Exhibit 10(s)
January 15, 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 September 30, 2001.
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 $2,500,000.00 (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 $2,500,000.00. The Loan shall be evi-
denced by a promissory note in the amount of
$2,500,000.00 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 "Indebted-
ness") plus unpaid accrued interest shall be due
and payable on June 30, 2003.
6. COLLATERAL: A. Until the Indebtedness has been paid in full, the
Borrower agrees that it will not create, grant,
assume or suffer to exist any lien, mortgage or
encumbrance (a "Lien") on its working and overriding
royalty interests in the McElmo Dome Unit in
Montezuma and Xxxxxxx Counties of Colorado ("Inter-
ests"). 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.
B. At any time while there is Indebtedness
outstanding under the Note, the Trustees of
the Unitrust may request, and the Borrower
agrees to grant to the Unitrust, a Lien on its
Interests, and in such event the Borrower will
immediately furnish such Assignments, Transfer
Orders, Security Agreements or other documents as the
Trustees may require in order to secure the Indebted-
ness.
7. COVENANT: Until the Indebtedness has been paid in full, the
Borrower will not sell, transfer, convey or other-
wise 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 gen-
erally 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, re-
ceivership, conservatorship, 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 15th day of January, 2002.
BORROWER:
THE XXXXX COMPANY
XXXX XXX, XX.
Xxxx Xxx, Xx., President
