Exhibit 10.1
AMENDED, RESTATED AND CONSOLIDATED TERM NOTE
$1,006,000.00 August 31, 2010
THIS AMENDED, RESTATED AND CONSOLIDATED TERM NOTE ("Amended, Restated and
Consolidated Note") is made and dated as of the 31st of August, 2010, by and
between BARON ENERGY, INC., a Nevada Corporation ("Maker"), and XXXXXX ENERGY,
INC., a California corporation ("Holder").
R E C I T A L S:
A. Maker delivered to American State Bank, a Texas banking association (the
"Bank") that certain Term Note dated as of May 1, 2010, in the original
principal amount of $450,000.00 ("Note 1") and that certain Term Note dated as
of May 1, 2010, in the original principal amount of $550,000.000 ("Note 2" and
collectively with Note 1, the "Notes").
B. The Bank, Maker and Holder entered into that certain Assignment of Notes
and Security Documents (the "Assignment" and collectively with this Amended,
Restated and Consolidated Note, the "Loan Documents"), dated as of the date
hereof, pursuant to which the Bank will assign, and the Holder will assume the
Notes and the Security Documents (as such term is defined in the Assignment).
C. The Holder and Maker desire to amend, restate and consolidate the Notes
into this Amended, Restated and Consolidated Note, as set forth herein.
In consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. For value received, Maker promises to pay to the order of Holder, the
sum of ONE MILLION SIX THOUSAND AND 00/100 DOLLARS ($1,006,000.00), together
with interest on the principal amount from time to time outstanding hereunder,
from the date of disbursement of such principal in accordance with the wire
instructions provided by Maker to Holder until maturity, at a simple rate of
interest per annum equal to the "BASE RATE", as defined below, and in no event
to exceed the "HIGHEST LAWFUL RATE," as defined below.
2. This Amended, Restated and Consolidated Note is executed pursuant to the
terms of that certain Assignment. This Amended, Restated and Consolidated Note
incorporates by reference the terms of the Assignment. This Amended, Restated
and Consolidated Note amends, restates, and supercedes in its entirety the Notes
(as herein defined). It is the intention of Maker and Holder that while this
Amended, Restated and Consolidated Note amends, restates and supercedes the
original Notes, it is not in payment or satisfaction of the original Notes, but
rather is the substitute of one evidence of debt for another without any intent
to extinguish the old. Should there be any conflict between any of the terms of
the original Notes and the terms of this Amended, Restated and Consolidated
Note, the terms of this Amended, Restated and Consolidated Note shall control.
This Amended, Restated and Consolidated Note is not a novation.
3. Notwithstanding the foregoing, if at any time the Base Rate exceeds the
Highest Lawful Rate, the rate of interest to accrue on this Amended, Restated
and Consolidated Note shall be limited to the Highest Lawful Rate.
4. If at Maturity or final payment of this Amended, Restated and
Consolidated Note the total amount of interest paid or accrued under the
foregoing provisions is less than the total amount of interest which would have
accrued if the Base Rate had at all times been in effect, then Maker agrees to
pay to Holder, to the extent permitted by law, an amount equal to the difference
between (a) the lesser of (i) the amount of interest which would have accrued on
this Amended, Restated and Consolidated Note if the Highest Lawful Rate had at
all times been in effect, or (ii) the amount of interest which would have
accrued if the Base Rate had at all times been in effect, and (b) the amount of
interest accrued in accordance with the other provisions of this Amended,
Restated and Consolidated Note.
5. The term "BASE RATE" shall mean thirteen and one-half percent (13.5%)
per annum.
6. The term "HIGHEST LAWFUL RATE" shall mean the maximum nonusurious
interest rate, if any, that at any time or from time to time may be contracted
for, taken, reserved, charged, collected or received by the Holder in connection
with this Amended, Restated and Consolidated Note under laws applicable to the
Holder which are presently in effect or, to the extent allowed by law, under
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
7. The principal balance of this Amended, Restated and Consolidated Note,
together with all accrued and unpaid interest thereon, shall be due and payable
on AUGUST 25, 2015 (the "MATURITY DATE"). Holder shall be under no obligation
whatsoever to extend the Maturity Date of this Amended, Restated and
Consolidated Note.
