AMENDMENT TO LOAN DOCUMENTS
Exhibit
10.27(a)
AMENDMENT
TO LOAN DOCUMENTS
This AMENDMENT TO LOAN DOCUMENTS
(this “Amendment”) is made as of the 31st day of March, 2009, by and among
FIRSTGOLD CORP., a Delaware corporation (the “Borrower”), PLATINUM LONG TERM
GROWTH, LLC, a Delaware limited liability company (“Platinum”) and Lakewood
Group LLC, a Delaware limited liability company (“Lakewood” and, together with
Platinum, the “Lenders”).
WHEREAS, the Lenders and the
Borrower previously entered into a Note and Warrant Purchase Agreement, dated as
of August 7, 2008 (as previously amended or otherwise modified, the “Purchase
Agreement”), which provided for, among other things, the issuance of certain
senior secured promissory notes (the “Notes”) to the Lenders and the extension
of credit by the Lenders (the “Loans”) as set forth therein;
WHEREAS, pursuant to the
Purchase Agreement, the Borrower issued to Platinum Notes in the aggregate
principal amount of $9,600,000, consisting of the $5,394,100 Senior Secured
Promissory Note, dated as of August 7, 2008 (the “Initial Platinum Note”), the
$378,378.37 Senior Secured Promissory Note, dated as of August 27, 2008 (the
“August Platinum Note”), the $1,081,081.08 Senior Secured Promissory Note, dated
as of September 10, 2008 (the “September 10 Platinum Note”) and the
$2,746,440.54 Senior Secured Promissory Note, dated as of September 29, 2008
(the “September 29 Platinum Note” and, together with the Initial Platinum Note,
the August Platinum Note and the September 10 Platinum Note, the “Platinum
Notes”);
WHEREAS, pursuant to the
Purchase Agreement, the Borrower issued to Lakewood Notes in the aggregate
principal amount of $2,400,000, consisting of the $1,348,525 Senior Secured
Promissory Note, dated as of August 7, 2008 (the “Initial Lakewood Note”), the
$94,594.60 Senior Secured Promissory Note, dated as of August 27, 2008 (the
“August Lakewood Note”), the $270,270.27 Senior Secured Promissory Note, dated
as of September 10, 2008 (the “September 10 Lakewood Note”) and the $686,610.14
Senior Secured Promissory Note, dated as of September 29, 2008 (the “September
29 Lakewood Note” and, together with the Initial Lakewood Note, the August
Lakewood Note and the September 10 Lakewood Note, the “Lakewood
Notes”);
WHEREAS, the
Borrower and the Guarantor have granted to the Lenders a first priority security
interest in substantially all of their respective assets pursuant to the
Security Agreements;
WHEREAS, the
Borrower’s obligations are secured by the land and premises encumbered by the
Mortgages, which Mortgages have been duly recorded in the land records set forth
on Schedule 4.2(j) to the Purchase Agreement and constitute a first lien on the
property described therein;
WHEREAS, the Borrower has not
met certain covenants under the Purchase Agreement and the Notes;
1
WHEREAS, it is in the interest of the
Borrower that a portion of the outstanding amounts under the Initial Platinum
Note and the Initial Lakewood Notes become convertible into Common Stock;
and
WHEREAS, the Lenders have
agreed to the amendment and restatement of the Initial Platinum Note and the
Initial Lakewood Note to provided for the convertible of a portion
thereof.
NOW, THEREFORE, in
consideration of the foregoing and for the covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
SECTION ONE
DEFINITIONS;
REPRESENTATIONS
Section 1.1 Terms Defined. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
given to such terms in the Purchase Agreement.
Section
1.2 Representations and Warranties of
Borrower. The Borrower represents, warrants and covenants to the
Lenders as follows:
(a) Except
as otherwise set forth herein or in the Schedules and Exhibits hereto, the
representations and warranties of the Borrower made in the Transaction Documents
remain true, complete and accurate in all material respects, and the covenants
of the Borrower are hereby reaffirmed, as of the date hereof. The
aggregate amount of principal and interest of all outstanding, as of the date
hereof, Notes are detailed on Exhibit 1.2A hereto.
