Legend Oil and Gas, Ltd. 8-K

 

Exhibit 10.2

 

Execution Version

 

SECURED PROMISSORY NOTE

 

April 3, 2015

$2,854,000.00

Maturity Date: April 3, 2016

 

FOR VALUE RECEIVED, the undersigned, Legend Oil and Gas, Ltd., a Colorado corporation (“Legend”) and Black Diamond Energy Holdings LLC, a Delaware limited liability company (“Black Diamond”) (Legend and Black Diamond hereinafter collectively referred to as “Makers”), joint and severally, hereby execute this Secured Promissory Note (this “Note”) and hereby unconditionally promise to pay to the order of Sher Trucking L.L.C., a Nevada limited liability company (hereinafter referred to as “Payee”), the principal sum of two million eight hundred fifty four thousand DOLLARS ($2,854,000.00) in lawful money of the United States of America, on the terms provided below.

 

1.

Definitions. For purposes of this Note, unless the context otherwise requires, the following terms shall have the definitions assigned to such terms as follows:

 

a.

“Business Day” shall mean for all purposes any day except Saturday, Sunday, or a day which in the United States is a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in the State of Utah.

 

b.

“Dollars” and the sign “$” shall mean lawful currency of the United States of America.

 

c.

“Event of Default” shall mean the occurrence of any one or more of the following events:

 

i.

Failure of Makers to pay any installment of principal and interest on this Note in a timely manner or on any other indebtedness of Makers to Payee when due under this Note; or

 

ii.

Makers shall fail to perform or observe any term, covenant or agreement on its part to be performed or observed in this Note (other than any such term, covenant or agreement specified in clause (i), immediately above) and such failure shall continue unremedied or shall not be waived for a period of thirty (30) Business Days after written notice thereof from Payee to Makers; or

 

iii.

If any Maker or any of its subsidiaries party to the Security Agreement (collectively with the Makers, the “Obligors”) shall admit in writing its inability to pay such debts generally, or shall make a general assignment for the benefit of creditors or any Obligor shall become insolvent (however defined or evidenced) or makes an assignment for the benefit of creditors; or

 

 

 

iv.

If there shall be filed by or against any Obligor a petition for any relief under the bankruptcy laws of the United States now or hereafter in effect or any proceeding shall be commenced with respect to any Obligor under any insolvency, readjustment of debt, reorganization, dissolution, liquidation or similar law or statute of any jurisdiction now or hereafter in effect (whether at law or in equity), provided that in the case of any involuntary filing or the commencement of any involuntary proceeding against any Obligor and such proceeding or petition shall have continued undismissed and unvacated for at least sixty (60) days; or

 

v.

If any petition or application to any court or tribunal, at law or in equity, shall be filed by or against any Obligor for the appointment of any receiver or trustee for any Obligor or any material part of the property of any Obligor, provided that in the case of any involuntary filing against any Obligor, such proceeding or appointment shall have continued undismissed and unvacated for at least sixty (60) days; or

 

vi.

The occurrence of a default or event of default under the Security Agreement securing this Note after any applicable cure periods set forth in such Security Agreement; or

 

vii.

Any lien or security interest granted by Black Diamond and its subsidiaries under the Security Agreement shall, in any material manner, be avoided, terminated, revoked or declared void or invalid, or lose its applicable priority or perfected status; or

 

viii.

Any representation or warranty made by Makers or any of their subsidiaries or affiliates in this Note or the Security Agreement, or by any of their officers in a writing furnished in connection with this Note or the Security Agreement, which are false in any material respect on the date made; or

 

ix.

Any occurrence of whatsoever nature (including, without limitation, any adverse determination in any litigation, arbitration, or governmental investigation or proceeding) which could reasonably be expected to materially and adversely affect (a) the financial condition or operation of any Obligor, (b) the ability of any Obligor to perform their material obligations under this Note or the Security Agreement, or any writing executed pursuant thereto, (c) the validity or enforceability of the material obligations of any Obligor under this Note or the Security Agreement, or any writing executed pursuant thereto, (d) the rights and remedies of the Payee against any Obligor with respect to the Obligations (as defined in the Security Agreement), or (e) the timely payment of the principal of and interest on this Note or other amounts payable by the Makers hereunder.

