Attached files
| file | filename |
|---|---|
| 8-K - EGPI FIRECREEK, INC. | v171994_8k.htm |
| EX-10.3 - EGPI FIRECREEK, INC. | v171994_ex10-3.htm |
| EX-10.8 - EGPI FIRECREEK, INC. | v171994_ex10-8.htm |
| EX-10.9 - EGPI FIRECREEK, INC. | v171994_ex10-9.htm |
| EX-10.2 - EGPI FIRECREEK, INC. | v171994_ex10-2.htm |
| EX-10.5 - EGPI FIRECREEK, INC. | v171994_ex10-5.htm |
| EX-10.6 - EGPI FIRECREEK, INC. | v171994_ex10-6.htm |
| EX-10.1 - EGPI FIRECREEK, INC. | v171994_ex10-1.htm |
| EX-10.7 - EGPI FIRECREEK, INC. | v171994_ex10-7.htm |
|
$1,000,000.00
|
January
15, 2010
|
EGPI
FIRECREEK, INC.
Secured
Promissory Note
FOR
VALUE RECEIVED, EGPI Firecreek, Inc., a Nevada corporation (the “Borrower”),
hereby promises to pay to St. George Investments, LLC, an Illinois limited
liability company, or its assigns (the “Lender,”
and together with the Borrower, the “Parties”),
the principal sum of $1,000,000.00 together with all accrued and unpaid interest
thereon, fees incurred or other amounts owing hereunder, all as set forth below
in this Secured Promissory Note (this “Note”).
This Note is issued pursuant to that certain Note Purchase Agreement of even
date herewith, entered into by and between the Borrower and the Lender (the
“Note
Purchase Agreement”).
1. Principal and Interest.
Interest on the unpaid principal balance of this Note shall not accrue unless an
Event of Default (as defined in Section 7 below) occurs. Upon the occurrence of
an Event of Default, this Note shall accrue simple interest at the rate of
18.00% per annum from and after the date of the Event of Default, whether before
or after judgment. Notwithstanding any provision to the contrary herein, in no
event shall the applicable interest rate at any time exceed the maximum interest
rate allowed under applicable law. The entire unpaid principal
balance and all accrued and unpaid interest, if any, shall be due and payable
upon the earlier of (i) February 15, 2010 (the “Maturity
Date”), or (b) the closing or partial closing of an investment in or
acquisition of, through any form of business combination, Southwest Signal,
Inc., a Florida corporation, or any affiliate thereof or successor
thereto.
2. Payment. All principal and
accrued interest under this Note is payable in one lump sum on the Maturity
Date. All payments of interest and principal shall be (i) in lawful money of the
United States of America, (ii) in the form of immediately available funds, and
(iii) delivered via wire transfer to the following account:
|
Bank
Name:
|
The
Private Bank and Trust Company, Chicago, Illinois
|
|
ABA
Number:
|
071
006 486
|
|
Account
Name:
|
St
George Investments LLC
|
|
Account
Number:
|
2153493
|
|
Comment/Note:
|
Firecreek
Secured Note
|
All
payments shall be applied first to costs of collection, if any, then to accrued
and unpaid interest, and thereafter to principal. Payment of principal and
interest hereunder shall be made in immediately available funds delivered to the
Lender at the address furnished to the Borrower for that purpose.
3. Origination
Fee. Borrower acknowledges and agrees that the initial funded
principal balance of this Note includes an origination fee, as set forth in the
Note Purchase Agreement, and that such origination fee shall be fully earned
upon the execution of this Note and shall be paid to Lender as part of the
outstanding principal balance as set forth herein.
4. Prepayment by the Borrower.
The Borrower may, in its sole and absolute discretion, pay all or any portion of
the outstanding balance along with any accrued but unpaid interest on this Note
at any time prior to the Maturity Date.
5. Collateral. This Note shall be
secured by an Irrevocable Standby Letter of Credit (the “Letter of
Credit”) issued by The Bank of Tampa (the “LC
Issuer”) of even date herewith, substantially in the form attached hereto
as Exhibit
A.
6. Covenants and Agreements. In
addition to the covenants set forth in the Note Purchase Agreement, which are
incorporated herein by reference, the Borrower covenants and agrees that, while
any amounts under this Note are outstanding, it shall not (i) interfere in any
way with Lender’s relationship with the LC Issuer, or (ii) communicate with the
LC Issuer in any attempt to influence whether the LC Issuer honors draw requests
under the Letter of Credit. Borrower also acknowledges and agrees
that in the event Lender wrongfully draws on the Letter of Credit Borrower’s
sole remedies are in the nature of legal damages based on breach of contract and
that equitable relief is not available under such circumstances.