(b) Except
for the failure to make principal payments pursuant to Section 1.3(b) of the
Notes and interest payments pursuant to Section 1.2 of the Notes (the “Existing
Defaults”), the Borrower has performed, in all material respects, all
obligations to be performed by it to date under the Transaction Documents and no
Event of Default (other than the Existing Defaults) exists thereunder or an
event that with the passage of time or giving of notice or both, would
constitute an Event of Default. As of the date hereof, the Borrower
acknowledges that it has failed to make an aggregate of $1,600,000 of principal
payments pursuant to Section 1.3(b) of the Notes. The Borrower
further acknowledges that it has failed to make interest payments pursuant to
Section 1.2 of the Notes and that, as of the date hereof, an aggregate of
$762,960.35 of interest has accrued and not been paid under the
Notes. The Borrower acknowledges and agrees that amounts outstanding
under the Notes shall continue to bear interest at the default rate set forth
therein, and that the LENDERS DO NOT, IN ANY MANNER, WAIVE ANY OF THE DEFAULTS
IDENTIFIED HEREIN AND RETAIN ALL RIGHTS AND REMEDIES IN RESPECT THEREOF, as is
set forth in the Notices of Default and Forbearance delivered on the date hereof
to the Borrower by each of the Lenders.
(c) The
Borrower is a corporation duly organized, qualified, and existing in good
standing under the laws of the State of Delaware and has full power and
authority to consummate the transactions contemplated hereby. The
Borrower is duly qualified to do business in all states and other jurisdictions
in which the character of the property owned by it or the nature of its
activities causes such qualification to be necessary, except where the failure
to be so qualified could not result in a Material Adverse Effect.
2
(d) The
execution, delivery and performance of this Amendment, the Amended and Restated
Platinum Note (as defined below) and the Amended and Restated Lakewood Note (as
defined below) (together, the “Amendment Documents”) has been duly authorized by
all necessary corporate actions of Borrower, are within the corporate power of
Borrower and are not in contravention of law, the Borrower’s Articles of
Incorporation, By-laws or the terms of any other documents, agreements or
undertakings to which the Borrower is a party or by which the Borrower is
bound. Except for the approval of the Toronto Stock Exchange, which
has been received, no approval of any person, corporation, governmental body or
other entity is a prerequisite to the execution, delivery and performance by the
Borrower of this Amendment or the other Amendment Documents to ensure the
validity or enforceability hereof or the continued first priority lien of the
Lenders in the collateral securing the Loans, including any deeds of
trusts.
(e) The
Amendment Documents will each constitute the legally binding obligation of
Borrower, enforceable in accordance with its terms, subject to the effect of
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws now existing or hereafter enacted relating to or affecting the enforcement
of creditors’ rights generally, and as enforceability may be subject to
limitations based on general principles of equity (regardless of whether such
enforceability is considered a proceeding in equity or at law).
(f) None
of (i) the Amendment Documents, (ii) the Transaction Documents, and (iii) any
financial statements or other materials and related information delivered in
connection herewith or therewith contained (in each case, as of its date) any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, under the
circumstances which they were made, not misleading. There is no fact
known to the Borrower that could reasonably be expected to have a Material
Adverse Effect.
(g) The
Borrower has authorized and has initially reserved and covenants to continue to
reserve, free of preemptive rights and other similar contractual rights of
stockholders, a number of its authorized but unissued shares of Common Stock at
least equal to 120% of the aggregate number of shares of Common Stock needed to
effect the conversion of the Amended Platinum Note and the Amended Lakewood Note
in full. Any shares of Common Stock issuable upon conversion of the
Amended Platinum Note and the Amended Lakewood Note (and such shares when
issued) are herein referred to as the “Conversion Shares”.
