OCTOBER 2007 AMENDMENT AND AGREEMENT TO 2005 SUBORDINATED NOTES
EXHIBIT
10.1
OCTOBER
2007 AMENDMENT AND AGREEMENT TO 2005 SUBORDINATED
NOTES
OCTOBER
2007 AMENDMENT AND AGREEMENT
AS
TO
2005 SUBORDINATED NOTES
THIS
OCTOBER 2007 AMENDMENT AND AGREEMENT AS TO 2005 SUBORDINATED NOTES (this
“Agreement”) is made as of October 31, 2007, among Galaxy
Energy Corporation, a Colorado corporation (“Galaxy” or the
“Company”), Bank Xxx. Xxxxxxxxx jr. & Cie., Clarion Finanz
AG, Capriccio Investments Inc., Desmodio Management Inc., Centrum Bank AG,
Finter Bank Zurich, Xxxxxx Xxxx Fund Trading, Vanguard Capital Limited, Xxxx
& Xxxxxx and Xxxx & Co. (collectively, the
“Buyers”).
W
I T N E
S S E T H:
WHEREAS,
the Company and the Buyers entered into that certain Securities Purchase
Agreement (the “2005 Subordinated Note Purchase Agreement”),
dated as of March 1, 2005, pursuant to which the Company issued to the Buyers,
among other things, senior subordinated convertible notes (as amended by that
certain Waiver and First Amendment to March 2005 Notes and Warrants, dated
as of
May 31, 2005, and in effect as of the date thereof, without amendment or
modification thereafter, the “2005 Subordinated Notes”) and
warrants (the “2005 Warrants”), dated March 1, 2005 to purchase
an aggregate of 1,637,235 shares (the
“WarrantShares”) (subject to adjustment as
provided therein) of the Common Stock of the Company and, in connection
therewith, entered into that certain Subordination Agreement, dated as of May
31, 2005, with the Subsidiaries, the Buyers, holders of secured notes issued
in 2004 (the “2004Noteholders”) and
an agent for the 2004 Noteholders (the “2005 Subordination
Agreement”); and
WHEREAS,
the 2005 Subordinated Notes had a stated maturity date of April 30, 2007;
and
WHEREAS,
Galaxy and the Buyers entered into the April 2007 Waiver, Amendment and
Agreement as to 2005 Subordinated Notes which, among other things, provided
for
the extension of the maturity date of the 2005 Subordinated Notes to October
31,
2007; and
WHEREAS,
Galaxy requires an extension of the maturity date of the 2005 Subordinated
Notes; and
NOW,
THEREFORE, in consideration of the agreements, provisions and covenants
contained herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, each of the undersigned agrees
as
follows:
1. Extension
of Maturity Date and Confirmation of Subordination.
a. Each
of
the Buyers, severally and not jointly, hereby agrees with the Company that
the
first sentence of Section 2(a)(xvi) of each of the Notes held by such Buyer
is
hereby amended and restated in its entirety as follows:
“(xvi) “Maturity
Date” means the earliest of (A) February 29, 2008, and (B) such date as
all amounts due under this Note have been fully paid.”
b. Each
of the Buyers, severally and not jointly, hereby agrees and confirms that the
2005 Subordinated Notes continue to be subordinate pursuant to the terms of
the
2005 Subordination Agreement.
2. Representations
and Warranties of the Company. The Company represents and
warrants to each of the Buyers that the Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, the Notes (as amended hereby), and the Warrants. The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby have been duly authorized by the board
of
directors of the Company, and no further consent or authorization is required
of
any of the Company or its Board of Directors or shareholders (under applicable
law, the rules and regulations of the Principal Market (as defined in the Notes)
or otherwise. This Agreement has been duly executed and delivered by
the Company, and each of this Agreement, the Notes (as amended hereby), and
the
Warrants constitutes a valid and binding obligation of each of the Company
enforceable against the Company in accordance with its
terms.
3. Representation
and Warranties of Each of the Buyers. Each of the Buyers, jointly
and not severally, represents and warrants to the Company that with respect
to
such Buyer, it is a validly existing corporation, partnership, limited liability
company or other entity and has the requisite corporate, partnership, limited
liability or other organizational power and authority to enter into and perform
its obligations under this Agreement. This Agreement has been duly
and validly authorized, executed and delivered on behalf of such Buyer and
is a
valid and binding agreement of such Buyer, enforceable against such Buyer in
accordance with its terms.
