TCW ASSET MANAGEMENT
COMPANY
865 South Figueroa Street,
Suite 1800
Los Angeles, Califorina
90017
Rio Vista Penny
LLC
2601 Northwest Expressway #902E
Oklahoma City, Oklahoma 93112
Attention: Ian Bothwell
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Re:
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Note Purchase Agreement, dated as
of November 19, 2007 (as amended, supplemented or otherwise
modified, the “Note Purchase Agreement” ), by
and among RIO VISTA PENNY LLC, an Oklahoma limited liability
company ( “Company” ), the Holders party
thereto, and TCW ASSET MANAGEMENT COMPANY, as Administrative
Agent.
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Reference is made to the Note Purchase
Agreement. Terms that are defined in the Note Purchase Agreement
and not otherwise defined herein are used herein with the meanings
given them in the Note Purchase Agreement.
Company has requested that Holders extend the
required payments of principal and accrued interest that are due
and payable on April 13, 2009 and also to extend the date to
deliver the Engineering Report effective as of November 1,
2008, in each case to May 20, 2009. Accordingly, in reliance
upon the representations, warranties, covenants, and waivers of the
Restricted Persons contained in this Letter, and subject to the
terms and conditions of this Letter, Administrative Agent and
Holders hereby agree that (i) the mandatory principal payment
in respect of the Notes due and payable on the December 2008
Quarterly Payment Date and the March 2009 Quarterly Payment
Date pursuant Section 2.8(a) of the Note Purchase Agreement is
hereby extended to May 20, 2009 (which was previously extended
to April 13, 2009 by letter agreement dated March 23,
2009 among the parties hereto with respect to the mandatory
principal payment due on the December 2008 Quarterly Payment
Date), (ii) the required payment of accrued interest in
respect of the Notes due and payable on the December 2008
Quarterly Payment Date and March 2009 Quarterly Payment Date
is hereby extended to May 20, 2009 (which was previously
expended to April 13, 2009 by letter agreement dated
March 23, 2009 among the parties hereto with respect to the
required payment of accrued interest due on the December 2008
Quarterly Payment Date), and (iii) the delivery of the
Engineering Report to be effective as of November 1, 2008 that
was due prior to December 1, 2008 pursuant to Section 7.2(i)
of the Note Purchase Agreement is hereby extended to May 20,
2009 (which was previously extended to April 13, 2009 by
letter agreement dated March 23, 2009 among the parties
hereto).
Rio Vista Penny
LLC
April 13, 2009
Page 2
In order to induce Holder Parties to enter into
this Letter, Company represents and warrants to each Holder Party
that the representations and warranties contained in Article V
of the Note Purchase Agreement are true and correct at and as of
the time of the effectiveness hereof, except to the extent such
representations and warranties specifically refer to an earlier
date, in which case they are true and correct as of such earlier
date. Company hereby further acknowledges, confirms and agrees
(i) that as of the close of business on April 13, 2009,
Company is indebted to Holders in respect of the Loans in the
aggregate principal amount of $24,700,000.00 and in respect of
accrued but unpaid interest related thereto in the amount of
$1,689,548,61 and (ii) that the amount of such accrued
interest shall be recalculated on all outstanding Loans at the
Default Rate from December 30, 2008 if such accrued interest
is not paid in full on or before May 20, 2009. All such Loans,
together with interest accrued and accruing thereon, and fees,
costs, expenses and other charges now or hereafter payable by
Company to Administrative Agent and Holders under the Note
Documents, are unconditionally owing by Company to Administrative
Agent and Holders, without offset, defense or counterclaim of any
kind, nature or description whatsoever. Company (and each other
Restricted Person by execution of the attached Consent and
Reaffirmation) hereby acknowledges, confirms and agrees that
Administrative Agent and Holders have and shall continue to have
valid, enforceable and perfected first-priority Liens in the
Collateral heretofore granted to Administrative Agent and Holders
pursuant to the Note Documents or otherwise granted to or held by
such Persons.
To induce Holder Parties to enter into this
Letter, Company (and each other Restricted Person by execution of
the attached Consent and Reaffirmation) hereby (a) represents
and warrants that as of the date of this Letter there are no claims
or offsets against or defenses or counterclaims to its obligations
under the Note Documents, and waives any and all such claims,
offsets, defenses, or counterclaims, whether known or unknown,
arising prior to the date of this Letter, (b) releases and
forever discharges the Released Persons from any and all Released
Claims, and (c) covenants not to assert (and not to assist or
enable any other Person to assert) any Released Claim against any
Released Person. The Restricted Persons acknowledge and agree that
such release is a general release of any and all Released Claims
that constitutes a full and complete satisfaction for all or any
alleged injuries or damages arising out of or in connection with
the Released Claims, all of which are herein compromised and
settled. As used in this
paragraph, “Released Claims” and “Released
Persons” mean:
“ Released Claims ” means any
and all actions, causes of action, judgments, executions, suits,
debts, claims, d
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