Exhibit 99.3
AMENDED AND RESTATED ADVANCING NOTE
("Note")
$33,028,065 Denver, Colorado October 1, 2002
On the dates hereinafter prescribed, for value received, XXXXXX
RESOURCES CORPORATION and XXXXXX OIL COMPANY, both corporations organized and
existing under the laws of the State of Colorado (collectively, hereinafter
called "Borrower"), unconditionally promise to pay to the order of BLACK HILLS
CORPORATION, a corporation organized and existing under the laws of the State of
South Dakota (hereinafter called "Lender"), as provided for in that certain
Amended and Restated Credit Agreement by and between Borrower and Lender dated
of even date herewith (as it may be amended, modified, restated, or replaced
from time to time, the "Credit Agreement"): (i) the principal amount of
$33,028,065 or the principal amount advanced pursuant to the terms of the Credit
Agreement (including, but not limited to, amounts advanced under Section 2.1
thereof) and remaining unpaid as of the date of maturity hereof, whether by
acceleration or otherwise, whichever may be the lesser, and (ii) interest on the
principal balance from time to time advanced and remaining unpaid from the date
of the advance until maturity at a rate of interest equal to the lesser of (a)
the Interest Rate (as hereinafter defined), or (b) the Maximum Rate (as
hereinafter defined). Any increase or decrease in interest rate resulting from
change in the Maximum Rate shall be effective immediately when such change
becomes effective, without notice to Borrower, unless Applicable Law (as
hereinafter defined) requires that such increase or decrease not be effective
until a later time, in which event such increase or decrease shall be effective
at the earliest time permitted under the provisions of such law.
Notwithstanding the foregoing, if during any period the Interest Rate
exceeds the Maximum Rate, the rate of interest on this Note shall be limited to
the Maximum Rate during each such period, but at all times thereafter the rate
of interest in effect on this Note shall be the Maximum Rate until the total
amount of interest accrued on this Note equals the total amount of interest
which would have accrued hereon if the Interest Rate had at all times been in
effect.
On the Loan Termination Date (as defined in the Credit Agreement), the
unpaid principal balance of this Note and all interest accrued thereon shall be
due and payable in full. Any principal, interest, or other amounts due from
Borrower to Lender pursuant to the Credit Agreement that remain unpaid on the
Loan Termination Date shall accrue interest at the Interest Rate until paid in
full.
Borrower may prepay all amounts due hereunder, without premium or
penalty, subject to the provisions of the Credit Agreement, including, without
limitation, Section 2.4 thereof.
In no event shall the aggregate of the interest on this Note, plus any
other amounts paid in connection with the loan evidenced by this Note which
would under Applicable Law be deemed "interest," ever exceed the maximum amount
of interest which, under Applicable Law, could be lawfully charged on this Note.
Lender and Xxxxxxxx specifically intend and agree to limit contractually the
interest payable on this Note to not more than an amount determined at
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the Maximum Rate. Therefore, none of the terms of this Note or any other
instruments pertaining to or securing this Note shall ever be construed to
create a contract to pay interest at a rate in excess of the Maximum Rate,
and neither Borrower nor any other party liable herefor shall ever be
liable for interest in excess of that determined at the Maximum Rate, and
the provisions of this paragraph shall control over all provisions of this
Note or of any other instruments pertaining to or securing this Note. If
any amount of interest taken or received by Lender shall be in excess of
the maximum amount of interest which, under Applicable Law, could lawfully
have been collected on this Note, then the excess shall be deemed to have
been the result of a mathematical error by the parties hereto and shall be
refunded promptly to Borrower. All amounts paid or agreed to be paid in
connection with the indebtedness evidenced by this Note which would under
Applicable Law be deemed "interest" shall, to the extent permitted by
Applicable law, be amortizing, prorated, allocated and spread throughout
the full term of this Note.
This Note is secured by the Security Documents (as defined in the
Credit Agreement), including those executed simultaneously herewith, those
executed heretofore and those hereafter executed.
This Note is the Advancing Note issued pursuant to the Credit
Agreement. Reference is hereby made to the Credit Agreement for a statement of
the rights and obligations of the holder of this Note and the duties and
obligations of Borrower in relation thereto. Each advance and each payment made
pursuant to this Note shall be reflected by notations made by Lender on its
records and the aggregate unpaid amounts reflected by the notations on the
records of Lender shall be deemed rebuttably presumptive evidence of the
principal amount and accrued, unpaid interest owing under this Note.
