Amegy Bank National Association 1807 Ross Avenue, Suite 400 Dallas, Texas 75201
EXHIBIT 10.1
Amegy Bank National Association
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
August 31,
2007
Re: Forbearance Agreement
Ladies and Gentlemen:
This letter (this “Agreement”) sets forth the forbearance agreement among Infinity
Energy Resources, Inc. (“Borrower”), a Delaware corporation; Infinity Oil and Gas
of Texas, Inc., a Delaware corporation, and Infinity Oil & Gas of Wyoming, Inc., a
Wyoming corporation (collectively “Guarantors”); and Amegy Bank National
Association (“Lender”). Capitalized terms below have the meanings assigned in the
Loan Agreement dated January 9, 2007, among Borrower, Guarantors, and Lender, as amended (the
“Loan Agreement”).
1. Borrowing Base. Effective as of August 10, 2007, Lender has reduced the Borrowing
Base to $10,500,000.00, until reset by Lender in connection with the next redetermination of the
Borrowing Base. Lender reserves the right to make the next redetermination of the Borrowing Base
at any time.
2. Borrowing Base Deficiency. The new Borrowing Base results in a Borrowing Base
deficiency in the amount of $11,500,000.00 (the “Deficiency”). On or before the end of
the Forbearance Period (as defined below), Borrower and Guarantors agree to cure the Deficiency by
sale of assets as provided below to pay down the Revolving Loan and cure the Deficiency, refinance
of the Revolving Loan, or raise capital on terms acceptable to Lender to pay down the Revolving
Loan and cure the Deficiency.
3. Events of Default. Borrower and Guarantors acknowledge that the following Events
of Default have occurred and remain outstanding (the “Existing Defaults”):
(a) Borrower and Guarantors breached the Interest Coverage Ratio set forth in Subsection (a)
of Section 8 of the Loan Agreement for the period ended June 30, 2007;
(b) Borrower and Guarantors breached the Funded Debt to EBITDA Ratio set forth in Subsection
(d) of Section 8 of the Loan Agreement for the period ended June 30, 2007; and
(c) Borrower and Guarantors failed to deliver all lien releases required by Subsection (k) of
Section 9 of the Loan Agreement.
4. Forbearance. Lender, Borrower, and Guarantors agree to a forbearance period commencing
as of the date of this Agreement, and continuing through November 30, 2007, unless terminated
earlier by Lender due to a Default, as defined below (the “Forbearance Period”). During
the Forbearance Period, but subject to a Default, Lender will forebear from exercising any remedies
under the Loan Agreement, the Revolving Note, the Security Documents, the Guaranties, and the other
Loan Documents. Borrower and Guarantors agree that all statutes of limitation with respect to
enforcement of the Revolving Note, the Guaranties, and the Security Documents will be tolled during
the Forbearance Period and for ninety days thereafter. If a Definitive Sale Agreement (as defined
below) has been executed on or before November 30, 2007, and there is no additional Default, then
Lender will seek credit approval for an extension of the Forbearance Period through January 31,
2008.
5. Temporary Waiver. Borrower and Guarantors have requested that Lender temporarily
waive the Existing Defaults. Lender hereby waives the Existing Defaults through the Forbearance
Period only. This is a temporary and limited waiver, and Lender reserves the right to require
strict compliance with all covenants under the Loan Agreement, including the covenants violated as
set forth above, in the future. This waiver does not modify, supplement, or alter any of the terms
of the Loan Agreement or any other Loan Document. Further, this waiver shall not be construed as
a commitment by Lender to waive any future violation of the same or any other term or condition of
the Loan Agreement or any of the Loan Documents. Neither the negotiation or execution of this
Agreement will be an election of any right or remedy available to Lender; and, except as
specifically limited or postponed herein, Lender reserves all rights and remedies.
