Exhibit 10.66
[Handwritten initials]
AMENDMENT AGREEMENT NO. 1
TO 9.5% CONVERTIBLE SECURED NOTE
THIS AMENDMENT AGREEMENT NO. 1 (the "Amendment Agreement") is made this 10th day
of March 2003,
BY AND AMONG:
(1) FX Energy, Inc., a Nevada corporation, having its principal place of
business 0000 Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx Xxxx 00000 XXX (the
"Company"); and
(2) Rolls-Royce Power Ventures Limited, a limited liability company
organised under the laws of England, having its principal place of
business at Xxxxxxxxx Xxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx (the "Holder").
WHEREAS the Company entered into a 9.5% Convertible Secured Note in the
aggregate amount of US$5,000,000 on March 9, 2001 (the "Note") and deliver the
Note to the Holder;
WHEREAS the Company and the Holder have decided to amend the terms and
conditions of the Note;
NOW, THEREFORE, in consideration of the mutual benefits to be derived herefrom
and the undertakings contained herein, the Company and the Holder hereby agree
as follows:
1. Interpretation
All capitalised terms used in this Amendment Agreement for which definitions are
not provided shall have the meanings given such terms in the Note. This
Amendment Agreement is hereby incorporated into and made a part of the Note as
if the terms thereof and hereof were set forth therein.
2. Extension of the Maturity Date of the Note
A. In consideration of the payment by the Company of an extension fee of
US$100,000 (the "Extension Fee"), the Holder agrees to modify the
Conditions of the Note as set forth in Section 3 of this Amendment
Agreement so long as no other Event of Default has occurred and is
continuing. The Extension Fee shall be paid on the earlier of (i) the
date on which the Company receives any proceeds from any equity
subscription or debt offering by the Company and (ii) May 31, 2003.
B. If the Company calls a portion of the Note for early repayment pursuant
to Clause 6 of the Conditions, and such early repayment is in an amount
not less than US$2,000,000, the Holder will agree to extend the
maturity date of the Note, as set forth in Clause 5 of the Conditions
until December 31, 2003.
3. Amendments to the Conditions of the Note.
The Conditions of the Note shall be amended as set forth below with effect from
the date of this Amendment Agreement:
A. Clause 1 of the Conditions is amended by inserting the following
definitions:
"CalEnergy" means CalEnergy Power (Polska) Sp. Z o.o.
"Farmout Contract" means the Farmout Agreement entered into by and
between FXEP and CalEnergy dated 9th January 2003.
B. Clause 4 of the conditions is amended by (i) deleting the words "until
repayment in full" in the third line thereof and inserting in their
place the words "until the second anniversary of the Issuance Date" and
(ii) inserting immediately after the words "per year," in the fourth
line thereof in the following sentence:
"From the second anniversary of the Issuance Date until repayment in
full, this Note will accrue interest at a rate of twelve percent (12%)
per year."
C. Clause 5 of the Conditions is amended by deleting the first sentence
thereof and inserting in its place the following sentence:
"The Company promises to pay principal and interest on this Note in
arrears on May 31, 2003 in a single installment of the total amount
outstanding."
D. Clause 6 of the Conditions is amended by adding the following sentence
at the end thereof:
"Upon receipt of the gross proceeds of any equity subscription or debt
offering, the Company shall be required to redeem the Note in an amount
not less than forty percent (40%) of such gross proceeds; provided,
that the minimum redemption amounts set forth above shall not be
applicable to any mandatory redemption pursuant to this sentence."
E. Clause 7 of the Conditions is amended by deleting subclause 7.1 in its
entirety and inserting in its place the following subclause:
"7.1 The Holder has the right, exercisable at any time after the
date hereof, to convert all or any part of the outstanding
principal payable by the Company on the Note into shares of
common Stock (the "Shares") at the Conversion Price, except
that if the Note, or any part thereof is called for early
repayment pursuant to Section 6, the conversion right will
terminate with respect to the portion of the Note so prepaid
on receipt by the Holder of the notice of redemption. The
conversion right shall terminate upon the payment in full of
the Note. No interest shall be payable on any principal amount
converted into Shares, and if any interest shall have been
paid on such principal, it shall be repaid to the company at
the time of Conversion."
