EX-10.1.1



 EXHIBIT 10.1.1

 SENIOR SECURED NOTE 

(Deferred Payment) 
  

			
	$4,250,000.00		June 29, 2015        

 EAGLE MOUNTAIN ACQUISITION LLC, a Delaware limited liability company (“Borrower”), for
value received, promises to pay to the order of CIL&D, LLC, a Delaware limited liability company (the “Lender”), as set forth below at the mailing address of 337 N. Vineyard Ave., 4th Floor, Ontario, CA 91764 (the
“Payment Address”), or at such other place as may be designated in writing by Lender, in lawful money of the United States of America in immediately available funds, Four Million Two Hundred Fifty Thousand Dollars and 00/100ths
($4,250,000.00) together with interest thereon from the date hereof, at the rate or rates hereinafter specified. 
 WHEREAS, Borrower
is a party to that certain Purchase and Sale Agreement dated as of June 25, 2015 (the “Purchase Agreement”) among Borrower, Lender, Eagle Mountain LLC, a Delaware limited liability company that is the sole member of Borrower
(“Holdco”), Eagle Crest Energy Company, a California corporation (“ECEC”) and Kaiser Eagle Mountain, LLC a Delaware limited liability company (“KEM”), pursuant to which, among other things, Lender
agreed to sell to Borrower 100% of the ownership interest in KEM; 
 WHEREAS, as payment of the purchase price to Lender under the
Purchase Agreement, Borrower and Lender entered into (i) this promissory note (this “Note”) and (ii) that certain promissory note in the amount of $19,000,000 of even date herewith in favor of Lender (the “Junior
Note” and together with this Note, the “Notes”). The $4,250,000 payment obligations under this Note are sometimes referred to in the other Loan Documents as the “Deferred Payment”. Collectively, the payment
obligations under the Notes are sometimes referred to herein as the “Loan”. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Junior Note; and 

WHEREAS, this Note is directly and indirectly secured by, among other things (collectively, the “Collateral
Agreements”): (i) a pledge by Borrower of 100% of the membership interest in KEM (the equity and other interest pledged under the foregoing pledge agreement is sometimes referred to herein as the “KEM Pledged
Collateral”), (ii) a pledge by Holdco of 100% of the membership interest in Borrower (the equity and other interest pledged under the foregoing pledge agreement is sometimes referred to herein as the “Borrower Pledged
Collateral”), (iii) a pledge by certain shareholders of ECEC (the “ECEC Guarantors”) of their respective interests in ECEC (collectively, the equity and other interest pledged under such pledge agreements are sometimes
referred to herein as the “ECEC Pledged Collateral” and together with the KEM Pledged Collateral and the Borrower Pledged Collateral, the “Pledged Collateral”), (iv) a guaranty by KEM with respect to
Borrower’s payment of the Loan, (v) a guaranty by Holdco with respect to Borrower’s payment of the Loan, (vi) a guaranty by ECEC with respect to Borrower’s payment of this Note (vii) a guaranty by the ECEC Guarantors
with respect to ECEC’s obligations under its guaranty , and (viii) a deed of trust, assignment of leases and rents, security agreement and fixture filing granted by KEM in favor of Lender (the “Deed of Trust”) with respect
to certain real property at Eagle Mountain, Riverside County, California (the “Eagle Mountain Property”) in order to secure KEM’s obligations under its guaranty. Collectively, the Notes and the Collateral Agreements are
referred to herein as the “Loan Documents”; and 
 WHEREAS, Borrower, Holdco, ECEC, Lender, KEM and First American
Title Insurance Company, as Escrow Agent, are entering into that certain Escrow Instructions and Agreement dated as of June 25, 2015 (the “Escrow Agreement”) providing for a joint escrow and the closing of the sale transaction
under the Purchase Agreement pursuant to the terms, procedures, covenants and conditions set forth in the Escrow Agreement. 







 NOW, THEREFORE, as an inducement to Lender to enter into the Purchase Agreement and to
accept the Notes, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree as follows: 

1. Recitals. Each of the recitals set forth above are true and correct and incorporated herein. 

2. Interest Rate. So long as no default or Event of Default has occurred, interest shall accrue on the unpaid principal amount
outstanding under this Note at a rate equal to six percent (6.00%) per annum (“Interest Rate”). 
 3.
Calculation of Interest. The Interest Rate payable hereunder shall be calculated on the basis of the actual number of days elapsed over a period of 365 days commencing on the date of this Note. 

