SECOND AMENDMENT TO PROMISSORY NOTE
Exhibit 10.61
SECOND AMENDMENT TO PROMISSORY NOTE
| $300,000.00 | January 20, 2009 |
WHEREAS, that certain Promissory Note (the “Note”) dated November 19, 2007, securing a loan
from XXXX XXXXXX, an individual resident of Oklahoma (the “Lender”), of FIVE HUNDRED THOUSAND
DOLLARS AND NO CENTS ($500,000.00), to RIO VISTA ENERGY PARTNERS, L.P., a Delaware limited
partnership (the “Borrower”), became due and payable on May 19, 2008 by and under its own terms
and was not paid by the Borrower to the Lender as agreed upon in the Note and as such Borrower was
delinquent upon its payment to Lender and thus, in default upon the Note, and;
WHEREAS, on June 24, 2008 the Lender and the Borrower entered into an Amendment to Promissory
Note (the “First Amendment”) which resolved the default and delinquency of the Note. Under the
terms of the First Amendment the Lender received the sum of $200,000.00 plus interest then due
upon the Note from the Borrower which left a balance of $300,000.00 due under the Note in return
for which the Lender agreed to forgo bringing any collection litigation against the Borrower for
the full amount due under the Note, and the Borrower agreed to increasing the original annual
interest on the amounts loaned, but not paid, under the Note from seven percent (7%) per annum to
ten percent (10%) per annum on the new amount due to Lender and both Lender and Xxxxxxxx agreed
that the new amounts due under the First Amendment would be due and payable on or before November
19, 2008, and;
WHEREAS, the principal and interest due pursuant to the Note and the First Amendment has not
been paid to the Lender as required by the First Amendment, and as such the Borrower is now
delinquent and in default upon said Note and First Amendment, and as such the Lender has brought a
civil action in XxXxxxxx County District Court, State of Oklahoma; Case number CJ-2008-405 (the
“Civil Action”) seeking collection of the amounts due under the Note and First Amendment. However,
the Lender and Xxxxxxxx have agreed to new terms to extend the due date under the Note and First
Amendment and have agreed to amend the terms of the Note and First Amendment pursuant to the terms
and conditions set forth herein (the “Second Amendment”);
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which is hereby acknowledged
by both Xxxxxx and Borrower, each of the parties agree as follows:
1. That the Lender shall dismiss the Civil Action and agree to allow Borrower to begin making
monthly payments as set out in this Second Amendment with the final payment being due on April 10,
2010. Failure to timely make any monthly payment contemplated by this Second Amendment shall cause
the full amount due under the Second Amendment to become due and payable in full upon such
delinquency. As consideration for the dismissal of the Civil Action and the extension of the due
date and amendment of the terms of the Note and First Amendment Lender and Borrower agree that upon
execution of this Second Amendment that Borrower shall pay to Lender the amount of interest
currently due under the terms of the First Amendment which is $16,848.95 as of January 20, 2009,
said interest to accrue at the rate of $82.19 per day until paid. Xxxxxxxx further agrees to pay
the additional sum of $1,000.00 for the Lender’s attorney fees associated with the Civil Action. As
such Borrower shall pay a total sum of $17,848.95 as of January 20, 2009 plus additional interest
at $82.19 per day if not paid by January 20, 2009. Xxxxxxxx agrees to begin making monthly interest
payments on the amount due under the Second
Amendment on or before the 10th day of the month beginning February 10, 2009 and
continuing through April 10, 2009. Thereafter, beginning May 10, 2009, Borrower shall begin
making monthly principal and interest payments pursuant to the terms in paragraph 2 below.
However, if any payment shall be due on a weekend date or holiday then said payment shall be due
and payable to Lender on the next following business day;
2. Beginning on May 10, 2009 and for each month thereafter for five additional consecutive
months, Borrower shall make principal payments of $12,500.00 plus interest. Thereafter,
beginning on November 10, 2009 Borrower shall begin making monthly principal payments of
$37,500.00 plus interest until all amounts due and payable under the Second Amendment are paid in
full;
3. That if Borrower defaults and becomes delinquent on any payments contemplated under this
Second Amendment that the annual interest rate shall be increased from ten percent (10%) per
annum to fifteen percent (15%) annum on all unpaid principal amounts due thereafter to the
Lender;
4. That the Borrower shall agree to provide collateral for the Note, the First
Amendment and the Second Amendment, in the event that the Borrower gives any collateral to any
person or entity other than those persons or entities currently holding collateral of the assets
of Borrower or those entities which may subsequently hold collateral as a result of a
restructuring of the associated loans (collectively referred to as the “Existing Debt
Obligations”). Currently collateral is pledged in connection with Existing Debt Obligations to
the Trust Company of the West and its related entities (“TCW”) and RZB Finance LLC and its
related entities (“RZB”). The nature of the collateral to be provided for the Note, if any,
shall not consist of any collateral which is currently pledged or required to be pledged in
connection with the Existing Debt Obligations, including any future restructuring of any of the
Existing Debt Obligations.
All other terms of the PROMISSORY NOTE dated November 19, 2007 and the First Amendment
shall remain unchanged by this Second Amendment and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed and delivered this Second Amendment to
Promissory Note effective as of the date first written above.
| “BORROWER” | “LENDER” | |||||||
| Rio Vista Energy Partners, L.P., | ||||||||
| a Delaware limited partnership | ||||||||
| /s/ Xxx X. Xxxxxxxx | ||||||||
Name:
|
Xxx X. Xxxxxxxx | Xxxx Xxxxxx | ||||||
Title:
|
Acting Chief Executive Officer | |||||||
| Rio Vista GP LLC, general partner | ||||||||
| Of Rio Vista Energy Partners, L.P. | ||||||||
(STAMP)
STATE OF CALIFORNIA
|
) | |||||||
| ) | SS | ACKNOWLEDGMENT | ||||||
COUNTY OF LOS ANGELES
|
) |
On this 24th day of January 2009, before me, a Notary Public in and for said
County, personally appeared Xxx X. Xxxxxxxx, to me known to
be the Æ of Rio Vista Energy
Partners, L.P. who executed the foregoing instrument and acknowledged that he executed the same as
his free and voluntary act and deed and on behalf of the Limited Partnership herein named and
acknowledged that the Limited Partnership authorized the execution of this document for the uses
and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
| /s/ Xxxxxxx Xxxxx
|
STATE OF OKLAHOMA
|
) | |||||||
| ) | SS | ACKNOWLEDGMENT | ||||||
COUNTY OF XXXXXXXX
|
) |
On this
_____
day of January 2009, before me, a Notary Public in and for said
County, personally appeared , to me known to be the identical
person described and who executed the foregoing instrument and acknowledged that they executed the
same as their free and voluntary act and deed, for the uses and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
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