Exhibit 4.1
Execution Version
WARRANT
Enservco Corporation
Warrant No. 2022-1
Date of Issuance: November 3, 2022 (“Issuance Date”)
Enservco Corporation, a Delaware corporation (the “Company”), hereby certifies that, Cross River Partners, L.P., a Delaware limited partnership, the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below), upon exercise of this Warrant (including any Warrants issued in exchange, transfer or replacement hereof, the “Warrant”), at any time or times after the Issuance Date, but not after 11:59 p.m., Eastern time, on November 3, 2027 (the “Expiration Date”), up to 568,720 (subject to adjustment as provided herein) fully paid and non-assessable shares of Company Common Stock (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 7. This Warrant is issued pursuant to that certain Note Exchange Agreement, dated as of November 3, 2022, by and between the Company and the Holder.
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(c)), this Warrant may be exercised by the Holder on any day after the Issuance Date (an “Exercise Date”), in whole or in part, by delivery of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant. Within five (5) Trading Days following an exercise of this Warrant as aforesaid, the Holder shall deliver payment to the Company of an amount equal to the Exercise Price multiplied by the number of Warrant Shares as to which this Warrant was so exercised (the “Aggregate Exercise Price”) via wire transfer of immediately available funds. Execution and delivery of an Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original of this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. Execution and delivery of an Exercise Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original of this Warrant after delivery of the Warrant Shares in accordance with the terms hereof. On or before the third (3rd) Trading Day following the date on which the Company has received an Exercise Notice, the Company shall transmit to the Holder and the Company’s transfer agent (the “Transfer Agent”), which confirmation shall constitute an instruction to the Transfer Agent to process such Exercise Notice in accordance with the terms herein. On or before the fourth (4th) Trading Day following the date on which the Company has received such Exercise Notice (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such Warrant Shares initiated on the applicable Exercise Date), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder or, at the Holder’s instruction pursuant to the Exercise Notice, the Holder’s agent or designee, in each case, sent by reputable overnight courier to the address as specified in the applicable Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Exercise Notice), for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then, at the request of the Holder, the Company shall as soon as practicable and in no event later than five (5) Business Days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised.
(b) Exercise Price. For purposes of this Warrant, “Exercise Price” means, as of any given Exercise Date, $2.11 per share (subject to adjustment as provided herein).
(c) Limitations on Exercises.
(i) Principal Market Regulation. The Company shall not issue any shares of Common Stock upon the exercise of this Warrant if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue without breaching the Company’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder or (C) obtains a waiver from the Principal Market of the applicable rules of such Principal Market for the issuance of shares of Common Stock in excess of such amount. Until such approval or such written opinion is obtained, Holder shall not be issued in the aggregate, upon exercise of the Warrant, shares of Common Stock in an amount greater than the Exchange Cap as of the Issuance Date.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 2.
(a) Stock Dividends and Splits. If the Company, at any time on or after the Issuance Date, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii) combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
(b) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraphs (a) or (c) of this Section 2, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).
(c) Other Events. In the event that the Company shall take any action to which the provisions hereof are not strictly applicable, or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine and implement an appropriate adjustment in the Exercise Price and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder, provided that no such adjustment pursuant to this Section 2(c) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2, provided further that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose fees and expenses shall be borne by the Company.
3. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 3(d)), registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 3(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 3(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 3(d)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional shares of Common Stock shall be given.
(d) Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 3(a) or Section 3(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
4. NOTICES.
(a) Written Notices. All notices and other communications to any party herein to be effective shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, email, or sent by facsimile as follows:
To the Holder: Cross River Partners LP
31 Bailey Avenue, Suite D
Ridgefield, CT 06877
Email: rmurphy@cross-river.com
Attention: Richard Murphy
To the Company: Enservco Corporation
14133 County Road 9 1/2
Longmont, Colorado 80504
Attention: Mark Patterson
Email: mpatterson@enservco.com
Attn: Chief Financial Officer
with a copy to
Maslon LLP
3300 Wells Fargo Center
90 South Seventh Street
Email: dholod@maslon.com
Attention: Douglas T. Holod, Esq.
Any party hereto may change its address for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall, when transmitted by overnight delivery, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited into the mail or if delivered, upon delivery.
5. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than Section 1(c)) may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
6. GOVERNING LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware.
7. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(b) “Principal Market” means the NYSE American, (or, if the shares of Common Stock are not listed on the NYSE American, and are listed on one or more Eligible Markets, the primary Eligible Market in which the shares of Common Stock are then listed).
(c) “Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., Eastern time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
[signature page follows]
IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.
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ENSERVCO CORPORATION |
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/s/ Mark Patterson |
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Mark Patterson, Chief Financial Officer |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
ENSERVCO CORPORATION
The undersigned holder hereby exercises the right to purchase ____________________ of the shares of Common Stock (“Warrant Shares”) of Enservco Corporation, a Delaware corporation (the “Company”), evidenced by Warrant No. 2022-1 (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Exercise Price. The Exercise Price of the Warrant is $2.11 per share; therefore, the Aggregate Exercise Price for purchase of the Warrant Shares is $_____________________.
2. Payment of Exercise Price. The Holder shall pay the Aggregate Exercise Price in the sum of $__________________ to the Company in accordance with the terms of the Warrant.
3. Delivery of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, ________________ shares of Common Stock in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:
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☐ Check here if requesting delivery as a certificate to the following name and to the following address: |
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☐ Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows: |
Name of Registered Holder:
CROSS RIVER PARTNERS, L.P.
Exercise Notice
EXHIBIT B
ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby directs ____________________ to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated _________________, 20___, from the Company and acknowledged and agreed to by __________________________________.
Acknowledgement
Exhibit 10.1
NOTE EXCHANGE AGREEMENT
This Note Exchange Agreement (the “Agreement”) is dated and made effective as of November 3, 2022(the “Effective Date”), by and between Enservco Corporation, a Delaware corporation (the “Company”) and Cross River Partners, LP, a Delaware limited partnership (“Cross River”). (collectively, the “Parties”).
INTRODUCTION
A. In exchange for a $750,000 revolving credit facility, the Company issued a Revolving Promissory Note to Cross River in principal amount of $750,000 dated September 22, 2022 (the “Revolving Note”).
B. As of the Effective Date, the outstanding principal balance of the Revolving Note is $750,000 (the “Existing Advances”) and Company requires additional capital to fund operations at the beginning of its peak season;
C. The Company desires to borrow, and Cross River is willing to lend, an additional $450,000 (the “Additional Principal Advance”) on the terms provided in this Agreement; and
D. The parties desire to exchange the Revolving Note and borrow/lend the Additional Principal Amount for a Convertible Secured Subordinated Promissory Note in the original principal amount of $1,200,000.00 (the “Exchange Note”) and a warrant to acquire Company common stock as provided herein
AGREEMENT
Now, Therefore, the Parties hereby agree as follows:
1. Note Exchange. Effective as of the Effective Date, Cross River hereby a) delivers the Revolving Note to the Company and b) advances the Additional Principal Advance in exchange for: (a) the Exchange Note in the form attached hereto as Exhibit A (delivered in replacement of the Revolving Note) and (b) warrants to acquire shares of Company common stock in the form attached hereto as Exhibit B (the “Warrants”) in exchange for the Company’s contemporaneous execution and delivery of the(a) Exchange Note (evidencing the Existing Advances and the Additional Principal Advance) and (b) the Warrants.
2. Collateral. As a condition subsequent to Cross River’s loan evidenced by the Revolving Note, Company agreed to deliver (or cause its affiliate to deliver) a mortgage (the “Revolving Mortgage”) on certain real property located in North Dakota to secure the Company’s obligations under the Revolving Note. The Revolving Mortgage has not been recorded as of the date of this Agreement. In consideration of the Existing Advances and the Company’s ongoing obligation to deliver the Revolving Mortgage, and Cross River’s willingness to make the Additional Principal Advance, the Company hereby agree to execute a new mortgage to secure amounts evidenced by the Exchange Note (including the Existing Advances and the Additional Principal Advance. The Company shall use best efforts to have such mortgage filed within 30 days of the date of the Effective Date.
3. Cross River Representations. Cross River hereby represents and warrants to the Company that: (a) the recitals set forth in the Introduction above, are true and correct in all respects; (b) the execution, delivery and performance of this Agreement by Cross River does not conflict with any other agreement binding upon Cross River and this Agreement represents the valid and binding obligation of Cross River, enforceable in accordance with its terms; and (c) Cross River is the record and beneficial owner of the Revolving Note and has the full power, authority and capacity to transfer the Revolving Note free and clear of any liens, pledges, security interests, restrictions of transfer or encumbrances of any kind or nature.
