Contract
Exhibit
4.16
THIS NOTE
HAS NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THE SECURITIES
ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION D
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THE
SECURITIES ARE “RESTRICTED” AND MAY
NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT,
PURSUANT TO REGULATION D OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND THE COMPANY WILL BE PROVIDED WITH
OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE. FURTHER HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH
THE ACT.
BONANZA
OIL & GAS, INC.
PROMISSORY NOTE
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Amount:
$340,000
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Houston,
Texas
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May 26,
2009
FOR VALUE
RECEIVED, the adequacy of which is hereby acknowledged, BONANZA OIL & GAS,
INC., a Nevada corporation (“Borrower”), hereby promises to pay to the order of
Calibre Fund SPC, for and on behalf of the Calibre Secured and Mezzanine Loan
Fund segregated portfolio, a Cayman Islands Segregated Portfolio Company with
its registered office address at c/o Mourant Cayman Corporate Services, Ltd.
Harbour Centre, 00 Xxxxx Xxxxxx Xxxxxx XX Xxx 0000 Xxxxx Xxxxxx
XX0-0000 Cayman Islands (the “Lender”), the principal sum of three hundred
and forty thousand dollars ($340,000) (the “Principal Amount”), in lawful money
of the United States of America, ninety (90) days from the date hereof (the
“Maturity Date”).
This
Promissory Note (the “Note”) evidences
loans to be made to Borrower. The Lender is entitled to the benefits of the Note
and, subject to the terms and conditions set forth herein and therein, may
enforce the agreements contained herein and therein and exercise the remedies
provided for hereby and thereby or otherwise available in respect hereto and
thereto.
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1.
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Interest. The
interest on the Principal Amount ($13,600), calculated at a rate of
sixteen percent (16%) per annum shall be paid on the Maturity Date. Any
amount of principal, fees or interest on this Note which are not paid at
the Maturity Date shall bear interest at the rate of eighteen percent
(18%) per annum from the due date thereof until the same is paid (“Default
Interest”).
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2.
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Transaction
Fee. A transaction fee equal to eight and eight tenths percent
(8.8%) of the Principal Amount (the “Fee”) whereas five percent (5%) will
be due and payable by the Borrower upon the closing of this transaction
(the “Closing”) and the remaining three and eight tenths percent (3.8%) is
due and payable within 30 days of the transaction (the
“Closing”).
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1
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3.
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Warrants: Upon
the Closing, Borrower will also issue five hundred thousand (500,000)
warrants exercisable into shares of $0.001 par value common stock of
Borrower at an exercise price of $0.10 per share and having a maturity of
three (3) years from the Closing.
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4.
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Use of
Proceeds. Borrower anticipates the use of proceeds to be for: a)
payment of principal and accrued interest on the
outstanding $285,000.00 note held by Xx. Xxxxxx which became
due and payable as of May 22, 2009 b) Transaction fees for this
note, c) Audit fees, d) Transfer agent fees, e) General
&Administrative expenses.
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5.
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Events of
Default. The following events shall constitute an “Event of
Default” under this Note:
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a.
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Failure
by Borrower to pay principal, fees, or accrued interest when due under
this Note and such failure shall continue for ten days, in the case of
overdue principal, and fifteen days, in the case of overdue interest or
fees;
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b.
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The
institution by Borrower of proceedings to be adjudicated as bankrupt or
insolvent or the filing by Xxxxxxxx of a petition or answer or consent
seeking reorganization, arrangement, composition or other relief with
respect to their debts; or the consent by Borrower to institution of
bankruptcy or insolvency proceedings against Borrower or the consent by
Borrower to the filing of any such petition; or the appointment of a
receiver, liquidator, assignee, trustee or other similar official for all
or any substantial part of its property or the general assignment by
Xxxxxxxx for the benefit of its creditors; or the taking of any action by
Borrower in furtherance of any such action;
or
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c.
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If,
within sixty (60) days after the commencement of an action against
Borrower (and service of process in connection therewith on Borrower)
seeking any bankruptcy, insolvency, reorganization, liquidation or similar
relief under any present or future statute, law or regulation, such action
shall not have been resolved in favor of Borrower, or all orders or
proceedings thereunder affecting the property of Borrower stayed, or if
the stay of any such order or proceeding shall thereafter be set aside, or
if, within sixty (60) days after the appointment without the consent or
acquiescence of Borrower of any trustee or receiver for all or any
substantial part of the property of Borrower, such appointment shall not
have been vacated.
