EX-10 2 exhibit1016.htm PROMISSORY NOTE TO ENEX exhibit1016.htm - Generated by SEC Publisher for SEC Filing

Exhibit 10.16

CIG WIRELESS CORP.

PROMISSORY NOTE

THIS PROMISSORY NOTE HAS BEEN ISSUED IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND AS SUCH MAY NOT BE FURTHER OFFERED OR SOLD WITHIN THE UNITED STATES OR TO U.S. PERSONS, AS DEFINED IN RULE 902(K) OF REGULATION S, EXCEPT TO THE EXTENT REGISTERED WITH THE U.S. SECURITIES & EXCHANGE COMMISSION OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE THERETO. 

 

THIS PROMISSORY NOTE MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT AS PROVIDED HEREIN.  ANY ATTEMPTED TRANSFER OF THIS PROMISSORY NOTE IN VIOLATION OF SUCH TERMS SHALL BE NULL AND VOID AND OF NO EFFECT.  THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND NO OFFER, TRANSFER OR ASSIGNMENT OF THIS PROMISSORY NOTE MAY BE MADE IN THE ABSENCE OF SUCH REGISTRATIONS OR AVAILABLE EXEMPTIONS THERETO.

US$1,000,000.00                                                                        Dated: 15 December 2011

FOR VALUE RECEIVED, CIG Wireless Corp. (the “Holding Company”) hereby promises to pay to the order of the undersigned lender (the “Lender”), at such time, place and in such manner as Lender may specify in writing, the principal amount of One Million ($1,000,000.00) U.S. Dollars (the “Principal”) pursuant to the terms and conditions specified herein.  The Holding Company shall pay interest on the outstanding principal of this Note at the annual rate of four Percent (4%) per annum, calculated based on a year of 365 days and actual days elapsed (the “Interest”).   

 

1.      The Holding Company hereby promises to pay to the order of the Lender the Principal and all Interest due thereon thirty (30) calendar days following demand of the Lender on or after the first anniversary of the date hereof (the “Maturity Date”), at such reasonable place and in such reasonable manner as Lender may specify to the Company in writing. 

2.      Any and all fees, costs, expenses and disbursements charged by financial institutions with respect to wire transfer or other transmittal charges incurred in connection with delivery of the Principal from the Lender to the Holding Company shall be deemed to have been received by the Holding Company from the Lender and all such amounts shall be included in the calculation of Principal hereunder.


 

CIG Wireless Corp.                                                                                                                                                                                               Promissory Note

3.      The obligations represented by this Note shall not be transferable by Holding Company and the Holding Company may not assign, transfer or sell all or a portion of its rights and interests to and under this Note to any persons and any such purported transfer shall be void ab initio.  The Lender may transfer and assign this Note at its sole discretion subject to applicable U.S. securities laws, rules and regulations pertaining to such transfers as to which a customary legal opinion of counsel shall be required to be delivered to Holding Company.

 

4.      The failure at any time of the Lender to exercise any of its options or any other rights hereunder shall not constitute a waiver thereof, nor shall it be a bar to the exercise of any of its options or rights at a later date.  All rights and remedies of the Lender shall be cumulative and may be pursued singly, successively or together, at the option of the Lender.  The acceptance by the Lender of any partial payment shall not constitute a waiver of any default or of any of the Lender's rights under this Note.  No waiver of any of its rights hereunder, and no modification or amendment of this Note, shall be deemed to be made by the Lender unless the same shall be in writing, duly signed on behalf of the Lender; and each such waiver shall apply only with respect to the specific instance involved, and shall in no way impair the rights of the Lender in any other respect at any other time.

 

5.      Any term or condition of this Note may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition.

 

6.      The Holding Company represents and warrants that this Note is the valid and binding obligation of the Holding Company, fully enforceable in accordance with its terms.  The execution and delivery by the Holding Company of this Note, the performance by the Holding Company of its obligations hereunder and the consummation of the transactions contemplated hereby and thereby does not and will not: (a) conflict with or result in a violation or breach of any of the terms, conditions or provisions of the Holding Company’s charter instruments; (b) conflict with or result in a violation or breach of any term or provision of any law or order applicable to the Holding Company or any of its assets and properties; or (c) (i) conflict with or result in a violation or breach of, or (ii) result in or give to any person any rights or create any additional or increased liability of the Holding Company under or create or impose any lien upon, the Holding Company or any of its assets and properties under, any contract or permit to which the Holding Company is a party or by which its assets and properties are bound.

 

7.      If any provision of this Note is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Note will not be materially and adversely affected thereby, (i) such provision will be fully severable; (ii) this Note will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of this Note will remain in full force and effect and will not be affected by       the illegal, invalid or unenforceable provision or by its severance here from; and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Note a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.

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CIG Wireless Corp.                                                                                                                                                                                               Promissory Note

 

8.      Any notice, authorization, request or demand required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given two days after it is sent by an internationally recognized delivery service to the address of record of the Lender or the Holding Company, respectively.  Any party may change its address for such communications by giving notice thereof to the other parties in conformity with this Section.