6. Interest. Borrower and Lender hereby agree that during the Forbearance Period and
so long thereafter as any Event of Default remains uncured and outstanding, the entire unpaid
principal balance owed on the Revolving Note shall accrue interest at the default rate of
Stated Rate, plus six percent (6.0%) (the “Default Rate”), as set forth in the Revolving
Note; provided, however, that accrued interest on the entire unpaid principal balance owed on the
Revolving Note shall be payable monthly on each Interest Payment Date (as defined in the Revolving
Note) calculated at the sum of the Stated Rate, plus the Applicable Margin; and the difference
between the Default Rate and the sum of the Stated Rate, plus the Applicable Margin, shall accrue
and
shall be payable only upon the earlier of (i) the termination of the Forbearance Period, or
(ii) the cure of the Deficiency. Effective as of the date of this Agreement, the LIBOR Balance
(as defined in the Revolving Note) is hereby converted to the Stated Rate Balance (as defined in
the Revolving Note); and Borrower shall be obligated to pay Lender for any LIBOR breakage costs
required under the Revolving Note or any Consequential Loss (as defined in the Revolving Note).
7. Additional Collateral. Borrower and Guarantors agree to mortgage all oil and gas
properties and leasehold interests (excluding the Nicaragua concessions) owned by Borrower or
Guarantors and not previously mortgaged to Lender as additional security for the Notes. In this
regard, Borrower and Guarantors agree within five (5) days of Lender’s written request (i) to sign
and deliver mortgages, deeds of trust, or amendments in Proper Form, covering all such oil and gas
properties and leasehold interests owned by Borrower or Guarantors and not previously mortgaged to
Lender; and (ii) to provide copies of recorded assignments and all title information requested by
Lender, relating to Borrower’s and Guarantors’s oil and gas properties and leasehold interests.
Further, Borrower and Guarantors agree to use their reasonable best efforts to obtain a waiver of
the prohibition against liens from the lessors on the Xxxxxx lease, Erath County, Texas, and
thereafter to mortgage this lease.
8. Lockbox. Borrower and Guarantors agree to the following provisions regarding
production proceeds attributable to their oil and gas properties:
(a) Borrower and Guarantors will direct all production proceeds attributable to their oil and
gas properties to be paid to a lockbox account to be set up and maintained with Lender for the
purpose of collection of production proceeds (the “Lockbox Account”). Contemporaneously
with the execution of this Agreement, Guarantors will sign and deliver to Lender letters in lieu of
transfer orders to all purchasers of production directing those parties to pay all proceeds
attributable to Guarantors’ interest in the Properties to the Lockbox Account and will provide a
schedule with the name, address, telephone number, and contact of the first purchaser of production
for all of the oil and gas properties.
(b) All production proceeds received in the Lockbox Account by Lender with respect to
production, severance, ad valorem, or other taxes on production proceeds (excluding income taxes)
or that are attributable to another person’s or entities’ royalty or other interest in
the oil and gas properties shall be released immediately to Borrower upon Borrower’s request and
verification of those amounts. Borrower and Guarantors shall provide evidence of the timely
payment of production, severance, ad valorem, or other taxes on production proceeds (excluding
income taxes) and of the royalty and overriding royalty owners; provided, however, that no
royalties and overriding royalty interests owned by Borrower, Guarantors, or any affiliates
of
Borrower or Guarantors within the meaning of Securities and Exchange Commission Rule 144, shall be
paid from the Lockbox Account proceeds.
(c) Borrower will provide Lender with a proposed budget of recurring operating expenses,
non-recurring operating expenses, general and administrative expenses, and any capital expenditures
for the oil and gas properties expected to be paid during the Forbearance Period and supporting
documentation for those expenses and expenditures.