4. Interest and Principal Payments; Maturity. 
  

	 	(a)	On 11:00 a.m. Pacific Time on February 29, 2016 (“Maturity Date”) all unpaid principal of, and accrued but unpaid interest on, this Note shall be due and payable. 


(b) Payments made to Lender by Borrower hereunder shall be applied (i) first to any reasonable, out-of-pocket fees or expenses of Lender
arising under this Note, under any of the other Loan Documents or as may otherwise become due to Lender under the Loan Documents, (ii) second, to accrued interest under this Note, and (iii) last, to the unpaid principal balance of this
Note. 
 (c) So long as any amounts remain outstanding under this Note, any payments made by or on behalf of Borrower shall applied by
Lender as set forth herein, regardless of whether any amounts remain outstanding to Lender by Borrower under the Junior Note. 
 (d)
Following the occurrence and during the continuance of an Event of Default, any payments received by Lender from or on behalf of Borrower shall be applied by Lender as Lender shall determine in its sole and absolute discretion. 

5. Prepayment. This Note may be prepaid in full or in part at any time without penalty or premium. 

6. Grant and Protection of Security Interest. 

(a) To secure maintenance and preservation of that certain license granted to ECEC by the Federal Energy Regulatory Commission (the
“FERC License”) for the construction and operation of a planned hydro-electric, pumped-storage project to be located on portions of the Eagle Mountain Property as such project may be modified, amended or revised from time to time (the
“Project”) and the value of such assets held by ECEC (collectively, the “Secured Obligations”), Borrower hereby unconditionally and irrevocably grants to Lender a “Security Interest” as defined in
the Uniform Commercial Code as in effect from time to time in the State of California, and pursuant to this Note, in all of Borrower’s right, title and interest in, to and under the following, each case whether now owned or hereinafter
acquired: 
 (1) All general intangibles relating to the Project, including, without limitation, all studies, analyses and
reports commissioned by or on behalf of Borrower undertaken in contemplation or furtherance of the Project or the financing of the Project, and any contract rights related thereto or related to any other aspect of the Project analyzing, evaluating,
commencing, constructing, financing, completing or operating the Project (collectively, the “Project Collateral”); and 

(2) Any substitutes or replacements for any Project Collateral and all products and cash and non-cash proceeds of the foregoing
in whatever form, including, but not limited to, cash, negotiable instruments and other instruments for the payment of money, chattel paper, security agreements and other documents. 

  
 2 








 (b) Borrower hereby authorizes Lender, at Borrower’s sole cost, (i) to file any
financing statement, (ii) to note its lien on any applicable certificate of title and to file such certificates with the appropriate public office, and (iii) to make any additional filings or recordings, in any public office deemed
necessary by Borrower to perfect or continue its Security Interest in the KEM Pledged Collateral or the Project Collateral. The Security Interest granted by Borrower shall at all times be valid, perfected and enforceable against Borrower in
accordance with the terms of this Note and the other Loan Documents, as security for the Secured Obligations. Borrower shall, at Borrower’s sole cost and expense, take all action that may be necessary or desirable, or that Lender may reasonably
request, so as at all times to maintain the validity, perfection, enforceability and rank of the Security Interest in the KEM Pledged Collateral or the Project Collateral in conformity with the requirements of this Note and the other Loan Documents
or to enable Lender or any holder hereof to exercise or enforce rights granted or made available hereunder. 
 7. Representations and
Warranties. Borrower represents and warrants as follows: 
 (a) Borrower is a limited liability company organized under the laws of
the State of Delaware. 
 (b) Borrower’s chief executive office is located at c/o Eagle Crest Energy Company, 3000 Ocean Park Blvd.,
Suite 1020, Santa Monica, CA 90405. 
 (c) This Note and each of the other Loan Documents to which Borrower is a party are legal, valid and
binding obligations of such party, enforceable against such party in accordance with their terms. 
 (d) This Note and each of the other
Loan Documents to which Borrower is a party are within the limited liability company power of Borrower and have been duly authorized by all necessary company action. 

