), Yosemite Development Corp., a
Delaware corporation, having a principal place of business at ________________
("YOSEMITE") and Mountainside Development, LLC, a Delaware limited liability
company, having a principal place of business at ____________ ("MOUNTAINSIDE"
and the Company, Yosemite and Mountainside, collectively, the "BORROWERS" and
Yosemite and Mountainside, collectively, the "SUBSIDIARY BORROWERS"), designated
as, to each Borrower, its Secured Debenture (the "DEBENTURES").
FOR VALUE RECEIVED, the Borrowers, jointly and severally, promise to pay
to ________________________ or its registered assigns (the "HOLDER"), or shall
have paid pursuant to the terms hereunder, the principal sum of $_______________
on June ___, 2007 or such earlier date as the Debentures are required or
permitted to be repaid as provided hereunder (the "MATURITY DATE"), and to pay
interest to the Holder on the then outstanding principal amount of this
Debenture in accordance with the provisions hereof. This Debenture is subject to
the following additional provisions:
SECTION 1. DEFINITIONS. For the purposes hereof, in addition to the
terms defined elsewhere in this Debenture: (a) capitalized terms not otherwise
defined herein have the meanings given to such terms in the Purchase Agreement,
and (b) the following terms shall have the following meanings:
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"BUSINESS DAY" means any day except Saturday, Sunday and any day
which shall be a federal legal holiday in the United States or a day on
which banking institutions in the State of New York are authorized or
required by law or other government action to close.
"CHANGE OF CONTROL TRANSACTION" means the occurrence after the
date hereof of any of (a) an acquisition after the date hereof by an
individual or legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of the Company,
by contract or otherwise) of in excess of 40% of the voting securities
of the Company, or (b) the Company merges into or consolidates with any
other Person, or any Person merges into or consolidates with the Company
and, after giving effect to such transaction, the stockholders of the
Company immediately prior to such transaction own less than 60% of the
aggregate voting power of the Company or the successor entity of such
transaction, or (c) the Company sells or transfers its assets, as an
entirety or substantially as an entirety, to another Person and the
stockholders of the Company immediately prior to such transaction own
less than 60% of the aggregate voting power of the acquiring entity
immediately after the transaction, (d) a replacement at one time or
within a three year period of more than one-half of the members of the
Company's board of directors which is not approved by a majority of
those individuals who are members of the board of directors on the date
hereof (or by those individuals who are serving as members of the board
of directors on any date whose nomination to the board of directors was
approved by a majority of the members of the board of directors who are
members on the date hereof), or (e) the execution by the Company of an
agreement to which the Company is a party or by which it is bound,
providing for any of the events set forth above in (a) or (d).
"COMMON STOCK" means the common stock, par value $____ per
share, of the Company and stock of any other class of securities into
which such securities may hereafter have been reclassified or changed
into.
"DEBENTURE REGISTER" shall have the meaning set forth in Section
2(b).
"EVENT OF DEFAULT" shall have the meaning set forth in Section
5.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FUNDAMENTAL TRANSACTION" shall mean (a) the Company effects any
merger or consolidation of the Company with or into another Person, (b)
the Company effects any sale of all or substantially all of its assets
in one or a series of related transactions, (c) any tender offer or
exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Stock are permitted to tender or
exchange their shares for other securities, cash or property, or (d) the
Company effects any reclassification of the Common Stock or any
compulsory share exchange pursuant to
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which the Common Stock is effectively converted into or exchanged for
other securities, cash or property.
"INTEREST PAYMENT DATE" shall have the meaning set forth in
Section 2(a).
"INTEREST PERIOD" means, initially, the period beginning on and
including the Original Issue Date and ending on and including June 30,
2005 and each successive period as follows: the period beginning on and
including July 1 and ending on and including September 30; the period
beginning on and including October 1 and ending on and including
December 31; the period beginning on and including January 1 and ending
on and including March 31; and the period beginning on and including
April 1 and ending on and including June 30.
