ADVANCE NOTE
$2,000,000.00 Dallas, Texas March 20, 1996
FOR VALUE RECEIVED, the undersigned XXXXXX OIL COMPANY, a Colorado
corporation (referred to herein as "Borrower") hereby unconditionally
promises to pay to the order of BANK ONE, TEXAS, N.A., a national
banking association (referred to herein as "Bank"), at its banking
offices in Dallas County, Texas, the principal sum of TWO MILLION AND
No/100 DOLLARS ($2,000,000.00), or so much thereof as may be advanced to
or for the benefit of Borrower by Bank pursuant to the Loan Agreement
(as hereinafter defined) in lawful money of the United States of America
together with interest from the date hereof until paid at the rates
specified in the Loan Agreement. All payments of principal and interest
due hereunder are payable at the offices of Bank at 0000 Xxxx Xxxxxx,
0xx Xxxxx, Bank One Center, P.O. Box 655415, Dallas, Texas 75265-5415,
attention: Energy Department, or at such other address as Bank shall
designate in writing to Borrower.
The principal and all accrued interest on this Note shall be due
and payable in accordance with the terms and provisions of the Loan
Agreement.
This Note is executed pursuant to that certain Loan Agreement dated
of even date herewith between Borrower and Bank (the "Loan Agreement"),
and is the Advance Note referred to therein. This Note is secured by
certain Security Instruments (as such term is defined in the Loan
Agreement) of even date herewith between Borrower and Bank. Reference
is made to the Loan Agreement and the Security Instruments for a
statement of prepayment, rights and obligations of Xxxxxxxx, description
of the properties mortgaged and assigned, the nature and extent of such
security and the rights of the parties under the Security Instruments in
respect to such security and for a statement of the terms and conditions
under which the due date of this Note may be accelerated. Upon the
occurrence of an Event of Default, as that term is defined in the Loan
Agreement and Security Instruments, the holder hereof (i) may declare
forthwith to be entirely and immediately due and payable the principal
balance hereof and the interest accrued hereon, and (ii) shall have all
rights and remedies of the Bank under the Loan Agreement and Security
Instruments. This Note may be prepaid in accordance with the terms and
provisions of the Loan Agreement.
Regardless of any provision contained in this Note, the holder
hereof shall never be entitled to receive, collect or apply, as interest
on this Note, any amount in excess of the Maximum Rate (as such term is
defined in the Loan Agreement), and, if the holder hereof ever receives,
collects, or applies as interest, any such amount which would be
excessive interest, it shall be deemed a partial prepayment of principal
and treated hereunder as such; and, if the indebtedness evidenced hereby
is paid in full, any remaining excess shall forthwith be paid to
Borrower. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Maximum Rate, Borrower and
the holder hereof shall, to the maximum extent permitted under
applicable law (i) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) spread the total amount
of interest throughout the entire contemplated term of the obligations
evidenced by this Note and/or referred to in the Loan Agreement so that
the interest rate is uniform throughout the entire term of this Note;
provided that, if this Note is paid and performed in full prior to the
end of the full contemplated term thereof; and if the interest received
for the actual period of existence thereof exceeds the Maximum Rate, the
holder hereof shall refund to Borrower the amount of such excess or
credit the amount of such excess against the indebtedness evidenced
hereby, 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 Maximum Rate.
If any payment of principal or interest on this Note shall become
due on a Saturday, Sunday or public holiday or while the Bank is not
open for business, such payment shall be made on the next succeeding
business day and such extension of time shall in such case be included
in computing interest in connection with such payment.
If this Note is placed in the hands of an attorney for collection,
or if it is collected through any legal proceeding at law or in equity
or in bankruptcy, receivership or other court proceedings, Xxxxxxxx
agrees to pay all costs of collection, including, but not limited to,
court costs and reasonable attorneys' fees.
Borrower and each surety, endorser, guarantor and other party ever
liable for payment of any sums of money payable on this Note, jointly
and severally waive presentment and demand for payment, notice of
intention to accelerate the maturity, notice of acceleration of the
maturity, protest, notice of protest and nonpayment, as to this Note and
as to each and all installments hereof, and agree that their liability
under this Note shall not be affected by any renewal or extension in the
time of payment hereof, or in 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.
This Note shall be governed by and construed in accordance with the
applicable laws of the United States of America and the laws of the
State of Texas, except that Tex. Rev. Civ. Stat. Xxx. art. 5069, Chapter
15 (which regulates certain revolving credit loan accounts and revolving
tri-party accounts) shall not apply to this Note.
THIS WRITTEN NOTE, THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
EXECUTED as of the 20th day of March, 1996.
BORROWER:
XXXXXX OIL COMPANY
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx,
President