(d) At Borrower’s request, production proceeds in the Lockbox Account may be used to pay
operating expenses, general and administrative expenses (subject to the limits below), capital
expenditures, and transaction costs related to the sale of the Sale Properties, including broker
fees, if any, due prior to closing, all as approved by Lender (which approval shall not be
unreasonably withheld, delayed, or denied). Borrower and Guarantors shall not pay in any month
operating expenses, general and administrative expenses, capital expenditures, or transaction costs
exceeding the aggregate budgeted expenses for each such category for that month, unless Lender has
approved such payments. Borrower shall, not later than two business days prior to the date on
which Borrower proposes to pay such operating expenses, general and administrative expenses,
capital expenditures, and transaction costs and as a condition precedent to requesting such
approval, deliver to Lender in usual and customary form reasonably acceptable to Lender reasonable
detail of all expenses and expenditures proposed to be paid in respect of such month. Any excess
production proceeds in the Lockbox Account may be used only for such other purposes as approved by
Lender, in its discretion.
(e) All sums remaining in the Lockbox Account after payment of the taxes and royalties as
provided above and the operating expenses and discretionary amounts as provided above will be
applied by Lender on the last day of each month to the Revolving Note and collection costs as set
forth in Section 3.2 of the Deed of Trust. If the production proceeds received in the Lockbox
during any month are not sufficient to make the scheduled monthly payment on the Revolving Loan,
Borrower will pay Lender the deficiency within ten (10) days of notice from Lender of such
shortfall.
(f) Notwithstanding the provisions of Subsection (f) of Section 8 of the Loan Agreement,
Borrower and Guarantors shall not permit cash general and administrative expenses on a consolidated
basis to exceed $150,000.00 (excluding broker fees as approved by Lender, if
any, due prior to closing) per month during term of this Agreement; provided, however, that general
and administrative expenses in excess of this monthly limit may be accrued and paid only after the
Revolving Loan and Hedge Liabilities have been paid in full.
9. Sale of Oil and Gas Properties. In order to cure the Deficiency, Borrower and
Guarantors have advised Lender that they intend to sell the assets of Infinity Oil & Gas of
Wyoming, Inc. (“IOGW”), and Borrower and Guarantors have requested that Lender allow
Borrower to accomplish these sales. In this regard, Borrower and Guarantors agree to take the
following actions:
(a) Borrower and Guarantors shall proceed with the sale and marketing of all assets of IOGW
(the “Sale Properties”); and Borrower and Guarantors shall accept any commercially
reasonable offer to buy the Sale Properties; provided no oil and gas property or leasehold interest
which is mortgaged to Lender shall be sold except on terms and price acceptable to Lender and with
the prior written approval of Lender.
(b) Borrower and Guarantors shall deliver on or before August 31, 2007 an updated evaluation
of the Sale Properties with target sale prices.
(c) On or before September 4, 2007, Borrower and Guarantors shall enter into an agreement with
an oil and gas broker or consultant, reasonably acceptable to Lender, to facilitate the sale and
marketing of the Sale Properties. Thereafter, Borrower and Guarantors shall use their best efforts
to (i) promptly open a data room on the Sale Properties, (ii) to obtain firm proposals for the sale
of the Sale Properties on or before October 31, 2007, (iii) to execute a definitive agreement or
agreements, subject to stockholder approval if required, for the sale of Sale Properties with
proceeds sufficient to repay the Deficiency (a “Definitive Sale Agreement”) on or before
November 30, 2007, and (iv) seek stockholder approval, if required, and consummate the sale of the
Sale Properties as soon as practicable thereafter, but in no event later than the end of the
Forbearance Period (as it may be extended). Borrower and Guarantors shall promptly provide Lender
with a copy of the agreement or engagement letter with the oil and gas broker or consultant; and
thereafter Borrower and Guarantors shall provide a monthly report on the first (1st) day
of each month, to be prepared by the oil and gas broker or consultant engaged by Borrower and
Guarantors to facilitate the sale of the oil and gas properties and leasehold interests, including
the Texas Properties (as defined below), that includes any and all information pertaining to
property bids, the current status of any bids or sale discussions, and all marketing efforts
employed to sell the Sale Properties and the Texas Properties. Notwithstanding any provision to
the contrary, at least two business days prior to the date on which Borrower proposes to pay such,
Borrower shall deliver to Lender in usual and customary form reasonably acceptable to Lender
reasonable detail of all broker fees and other transaction costs related to the
sale of the Sale Properties proposed to be paid from proceeds in the Lockbox Accounts, and
thereafter Borrower may pay such fees and costs as are approved by Lender (which approval shall not
be unreasonably withheld, delayed, or denied).