4. Company Representations. The Company hereby represents and warrants to Cross River that: (a) the recitals set forth in the Introduction above, are true and correct in all respects; (b) the execution, delivery and performance of this Agreement by each of the Company does not conflict with any other agreement binding upon the Company, and this Agreement represents the valid and binding obligation of the Company, enforceable in accordance with its terms; (c) the Company has the requisite power and authority to enter into this Agreement and to carry out its respective obligations hereunder; and (c) the Company represents that the Warrant and shares of Company Common Stock when issued pursuant to the Warrant shall be validly issued, duly authorized and non-assessable.
5. General Provisions.
(a) This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties with respect to the subject matter hereof. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by all Parties. This Agreement may not be assigned.
(b) The laws of the State of New York will govern the validity, construction and performance of this Agreement without regard to its conflicts-of-law principles. Any legal proceeding related to this Agreement will be brought in an appropriate New York court, and Cross River and the Company hereby consent to the exclusive jurisdiction of such State’s courts for this purpose.
(c) Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the applicable law. If any provision of this Agreement is to any extent invalid under the applicable law, that provision will still be effective to the extent it remains valid. The remainder of this Agreement also will continue to be valid, and the entire Agreement will continue to be valid in other jurisdictions.
(d) This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument. A facsimile or other electronic transmission of this signed Agreement shall be legal and binding on the Parties.
[Signature Page Follows]
In Witness Whereof, the undersigned have executed this Agreement to be effective as of the Effective Date.
ENSERVCO CORPORATION,
a Delaware corporation
By: /s/ Mark Patterson
Mark Patterson, its Chief Financial Officer
CROSS RIVER PARTNERS, LP
a Delaware limited partnership
By: Richard Murphy
Its: Managing Partner
Exhibit 10.2
CONVERTIBLE SECURED SUBORDINATED PROMISSORY NOTE
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November 3, 2022 |
FOR VALUE RECEIVED, Enservco Corporation, a Delaware corporation (“Borrower”), promises to pay to the order of Cross River Partners, LP, a Delaware limited partnership (“Holder”), the original principal sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS AND NO CENTS ($1,200,000.00), or such other amount as shall then be equal to the outstanding principal amount hereof, in the manner provided in this Promissory Note (this “Note”).
1. Loan.This Note is issued pursuant to that certain Note Exchange Agreement by and between Borrower and Holder dated November 3, 2022 and reflects a) the exchange of the Revolving Note in principal amount of $750,000 issued September 22, 2022 and b) the loan of $450,000 made by Holder to Borrower via wire on or about November 3, 2022.
2. Interest. This Note shall bear interest of Ten (10) percent per annum.
3. Maturity Date. November 3, 2024 unless sooner converted or prepaid.
4. Payment of Principal and Interest; Maturity. Interest only payments shall be required on a quarterly basis, starting March 30, 2023 and following on the last business day of each calendar quarter. Interest shall be payable at the option of the Borrower in cash or in Borrower common stock issued at a conversion price of $2.11 per share. Any outstanding principal and interest due on the Maturity Date (or on the business day prior to Maturity Date if the Maturity Date is a bank holiday).
5. Security Interest. Borrower shall grant to Lender a mortgage in certain real property located in North Dakota to secure Borrower’s obligations under this Note. Borrower shall use best efforts to have such mortgage filed within 30 days of the date of this note.
6. Optional Conversion to Common Stock. Subject to any required Borrower stockholder consent as required by the exchange upon which Borrower common stock is then listed, all or some of the outstanding principal and accrued but unpaid interest of this Note, may converted to Borrower common stock at the option of the Holder at a per share conversion price equal to the lower of a) $2.11 per share or b) the per share price Borrower receives for its common stock in the next subsequent equity offering in excess of $2.0 million.
7. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:
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a.
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Failure to Pay. The failure of the Borrower to (i) timely pay the Holder hereof any payment of interest, principal or other amounts as and when due hereunder, or (ii) pay the Holder hereof the entire amount of any unpaid principal amount plus any other amounts owed but unpaid hereunder upon Maturity Date.
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b.
