LOAN AGREEMENT
Trilliant Exploration Corporation
10-K
Exhibit 10.7
THIS LOAN AGREEMENT (this “Agreement”), dated as
of January 5, 2009, by and among Trilliant Exploration Corporation a Nevada
corporation, (the “Company”), and Charms Investments, LTD
(the “Lender”).
WITNESSETH:
WHEREAS, the Company and the
Lender are executing and delivering this Agreement in reliance upon an exemption
from securities registration pursuant to Section 4(2) and/or Rule 506 of
Regulation D (“Regulation D”) as
promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “1933
Act”);
WHEREAS, the Parties agreed
that the Lender will provide the Company with a loan (the "LOAN") in the
aggregate principal amount of US$275,000.00 (the "PURCHASE PRICE" or
"PRINCIPAL AMOUNT"), subject to terms and conditions set forth in this
Agreement, and secured by promissory notes of the Company ("NOTE" or "NOTES"), a
form of which is annexed hereto as EXHIBIT A, convertible into shares
("CONVERSION SHARES") of the Company's Common Stock (the "COMMON STOCK") at a
per share conversion price set forth in the Note (the "CONVERSION PRICE". The
Notes and Conversion Shares are collectively referred to herein as the
"SECURITIES";
NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the lender hereby agree as follows:
1. THE
LOAN.
(a)
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Under
the terms and subject to the conditions set forth in this Agreement, the
Lender shall loan to the Company a principal amount of US
$275,000 in installments as
follows:
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i.
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A
first installment of $90,000 on or about January 5, 2009 (the “Initial
Installment”);
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ii.
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A
second installment of $100,000 on or about January 16,
2009;
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iii.
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A
third installment of $50,000 on or about January 23,
2009;
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iv.
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A
fourth installment of $25,000 on or about February 2,
2009;
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v.
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A
fifth installment of $10,000 on or about Xxxxx 0,
0000
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(x)
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The
"CLOSING DATE" shall be January 5,
2009.
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(c)
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All
installments hereunder may be transferred to the Company or its assigns by
the Lender, or by a third party on behalf of the Lender, however, such
third party, if any, shall have no rights or obligations under this
Agreement.
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(d)
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The
Initial Installment shall be paid directly to Compania Minera Muluncaygold
Corp, S.A. on behalf of the
Company.
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(e)
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All
funds transferred pursuant to this Agreement shall bear interest at the
rate of 8% per annum.
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2. LENDER
REPRESENTATIONS AND WARRANTIES. Lender hereby represents and warrants
that:
(a)
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AUTHORIZATION
AND POWER. It has the requisite power and authority to enter into and
perform this Agreement and the other Transaction Documents and to purchase
the Notes and Warrants being sold to it
hereunder.
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(b)
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INFORMATION
ON COMPANY. As a shareholder of the Company Lender has been furnished with
or has had access to all information concerning its operations, financial
condition and other matters as Lender has
requested.
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(c)
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COMPLIANCE
WITH SECURITIES LAWS. Lender understands and agrees that the Securities
have not been registered under the 1933 Act or any applicable state
securities laws, by reason of their issuance in a transaction that does
not require registration under the 1933
Act.
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3.
COMPANY REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees that:
(a)
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DUE
INCORPORATION. The Company is a corporation or other entity duly
incorporated or organized, validly existing and in good standing under the
laws of Nevada.
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(b)
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OUTSTANDING
STOCK. All issued and outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable.
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(c)
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AUTHORITY;
ENFORCEABILITY. This Agreement, the Note, and all other agreements
delivered together with this Agreement or in connection herewith
(collectively TRANSACTION DOCUMENTS") have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company enforceable in accordance with their terms. The Company
has full corporate power and authority necessary to enter into and deliver
the Transaction Documents and to perform its obligations
thereunder.
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(d)
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THE
SECURITIES. The Securities upon
issuance:
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(i)
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are,
or will be, free and clear of any security interests, liens, claims or
other encumbrances, subject to restrictions upon transfer under the 1933
Act and any applicable state securities
laws;
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(ii)
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have
been, or will be, duly and validly authorized and on the date of issuance
of the Securities, the Securities will be duly and validly issued, fully
paid and non-assessable.