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6.
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Remedies Upon an Event
of Default. If an Event of Default should occur, all
outstanding Principal Amount of this Note and all interest accrued on the
unpaid Principal Amount and all other amounts owing by Borrower including,
but not limited to the Fee, shall be converted, at the option of the
Lender, into non-restricted $0.001 par value common stock of the Borrower
at a conversion price of $0.001 per share (the “Conversion Right”). This
Conversion Right shall not be modified or deleted without the express
written permission of the Lender. All such rights and remedies
are cumulative and not exclusive of any rights or remedies which the
Lender would otherwise have under this Note or under any applicable
law.
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2
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7.
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Expenses.
Xxxxxxxx agrees to pay any and all expenses (including attorneys’ fees and
expenses) incurred by the Lender which are incurred in endeavoring to
collect any amounts payable hereunder which are not paid when due (whether
by acceleration or otherwise) or in otherwise enforcing any rights under
this Note.
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8.
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Notices. All
notices and other communications provided for herein shall be in writing
and shall be deemed to have been duly given if delivered personally, sent
by registered or certified mail, return receipt requested, postage
prepaid, sent via overnight delivery service or sent via facsimile, and
shall be effective (1) when personally delivered, (2) on the day following
delivery to an overnight courier service if sent for delivery within the
United States (or on the second business day following delivery to such
courier service if sent for delivery outside the United States), (3) on
the business day following receipt of transmission if sent via facsimile,
or (4) on the fifth business day after the date of mailing if sent by
registered or certified mail, in each case to the following
addresses:
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(a)
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If
to the Borrower:
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BONANZA
OIL & GAS, Inc.
0000
Xxxxxxxx Xxx, Xxxxx 000
Houston,
TX 77098
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(b)
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If
to the Lender, to the address set forth in the Note Purchase Agreement, or
such other address as is provided in writing to the Borrower by the
Lender.
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9.
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Assignment.
This Note shall be binding on the Borrower and its successors and
permitted assigns, and shall be binding upon and inure to the benefit of
the Lender, any future holder of this Note and their respective successors
and permitted assigns. Neither the Borrower nor the Lender may
assign or transfer this Note or any of its rights or obligations hereunder
(other than by operation of law) without the other party’s prior written
consent.
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10.
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Waivers;
Amendments. No delay or omission of Lender in exercising any right
or power hereunder shall impair such right or power or be a waiver of any
default or an acquiescence therein; and no single or partial exercise of
any such right or power shall preclude other or further exercise thereof,
or the exercise of any other right; and no waiver shall be valid unless in
writing signed by Xxxxxx, and then only to the extent specifically set
forth in such writing. All remedies hereunder or by law
afforded shall be cumulative and shall be available to Lender until the
principal amount of and all interest on this Note have been paid in
full. No amendment of any provision of this Note shall be
effective unless the same shall be in writing and signed by the Borrower
and the Lender.
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11.
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Governing Law.
This Note shall be governed by and construed in accordance with the laws
of the State of Virginia, without regard for the conflicts of laws
principles thereof.
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3
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12.
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Severability.
In the event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof, and this Note shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
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of page intentionally left blank]
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IN
WITNESS WHEREOF, Xxxxxx has executed this Note as of the date first above
written.
BORROWER:
BONANZA
OIL & GAS, INC.
By:/s/ Xxxx
Xxxxxxx
Signature
Name: Xxxx
Xxxxxxx
Title: CEO
LENDER:
CALIBRE
FUND SPC, FOR AND ON BEHALF OF CALIBRE XXXXXXXXX AND SECURED LOAN FUND
SEGREGATED PORTFOLIO
By:/s/ Xxxx X.
Xxxxx
Print Name: Xxxx X.
Xxxxx
Title: Investment Manager,
Director
Address: c/o Xxxx Xxxxx
00000 Xxxxxxx Xxx Xxxxxxx Xxxxxxxx XX 00000_XXX
Telephone: 000 000
0000
Facsimile: _000 000
0000
Email:
xxx@xxxxxxxxx.xxx
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