Exhibit 10.1
FIFTH AMENDMENT AGREEMENT
THIS FIFTH AMENDMENT AGREEMENT (this "Amendment"), entered into on
June 20, 2006, to be effective as of June 15, 2006, by and between
NewCentury Energy Corp., a Colorado corporation ("NCEC"), and Laurus Master
Fund, Ltd. ("Laurus").
BACKGROUND
NCEC and Laurus are parties to (a) a Securities Purchase Agreement dated as
of June 30, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "June 2005 SPA"); (b) a Securities Purchase Agreement dated as
of September 19, 2005 (as amended, restated, supplemented or otherwise modified
from time to time, the "September 2005 SPA" together with the June 2005 SPA,
each a "Purchase Agreement" and collectively, the "Purchase Agreements")
pursuant to which Laurus provided NCEC with certain financial accommodations;
and (c) NCEC and Laurus are parties to a Registration Rights Agreement dated as
of June 30, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "Registration Rights Agreement") pursuant to which NCEC, among
other things, has agreed to file a registration statement covering the
Registrable Securities (as therein defined).
In connection with the (a) June 2005 SPA, NCEC executed a Secured
Convertible Term Note dated as of June 30, 2005 in favor of Laurus in the
original principal amount of $15,000,000 (as amended, restated, supplemented or
otherwise modified from time to time) and (b) the September 2005 SPA, NCEC
executed a Secured Term Note dated as of September 19, 2005 in favor of Laurus
in the original principal amount of $9,500,000 (as amended, restated,
supplemented or otherwise modified from time to time).
In April 2006, NCEC's wholly owned subsidiary, Gulf Coast Oil Corporation,
a Delaware corporation ("Gulf Coast"), entered into a Securities Purchase
Agreement with Laurus (the "Gulf Coast Securities Purchase Agreement"), whereby
Gulf Coast sold a $40,000,000 Secured Term Note to Laurus (the "Gulf Coast
Note") and a Common Stock Purchase Warrant (the "Gulf Coast Warrant"), and
entered into various other Related Agreements, as defined in the Gulf Coast
Securities Purchase Agreement (the "Gulf Coast Related Agreements"). NCEC
guaranteed all of Gulf Coasts obligations and liabilities to Laurus pursuant to
a Guaranty (as amended, restated, supplemented or otherwise modified from time
to time, the "NCEC Guaranty").
NCEC and Laurus have agreed to amend the Registration Rights Agreement on
the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of the agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments to Registration Rights Agreement. The following defined terms
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set forth in Section 1 of the Registration Rights Agreement are hereby amended
in their entirety to provide as follows:
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later
than September 15, 2006 and (ii) with respect to each additional
Registration Statement required to be filed hereunder, a date no later
than one hundred twenty (120) days following the applicable Filing
Date.
"Filing Date" means, with respect to (i) the indebtedness
evidenced by the Note, a date no later than thirty (30) days following
the date hereof, (ii) the shares of Common Stock issuable upon
exercise of the Warrant, a date no later than thirty (30) days after
the date hereof, (iii) the shares of Common Stock issuable upon
exercise of the June Option, a date no later than thirty (30) days
after the date hereof, (iv) the shares of Common Stock issuable upon
exercise of the December Option, a date no later than July 17, 2006,
and (v) the shares of Common Stock issuable to the Holder as a result
of adjustments to the Fixed Conversion Price made pursuant to Section
3.6 of the Note, Section 4 of the Warrant, Section 4 of the Options or
otherwise, thirty (30) days after the occurrence of such event or the
date of the adjustment of the Fixed Conversion Price.
2. Representations and Warranties. NCEC and Century Resources, Inc. (each a
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"Company" and collectively the "Companies") hereby represent and warrant as
follows:
(a) This Amendment, the Purchase Agreements and the Registration
Rights Agreement, as amended hereby, constitute legal, valid and binding
obligations of the Companies party thereto and are enforceable against such
Companies in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Company hereby
reaffirms all covenants, representations and warranties made in each
Purchase Agreement, the Related Agreements (as therein defined), the Gulf
Coast Related Agreements and the Registration Rights Agreement, as
applicable, to the extent the same are not amended hereby and agree that
all such covenants, representations and warranties shall be deemed to have
been remade as of the effective date of this Amendment.
(c) No event of default has occurred and is continuing or would exist
under any document, instrument or agreement by and between any Company and
Laurus after giving effect to this Amendment.
(d) No Company has any defense, counterclaim or offset with respect to
any Purchase Agreement, the Registration Rights Agreement or any other
Related Agreement (as defined in each Purchase Agreement).
3. Effect on the Registration Rights Agreement.
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(a) Upon the effectiveness of Section 1 hereof, each reference in the
Registration Rights Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the
Registration Rights Agreement, as applicable, as amended hereby.
(b) Except as specifically amended herein, each Purchase Agreement,
the Registration Rights Agreement, the other Related Agreements (as defined
in each Purchase Agreement) and the Gulf Coast Related Agreements and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Laurus, nor
constitute a waiver of any provision of any Purchase Agreement, the
Registration Rights Agreement, any Related Agreement (as defined in each
Purchase Agreement) or any Gulf Coast Related Agreements or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
4. Governing Law. This Amendment shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
5. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
6. Counterparts; Facsimile. This Amendment may be executed by the parties
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hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
[Signature Pages to Follow]
IN WITNESS WHEREOF, this Amendment Agreement has been duly executed as of
the day and year first written above.
NEW CENTURY ENERGY CORP.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx Grin
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Name: Xxxxxx Grin
Title: Director
CONSENTED AND AGREED TO:
CENTURY RESOURCES, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
GULF COAST OIL CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