 

9.      Jurisdiction and Venue; Jury Trial Waiver.  Each party acknowledges and agrees that any legal action, proceeding, or litigation arising out of or in any way related to this Note shall be instituted in the United States District Court for the Northern District of Georgia or any State of Georgia court having jurisdiction over the subject matter of the dispute or matter.  Each party agrees to submit to the jurisdiction of and agree that the venue is proper in those courts in any legal action, proceeding, or litigation arising out of or in any way related to this Note.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL ACTION, PROCEEDING, OR LITIGATION ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE.

 

10.  A default shall exist on this Note if any of the following occurs and is continuing:  (i) Failure to pay Principal and any accrued Interest on the Note on or before the Maturity Date; (ii) Failure by the Holding Company to perform or observe any other covenant or agreement of the Holding Company contained in this Note; (iii) A custodian, receiver, liquidator or trustee of the Holding Company, or any other person acting under actual or purported force of law takes ownership, possession or title to Holding Company property; (iv) any of the property of the Holding Company is sequestered by court order; (v) a petition or other proceeding, voluntary or otherwise is filed by or against the Holding Company under any bankruptcy, reorganization, arrangement, insolvency, readjustment of indebtedness, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect; or (vi) the Holding Company makes an assignment for the benefit of its creditors, or generally fails to pay its obligations as they become due, or consents to the appointment of or taking possession by a custodian, receiver, liquidator or trustee of the Holding Company or all or any part of its property.  Upon any such default, the Holding Company shall immediately notify the Lender, and upon notice to the Holding Company, the Lender may declare the Principal of the Note, plus accrued Interest, to be immediately due and payable, upon which such Principal and accrued Interest shall become due and payable immediately.  Interest upon default shall thereafter accrue at the rate of fifteen percent 15% per annum, calculated based on a year of 365 days and actual days elapsed from the date of such default. 

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CIG Wireless Corp.                                                                                                                                                                                               Promissory Note

11.  The Holding Company, any endorser, or guarantor hereof or in the future (individually an “Obligor”  and collectively “Obligors”) and each of them jointly and severally:  (a) waive presentment, demand, protest, notice of demand, notice of intent to accelerate, notice of acceleration of maturity, notice of protest, notice of nonpayment, notice of dishonor, and any other notice required to be given under the law to any Obligor in connection with the delivery, acceptance, performance, default or enforcement of this Note, any endorsement or guaranty of this Note, any pledge, security, guaranty or other documents executed in connection with this Note; (b) consent to all delays, extensions, renewals or other modifications of this Note, or waivers of any term hereof or thereof, or release or discharge by the Lender of any of Obligors, or release, substitution or exchange of any security for the payment hereof, or the failure to act on the part of the Lender or any indulgence shown by the Lender (without notice to or further assent from any of Obligors), and agree that no such action, failure to act or failure to exercise any right or remedy by the Lender shall in any way affect or impair the Obligations (as hereinafter defined) of any Obligors or be construed as a waiver by the Lender of, or otherwise affect, any of the Lender's rights under this Note, under any endorsement or guaranty of this Note; (c) if the Holding Company fails to fulfill its obligations hereunder when due, agrees to pay, on demand, all costs and expenses of enforcement of collection of this Note or of any endorsement or guaranty hereof and/or the enforcement of the Lender's rights with respect to, or the administration, supervision, preservation, protection of, or realization upon, any property securing payment hereof, including, without limitation, all attorney's fees, costs, expenses and disbursements, including, without further limitation, any and all fees related to any legal proceeding, suit, mediation arbitration, out of court payment agreement, trial, appeal, bankruptcy proceedings or any other actions of any nature whatsoever required on the part of Lender or Lender’s representatives to enforce this Note and the rights hereunder; and (d) waive the right to interpose any defense, set-off or counterclaim of any nature or description. 

 

12.  The Holding Company will not, by amendment of its Articles of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Holding Company, but will at all times in good faith assist in the carrying out of all the provisions of this Note and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Lender of this Note against impairment.  This Note shall be enforceable against all successors and assigns of Holding Company.  Holding Company hereby covenants that all of its subsidiaries and affiliates shall jointly and severally perform this Note to the same and full extent on behalf of Holding Company if Holding Company is unable to perform.

 

13.  This Note supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

 

 

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CIG Wireless Corp.                                                                                                                                                                                               Promissory Note

14.  If the Note is damaged or lost by the Lender, the Holding Company shall issue an identical replacement note to the Lender upon the Lender's delivery to the Holding Company of a customary agreement to indemnify the Holding Company reasonably satisfactory to the Holding Company for any losses resulting from issuance of a replacement note.  The original exemplar of this Note shall be retained by the Lender and a duplicate acknowledgment copy shall be retained by the Holding Company.

 

15.  The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.  Nothing in this Note, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Note, except as expressly provided in this Note.

 

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CIG Wireless Corp.                                                                                                                                                                                               Promissory Note

 

IN WITNESS WHEREOF, the Holding Company has caused this Note to be dated, executed and issued on its behalf, by its duly appointed and authorized officer, as of the date first above written.

 

CIG Wireless Corp.

 


By:     
/s/ Akram Baker                                 

            Name:  Akram Baker  

            Title:    CEO

 

 

 

Lender: 

 

 

By:      /s/ Arthur Davis                                  

            Name: Arthur Davis

            Title:    President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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