F. Clause 7.2 of the Conditions is amended by deleting the first sentence
thereof and inserting in its place the following sentence:
"The "Conversion Price" shall be US$3.42 per share."(1)
G. Clause 10.1 of the conditions is amended by (I) deleting the word "or"
at the end of subclause (f) thereof, (ii) deleting the period at the
end of subclause (g) thereof and inserting in its place semi-colon and
(iii) inserting immediately after subclause (g) the following new
subclauses:
"(h) the Company amends, or permits any amendment of or
modification to, the Farmout Agreement without the prior
written consent of he Holder; or
(i) the Company agrees or approves any "Minimum Earned Acreage" as
such term is defined in the Farmout Agreement without the
prior written consent of the Holder."
--------
(1) Closing price of shares as reported on Nasdaq for day prior to signing to be
inserted.
H. The Conditions are amended by inserting a new clause 24 at the end
thereof, which shall read as follows:
"24. Fences Area and Activities
The Holder shall have the right to witness and inspect any drilling
activity conducted in the Fences Area at any time during normal
business hours. The Company shall provide the Holder with monthly
progress reports in form and substance satisfactory to the Holder
detailing all activities undertaken by or on behalf of the Company in
the Fences Area. The Company shall provide the Holder with copies of
the minutes of all operational meetings involving FXEP and POC and/or
CalEnergy Power (Polska) Sp. z o.o.
4. Additional Agreements.
The Holder and the Company further agree as follows:
A. Except as expressly set forth in this Amendment Agreement, all other
provisions of the Note remain unmodified and in full force and effect.
B. The Company shall cause FXEP to assign to RRPV all of its right, title
and interest in and to the proceeds of the Farmout Agreement. Such
assignment shall be in form and substance satisfactory to the Holder
and such assignment shall be executed and effective no later than 20
days after the date of this Agreement; provided, that such assignment
shall not apply to any payments made to FXEP by CalEnergy under the
Farmout Agreement that FXEP immediately transfers to POGC to reimburse
POGC for the costs of drilling xxxxx and/or conducting geological or
geophysical work on behalf of FXEP and CalEnergy. The Holder shall
apply any proceeds received pursuant to such assignment to the
prepayment of the Note.
C. The Company shall pledge, or shall cause FXEP or any of its other
affiliates to pledge, to the Holder any rights to new concession areas
granted to the Company, FXEP or any of their respective affiliates by
POGC.
D. Within 20 days from the date on which the Minimum Earned Acreage in
respect of the First Earning Well (as such terms are defined in the
Farmout Agreement) is agreed by FXEP and CalEnergy and approved by the
Holder, the Holder shall enter into a consent in the form of Exhibit 1
to this Amendment Agreement for purposes of releasing its lien on the
rights and receivables of FXEP arising out of the Relevant Agreements
(as such term is defined in each of the Security Agreements) insofar as
such lien otherwise would attach to the interest in the rights and
receivables to be earned by CalEnergy under the Farmout Agreement in
the approved Minimum Earned acreage for the First Earning Well;
provided, notwithstanding the foregoing, that the Holder shall not be
required to release any portion of its lien pursuant to this paragraph
D unless and until the Company has provided the Holder with evidence
satisfactory to the Holder that all governmental consents, if any,
required in connection with the transfer by FXEP of any of its the
rights and receivables to CalEnergy under the Farmout Agreement have
been obtained.
