Exhibit
10.1
PROMISSORY NOTE
For value
received, EGPI Firecreek, a Nevada corporation, and all of its
subsidiaries (the “Company”) (OTC BB: EFIR) hereby
promises to pay to the order of Thomas Richards, his heirs or
successors, (collectively the “Holder”) by the Maturity
Date, or earlier, the full Face Amount of Twenty Thousand and
00/100 dollars ($20,000.00) U.S., (this
“Note”) in such amounts, at such times and on such
terms and conditions as are specified herein (sometimes hereafter
the Company and the Holder are referred to collectively as
“the Parties”.)
Article
1
Method of
payment/interest
Section
1.1 Payments
made to the Holder by the Company in satisfaction of the Note
(referred to as a “Payment”) shall be made to the
Holder in the amount specified in Section 1.2 below (the
“Payment Amount”) until the Face Amount is paid in
full. The First Payment will be due on June 29, 2009 and
each subsequent Payment will be made on the 29
th day of each month thereafter (“Payment
Date” or “Payments Dates”) until this Note is
paid in full. Notwithstanding any provision to the
contrary in this Note, the Company may pay in full to the Holder
the Face Amount, or any balance remaining thereon, in readily
available funds at any time prior to the Maturity Date and from
time to time prior to the Maturity Date without penalty.
Section
1.2 The
Company shall pay interest (“Interest”) at the rate of
twelve percent (12%) per annum, compounded monthly, on the unpaid
Face Amount of this Note at such times and in such amounts as
outlined in this Article 1 . The Company shall
make mandatory monthly payments of interest (the “Interest
Payments”), in an amount equal to the interest accrued on the
principal balance of the Note from the last Payment until such time
as the current Interest Payment is due and payable.
Article
2
Net proceeds delivered to the
Company under this Note shall be Nineteen Thousand, Five Hundred
dollars ($19,500.00) and the Five Hundred dollars ($500) now due
the Holder from the Company shall be deemed by the Holder to be
fully paid.
Article
3
As extra consideration for the
making of this Note, the Company shall (i) pay Holder a fee of
$2,000 at the Maturity Date of this Note for the making of this
Note, (ii) the Company shall provide and bear the cost of any
opinion letter required to remove any restrictions when permitted
by regulation on any Company shares now held by the Holder, (iii)
the Company shall prepare and bear the cost of any filings or
reporting’s that may be required of Holder and shall be
responsible for any costs of the Holder incurred in the enforcement
of this Note.
Article
4
Should there be any changes in
the Company or its subsidiaries including but not limited to
financing or other contractual agreements of any sort, or other
obligations incurred, or existing contracts lost affecting
revenues, that in the sole judgment of the Holder, would adversely
affect the Company or its subsidiaries, the Holder may at
Holder’s sole discretion accelerate the Maturity Date and
call the Note fully due and payable upon 5 days written
notice.
Section
5.1 In
the event that on the Maturity Date or sooner if due, the Company
has any remaining amounts unpaid on this Note (the “Residual
Amount”), the Holder can exercise its right to increase the
Face Amount by ten percent (10%) as an initial penalty
and an additional two and one-half percent (2.5%) per
week until paid, compounded weekly, as liquidated damages
(“Liquidated Damages”). The Parties
acknowledge that Liquidated Damages are not interest and should not
constitute a penalty.
Article
6
Defaults and
Remedies
Section
6.1
Events of Default. An “Event of
Default” occurs if any of the following occur.
(a) The
Company does not make a Payment within three (3) calendar days of
(i) a Payment date; or, (ii) any amounts on the Note exist on the
Maturity Date; or (iii) when otherwise due; or
(b) The
Company, pursuant to or within the meaning of any Bankruptcy Law
(as hereinafter defined): (i) commences a voluntary
case; (ii) consents to the entry of an order for relief against it
in an involuntary case; (iii) consents to the appointment of a
Custodian (as hereinafter defined) of the Company or for its
property; (iv) makes an assignment for the benefit of its
creditors; or (v) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that: (A) is for
relief against the Company in an involuntary case; (B) appoints a
Custodian of the Company or for its property; or (C) orders the
liquidation of the Company, and the order or decree remains
unstayed and in effect for thirty (30) calendar days; or
(c) The
Company’s $0.001 par value common stock (the "Common Stock")
is suspended or is no longer listed on any recognized exchange,
including an electronic over-the-counter bulletin board, for in
excess of ten (10) consecutive trading days; or
(d) Any of the
Company’s representations or warranties contained in this
Agreement were false when made; or,
(e) The
Company breaches this Agreement, and such breach, if and only if
such breach is subject to cure, continues for a period of five (5)
business days.