(e) Borrower has not granted any security interest in any of the KEM Pledged Collateral or the Project Collateral except as specifically
permitted under the Loan Documents. 
 (f) The execution, delivery and performance of this Note and each of the other Loan Documents to
which Borrower is a party, and the borrowing by Borrower hereunder, do not and will not (a) require any consent, approval, authorization of, or filings with, notice to or other act by or in respect of, any governmental authority or any other
person; (b) conflict with (i) to Borrower’s knowledge, any provision of law or any applicable regulation, order, writ, injunction or decree of any court or governmental authority, (ii) the governing documents of Borrower, as
applicable, or (iii) any material agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon Borrower, as applicable; or (c) require, or result in, the creation or imposition of any lien of
any real property occupied by Borrower, as applicable. 

  
 3 








 8. Covenants. Borrower covenants and agrees that Borrower shall not incur or be
obligated on any debt either directly or indirectly, by way of guarantee, suretyship or otherwise, other than (i) exists as of the date hereof and has been disclosed in writing to Lender, (ii) unsecured trade and operational debt
(including, without limitation, equipment leases) incurred in the ordinary course of business relating to the ownership, development and operation of the Project and the routine administration of Borrower, in amounts not to exceed ten percent
(10%) of the Loan, (iii) any indebtedness the proceeds of which shall be used to pay all amounts due under the Notes in their entirety, (iv) indebtedness to Holdco, ECEC, KEM, or certain shareholders of ECEC (the “ECEC
Guarantors”) but only if (A) Holdco, ECEC, KEM and such ECEC Guarantors (the “Intercompany Lenders”) shall be parties to the then applicable Collateral Agreements and such indebtedness of Borrower to the Intercompany
Lenders shall be collaterally pledged to Lender, or (B) each applicable Intercompany Lender shall execute and deliver to Lender a subordination agreement reasonably acceptable to the Lender with respect to such indebtedness of the Borrower to
such Intercompany Lenders, and (v) indebtedness to any ECEC Guarantor pursuant to the terms of Section 8 of the Junior Note. Borrower further covenants and agrees that it shall at all times comply with any and all laws, ordinances and
governmental and regulatory rules and regulations to which Borrower, the KEM Pledged Collateral or the Project Collateral is subject. 
 9.
Conditions to Funding. The effectiveness of this Note as partial payment under the Purchase Agreement is conditioned upon all conditions to effectiveness under the Escrow Agreement being satisfied or waived by Lender. 

10. Events of Default This Note will be in default if any one or more of the following events (each an “Event of
Default” and collectively “Events of Default”) shall occur: 
 (a) Borrower’s failure to pay the principal
of or interest on this Note, or on any other obligations due and owing to Lender from Borrower under the other Loan Documents, within five (5) business days of when the same become due and payable; 

(b) any Event of Default under any Loan Document shall exist beyond all applicable notice and cure periods; 

(c) any representation or warranty made by Borrower in this Note is intentionally false or misleading in any material respect as of the date
when made; 
 (d) any creditor of Borrower other than Lender takes control or possession of any of the KEM Pledged Collateral; 

(e) Borrower shall be dissolved, either voluntarily or involuntarily and such dissolution is not reversed or cured within sixty
(60) days; 
 (f) without the prior written consent of Lender, Borrower: (i) sells, assigns, transfers, exchanges, or otherwise
disposes of any of the KEM Pledged Collateral or the Project Collateral to any person other than (A) ECEC, Holdco, or KEM, (B) a wholly-owned subsidiary or any other Affiliate that becomes a party to the appropriate Loan Documents or
(C) permitted under the Deed of Trust or any other Loan Document, (ii) creates, incurs or permits to exist any pledge, lien, mortgage, hypothecation, security interest, charge, option or any other encumbrance with respect to any of the KEM
Pledged Collateral, the Project Collateral or any interest therein, or any proceeds thereof, except for any lien or security interest granted in same (A) in favor of Lender, (B) prior to the date hereof, (C) permitted under the Deed
of Trust 

