Exhibit 10.17
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment") is entered into as of November
4, 2005, by and between New Century 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") and (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 provides NCEC with certain financial accommodations.
In connection with the June 2005 SPA, 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).
NCEC has requested that Laurus amend the Registration Rights Agreement, and
Laurus is willing to do so 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. Subject to satisfaction of
-------------------------------------------
the conditions precedent set forth in Section 2 below, the following defined
term set forth in Section 1 of the Registration Rights Agreement is hereby
amended in its 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 December 12, 2005 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.
2. Conditions of Effectiveness. This Amendment shall become effective upon
---------------------------
satisfaction of the following conditions precedent: Laurus shall have received
(i) a copy of this Amendment executed by NCEC and consented and agreed to by
Century Resources, Inc., a Delaware corporation ("Century Resources" together
with NCEC, each a "Company" and collectively, the "Companies"), and (ii) all
such other certificates, instruments, documents, agreements and opinions of
counsel as may be required by Laurus or its counsel, each of which shall be in
form and substance satisfactory to Laurus and its counsel.
3. Representations and Warranties. Each Company hereby represents and
--------------------------------
warrants 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, NCEC hereby reaffirms
all covenants, representations and warranties made in each Purchase
Agreement 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).
4. Effect on the Registration Rights Agreement.
-------------------------------------------
(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 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 other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
5. Governing Law. This Amendment shall be binding upon and inure to the
--------------
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.
6. Headings. Section headings in this Amendment are included herein for
--------
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. Counterparts; Facsimile. This Amendment may be executed by the parties
------------------------
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
-------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
LAURUS MASTER FUND, LTD.
By:
-------------------------
Name:
Title:
CONSENTED AND AGREED TO:
CENTURY RESOURCES, INC.
By:/s/ Xxxxxx X. XxXxxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