8. For the period beginning on August 25, 2010, through the Maturity Date,
specifically August 25, 2015, interest shall accrue on the outstanding principal
of this Amended, Restated and Consolidated Note at the Base Rate as herein
defined. Payments of interest only in the amount of ELEVEN THOUSAND
THREE-HUNDRED SEVENTEEN AND 50/100 DOLLARS ($11,317.50) shall be due and payable
on or before the first 25th day of each and every month, with the first of such
payments to be made on or before September 25, 2010, and subsequent payments to
be made on the 25th day of each month thereafter. For the period beginning on
August 25, 2011, through the period ending August 25, 2015, payments of
principal and interest in the amount of TWENTY SEVEN THOUSAND TWO HUNDRED THIRTY
EIGHT AND 78/100 DOLLARS ($27,238.78) shall be due and payable on or before the
first 25th day of each and every month, with the first of such payments to be
made on or before September 25, 2011, and subsequent payments to be made on the
25th day of each month thereafter until the Maturity Date (See Amortization
Scheduled attached hereto as "Exhibit A"). Notwithstanding anything the contrary
contained herein, all of the outstanding principal and accrued, unpaid interest
hereunder, and all other monies, fees and costs accrued in accordance with the
provisions of this Amended, Restated and Consolidated Note, shall be due and
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payable in full on the Maturity Date. Said payments of principal and interest
shall be payable in lawful money of the United States, on the dates and in the
amounts specified herein and shall be paid either by ACH, wire, or any other
form of transfer directly to:
Xxxxxx Energy Inc.
Bank of America
ABA: Electronic (ex. Direct Deposit/Automatic Payment:
Wire Transfer:
Account #:
9. All past due principal and interest on this Amended, Restated and
Consolidated Note shall bear interest from the date that said payments are due
until paid, at the Highest Lawful Rate irrespective of any declaration of
maturity or acceleration. Any judgment obtained by Holder against Maker as to
any amounts due under this Amended, Restated and Consolidated Note shall also
bear interest at the Highest Lawful Rate. Failure to exercise any and all rights
of remedies Holder may in the event of any such default be entitled to shall not
constitute a waiver of the right to exercise any such rights or remedies in the
event of any subsequent default, whether of the same or different nature. No
waiver of any right or remedy by Holder shall be effective unless made in
writing and signed by Holder, nor shall any waiver on occasion apply to any
future occasion. Interest on this Amended, Restated and Consolidated Note shall
be computed on a 1/360 simple interest basis; that is, by applying the ratio of
the annual interest over a year of 360 days, times the outstanding principal
balance, times the actual number of days the principal is outstanding, unless
such calculation would result in a usurious rate, in which case interest shall
be calculated on a per diem basis of 360 days.
10. In the event of the continuation of any default in the payment of any
interest or principal under this Amended, Restated and Consolidated Note for a
period of ten (10) days after such payment becomes due, or upon the occurrence
of any other event of default under the terms and provisions of this Amended,
Restated and Consolidated Note, or under any other documents delivered to Holder
in connection with this Amended, Restated and Consolidated Note, or any other
obligation of Maker to Holder (which event of default is not cured within ten
days from the date Maker receives written notice of such event of default from
Holder), then Holder may declare the entire unpaid principal amount outstanding
hereunder, together with interest accrued thereon and any other lawful charges
accrued hereunder, immediately due and payable, regardless of the stipulated
date of Maturity, without demand, notice of default, notice of acceleration,
notice of intent to accelerate the maturity hereof, notice of nonpayment,
presentment, protest or notice of dishonor, all of which are hereby expressly
waived by Maker and each other liable party. Holder, in its sole discretion, may
accept payments made by Maker after any default has occurred, and may waive any
default without waiving any prior or subsequent default or waiving any of
Holder's rights herein.