4. Independent
Nature of the Buyers. The obligations of each of the Buyers
hereunder are several and not joint with the obligations of the other
Buyers. Each of the Buyers shall be responsible only for its own
agreements and covenants hereunder and under the other documents executed in
connection with the 2005 Subordinated Notes (the “Transaction
Documents”). The decision of each of the Buyers to
enter into this Agreement has been made by each such party independently of
any
of the other Buyers and independently of any information, materials, statements
or opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or any of its Subsidiaries which may have been made
or
given by any of the other Buyers or by any agent or employee of any of the
other
Buyers, and none of the Buyers nor any of their respective agents or employees
shall have any liability to any of the other Buyers (or any other Person)
relating to or arising from any such information, materials, statements or
opinions. Nothing contained herein or in any of the other Transaction
Documents, and no action taken by any of the Buyers pursuant hereto or thereto,
shall be deemed to constitute any of the Buyers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that any of the Buyers are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated hereby
or thereby. Each of the Buyers shall be entitled to independently
protect and enforce its rights, including the rights arising out of this
Agreement and the other Transaction Documents (in each case as amended hereby),
and it shall
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not
be
necessary for any of the other Buyers to be joined as an additional party
in any
proceeding for such purpose.
5. Successors
and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. The successors and assigns of such entities shall
include their respective receivers, trustees or
debtors-in-possession.
6. Further
Assurances. The Company hereby agrees from time to time, as and
when requested by any Buyer, to execute and deliver or cause to be executed
and
delivered, all such documents, instruments and agreements, including secretary’s
certificates, stock powers and irrevocable transfer agent instructions, and
to
take or cause to be taken such further or other action, as such Buyer may
reasonably deem necessary or desirable in order to carry out the intent and
purposes of this Agreement and the other Transaction Documents.
7. Rules
of Construction. All words in the singular or plural include the
singular and plural and pronouns stated in either the masculine, the feminine
or
neuter gender shall include the masculine, feminine and neuter, and the use
of
the word “including” in this Agreement shall be by way of example rather than
limitation.
8. Governing
Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of Colorado, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Colorado or any other jurisdiction) that would cause the application of
the
laws of any jurisdiction other than the State of Colorado. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Denver, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in
any
such suit, action or proceeding by mailing a copy thereof to such party at
the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
9. Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to each other
party. In the event that any signature to this Agreement or any
amendment hereto 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)
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with
the
same force and effect as if such facsimile or “.pdf” signature page were an
original thereof. No party hereto shall raise the use of a facsimile
machine or e-mail delivery of a “.pdf” format data file to deliver a signature
to this Agreement or any amendment hereto or the fact that such signature
was
transmitted or communicated through the use of a facsimile machine or e-mail
delivery of a “.pdf” format data file as a defense to the formation or
enforceability of a contract, and each party hereto forever waives any such
defense.
10. Section
Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of
the
provisions hereof.
11. No
Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any
party.
12. Merger. This
Agreement and the other Transaction Documents, as amended hereby, represent
the
final agreement of each of the parties hereto with respect to the matters
contained herein and may not be contradicted by evidence of prior or
contemporaneous agreements, or prior or subsequent oral agreements, among any
of
the parties hereto.
[Remainder
of page intentionally left blank; Signature page
follows]
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by each
of
the undersigned as of the date first above written.
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COMPANY:
GALAXY
ENERGY CORPORATION
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By: __________________________
Name: __________________________
Title: __________________________
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BUYERS:
BANK
XXX. XXXXXXXXX JR. & CIE.
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By: __________________________
Name: __________________________
Title: __________________________
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CLARION
FINANZ AG
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By: __________________________
Name: __________________________
Title: __________________________
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CAPPRICCIO
INVESTMENTS INC.
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By: __________________________
Name: __________________________
Title: __________________________
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DESMODIO
MANAGEMENT INC.
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By: __________________________
Name: __________________________
Title: __________________________
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CENTRUM
BANK AG
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By: __________________________
Name: __________________________
Title: __________________________
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FINTER
BANK ZURICH
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By: __________________________
Name: __________________________
Title: __________________________
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XXXXXX
XXXX FUND TRADING
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By: __________________________
Name: __________________________
Title: __________________________
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VANGUARD
CAPITAL LIMITED
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By: __________________________
Name: __________________________
Title: __________________________
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XXXX
& XXXXXX
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By: __________________________
Name: __________________________
Title: __________________________
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XXXX
& CO.
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By: __________________________
Name: __________________________
Title: __________________________
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