ENSV ENSERVCO Corporation

Exhibit 10.1

THIS CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR SUCH LAWS COVERING THE TRANSFER OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION. THIS NOTE IS UNSECURED.

ENSERVCO CORPORATION

CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED, Enservco Corporation, a Delaware corporation (the “Company”), promises to pay to the order of Cross River Partners, LP, or its registered assigns (the “Holder”), pursuant to the terms set forth in this Convertible Promissory Note (this “Note”), the principal amount of Seven-Hundred-Fifty-Thousand Dollars ($750,000) (the “Principal Amount”), plus interest thereon.

1.    Interest. Interest on the Principal Amount of this Note shall accrue from the Issuance Date at a rate equal to eight percent (8%) per annum until this Note is paid in full or otherwise converted pursuant to Section 4 below. Interest shall be calculated on the basis of a three hundred sixty-five (365) day year, based on the actual number of days elapsed.

2.    Maturity Date. Subject to the conversion of this Note pursuant to Section 4 below, the Principal Amount of this Note, together with all accrued but unpaid interest thereon, shall be due and payable in full on the one-year anniversary of the Issuance Date (the “Maturity Date”).

3.    Payment; Prepayment. Notwithstanding the foregoing, prior to the Maturity Date, the Company may prepay all or any portion of the outstanding Principal Amount or accrued but unpaid interest on this Note without premium or penalty. All payments received by the Holder hereunder will be applied first to interest and then to principal.

4.    Note Exchange.

4.1.    Note Exchange. If the Company closes on a convertible debt offering substantially on the terms attached hereto as Annex A (the “Rapid Hot Financing”), then the principal balance of this Note, together with all accrued but unpaid interest thereon, shall be exchanged on a dollar for dollar basis into such note as offered in the Rapid Hot Financing. To the extent the Rapid Hot Financing shall not have closed by September 30, 2023, the Holder shall have the option to have this Note secured by the Company’s real property located in Killdeer, North Dakota.

4.2.    Mechanics and Effects of Exchange. Upon any exchange of this Note as provided in Section 4.1, the Holder shall surrender this Note to the Company. The Company shall, as soon as practicable thereafter, issue and deliver the note associated with the Rapid Hot Financing to the Holder at the Holder’s address or if no such address appears or is given, at such principal office of the Company.

5.    Events of Default. Upon the occurrence and during the continuance of an Event of Default (as defined below), the Holder shall be entitled, by written notice to the Company, to declare this Note to be, and upon such declaration this Note shall be and become, immediately due and payable, in addition to any other rights or remedies the Holder may have under applicable law or the provisions of this Note or any related agreement between the Holder and the Company. The occurrence of any of the following events shall constitute an “Event of Default”:

(a)         The Company fails to pay principal or accrued interest on this Note when due at the Maturity Date, unless this Note (or a portion thereof) is exchanged pursuant to Section 4 above;

(b)         Any breach by the Company of any representation, warranty, or covenant contained in this Note , if such default has not been cured by the Company within thirty (30) days following the Company’s receipt of written notice from the Holder of such default;

(c)         Any liquidation or dissolution of the Company, whether voluntary or involuntary;

(d)         The institution by the Company of proceedings to be adjudicated as bankrupt or insolvent, or the consent by the Company to institution of bankruptcy or insolvency proceedings against the Company (or of any substantial part of its property) under any federal or state law, or the consent by the Company to or acquiescence in the filing of any petition relating thereto, or the appointment of a receiver, liquidator, assignee, trustee or other similar official of the Company, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as such debts become due; or

(e)         Commencement of proceedings against the Company seeking any bankruptcy, insolvency, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, if such proceedings have not been dismissed or stayed within ninety (90) days of commencement thereof, or the setting aside of any such stay of any such proceedings, or the appointment without the consent or acquiescence of the equity holders of the Company of any trustee, receiver, or liquidator of the Company or of all or any substantial portion of the properties of the Company, if such appointment has not been vacated within ninety (90) days thereof.