7. Default. If any of the events
specified below shall occur (each, an “Event of
Default”) the Lender may (i) declare the unpaid principal balance
together with all accrued and unpaid interest thereon immediately due and
payable, by notice in writing to the Borrower, and (ii) at any time after
January 31, 2010, immediately draw on the Letter of Credit in order to satisfy
the Borrower’s payment obligations hereunder; provided, however, that Lender
will not make any draw on the Letter of Credit prior to January 31, 2010,
notwithstanding the occurrence of an Event of Default. Nevertheless,
if an Event of Default occurs on or before January 31, 2010 and remains uncured
after that date, the Lender may immediately draw on the Letter of
Credit. The Borrower acknowledges and agrees that (a) time is of the
essence, (b) this Note provides for no opportunity for the Borrower to cure an
Event of Default, and (c) the Lender is under no obligation to provide notice of
an Event of Default prior to exercising available remedies. Each of
the following events shall constitute an Event of Default:
(a) Failure to Pay. The
Borrower’s failure to make any payment, in the method described in Section 2
hereof, when due and payable under the terms of this Note including, without
limitation, any payment of costs, fees, interest, principal or other amounts due
hereunder;
(b) Failure to Deliver
Collateral. The Borrower’s failure to cause The Bank of Tampa
to issue the Letter of Credit;
(c) Breaches of
Covenants. The Borrower or its subsidiaries, if any, shall fail to
observe or perform any other covenant, obligation, condition or agreement
contained in this Note, the Note Purchase Agreement, that certain Convertible
Promissory Note entered into between the Parties on even date herewith, that
certain Registration Rights Agreement entered into between the Parties on even
date herewith, or any other agreement between the Parties related hereto or
thereto (collectively, the “Transaction
Documents”);
(d) Representations and
Warranties. Any representation, warranty, certificate, or other statement
(financial or otherwise) made or furnished by or on behalf of the Borrower to
the Lender in writing in connection with the Transaction Documents, or as an
inducement to the Lender to enter into the Transaction Documents, shall be
false, incorrect, incomplete or misleading in any material respect when made or
furnished or becomes false thereafter;
2
(e) Failure to Pay Debts;
Voluntary Bankruptcy. If any of the Borrower’s assets are assigned to its
creditors, if the Borrower fails to pay its debts generally as they become due,
or if the Borrower files any petition, proceeding, case or action for relief
under any bankruptcy, reorganization, insolvency or moratorium law, rule,
regulation, statute or ordinance (collectively, “Laws and
Rules”), or any other Law and Rule for the relief of, or related to,
debtors;
(f) Involuntary
Bankruptcy. If any involuntary petition is filed under any bankruptcy or
similar Law or Rule against the Borrower, or a receiver, trustee, liquidator,
assignee, custodian, sequestrator or other similar official is appointed to take
possession of any of the assets or properties of the Borrower or any guarantor;
and
(g) Governmental Action.
If any governmental or regulatory authority takes or institutes any action that
will materially affect the Borrower’s financial condition, operations or ability
to pay or perform the Borrower’s obligations under this Note.
8. Binding Effect. This Note
shall be binding on the Parties and their respective heirs, successors, and
assigns; provided, however, that the
Borrower shall not assign its rights hereunder in whole or in part without the
express written consent of the Lender.
9. Governing Law; Venue. The
terms of this Note shall be construed in accordance with the laws of the State
of Illinois as applied to contracts entered into by Illinois residents within
the State of Illinois which contracts are to be performed entirely within the
State of Illinois. With respect to any disputes arising out of or
related to this Note, the parties consent to the exclusive jurisdiction of, and
venue in, the state courts in Illinois (or in the event of federal jurisdiction,
the United States District Court Northern District of Illinois).
10. Severability. If any part of
this Note is construed to be in violation of any law, such part shall be
modified to achieve the objective of the parties to the fullest extent permitted
by law and the balance of this Note shall remain in full force and
effect.
11. Attorneys’ Fees. If any action
at law or in equity is necessary to enforce this Note or to collect payment
under this Note, the Lender shall be entitled to recover reasonable attorneys’
fees directly related to such enforcement or collection actions.
12. Amendments and Waivers;
Remedies. No failure or delay on the part of a party hereto in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to a party hereto at law, in equity or
otherwise. Any amendment, supplement or modification of or to any provision of
this Note, any waiver of any provision of this Note, and any consent to any
departure by either Party from the terms of any provision of this Note, shall be
effective (i) only if it is made or given in writing and signed by the Borrower
and the Lender and (ii) only in the specific instance and for the specific
purpose for which made or given.
3
13. Notices. All notices,
requests, demands, claims and other communications hereunder shall be in
writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly given if it is sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the intended
recipient, as set forth in the Note Purchase Agreement. Any party may send any
notice, request, demand, claim or other communication hereunder to the intended
recipient at the address set forth in the Note Purchase Agreement using any
other means (including personal delivery, expedited courier, messenger service,
facsimile, ordinary mail, or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient or receipt is
confirmed electronically or by return mail. Any party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other party notice in any manner
herein set forth.
14. Final Note. This Note,
together with the Transaction Documents, contains the complete understanding and
agreement of the Borrower and Lender and supersedes all prior representations,
warranties, agreements, arrangements, understandings, and negotiations. THIS
NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY ALLEGED PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[Remainder
of page intentionally left blank; signature page to follow]
4
IN WITNESS WHEREOF, the
Parties have executed this Note as of the date set forth above.
Exhibit
Exhibit A
– Letter of Credit
| EGPI FIRECREEK, INC. | |
|
By:
|
 |
|
Name:
Dennis R Alexander
|
|
|
Title:
CEO
|
|
ACKNOWLEDGED,
ACCEPTED AND AGREED:
ST.
GEORGE INVESTMENTS, LLC
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Signature
Page to Secured Promissory Note]
EXHIBIT
A
LETTER
OF CREDIT