E. Within 20 days from the date on which (i) the Borrower notifies the
Holder that CalEnergy has exercised its option under the Farmout
Agreement to drill the Second Earning Well and (ii) the Borrower makes
a prepayment of the Note in an amount not less than $1,000,000, and
(iii) the Minimum Earned Acreage in respect of the Second Earning Well
(as such terms are defined in the Farmout Agreement) is agreed by FXEP
and CalEnergy and approved by the Holder, the Holder shall enter into a
consent in the form of Exhibit 2 to this Amendment Agreement for
purposes of releasing its lien on the rights and receivables of FXEP
arising out of the Relevant Agreements insofar as such lien otherwise
would attach to the interest in the rights and receivables to be earned
by CalEnergy under the Farmout Agreement in the approved Minimum Earned
Acreage for the Second Earning Well; provided, notwithstanding the
foregoing, that the Holder shall not be required to release any portion
of its lien pursuant to this paragraph E unless and until the Company
has provided the Holder with evidence satisfactory to the Holder that
all governmental consents, if any, required in connection with the
transfer by FXEP of any of its the rights and receivables to CalEnergy
under the Farmout Agreement have been obtained.
F. The Holder will release all of its liens on the rights and receivables
of FXEP upon payment in full of all amounts outstanding under the Note.
G. The Holder will not be responsible for any delays caused by the courts
in Poland in effecting the release of liens under paragraphs D E and F
above.
H. The Company shall maintain complete and accurate books, records and
accounts relating to all activities relating to the First Earning Well
and the Second Earning Well. Such books records and accounts shall be
separate from the any other books, accounts and records of the Company.
The Holder shall have the right to inspect and audit such books,
records and accounts at any time until all amounts outstanding under
the Note have been paid in full. The cost of any such audit shall be
borne by the Company.
I. The Company shall reimburse the Holder for all out-of-pocket expenses,
including reasonable legal fees, incurred by Holder in connection with
the preparation and execution of this Amendment Agreement and the
transactions contemplated hereby.
IN WITNESS whereof the parties have caused their authorized representatives to
enter into this Amendment Agreement on the day and year first before written.
For and on behalf of
FX Energy, Inc.
/s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: President
For and on behalf of
Rolls-Royce Power Ventures Limited
/s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
EXHIBIT 1
To:
FX Energy Poland sp. z o.o.
Al Xxxx Xxxxx XX 00
00-000 Xxxxxx, Xxxxxx
CalEnergy Power (Polska) sp. z o.o.
xx. Xxxxxxxxxxxx 0X
00-000 Xxxxxx, Xxxxxx
CONSENT TO TRANSFER OF RIGHTS AND RECEIVABLES
Being duly authorised to represent Rolls-Royce Power Ventures Limited
with its registered office in London, United Kingdom (hereinafter, "RRPV"), we
hereby represent as follows:
WHEREAS, on 9 March 2001, RRPV, as the pledgee, entered with FX Energy
Poland sp. z o.o. with its registered office in Warsaw, Poland ("FXEP"), as the
pledgor, into the following registered pledge agreements: the Agreement for
Registered Pledge of Receivables No 1, the Agreement for Registered Pledge of
Receivables No 3 and the Agreement for Registered Pledge of Receivables No 4,
pursuant to which agreements and the decisions of the District Court for the
Capital city of Warsaw, XVIII Economic Division of the Registry of Pledge, dated
13 August 2001, 11 April 2002, 22 May 2002, 5 June 2002 and 14 August 2002,
respective registered pledges were established and registered in the registry of
pledge under the following number 848722, 900604, 908946, 911907, 911909 and
928609;
WHEREAS, on 23 January 2003, RRPV, as the pledgee, and FXEP, as the
pledgor, entered into the Agreement for Registered Pledge of Receivables No 2a
(hereinafter jointly with the registered pledge agreements referred to in the
immediately preceding section, the "Pledge Agreements"), pursuant to which
agreement and the respective decision of the District Court for the Capital City
of Warsaw, XVIII Economic Division of the Registry of Pledge (such decision not
yet issued), a new registered pledge shall be established (hereinafter, jointly
with the registered pledges referred to in the immediately preceding section,
the "Registered Pledges");
WHEREAS, the Registered Pledges encumber the rights and receivables
(including future rights and receivables) of FXEP under the following agreements
entered into by the latter with Polskie Gornictwo Naftowe i Gazownictwo S.A.