6.    Waivers; Fees. The Company hereby waives presentment, demand for payment, notice of non-performance, protest, notice of protest and notice of dishonor with respect to this Note. Other than pursuant to a writing by the Holder, no failure to convert any right of the Holder with respect to this Note, nor any delay in or waiver of the convert thereof, shall impair any such right or be deemed to be a waiver thereof. If the Holder is required to commence legal proceedings or incur any other cost to collect amounts due and payable hereunder or to enforce its rights under this Note, the Company shall be liable to pay or reimburse the Holder for all reasonable costs and expenses actually incurred in connection with the collection of such amounts and any such legal proceedings, including reasonable attorneys’ fees actually incurred.

7.    Miscellaneous.

7.1.    Amendment; Waiver. The amendment or waiver of any term of this Note, the resolution of any controversy or claim arising out of or relating to this Note must be in a writing signed by the parties hereto.

7.2.    No Assignment by Company. The Company may not assign its rights or delegate any obligations hereunder without the prior written consent of the Holder.

7.3.    Change of Control. Any transaction which results in a change of control of the Company or a substantial portion of any of its assets will not accelerate payment of any portion of the outstanding Principal Amount or accrued but unpaid interest.

7.4.    Successors and Assigns. Subject to the exceptions specifically set forth in this Note, the terms and conditions of this Note shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties.

7.5.    Loss or Mutilation of Note. Upon receipt by the Company of evidence satisfactory to the Company of the loss, theft, destruction, or mutilation of this Note, together with indemnity reasonably satisfactory to the Company (in the case of loss, theft, or destruction), or the surrender and cancellation of this Note (in the case of mutilation), the Company shall execute and deliver to the Holder a new Note of like tenor and denomination as this Note.

7.6.    Note Holder, Not Shareholder. This Note does not confer upon the Holder any right to vote or to consent to or to receive notice as a holder of shares of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a member of the Company, prior to the conversion hereof.

7.7.    Officers and Directors Not Liable. In no event will any officer, manager, or director of the Company be liable for any amounts due and payable pursuant to this Note.

7.8.    Governing Law. The terms of this Note shall be construed in accordance with the laws of the State of Delaware, without regard to its conflicts-of-law principles.

7.9.    Notices. All notices, other communication, or payment required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery to the address provided by the Holder or to such other address as either party may designate in writing to the other.

7.10.    Attorneys’ Fees. If any principal or interest represented by this Note or any part thereof is collected in bankruptcy, receivership, or other judicial proceedings, or if this Note is placed in the hands of attorneys for collection after default, the Company agrees to pay, in addition to the principal and interest payable hereunder, reasonable attorneys’ fees and costs incurred by the Holder in connection therewith.

7.11.    Severability. If any term or provision of this Note is held to be invalid, illegal, or unenforceable under applicable law, such term(s) or provision(s) shall be excluded from this Note, and the balance of this Note shall be interpreted as if such term(s) or provision(s) were so excluded and shall be enforceable in accordance with its terms.

7.12.    Counterparts. This Note may be executed by the Company (and accepted and acknowledged by the Holder) in two or more counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has caused this Note to be effective as of the date first set forth above.

Accepted and Acknowledged:

HOLDER:

ANNEX A

RAPID HOT FINANCING TERM SHEET

ENSERVCO CORPORATION

SUMMARY OF TERMS

CONVERTIBLE NOTE FINANCING

August 31, 2023

This “Summary of Terms” summarizes the principal terms of a convertible note financing of ENSERVCO Corporation, a Delaware corporation (the “Company”). This Summary of Terms is for discussion purposes only; there is no obligation on the part of any negotiating party until a definitive agreement is signed by all parties. The transactions contemplated by this Summary of Terms are subject to closing conditions including the satisfactory completion of due diligence and the execution of definitive financing documents by each investor:

Exhibit 10.2

THIS CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR SUCH LAWS COVERING THE TRANSFER OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION. THIS NOTE IS UNSECURED.

