Exhibit 10.13
March 26, 2004
RESTATED AND AMENDED
LETTER LOAN AGREEMENT
The Xxxxx Company
0000 X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This Restated and Amended Letter Loan Agreement supersedes the previous Amended
Letter Loan Agreement between the parties hereto dated October 3, 2002.
This Amended Letter Loan Agreement sets forth the terms and conditions under
which we have agreed to continue $2,800,000 of the loan previously made to you
in the principal amount of $3,000,000.00 (the "Loan"). However, the Loan shall
cease to be a revolving loan. Accordingly, as payments are made on the Loan,
additional advances will no longer be permitted.
1. LENDER: The Xxxxxxx X. Xxxxx and Xx Xxxxx
1988 Charitable Unitrust (the "Unitrust").
2. BORROWER: The Xxxxx Company.
3. AMOUNT: $2,800,000.00. The Loan shall be evidenced by a
promissory note in the amount of $2,800,000.00 dated
as of this date (the "Note"). The Borrower shall be
permitted to make prepayments without penalty 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 July 1. 2005.
6. COLLATERAL: The Lender, together with certain Note Holders, has
previously filed a Deed of Trust, Assignment of
Production, and Financing Statement of record
(a "Lien") on Borrower's working and overriding
royalty interests in the McElmo Dome Unit in
Montezuma and Xxxxxxx Counties of Colorado
("Interests"). The other Note Holders have been repaid
in full as of this date, so Lender is now the only
party having an interest in the subject Lien.
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 26th day of March, 2004.
BORROWER:
THE XXXXX COMPANY
XXXX XXX, XX.
Xxxx Xxx, Xx., President