As used in this
Section 6.1, the term “Bankruptcy Law” means Title 11
of the United States Code or any similar federal or state law for
the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
Section
6.2 Remedies. For
each and every Event of Default, as outlined
in this Agreement, the Holder can exercise its right to increase
the Face Amount of the Note by ten percent (10%) as an initial
penalty. In addition, the Holder may elect to increase
the Face Amount of the Note by two and one-half percent (2.5%) each
week as Liquidated Damages, compounded weekly. The
Parties acknowledge that Liquidated Damages are not interest under
the terms of this Agreement, and shall not constitute a
penalty. In addition the Interest rate on all
outstanding amounts due shall increase to eighteen percent (18%)
annually, compounded monthly.
Section
6.3 In the
event of a Default hereunder, the Company and all of its
subsidiaries does hereby assign all revenues received by the
Company and/or any of its subsidiaries to Holder beginning on the
date of default and continuing forward until all amounts due Holder
under this Note are paid in full. Such revenues
shall be remitted to Holder within two (2) days of receipt by the
Company or its subsidiaries.
Section
6.4
Acceleration . If an Event of Default
occurs, the Holder by notice to the Company may declare the
remaining principal amount of this Note, together with all accrued
interest and any liquidated damages, to be immediately due and
payable in full.
Article 7
Security
Section
7.1 All
obligations of the Company under this Note shall be further secured
by all of the assets of the Company and its subsidiaries both
tangible and intangible until all the obligations of the Company
under this Note have been paid and met in full. This
shall include but not be limited to current and future contracts
and any revenues derived therefrom. The
obligations of the Company to the Holder under this Note shall be
and remain superior to any other obligations not previously secured
as of the date of this Note and superior to any future obligations
the Company may incur unless otherwise consented to by
Holder.
Article 8
Use of
Proceeds
Section
8.1 The
proceeds to the Company from the making of this Note shall be used
to pay down the now outstanding Note to Dutchess Private Equities
Fund, LTD, (“Dutchess”) in an amount estimated to be
$15,000 and to thereby gain a 90 day extension of the current
Dutchess note from the Company, and to address the outstanding
balances with the Company’s transfer agent and Vintage so as
to keep those services available to the Company.
Section
9.1 Any
notices, consents, waivers or other communications required or
permitted to be given under the terms of this Note must be in
writing and will be deemed to have been delivered (i) upon
delivery, when delivered personally; (ii) upon receipt, when sent
by facsimile (provided a confirmation of transmission is
mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) day after deposit with a
nationally recognized overnight delivery service, so long as it is
properly addressed. The addresses and facsimile numbers
for such communications shall be:
If to the
Company:
Attn: Dennis
Alexander
EGPI Firecreek,
Inc.
6564 Smoke Tree
Lane
Scottsdale,
Arizona 85253
Telephone:
(480) 948-6581
Fax: (480)
443-1430
E-mail:
energyproducers@aol.com
If to the
Holder:
Thomas
Richards
2454 E. Huber
St.
Mesa, AZ
85213
Telephone:
(480) 461-3592
E-mail:
TR5623@aol.com
Section
9.2 The
Parties are required to provide each other with five (5) business
days prior notice to the other party of any change in address,
phone number or facsimile number or E-mail address.
Where this Note authorizes or requires the
payment of money or the performance of a condition or obligation on
a Saturday or Sunday or a holiday on which the United States Stock
Markets (“US Markets”) are closed
(“Holiday”), such payment shall be made or condition or
obligation performed on the last business day preceding such
Saturday,