(h) Upon
issuance, the Amended Platinum Note and the Amended Lakewood Note shall be
validly issued and outstanding, free and clear of all liens, encumbrances and
rights of refusal of any kind. When the Conversion Shares are issued
and paid for in accordance with the terms of the Amended Platinum Note and the
Amended Lakewood Note, such shares will be duly authorized by all necessary
corporate action and validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens, encumbrances and rights of refusal
of any kind and the holders shall be entitled to all rights accorded to a holder
of Common Stock. The Company understands and acknowledges that its
obligation to issue the Conversion Shares upon the conversion of the Amended
Platinum Note and the Amended Lakewood Note is absolute and unconditional
regardless of the dilutive effect that such issuance may have on the ownership
interest of other stockholders of the Company.
3
(i) Upon
the issuance thereof and assuming the Lenders remain unaffiliated with the
Borrower, the Conversion Shares are and shall be freely salable by the Lenders
without volume limitations or other manner of sale requirements, under Rule 144;
provided, that, until August 7, 2009, the current public information
requirements of Rule 144(c) shall apply.
SECTION TWO
AMENDMENTS
The
Lenders and the Borrower have agreed to amend certain provisions of the
Transaction Documents as set forth herein.
Section 2.1 Amendment to Initial Platinum
Note. The Initial Platinum Note shall be amended and restated
in the form attached hereto as Exhibit
2.1.
Section
2.2 Amendment to Initial Lakewood
Note. The Initial Lakewood Note shall be amended and restated
in the form attached hereto as Exhibit
2.2.
Section
2.2 Amendment to Definition of
Securities. References to “Securities” under the Purchase
Agreement shall be deemed to refer to the Notes, the Warrants, the Conversion
Shares and the Warrant Shares, collectively.
Section
2.3 Amendment to Section 3.2 of Purchase
Agreement. Section 3.2 of the Purchase Agreement is hereby amended to
read in its entirety as follows:
The
Company shall cause its Common Stock to continue to be registered under Sections
12(b) or 12(g) of the Exchange Act, to comply in all respects with its reporting
and filing obligations under the Exchange Act and any applicable Canadian
securities laws, and to not take any action or file any document (whether or not
permitted by the Securities Act or the rules promulgated thereunder) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the Exchange Act or Securities Act. The
Company will take all action necessary to continue the listing or trading of its
Common Stock on the OTC Bulletin Board, the Toronto Stock Exchange, the New York
Stock Exchange, the Nasdaq Capital Markets, the Nasdaq Global Markets, the
Nasdaq Global Select Market or the American Stock Exchange. If
required, the Company will promptly file the “Listing Application” for, or in
connection with, the issuance and delivery of the Warrant Shares and the
Conversion Shares. Subject to the terms of the Transaction
Documents, the Company further covenants that it will take such further action
as the Lenders may reasonably request, all to the extent required from time to
time to enable the Lenders to sell the Warrant Shares and the Conversion Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities
Act. Upon the request of either Lender, the Company shall deliver to
the Lenders a written certification of a duly authorized officer as to whether
it has complied with such requirements.
4
Section 2.4 Amendment to Section 3.14 of the
Purchase Agreement. Section 3.14 of the Purchase Agreement is
hereby amended to read in its entirety as follows:
So long
as the Warrants remains outstanding, the Company shall take all action necessary
to at all times have authorized and reserved for the purpose of issuance, the
aggregate number of shares of Common Stock needed to provide for the issuance of
the Warrant Shares. So long as the Notes remain outstanding, the
Company shall take all action necessary to at all times have authorized and
reserved for the purpose of issuance, 120% of the aggregate number of shares of
Common Stock needed to provide for the issuance of the Conversion
Shares.
