TERM LOAN NOTE
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$500,000.00 June 21, 1999
Maker:
FIELDPOINT PETROLEUM CORPORATION
P.O. Box 200685
Austin, Texas 78720
Payee:
UNION PLANTERS BANK, N.A.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
FOR VALUE RECEIVED, the undersigned Maker named above promises to pay
to the order of Payee named above at its offices at the address set forth above
in lawful money of the United States of America, the principal sum of FIVE
HUNDRED THOUSAND and no/100 DOLLARS ($500,000.00) or so much thereof as may be
advanced and outstanding pursuant to the Credit Agreement of even date herewith
by and between Maker and Payee (the "Credit Agreement"), together with interest
on the principal balance from time to time remaining unpaid at the rate and upon
the terms provided in this Note. Unless otherwise defined herein or unless the
context hereof otherwise requires, each term used herein with its initial letter
capitalized has the meaning given to such term in the Credit Agreement.
1. Schedule of Payments. Commencing on July 21, 1999, and again on August 21,
1999, Maker shall pay all accrued and unpaid interest, without any reduction of
principal; thereafter, commencing September 21, 1999, and each successive
calendar month thereafter, Maker shall make forty-eight (48) equal monthly
payments of $10,416.67, together with all accrued and unpaid interest. The
unpaid balance of all principal and all accrued but unpaid interest shall be due
and payable on August 21, 2003, the Maturity Date.
2. Interest Rate. The unpaid principal balance from day to day outstanding
hereunder shall bear interest at a rate per annum which shall from day to day be
equal to the lesser of (a) the Floating Base Rate, as hereinafter defined (the
"Contract Rate;" calculated on the basis of actual days elapsed, but computed as
if each calendar year consisted of 360 days), or (b) the Highest Lawful Rate.
Notwithstanding the foregoing, if at any time the Contract Rate exceeds
the Highest Lawful Rate, the rate of interest hereon shall be limited to the
Highest Lawful Rate, but any subsequent reductions in the Contract Rate shall
not reduce the rate of interest hereon below the Highest Lawful Rate until the
total amount of interest accrued hereon approximately equals the amount of
interest which would have accrued hereon if a rate equal to the Contract Rate
had at all times been in effect. In the event that at maturity of this Note
(stated or by acceleration), or at final payment of this Note, the total amount
of interest paid or accrued hereon is less than the amount of interest which
would have accrued hereon if the Contract Rate had at all times been in effect,
then at such time and to the extent permitted by law, Maker shall pay to Payee
an amount equal to the difference between (x) the lesser of the amount of
interest which would have accrued hereon if the Contract Rate had at all times
been in effect and the amount of interest which would have accrued hereon if the
Highest Lawful Rate had at all times been in effect, and (y) the amount of
interest actually paid or accrued on this Note. Each change in the rate charged
hereunder shall, subject to the foregoing, become effective, without notice to
Maker, upon the effective date of each change in the Floating Base Rate or the
Highest Lawful Rate, as the case may be.
As used herein, the term (x) "Floating Base Rate" means the prime
interest rate as quoted by the Wall Street journal from time to time, plus one
percent, floating, (y) "Highest Lawful Rate" means the maximum rate (or, if the
context so requires, an amount calculated at such rate) of interest which the
holder hereof is allowed to contract for, charge, take, reserve, or receive
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under applicable law after taking into account, to the extent required by
applicable law, any and all relevant payments or charges. To the extent the laws
of the State of Texas are applicable for the purposes of determining the Highest
Lawful Rate hereunder, such term shall mean the "indicated rate ceiling" from
time to time in effect under Article 1.04, Title 79, Revised Civil Statutes of
Texas, 1925, as amended, or to the extent permitted by law and effective upon
the giving of the notices required by such Article 1.04 (or effective upon any
other date specified by applicable law), the "quarterly ceiling" or the
"annualized ceiling" from time to time in effect under such Article 1.04,
whichever the holder hereof shall elect to substitute for the "indicated rate
ceiling," and vice versa, such substitution to have the effect provided in such
Article 1.04; the holder hereof shall be entitled to make such election from
time to time and one or more times and to leave any such substitute rate in
effect, without notice to Maker, for subsequent periods in accordance with
subsection (h)(1) of such Article 1.04.