11. If a payment is ten (10) days or more late (except for any payment due
on the Maturity Date for which there is no grace period), Maker will be charged
five percent (5%) of the regularly scheduled payment, provided that collection
of said five percent (5%) shall not be deemed a waiver by Holder of any of its
rights under the Amended, Restated and Consolidated Note.
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12. In the event Holder deems itself insecure or upon the happening of any
of the following events, each of which shall constitute a default hereunder, all
sums hereunder shall thereupon or thereafter, at Holder's option, without notice
or demand, become immediately due and payable: (a) failure of any Obligor (which
terms shall mean and include each Maker, endorser, surety, or any other party
liable for payment under this Amended, Restated and Consolidated Note) to pay
any sum due hereunder; (b) occurrence of default under any Loan Agreement and
Security Instruments (as defined in the Assignment) now or hereafter in effect
which, by its terms, covers this Amended, Restated and Consolidated Note or the
indebtedness evidenced hereby; (c) death or dissolution of any Obligor; (d) the
filing of any petition under the Bankruptcy Code or any similar federal or state
statute by or against any Obligor or the insolvency of any Obligor; (e) making
of a general assignment by any Obligor for the benefit of creditors, appointment
of or taking by possession by a receiver, trustee or custodian or similar
official for any Obligor or for any assets of any such Obligor or institution by
or against any Obligor of any kind or insolvency proceedings or any proceeding
for dissolution or liquidation of any Obligor; (f) entry of a judgment against
any Obligor which, in the opinion of Holder, would materially and adversely
affect the ability of Maker to pay the indebtedness evidenced by this Amended,
Restated and Consolidated Note; (g) material falsity in any certificate,
statement, representation, warranty or audit at any time furnished to Holder by
or on behalf of any Obligor pursuant to or in connection with this Amended,
Restated and Consolidated Note, the Loan Agreement, Security Instruments or any
loan agreement or security agreements now or hereafter in effect which, by its
terms, covers this Amended, Restated and Consolidated Note for the indebtedness
evidenced hereby or otherwise including the omission to disclose any substantial
contingent or liquidated liabilities or any material adverse change in any facts
disclosed by any certificate, statement, representation, warranty or audit
furnished to Holder; (h) issuance of any writ of attachment or writ of
garnishment or filing of any lien against any Collateral (as herein defined) or
the property of any Obligor; (i) taking of possession of any material Collateral
or of any substantial part of the property of any Obligor at the instance of any
governmental authority; (j) dissolution, merger, consolidation, or
reorganization of any Obligor; (k) assignment, transfer or sale by Maker or any
Obligor of any interest in any Collateral securing payment of this Amended,
Restated and Consolidated Note without the prior written consent of Holder; (l)
the determination by Holder that a material adverse change has occurred in the
financial condition of any Obligor from the condition set forth in the most
recent financial statements of such Obligor heretofore furnished to Holder
executed in connection with this Amended, Restated and Consolidated Note or
under any obligation of Maker or of any Obligor to Holder, which in Holder's
sole discretion negatively impacts Maker's ability to pay the amounts specified
herein.
13. Holder shall have all of the rights and remedies of a creditor,
mortgagee and secured party under all applicable law. Without limiting the
generality of the foregoing, upon the occurrence of any default herein or in the
event Holder, at any time, in its reasonable discretion deems itself insecure,
Holder may, in its sole discretion, and without notice or demand (i) declare the
entire unpaid principal and accrued interest accelerated and due and payable at
once, together with any and all other liabilities of Maker or any of such
liabilities selected by Holder; and (ii) set-off against this Amended, Restated
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and Consolidated Note all monies owed by Holder in any capacity to Maker,
whether or not due. Upon the disposition of any Collateral after the occurrence
of any default hereunder, Maker shall be and shall remain liable for any
deficiency; and Holder shall account to Maker for any surplus, but Holder shall
have the right to apply all or part of such surplus (or to hold same as reserve)
against any and all other liabilities of Maker to Holder.