(d) In addition, upon the written directive of Lender, to be exercised in Lender’s sole
discretion, Borrower and Guarantors shall proceed with the sale and marketing of all Texas assets
of Infinity Oil and Gas of Texas, Inc. (the “Texas Properties”); and if elected by Lender,
Borrower and Guarantors shall thereafter accept any commercially reasonable offer to buy the Texas
Properties; provided no oil and gas property or leasehold interest which is mortgaged to Lender
shall be sold except on terms and price acceptable to Lender and with the prior written approval of
Lender. To facilitate this future sale, Borrower and Guarantors shall promptly provide the oil and
gas broker or consultant retained with respect to the sale of the Sale Properties with all
information needed for the future sale of the Texas Properties. Upon Lender’s election to proceed
with the sale of the Texas Properties, Borrower and Guarantors shall thereafter use their best
efforts to (i) promptly open a data room on the Texas Properties, (ii) to promptly obtain firm
proposals for the sale of the Texas Properties, (iii) to execute a definitive agreement or
agreements, subject to stockholder approval if required, for the sale of Texas Properties with
proceeds sufficient to repay the Deficiency, and (iv) seek stockholder approval, if required, and
consummate the sale of the Texas Properties as soon as practicable thereafter, but in no event
later than the end of the Forbearance Period.
(e) Borrower and Guarantors shall devote their substantial efforts, time, talents, and
expertise to the sale and marketing of the Sale Properties and, if required by Lender, the Texas
Properties, and will take all lawful actions as will result in the prompt payment of the Deficiency
as provided herein.
(f) No sale of any of the Sale Properties or the Texas Properties will be permitted to an
affiliate of Borrower or Guarantors, unless Lender consents in writing.
(g) Borrower and Guarantors will direct the net sale proceeds from the sale of any of the Sale
Properties and the Texas Properties to be paid to Lender to be applied to the Revolving Note and
collection costs in such order as determined by Lender and shall take all lawful actions to ensure
that the proceeds of any such sales are contemporaneously with the closing thereof applied to the
Revolving Note and collection costs as herein provided.
10. Joint Venture of Xxxxxxx Shale Acreage. Lender acknowledges and agrees that
Borrower and Guarantors may proceed with the negotiation and documentation of a joint venture
arrangement, on substantially the terms previously disclosed to Lender or other terms required by
Lender to preserve the leasehold interests and the value of the Texas Properties, with respect to
the Xxxxxxx Shale acreage. Borrower and Guarantors will seek formal consent under the Loan
Agreement prior to the execution of a definitive agreement regarding this joint venture.
11. Nicaragua Concession. So long as the Deficiency remains uncured or there is any
outstanding Event of Default, Borrower and Guarantors agree that:
(a) They shall not sell, assign, transfer, or otherwise dispose of all or any interest in the
Nicaragua concession, without the prior written consent of Lender, except for (i) the sale of
hydrocarbons in the ordinary course of business, and (ii) the sale or transfer of equipment or
inventory in the ordinary course of business or that is no longer necessary for the business of
Borrower or that is obsolete or replaced by equipment of at least comparable value and use; and
(b) They shall not mortgage, assign, hypothecate, pledge, or encumber, and not create, incur,
or assume any lien or security interest on or in, the Nicaragua concession (or any interest in the
Nicaragua concession), without the prior written consent of Lender, except Permitted Encumbrances.