ENSERVCO CORPORATION

CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED, Enservco Corporation, a Delaware corporation (the “Company”), promises to pay to the order of Kevin Chesser, or his registered assigns (the “Holder”), pursuant to the terms set forth in this Convertible Promissory Note (this “Note”), the principal amount of Fifty Thousand Dollars ($50,000) (the “Principal Amount”), plus interest thereon.

1.    Interest. Interest on the Principal Amount of this Note shall accrue from the Issuance Date at a rate equal to eight percent (8%) per annum until this Note is paid in full or otherwise converted pursuant to Section 4 below. Interest shall be calculated on the basis of a three hundred sixty-five (365) day year, based on the actual number of days elapsed.

2.    Maturity Date. Subject to the conversion of this Note pursuant to Section 4 below, the Principal Amount of this Note, together with all accrued but unpaid interest thereon, shall be due and payable in full on the one-year anniversary of the Issuance Date (the “Maturity Date”).

3.    Payment; Prepayment. Notwithstanding the foregoing, prior to the Maturity Date, the Company may prepay all or any portion of the outstanding Principal Amount or accrued but unpaid interest on this Note without premium or penalty. All payments received by the Holder hereunder will be applied first to interest and then to principal.

4.    Note Exchange.

4.1.    Note Exchange. If the Company closes on a convertible debt offering substantially on the terms attached hereto as Annex A (the “Rapid Hot Financing”), then the principal balance of this Note, together with all accrued but unpaid interest thereon, shall be exchanged on a dollar for dollar basis into such note as offered in the Rapid Hot Financing. To the extent the Rapid Hot Financing shall not have closed by September 30, 2023, the Holder shall have the option to have this Note secured by the Company’s real property located in Killdeer, North Dakota.

4.2.    Mechanics and Effects of Exchange. Upon any exchange of this Note as provided in Section 4.1, the Holder shall surrender this Note to the Company. The Company shall, as soon as practicable thereafter, issue and deliver the note associated with the Rapid Hot Financing to the Holder at the Holder’s address or if no such address appears or is given, at such principal office of the Company.

5.    Events of Default. Upon the occurrence and during the continuance of an Event of Default (as defined below), the Holder shall be entitled, by written notice to the Company, to declare this Note to be, and upon such declaration this Note shall be and become, immediately due and payable, in addition to any other rights or remedies the Holder may have under applicable law or the provisions of this Note or any related agreement between the Holder and the Company. The occurrence of any of the following events shall constitute an “Event of Default”:

(a)         The Company fails to pay principal or accrued interest on this Note when due at the Maturity Date, unless this Note (or a portion thereof) is exchanged pursuant to Section 4 above;

(b)         Any breach by the Company of any representation, warranty, or covenant contained in this Note , if such default has not been cured by the Company within thirty (30) days following the Company’s receipt of written notice from the Holder of such default;

(c)         Any liquidation or dissolution of the Company, whether voluntary or involuntary;

(d)         The institution by the Company of proceedings to be adjudicated as bankrupt or insolvent, or the consent by the Company to institution of bankruptcy or insolvency proceedings against the Company (or of any substantial part of its property) under any federal or state law, or the consent by the Company to or acquiescence in the filing of any petition relating thereto, or the appointment of a receiver, liquidator, assignee, trustee or other similar official of the Company, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as such debts become due; or

(e)         Commencement of proceedings against the Company seeking any bankruptcy, insolvency, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, if such proceedings have not been dismissed or stayed within ninety (90) days of commencement thereof, or the setting aside of any such stay of any such proceedings, or the appointment without the consent or acquiescence of the equity holders of the Company of any trustee, receiver, or liquidator of the Company or of all or any substantial portion of the properties of the Company, if such appointment has not been vacated within ninety (90) days thereof.