14. To the extent not prohibited by applicable law, Maker will pay all
reasonable costs and expenses and reimburse Holder for any and all expenditures
of every character incurred or expended from time to time, which shall include
attorneys' fees in connection with any trial proceedings, bankruptcy proceedings
and/or appellate proceedings or otherwise, incurred or paid by Holder in
enforcing this Amended, Restated and Consolidated Note or preserving any right
or interest of Holder set forth herein, regardless of whether a default shall
have occurred, in connection with (a) Holder's evaluating, monitoring,
administering and protecting the Mortgaged Property (as such term is defined in
the Security Documents), and (b) Holder's creating, perfecting or realizing upon
Holder's security interest in and liens on the Mortgaged Property, and all
reasonable costs and expenses relating to Holder's exercising any of its rights
and remedies under this or any other instrument now or hereafter securing the
indebtedness or at law, including, without limitation, all filing fees, taxes,
documentary stamps and/or any additional fee imposed by the applicable agency
for recording or perfecting Holder's security interest in and liens on the
Mortgaged Property, brokerage fees and commissions, title review and abstract
fees, Uniform Commercial Code search fees, other fees and expenses incident to
title searches, reports and security interests, escrow fees, attorneys' fees at
all tribunal levels with counsel of Holder's sole choosing, legal expenses,
court costs, fees and expenses incurred in connection with any complete or
partial liquidation of the Mortgaged Property, and all fees and expenses for any
professional services relating to the Mortgaged Property or any operations
conducted in connection with it; provided, however, that no right or option
granted by Maker or Holder or otherwise arising pursuant to any provision of
this or any other instrument shall be deemed to impose or admit a duty on the
Holder to supervise, monitor or control any aspect of the character or condition
of the Mortgaged Property or any operations conducted in connection with it for
the benefit of Maker or any other person or entity other than the Holder.
15. If this Amended, Restated and Consolidated Note is not paid at Maturity
whether by acceleration or otherwise and is placed in the hands of an attorney
for collection, or suit is filed hereon, or proceedings are had in probate,
bankruptcy, receivership, reorganization. arrangement or other legal proceedings
for collection hereof, Maker and each other liable party agrees to pay Holder
their collection costs, including a reasonable amount for attorneys' fees at all
tribunal levels with counsel of Holder's sole choosing, but in no event to
exceed the maximum amount permitted by law. Maker and each other liable party is
and shall be directly and primarily, jointly and severally, liable for the
payment of all sums called for hereunder, and Maker and each other liable party
hereby expressly waives bringing of suit and diligence in taking any action to
collect any sums owing hereon and in the handling of any security, and Maker and
each other liable party hereby consents to and agrees to remain liable hereon
regardless of any renewals, extensions for any period or rearrangements hereof,
or partial prepayments hereon, or any release or substitution of security
hereof, in whole or in part, with or without notice, from time to time, before
or after maturity.
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16. It is the intent of the Maker and Holder in the execution and
performance of this Amended, Restated and Consolidated Note to contract in
strict compliance with the usury laws of the State of Texas and the United
States of America from time to time in effect. For purposes hereof, "interest"
shall include the aggregate of all charges which constitute interest under such
laws that are contracted for, reserved, taken, charged or received under this
Amended, Restated and Consolidated Note. In furtherance thereof, the Holder and
the Maker stipulate and agree that none of the terms and provisions contained in
this Amended, Restated and Consolidated Note, shall ever be construed to create
a contract to pay for the use, forbearance or detention of money with interest
at a rate in excess of the Highest Lawful Rate. In the event the Holder or any
other holder of the Amended, Restated and Consolidated Note ever charges or
contracts for any amount in excess of lawful interest, the documents or
instruments constituting such charge or contract shall be IPSO FACTO modified
without any further action by any party so that no amount in excess of lawful
interest shall be charged or contracted for. If the Holder or any other holder
of the Amended, Restated and Consolidated Note ever receives, collects or
applies as interest any amount in excess of lawful interest, such amount which
would be excessive interest shall be applied to the reduction of the unpaid
principal balance of the Amended, Restated and Consolidated Note, and, if upon
such application the principal balance of the Amended, Restated and Consolidated
Note is paid in full, any remaining excess shall be forthwith paid to the Maker.