12. Hedge Transactions. Borrower acknowledges that the Existing Defaults also
constitute an “Event of Default” under Section 5(a)(vi) of the ISDA Master Agreement dated January
9, 2007, between Borrower and Lender (the “ISDA Master Agreement”). Notwithstanding
Section 6(a) of the ISDA Master Agreement, upon any termination of the Forbearance Period for any
reason, Lender may immediately designate an “Early Termination Date” as defined in the ISDA Master
Agreement for any or all outstanding Hedge Transactions, without the notice required by the ISDA
Master Agreement. Lender has not yet designated any Early Termination Date, and Lender reserves
all rights and remedies in this regard.
13. Audit and Inspections. (a) Borrower and Guarantors agree that Lender and its
auditors or accountants may, during the term of this Agreement, conduct an audit at Borrower’s and
Guarantors’ offices and examine, audit, and make and take away copies or reproductions of
Borrower’s and Guarantors’ books and records reasonably required by Lender, relating to (i) the
sources and uses of all funds advanced by Lender under the Revolving Note, and (ii) the sources and
uses of all production proceeds attributable to Borrower’s and Guarantors’ oil and gas properties.
Lender will provide Borrower and Guarantors with one business day written notice of its intention
to commence the audit. Borrower and Guarantors agree to cooperate with Lender and comply with all
reasonable requests in connection with the audit, and Borrower and Guarantors hereby consent to the
review and use by Lender’s auditors of Borrower’s third-party audit of the books and records of
Borrower, Guarantors, and any other subsidiaries, including the supporting documentation and work
papers of such independent auditors.
14. Reporting Requirements. Until the Revolving Note and all other obligations and
liabilities of Borrower under the Revolving Note and the other loan documents are fully paid and
satisfied, Borrower and Guarantors will furnish to Lender the following in Proper Form:
(a) On or before August 31, 2007, a 180-day operating/cash flow forecast for Borrower and
Guarantors and a pro-forma working capital balance for Borrower and Guarantors as of August 22,
2007.
(b) Within five (5) days of the end of each month, a pro-forma working capital balance for
Borrower and Guarantors as of the end of the prior month.
(c) On or before August 31, 2007, a written plan to pay-down the pro forma Accounts Payable
balance of $5,767,351.00.
(d) On or before August 31, 2007, an in-house valuation of Borrower’s and Guarantors’ entire
leasehold/producing assets.
(e) As received and available, Borrower and Guarantors shall promptly provide to Lender all
information related in any way to their ability to raise additional capital.
(f) As received and available, Borrower and Guarantors shall promptly provide to Lender copies
of any agreement or engagement letter with an oil and gas broker or consultant, all written
purchase bids, purchase agreements, and farm-in proposals related in any way to the prospective
sale of any of the Sale Properties and shall promptly inform Lender of any unwritten offers or
bids.
(g) As received and available, Borrower and Guarantors shall promptly provide to Lender copies
of any term sheets or financing proposals received that would result in the Deficiency being cured
or a refinance of the entire outstanding amount owed on the Revolving Note and Hedge Liabilities.
(h) Notwithstanding the provisions of Subsection (h) of Section 9 of the Loan Agreement,
within forty-five (45) days of the end of each month, a production report, on a lease-by-lease or
unit basis, showing the gross proceeds from the sale of oil, gas, and associated hydrocarbons
produced from the Properties, the quantity of oil, gas, and associated hydrocarbons sold, the
severance, gross production, occupation, or gathering taxes deducted from or paid out of the
proceeds, settlements of any Hedge Transactions, the cash lease operating expenses, including
non-recurring cash operating expenses, intangible drilling costs, and capital
expenditures, general and administrative expenses, the number of xxxxx operated, drilled, or
abandoned, the name, address, telephone number, and contact of the first purchaser of production
for all of the Properties, and such other information as Lender may reasonably request;
(i) On or before August 31, 2007, evidence of the payments and all lien releases required by
Subsection (k) of Section 9 of the Loan Agreement, or evidence of Borrower’s and Guarantors’
efforts in this regard if unable to provide any lien releases; and
(j) such other information respecting the condition and the
operations,
financial or otherwise, of Borrower, Guarantors, and the Properties as Lender may from time to time
reasonably request.