with its registered office in Warsaw, Poland (hereinafter, "POGC"); the Natural
Gas Sale and Purchase Agreement, Fences Area Fields, Republic of Poland dated 18
December 2000, the Joint Operating Agreement Covering Areas in the Foresudetic
Monocline dated 12 May 2000 and the Agreement in Co-operation in Exploration of
Hydrocarbons of Foresudetic Monocline dated 11 April 2000 (hereinafter jointly
the "Relevant Agreements" and the rights and receivables of FXEP under the
Relevant Agreements encumbered with the Registered Pledges, the "Rights and
Receivables");
WHEREAS, pursuant to Art. III Sec. 4 of each of the Pledge Agreements,
FXEP may, without the prior written consent of RRPV, neither amend, novate,
terminate, renounce or otherwise change or eliminate the Rights and Receivables
or the Relevant Agreements nor voluntarily sell, transfer, assign or otherwise
dispose of all or any portion of the Rights and Receivables or the Relevant
Agreement;
WHEREAS, FXEP intends to transfer to CalEnergy Power (Polska)
sp. z o.o. with its registered office in Warsaw, Poland (hereinafter,
"CalEnergy"), on the terms and conditions set forth in the Farmout Agreement
dated 9 January 2003 between FXEP and CalEnergy, as subsequently amended
(hereinafter, the "Farmout Agreement"), a portion of the Rights and Receivables
related to the operation of the First Earning Well (as such term is defined in
the Farmout Agreement) located at Zaniemysl location as shown in the map
attached hereto as Attachment No 1 (the "Marked Area");
NOW, THEREFORE, RRPV gives its consent as follows:
1. RRPV consents to the transfer of the portion of the Rights and
Receivables related to the operation of the First Earning Well as
described above, provided, however, that the transfer of the portion of
the Rights and Receivables related to the operation of the First
Earning Well shall take place not earlier than [5] (say: [Five]) days
from the date hereof; and
2. RRPV consents to the designation of the Marked Area (and only the
Marked Area) as the Minimum Earned Acreage (as such term is defined in
the Farmout Agreement) in respect of the First Earning Well.
A transfer of any portion of the Rights and Receivables other than set
forth above as well as a transfer of the portion of the Rights and Receivables
related to the operation of the First Earning Well, however, made in breach of
the respective reservations set forth under Item 1 above, shall be considered to
be made without the consent of RRPV and, therefore, null and void pursuant to
provisions of Art. 14 of the Law on Registered Pledge and Registry of Pledges
dated 6 December 1996 (Journal of Laws of the Republic of Poland No 149, Item
703, as amended).
RRPV hereby waives any registered pledge that may encumber the rights
and receivables acquired by CalEnergy from FXEP in result of the transfers of
such rights and receivables as contemplated herein and consented to by RRPV in
accordance herewith.
London, this ___ day of March, 2003.
On behalf of Rolls-Royce Power Ventures Limited
EXHIBIT 2
To:
FX Energy Poland sp. z o.o.
Al Xxxx Xxxxx XX 00
00-000 Xxxxxx, Xxxxxx
CalEnergy Power (Polska) sp. z o.o.