  
 4 








 
or any other Loan Document, (D) which is discharged or contested and bonded in a manner reasonably acceptable to Lender within sixty (60) days thereafter, (E) pursuant to a
financing transaction through which this Note shall be paid in full, or (F) as specifically approved in writing by Lender; 
 (g) an
Insolvency Proceeding is commenced against Borrower, and any of the following events occur: (a) Borrower consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not
timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) calendar days of the date of the filing thereof, or (d) an interim trustee is appointed to take possession of all or any
substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, Borrower,. As used herein, the term “Insolvency Proceeding” means any proceeding commenced by or against any person under
any provision of the United States Bankruptcy Code or under any other federal bankruptcy or insolvency law or any assignment for the benefit of creditors; 

(h) an Insolvency Proceeding is commenced by Borrower; 

(i) Borrower makes any payment on account of indebtedness that has been contractually subordinated in right of payment to the payment of this
Note, except to the extent Borrower is current on all payments required under this Note and such payment is permitted by the terms of the subordination provisions applicable to such indebtedness; 

(j) any (i) taxes, assessments or governmental charges or levies imposed upon Borrower or upon its income or profits or upon any
properties belonging to Borrower (collectively “Taxes”) becomes delinquent, unless such Taxes are otherwise being contested by Borrower in accordance with applicable law, or (ii) the failure to pay or discharge when due any
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals which, if unpaid, would reasonably become a lien recorded or filed against any properties of Borrower, unless otherwise being contested
by Borrower in accordance with applicable law or bonded in a manner reasonably acceptable to Lender or discharged within sixty (60) days; or 

(k) Holdco shall cease to own and control, directly or indirectly, 100% of the equity interests of Borrower, or Borrower shall cease to own
and control, directly or indirectly, 100% of the equity interests of KEM; 
 then, the principal amount evidenced by this Note, all interest thereon, and
all other amounts payable hereunder shall, become and be immediately due and payable, in immediately available funds, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by Borrower. 

11. Default Rate of Interest. After maturity, by acceleration or otherwise, this Note shall bear interest at a rate equal to
five percent (5%) per annum in excess of the applicable Interest Rate at the time that default interest becomes payable (“Default Rate”). 

12. Remedies. Should Borrower fail to make any payment hereon on the date on which it shall be delinquent, or should any Event
of Default occur and be continuing, then Lender, at its option and without notice or demand, may declare immediately due and payable the entire unpaid balance of principal under this Note, together with all accrued interest thereon, and after the
date of such default this Note shall bear interest at the Default Rate. In such case Lender may also recover all actual, out-of-pocket costs of suit and other expenses in connection with efforts to collect any of the aforesaid amounts, together with
reasonable attorneys’ fees (including reasonable attorneys’ fees for representation in proceedings under the Bankruptcy Code), regardless of whether litigation is commenced, together with 

  
 5 








 
interest on any judgment obtained by Lender at the Default Rate, including interest at the Default Rate from and after the date of any foreclosure sale until actual payment is made to Lender of
the full amount due Lender. In addition to the foregoing, Lender may exercise any and all other rights available to Lender under this Note and otherwise under applicable law. Borrower hereby waives any and all presentment, demand, notice of
dishonor, protest, and all other notices and demands in connection with the enforcement of Lender’s rights under this Note or any of the other Loan Documents, and hereby consents to, and waives notice of release, with or without consideration,
of any of the KEM Pledged Collateral and the Project Collateral, notwithstanding anything contained herein to the contrary. 
 13.
Assignment. Lender may assign to one or more person or other entities all or a portion of his rights under this Note, provided Lender gives Borrower written notice of such assignment on or before the date of such assignment. In the
event of an assignment of all of its rights, Lender may transfer this Note to the assignee. Lender may, in connection with any assignment or proposed assignment, disclose to the assignee or proposed assignee any information relating to Borrower
furnished to Lender by or on behalf of Borrower. Should the Lender assign this Note or any of its rights under this Note, all instances requiring Lender’s consent or discretion in the Loan Documents (including any decisions within Lender’s
“sole discretion”) shall then be deemed to require Lender’s reasonable consent or discretion. 
 14. Governing
Law. This Note shall be governed by and construed in accordance with the laws of the State of California. 
 15. Jurisdiction;
Waiver of Jury Trial. Where federal jurisdiction exists over any action, suit or proceeding arising out of or in any way connected with this Note, the parties designate the United States District Court for the Central District of California,
for the exclusive resolution of the dispute and submit to the jurisdiction of that court. Where federal jurisdiction does not exist over any such action, suit or proceeding, the parties designate the state courts within San Bernardino County,
California, for the exclusive resolution of the dispute and submit to the jurisdiction of any such court. Nothing in this paragraph is intended to limit in any way a party’s right to appeal all or any part of a decision, ruling or judgment of
any court. 
 16. Remedies Cumulative. All rights and remedies of the parties under this Note and the other Loan Documents are
cumulative and without prejudice to any other rights or remedies under law. Nothing contained herein shall be construed as limiting the parties’ rights to redress for fraud. 