15. Forbearance Fee. In consideration of the forbearance by Lender under this
Agreement and the waiver of the Existing Defaults and for other valuable consideration, the receipt
and sufficiency of which are acknowledged, Borrower agrees to pay to Lender a forbearance/waiver
fee in the amount of $220,000.00, due on or before the earlier of the following: (i) the end of the
Forbearance Period, (ii) the cure of the Deficiency, or (iii) refinance of the Revolving Note by
another lender; provided, however, that if Borrower and Guarantors are able to fully resolve the
Deficiency by the sale of the Sale Properties closed and funded on or before November 30, 2007,
then the amount of the forbearance/waiver fee shall be reduced to $110,000.00. All fees are
non-refundable and earned by Lender upon execution of this Agreement.
16. Conditions Precedent. The obligation of Lender to enter into this Agreement and to
forbear with respect to the Existing Defaults is subject to Borrower’s satisfaction, in Lender’s
sole discretion, of the following conditions precedent:
(a) Except for the Existing Defaults, Borrower shall be in material compliance with the
conditions set forth in Subsection (a) of Section 5 of the Loan Agreement as of the date of this
Agreement, and all representations and warranties set forth in Section 6 of the Loan Agreement must
be true as of the date of this Agreement.
(b) the negotiation, execution, and delivery of Loan Documents in Proper Form, including, but
not limited to, the following:
(i) this Agreement; and
(ii) a Lockbox Account agreement using Lender’s typical form;
(iii) Letters in Lieu; and
(iv) a Borrowing Resolution.
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(c) there shall not have occurred a material adverse change in the business, assets,
liabilities (actual and contingent), operations, or financial condition of Borrower or in the facts
and information regarding such entities as represented to date.
17. Default and Remedies. (a) As used in this Agreement, “Default” means (i) any
breach by Borrower or Guarantors of their obligations under this Agreement, (ii) any
misrepresentation by Borrower or Guarantors of the representations or warranties set forth in this
Agreement, or (iii) any further Event of Default under the Loan Agreement, including additional
defaults under the provisions covered by the Existing Defaults.
(b) Upon a Default, Lender may terminate the Forbearance Period and exercise any and all
rights and remedies available to it, including, without limitation, those under the Loan Agreement,
the Revolving Note, the Security Documents, the Guaranties, the Loan Documents, this Agreement, and
any other instrument or agreement relating hereto, or any one or more of them. All rights and
remedies of Lender shall be cumulative and concurrent and, after a Default, may be pursued
separately, successively, or together as often as occasion therefore shall arise, at the sole
discretion of the Lender.
18. Other Representations. Borrower and Guarantors hereby represent to Lender as
follows:
(a) The execution, delivery, and performance of this Agreement by Borrower and Guarantors have
been duly authorized by Borrower’s and Guarantors’ respective boards of directors and this
Agreement constitutes their legal, valid, and binding obligations, enforceable in accordance with
their respective terms; and
(b) There are no actions, suits, or proceedings pending or threatened against or affecting
Borrower, Guarantors, or the Properties, before any court or governmental department, commission,
or board, which, if determined adversely, would have a material adverse effect on any of the
Properties or the operations or financial condition of any of Borrower or Guarantors.
19. Confirmations. (a) Borrower and Guarantors agree that the following amounts are
due and outstanding with respect to the Revolving Note as of August 10, 2007:
Principal |
$ | 22,000,000.00 | ||
Interest |
$ | 190,723.39 | ||
Non Use Fee |
$ | 950.01 | ||
Total |
$ | 22,191,673.40 | ||
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Borrower and Guarantors agree that there is no set off or defense to payment of the Revolving Note
or the Hedge Liabilities.