3. Prepayment. Maker may prepay this Note in whole or in part at any time
without being required to pay any penalty or premium for such privilege. All
prepayments hereunder, whether designated as payments of principal or interest,
shall be applied to the principal or interest of this Note or to expenses
provided herein or in the Credit Agreement, or any combination of the foregoing,
as directed by Xxxxx at its option.
4. Past Due Interest. All principal and interest which remain in arrears three
(3) days or more after their respective due dates shall bear interest, payable
on demand, for each day until paid, commencing on the fourth (4th) day after
their respective due dates until paid, at a rate equal to 3% per annum above the
Contract Rate (the "Default Rate"), but in no event to exceed the maximum
non-usurious rate permitted by applicable law.
5. Events of Default and Remedies. Without notice or demand (each of which is
hereby waived), the entire unpaid principal balance of this Note shall
immediately become due and payable at the option of the holder hereof upon the
occurrence of any one or more of the events of default described in Section 7.1
of the Credit Agreement (individually or collectively, herein called a
"Default").
6. Acceleration. In the event that Maker fails or refuses to pay any part of the
principal of or interest on this Note when due, or in the event of the
occurrence of a Default under the Credit Agreement or under any Security
Document, then in any such event, the holder hereof shall be entitled to declare
the entire unpaid principal of and accrued interest on this Note immediately due
and payable, without notice of intent to accelerate, notice of acceleration, any
other notice whatsoever, demand, or presentment, all of which are hereby waived,
foreclose any liens or security interests securing all or any part hereof,
offset against this Note any sum or sums owed by the holder hereof to Maker or
any guarantor, or may proceed to protect and enforce, and exercise any other
right or remedy to which the holder hereof may be entitled by agreement, at law,
or in equity. Each right and remedy available to the holder hereof shall be
cumulative of and in addition to each other such right and remedy. No delay on
the part of the holder hereof in the exercise of any right or remedy available
to the holder hereof shall operate as a waiver thereof, nor shall any single or
partial exercise thereof or exercise of any other such right or remedy.
7. Collection Costs. If this Note is placed in the hands of an attorney for
collection, or if it is collected through any legal proceedings, Xxxxx agrees to
pay the court costs, reasonable attorneys' fees, and other costs of collection
of the holder hereof.
8. Waiver. Except as provided herein, Maker and any party which may be or become
liable for the payment of any sums of money payable on this Note (including any
surety, endorser, or guarantor)
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jointly and severally waive (to the extent permitted by law) all applicable
exemption rights (whether arising by constitution, law, or otherwise), all
valuation and appraisement rights, presentment and demand for payment, protest,
notice of protest and nonpayment, and notice of the intention to accelerate, and
agree that their liability on this Note shall not be affected by any renewal or
extension in the time of payment hereof, by any indulgences, or by any release
or change in any security for the payment of this Note, and hereby consent to
any and all renewals, extensions, indulgences, releases, or changes, regardless
of the number of such renewals, extensions, indulgences, releases, or changes.
9. Legal Interest Limitation. Regardless of any provision contained herein or in
any agreement, document, or instrument securing or assuring payment hereof or
executed in connection herewith, the holder hereof shall never be entitled to
receive, collect, or apply, as interest on this Note, any amount in excess of
the Highest Lawful Rate, and, in the event the holder hereof ever receives,
collects, or applies as interest, any such excess, such amount which would be
excessive interest shall be deemed a partial prepayment of principal and treated
hereunder as such; and, if the principal hereof is paid in full, any remaining
excess shall forthwith be paid to Maker. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the Highest
Lawful Rate, Maker and the holder hereof shall, to the maximum extent permitted
under applicable law, (a) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (b) exclude voluntary prepayments and
the effects thereof, and (c) spread the total amount of interest throughout the
entire contemplated term of this Note; provided that, if this Note is paid and
performed in full prior to the end of the full contemplated term hereof, and if
the interest received by the holder hereof for the actual period of existence
hereof exceeds the Highest Lawful Rate, the holder hereof shall refund to Maker
the amount of such excess, and, in such event, the holder hereof shall not be
subject to any penalties provided by any laws for contracting for, charging,
taking, reserving, or receiving interest in excess of the Highest Lawful Rate.