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(iii)
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will
not have been issued or sold in violation of any preemptive or other
similar rights of the holders of any securities of the
Company;
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(e)
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LITIGATION.
There is no pending or, to the best knowledge of the Company, threatened
action, suit, proceeding or investigation before any court, governmental
agency or body, or arbitrator having jurisdiction over the
Company.
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(f)
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DEFAULTS.
The Company is not in violation of its articles of incorporation or
bylaws. The Company is (i) not in default under or in violation of any
other material agreement or instrument to which it is a party or by which
it or any of its properties are bound or affected, which
default or violation would have a Material Adverse Effect, (ii) not in
default with respect to any order of any court, arbitrator or governmental
body or subject to or party to any order of any court or governmental
authority arising out of any action, suit or proceeding under any statute
or other law respecting antitrust, monopoly, restraint of trade, unfair
competition or similar matters.
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(g)
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NO
GENERAL SOLICITATION. Neither the Company, nor any of
its Affiliates, nor
to its knowledge, any person acting on its or their behalf, has engaged in
any form of general solicitation or general advertising (within the
meaning of Regulation D under the 0000 Xxx) in connection with
the offer or sale of the
Securities.
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(h)
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REPORTING
COMPANY. The Company is a publicly-held company subject to reporting
obligations pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended (the "1934 ACT") and has a class of Common Stock registered
pursuant to Section 12(g) of the 1934 Act. Pursuant to the provisions of
the 1934 Act, the Company has timely filed all reports and other materials
required to be filed thereunder with the Commission during the twelve
months preceding the date of this Agreement and the Closing
Date.
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(i)
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LISTING.
The Company's Common Stock is quoted on the Bulletin Board under the
symbol TTXP. The Company has not received any oral or written notice that
its Common Stock is not eligible nor will become ineligible for quotation
on the Bulletin Board nor that its Common Stock does not meet all
requirements for the continuation of such quotation. The Company satisfies
all the requirements for the continued quotation of its Common Stock on
the Bulletin Board.
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4.
CONVERSION OF NOTE.
(a)
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Upon
the conversion of a Note or part thereof, the Company shall, at its own
cost and expense, take all necessary action, including obtaining and
delivering, an opinion of counsel to assure that the Company's transfer
agent shall issue stock certificates in the name of Lender (or its
permitted nominee) or such other persons as designated by Lender and in
such denominations to be specified at conversion representing the number
of shares of Common Stock issuable upon such conversion. The Company
warrants that no instructions
other than these instructions have been or will be given to the transfer
agent of the Company's Common Stock and that the certificates representing
such shares shall contain no legend other than the usual 1933 Act
restriction from transfer
legend
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(b)
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The
Lender will give notice of its decision to exercise its right to convert
the Note, interest, or part thereof by telecopying, or otherwise
delivering a completed Notice of conversion to the Company via
confirmed telecopier transmission or otherwise pursuant to this Agreement.
Lender will not be required to surrender the Note until the Note has been
fully converted or satisfied. Each date on which a Notice of Conversion is
telecopied to the Company in accordance with the provisions hereof by 6 PM
(or if received by the Company after 6 PM, then the next business day)
shall be deemed a "CONVERSION DATE." The Company will itself or
cause the Company's transfer agent to transmit the Company's Common Stock
certificates representing the Conversion Shares to such Subscriber via
express courier for receipt by Lender within five business days
after receipt by the Company of the Notice of Conversion (such third day
being the "DELIVERY DATE").
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5.
REDEMPTION. The Notes shall not be redeemable or callable by the Company except
as described in the Note.
6.
COVENANTS OF THE COMPANY. The Company covenants and agrees with
the Lender as follows:
(a)
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MARKET
REGULATIONS. The Company shall notify the Commission, the and applicable
state authorities, in accordance with their requirements, of the
transactions contemplated by this Agreement, and shall take all other
necessary action and proceedings as may be required and permitted by
applicable law, rule and regulation, for the legal and valid issuance of
the Securities to the Subscribers and promptly provide copies thereof to
the Subscribers.