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Voluntary Bankruptcy or Insolvency Proceedings. Should Borrower (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of it or of all or a substantial part of its property; (ii) make a general assignment for the benefit of its creditors; or (iii) commence a voluntary case or any other proceeding seeking liquidation, reorganization or other relief with respect to either Borrower or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in any involuntary case or other proceeding commenced against it.
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c.
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Involuntary Bankruptcy or Insolvency Proceedings. Should proceedings for the appointment of a receiver, trustee, liquidator or custodian of Borrower or of all or a substantial part of the property of Borrower, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to Borrower or the debts of Borrower under any bankruptcy, insolvency or other similar law, now or hereafter in effect, be commenced and not dismissed or discharged within sixty (60) days of commencement.
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d.
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Merger and Other Changes. Without the written consent of Holder, should Borrower merge or consolidate with or into, or convey, transfer, lease, or otherwise dispose of, whether in on transaction or in a series of transaction, all or substantially all of the property and assets (whether now owned or hereafter acquired) of Borrower to, any person, or should there be a change in the holders of a majority of the voting control of Borrower, whether directly or indirectly.
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8. Rights of Holder Upon Default. Upon the occurrence or existence of any Event of Default, and after any required notice, or at any time thereafter, Holder immediately may declare all outstanding obligations payable by Borrower hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, Holder may exercise any other right, power or remedy granted to it or otherwise permitted to it under this Note, the Security Agreement or by law (either by suit in equity or by action at law, or both).
9. Prepayment. Borrower may prepay this Note without penalty in whole or in part at any time.
10. Successors and Assigns. The rights and obligations of Borrower and Holder under this Note shall be binding upon and benefit the successors, assigns and transferees of the parties. This Note may not be assigned by the Borrower without the prior written consent of Holder. All references in this Note to the “Borrower” and the “Holder” shall be deemed to apply to the Borrower and the Holder, respectively, and to their respective successors and assigns.
11. Waiver and Amendment. Any provision of this Note may only be amended, waived or modified upon the written consent of the Borrower and the Holder.
12. Governing Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to the conflicts of law provisions of the State of Colorado or of any other state.
13. Miscellaneous.
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i.
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Waives diligence, presentment, demand for payment, notice of dishonor, notice of non-payment, protest, notice of protest, and any and all other demands in connection with the delivery, acceptance, performance, default or enforcement of this Note;
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ii.
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Waives the benefit of any statute of limitations to the maximum extent permitted by law with respect to any action to enforce this Note and any other action related to this Note;
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iii.
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Agrees that no failure on the part of Holder to exercise any power, right or privilege hereunder, or to insist upon prompt compliance with the terms of this Note, will constitute a waiver of that power, right or privilege; and
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iv.
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Agrees that the acceptance at any time by Holder of any past due amounts will not be deemed to be a waiver of the requirement to make prompt payment when due of any other amounts then or hereafter due and payable.
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b.
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THE INDEBTEDNESS EVIDENCED BY THIS NOTE SHALL BE JUNIOR AND SUBORDINATE TO INDEBTEDNESS WHICH BORROWER MAY NOW OR AT ANY TIME HEREAFTER OWE TO ANY LENDER, WHETHER SUCH INDEBTEDNESS NOW EXISTS OR IS HEREAFTER CREATED OR INCURRED, AND WHETHER SUCH INDEBTEDNESS IS FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED. IN FURTHERANCE HEREOF AND CONSISTENT WITH THIS COVENANT OF SUBORDINATION, HOLDER WILL ENTER INTO WRITTEN SUBORDINATION AGREEMENTS FOR THE BENEFIT OF ANY SUCH LENDERS AS AND WHEN REQUESTED BY SUCH LENDERS; PROVIDED THAT SUCH LENDERS AGREE IN SUCH SUBORDINATION AGREEMENT THAT BORROWER MAY CONTINUE TO PAY ALL AMOUNTS DUE AND PAYABLE UNDER THIS NOTE IF AT THE TIME OF SUCH PAYMENT NO DEFAULT EXISTS OR WILL EXIST AS A RESULT OF SUCH PAYMENT UNDER ANY AGREEMENTS WITH SUCH LENDERS.
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IN WITNESS WHEREOF, the undersigned have hereunto affixed their signatures to this Note effective as of the date first set forth above.
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ENSERVCO CORPORATION
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By:
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/s/ Mark Patterson
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Name: Mark Patterson |
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Title: Chief Financial Officer |
