EXHIBIT 10.1
AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
THIS AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT, is made this 24th day of
February, 2004, by and between Kestrel Energy, Inc. (the "Borrower"), a Colorado
corporation, and Xxxxx X. Xxxxxx ("Lender"), an individual.
RECITALS
A. WHEREAS, pursuant to a Revolving Credit Loan Agreement dated May 5, 2003
(the "Agreement"), Borrower agreed to borrow sums from time to time up to an
aggregate amount of Two Hundred Thousand Dollars ($200,000) from Lender in the
form of a revolving line of credit; and
B. WHEREAS, the loans under the Agreement are evidenced by a Revolving
Credit Master Note dated May 5, 2003 (the "Note") and secured by a Mortgage,
Deed of Trust, Security Agreement, Assignment of Production and Financing
Statement (the "Mortgage"); and
C. WHEREAS, Lender serves as the President and Chief Executive Officer of
Borrower and the Agreement provides that the debt created by the Agreement shall
be accelerated in the event of a termination of Lender's employment by Borrower;
D. WHEREAS, Lender now wishes to assign the Agreement, Note and Mortgage to
Samson Exploration N.L. (the "Assignee") and the Assignee will accept, and
Borrower will consent to, such assignment if Borrower and Lender first agree to
amend the Agreement to delete the provision of the Agreement providing for
acceleration upon termination of Lender's employment by Borrower set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties agree as follows:
1. Deletion of Acceleration Upon Termination of Employment. Subject to the
terms and conditions of this Agreement, Lender and Borrower agree that Section 3
of the Agreement, entitled Promise to Pay, Conversion and Acceleration upon
Termination of Employment, is deleted in its entirety and replaced with the
following new Section 3:
"3. Promise to Pay, Conversion and Acceleration. Borrower promises to
pay to Lender when due, whether by normal maturity, acceleration or otherwise,
the entire outstanding principal amount of the Revolving Credit, including the
Existing Debt, together with interest, and all other amounts payable by Borrower
to Lender hereunder, including costs of collection. Borrower also agrees that
Lender may elect to convert all or any portion of the unpaid principal and
interest owed under this Agreement and the Note into shares of the Borrower's
common stock at a conversion price of $.40 per share (the "Conversion Price").
Borrower agrees that in the event of a Change of Control of Borrower, Lender
shall have the right to accelerate the Repayment Date to a date not sooner than
thirty (30) days after the effective date of such Change of Control. For
purposes hereof, a "Change of Control" shall be deemed to have occurred (a) if a
person or group of persons (other than Lender or its affiliates) obtains
sufficient shares of the Borrower's common stock that such person or group of
persons has the ability, whether or not
exercised, to call a meeting of Borrower's shareholders and elect a majority of
the Borrower's board of directors or (b) if at any meeting of Borrower's
shareholders a majority of the board of directors is elected which were not
nominated by the nominating committee of the Borrower's board of directors or
such board itself."
2. Amendment to Section 10--Notices. Upon the assignment of the Agreement,
Note and Mortgage to Assignee, all notices by Borrower that would otherwise be
sent to Lender under the Agreement shall be sent to Assignee at the address set
forth below:
"Samson Exploration N.L.
Xxxxx 00, Xxxxxxxx Xxxxx
0 Xxx Xxxxxxxxx
Perth, Western Australia 6000
AUSTRALIA"
3. Miscellaneous
a. No Waiver. No failure or delay of any party hereto to exercise any
right given to it hereunder, or to insist on strict compliance with any
provision hereunder, shall constitute a waiver of such provision or of any other
provision hereof, or a waiver of any breach, and no waiver of any provision or
breach of any provision shall constitute a waiver of any other provision or
breach or of any subsequent breach of the same provision. No waiver shall be
effective unless in writing and signed by the party having the right to waive
such provision.
b. Survival. All covenants, agreements, representations and warranties
made herein and in any other instruments or documents delivered pursuant hereto
shall survive the execution and delivery of this Amendment to Revolving Credit
Loan Agreement ("Amendment") and shall continue in full force and effect so long
as any of the amounts due hereunder are outstanding and unpaid.
c. Entire Agreement; Modification. This Amendment and the Agreement
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof, superseding all prior negotiations, correspondence,
understandings and agreements, if any, between the parties; no amendment or
modification of this Amendment shall be binding on the parties unless made in
writing and duly executed by all parties. There are no oral or implied
agreements and no oral or implied warranties between the parties hereto other
than those expressed herein.
d. Binding Effect; Assignability. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
e. Headings. The section and other headings in this Amendment are for
reference only and shall not limit or otherwise affect any of the terms hereof.
f. Further Assurances and Corrective Instruments. The parties hereto
agree to execute, acknowledge, seal and deliver, after the date hereof, without
additional consideration, such further assurances, instruments and documents,
and to take such further actions, as the
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parties hereto shall request in order to fulfill the intent of this Amendment
and the transactions contemplated hereby.
g. Severability. Any provision in this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
h. Governing Law. This Amendment is made in and shall be governed by and
construed and interpreted in accordance with this laws of the State of Colorado.
i. Effect. In the event of a conflict between the provisions of this
Amendment and those of the Agreement, the provisions of this Amendment shall
govern and control. Except as provided in SECTIONS 1 AND 2 hereof, this
Amendment shall not modify or amend any term or provision of the Agreement. As
amended by this Amendment, the Agreement shall remain in full force and effect
and is hereby ratified and affirmed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment to Revolving Credit Loan Agreement under seal, with the intention of
making it a sealed instrument, as of the day and year first above written.
BORROWER:
KESTREL ENERGY, INC.
By: /S/XXXXXXX X. XXXXX
-----------------------------
Xxxxxxx X. Xxxxx
Operations Manager
LENDER:
/S/XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
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