In determining whether or not the interest paid or payable under any specific
contingency exceeds the Highest Lawful Rate, the Maker and the Holder shall, to
the maximum extent permitted under applicable law, (a) treat all advances as but
a single extension of credit (and the Maker and the Holder agree that such is
the case and that any provision herein for multiple advances is for convenience
only), (b) characterize any nonprincipal payment as an expense, fee or premium
rather than as interest, (c) exclude voluntary prepayments and the effects
thereof, and (d) "spread" the total amount of interest throughout the entire
contemplated term of the Amended, Restated and Consolidated Note. The provisions
of this paragraph shall control over all other provisions of this Amended,
Restated and Consolidated Note or other documents executed in connection with
this Amended, Restated and Consolidated Note which may be in apparent conflict
herewith.
17. Except as otherwise provided in the Loan Documents, all payments and
prepayments on this Amended, Restated and Consolidated Note, including proceeds
from the exercise of any rights of the Holder under the Loan Documents, shall be
applied to this Amended, Restated and Consolidated Note in the following order:
(i) first, to reasonable expenses for which the Holder shall not have been
reimbursed under the Loan Documents and to all amounts to which the Holder is
entitled to indemnification under the Loan Documents; (ii) second, to any
obligation of Borrower under the Loan Documents, exclusive of accrued interest
and outstanding principal due; (iii) third, to the accrued interest on this
Amended, Restated and Consolidated Note being paid or prepaid; (iv) and last, to
the principal of this Amended, Restated and Consolidated Note being paid or
prepaid, with the amounts so prepaid to be applied upon installments of most
remote maturity, except that from and after any default under this Amended,
Restated and Consolidated Note, Holder may apply such payments in any order of
priority determined by Holder in its sole and exclusive judgment.
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18. Maker reserves the option of prepaying the principal of this Amended,
Restated and Consolidated Note, in whole or in part, at any time after the date
that is one year after the date hereof without penalty. Maker reserves the
option of prepaying all, but not less than all, of the principal of this
Amended, Restated and Consolidated Note, at any time before the date that is one
year after the date hereof, but acknowledges and agrees that such prepayment
shall be subject to a prepayment penalty in an amount equal to ONE HUNDRED
THIRTY FIVE THOUSAND EIGHT HUNDRED TEN AND 00/100 ($135,810.00) less any
interest payments made by Maker to Holder prior to Maker's prepayment of the
principal. At the option of Holder, it may demand (at any time at or after
prepayment) all accrued and unpaid interest with respect to the principal amount
prepaid through the date of prepayment. All amounts of principal so prepaid and
received by the owner and holder of this Amended, Restated and Consolidated Note
shall be applied to the last maturing installments of this Amended, Restated and
Consolidated Note in their inverse order of maturity.
19. Unless otherwise specified below, this Amended, Restated and
Consolidated Note shall be construed under and governed by the laws of the State
of Texas (including applicable federal law), but in any event TEX, FIN. CODE
XXX. SECTION 346.001 et. seq. (which regulates certain revolving loan accounts
and revolving tripartite accounts) shall not apply to the loan evidenced by this
Amended, Restated and Consolidated Note.
20. Unless changed in accordance with the law, the applicable rate ceiling
under Texas law shall be the indicated (weekly) rate ceiling from time to time
in effect as provided in TEX, FIN. CODE XXX. SECTION 303.001 et seq., as
amended.
21. Maker warrants and represents to the Holder, and to all other holders
of this Amended, Restated and Consolidated Note that all loans evidenced by this
Amended, Restated and Consolidated Note are and will be for business,
commercial, investment or other similar purposes and not primarily for personal,
family, household or agricultural use, as such terms are used in TEX. REV. CIV.
STAT. XXX. ART. 5069-ID. 201, as amended.