17. No Waiver by Lender. No Event of Default shall be waived by Lender except in writing. No failure or delay on the part of
Lender in exercising any right, power or remedy hereunder shall operate as a waiver of the exercise of the same or any other right at any other time; 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 hereunder. 
 18. Waivers of Borrower. 

(a) Borrower acknowledges that it has relied on the advice of its own counsel in making this Note and has reviewed the waivers of rights
contained herein with its counsel. 
 (b) Borrower hereby fully and completely waives, releases and relinquishes any statute of limitations
affecting any of Borrower’s liability hereunder or the enforcement thereof, including without limitation, any right, defense or benefit under Cal. Code of Civ. Proc. Section 337. 

(c) Borrower expressly waives any defense or benefits arising out of any federal or state bankruptcy, insolvency, or debtor relief laws,
including without limitation, under Section 364 or 1111(b)(2) of the United States Bankruptcy Code. 

  
 6 








 19. Notices. Any notice, request, demand, consent, confirmation or other
communication under this Note shall be in writing and delivered in person or sent by telecopy, recognized overnight courier or registered or certified mail, return receipt requested and postage prepaid, to the addresses set forth below. Such notices
shall be deemed effective on the day on which delivered or sent if delivered in person or sent by telecopy (with answerback confirmation received), on the first (1st) business day after the day on which sent, if sent by recognized overnight
courier or on the fifth (5th) business day after the day on which mailed, if sent by registered or certified mail. 
  

			
	TO LENDER:		WITH A COPY TO:
		
	CIL&D, LLC		CIL&D, LLC
	337 N. Vineyard Ave., 4th Floor		337 N. Vineyard, 4th Floor
	Ontario, CA 91764		Ontario, CA 91764
	Attn.: Richard E. Stoddard		Attn.: Terry Cook
	Telephone: 909.483.8501		Telephone: 909.483.8511
	Facsimile: 909.944.6605		Facsimile: 909.944.6605
		
	TO BORROWER:		WITH A COPY TO
		
	EAGLE MOUNTAIN ACQUISITION LLC		LATHAM & WATKINS LLP
	c/o Eagle Crest Energy Company		355 S. Grand Ave
	3000 Ocean Park Blvd, Suite 1020		Los Angeles, CA 90071-1560
	Santa Monica, CA 90405		Attn: Kevin Ehrhart
	Attn.: J. Douglas Divine		Telephone: 213.485.1234
	Telephone: 310.450.9090		Facsimile: 213.891.8763
	Facsimile: 310.450.9494		
		
			WITH A COPY TO
		
			WEXFORD CAPITAL LP
			411 West Putnam Ave.
			Greenwich, CT 06830
			Attention: Antony Lundy
			Email: tlundy@wexford.com
			Facsimile: 203.891.8763
			Attention: Arthur Amron
			Email: aamron@wexford.com
			Facsimile: 203.862.7032

 20. Headings; Interpretation. The article and section headings contained in this Note are
inserted for convenience only and shall not affect in any way the meaning or interpretation of this Note. Both parties have participated substantially in the negotiation and drafting of this Note and agree that no ambiguity herein should be
construed against the draftsman. 
 21. Severability. If any provision of this Note shall be determined to be invalid, illegal
or incapable of being enforced, all other conditions and provisions of this Note shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. 

  
 7 








 22. Entire Agreement. This Note and the other Loan Documents set forth the entire
agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings relative to such subject matter. 

[signature page follows] 

  
 8 








 IN WITNESS WHEREOF, Borrower has executed and delivered this Note the day and year first above
written. 
  

					
	BORROWER:
	
	 EAGLE MOUNTAIN ACQUISITION LLC,

a Delaware limited liability company

		
	By:		 /s/ Doug Divine

			Name:		 Doug Divine

			Title:		Authorized Person


 Signature page to Senior Secured Note