September 30, 2001
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 June 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 $2,250,000.00 (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 $2,250,000.00. The Loan shall be evidenced
by a promissory note in the amount of $2,250,000.00 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 "Indebtedness") 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 ("Interests"). 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 Indebtedness.
7. COVENANT: Until the Indebtedness has been paid in full, the
Borrower will not sell, transfer, convey or otherwise
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
generally 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,
receivership, 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 30th day of September, 2001.
BORROWER:
THE XXXXX COMPANY
XXXX XXX, XX.
Xxxx Xxx, Xx., President