"LATE FEES" shall have the meaning set forth in Section 2(c).
"LIBOR" means, for each Interest Period (i) the three-month
London Interbank Offered Rate for deposits in U.S. dollars, as shown on
such the Trading Day immediately prior to the beginning of such Interest
Period in The Wall Street Journal (Eastern Edition) under the caption
"Money Rates - London Interbank Offered Rates (LIBOR)"; or (ii) if The
Wall Street Journal does not publish such rate, the offered one-month
rate for deposits in U.S. dollars which appears on the Reuters Screen
LIBO Page as of 10:00 a.m., New York time, the Trading Day immediately
prior to the beginning of such Interest Period, provided that if at
least two rates appear on the Reuters Screen LIBO Page on any such
Trading Day, the "LIBOR" for such day shall be the arithmetic mean of
such rates.
"MANDATORY PREPAYMENT AMOUNT" for any Debentures shall equal the
sum of 125% of the principal amount of this Debenture, plus all accrued
and unpaid interest thereon and all other amounts, costs, expenses and
liquidated damages due in respect of this Debenture; PROVIDED, HOWEVER,
upon the occurrence of an Event of Default pursuant to Section
5(a)(viii), the Mandatory Prepayment Amount shall be (a) the greater of
(i) 125% of the principal amount of this Debenture and (ii) (A) the
principal amount of this Debenture divided by $3.00 (subject to
adjustment for reverse and forward stock splits and the like for the
common stock of Able Energy after the Original Issue Date) multiplied by
(B) the closing bid price of Able Energy common stock as reported by
Bloomberg Financial LP on the date such notice of default is given to
the Company by the Holder, and (b) all other amounts, costs, expenses
and liquidated damages due in respect of such Debentures.
"NEW YORK COURTS" shall have the meaning set forth in Section
6(e).
"ORIGINAL ISSUE DATE" shall mean the date of the first issuance
of the Debentures regardless of the number of transfers of any Debenture
and regardless of the number of instruments which may be issued to
evidence such Debenture.
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"PERMITTED INDEBTEDNESS" shall mean [NEED TO INSERT INDEBTEDNESS
ON PA PROPERTY].
"PERMITTED LIENS" shall mean [INSERT DESCRIPTION OF SENIOR LIEN
ON PA PROPERTY].
"PERSON" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
"PURCHASE AGREEMENT" means the Securities Purchase Agreement,
dated as of May ___, 2005, to which the Company and the original Holder
are parties, as amended, modified or supplemented from time to time in
accordance with its terms.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SUBSIDIARY" shall have the meaning given to such term in the
Purchase Agreement.
SECTION 2. INTEREST.
a) PAYMENT OF INTEREST IN CASH. The Borrowers shall pay
interest to the Holder on the aggregate unconverted and then outstanding
principal amount of this Debenture at the rate per annum equal to LIBOR
for the applicable Interest Period plus 4% or such lesser rate as shall
be the highest rate permitted by applicable law, payable quarterly on
April 1, July 1 October 1 and January 1, beginning on the first such
date after the Original Issue Date and on the Maturity Date (except
that, if any such date is not a Business Day, then such payment shall be
due on the next succeeding Business Day) (each such date, an "INTEREST
PAYMENT DATE"); PROVIDED, HOWEVER, in the event the Able Energy
Transaction has not been completed and the Able Energy Transaction
Documents have not been entered into by Able Energy and Able Energy has
not issued the securities issuable thereunder to the Holder on or before
the 6 month anniversary of the Original Issue Date, the interest rate
per annum shall thereafter equal the lesser of (i) the greater of (A)
18% and (B) LIBOR for the applicable Interest Period plus 8% or (ii)
such lesser rate as shall be the highest rate permitted by applicable
law.
b) INTEREST CALCULATIONS. Interest shall be calculated on
the basis of a 360-day year and shall accrue daily commencing on the
Original Issue Date until payment in full of the principal sum, together
with all accrued and unpaid interest and other amounts which may become
due hereunder, has been made. Interest hereunder will be paid to the
Person in whose name this Debenture is registered on the records of the
Borrowers regarding registration and transfers of Debentures (the
"DEBENTURE REGISTER").
