AMENDMENT AND WAIVER AGREEMENT
This
Amendment and Waiver Agreement (this “Agreement”), is made
and entered into as of December 31, 2007, by and between Analytical Surveys,
Inc., a Colorado corporation (the “Company”) and the
investors signatory hereto (each, a “Holder”, and
collectively, the “Holders”).
WHEREAS,
the Company and the Holders are parties to that certain Securities Purchase
Agreement (the “Purchase Agreement”),
dated November 24, 2006, pursuant to which the Company issued to the Holders
its
(i) 13% Secured Convertible Debentures due, subject to the terms therein,
November 24, 2007 (the “Debentures”) and (ii)
Common Stock Purchase Warrants dated November 24, 2007, subject to the terms
therein (the “Warrants”) with
an
aggregate principal amount among all Holders of $1,650,000, of which $1,643,050
in principal currently remains outstanding;
WHEREAS,
“Events of Default” under the Debentures have occurred pursuant to Sections
8(a)(i)(A) as a result of the Company’s failure to pay the principal amount of
the Debentures on November 29, 2007 (the “Existing
Default”);
WHEREAS,
the parties have reached an agreement with respect to the modification and
amendment of certain terms of the Debentures relating to the waiver of the
Existing Default, which agreement is reflected in this Agreement;
WHEREAS,
capitalized terms used herein, but not otherwise defined, shall have the
meanings ascribed to such terms as set forth in the Purchase
Agreement.
NOW,
THEREFORE, in consideration of the
terms and conditions contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties, intending to be legally bound hereby, agree as
follows:
1. Incorporation
of Preliminary
Statements and Acknowledgement. The preliminary statements set
forth above by this reference hereto are hereby incorporated into this
Agreement. Without limiting the foregoing, the Company hereby
acknowledges that the Existing Default has occurred and are continuing under
the
terms of the Debentures and, notwithstanding anything to the contrary in
this
Agreement, the Purchase Agreement, the Debentures or any of the other
Transaction Documents, the Company acknowledges and agrees that upon a breach
of
this Agreement by the Company, such breach shall be an Event of Default under
the Debentures and each Holder has the right, upon written notice, to
immediately enforce payment of all of the Obligations and, in connection
therewith, without further notice, to enforce its liens on, and security
interests in, the Collateral (as defined under the Security
Agreement).
2. Waiver
of Existing
Default. The Holder hereby agrees, solely in connection with
the existence of the Existing Default, to waive until the Maturity Date (as
defined in the Debentures and amended hereunder) its right to enforce payment
of
the Debentures and to deem such Existing Default to have not
occurred. Notwithstanding anything herein to the contrary, this
waiver is limited only to the Existing Default and any other past or future
Events of Default, including a breach of this Agreement, shall not be deemed
waived hereunder (except in cases where such Events of Default have been
specifically waived in writing by the Holders.
3. Amendment
to
Debentures.
A. The
definition of “Maturity Date” under the Debentures is hereby amended such that
the entire principal amount of the Debentures is due and payable on March
31,
2008, or such earlier date as the Debentures are required or permitted to
be
repaid as provided thereunder.
B.
In consideration of the extension of the Maturity Date set forth
above:
(i)
Section 4(b) of the Debentures is hereby amended in its entirety and replaced
with the following:
“b)
Conversion
Price. The conversion price in effect on any Conversion Date
shall be equal to $0.10 subject to adjustment herein (the “Conversion Price”).”;
and
(ii)
Section 2(b) of the Warrants is hereby amended in its entirety and replaced
with
the following:
“b)
Exercise
Price. The exercise price per share of the Common Stock under
this Warrant shall be equal to $0.10 subject to adjustment herein (the “Exercise
Price”).”
