EXHIBIT 99.2
REVOLVING LOAN NOTE
LENDER: BORROWER:
Xxxxxx Family Partners, Ltd. Birch Branch, Inc.
Xxxxxxx Family Trust 0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx 00000
0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000 INTEREST RATE: 7%
PRINCIPAL AMOUNT: $250,000
DATE OF NOTE: January 23, 2007
1. Promise to Pay. Birch Branch, Inc., a Colorado corporation
("Borrower"), promises to pay to Xxxxxx Family Partners, Ltd., Xxxxxxx Family
Trust and Xxxxxxx Xxxxxx (collectively, the "Lender"), or order, in lawful money
of the United States of America and in immediately available funds, the
principal sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000) (or
such lesser amount as shall equal the aggregate unpaid principal amount of the
Loans made by the Lender to the Borrower under the Revolving Credit Agreement by
and between Borrower and Lender dated as of January 23, 2007, as amended,
supplemented or otherwise modified and in effect from time to time, the "Loan
Agreement"), on demand, and to pay interest on the unpaid principal amount of
each such Loan in like money and funds, for the period commencing on the date of
such Loan until such Loan shall be paid in full, at the interest rate per annum
set forth herein. Terms used but not defined in this Note have the respective
meanings assigned to them in the Loan Agreement.
2. Recording of Loans. The date and amount of each Loan made by the
Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Revolving Loan Note ("Note"), endorsed by the Lender on the Schedule
attached hereto or any continuation thereof; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any amount owing under
the Loan Agreement or hereunder in respect of the Loans made by the Lender.
3. Payment. The loan, including all principal and accrued interest not
yet paid shall be due on demand. Borrower will pay Lender at Xxxxxx's address
shown above or at such other place as Lender may designate in writing. Unless
otherwise agreed or required by applicable law, payments will be applied first
to any unpaid collection costs, then to accrued unpaid interest and any
remaining amount then to principal.
4. Interest Rate. The interest rate on this Note is seven percent (7%)
percent per annum.
5. Prepayment. Borrower may pay without penalty all or a portion of the
amount owed earlier than it is due. Early payments will not, unless agreed to by
Xxxxxx in writing, relieve Borrower of Xxxxxxxx's obligation to continue to make
payments under the payment schedule, but rather, they will reduce the principal
balance due and may result in Borrower's making fewer payments.
6. Default. Borrower will be in default if any of the following
happens: (a) Borrower fails to make any payment within ten (10) days of when
due; (b) Borrower breaks any promise Borrower has made to Lender, or Borrower
fails to perform promptly at the time and strictly in the manner provided in
this Note or any agreement including but not limited to the Loan Agreement
related to this Note, or in any other agreement or loan Borrower has with
Lender; (c) Any representation or statement made or furnished to Lender by
Xxxxxxxx or on Xxxxxxxx's behalf is false or misleading in any material respect;
(d) Xxxxxxxx becomes insolvent, a receiver is appointed for any part of
Borrower's property, Borrower makes an assignment for the benefit of Lender, or
any proceeding is commenced either by Borrower or against Borrower under any
bankruptcy or insolvency laws or (e) Any creditor tries to take any of
Borrower's property.
7. Lender's Rights. Upon default, Xxxxxx may declare the entire unpaid
principal balance on this Note and all accrued unpaid interest immediately due,
without notice, and then Borrower will pay that amount. Upon default, including
failure to pay any payment within ten (10) days of when due or upon the final
maturity, whichever occurs first, Lender, at its option, may also, if permitted
under applicable law, do one or both of the following: (a) increase the interest
rate on this Note to 18%; (b) access a late fee of 5% of the payment due and (c)
add any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note (including any increased
rate). The interest rate will not exceed the maximum rate permitted by
applicable law. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Xxxxxxxx also will pay Lender that amount. This includes,
subject to any limits under applicable law, Xxxxxx's attorney's fees and legal
expenses whether or not there is a lawsuit, including attorney's fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. If not prohibited by applicable law, Xxxxxxxx also will pay
any court costs, in addition to all other sums provided by law. This Note has
been delivered to Lender and accepted by Xxxxxx in the State of Colorado. This
Note shall be governed by and construed exclusively in accordance with the laws
of the State of Colorado.
8. Joint and Several Liability; Waiver of Maker. Borrower and each
party liable hereon in any capacity, whether as endorser, surety, guarantor or
otherwise, and all others who may become liable, primarily or secondarily, for
all or any part of the obligations, jointly and severally:
a. Waives presentment for payment, demand, protest and notice of
presentment, notice of protest, notice of non-payment and notice of dishonor of
this debt and each and every other notice of any kind respecting this Note and
all lack of diligence or delays in collection or enforcement hereof;
b. Agrees that Lender and any subsequent holder of this Note, at any
time or times, without notice to the undersigned or its consent, may grant
extensions of time, without limit as to the number of the aggregate period of
such extensions, for the payment of any principal, interest or other sums due
hereunder;
c. To the extent permitted by law, waives all exemptions under the
laws of the State of Colorado and/or any state or territory of the United
States;
d. Consents to the release of any security, and agrees that any such
extension or release may be made without notice to any of the parties and
without in any way affecting or discharging liability for the obligations
hereunder;
e. To the extent permitted by law, waives the benefit of any law or
rule of law intended for its advantage or protection as an obligor hereunder or
providing for its release or discharge from liability hereon, in whole or in
part, on account of any facts or circumstances other than full and complete
payment of all amounts due hereunder; and
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f. Agrees to pay, in addition to all other sums of money due, all cost
of collection and attorney's fees, whether suit be brought or not, if this Note
is not paid in full when due, whether at the stated maturity or by acceleration.
9. Miscellaneous.
a. It is not intended hereby to charge interest at a rate in excess of
the maximum rate of interest permitted to be charged to Borrower under
applicable law, but if, notwithstanding such intention, interest in excess of
the maximum rate shall be paid hereunder, the excess shall be applied to
principal and the interest rate on this Note shall be adjusted to the maximum
permitted under applicable law during the period or periods that the interest
rate otherwise provided herein would exceed such rate.
b. Any reference herein to the Lender shall be deemed to include and
apply to every subsequent holder of this Note.
c. This Note shall be governed by and construed in accordance with the
laws of the State of Colorado, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof. The Borrower
agrees that process may be served upon it in any manner authorized by the laws
of the State of Colorado for such person and waives and covenants not to assert
or plead any objection that it might otherwise have to such jurisdiction and
such process.
BORROWER:
Birch Branch, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Secretary
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SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Revolving Credit
Agreement to the Borrower, on the dates and in the principal amounts set forth
below, and subject to the payments and prepayments of principal set forth below:
Principal Unpaid
Amount Amount Paid Principal Notation
Date Made of Loan or Prepaid Amount Made By
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