NOTE ASSUMPTION AGREEMENT AND RELEASE
This Note Assumption Agreement and Release (this "Agreement") is made as of
July 22, 2005 (the "Effective Date"), by and among Xxxxxxx Xxxxx and Xx Xxxxx,
as trustees for The Xxxxxxx X. Xxxxx and Xx Xxxxx 1988 Charitable Unitrust
("Unitrust"), The Xxxxx Company ("Company"), and Xxxxxxxxx Family, L.L.C.
("Xxxxxxxxx").
RECITALS
Whereas, the Company has previously executed and delivered to Unitrust that
certain 10% Participating Note, dated May 21, 2004, in the original principal
amount of $500,000.00 (the "Company Unitrust Note"), upon which, as of the
Effective Date, the unpaid principal balance is $384,101.80 and all accrued
interest has been paid in full; and
Whereas, Unitrust has previously executed and delivered to Xxxxxxxxx that
certain Promissory Note (the "Unitrust Xxxxxxxxx Note") dated May 21, 2004, in
the original principal amount of $500,000, upon which, as of the Effective Date,
the unpaid principal balance is $388,817.92 and all accrued interest has been
paid in full.
Whereas, the Company has previously executed and delivered, for the benefit
of McElmo Dome Nominee, LLC as nominee (in such capacity, the "Nominee") for
Xxxxxxxxx and others, two certain deeds of trust (collectively, the "2004 Deed
of Trust"), each dated May 21, 2004 and titled Deed of Trust, Assignment of
Production, Security Agreement and Financing Statement, one such deed of trust
to the public trustee of Montezuma County, Colorado and one such deed of trust
to the public trustee of Xxxxxxx County, Colorado, covering certain undivided
interests in oil, gas, and mineral leases (the "Collateral"), each given, in
part, in consideration of, and to secure, the loan made by the Unitrust to the
Company evidenced by the Company Unitrust Note.
Now, therefore, in consideration of the foregoing premises, the mutual
covenants and agreements contained in this Agreement, and other good and
valuable considerations, the receipt and adequacy of which are hereby
acknowledged, Unitrust, Company, and Xxxxxxxxx agree as follows:
1. Recitals. Each of the parties acknowledge and confirm the accuracy of
the recitals set forth above.
2. Xxxxxxxxx Representations and Warranties. Xxxxxxxxx represents and
warrants that Xxxxxxxxx is the sole holder and owner of the Unitrust Xxxxxxxxx
Note, free of all claims and encumbrances.
3. Unitrust Representations and Warranties. Unitrust represents and
warrants that Xxxxxxxxx is the sole holder and owner of the Company Unitrust
Note, free of all claims and encumbrances.
4. Assumption of Obligations and Cash Payment. The Company hereby assumes,
covenants, promises and agrees (a) to pay the Unitrust Xxxxxxxxx Note at the
time, and in the manner in all respects as therein provided, as same may be
modified or amended from time to time, and (b) to perform each and all of the
covenants, agreements and obligations of the Unitrust Xxxxxxxxx Note to be
performed by the maker thereunder, at the time, and in the manner in all
respects as therein provided, as same may be modified or amended from
time-to-time. The Company further acknowledges receipt of cash paid by the
Unitrust to the Company in the amount of $4,716.12, as additional consideration
for the assumption of the Unitrust Xxxxxxxxx Note.
5. Unitrust Release of the Company. In consideration of the Company's
assumption of the obligations described in paragraph 4 above, Unitrust hereby
acknowledges full and final payment and satisfaction of the Company Unitrust
Note, and hereby releases and discharges any and all claims or causes of action
it may have against the Company arising directly or indirectly under the Company
Unitrust Note, or resulting in any way from the indebtedness evidenced thereby
and the transactions under which the Company Unitrust Note was issued.
6. 2004 Deed of Trust Remains Effective. Notwithstanding anything herein to
the contrary, this Agreement shall not affect or impair any representation in
regard to and/or warranty of title heretofore made by the Company in the 2004
Deed of Trust, all of which shall remain in force and inure to the benefit of
Nominee, its successors and assigns. The Collateral shall remain in all respects
subject to the lien, charge or encumbrance of the 2004 Deed of Trust, and
nothing herein contained and nothing done pursuant hereto, shall affect or be
construed to affect the lien, charge or encumbrance of, or warranty of title in,
or conveyance affected by the 2004 Deed of Trust, or the priority thereof over
other liens, charges, encumbrances or conveyances, nor shall anything herein
contained or done in pursuance hereof affect or be construed to affect any other
security or instrument held by Xxxxxxxxx as security for or evidence of the
Unitrust Xxxxxxxxx Note.
7. Xxxxxxxxx Consent and Release of Unitrust. Xxxxxxxxx hereby consents to
the assumption by the Company of the Unitrust Xxxxxxxxx Note, and in
consideration of such assumption, hereby releases and discharges any and all
claims or causes of action it may have against Unitrust, but not the Company,
arising directly or indirectly under the Unitrust Xxxxxxxxx Note, or resulting
in any way from the indebtedness evidenced thereby and the transactions under
which the Unitrust Xxxxxxxxx Note was issued. Without limiting the generality of
the foregoing, the Xxxxxxxxx acknowledges that Company is the sole obligor for
payment and performance of the Unitrust Xxxxxxxxx Note and for performance of
the conditions of the 2004 Deed of Trust.
8. Successors. All of the grants, covenants, terms, conditions and
agreements hereof shall be binding upon and inure to the benefit of all of the
heirs, executors, administrators, assigns and successors in interest of the
parties hereto.
9. Entire Agreement. Neither this Agreement nor any provision hereof may be
changed, altered, waived, amended, discharged or terminated orally, but only by
an instrument reduced to writing, signed by all parties hereto.
The undersigned have executed this Note Assumption Agreement and Release
the as of the Effective Date.
"COMPANY" THE XXXXX COMPANY an Oklahoma corporation
By /s/ Xxxx Xxx, Xx.
Xxxx Xxx, Xx., President
"UNITRUST" THE XXXXXXX X. XXXXX AND XX XXXXX 1988
CHARITABLE UNITRUST
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxx, Trustee
By /s/ Xx Xxxxx
Xx Xxxxx, Trustee
"XXXXXXXXX" XXXXXXXXX FAMILY L.L.C., an Oklahoma
limited liability company
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Manager