(b) As security for the Notes, Borrower and Guarantors previously executed the Security
Documents. Borrower and Guarantors ratify and confirm the Security Documents, acknowledge that
they are valid, subsisting, and binding, and agree that the Security Documents secure payment of
the Notes (including the Revolving Note) and the Loans (including the Revolving Loan).
(c) In connection with the Revolving Note, Guarantors executed the Guaranties. Guarantors
ratify and confirm the Guaranties, acknowledge that the Guaranties are valid, subsisting, and
binding upon Guarantors, and agree that the Guaranties guarantee payment of the Revolving Note.
Guarantors agree that there is no defense to payment under the Guaranties.
(d) Borrower and Guarantors hereby represent to Lender that all representations and warranties
set forth in Section 6 of the Loan Agreement are true and correct as of the date of execution of
this Agreement; and that, except for the Existing Defaults, Borrower and Guarantors are in
compliance as of the date of execution of this Agreement with all covenants set forth in Section 7
of the Loan Agreement, all financial covenants set forth in Section 8 of the Loan Agreement, and
all reporting requirements set forth in Section 9 of the Loan Agreement.
20. Validity and Defaults. The Loan Agreement remains in full force and effect.
Borrower and Guarantors acknowledge that the Loan Agreement, the Revolving Note, the Security
Documents, the Guaranties, and the other Loan Documents are valid, subsisting, and binding upon
Borrower and Guarantors; no uncured breaches or defaults exist under the Loan Agreement, except for
the Existing Defaults; and no other event has occurred or circumstance exists which, with the
passing of time or giving of notice, will constitute a default or breach under the Loan Agreement.
Borrower and Guarantors ratify the Loan Agreement.
21. Release. For valuable consideration, the receipt and sufficiency of which are
acknowledged, Borrower and Guarantors hereby RELEASE AND FOREVER DISCHARGE Lender and its officers,
directors, employees, agents, representatives, attorneys, subsidiaries, and affiliates
(collectively “Released Parties”), from any and all claims, counterclaims, demands,
damages, debts, suits, obligations, liabilities, offsets, rights, actions, and causes of action of
any nature whatsoever (collectively “Claims”), caused by, because of, as a result of,
arising from, or related in any way to the Loan Agreement, the Revolving Note, the Security
Documents, the Loan Documents, this Agreement, any other transaction between Lender and Borrower, or any
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act, omission, communication, transaction, occurrence, representation, promise, breach, fraud, violation
of any statute or law, or any other matter whatsoever or thing done, omitted, or suffered by any of
the Released Parties, whether those Claims are now or hereafter accrued or possessed, whether known
or unknown, direct or indirect, liquidated or unliquidated, absolute or contingent, foreseen or
unforeseen, at law or in equity, and now or hereafter asserted, including, without limitation,
claims for contribution or indemnity, claims of control, fraud, duress, mistake, tortuous
interference, usury, negligence, or violations of the Texas Consumer Protection and Deceptive Trade
Practices Act.
22. Advice from Counsel. Borrower and Guarantors understand that this Agreement is
legally binding and represent to Lender that each has obtained independent legal counsel from the
attorney of their choice regarding the meaning and legal significance of this Agreement. The
parties agree that no provision of this Agreement shall be interpreted or construed against a party
because that party prepared the provision, it being agreed that all parties have participated in
the drafting of this Agreement and have had legal counsel of their choice.
23. Governing Law and Venue. THIS AGREEMENT, THE LOAN AGREEMENT, THE REVOLVING NOTE, AND
ALL LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS AND SHALL BE PERFORMED IN DALLAS COUNTY, TEXAS. BORROWER, GUARANTORS, AND LENDER IRREVOCABLY
AGREE THAT VENUE FOR ANY ACTION OR CLAIM RELATED TO THIS AGREEMENT, THE LOAN AGREEMENT, THE
REVOLVING NOTE, OR ANY LOAN DOCUMENTS SHALL BE IN DALLAS COUNTY, TEXAS.