 

d.

“Security Agreement” shall mean that Security Agreement executed by Black Diamond and certain of its subsidiaries on the date of this Note, as it may be amended. Restated or otherwise modified from time to time in accordance with its terms.

 

 

 

2.

Interest. Interest shall accrue at the rate of 5.0% per annum from and after the date first given above on all outstanding balances until paid in full. Interest shall be calculated on the basis of actual days elapsed but computed as if each year consisted of 360 days. Interest on the Note shall be computed by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Payee shall determine the interest payable in accordance with this Note, and Payee’s determination thereof shall be conclusive and binding, absent manifest error.

 

3.

Payment of Principal and Interest. All principal and accrued interest shall be paid by Makers in Dollars constituting immediately available funds on first anniversary of Note. Payment hereunder shall be made without setoff or counterclaim to Payee at Sher Trucking L.L.C. 3111 Bel Air Dr. #21A, Las Vegas, NV 89109, or such other location as Payee shall instruct. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time, in the case of a payment of principal, shall be included in the computation of any interest on such principal payment.

 

4.

Default Interest. In the event an Event of Default shall occur and be continuing, default interest will be due and owing by Makers at the rate otherwise applicable to this Note plus 13% per annum. Such interest shall be due and payable upon demand. Default interest shall be calculated on the basis of actual days elapsed but computed as if each year consisted of 360 days. Default interest on this Note shall be computed by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Payee shall determine the default interest payable in accordance with this Note, and Payee’s determination thereof shall be conclusive and binding, absent manifest error.

 

5.

Prepayments. Makers shall have a right to prepay, and Payee shall have an obligation to accept, any tendered payment of all or any part (but in a minimum amount of $10,000) of the principal of this Note before it is due and any such prepayment shall be without penalty or premium.

 

6.

Security for Payment. The indebtedness evidenced by this Note is secured by the Security Agreement, which creates legal and valid encumbrances on and an assignment of all of the Collateral (as defined in the Security Agreement). Payee shall have such rights with respect to the Collateral as set forth in the Security Agreement.

 

7.

Occurrence of Event of Default.

 

a.

If any Event of Default shall occur for any reason, then and in any such event, in addition to all rights and remedies of Payee under applicable law or otherwise, all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively and concurrently, Payee may, at its option, declare any or all amounts owing under this Note, to be due and payable provided, however, that upon the occurrence of any Event of Default of the kind described in clauses (iv) or (v) of the definition of Event of Default, the obligations of Makers hereunder shall automatically become and be due and payable in full, without notice of any kind. Upon and during the continuance of an Event of Default, Makers shall permit Payee and/or its accountants or other professional advisors access at reasonable times and on reasonable prior notice to the books, accounts and records of Makers and to meet and discuss matters with Makers and their advisors.

 

 

 

8.

Notices. All notices required or permitted hereunder shall be in writing and shall be deemed to have been given or made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by mail, upon the earlier of the date of receipt or three days after deposit in the United States postal system by first class mail, postage prepaid; and (c) if sent by overnight courier, upon delivery, addressed to Makers or Payee at the following respective addresses or such other address as such party may from time to time designate by written notice to the other:

 

Payee:

Sher Trucking L.L.C.

3111 Bel Air Dr. #21A
Las Vegas, NV 89109

 

Makers:

Legend Oil & Gas, Ltd.

555 North Point Center East
Suite 410

Alpharetta, Georgia 30022

 

and

 

Black Diamond Energy Holdings LLC

555 NorthPoint Center East

Suite 410

Alpharetta, GA 30022

 

9.

Legal Fees. If this Note is placed in the hands of any attorney for collection, or if it is collected through any legal proceeding at law or in equity or in bankruptcy, receivership, or other court proceedings, Makers agree to pay all costs of collection including, but not limited to, court costs and attorneys’ fees.

 

10.

Joint and Several Liability, Certain Waivers.