4. RELEASE. THE
COMPANY (FOR ITSELF AND ITS AFFILIATES) HEREBY UNCONDITIONALLY RELEASES AND
FOREVER DISCHARGES EACH HOLDER AND ITS RESPECTIVE SUCCESSORS, ASSIGNS, AGENTS,
DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, ACCOUNTANTS, CONSULTANTS,
CONTRACTORS, ADVISORS AND ATTORNEYS (COLLECTIVELY, THE “BENEFITED PARTIES”)
FROM ALL CLAIMS (AS DEFINED BELOW) FROM THE BEGINNING OF TIME THROUGH THE
DATE
HEREOF. AS USED IN THIS AGREEMENT, THE TERM “CLAIMS” MEANS ANY AND
ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTIONS, COSTS, EXPENSES
AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, AT LAW OR IN EQUITY, WHICH THE
COMPANY, OR ANY OF ITS AGENTS, EMPLOYEES OR AFFILIATES, MAY HAVE AS OF THE
DATE
HEREOF, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAW OR OTHERWISE IN CONNECTION WITH ANY OF THE TRANSACTION
DOCUMENTS, INCLUDING ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE MAXIMUM RATE ON INTEREST
CHARGEABLE UNDER APPLICABLE LAW AND ANY LOSS, COST OR DAMAGE, OF ANY KIND
OR
CHARACTER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR IN ANY WAY RESULTING
FROM THE ACTIONS OR OMISSIONS OF THE BENEFITED PARTIES, INCLUDING ANY BREACH
OF
FIDUCIARY DUTY, BREACH OF ANY DUTY OF GOOD FAITH OR FAIR DEALING, UNDUE
INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE, BAD
FAITH, MALPRACTICE, VIOLATIONS OF THE RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT, INTENTIONAL OR NEGLIGENT INFLICTION OF MENTAL DISTRESS,
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS, TORTIOUS INTERFERENCE WITH
CORPORATE GOVERNANCE OR PROSPECTIVE BUSINESS ADVANTAGE, BREACH OF CONTRACT,
DECEPTIVE TRADE PRACTICES, LIBEL, SLANDER, CONSPIRACY OR ANY CLAIM FOR
WRONGFULLY ACCELERATING ANY OBLIGATIONS OR WRONGFULLY ATTEMPTING TO FORECLOSE
ON
ANY COLLATERAL. THE COMPANY (FOR ITSELF AND ITS AFFILIATES) AGREES
THAT NONE OF THE BENEFITED PARTIES HAS FIDUCIARY OR SIMILAR OBLIGATIONS TO
THE
COMPANY OR ANY AGENTS, EMPLOYEES OR AFFILIATES OF THE COMPANY AND THAT THEIR
RELATIONSHIPS ARE STRICTLY THAT OF CREDITOR AND DEBTOR. THIS RELEASE
IS ACCEPTED BY HOLDERS PURSUANT TO THIS AGREEMENT AND SHALL NOT BE CONSTRUED
AS
AN ADMISSION OF LIABILITY BY HOLDERS OR ANY OTHER BENEFITED PARTY.
THE
COMPANY (FOR ITSELF AND ITS AFFILIATES) ACKNOWLEDGES THAT THE FOREGOING
PROVISIONS ARE INTENDED TO, AND THE TRANSACTION DOCUMENTS CONTAIN PROVISIONS
WHICH, RELEASE HOLDERS FROM LIABILITY AND/OR INDEMNIFY AND HOLD HARMLESS
HOLDERS
FOR, AMONG OTHER THINGS, THE ORDINARY NEGLIGENCE OF HOLDERS. THE
COMPANY (FOR ITSELF AND ITS AFFILIATES) AGREES THAT THE RELEASE AND/OR INDEMNITY
PROVISIONS CONTAINED IN THESE DOCUMENTS ARE CAPTIONED TO CLEARLY IDENTIFY
THE
RELEASE AND/OR INDEMNITY PROVISIONS AND, THEREFORE, ARE SO CONSPICUOUS THAT
THE
COMPANY AND ITS AFFILIATES HAVE FAIR NOTICE OF THE EXISTENCE AND CONTENTS
OF
SUCH PROVISIONS.
5. Representations
and
Warranties of the Company. The Company hereby makes to the
Holders the following representations and warranties:
i. Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
this
Agreement and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby
have
been duly authorized by all necessary action on the part of the Company and
no
further action is required by the Company, its board of directors or its
stockholders in connection therewith. This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms
hereof
will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions
may be
limited by applicable law.
ii. No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time or both would become a default) under, result in the creation of any
Lien
(except as contemplated by the Security Documents) upon any of the properties
or
assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material agreement, credit facility, debt
or
other material instrument (evidencing a Company or Subsidiary debt or otherwise)
or other material understanding to which the Company or any Subsidiary is
a
party or by which any property or asset of the Company or any Subsidiary
is
bound or affected, or (iii) conflict with or result in a violation of any
law,
rule, regulation, order, judgment, injunction, decree or other restriction
of
any court or governmental authority to which the Company or a Subsidiary
is
subject (including federal and state securities laws and regulations), or
by
which any property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as could not have
or
reasonably be expected to result in a Material Adverse Effect.
iii. Equal
Consideration. Except as set forth in this Agreement, no
consideration has been offered or paid to any person to amend or consent
to a
waiver, modification, forbearance or otherwise of any provision of any of
the
Transaction Documents.