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(b)
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FILING
REQUIREMENTS. From the date of this Agreement and until the last to occur
of (i) two (2) years after the Closing Date, (ii) until all the Conversion
Shares have been resold or transferred by the Lender pursuant
to the Registration Statement or pursuant to Rule 144, without regard to
volume limitations, or (iii) the Notes are not outstanding (the date
of occurrence of the last such event being the "END DATE"), the
Company will (A) cause its Common Stock to be registered under Section
12(b) or 12(g) of the 1934 Act, (B) comply in all respects with
its reporting and filing obligations under the 1934 Act, (C) voluntarily
comply with all reporting requirements that are applicable to an issuer
with a class of shares registered pursuant to Section 12(b) or Section
12(g) of the 1934 Act, if the Company is not subject to
such reporting requirements, and (D) comply with all
requirements related to any registration statement filed pursuant to this
Agreement. The Company will not take any action or file any document
(whether or not permitted by the 1933 Act or the 1934 Act or
the rules thereunder) to terminate or suspend such registration
or to terminate or suspend its reporting and filing obligations under said
acts until the End Date. Until the End Date, the Company will continue the
listing or quotation of the Common Stock on a Principal Market and will
comply in all respects with the Company's reporting, filing and
other obligations under the bylaws or rules of the
Principal Market. The Company agrees to timely file a Form D with respect
to the Securities if required under Regulation D and to provide a copy
thereof to each Subscriber promptly after such
filing.
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(c)
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BOOKS
AND RECORDS. From the date of this Agreement and until the End Date, the
Company will keep true records and books of account in which full, true
and correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with
generally accepted accounting principles applied on a consistent
basis.
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(d)
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GOVERNMENTAL
AUTHORITIES. From the date of this Agreement and until the End
Date, the Company shall duly observe and conform in all material respects
to all valid requirements of governmental authorities relating to the
conduct of its business or to its properties or
assets.
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(e)
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INTELLECTUAL
PROPERTY. From the date of this Agreement and until the End Date, the
Company shall maintain in full force and affect its corporate existence,
rights and franchises and all licenses and other rights to use
intellectual property owned or possessed by it and reasonably
deemed to be necessary to the conduct of its business, unless it is sold
for value.
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(f)
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NON-PUBLIC
INFORMATION. The Company covenants and agrees that except for
the Reports, Other Written Information and schedules and exhibits to this
Agreement, which information the Company undertakes to publicly disclose
not later than the required filing date of a report on Form 8-K, neither
it nor any other person acting on its behalf will at any time as of the
date hereof provide Lender or its agents or counsel with any information
that the Company believes constitutes material non-public information,
unless prior thereto such Lender shall have agreed in writing to receive
such information or received such information under his
capacity as a board member or officer of the Company. The Company
understands and confirms that each Subscriber shall be relying on the
foregoing representations in effecting transactions in securities of the
Company.
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7.
REGISTRATION RIGHTS. The Company hereby grants the following registration rights
to Lender.
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(i)
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The
Company shall file with the Commission a registration statement (the
"REGISTRATION STATEMENT") in order to register the Registrable Securities
for resale and distribution under the 1933 Act within sixty (60) calendar
days after the conversion Date (the "FILING DATE"), and use its best
efforts to cause the Registration Statement to be declared effective not
later than ninety (90) calendar days after the conversion Date (the
"EFFECTIVE DATE"). The Company will register not less than a number of
shares of common stock in the aforedescribed registration
statement that is equal to 100% of the Conversion Shares issued and
issuable upon conversion of the Notes, (the "REGISTRABLE SECURITIES")
The Registration Statement will immediately be amended or
additional registration statements will be immediately filed by the
Company as necessary to register additional shares of Common Stock to
allow the public resale of all Common Stock included in and issuable by
virtue of the Registrable
Securities.
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8.
EXPENSES. All expenses incurred by the Company in complying with Section 7
herein, including, without limitation, all registration and filing fees,
printing expenses (if required), fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the NASD, transfer taxes, and fees of
transfer agents and registrars, are called "REGISTRATION EXPENSES." All
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities are called "SELLING EXPENSES." The Company will pay all
Registration Expenses in connection with the registration statement under
Section 7. Selling Expenses in connection with each registration statement shall
be borne by the Seller and may be apportioned among the Sellers in proportion to
the number of shares sold by the Seller relative to the number of shares sold
under such registration statement or as all Sellers thereunder
may agree.