 

a.

BY SIGNING THIS NOTE, EACH MAKER AGREES THAT IT IS LIABLE, JOINTLY AND SEVERALLY WITH THE OTHER MAKER, FOR THE PAYMENT AND PEFORMANCE OF ALL OBLIGATIONS UNDER THIS NOTE, AND THAT THE PAYEE CAN ENFORCE SUCH OBLIGATIONS AGAINST ANY MAKER, IN THE PAYEE’S SOLE DISCRETION; PROVIDED, HOWEVER, THAT EACH MAKER SHALL ONLY BE LIABLE UNDER THIS NOTE FOR THE MAXIMUM AMOUNT OF SUCH LIABILITY THAT CAN BE HEREBY INCURRED WITHOUT RENDERING ITS OBLIGATIONS UNDER THIS NOTE AVOIDABLE UNDER APPLICABLE LAW RELATING TO FRAUDULENT CONVEYANCE OR FRAUDULENT TRANSFER, AND NOT FOR ANY GREATER AMOUNT.

 

 

 

b.

Each Maker thereof waives the benefit of any and all defenses and discharges available to a guarantor, surety, indorser or accommodation party dependent on its character as such. Without limiting the generality of the foregoing, to the extent permitted by applicable law, each Maker waives presentment, demand for payment and notice of nonpayment or protest of any note or other instrument evidencing any of the obligations under this Note and agrees that such Maker’s liability hereunder and the security interest shall not be affected or impaired in any way by any of the following acts and things: (i) any sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in modification or other disposition of any of the obligations under this Note, any evidence thereof or any collateral therefor, (ii) any acceptance or release of collateral for or guarantors of any of the obligations under this Note; (iii) any failure, neglect, or omission to realize upon or protect any of the obligations under this Note, to obtain, perfect, enforce or realize upon any collateral therefor or to exercise any lien upon or right of appropriation of any moneys, credits or property toward the liquidation of any of the obligations under this Note, (iv) any application of payments or credits upon any of the obligations under this Note, or (v) any irregularity or avoidability of the obligations under this Note (including any avoidability of the obligations under this Note as fraudulent transfers or fraudulent conveyances under any applicable law). The Payee shall not be required, before exercising its rights under this Note, to first resort for payment of any of the obligations under this Note to any other person or entity, its or their properties or estates, or any collateral, property, liens or other rights or remedies whatsoever. To the extent permitted by applicable law, each Maker agrees not to exercise any right of contribution, recourse, subrogation or reimbursement available to it against any other person or property, unless and until all obligations under this Note and all other debts, liabilities and obligations owed by such Maker or Subsidiary to Payee have been paid and discharged. Each Maker expects to derive benefits from the transactions resulting in the creation of the obligations under this Note. Payee may rely conclusively on the continuing warranty, hereby made, that each Maker continues to be benefitted by the Payee’s extension of credit accommodations to the Maker, the Payee shall have no duty to inquire into or confirm the receipt of any such benefits and this Note shall be effective and enforceable by Payee without regard to the receipt, nature or value of any such benefits.

 

11.

Interest Laws. Any provision in this Note, the Security Agreement or any other document executed or delivered in connection herewith, or in any other agreement or commitment, whether written or oral, expressed or implied, to the contrary notwithstanding, neither Payee nor any holder hereof shall in any event be entitled to receive or collect, nor shall or may amounts received hereunder be credited, so that Payee or any holder hereof shall be paid, as interest, a sum greater than the maximum amount permitted by applicable law to be charged to the person, partnership, firm, or corporation primarily obligated to pay this Note at the time in question. If any construction of this Note or any document securing this Note, or any and all other papers, agreements, or commitments, indicate a different right given to Payee or any holder hereof to ask for, demand, or receive any larger sum as interest, such is a mistake in calculation or wording which this clause shall override and control, it being the intention of the parties that this Note and any other instruments securing the payment of this Note or executed or delivered in connection herewith shall in all things comply with applicable law and proper adjustments shall automatically be made accordingly.