22. This Amended, Restated and Consolidated Note is secured by the pledge
of the following Collateral:
a. all present and future interests now owned or hereafter acquired by
the Maker in those oil, gas, and mineral properties identified in
Deeds of Trust attached hereto as "Exhibit B", by and between Maker
and the Bank as assigned to Holder, together with all proceeds of
production therefrom;
b. all present and future increases, profits, combinations,
reclassifications, improvements and products of, accessions,
attachments, and other additions to, and substitutes and replacements
for, any of the Collateral;
c. all cash and noncash proceeds and other rights arising from or by
virtue of, or from the voluntary or involuntary sale, lease or other
disposition of, or collections with respect to, or insurance proceeds
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payable with respect to, or proceeds payable by virtue of warranty or
other claims against manufacturers of, or claims against any other
persons with respect to, any of the Collateral;
d. all present and future security for the payment to Maker for any of
the Collateral;
e. all goods which gave or will give rise to any of the Collateral or
are evidenced, identified or represented therein or thereby; and
f. all certificates of title, manufacturer's statements of origin, or
other documents, accounts and chattel paper arising from or related to
any of the Collateral.
The Collateral is covered and governed by second lien Deeds of Trust, Security
Agreements, and Financing Statements, or amendments thereto, of even date
herewith, covering oil and gas properties; and first lien Deeds of Trust,
Security Agreements, and Financing Statements, or amendments thereto, of even
date herewith, covering oil and gas properties. Failure to describe all or part
of the security shall not be considered as a waiver of such security. Additions
to, releases, reductions or exchanges or of substitutions for the Collateral,
payments on account of this Amended, Restated and Consolidated Note, or
increases of the same may from time to time be made in Holder's sole discretion
without affecting the provisions of this Amended, Restated and Consolidated Note
or the liabilities of any party hereto.
23. Holder reserves the right, exercisable in Holder's sole discretion and
without notice to Maker or any other person, to sell participations, to assign
its interest or both, in all or any part of the Amended, Restated and
Consolidated Note or the debt evidenced by the Amended, Restated and
Consolidated Note. Holder may, at any time, whether or not this Amended,
Restated and Consolidated Note is due: (i) pledge or transfer this Amended,
Restated and Consolidated Note and its interest in the Collateral, and the
pledgee or the transferee shall, for all purposes, stand in the place of Holder
and have all the rights of Holder set forth herein; (ii) demand, xxx for,
collect, or make any compromise or settlement it deems desirable with reference
to the Collateral; (iii) take possession or control of any proceeds of the
Collateral; and (iv) exercise all other rights necessary or required, in
Holder's sole discretion, in order to protect its interests hereunder. This
Amended, Restated and Consolidated Note is not assumable without Holder's prior
written consent, which consent may be granted by Holder or denied by Holder, in
Holder's sole and absolute discretion.
24. By execution of this Amended, Restated and Consolidated Note. Maker
acknowledges the receipt of the following notices from Holder:
THIS AMENDED, RESTATED AND CONSOLIDATED NOTE, AND ALL OTHER LOAN
PAPERS EXECUTED SUBSTANTIALLY CONCURRENTLY HEREWITH TOGETHER
CONSTITUTE A WRITTEN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
MAKER COVENANTS WITH AND WARRANTS UNTO HOLDER, ITS OFFICERS,
DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS AND ITS OR THEIR AFFILIATES
AND ASSIGNS THAT THROUGH THE DATE OF THE EXECUTION OF THIS AMENDED,
RESTATED AND CONSOLIDATED NOTE THERE EXISTS NO CLAIMS, COUNTERCLAIMS,
DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST HOLDER AS
TO THIS AMENDED, RESTATED AND CONSOLIDATED NOT, OR THE OBLIGATION OF
MAKER TO REPAY THIS AMENDED, RESTATED AND CONSOLIDATED NOTE IN
ACCORDANCE WITH ITS TERMS. MAKER HEREBY EXPRESSLY WAIVES AND RELEASES
ALL CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF
OFFSET AGAINST HOLDER ARISING AT ANY TIME THROUGH THE DATE HEREOF
WITH REGARD TO THIS AMENDED, RESTATED AND CONSOLIDATED NOTE OR THE
INDEBTEDNESS OR ANY PART THEREOF EVIDENCED BY THIS AMENDED, RESTATED
AND CONSOLIDATED NOTE.