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c) LATE FEE. All overdue accrued and unpaid interest to be
paid hereunder shall entail a late fee at the rate of 18% per annum (or
such lower maximum amount of interest permitted to be charged under
applicable law) ("LATE FEE") which will accrue daily, from the date such
interest is due hereunder through and including the date of payment.
d) PREPAYMENT. Except as otherwise set forth in this
Debenture, the Borrowers may not prepay any portion of the principal
amount of this Debenture without the prior written consent of the Holder
at any time.
SECTION 3. REGISTRATION OF TRANSFERS AND EXCHANGES.
a) DIFFERENT DENOMINATIONS. This Debenture is exchangeable
for an equal aggregate principal amount of Debentures of different
authorized denominations, as requested by the Holder surrendering the
same. No service charge will be made for such registration of transfer
or exchange.
b) INVESTMENT REPRESENTATIONS. This Debenture has been
issued subject to certain investment representations of the original
Holder set forth in the Purchase Agreement and may be transferred or
exchanged only in compliance with the Purchase Agreement and applicable
federal and state securities laws and regulations.
c) RELIANCE ON DEBENTURE REGISTER. Prior to due presentment
to the Borrowers for transfer of this Debenture, the Borrowers and any
agent of the Borrowers may treat the Person in whose name this Debenture
is duly registered on the Debenture Register as the owner hereof for the
purpose of receiving payment as herein provided and for all other
purposes, whether or not this Debenture is overdue, and neither the
Borrowers nor any such agent shall be affected by notice to the
contrary.
SECTION 4. NEGATIVE COVENANTS. So long as any portion of this Debenture
is outstanding, the Borrowers will not and will not permit any of its
Subsidiaries to directly or indirectly:
a) except for Permitted Indebtedness, enter into, create,
incur, assume, guarantee or suffer to exist any indebtedness for
borrowed money of any kind, including but not limited to, a guarantee,
on or with respect to any of the property or assets of the Subsidiary
Borrowers now owned or hereafter acquired or any interest therein or any
income or profits therefrom;
b) except for Permitted Liens, enter into, create, incur,
assume or suffer to exist any liens of any kind, on or with respect to
any of its property or assets of the Subsidiary Borrowers now owned or
hereafter acquired or any interest therein or any income or profits
therefrom;
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c) amend its certificate of incorporation, bylaws or other
charter documents so as to adversely affect any rights of the Holder;
d) repay, repurchase or offer to repay, repurchase or
otherwise acquire more than a DE MINIMIS number of shares of its Common
Stock or Common Stock Equivalents other than as to the Conversion Shares
to the extent permitted or required under the Transaction Documents or
as otherwise permitted by the Transaction Documents;
e) enter into any agreement with respect to any of the
foregoing; or
f) pay cash dividends on any equity securities of the
Borrowers.
SECTION 5. EVENTS OF DEFAULT.
a) "EVENT OF DEFAULT", wherever used herein, means any one
of the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to
any judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body):
i. any default in the payment of (A) the principal
amount of any Debenture, or (B) interest (including Late Fees)
on, or liquidated damages in respect of, any Debenture, in each
case free of any claim of subordination, as and when the same
shall become due and payable (whether on the Maturity Date or by
acceleration or otherwise);
ii. A Borrower shall fail to observe or perform any
other covenant or agreement contained in this Debenture or any
of the other Transaction Documents which failure is not cured,
if possible to cure, within the earlier to occur of (A) 5
Business Days after notice of such default sent by the Holder or
by any other Holder and (B) 10 Business Days after such Borrower
shall become or should have become aware of such failure;
iii. a default or event of default (subject to any
grace or cure period provided for in the applicable agreement,
document or instrument) shall occur under (A) any of the
Transaction Documents other than the Debentures, or (B) any
other material agreement, lease, document or instrument to which
the Borrowers or any Subsidiary are bound which default is not
cured, if possible to cure, within the earlier to occur of (A) 5
Business Days after notice of such default sent by the Holder or
by any other Holder and (B) 10 Business Days after such Borrower
shall become or should have become aware of such default.
