Exhibit 10.49


 


PROMISSORY
NOTE


 


	
  $10,000,000.00
  

  	
  Dallas,
  Texas

  	
  October 7,
  2005

  



 


FOR VALUE RECEIVED, the undersigned, EXCO
HOLDINGS INC., a corporation organized under the laws of Delaware (“Maker”),
hereby unconditionally promises to pay, on demand, to the order of EXCO
RESOURCES, INC., a Texas corporation (“Payee”), at 12377 Merit Dr., Suite 1700,
Dallas, Texas 75251, or such other address given to Maker by Payee, the
principal sum of TEN MILLION 00/100 DOLLARS ($10,000,000.00), or so much
thereof as may be advanced hereunder prior to maturity, in lawful money of the
United States.


 


1.  Definitions.  When used in this Note, the following terms
shall have the respective meanings specified herein or in the Section referred
to:


 


“Advance” means the
disbursement by Payee of a sum or sums lent to Maker pursuant to this Note.


 


“Business Day”
means a day upon which business is transacted by national banks in Dallas,
Texas.


 


“Event of Default”
is defined in Section 6
herein.


 


“Fixed
Rate” means 7.0% per annum.


 


“Interest
Payment Date” means the last day of each calendar
quarter.


 


“Maximum Rate”
means, with respect to the holder hereof, the highest non-usurious rate of
interest, if any, permitted by applicable law on such day.


 


2.  Advances.


 


(a)          This Note evidences Advances made from time
to time by Payee to Maker. The principal of this Note may be borrowed, repaid,
and reborrowed from time to time.


 


(b)         Subject to the conditions set forth in this
Note, Maker may request an Advance under this Note by submitting a notice of
borrowing acceptable in form and substance to Payee, which is irrevocable and
binding upon Maker. Maker shall give Payee such notice of borrowing on or
before 10:00 a.m. (Dallas, Texas time) one (1) Business Day prior to
each Advance. Each Advance under this Note shall be in the amount of
$100,000.00 or a greater integral multiple of $100,000.00. Subject to the terms
and conditions in this Note, by not later than 2:00 p.m., Dallas, Texas
time, on the date specified, Payee shall make available to Maker, at the
location specified by Maker, the amount of a requested Advance under this Note
in immediately available funds.


 


3.  Interest Rate.


 


Maker agrees to pay interest calculated on
the basis of the actual days elapsed in a year consisting of 365 days, or
if appropriate, 366 days with respect to the unpaid principal balance of
each Advance from the date the proceeds thereof are made available to Maker
until maturity (whether by acceleration or otherwise), at a fixed rate per
annum equal to the lesser of (i) the Maximum Rate, or (ii) the Fixed
Rate. Subject to the provisions of this Note as to prepayment, the principal of
each Advance shall be payable as specified in Section 4 hereof and the interest
in respect of each Advance shall be payable on each Interest Payment Date
applicable thereto. Past due principal and, to the extent permitted by law,
past due interest in respect to each Advance, shall bear interest, payable on
demand, at a rate per annum equal to the Maximum Rate, or if no Maximum Rate is
established by applicable law, then at the rate per annum which shall from day
to day be equal to eighteen percent (18%).


 





















 


4.  Payment of Principal.


 


The unpaid principal upon this Note shall be
due and payable on demand, but if no demand is made, then on October 7,
2007. All payments of principal of this Note shall be made by Maker to Payee in
immediately available funds.


 


5.  Waivers.


 


Maker and each surety, endorser, guarantor,
and other party ever liable for payment of any sums of money payable upon this Note,
jointly and severally waive presentment, demand, protest, notice of protest and
non-payment or other notice of default, notice of acceleration, and intention
to accelerate, or other notice of any kind, 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, regardless of the
number of such renewals, extensions, indulgences, releases, or changes.


 


No waiver by Payee of any of its rights or
remedies hereunder or under any other document evidencing or securing this Note
or otherwise, shall be considered a waiver of any other subsequent right or
remedy of Payee; no delay or omission in the exercise or enforcement by Payee
of any rights or remedies shall ever be construed as a waiver of any right or
remedy of Payee; and no exercise or enforcement of any such rights or remedies
shall ever be held to exhaust any right or remedy of Payee.


 


6.  Events of Default and Remedies.


 


An “Event
of Default” shall exist hereunder if Maker shall fail to pay when
due any principal of this Note.