6. Representations
and
Warranties of the Holders. Each Holder, severally and not
jointly, represents and warrants as of the date hereof to the Company as
follows: (a) the execution, delivery and performance by such Holder of the
transactions contemplated by this Agreement have been duly authorized by
all
necessary corporate or similar action on the part of such Holder and (b)
this
Agreement has been duly executed by such Holder, and when delivered by such
Holder in accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Holder, enforceable against it in accordance
with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
7. Effect
on Transaction
Documents. Subject to
the waivers
and amendments provided herein, all of the terms and conditions of the
Transaction Documents shall continue in full force and effect after the
execution of this Agreement and shall not be in any way changed, modified
or
superseded by the terms set forth herein, including but not limited to, any
other obligations the Company may have to the Holders under the Transaction
Documents. Except as expressly set forth herein, this Amendment and
Waiver Agreement shall not be deemed to be a waiver, amendment or modification
of any provisions of the Transaction Documents or of any right, power or
remedy
of the Holders, or constitute a waiver of any provision of the Transaction
Documents (except to the extent herein set forth), or any other document,
instrument and/or agreement executed or delivered in connection therewith,
in
each case whether arising before or after the date hereof or as a result
of
performance hereunder or thereunder. The Holders reserve all rights,
remedies, powers, or privileges available under the Transaction Documents,
at
law or otherwise. This Amendment and Waiver Agreement shall not
constitute a novation or satisfaction and accord of the Transaction Documents
or
any other document, instrument and/or agreement executed or delivered in
connection therewith.
8. Amendments
and
Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers
or
consents to departures from the provisions hereof may not be given, unless
the
same shall be in writing and signed by the Company and the Holders.
9. Notices.
Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the applicable Transaction
Document.
10. Successors
and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure
to
the benefit of the Holders. The Company may not assign (except by merger)
its
rights or obligations hereunder without the prior written consent of the
Holders. The Holders may assign their respective rights hereunder in
the manner and to the Persons as permitted under the applicable Transaction
Document.
11. Execution
and
Counterparts. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party
and
delivered to the other party, it being understood that both parties need
not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the
same
force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
12. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Transaction Documents.
13. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be
hereafter declared invalid, illegal, void or unenforceable.
14. Headings.
The
headings in this Agreement are for convenience only, do not constitute a
part of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
15. Effectiveness. The
effectiveness of this Agreement shall be expressly conditioned upon the Holders’
receipt, on or before the date hereof, of (i) a certificate, dated as of
the
date hereof, executed by the Chief Executive Officer of the Company certifying
that, to the best knowledge of the Chief Executive Officer after reasonable
investigation, no Event of Default and no event
which, with the giving of notice
or passage of time (or both), would constitute an Event of Default under
the
Debentures has occurred or is continuing and (ii) all documents (including
the
Additional Debentures) required to be delivered by the Company hereunder
shall
have been executed and delivered to the Holders. In the event
the foregoing items are not delivered to the Holders, all of the consents,
amendments and waivers of the Holders contained herein shall be null and
void.
16. Filing
of
8-K. On or before 9:30 am (NY time) on the fourth Trading Day
immediately following the date hereof, the Company shall file a Current Report
on Form 8-K, reasonably acceptable to each Holder disclosing the material
terms
of the transactions contemplated hereby, which shall include this Agreement
as
an attachment thereto.
17. Independent
Nature of
Holders’ Obligations and Rights. The Company has elected to
provide all Holders with the same terms and form of amendment and waiver
for the
convenience of the Company and not because it was required or requested to
do so
by the Holders. The obligations of each Holder under this amendment
and waiver agreement, and any Transaction Document are several and not joint
with the obligations of any other Holder, and no Holder shall be responsible
in
any way for the performance or non-performance of the obligations of any
other
Holder under this consent and waiver or any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken by any
Holder pursuant thereto, shall be deemed to constitute the Holders as a
partnership, an association, a joint venture or any other kind of entity,
or
create a presumption that the Holders are in any way acting in concert or
as a
group with respect to such obligations or the transactions contemplated by
this
consent and waiver or the Transaction Documents. Each Holder shall be
entitled to independently protect and enforce its rights, including without
limitation, the rights arising out of this consent and waiver or out of the
other Transaction Documents, and it shall not be necessary for any other
Holder
to be jointed as an additional party in any proceeding for such purpose.
Each
Holder has been represented by its own separate legal counsel in their review
and negotiation of this amendment and waiver and the Transaction
Documents.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties have
executed this Agreement as of the date first set forth above.
ANALYTICAL
SURVEYS, INC.
By:/s/Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Chief
Executive Officer
IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties have
executed this Agreement as of the date first set forth above.
Name
of
Holder: Monarch Capital Fund
Signature
of Authorized Signatory of
Holder: /s/Xxxxx
Xxxxxx
Name
of
Authorized Signatory: Navigator Management LTD, Director
Title
of
Authorized Signatory: Director
Name
of
Holder: Harborview Master Fund, LP
Signature
of Authorized Signatory of
Holder: /s/Xxxxx
X. Xxxx /s/ Xxxxx
Xxxxxx
Name
of
Authorized Signatory: Navigator Management Ltd
Title
of
Authorized Signatory: Authorized Signatory
Name
of
Holder: DKR Soundshore Oasis Holdgin Fund Ltd
Signature
of Authorized Signatory of
Holder: /s/Xxxxxxx
Xxxxxx
Name
of
Authorized Signatory: Xxxxxxx Xxxxxx
Title
of
Authorized Signatory: Authorized signatory of DKR Oasis
Management Company LP, its investment manager