iv. any representation or warranty made herein, in
any other Transaction Documents, in any written statement
pursuant hereto or thereto, or in any other report, financial
statement or certificate made or delivered to the Holder or any
other holder of Debentures shall be untrue or incorrect in any
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material respect as of the date when made or deemed made, which
breach is not cured, if possible to cure, within the earlier to
occur of (A) 5 Business Days after notice of such default sent
by the Holder or by any other Holder and (B) 10 Business Days
after such Borrower shall become or should have become aware of
such failure
v. (i) the Borrowers or any of its Subsidiaries
shall commence, or there shall be commenced against the
Borrowers or any such Subsidiary, a case under any applicable
bankruptcy or insolvency laws as now or hereafter in effect or
any successor thereto, or the Borrowers or any Subsidiary
commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrowers or
any Subsidiary thereof or (ii) there is commenced against the
Borrowers or any Subsidiary thereof any such bankruptcy,
insolvency or other proceeding which remains undismissed for a
period of 60 days; or (iii) the Borrowers or any Subsidiary
thereof is adjudicated by a court of competent jurisdiction
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or (iv) the
Borrowers or any Subsidiary thereof suffers any appointment of
any custodian or the like for it or any substantial part of its
property which continues undischarged or unstayed for a period
of 60 days; or (v) the Borrowers or any Subsidiary thereof makes
a general assignment for the benefit of creditors; or (vi) the
Borrowers shall fail to pay, or shall state that it is unable to
pay, or shall be unable to pay, its debts generally as they
become due; or (vii) the Borrowers or any Subsidiary thereof
shall call a meeting of its creditors with a view to arranging a
composition, adjustment or restructuring of its debts; or (viii)
the Borrowers or any Subsidiary thereof shall by any act or
failure to act expressly indicate its consent to, approval of or
acquiescence in any of the foregoing; or (ix) any corporate or
other action is taken by the Borrowers or any Subsidiary thereof
for the purpose of effecting any of the foregoing;
vi. the Borrowers or any Subsidiary shall default in
any of its obligations under any mortgage, credit agreement or
other facility, indenture agreement, factoring agreement or
other instrument under which there may be issued, or by which
there may be secured or evidenced any indebtedness for borrowed
money or money due under any long term leasing or factoring
arrangement of the Borrowers in an amount exceeding $250,000,
whether such indebtedness now exists or shall hereafter be
created and such default shall result in such indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable.
vii. Other than with respect to the Able Energy
Transaction, the Borrowers shall be a party to any Change of
Control Transaction or Fundamental Transaction, shall agree to
sell or dispose of all or in excess of 40% of its assets in one
or more transactions (whether or not such sale would constitute
a Change of Control Transaction) or shall redeem or repurchase
more than a de minimis
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number of its outstanding shares of Common Stock or other equity
securities of the Company (other than repurchases of shares of
Common Stock or other equity securities of departing officers
and directors of the Company; provided such repurchases shall
not exceed $100,000, in the aggregate, for all officers and
directors during the term of this Debenture); or
viii. the Able Energy Transaction shall have not been
completed on or prior to the date which is the 12 month
anniversary of the date of the Purchase Agreement or
concurrently therewith, Able Energy shall not have entered into
the Able Energy Transaction Documents and issued the securities
required thereunder, the shareholders of Able Energy shall not
have approved the Able Energy Transaction as required by Section
4.9 of the Purchase Agreement or the Company shall not have
taken any and all actions and execute any and all documents
reasonably required by the Purchasers to insure that the liens
on the real and personal property of the Borrowers granted
pursuant to the Loan Documents and the pledge granted pursuant
to the Pledge Documents are extended and modified to secure the
obligations of the Borrowers and Able Energy under the Able
Energy Transaction Documents.