9.
Miscellaneous.
(a)
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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:
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(i)
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if
to the Company, to:
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Attn:
Xxxxxx Xxxxxx
XX
Xxx 000
Xxxxxxxx,
XX 00000
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(ii)
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If
to the Lender, to:
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Charms
Investments, LTD
391
000 XX 00xx
Xxxxxx, Xxxxx X,
Xxxxxxxxxxx,
XX 00000
(352)
332-2204
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(b)
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ENTIRE
AGREEMENT; ASSIGNMENT. This Agreement and
other documents delivered
in connection herewith represent the entire agreement between the parties
hereto with respect to the subject matter hereof and may be amended only
by a writing executed by the Company and the Lender. Neither
the Company nor the Lender have relied on any representations
not contained or referred to in this Agreement and the documents delivered
herewith. No right or obligation of the Company shall be assigned without
prior notice to and the written consent of the
Lender
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(c)
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COUNTERPARTS/EXECUTION.
This Agreement may be executed in any number of counterparts
and by the different signatories hereto on separate counterparts, each of
which, when so executed, shall be deemed an original, but all
such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by
facsimile transmission.
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(d)
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LAW
GOVERNING THIS AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida, without
regard to principles of conflicts of laws. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts or federal courts
sitting in Florida. The parties to this Agreement hereby irrevocably waive
any objection to jurisdiction and venue of any action instituted hereunder
and shall not assert any defense based on lack of jurisdiction or venue or
based upon FORUM NON CONVENIENS.
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(e)
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SEVERABILITY.
In the event that any term or provision of this Agreement shall be finally
determined to be superseded, invalid, illegal or otherwise unenforceable
pursuant to applicable law by an authority having jurisdiction and venue,
that determination shall not impair or otherwise affect the
validity, legality or enforceability: (i) by or before that authority of
the remaining terms and provisions of this Agreement, which shall be
enforced as if the unenforceable term or provision were deleted, or (ii)
by or before any other authority of any of the terms and provisions of
this Agreement.
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[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Lender:
By:
Charms Investments, LTD
/s/ Xxxxxxx
Xxxxxxxx /s/
Xxxxxxx
Xxxxxxxx, President
Company:
/s/ Xxxxxxx
Xxxxxxxxx /s/
Xxxxxxx
Xxxxxxxxx, President
CONVERTIBLE
PROMISSORY NOTE
FOR VALUE
RECEIVED, Trilliant Exploration Corp., a Nevada corporation (hereinafter called
"Borrower"), hereby promises to pay to Charms Investments, LTD, (the "Holder")
or its registered assigns or successors in interest or order, without demand,
the sum of US $275,000 Dollars ("Principal Amount"), on or before January 5,
2010(the "Maturity Date"), if not sooner paid or exercised.
This Note
has been entered into pursuant to the terms of a Loan Agreement between the
Borrower, and the Holder (the "Loan Agreement"), and shall be governed by the
terms of such Loan Agreement. Unless otherwise separately defined herein, all
capitalized terms used in this Note shall have the same meaning as is set forth
in the Loan Agreement. The following terms shall apply to this
Note:
ARTICLE
I
INTEREST
1.1.
INTEREST RATE. Interest on the outstanding Principal Amount shall accrue at a
rate of eight percent (8%) per annum (the "Interest Rate"). The
principal amount of this Note together with all unpaid interest shall be payable
on the Maturity Date.
1.2.
PAYMENT OF INTEREST SHARES. Interest will be payable in cash, or at the election
of the Holder, by the Borrower's delivery of Common Stock.
1.3.
CONVERSION PRIVILEGES. The Conversion Privileges set forth herein shall remain
in full force and effect immediately from the date hereof and until the Note is
paid in full regardless of the occurrence of an Event of Default. The Note shall
be payable in full on the Maturity Date, unless previously converted into Common
Stock.