6.    Waivers; Fees. The Company hereby waives presentment, demand for payment, notice of non-performance, protest, notice of protest and notice of dishonor with respect to this Note. Other than pursuant to a writing by the Holder, no failure to convert any right of the Holder with respect to this Note, nor any delay in or waiver of the convert thereof, shall impair any such right or be deemed to be a waiver thereof. If the Holder is required to commence legal proceedings or incur any other cost to collect amounts due and payable hereunder or to enforce his rights under this Note, the Company shall be liable to pay or reimburse the Holder for all reasonable costs and expenses actually incurred in connection with the collection of such amounts and any such legal proceedings, including reasonable attorneys’ fees actually incurred.

7.    Miscellaneous.

7.1.    Amendment; Waiver. The amendment or waiver of any term of this Note, the resolution of any controversy or claim arising out of or relating to this Note must be in a writing signed by the parties hereto.

7.2.    No Assignment by Company. The Company may not assign its rights or delegate any obligations hereunder without the prior written consent of the Holder.

7.3.    Change of Control. Any transaction which results in a change of control of the Company or a substantial portion of any of its assets will not accelerate payment of any portion of the outstanding Principal Amount or accrued but unpaid interest.

7.4.    Successors and Assigns. Subject to the exceptions specifically set forth in this Note, the terms and conditions of this Note shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties.

7.5.    Loss or Mutilation of Note. Upon receipt by the Company of evidence satisfactory to the Company of the loss, theft, destruction, or mutilation of this Note, together with indemnity reasonably satisfactory to the Company (in the case of loss, theft, or destruction), or the surrender and cancellation of this Note (in the case of mutilation), the Company shall execute and deliver to the Holder a new Note of like tenor and denomination as this Note.

7.6.    Note Holder, Not Shareholder. This Note does not confer upon the Holder any right to vote or to consent to or to receive notice as a holder of shares of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a member of the Company, prior to the conversion hereof.

7.7.    Officers and Directors Not Liable. In no event will any officer, manager, or director of the Company be liable for any amounts due and payable pursuant to this Note.

7.8.    Governing Law. The terms of this Note shall be construed in accordance with the laws of the State of Delaware, without regard to its conflicts-of-law principles.

7.9.    Notices. All notices, other communication, or payment required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery to the address provided by the Holder or to such other address as either party may designate in writing to the other.

7.10.    Attorneys’ Fees. If any principal or interest represented by this Note or any part thereof is collected in bankruptcy, receivership, or other judicial proceedings, or if this Note is placed in the hands of attorneys for collection after default, the Company agrees to pay, in addition to the principal and interest payable hereunder, reasonable attorneys’ fees and costs incurred by the Holder in connection therewith.

7.11.    Severability. If any term or provision of this Note is held to be invalid, illegal, or unenforceable under applicable law, such term(s) or provision(s) shall be excluded from this Note, and the balance of this Note shall be interpreted as if such term(s) or provision(s) were so excluded and shall be enforceable in accordance with its terms.

7.12.    Counterparts. This Note may be executed by the Company (and accepted and acknowledged by the Holder) in two or more counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has caused this Note to be effective as of the date first set forth above.

Accepted and Acknowledged:

HOLDER:

ANNEX A

RAPID HOT FINANCING TERM SHEET

ENSERVCO CORPORATION

SUMMARY OF TERMS

CONVERTIBLE NOTE FINANCING

August 31, 2023

This “Summary of Terms” summarizes the principal terms of a convertible note financing of ENSERVCO Corporation, a Delaware corporation (the “Company”). This Summary of Terms is for discussion purposes only; there is no obligation on the part of any negotiating party until a definitive agreement is signed by all parties. The transactions contemplated by this Summary of Terms are subject to closing conditions including the satisfactory completion of due diligence and the execution of definitive financing documents by each investor:

ENSERVCO (AMEX:ENSV)
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