ix. On or before June 15, 2005, Able Energy shall
have filed a proxy statement pursuant to Section 14A under the
Exchange Act with the Commission seeking the approval of the
Able Energy Transaction and disclosing the material terms of the
Able Energy Transaction Documents to be executed and entered
into at the time of the Able Energy Transaction, which
disclosure shall be in form and substance reasonably
satisfactory to the Holder and on or before May 31, 2005, Able
Energy shall have filed a Current Report on Form 8-K disclosing
the material terms of the Able Energy Transaction Documents to
be executed and entered into at the time of the Able Energy
Transaction, which disclosure shall be in form and substance
reasonably satisfactory to the Holder .
b) REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs, the full principal amount of this Debenture, together with
interest and other amounts owing in respect thereof, to the date of
acceleration shall become, at the Holder's election, immediately due and
payable in cash. The aggregate amount payable upon an Event of Default
shall be equal to the Mandatory Prepayment Amount. Commencing 5 days
after the occurrence of any Event of Default that results in the
eventual acceleration of this Debenture, the interest rate on this
Debenture shall accrue at the rate of 18% per annum, or such lower
maximum amount of interest permitted to be charged under applicable law.
All Debentures for which the full Mandatory Prepayment Amount hereunder
shall have been paid in accordance herewith shall promptly be
surrendered to or as directed by the Borrowers. The Holder need not
provide and the Borrowers hereby waive any presentment, demand, protest
or other notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights and
remedies hereunder and all other remedies available to it under
applicable law. Such declaration may be rescinded and annulled by Xxxxxx
at any time prior to payment
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hereunder and the Holder shall have all rights as a Debenture holder
until such time, if any, as the full payment under this Section shall
have been received by it. No such rescission or annulment shall affect
any subsequent Event of Default or impair any right consequent thereon.
SECTION 6. MISCELLANEOUS.
a) NOTICES. Any and all notices or other communications or
deliveries to be provided by the Holder hereunder, including, without
limitation, any Notice of Conversion, shall be in writing and delivered
personally, by facsimile, sent by a nationally recognized overnight
courier service, addressed to the Borrowers, at the addresses set forth
above, facsimile number ______________, ATTN:
______________________________________ or such other address or
facsimile number as the Borrowers may specify for such purposes by
notice to the Holders delivered in accordance with this Section. Any and
all notices or other communications or deliveries to be provided by the
Borrowers hereunder shall be in writing and delivered personally, by
facsimile, sent by a nationally recognized overnight courier service
addressed to each Holder at the facsimile telephone number or address of
such Holder appearing on the books of the Borrowers, or if no such
facsimile telephone number or address appears, at the principal place of
business of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the
date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section
prior to 5:30 p.m. (New York City time), (ii) the date after the date of
transmission, if such notice or communication is delivered via facsimile
at the facsimile telephone number specified in this Section later than
5:30 p.m. (New York City time) on any date and earlier than 11:59 p.m.
(New York City time) on such date, (iii) the second Business Day
following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to
whom such notice is required to be given.
b) ABSOLUTE OBLIGATION. Except as expressly provided
herein, no provision of this Debenture shall alter or impair the
obligation of the Borrowers, which is absolute and unconditional, to pay
the principal of, interest and liquidated damages (if any) on, this
Debenture at the time, place, and rate, and in the coin or currency,
herein prescribed. This Debenture is a direct debt obligation of the
Borrowers. This Debenture ranks PARI PASSU with all other Debentures now
or hereafter issued under the terms set forth herein.
c) MORTGAGE AND PLEDGE. This Debenture is a direct debt
obligation of the Borrowers and, pursuant to the Loan Documents and
Pledge Documents, is secured by the equity, assets and property of the
Borrowers.