ARTICLE
II
REDEMPTION
2.1
REDEMPTION OF PRINCIPAL AMOUNT. During the Loan Period, the
Borrower will have the option of repaying the
outstanding Principal Amount of this Note, in whole or in part, by paying to the
Holder a sum of money equal the Principal Amount, together with accrued but
unpaid interest thereon and any and all other sums due, accrued or payable to
the Holder arising under this Note or any Transaction Document through the
Redemption Payment Date as defined below (the
"Redemption Amount"). Borrower's election to exercise its right to prepay must
be by notice in writing ("Notice of Redemption"). The Notice of
Redemption shall specify the date for such Optional Redemption (the "Redemption
Payment Date"), which date shall be no more than thirty (30) business days after
the date of the Notice of Redemption (the
"Redemption Period"). A Notice of Redemption
shall not be effective with respect to any portion of the Principal Amount for
which the Holder has a pending election to convert pursuant to Section 3.1, or
in connection with a conversion initiated by Holder during the Redemption
Period.
ARTICLE
III
CONVERSION
RIGHTS
3.1.
HOLDER'S CONVERSION RIGHTS. , the Holder shall have the right, but not the
obligation, to convert all or any portion of the then aggregate outstanding
Principal Amount of this Note, together with interest, if any, and fees due
hereon, and any sum arising under the Loan Agreement, and the Transaction
Documents, including but not limited to Liquidated
Damages, into shares of Common Stock, subject
to the terms and conditions set forth in this Article III, at the rate of eighty
percent (80%) of THE AVERAGE OF THE FIVE DAILY VWAPS PRECEDING THE
CLOSING DATE per share of Common Stock ("Conversion Price"). The Holder may
exercise such right by delivery to the Borrower of a written Notice of
Conversion pursuant to Section 3.3.
3.2 Not
applicable
3.3.
MECHANICS OF HOLDER'S CONVERSION.
(a) In
the event that the Holder elects to convert any amounts outstanding under this
Note into Common Stock, the Holder shall give notice of such election by
delivering an executed and completed notice of conversion (a "Notice of
Conversion") to the Borrower, which Notice of Conversion shall
provide a breakdown in reasonable detail of the Principal Amount, accrued
interest and amounts being converted. The original Note is not required to be
surrendered to the Borrower until all sums due under the Note have been paid. On
each Conversion Date (as hereinafter defined) and in accordance with its Notice
of Conversion, the Holder shall make the appropriate reduction to the Principal
Amount, accrued interest and fees as entered in its records. Each
date on which a Notice of Conversion is delivered or telecopied to the Borrower
in accordance with the provisions hereof shall be deemed a "Conversion Date." A
form of Notice of Conversion to be employed by the Holder is annexed hereto as
Exhibit A.
(b)
Pursuant to the terms of a Notice of Conversion, the Borrower will issue
instructions to the transfer agent accompanied by an opinion of counsel (if so
required by the Borrower's transfer agent), and, except as otherwise provided
below, shall cause the transfer agent to transmit the certificates
representing the Conversion Shares to the Holder by the Delivery Date to an
address designated by Holder.
3.4.
CONVERSION MECHANICS.
(a) The
number of shares of Common Stock to be issued upon each conversion of this Note
pursuant to this Article III shall be determined by dividing that portion of the
Principal Amount and interest and fees to be converted, if any, by the then
applicable Conversion Price.
(b) The
Fixed Conversion Price and number and kind of shares or other securities to be
issued upon conversion shall be subject to adjustment from time to time upon the
happening of certain events while this conversion right remains outstanding, as
follows:
(c)
RECLASSIFICATION, ETC. If the Borrower at any time shall,
by reclassification or otherwise, change the Common Stock into the
same or a different number of
securities
of any class or classes, this Note, as to the unpaid principal portion hereof
and accrued interest hereon, shall
thereafter be deemed to evidence the right to convert into an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock immediately prior to such
reclassification or other change.
3.5.
RESERVATION. During the period the conversion right exists, Borrower will
reserve from its authorized and unissued Common Stock not less than one hundred
and fifty percent (150%) of the number of shares to provide for the issuance of
Common Stock upon the full conversion of this Note. Borrower represents that
upon issuance, such shares will be duly
and validly issued, fully paid and
non-assessable. Borrower agrees that its issuance of this Note shall
constitute full authority to its officers, agents, and transfer agents who are
charged with the duty of executing and issuing stock certificates to execute and
issue the necessary certificates for shares of Common Stock upon the conversion
of this Note.
