EXHIBIT 10.61
AMENDMENT AGREEMENT
This Amendment Agreement by and between The Neptune Society, Inc., a
Florida corporation ("Neptune"), CapEx, L.P., a Delaware limited partnership
("CapEx"), Bow River Capital Fund, LP and Bow River Capital Fund II, LP
(together the "Bow River Entities", the purchasers of X.X. Xxxxx Investment
Banking Corp.'s, a New York corporation ("DHB"), securities which are referenced
below) is effective the 18th day of February, 2004.
EXPLANATORY STATEMENT
A. Neptune, CapEx and DHB entered into that certain Debenture Purchase and
Amendment Agreement between Neptune, CapEx, and DHB dated July 31, 2003 (the
"Debenture Agreement"), pursuant to which Neptune issued (i) an Amended and
Restated Debenture No. 1 dated July 31, 2003 payable to the order of CapEx (the
"CapEx Debenture") and a Warrant to Purchase 1,000,000 Shares of Common Stock
(the "CapEx Warrant"), and (ii) an Amended and Restated Debenture No. 2 dated
July 31, 2003 payable to the order of DHB and a Warrant to Purchase 666,667
Shares of Common Stock both of which were subsequently purchased by the Bow
River Entities under a Securities Purchase Agreement with an effective date of
January 30, 2004 (hereinafter referred to as the Bow River Entities Debenture
and the Bow River Entities Warrant, respectively).
B. The parties wish to amend the CapEx Debenture and the Bow River Entities
Debenture as set forth below.
AGREEMENT
IN CONSIDERATION of the presents and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Neptune, CapEx,
and DHB agree as follows:
1. On or before February 25, 2004, Neptune shall tender to CapEx (on its
behalf and for the benefit of the Bow River Entities) the sum of One Million One
Hundred Sixty Thousand Dollars ($1,160,000.00) by wire transfer to such
financial account as specified by CapEx in writing (the "Payment"), for
pre-payment of principal in the amount of One Million Eighty-five Thousand Four
Hundred Forty and 40/100 Dollars ($1,085,440.40) of the CapEx Debenture and
Seventy-four Thousand, Five Hundred Fifty Nine and 60/100 ($74,559.60) of the
Bow River Entities Debenture.
2. If and ONLY IF the Payment is tendered to CapEx on or before February
25, 2004, then:
(a) Neptune shall be deemed to have paid and satisfied in full the
July 31, 2004 periodic lump payment in the amount of $750,000, as required by
Section 2.2 of the CapEx Debenture and the Bow River Entities Debenture;
(b) Neptune shall be deemed to have paid and satisfied in full the
excess cash flow payments, as required by Section 2.3 of the CapEx Debenture and
the Bow River Entities Debenture, for each quarter of calendar year 2004, and
CapEx and the Bow River Entities shall not require any additional excess cash
flow payments for the year 2004.
3. Section 2.4(c) of the CapEx Debenture and Section 2.4(c) of the Bow River
Entities Debenture are hereby deleted in their entirety and each replaced with
the following:
1
(c) third, pro rata to CapEx and the Bow River Entities (based on the
outstanding balances of their respective Amended and Restated Debentures) until
the Amended and Restated Debentures have been paid in full.
4. Section 2.4(d) of the CapEx Debenture and Section 2.4(d) of the Bow
River Entities Debenture are hereby deleted in their entirety.
5. In all other respects, the Debenture Agreement, the CapEx Debenture and
the Bow River Entities Debenture are hereby ratified and confirmed.
6. Each of CapEx and the Bow River Entities will deliver an estoppel
certificate affirming the principal balance of their respective debentures in
substantially the forms attached hereto as Exhibit A and B, respectively.
This Amendment Agreement may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall together constitute
one instrument. Any counterpart may be executed and delivered through facsimile
transmission.
IN WITNESS WHEREOF, the undersigned have executed this Amendment effective
as of the date first above written regardless of the actual date of signing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
COMPANY:
THE NEPTUNE SOCIETY, INC.