24. Savings Clause. Regardless of any provision contained in the Loan Agreement, the
Revolving Note, the Security Documents, the other Loan Documents, or this Agreement, it is the
express intent of the parties that at no time shall Borrower or Guarantors pay interest in excess
of the maximum lawful rate (or any other interest amount which might in any way be deemed
usurious), and Lender will never be considered to have contracted for or to be entitled to charge,
receive, collect, or apply as interest on the Revolving Note, any amount in excess of the maximum
lawful rate (or any other interest amount which might in any way be deemed usurious), and, in the
event that Lender ever receives, collects, or applies as interest any such excess, the amount which
would be excessive interest will be applied to the reduction of the principal balance of the
Revolving Note, and, if the principal balance of the Revolving Note is paid in full, any remaining
excess shall forthwith be paid to Borrower. In determining whether the interest paid or payable
exceeds the maximum lawful rate (or any other interest amount which might in any way be deemed
usurious), Borrower and Lender shall, to the maximum
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extent permitted under applicable law, spread the total amount of interest throughout the entire contemplated term of the
Revolving Note so that the interest rate is uniform throughout the term.
25. Fax Provision. This Agreement and the related Loan Documents may be executed in
counterparts, and Lender is authorized to attach the signature pages from the counterparts to
copies for Lender and Borrower. At Lender’s option, this Agreement and the related Loan Documents
may also be executed by Borrower and Guarantors in remote locations with signature pages faxed to
Lender. Borrower and Guarantors agree that the faxed signatures are binding upon Borrower and
Guarantors, and Borrower and Guarantors further agree to promptly deliver the original signatures
for this Agreement and the related Loan Documents by overnight mail or expedited delivery. It
will be an Event of Default if Borrower or Guarantors fail to promptly deliver all required
original signatures.
26. Captions. Captions are for convenience only and should not be used in
interpreting this Agreement.
27. Final Agreement. (a) In connection with the Loans, Borrower, Guarantors, and
Lender have executed and delivered this Agreement, the Loan Agreement, and the Loan Documents
(collectively the “Written Loan Agreement”).
(b) It is the intention of Borrower, Guarantors, and Lender that this paragraph be
incorporated by reference into each of the Loan Documents. Borrower, Guarantors, and Lender each
warrant and represent that their entire agreement with respect to the Loans is contained within the
Written Loan Agreement, and that no agreements or promises have been made by, or exist by or among,
Borrower, Guarantors, and Lender that are not reflected in the Written Loan Agreement.
Infinity Energy Resources, Inc.
August 31, 2007
Page 14 of 15
August 31, 2007
Page 14 of 15
(c) THE LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
If the foregoing correctly sets forth your understanding of our agreement, please sign and
return one copy of this letter. Notwithstanding any provision to the contrary, this Agreement
shall only be effective if Borrower and Guarantors sign and return to Lender by 3 p.m., Texas time,
on Friday, August 31, 2007.
| Yours very truly, Amegy Bank National Association |
||||
| By: | /s/ Xxx X. Xxxxxxx | |||
| Xxx X. Xxxxxxx, | ||||
| Senior Vice President | ||||
Infinity Energy Resources, Inc.
August 31, 2007
Page 15 of 15
August 31, 2007
Page 15 of 15
Accepted and agreed to
this 31st day of August, 2007:
this 31st day of August, 2007:
BORROWER:
| Infinity Energy Resources, Inc. |
||||
| By: | /s/
Xxxxxxx X. Xxxx, Chairman
|
|||
| Xxxxxxx X. Xxxx, Chairman and Chief Executive Officer |
||||
GUARANTORS:
| Infinity Oil and Gas of Texas, Inc. |
||||
| By: | /s/
Xxxxx X. Xxxxx
|
|||
| Xxxxx X. Xxxxx, President | ||||
Infinity Oil & Gas of Wyoming, Inc.
| By: | /s/
Xxxxx X. Xxxxx
|
|||
| Xxxxx X. Xxxxx, President | ||||
Exhibits:
None
None