d) LOST OR MUTILATED DEBENTURE. If this Debenture shall be
mutilated, lost, stolen or destroyed, the Borrowers shall execute and
deliver, in exchange and substitution for and upon cancellation of a
mutilated Debenture, or in lieu of or in substitution for a lost, stolen
or destroyed Debenture, a new Debenture for the principal amount of this
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Debenture so mutilated, lost, stolen or destroyed but only upon receipt
of evidence of such loss, theft or destruction of such Debenture, and of
the ownership hereof, and indemnity, if requested, all reasonably
satisfactory to the Borrowers.
e) GOVERNING LAW. All questions concerning the
construction, validity, enforcement and interpretation of this Debenture
shall be governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by any of the Transaction Documents
(whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be
commenced in the state and federal courts sitting in the City of New
York, Borough of Manhattan (the "NEW YORK COURTS"). Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York
Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, or such New York Courts
are improper or inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a
copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for
notices to it under this Debenture and agrees that such service shall
constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising
out of or relating to this Debenture or the transactions contemplated
hereby. If either party shall commence an action or proceeding to
enforce any provisions of this Debenture, then the prevailing party in
such action or proceeding shall be reimbursed by the other party for its
attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
f) WAIVER. Any waiver by the Borrowers or the Holder of a
breach of any provision of this Debenture shall not operate as or be
construed to be a waiver of any other breach of such provision or of any
breach of any other provision of this Debenture. The failure of the
Borrowers or the Holder to insist upon strict adherence to any term of
this Debenture on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Debenture. Any waiver
must be in writing.
g) SEVERABILITY. If any provision of this Debenture is
invalid, illegal or unenforceable, the balance of this Debenture shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other
persons and circumstances. If it shall be found that any interest or
other amount
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deemed interest due hereunder violates applicable laws governing usury,
the applicable rate of interest due hereunder shall automatically be
lowered to equal the maximum permitted rate of interest. The Borrowers
covenant (to the extent that it may lawfully do so) that it shall not at
any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law or other
law which would prohibit or forgive the Borrowers from paying all or any
portion of the principal of or interest on this Debenture as
contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this
indenture, and the Borrowers (to the extent it may lawfully do so)
hereby expressly waive all benefits or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or
impeded the execution of any power herein granted to the Holder, but
will suffer and permit the execution of every such as though no such law
has been enacted.
h) NEXT BUSINESS DAY. Whenever any payment or other
obligation hereunder shall be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day.
i) HEADINGS. The headings contained herein are for
convenience only, do not constitute a part of this Debenture and shall
not be deemed to limit or affect any of the provisions hereof.
j) ASSUMPTION. Any successor to the Borrowers or surviving
entity in a Fundamental Transaction shall (i) assume in writing all of
the obligations of such Borrower under this Debenture and the other
Transaction Documents pursuant to written agreements in form and
substance satisfactory to the Holder (such approval not to be
unreasonably withheld or delayed) prior to such Fundamental Transaction
and (ii) if the successor is to the Company, except as otherwise
provided for in Section 4.9 of the Purchase Agreement, to issue to the
Holder a new debenture of such successor entity evidenced by a written
instrument substantially similar in form and substance to this
Debenture, including, without limitation, having a principal amount and
interest rate equal to the principal amounts and the interest rates of
the Debentures held by the Holder and having similar ranking to the
Debenture, and satisfactory to the Holder (any such approval not to be
unreasonably withheld or delayed). The provisions of this Section shall
apply similarly and equally to successive Fundamental Transactions and
shall be applied without regard to any limitations of this Debenture.
*********************
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IN WITNESS WHEREOF, the Borrowers have caused this Debenture to be duly
executed by a duly authorized officer as of the date first above indicated.
ALL AMERICAN PLAZAS, INC.
By:__________________________________
Name:
Title:
YOSEMITE DEVELOPMENT CORP.
By: _________________________________
Name:
Title:
MOUNTAINSIDE DEVELOPMENT, LLC
By: _________________________________
Name:
Title:
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