MAKER HEREBY KNOWINGLY, WILLINGLY AND VOLUNTARILY WAIVES THE RIGHT TO
TRIAL BY JURY AND NO PARTY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR
LEGAL REPRESENTATIVE OF THE MAKER SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEEDING
BASED UPON OR ARISING OUT OF THIS NOTE OR THE SECURITY INSTRUMENTS,
OR ANY INSTRUMENT EVIDENCING, SECURING, OR RELATING TO THE
INDEBTEDNESS AND OTHER OBLIGATIONS.
25. Holder acknowledges and agrees that as a material inducement to Maker
entering into and executing this Amended, Restated and Consolidated Note, and
that Maker would not have entered into this Amended, Restated and Consolidated
Note, without Holder's promise to, and actual taking of, the following actions,
and that subsections a. and b. below shall be deemed to have occurred upon
Holder's execution of this Amended, Restated and Consolidated Note:
a. Holder shall terminate, cancel or otherwise nullify each of the
Stock Pledge Agreement and Security Agreements made by each of Xxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxxxxxx and Xxxxxx-Xxxxxxxx Energy Partners,
LP, in favor of Bank as assigned to Holder pursuant to the Assignment
as part of the Security Documents.
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x. Xxxxxx shall terminate, cancel or otherwise nullify each of the
Guaranty Agreements made by each of Xxxx X. Xxxxxxxx, Xxxxxx X.
Xxxxxxxxxx and Xxxxxx-Xxxxxxxx Energy Partners, LP, in favor of Bank
as assigned to Holder pursuant to the Assignment as part of the
Security Documents.
x. Xxxxxx shall release any and all of its security interests by
amending the Security Documents and filing, or permitting the Maker to
file, such UCC-3 Termination Statements to evidence termination of
same for the following leases, which are more fully described in the
Security Documents: (i) the Xxxx X. Xxxxxx Lease, Xxxxxxx County: (ii)
the O'Xxxxx Xxxxxx Unit, Xxxxxxx County: (iii) the Xxxxxxx Lease,
Xxxxx County; (iv) the G. B. Xxxxxx Lease, Xxxxx County; (v) the
Sanger-Katlaco Lease, Xxxxxx County; (vi) the Curb Lease, Xxxxxx
County; (vii) the Curb Surface Lease Agreement; (viii) the Salt Water
Disposal Lease - X.X. Xxxxx #1, Xxxxxx County; (ix) the Xxxxx #1
Lease, Xxxxxx County; (x) the Price, P. Price, & Price "A" Leases,
Xxxxxx County; (xi) the Salt Water Disposal Lease, Xxxx Xxxxx #4,
Xxxxxx County; (xii) the X.X. Xxxxx Estate Lease, Xxxxxx County;
(xiii) the Young Lease, Xxxxxx County. All costs related to the
amending and/or filing of the Security Documents shall be the sole
responsibility of Maker.
26. Any notice to Maker shall be forwarded to the address set forth below and
shall be sufficiently served for all purposes if placed in the mail, postage
prepared, addressed to, or left upon the premises at the address of Maker as
provided to Holder.
27. All of the terms of this Amended, Restated and Consolidated Note shall inure
to the benefit of Holder and it successors and assigns and shall be binding upon
Maker and each and every one of the Obligors and their respective heirs,
executors, administrators, personal representatives, successors and assigns,
jointly and severally.
ADDRESS:
000 X. Xxxx Xx.
Xxx Xxxxxxxxx, XX 00000
Telephone/Fax: (000) 000-0000
BARON ENERGY, INC., a Nevada
corporation
By:_____________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
By its signature, Holder acknowledges the truth of the notice hereinabove and
its acknowledgment, agreement and to the representations, warranties and
covenants set forth in Section 23 hereof.
XXXXXX ENERGY, INC., a California
corporation
By: _____________________
Name: _____________________
Title: _____________________
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