Contract
Exhibit
10.1
THIS AMENDMENT AGREEMENT (this
“Amendment”), dated as of December 1, 2009
is entered into by and among Epic Energy Resources, Inc., a Colorado corporation
(the “Company”),
the persons identified as “Holders” on the signature pages hereto (the “Holders”). Defined
terms not otherwise defined herein shall have the meanings set forth in the
Purchase Agreement (as defined below).
WHEREAS, pursuant to a Purchase Agreement,
dated as of December 5, 2007, as amended to date (the “Purchase
Agreement”), among the Company and the investors signatory thereto, such
investors purchased from the Company (i) 10% Secured Debentures (the “Debentures”)
and (ii) warrants exercisable for shares of Common Stock.
WHEREAS, the parties desire to
amend certain Transaction Documents pursuant to the terms hereof.
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each Holder and the Company hereby agrees as follows:
1. Amendments to the
Debentures.
(A)
Section 2(a) of the Debentures held by the Holders signatory hereto (and not any
other holders of Debentures) is hereby amended and restated in its entirety as
follow:
a) “Payment of Interest in
Cash. The Company shall pay interest to the Holder on the aggregate
unredeemed and then outstanding principal amount of this Debenture at the rate
of (x) from the Original Issue Date through November 30, 2009, 10% per annum;
(y) from December 1, 2009 through the date the Company pays the “December 2009
Quarterly Redemption Amount” (as defined in that certain amendment agreement
dated December 1, 2009 among the Company and the investors signatory thereto) in
full, 12% per annum; and (z) from and after the date the Company pays the
December 2009 Quarterly Redemption Amount in full, provided the Company has
timely paid all other required Quarterly Redemption Amounts through such date,
10% per annum (if the Company has not timely paid all required Quarterly
Redemption Amounts, the interest shall remain at the rate of 12% per annum),
payable quarterly on January 1, April 1, July 1 and October 1, beginning on the
first such date after the Original Issue Date, on each Quarterly Redemption Date
(as to that principal amount then being redeemed), and on the Maturity Date
(each such date, an “Interest Payment
Date”) (if any Interest Payment Date is not a Business Day, then the
applicable payment shall be due on the next succeeding Business Day), in
cash.”
(B) Payment of December 1, 2009
Quarterly Redemption Amount. The Company hereby agrees to pay
the Quarterly Redemption Amount(s) (as defined in the Debentures) under each
Debenture held by the Holders signatory hereto scheduled to have been paid on
December 1, 2009 (such payment, the “December 2009 Quarterly Redemption
Amount”), on December 1, 2010 (in addition to the Quarterly Redemption Amount
otherwise due and payable on such date); provided, however, the Company shall be
permitted to pay the December 2009 Quarterly Redemption Amount, in cash, at any
time on or after the date hereof.
2. Waivers. Subject
to the terms and conditions set forth herein, each Holder hereby
waives, severally, and not jointly, the following prior occurrences, each of
which may be deemed to cause an Event of Default (as defined in the Debentures)
to the extent that these matters occurred on or before the date of execution of
this Amendment: the failure to timely pay the Quarterly Redemption Amount due
under the Debentures on December 1, 2009. Except as expressly set
forth herein, nothing contained in this Amendment shall be construed to waive,
limit, impair or otherwise affect any rights of a Holder in respect of any
“Event of Default” (as defined in the Debentures) that occurs after the date of
this Agreement.
3. Representations and
Warranties. The Company hereby makes to the Holders the
following representations and warranties:
(A) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Amendment and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Amendment 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 Amendment 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.
(B) No
Conflicts. The execution, delivery and performance of this
Amendment 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
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.
(C) Equal
Consideration. No consideration has been paid to any person to
amend or consent to a waiver, modification, forbearance or otherwise of any
provision of any of the Transaction Documents.
(D) Survival and Bring
Down. All of the Company’s warranties and representations contained in
this Amendment shall survive the execution, delivery and acceptance of this
Agreement by the parties hereto.
(E) No
Defaults. Following the execution and delivery of this
Amendment by the parties hereto, no Event of Default (as defined in the
Debentures) has occurred and is continuing as of the date hereof.
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4. Miscellaneous.
(A) The waivers, agreements and
amendments set forth herein shall not be effective unless and all conditions
precedent to the effectiveness of this Amendment shall have been satisfied. In
addition, the respective obligations, amendments, agreements and waivers of the
Holders hereunder are subject to the accuracy in all material respects of the
representations and warranties of the Company contained herein.
(B) Except as expressly set forth
herein, each Holder, to its knowledge without independent investigation,
acknowledges there are no “Events of Default” (as defined in the Debentures)
under its Debentures, except for those being waived pursuant to Section 2
hereunder, that currently exist as of the date of that Holder’s execution of
this Agreement.
(C)
Except as expressly set forth above, all of the terms and conditions of the
Transaction Documents (as defined in the Purchase Agreement) shall continue in
full force and effect after the execution of this Amendment and shall not be in
any way changed, modified or superseded by the terms set forth
herein. Within 1 Trading Day of the date hereof, the Company shall
issue a Current Report on Form 8-K reasonably acceptable to the Agent (as
defined in the Security Agreement), attaching this Amendment, and disclosing the
material terms of the transactions contemplated hereby. The parties
agree that each of them and/or their respective counsel has reviewed and had an
opportunity to revise this Amendment and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Amendment or
any amendments hereto.
(D) This Amendment may be executed in
two or more counterparts and by facsimile signature or otherwise, and each of
such counterparts shall be deemed an original and all of such counterparts
together shall constitute one and the same agreement. The Company hereby agrees that it will
reimburse the Agent up to $5,000 for its legal fees and expenses upon its
execution of this Amendment. Except as set forth in this
section, each party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of this Amendment.
(E) The Company has elected to provide
all Holders with the same terms and form of amendment, consent 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 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 Amendment 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 Amendment
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 Amendment or out of the other Transaction Documents,
and it shall not be necessary for any other Holder to be joined 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 the Transaction Documents.
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IN
WITNESS WHEREOF, this Amendment is executed as of the date first set forth
above.
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By:
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Name:
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Title:
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[signature
page(s) of Holders to follow]
4
COUNTERPART
SIGNATURE PAGE
OF HOLDER
TO
EPCC
AMENDMENT
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Name
of Holder:
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By:
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Name:
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Title:
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