 

 

 

(a)

Choice of Law and Forum. Except to the extent that the laws of the United States may apply to the terms hereof, the substantive laws of the State of Utah shall govern the validity, construction, enforcement, and interpretation of this Note, without reference to its conflict of laws rules and principles. With respect to any legal action or proceeding arising under this Note, each Maker, to the fullest extent permitted by law, hereby: (i) submits to the jurisdiction of the state and federal courts in the State of Utah; (ii) agrees that the venue of any such action or proceeding may be laid in Salt Lake County, Utah and waives any claim that the same is an inconvenient forum; (iii) stipulates that service of process in any such action or proceeding shall be properly made if mailed by any form of registered or certified mail (airmail if international), postage prepaid, to the address then registered in Secured Party’s records for Debtor, and that any process so served shall be effective ten (10) Business Days after mailing; (iv) waives any right to immunity from any such action or proceeding and waives any immunity or exemption of any property, wherever located, from garnishment, levy, execution, seizure or attachment prior to or in execution of judgment, or sale under execution or other process for the collection of debts; and (v) waives any right to interpose any set-off or non-compulsory counterclaim or to plead laches or any statute of limitations as a defense in any such action or proceeding, and waives all provisions and requirements of law for the benefit of Debtor now or hereafter in force. No provision of this Agreement shall limit Secured Party’s right to serve legal process in any other manner permitted by law or to bring any such action or proceeding in any other competent jurisdiction.

12.

Successors-in-Interest. This Note binds and may be enforced against the successors-in-interest of Makers, except as otherwise provided. This Note shall inure to the benefit of and may be enforced by Payee and its successors and assigns. This Note may not be assigned by Makers without the prior written consent of Payee. The Payee may at any time sell, assign, transfer, grant participations in, or otherwise dispose of any portion of this Note and the Security Agreement to any persons or entity.

 

13.

Amendments. This Note may be amended only by an instrument in writing signed by Payee and Makers.

 

14.

Severability. The unenforceability of any provision of this Note will not affect the enforceability or validity of any other provision herein.

 

15.

Continuing Obligations. The obligations and liabilities of Makers under this Note shall be binding upon and enforceable against Makers and their successors and assigns. The representations, undertakings, and covenants made by the undersigned under this Note are, and shall be deemed to be, of continuing force and effect until all indebtedness and obligations of the undersigned under this Note have been fully and finally paid and performed.

 

16.

Authority. Makers hereby represent and warrant to Payee that, by their execution below, as follows:

 

(i)    Makers have the full power, authority, and legal right to execute and deliver this Note and that the indebtedness evidenced hereby constitutes a valid and binding obligation of Makers without exception or limitation, (ii) Makers (A) are duly organized, validly existing and in good standing under the laws of their state of organization; (B) have all requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted; and (C) are qualified to do business in all jurisdictions in which the nature of Maker’s business requires that Maker be qualified, and

 

 

(ii)   The execution, delivery and performance by each Maker of this Note will not (A) violate any provision of any existing law or regulation, or any judgment, order or award of any court, arbitrator or governmental authority; (B) violate any provision of Debtor’s articles of incorporation; or (C) violate, be in conflict with, result in a breach of or constitute a default under any agreement or instrument to which Debtor is a party or by which Debtor or any of its properties may be bound.

17.

Multiple Counterparts. This Note may be executed in multiple counterparts, each of which will be deemed an original and all of which shall constitute one and the same instrument. Facsimile and electronic signatures shall be treated as original signatures for all purposes.

 

18.

Time is of the Essence. Time is of the essence to all terms and provisions set forth herein.

 

19.

Waiver of Trial by Jury. EACH MAKER AND THE PAYEE IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR THE SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

 

 

[Signature appears on following page]

 

 

 

IN WITNESS HEREOF, the undersigned have caused this Secured Promissory Note to be duly executed and delivered on the date first given above.

 

	MAKERS:
	Legend Oil and Gas, Ltd.
	By:
	Name:
	Title:
	Black Diamond energy holdings llc
	By:
	Name:
	Title:

 

 

 

[Signature page to Secured Promissory Note]