By:
-------------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
HOLDERS:
CAPEX, L.P. BOW RIVER CAPITAL FUND, LP AND
BOW RIVER CAPITAL FUND II, LP
By: RBP, LLC, its General Partner By: Bow River Capital Partners, LLC,
its General Partner
By: By:
------------------------------ -----------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
Authorized Representative Manager
2
ACKNOWLEDGEMENT
The three immediately undersigned guarantors hereby acknowledge and consent
to the foregoing Agreement and the amendments to the Debentures contemplated
thereby. The undersigned each further explicitly agree to guarantee the
repayment of the Amended and Restated Debentures, under the terms and conditions
of those certain Guarantees dated December 24, 1999, executed by each of the
undersigned, which, where they refer to the Debentures, shall be deemed to refer
to the Amended and Restated Debentures, as amended hereby.
NEPTUNE SOCIETY OF AMERICA, INC. NEPTUNE MANAGEMENT CORP.
By: By:
------------------------------- -------------------------------
Print Name: Print Name:
----------------------- ------------------------
Title: Title:
----------------------- ----------------------------
HERITAGE ALTERNATIVES, INC.
By:
-------------------------------
Print Name:
-----------------------
Title:
-----------------------
The undersigned guarantor hereby acknowledges and consents to the foregoing
Agreement and the amendments to the Debentures contemplated thereby. The
undersigned has guaranteed the repayment of the Amended and Restated Debenture
in a separate Guaranty dated July 31, 2003.
TRIDENT SOCIETY, INC.
By:
--------------------------------
Name:
-------------------------------
Title:
----------------------- ------------------------------
Exhibit A
ESTOPPEL CERTIFICATE
(CapEx, L.P.)
The undersigned, holding an Amended and Restated Debenture in the original
principal amount of $5,029,344.00 dated July 31, 2003, made by The Neptune
Society, Inc., a Florida corporation ("Neptune Society"), payable to the
Undersigned, does certify as follows:
SECTION ONE
DESCRIPTION OF INSTRUMENTS
1. The Undersigned is the holder of that certain Amended and Restated
Debenture in the original principal amount of $5,029,344.00 dated July
31, 2003, made by Neptune Society, payable to the Undersigned (the
"Debenture").
2. The Undersigned, Neptune Society, Bow River Capital Fund, LP and Bow
River Capital Fund II, LP are parties that that certain Amendment
Agreement dated effective as of February 18, 2004 (the "Amendment
Agreement").
SECTION TWO
PRINCIPAL BALANCE
The undersigned acknowledges that the Neptune Society has made certain monthly
interest and principal payments when due under the Debenture and a principal
payment in the amount of $1,085,440.40 under the terms of the Amendment
Agreement, and hereby acknowledges that the principal balance of the Debenture
is $3,417,504.60 as of the date hereof.
SECTION THREE
DEFENSES OR DEFAULTS
As of the date hereof, there are currently no defenses or defaults to the
Debenture so far as the undersigned is concerned.
The undersigned has executed this certificate on February ___, 2004.
CapEx, L.P., a Delaware limited partnership
By:
----------------------------------------
Its:
---------------------------------------
Exhibit B
ESTOPPEL CERTIFICATE
(Bow River Capital Fund, LP and Bow River Capital Fund II, LP)
The undersigned, holding an Amended and Restated Debenture in the original
principal amount of $2,352,896.00 dated July 31, 2003, made by The Neptune
Society, Inc., a Florida corporation ("Neptune Society"), payable to X.X. Xxxxx
Investment Banking Corp. and transferred to the Undersigned, do certify as
follows:
SECTION ONE
DESCRIPTION OF INSTRUMENTS
3. The Undersigned are the holders of that certain Amended and Restated
Debenture in the original principal amount of $2,352,896.00 dated July
31, 2003, made by Neptune Society, payable to X.X. Xxxxx Investment
Banking Corp. and transferred to the Undersigned (the "Debenture").
4. The Undersigned, Neptune Society and CapEx, L.P. are parties that that
certain Amendment Agreement dated effective as of February 18, 2004
(the "Amendment Agreement").
SECTION TWO
PRINCIPAL BALANCE
The undersigned acknowledge that the Neptune Society has made certain monthly
interest payments when due under the Debenture and a principal payment in the
amount of $74,559.60 under the terms of the Amendment Agreement, and hereby
acknowledge that the principal balance of the Debenture is $2,278,336.40 as of
the date hereof.
SECTION THREE
DEFENSES OR DEFAULTS
As of the date hereof, there are currently no defenses or defaults to the
Debenture so far as the undersigned are concerned.
The undersigned have executed this certificate on February ___, 2004.
Bow River Capital Fund, LP Bow River Capital Fund II, LP
By: By:
-------------------------- ---------------------------
Its: Its:
------------------------- --------------------------
