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Exhibit 10.11
TERM NOTE
$7,000,000 APRIL 11, 1997
CHICAGO, ILLINOIS
FOR VALUE RECEIVED, the undersigned, WESFRAC, INC., a Colorado
corporation, WESTEC DENVER, INC., a Colorado corporation, and XXXXXXX OIL
COMPANY, INC., a Texas corporation (collectively, "Borrowers"), hereby jointly
and severally and unconditionally promise to pay to the order of XXXXXX
FINANCIAL, INC., a Delaware corporation ("Lender"), at Xxxxxx's office at 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 0000x, or at such other place as Lender
may from time to time designate in writing, in lawful money of the United
States of America and in immediately available funds, the principal sum of
SEVEN MILLION AND NO/100 DOLLARS ($7,000,000), or, if less, the aggregate
unpaid principal amount of advance made pursuant to Section 2.1 of the "Loan
Agreement" (as hereinafter defined), at such times as are specified in, and in
accordance with the provisions of, the Loan Agreement. This Term Note is
referred to in and was executed and delivered pursuant to that certain Loan and
Guaranty Agreement of even date herewith (the "Loan Agreement") between
Borrowers, the Lender, and the guarantors who are parties thereto, to which
reference is hereby made for a statement of the terms and conditions under
which the Term Loan evidenced hereby was made and is to be repaid. All terms
which are capitalized and used herein (which are not otherwise specifically
defined herein) and which are defined in the Loan Agreement shall be used in
this Term Note as defined in the Loan Agreement. This Term Note is secured by
the Collateral.
Borrowers further jointly and severally promise to pay interest on the
outstanding unpaid principal amount hereof, as provided in the Loan Agreement,
from the date hereof until payment in full hereof at the applicable rates
specified in Section 2.4 of the Loan Agreement; provided, however, that if
Lender, in its sole discretion, so elects, following the occurrence and during
the continuance of an Event of Default, Borrowers jointly and severally promise
to pay to Lender interest on the unpaid principal amount hereof at the
applicable rate specified in Section 2.4 of the Loan Agreement. Interest shall
be payable monthly in arrears on the dates specified in Section 2.4 of the Loan
Agreement, on the date of any prepayment and at maturity, whether by
acceleration or otherwise. Interest shall be computed on the closing daily
principal balance in Borrowers' Loan Account with respect to Term Loan on the
basis of a 360-day year for the actual number of days elapsed in the period
during which it accrues.
If a payment hereunder becomes due and payable on a day that is not a
Business Day, the payment may be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of the amount of
interest due on such succeeding Business Day. Checks, drafts or similar items
of payment received by Lender shall not constitute payment, but credit therefor
shall, solely for the purpose of computing interest earned by Xxxxxx, be given
in accordance with the Loan Agreement. In no contingency or event whatsoever
shall interest charged hereunder, however such interest
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may be characterized or computed, exceed the highest rate permissible under any
law which a court of competent jurisdiction determines is applicable hereto.
In the event of any such determination, the provisions of Section 2.9 of the
Loan Agreement shall govern and control.
After the occurrence and during the continuance of an Event of
Default, Xxxxxx shall have the exclusive right to apply and to reapply any and
all payments hereunder against the Obligations of the Borrowers in such manner
as Lender deems advisable notwithstanding any previous entry by Xxxxxx upon
Borrowers' Loan Account or any other books and records.
If any suit or action is instituted or attorneys are employed to
collect this Term Note or any part thereof, Borrowers hereby jointly and
severally promise and agree to pay all costs of collection, including
attorneys' fees and court costs.
Borrowers and each endorser, guarantor and surety of this Term Note
hereby waives presentment for payment, protest and demand, and notice of
demand, protest, dishonor and nonpayment of this Term Note. Borrowers also
waive all rights to notice and hearing of any kind upon the occurrence of an
Event of Default and prior to the exercise by Lender of its rights to repossess
the Collateral without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
THIS TERM NOTE HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN
MADE AT CHICAGO, ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS. Whenever possible each provision of this Term
Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Term Note shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Term Note. Whenever in this
Term Note reference is made to Lender or Borrowers, such reference shall be
deemed to include, as applicable, a reference to their respective successors
and assigns. The provisions of this Term Note shall be binding upon and shall
inure to the benefit of such successors and assigns. Xxxxxxxxx' successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for any of the Borrowers.
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IN WITNESS WHEREOF, Xxxxxxxxx have executed this Term Note as of the
day and year first above written.
WESFRAC, INC.,
a Colorado corporation
By:
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Name: Xxxx X. Xxxx Title:
Chief Financial Officer and
Secretary
WESTEC DENVER, INC.,
a Colorado corporation
By:
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Name: Xxxx X. Xxxx Title:
Chief Financial Officer and
Secretary
XXXXXXX OIL COMPANY, INC.,
a Texas corporation
By:
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Name: Xxxx X. Xxxx Title:
Chief Financial Officer and
Secretary
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