Exhibit 10.1
FINANCING AGREEMENT
FINANCING AGREEMENT dated the 24th day of May, 2012
BETWEEN:
________________________________________________ (hereinafter, the "SUBSCRIBER")
AND:
Independence Energy Corp., a Nevada company engaged in the oil and gas business,
of 3020 Old Ranch Parkway, Suite 300, Seal Beach, CA, 90740 (hereinafter, the
"COMPANY")
NOW THEREFORE THIS FINANCING AGREEMENT ("AGREEMENT") WITNESSES that the parties
hereto agree as follows:
ARTICLE 1 - INTERPRETATION
SECTION 1.1. DEFINITIONS. When used in this Agreement (including the recitals
and schedules hereto) or in any amendment hereto, the following terms shall,
unless otherwise expressly provided, have the meanings assigned to them herein:
"BANKING DAY" shall mean any day other than a Saturday, Sunday, public holiday
under the laws of the State of Nevada or other day on which banking institutions
are authorized or obligated to close in Nevada.
"CHARTER DOCUMENTS" means contacting documents and by-laws, and all amendments
thereto;
"CONSENT" means any permit, license, approval, consent, order, right,
certificate, judgment, writ, injunction, award, determination, direction,
decree, authorization, franchise, privilege, grant, waiver, exemption and other
concession or by-law, rule or regulation;
"SHARE PRICE" means a price equal 90% of the average of the closing prices of
the Company's common stock for the Banking Days immediately preceding the date
of the Notice, as quoted on Yahoo Finance or other source of stock quotes as
agreed to by the parties; and
"DOLLAR" or "$" means the currency of the United States of America.
ARTICLE 2 - THE SHARE ISSUANCE
SECTION 2.1. SHARE ISSUANCE.
The Subscriber shall make available to the Company in accordance with, and
subject to the terms and conditions of, this Agreement, until May 24, 2013 (the
"COMPLETION DATE"), up to $ 1,000,000 by way of Advances in accordance with this
Sections 2.2, 2.3 and 2.4 of this Agreement. The Completion Date may be extended
for an additional term of up to twelve months at the option of the Company or
the Subscriber upon written notice on or before the Completion Date in
accordance with the notice provisions in Section of this Agreement.
SECTION 2.2. THE ADVANCES.
On the terms and conditions set forth herein the Subscriber, from time to time,
on any Banking Day, prior to the Completion Date, agrees to make advances to the
Company ("ADVANCES").
SECTION 2.3. PROCEDURE TO REQUEST ADVANCES.
Each Advance shall be made on or before five Banking Days following notice from
the Company. Each such notice shall be given by a notice to the Subscriber in
the form substantially the same as the form attached hereto in Schedule A (each
a "NOTICE").
SECTION 2.4. SUBSCRIPTION AGREEMENT.
Upon making each Advance, the Subscriber shall provide an executed Subscription
Agreement, in a form acceptable to both to this Agreement, to the Company.
SECTION 2.5. USE OF PROCEEDS.
The Company shall use all Advances to fund operating expenses, acquisitions,
working capital and general corporate activities.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Subscriber:
(a) Organization and Corporate Power. The Company has been duly incorporated
and organized and is validly subsisting and in good standing under the laws
of its jurisdiction and has full corporate right, power and authority to
enter into and perform its obligations under the Agreement to which it is
or shall be a party and has full corporate right, power and authority to
own and operate its properties and to carry on its business;
(b) Conflict with Other Instruments. The execution and delivery by the Company
of the Agreement and the performance by the Company of its obligations
thereunder, do not and will not: (i) conflict with or result in a breach of
any of the terms, conditions or provisions of: (A) the charter documents of
the Company; (B) any law applicable to or binding on the Company; or (C)
any contractual restriction binding on or affecting the Company or its
properties the breach of which would have a material adverse effect on the
Company; or (ii) result in, or require or permit: (A) the imposition of any
lien on or with respect to the properties now owned or hereafter acquired
by the Company; or (B) The acceleration of the maturity of any debt of the
Company, under any contractual provision binding on or affecting the
Company;
(c) Consents, Official Body Approvals. The execution and delivery of the
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary action on the part of the
Company, and no Consent under any applicable law and no registration,
qualification, designation, declaration or filing with any official body
having jurisdiction over the Company is or was necessary therefore. The
Company possesses all Consents, in full force and effect, under any
applicable Law which are necessary in connection with the operation of its
business, the non-possession of which could reasonably be expected to have
a material adverse effect on the Company;
(d) Execution of Binding Obligation. The Agreement has been duly executed and
delivered by the Company and, when duly executed by the Company and
delivered for value, the Agreement will constitute legal, valid and binding
obligations of the Company, enforceable against the Company, in accordance
with its terms;
(e) No Litigation. There are no actions, suits or proceedings pending or, to
the knowledge of the Company, after due inquiry, threatened against or
affecting the Company (nor, to the knowledge of the Company, after due
inquiry, any basis therefor) before any official body having jurisdiction
over the Company which purport to or do challenge the validity or propriety
of the transactions contemplated by the Share Issuance the Company, which
if adversely determined could reasonably be expected to have a material
adverse effect on the Company;
(f) Absence of Changes. Since the date of the most recently delivered financial
statements of the Company, the Company has carried on its business,
operations and affairs only in the ordinary and normal course consistent
with past practice.