Section
2.5 Amendment to Section 3.27 of the
Purchase Agreement. Section 3.27 of the Purchase Agreement is
hereby amended to read in its entirety as follows:
For so
long as either Lender owns any Notes or other Securities, the Company will
provide, at the Company’s expense, such legal opinions in the future as are
reasonably necessary for the issuance and resale of the Common Stock issuable
upon exercise of the Warrants or conversion of the Notes pursuant to an
effective registration statement, Rule 144 or an exemption from
registration. In the event that Common Stock is sold in a manner that
complies with an exemption from registration, the Company will promptly instruct
its counsel (at its expense) to issue to the transfer agent an opinion
permitting removal of the legend (indefinitely, if more than one year has
elapsed from the Closing Date, or to permit sale of the shares if pursuant to
the other provisions of Rule 144).
Section
2.6 Amendment to Section 3.29 of the
Purchase Agreement. Section 3.29 of the Purchase Agreement is
hereby amended to read in its entirety as follows:
If the
Company shall determine to prepare and file with the Commission a registration
statement (a “Registration Statement”) relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act), or their then equivalents, relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to the Lenders a written notice of
such determination and, if within ten days after the date of such notice, either
Lender shall so request in writing, the Company shall include in such
Registration Statement all or any part of the Warrant Shares and/or Conversion
Shares as either Lender requests to be registered so long as such Warrant Shares
and/or Conversion Shares are proposed to be disposed in the same manner as those
set forth in the Registration Statement.
5
The
Company shall use its best efforts to cause any Registration Statement to be
declared effective by the Commission as promptly as is possible following it
being filed with the Commission and to remain effective until all Warrant Shares
or Conversion Shares subject thereto have been sold or may be sold without
limitations as to volume or the availability of current public information under
Rule 144. All fees and expenses incident to the performance of or
compliance with this Section 3.29 by the Company shall be borne by the Company
whether or not any Warrant Shares or Conversion Shares are sold pursuant to the
Registration Statement. The Company shall indemnify and hold harmless
each Lender, the officers, directors, members, partners, agents, brokers,
investment advisors and employees of each of them, each person who controls each
Lender (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act), and the officers, directors, members, shareholders, partners,
agents and employees of each such controlling person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out
of or relating to (1) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any prospectus included therein or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading or (2) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any state securities law, or any rule or
regulation thereunder, in connection with the performance of its obligations
under this Section 3.29, except to the extent, but only to the extent, that such
untrue statements or omissions referred to in (1) above are based solely upon
information regarding such Lender furnished in writing to the Company by such
Lender expressly for use therein.
Section 2.7 Amendment to Section 5.1 of the
Purchase Agreement. Section 5.1 of the Purchase Agreement is
hereby amended to read in its entirety as follows:
Each
certificate representing the Warrants, the Warrant Shares and the Conversion
Shares shall be stamped or otherwise imprinted with a legend substantially in
the following form (in addition to any legend required by applicable state
securities or “blue sky” laws):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR FIRSTGOLD CORP. SHALL HAVE RECEIVED AN OPINION OF
COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
6
The
Company agrees to issue or reissue certificates representing any of the Warrant
Shares or Conversion Shares, without the legend set forth above if at such time,
prior to making any transfer of the Warrant Shares, the holder thereof shall
give written notice to the Company describing the manner and terms of such
transfer and removal as the Company may reasonably request, and (x) such Warrant
Shares or Conversion Shares have been registered for sale under the Securities
Act and the holder is selling such shares and is complying with its prospectus
delivery requirement under the Securities Act, (y) the holder is selling such
Warrant Shares or Conversion Shares in compliance with the provisions of Rule
144 or other exemption from registration or (z) the provisions of paragraph
(b)(1)(i) of Rule 144 apply to such shares.
Section 2.8 Definition of
Notes. Without limiting the generality of any other
provision hereof, the Borrower, and the Guarantor, by its execution hereof,
agrees that all references to “Notes” in the transaction documents shall include
the Initial Platinum Note and the Initial Lakewood Note as amended by the
Amended Platinum Note and the Amended Lakewood Note.