Pursuant to Article 15.10(b) of Chapter 15, Subtitle 3, Title 79, Revised Civil
Statutes of Texas, 1925, as amended, the holder hereof and Maker agree that the
other provisions of such Chapter 15 shall not apply to this Note or to any
provision hereunder.
10. Conflicts. This Note has been executed and delivered pursuant to the terms
of the Credit Agreement, and Payee is entitled to the benefits of and security
provided for in the Credit Agreement. Advances hereunder by Xxxxx to Maker shall
be governed by the terms and provisions of the Credit Agreement. Any Default
under the terms of the Credit Agreement by Maker or under any other Security
Document will automatically be a Default hereunder. The terms of the Credit
Agreement will govern in the event of any conflict with the terms of this Note.
11. Additional Security. This Note is secured by all security agreements,
collateral assignments, assignments, pledges, guaranties, deeds of trust and
lien instruments executed by Maker (or by any other liable party) in favor of
Payee or any other holder of this Note, including those executed simulta neously
herewith, those executed heretofore and those executed hereafter.
12. Set-off Rights. Maker agrees that Payee may apply any deposits of Maker with
Payee to the payment of Maker's obligations under this Note in the event of any
Default under the terms and provisions of this Note or the documents securing
same.
13. Deed of Trust. This Note is secured by the liens of Deeds of Trust,
Mortgage, Assignment of Production, Security Agreement and Financing Statement
(the "Deeds of Trust") of even date herewith given to Xxxxxxx Xxxxxx, Trustee
for the benefit of Payee, and any other holder of holders of this Note, covering
the lands and other property in Pontotoc County, Oklahoma, and other property
owned by Maker and described in the Deeds of Trust (the "Subject Property"), to
which reference is made for all purposes.
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14. Cumulative Rights. No delay on the part of the holder of this Note in the
exercise of any power or right under this Note, or under any document or
instrument executed in connection herewith, shall operate as a waiver thereof,
nor shall a single or partial exercise of any other power or right. Enforcement
by the holder of this Note of any security for the payment hereof shall not
constitute any election by it of remedies so as to preclude the exercise of any
other remedy available to it.
15. Notices. Any notice or demand given hereunder by the holder shall be in
writing and be deemed to have been given and received (a) when actually received
by Maker, if delivered in person or by courier or messenger, or (b) two Business
Days (hereinafter defined) after a letter containing such notices, certified or
registered, with postage prepaid addressed to Maker, is deposited in the United
States Mail. The address of Maker is set forth at the top of this Note, or such
other address as Maker shall advise the holder hereof by certified or registered
letter.
16. Governing Law. THIS NOTE IS BEING EXECUTED AND DELIVERED, AND IS INTENDED TO
BE PERFORMED, IN THE STATE OF TEXAS, AND THE LAWS OF SUCH STATE SHALL GOVERN THE
CONSTRUCTION, VALIDITY, ENFORCEMENT, AND INTERPRETATION HEREOF, EXCEPT TO THE
EXTENT FEDERAL LAWS OTHERWISE GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT,
AND INTERPRETATION HEREOF.
17. Headings. The headings of the sections of this note are inserted for
convenience only and shall not be deemed to constitute a part hereof.
18. Successors and Assigns. All of the covenants, stipulations, promises, and
agreements in this Note by or on behalf of Maker shall bind its successors and
assigns, whether so expressed or not; provided, however, that Maker may not,
without the prior written consent of the holder hereof, assign any rights,
duties, or obligations under this Note. Any assignment in violation of the
foregoing shall be null and void.
19. Business Day; Payments. As used herein, the expression (a) "Business Day"
means every day on which Payee is open for business, and (b) "Nonbusiness Day"
means every day which is not a Business Day. Payment of the principal of this
note shall be due and payable in lawful money of the United States of America,
in Xxxxxx County, Texas at the office of Payee set forth at the top of this Note
at or before 3:00 p.m., Houston, Texas time on the day such payment is due. In
any case where a payment of principal is due on a Nonbusiness Day, Maker shall
be entitled to delay such payment until the next succeeding Business Day.
IN WITNESS WHEREOF, the undersigned has executed this note as of the
day and year first above written.
MAKER:
FIELDPOINT PETROLEUM CORPORATION
By:
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Xxx X. Xxxxxx, Xx., President
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