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ARTICLE 4 - COVENANTS OF THE COMPANY
SECTION 4.1. AFFIRMATIVE COVENANTS.
Until the Completion Date, the Company shall:
(a) COMPLIANCE WITH LAWS, ETC. Comply with all applicable laws, non-compliance
with which could have a material adverse effect on the Company;
(b) PAYMENT OF TAXES AND CLAIMS. Pay and discharge before the same shall become
delinquent: (i) all taxes and assessments; and (ii) all lawful claims
which, if unpaid, might become a lien upon or in respect of the Company's
assets or properties;
(c) MAINTAIN TITLE. Maintain and, as soon as reasonably practicable, defend and
take, all action necessary or advisable at any time, and from time to time,
to maintain, defend, exercise or renew its right, title and interest in and
to all of its property and assets;
(d) PAY OBLIGATIONS TO SUBSCRIBER AND PERFORM OTHER COVENANTS. Make full and
timely payment of its obligations hereunder and duly comply with the terms
and covenants contained in this Agreement, all at the times and places and
in the manner set forth therein;
(e) FURTHER ASSURANCES. At its cost and expense, upon request by the
Subscriber, duly execute and deliver, or cause to be duly executed and
delivered, to the Subscriber, such further instruments and do and cause to
be done such other acts as may be necessary or proper in the reasonable
opinion of the Subscriber to carry out more effectually the provisions and
purposes of this Agreement.
ARTICLE 5 - SHARE ISSUANCE
SECTION 5.1 SHARE ISSUANCE.
The Company shall issue, within ten (10) Banking Days following the date of the
receipt by the Company of any Advance under this Agreement, common shares of the
Company (each a "SHARE") at the Share Price. Upon receipt of any Advance under
this Agreement, the Company shall promptly cause its registrar and transfer
agent to issue the certificates representing the Shares.
SECTION 5.2 FRACTIONAL SHARES.
Notwithstanding any other provisions of this Agreement, no certificate for
fractional shares of the Shares shall be issued to the Subscriber. In lieu of
any such fractional shares, if the Subscriber would otherwise be entitled to
receive a fraction of a share of the Shares following a Share Issuance, the
Subscriber shall be entitled to receive from the Company a stock certificate
representing the nearest whole number of shares of the Company.
ARTICLE 6 - MISCELLANEOUS
SECTION 6.1. NOTICES, ETC.
Except as otherwise expressly provided herein, all notices, requests, demands,
directions and communications by one party to the other shall be sent by hand
delivery or registered mail or fax, and shall be effective when hand delivered
or when delivered by the relevant postal service or when faxed and confirmed, as
the case may be. All such notices shall be addressed to the President of the
notified party at its address given on the signature page of this Agreement, or
in accordance with any unrevoked written direction from such party to the other
party.
SECTION 6.2. NO WAIVER; REMEDIES.
No failure on the part of the Subscriber or the Company to exercise, and no
delay in exercising, any right under this Agreement shall operate as a waiver
thereof. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.
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SECTION 6.3. JURISDICTION.
(1) Each of the parties hereby irrevocably attorns to the non-exclusive
jurisdiction of the Courts of the State of Nevada in any action or proceeding
arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law; and (2) nothing in this Section 6.3 shall affect the right of
the Subscriber to serve legal process in any other manner permitted by Law or
affect the right of the Subscriber to bring any action or proceeding against the
Company or its property in the courts of other jurisdictions.
SECTION 6.4. SUCCESSORS AND ASSIGNS.
The Company shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Subscriber, which
consent may be arbitrarily withheld.
SECTION 6.5. SEVERABILITY.
If one or more provisions of this Agreement be or become invalid, or
unenforceable in whole or in part in any jurisdiction, the validity of the
remaining provisions of this Agreement shall not be affected. The parties hereto
undertake to replace any such invalid provision without delay with a valid
provision which as nearly as possible duplicates the economic intent of the
invalid provision.
SECTION 6.6. COUNTERPARTS.
This Agreement may be executed in counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which, taken together, shall constitute one and the same
instrument.
SECTION 6.7. SYNDICATION/PARTICIPATION.
The Subscriber may not sell, transfer, assign, participate, syndicate or
negotiate to one or more third parties, in whole or in part, the Commitment and
its rights under this Agreement, without the prior written consent of the
Company, which consent may not be arbitrarily withheld.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
THE SUBSCRIBER THE COMPANY
----------------------------- Independence Energy Corp.
By: By: /s/ Gregory Rotelli
----------------------------- ---------------------------
Authorized Signing Officer Authorized Signing Officer
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SCHEDULE A
NOTICE
To: ________________________________________________ (the "Subscriber")
The undersigned, Independence Energy Corp. (the "Company") hereby requests an
advance of $________________, in accordance with the terms and conditions set
forth in the Financing Agreement May 24, 2012, between the Subscriber and the
Company and as of the Date of Notice written below.
DATE OF NOTICE: -----------------------------
Remaining amount to be advanced under
the Share Issuance: -----------------------------
Independence Energy Corp.
Per:
----------------------------------------
Authorized Signatory
The Subscriber hereby acknowledges receipt of this Notice and agrees with the
amounts set out above as of this Notice.
Per:
----------------------------------------
Authorized Signatory
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