1
EXHIBIT 10.12.1
REVOLVING NOTE
$25,000,000.00 Dallas, Texas April 1, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXXX OIL & GAS, L.P., a
Delaware limited partnership (hereinafter referred to as the "Borrower") hereby
unconditionally promises to pay to the order of BANK ONE, TEXAS, N.A., a
national banking association (the "Bank") the principal sum of TWENTY-FIVE
MILLION AND NO/100 DOLLARS ($25,000,000.00) or so much thereof as may be
advanced to or for the benefit of the Borrower pursuant to the Loan Agreement
(as hereinafter defined), in lawful money of the United States of America
together with interest from the date hereof until paid at the rates specified
in the Loan Agreement. All past due principal and interest on this Note shall
bear interest from the date of maturity until paid at a rate of interest equal
to the Base Rate plus five percent (5%). All payments of principal and
interest due hereunder are payable at the offices of Bank at 0000 Xxxx Xxxxxx,
0xx Xxxxx, Bank One Center, P.O. Box 655415, Dallas, Texas 75265-5415,
attention: Energy Department, or at such other address as Bank shall designate
in writing to Borrower.
The principal and all accrued interest on this Note shall be due and
payable in accordance with the terms and provisions of the Loan Agreement.
This Note is executed pursuant to that certain Loan Agreement dated of
even date herewith between Borrower and Bank (the "Loan Agreement"), and is the
Note referred to therein. Reference is made to the Loan Agreement and the Loan
Documents (as that term is defined in the Loan Agreement) for a statement of
prepayment, rights and obligations of Borrower, for a statement of the terms
and conditions under which the due date of this Note may be accelerated and for
statements regarding other matters affecting this Note (including without
limitation the obligations of the holder hereof to advance funds hereunder,
principal and interest payment due dates, voluntary and mandatory prepayments,
exercise of rights and remedies, payment of attorneys' fees, court costs and
other costs of collection and certain waivers by Xxxxxxxx and others now or
hereafter obligated for payment of any sums due hereunder). Upon the
occurrence of an Event of Default, as that term is defined in the Loan
Agreement and used in the Loan Documents, the holder hereof (i) may declare
forthwith to be entirely and immediately due and payable the principal balance
hereof and the interest accrued hereon, and (ii) shall have all rights and
remedies of the Bank under the Loan Agreement and Loan Documents. This Note
may be prepaid in accordance with the terms and provisions of the Loan
Agreement.
Regardless of any provision contained in this Note, the holder hereof
shall never be entitled to receive, collect or apply, as interest on this Note,
any amount in excess of the Maximum Rate (as such term is defined in the Loan
Agreement), and, if the holder hereof ever receives, collects, or applies as
interest, any such amount which would be excessive interest, it shall be deemed
a partial prepayment of principal and treated hereunder as such; and, if the
indebtedness evidenced hereby is paid in full, any remaining excess shall
forthwith be paid to Borrower. In determining whether or not the interest paid
or payable, under any specific contingency, exceeds the Maximum Rate, Borrower
and the holder hereof shall, to the maximum extent permitted under applicable
law (i) characterize any
2
non-principal payment as an expense, fee or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii) spread
the total amount of interest throughout the entire contemplated term of the
obligations evidenced by this Note and/or referred to in the Loan Agreement so
that the interest rate is uniform throughout the entire term of this Note;
provided that, if this Note is paid and performed in full prior to the end of
the full contemplated term thereof; and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, the holder hereof shall
refund to Borrower the amount of such excess or credit the amount of such
excess against the indebtedness evidenced hereby, and, in such event, the
holder hereof shall not be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving or receiving interest in excess of
the Maximum Rate.
If any payment of principal or interest on this Note shall become due
on a day other than a Business Day (as such term is defined in the Loan
Agreement), such payment shall be made on the next succeeding Business Day and
such extension of time shall in such case be included in computing interest in
connection with such payment.
If this Note is placed in the hands of an attorney for collection, or
if it is collected through any legal proceeding at law or in equity or in
bankruptcy, receivership or other court proceedings, Xxxxxxxx agrees to pay all
costs of collection, including, but not limited to, court costs and reasonable
attorneys' fees.
Borrower and each surety, endorser, guarantor and other party ever
liable for payment of any sums of money payable on this Note, jointly and
severally waive presentment and demand for payment, notice of intention to
accelerate the maturity, protest, notice of protest and nonpayment, as to this
Note and as to each and all installments hereof, and agree that their liability
under this Note shall not be affected by any renewal or extension in the time
of payment hereof, or in any indulgences, or by any release or change in any
security for the payment of this Note, and hereby consent to any and all
renewals, extensions, indulgences, releases or changes.
This Note shall be governed by and construed in accordance with the
applicable laws of the United States of America and the laws of the State of
Texas.
THIS WRITTEN NOTE, THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
-2-
3
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
XXXXXXX OIL & GAS, L.P.,
a Delaware limited partnership
By: XXXXXXX EXPLORATION COMPANY
its managing general partner
By:
----------------------------------
Xxxx X. Xxxxxxx,
Executive Vice President
-3-
