Exhibit 10(a)
October 3, 2002
AMENDED
LETTER LOAN AGREEMENT
The Xxxxx Company
0000 X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This Amended Letter Loan Agreement supersedes the previous Amended Letter Loan
Agreement between the parties hereto dated February 28, 2002.
This Amended Letter Loan Agreement sets forth the terms and conditions under
which we have agreed to extend a revolving loan to you in the principal amount
of $3,000,000.00 (the "Loan").
1. LENDER: The Xxxxxxx X. Xxxxx and Xx Xxxxx
1988 Charitable Unitrust (the "Unitrust").
2. BORROWER: The Xxxxx Company.
3. AMOUNT: Such amounts as the Borrower may request from time to time
up to $3,000,000.00. The Loan shall be evidenced by a
promissory note in the amount of $3,000,000.00 dated as of
today (the "Note"). The Borrower shall be permitted to
obtain advances, make prepayments, and obtain additional
advances, up to the amount of the Note.
4. INTEREST RATE: A fixed rate of 10.00%.
5. REPAYMENT: The outstanding principal balance (the "Indebtedness") plus
unpaid accrued interest shall be due and payable on the
earlier of (i) January 3. 2005, or (ii)within ten (10) days
after receipt by Borrower of the McElmo Dome Settlement.
6. COLLATERAL: The Lender, together with certain Note Holders, have
previously filed a Deed of Trust, Assignment of Production,
and Financing Statement of record (a "Lien") on its working
and overriding royalty interests in the McElmo Dome Unit in
Montezuma and Xxxxxxx Counties of Colorado ("Interests").
The Borrower will not sell, transfer, convey or otherwise
dispose of any of the Interests, whether pursuant to a
single transaction or a series of transactions.
7. COVENANT: Until the Indebtedness has been paid in full, the Borrower
will not sell, transfer, convey or otherwise dispose of, all
or a substantial portion of its assets now owned or hereafter
acquired, whether pursuant to a single transaction or a
series of transactions, and the Borrower will not merge or
consolidate with any person or entity or permit any such
merger or consolidation with the Borrower. This paragraph
specifically excludes asset sales incurred in the normal
course of business.
8. EVENTS OF
DEFAULT: If any of the following conditions or events ("Events of
Default") shall occur and be continuing:
A. Failure of the Borrower to pay when due any amounts,
including principal or interest on the Note (whether at
the stated maturity, upon acceleration or otherwise).
B. Any Event of Default as specified in the Note
C. Any default or breach in the performance of any covenant,
obligation, representation, warranty or provision
contained in this Letter Loan Agreement or in the Note or
in any other note or obligation of Borrower to the
Unitrust.
D. The Borrower shall: (i) apply for or consent to the
appointment of a custodian, receiver, trustee or
liquidator of the Borrower or any of its properties,
(ii) admit in writing the inability to pay, or generally
fail to pay, its debts when they come due, (iii) make a
general assignment for the benefit of creditors, (iv)
commence any proceeding relating to the bankruptcy,
reorganization, liquidation, receivership, conservator-
ship, insolvency, readjustment of debt, dissolution or
liquidation of the Borrower, or if corporate action
should be taken by the Borrower for the purpose of
effecting any of the foregoing, (v) suffer any such
appointment or commencement of a proceeding as described
in clause (i) or (iv) of this paragraph, which
appointment or proceeding is not terminated or discharged
within 60 days, or (vi) become insolvent.
THEN upon the occurrence of any Event of Default described in the foregoing
paragraphs the unpaid principal amount of and accrued interest on the Loan
shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Borrower.
If the foregoing terms and conditions are acceptable to you, please acknowledge
your agreement by signing below and returning one copy of this Letter Loan
Agreement to us.
Sincerely,
LENDER:
THE XXXXXXX X. XXXXX AND XX XXXXX
1988 CHARITABLE UNITRUST
XXXXXXX X. XXXXX XX XXXXX
Xxxxxxx X. Xxxxx, Trustee Xx Xxxxx, Trustee
Accepted effective this 3rd day of October, 2002.
BORROWER:
THE XXXXX COMPANY
XXXX XXX, XX.
Xxxx Xxx, Xx., President