In the event of default in the payment when due of any of the principal
of or any interest on this Note, or if any Event of Default occurs under the
Credit Agreement, if any event of default occurs under the terms of any of the
Security Documents, or if any event occurs or condition exists which authorizes
the acceleration of the maturity of this Note under any agreement made by
Borrower, Lender (or other holder of this Note) may, at its option, without
presentment or demand or any notice to Borrower or any other person liable
herefor, declare the unpaid principal balance of and accrued interest on this
Note to be immediately due and payable, except to the extent those rights of
Lender may be limited under Section 10.2(b) of the Credit Agreement during the
period from the date of this Note through the Merger Termination Date (as
defined in the Credit Agreement).
If this Note is collected by suit or through the bankruptcy court, or
any judicial proceeding, or if this Note is not paid at maturity, however such
maturity may be brought about, and is placed in the hands of an attorney for
collection, then Xxxxxxxx agrees to pay Xxxxxx's expenses, including, without
limitation, reasonable attorneys' fees and costs.
Borrower and all sureties, endorsers and guarantors of this Note waive
demand, presentment for payment, notice of nonpayment, protest, notice of
protest, notice of intent to accelerate maturity, notice of acceleration of
maturity, and all other notices, filing of suit and diligence in collecting this
Note or enforcing any of the security herefor, and agree to any substitution,
exchange or release of any such security or the release of any party primarily
or secondarily liable hereon and further agree that it will not be necessary for
Lender, in order to enforce payment of this Note by them, to first institute
suit or exhaust its remedies against any Borrower or others liable herefor, or
to enforce Xxxxxx's rights against any security herefor, and consent to any one
or more extensions or postponements of time of payment of this Note
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on any terms or any other indulgences with respect hereto, without notice
thereof to any of them. Lender may transfer this Note in compliance with
applicable provisions of the Credit Agreement, and the rights and
privileges of Lender under this Note shall, following any such transfer,
inure to the benefit of Xxxxxx's successors or assigns.
This Note is being executed to amend and restate in its entirety that
certain Advancing Note dated September 9, 1999 in the face amount of $60,000,000
(the "Amended Note") given by Borrower to Aquila Energy Capital Corporation
("Aquila"), and assigned by Xxxxxx to Lender by that certain Assignment of
Credit Agreement, Note, Liens, and Security Documents of even date herewith.
This Note is issued in substitution and exchange for, and to amend and restate,
but not in payment or novation of, the Amended Note.
For purposes of this Note, each of the following terms shall have the
meaning given to such term below in this paragraph:
"Applicable Law" means that law in effect from time to time and
applicable to this Note which lawfully permits the charging and collection of
the highest permissible lawful, non-usurious rate of interest on this Note.
"Business Day" shall mean a day, other than a Saturday, a Sunday, on
which commercial banks are open for business with the public in Denver,
Colorado.
"Index Rate" means, at any time, the prime rate published in The Wall
Street Journal's "Money Rates" or similar table; provided that if multiple prime
rates are quoted in such table, then the highest such prime rate will be the
Index Rate and, in the event that the prime rate is no longer published by The
Wall Street Journal's "Money Rates" or similar table, then Lender may select an
alternative published index based upon comparable information as a substitute
Index Rate and upon the selection of such a substitute Index Rate, the
applicable interest rate shall thereafter vary in relation to the substitute
index; provided further that such substitute Index Rate shall be the same index
Rate that is generally used as a substitute by Lender on all loans made by
Xxxxxx and bearing interest on the basis of an Index Rate.
"Interest Rate" means an annual rate of the Index Rate plus four
percent (4.0%), determined on the first Business Day of such calendar month and
otherwise calculated in accordance with applicable provisions of the Credit
Agreement.
"Maximum Rate" means the maximum rate of non-usurious interest
permitted from day to day by Applicable Law.
Executed and effective as of this 1st day of October, 2002.
XXXXXX RESOURCES XXXXXX OIL COMPANY
CORPORATION
By: By:
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Name: Name:
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Title: Title:
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