3.6
ISSUANCE OF REPLACEMENT NOTE. Upon any partial conversion of
this Note, a replacement Note containing the
same date and provisions of this Note shall, at the written request of the
Holder, be issued by the Borrower to the Holder for the outstanding Principal
Amount of this Note and accrued interest which shall not have been converted or
paid, provided Holder has surrendered an original Note to the
Borrower.
ARTICLE
IV
EVENTS 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:
4.1
RECEIVER OR TRUSTEE. The Borrower or any Subsidiary of Borrower shall make an
assignment for the benefit of creditors, or apply for or consent to the
appointment of a receiver or trustee for them or for a substantial
part of their property or business; or such a receiver or trustee shall
otherwise be appointed.
4.2
JUDGMENTS. Any money judgment, writ or similar final process shall be entered or
filed against Borrower or any subsidiary of Borrower or any of their property or
other assets for more than $100,000, and shall remain unvacated, unbonded,
unappealed, unsatisfied, or unstayed for a period of forty-five (45)
days.
4.3
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 or any Subsidiary of Borrower and if instituted against
them are not dismissed within forty-five (45)
days of initiation.
4.8
DELISTING. Delisting of the Common Stock from any Principal Market for a period
of seven consecutive trading days; or notification from a Principal Market that
the Borrower is not in compliance with the conditions for such continued listing
on such Principal Market.
4.9 STOP
TRADE. An SEC or judicial stop trade order or Principal Market trading
suspension with respect to Borrower's Common Stock that lasts for five or more
consecutive trading days.
4.10
FAILURE TO MAKE PAYMENT. Failure of the Borrower to make any
scheduled Interest Payment pursuant to this Agreement within 10 days of such
Interest Payment’s due date.
ARTICLE
V
MISCELLANEOUS
5.1
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.
5.2
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.
5.3
AMENDMENT PROVISION. The term "Note" 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.
5.4
ASSIGNABILITY. This Note 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.
5.5
COST OF COLLECTION. If default is made in the payment of this Note, Borrower
shall pay the Holder hereof reasonable costs of collection, including reasonable
attorneys' fees.
5.6 LAW
GOVERNING THIS AGREEMENT. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
principles of conflicts of laws. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be
brought only in the state courts or federal courts sitting in Florida. The
parties to this Agreement hereby irrevocably waive any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon FORUM NON
CONVENIENS.
5.7
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.
5.8.
CONSTRUCTION. Each party acknowledges that its legal counsel participated in the
preparation of this Note and, therefore, stipulates that the rule of
construction that ambiguities are to be resolved against the drafting party
shall not be applied in the interpretation of this
Note to favor any party against the
other.
5.9
REDEMPTION. This Note may not be redeemed or called without the consent of the
Holder except as described in this Note or the Loan Agreement.
5.10
SHAREHOLDER STATUS. The Holder shall not have rights as a shareholder of the
Borrower with respect to unconverted portions of this Note. However, the Holder
will have the rights of a shareholder of the Borrower with respect to the Shares
of Common Stock to be received after delivery by the Holder of a Conversion
Notice to the Borrower.
5.11
NON-BUSINESS DAYS. Whenever any payment or any action to be made shall be due on
a Saturday, Sunday or a public holiday under the laws of the State of Florida,
such payment may be due or action shall be required on the next succeeding
business day and, for such payment, such next succeeding day shall be included
in the calculation of the amount of accrued
interest payable on such date.
IN
WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by an
authorized officer as of the 2nd day of
March, 2009.
/s/ Xxxxxxx Xxxxxxxxx
/s/
|
|
By:
Xxxxxxx Xxxxxxxxx, President
|
NOTICE OF
CONVERSION
(To be
executed by the Registered Holder in order to convert the
Note) The undersigned hereby elects to
convert $_________ of the principal and $_________ of the interest due on the
Note issued by Trilliant Exploration Corp. on March 2, 2009 into Shares of
Common Stock of Trilliant Exploration Corp. (the "Borrower") according to the
conditions set forth in such Note, as of the date written below.
Date of
Conversion:____________________________________________________________
Conversion
Price:______________________________________________________________
Shares To
Be
Delivered:_________________________________________________________
Signature:____________________________________________________________________
Print
Name:______________________________________________________________________
Address:____________________________________________________________________