Section
2.9 Consultant
Fees. The Borrower agrees to reimburse a total of $7,500
paid by the Lenders in connection with the Lenders’ diligence reviews of the
Loans. Such amount shall be deemed added to the amounts outstanding
under the September 29 Platinum Note and the September 29 Lakewood Note, with
the allocation based on the Lenders’ Pro Rata Share.
Section
2.10 8-K. The Borrower
shall file a Current Report on Form 8-K disclosing the transactions contemplated
by this Amendment, the Amendment Documents and the Forbearance Agreements among
the parties within one business day of the date hereof.
SECTION THREE
CLOSING CONDITIONS
Section 3.1 Closing Conditions. The
obligations of the Lenders hereunder, and the effectiveness of the modifications
contained herein, are subject to fulfillment of the following conditions
precedent:
(a) Amendment
Documents. The Borrower shall execute and deliver to the Lenders
this Amendment and all other Amendment Documents, and the Guarantor shall have
confirmed its Guaranty in favor of the Lenders.
7
(b) Opinion
Matters. The Borrower shall have provided an opinion of counsel, in
form and substance satisfactory to the Lenders, as to the Borrower’s
authorization of the execution, delivery and validity of the Amendment Documents
and related matters, and the availability of Rule 144 for immediate re-sales of
the Conversion Shares. The Borrower shall have provided an opinion,
in form and substance satisfactory to the Lenders, as to the continuation of the
Lenders’ first priority lien pursuant to the Mortgage and confirmation that the
Mortgage continues to secure the indebtedness evidenced by the Notes as amended
hereby.
(c) Closing
Expenses. The Borrower shall pay all closing expenses, including
reasonable attorneys’ fees, filing fees and recording fees, reasonably incurred
by the Lenders in connection with this Amendment and the other Amendment
Documents (which legal fees and expenses shall not exceed $25,000 in the
aggregate). Such fees shall be deemed added to the amounts
outstanding under the September 29 Platinum Note and the September 29 Lakewood
Note, with the allocation based on the Lenders’ Pro Rata Share.
(d) Evidence of Corporate
Approvals. The Borrower shall have provided the Lenders with
evidence of the receipt of all necessary corporate and regulatory approvals
(including the approval of the Toronto Stock Exchange). The Borrower
shall have executed amendments to the Mortgage in form and substance
satisfactory to the Lenders.
Section 3.2 Effective
Date. This Amendment shall become effective as of the date
first above written upon receipt by the Lenders of copies hereof duly executed
by the Borrower and the Guarantor, and evidence satisfactory to the Lenders that
all closing conditions have been satisfied (the “Effective Date”).
Section 3.3 Releases and Waivers. The Borrower
hereby knowingly and voluntarily forever releases, acquits and discharges the
Lenders from and of any and all claims that the Lenders, their affiliates or
their agents are in any way responsible for the past or current condition or
deterioration of the business operations and/or financial condition of the
Borrower, and from and of any and all claims that the Lenders breached any
agreement to loan money or make other financial accommodations available to the
Borrower or to fund any operations of the Borrower at any time. The Borrower
also hereby knowingly and voluntarily forever releases, acquits and discharges
the Lenders from and of any and all other claims, damages, losses, actions,
counterclaims, suits, judgments, obligations, liabilities, defenses, affirmative
defenses, setoffs, and demands of any kind or nature whatsoever, in law or in
equity, whether presently known or unknown, which the Borrower may have had, now
have, or which it can, shall or may have for, upon, or by reason of any matter,
course or thing whatsoever relating to, arising out of, based upon, or in any
manner connected with, any transaction, event, circumstance, action, failure to
act, or occurrence of any sort or type, whether known or unknown, which
occurred, existed, was taken, permitted, begun, or otherwise related or
connected to or with any or all of the obligations, this agreement, any or all
of the loan documents, and/or any direct or indirect action or omission of the
Lenders. The Borrower further agrees that from and after the date
hereof, it will not assert to any person or entity that any deterioration of the
business operations or financial condition of the Borrower was caused by any
breach or wrongful act of the Lenders which occurred prior to the date
hereof. Borrower acknowledges and agrees that the Lenders have no
further obligation to extend credit pursuant to the Purchase
Agreement.