xx. Xxxxxxxxxxxx 0X
00-000 Xxxxxx, Xxxxxx
CONSENT TO TRANSFER OF RIGHTS AND RECEIVABLES
Being duly authorised to represent Rolls-Royce Power Ventures Limited
with its registered office in London, United Kingdom (hereinafter, "RRPV"), we
hereby represent as follows:
WHEREAS, on 9 March 2001, RRPV, as the pledgee, entered with FX Energy
Poland sp. z o.o. with its registered office in Warsaw, Poland ("FXEP"), as the
pledgor, into the following registered pledge agreements: the Agreement for
Registered Pledge of Receivables No 1, the Agreement for Registered Pledge of
Receivables No 3 and the Agreement for Registered Pledge of Receivables No 4,
pursuant to which agreements and the decisions of the District Court for the
Capital city of Warsaw, XVIII Economic Division of the Registry of Pledge, dated
13 August 2001, 11 April 2002, 22 May 2002, 5 June 2002 and 14 August 2002,
respective registered pledges were established and registered in the registry of
pledge under the following number 848722, 900604, 908946, 911907, 911909 and
928609;
WHEREAS, on 23 January 2003, RRPV, as the pledgee, and FXEP, as the
pledgor, entered into the Agreement for Registered Pledge of Receivables No 2a
(hereinafter jointly with the registered pledge agreements referred to in the
immediately preceding section, the "Pledge Agreements"), pursuant to which
agreement and the respective decision of the District Court for the Capital City
of Warsaw, XVIII Economic Division of the Registry of Pledge (such decision not
yet issued), a new registered pledge shall be established (hereinafter, jointly
with the registered pledges referred to in the immediately preceding section,
the "Registered Pledges");
WHEREAS, the Registered Pledges encumber the rights and receivables
(including future rights and receivables) of FXEP under the following agreements
entered into by the latter with Polskie Gornictwo Naftowe i Gazownictwo S.A.
with its registered office in Warsaw, Poland (hereinafter, "POGC"); the Natural
Gas Sale and Purchase Agreement, Fences Area Fields, Republic of Poland dated 18
December 2000, the Joint Operating Agreement Covering Areas in the Foresudetic
Monocline dated 12 May 2000 and the Agreement in Co-operation in Exploration of
Hydrocarbons of Foresudetic Monocline dated 11 April 2000 (hereinafter jointly
the "Relevant Agreements" and the rights and receivables of FXEP under the
Relevant Agreements encumbered with the Registered Pledges, the "Rights and
Receivables");
WHEREAS, pursuant to Art. III Sec. 4 of each of the Pledge Agreements,
FXEP may, without the prior written consent of RRPV, neither amend, novate,
terminate, renounce or otherwise change or eliminate the Rights and Receivables
or the Relevant Agreements nor voluntarily sell, transfer, assign or otherwise
dispose of all or any portion of the Rights and Receivables or the Relevant
Agreement;
WHEREAS, FXEP intends to transfer to CalEnergy Power (Polska) sp. z
o.o. with its registered office in Warsaw, Poland (hereinafter, "CalEnergy"), on
the terms and conditions set forth in the Farmout Agreement dated 9 January 2003
between FXEP and CalEnergy, as subsequently amended (hereinafter, the "Farmout
Agreement"), a portion of the Rights and Receivables related to the operation of
the Second Earning Well (as such term is defined in the Farmout Agreement)
located at [________] location as shown in the map attached hereto as Attachment
No 1 (the "Marked Area");
NOW, THEREFORE, RRPV gives its consent as follows:
1. RRPV consents to the transfer of the portion of the Rights and
Receivables related to the operation of the Second Earning Well as
described above, provided, however, that the transfer of the portion of
the Rights and Receivables related to the operation of the Second
Earning Well shall take place not earlier than [5] (say: [Five]) days
from the date hereof; and
2. RRPV consents to the designation of the Marked Area (and only the
Marked Area) as the Minimum Earned Acreage (as such term is defined in
the Farmout Agreement) in respect of the Second Earning Well.
A transfer of any portion of the Rights and Receivables other than set
forth above as well as a transfer of the portion of the Rights and Receivables
related to the operation of the Second Earning Well, however, made in breach of
the respective reservations set forth under Item 1 above, shall be considered to
be made without the consent of RRPV and, therefore, null and void pursuant to
provisions of Art. 14 of the Law on Registered Pledge and Registry of Pledges
dated 6 December 1996 (Journal of Laws of the Republic of Poland No 149, Item
703, as amended).
RRPV hereby waives any registered pledge that may encumber the rights
and receivables acquired by CalEnergy from FXEP in result of the transfers of
such rights and receivables as contemplated herein and consented to by RRPV in
accordance herewith.
London, this ___ day of [_____________], 2003.
On behalf of Rolls-Royce Power Ventures Limited