 


If Maker fails or refuses to pay any part of
the principal upon this Note as the same become due, then in any such event the
holder hereof may, at its option, (a) terminate Payee’s commitment to make
advances hereunder, (b) declare the entire unpaid balance of principal of
this Note to be immediately due and payable without presentment or notice of
any kind which Maker waives pursuant to Section 5 herein, (c) reduce any
claim to judgment, and/or (d) pursue and enforce any of Payee’s rights and
remedies available pursuant to any applicable law or agreement.


 


7.  Voluntary Prepayment.  Maker reserves the right to prepay the
outstanding principal balance of this Note, in whole or in part, at any time
and from time to time, without premium or penalty. Any such prepayment shall be
applied to the installments of principal due hereunder in the inverse order of
maturity. Notwithstanding the foregoing, the principal of this Note, once
repaid, may be reborrowed at any time and from time to time by Maker.


 


8.  Usury Laws.  Regardless of any provisions contained in
this Note, the Payee shall never be deemed to have contracted for or be
entitled to receive, collect, or apply as interest on the Note, any amount in
excess of the Maximum Rate, and, in the event Payee ever receives, collects, or
applies as interest any such excess, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance of
this Note, and, if the principal balance of this Note is paid in full, then any
remaining excess shall forthwith be paid to Maker. In determining whether or
not the interest paid or payable under any specific contingency exceeds the
highest lawful rate, Maker and Payee shall, to the maximum extent permitted
under applicable law, (a) characterize any non-principal payment (other
than payments which are expressly designated as interest payments hereunder) as
an expense, fee, or premium, rather than as interest, (b) exclude
voluntary prepayments and the effect thereof, and (c) spread the total
amount of interest throughout the entire contemplated term of this Note so that
the interest rate is uniform throughout such term.


 


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9.  Costs.  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,
then Maker agrees to pay all costs of collection, including, but not limited
to, court costs and reasonable attorneys’ fees, including all costs of appeal.


 


10.  Schedule of Advances.  All Advances made by Payee, and all
repayments of the principal thereof, may be recorded by Payee and, before any
transfer hereof, endorsed by Payee on the schedule attached hereto, or on
a continuation of the schedule attached to and a part hereof; provided that the failure of Payee to
record any endorsement shall not affect the obligation of Maker hereunder.


 


11.  Applicable Law.  The substantive laws of the State of Texas
and federal laws of the United States applicable therein shall govern the
validity, construction, enforcement, and interpretation of this Note.


 


12.  Demand Note.  Maker recognizes, agrees and understands that
this Note is a demand note and that no provision of this Note or any of the
other loan documents, including the recital of certain covenants,
representations and Events of Default, shall modify or impair the demand nature
of this Note. Notwithstanding the compliance by Maker and/or any other party
with any covenant or agreement in any of the other loan documents or this Note,
or that no default or Event of Default has occurred, Payee may, at any time and
for whatever reason, demand payment of this Note.


 


	
   

  	
  EXCO HOLDINGS INC.,
  a corporation organized under

  Delaware law, as Maker

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. DOUGLAS RAMEY

  
	
   

  	
  Name:

  	
  J. Douglas Ramsey

  
	
   

  	
  Title:

  	
  Vice President and Chief Financial Officer

  



 


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SCHEDULE OF
ADVANCES AND PAYMENTS OF PRINCIPAL


 


 


	
  Date

  	
   

  	
  Amount

  of Advance

  	
   

  	
  Amount of

  Principal Paid or

  Prepaid

  	
   

  	
  Unpaid

  Principal

  Balance of Note

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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ALLONGE


 


TO
NOTE DATED OCTOBER 7, 2005


IN
THE PRINCIPAL AMOUNT OF $10,000,000.00


EXECUTED
BY EXCO HOLDINGS INC.


PAYABLE
TO THE ORDER OF


EXCO
RESOURCES, INC.


 


PAY TO THE ORDER OF JPMORGAN CHASE BANK,
N.A., A NATIONAL BANKING ASSOCIATION, AS AGENT FOR THE LENDERS, WITHOUT
RECOURSE, REPRESENTATION OR WARRANTY.


 


	
   

  	
  EXCO RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. DOUGLAS RAMSEY

  
	
   

  	
  Name:

  	
  J. Douglas Ramsey

  
	
   

  	
  Title:

  	
  Vice President and Chief Financial Officer

  



 


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