8
SECTION FOUR
MISCELLANEOUS
Section 4.1 Transaction Documents. The Borrower
shall deliver this Amendment, and all other Amendment Documents to the Lenders,
and these documents shall be included in the term “Transaction Documents” in the
Purchase Agreement and the Notes. For avoidance of doubt, a breach of
the terms hereof shall be deemed an Event of Default under each of the
Notes.
Section
4.2 Future
References. All references to the Purchase Agreement shall
hereinafter refer to such agreement as amended hereby. All references
to the Notes shall hereinafter refer to such instruments as amended
hereby.
Section
4.3 Continuing
Effect. The provisions of the Transaction Documents, as
modified herein, shall remain in full force and effect in accordance with their
terms and are hereby ratified and confirmed. The collateral granted
to the Lenders under the Transaction Documents, including without limitation,
all collateral under the Security Agreements and all collateral mortgaged to, or
for the benefit of, the Lenders under the Mortgage, shall continue to secure the
Loans as set forth in the Transaction Documents, as amended
hereby. The Lenders do not in any way waive the Borrowers’
obligations to comply with any of the provisions, covenants and terms of the
Purchase Agreement and the other Transaction Documents, nor do the Lenders waive
any other right the Lenders may have at law or in equity. For the
avoidance of doubt, the Borrower hereby confirms and agrees that the Existing
Defaults, and the Lenders’ remedies in respect thereof, are not in any manner
whatsoever waived by this Amendment or the Amended Platinum Note or the Amended
Lakewood Note. The Lenders’ interest in the collateral pledged by the
Borrower and the Guarantor to secure the Loans retains its original priority,
unimpaired by this Amendment.
Section
4.4 Expenses. The
Borrower agrees, regardless of whether or not the transactions contemplated
hereby shall be consummated, to pay all expenses incurred by the Lenders
incident to such transactions in the preparation of documentation relating
thereto, including all fees and disbursements of the counsel to the Lenders, for
services to the Lenders.
Section
4.5 General. Borrower shall
execute and deliver such additional documents and do such other acts as the
Lenders may reasonably require to implement the intent of this Amendment
fully. This Amendment may be executed in several counterparts by the
Borrower and the Lenders, each of which shall be deemed an original but all of
which together shall constitute one and the same
Amendment. This Amendment shall be governed by the laws of the
State of New York without reference to the conflict of law provisions
thereof.
[Signature
page follows]
9
IN WITNESS WHEREOF, the
undersigned have caused this Amendment to the Purchase Agreement to be executed
as of the date first above written.
FIRSTGOLD CORP. | |||
|
By:
|
/s/ Xxxxxxx Akerfeldt | |
Name: | Xxxxxxx Akerfeldt | ||
Title: | CEO | ||
PLATINUM
LONG TERM GROWTH, LLC
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | |
Name: | Xxxx Xxxxxxxxx | ||
Title: | General Manager | ||
LAKEWOOD
GROUP LLC
|
|||
|
By:
|
/s/ Xxxx Xxxxxxx | |
Name: | Xxxx Xxxxxxx | ||
Title: | Manager | ||
Omnirock,
Inc., as Guarantor pursuant the Guaranty (the “Guaranty”), dated August 7, 2008,
delivered to the Lenders, hereby acknowledges and agrees to the execution and
delivery of this Amendment and consents to the modifications to the Purchase
Agreement and the Notes contained herein and in the Amended Platinum Note and
the Amended Lakewood Note. The undersigned hereby acknowledges that
amounts advanced under the Transaction Documents to date and in the future,
including but not limited to, amounts advanced under the Purchase Agreement, as
amended hereby, shall be guaranteed Obligations under and as defined in the
Guaranty. The undersigned further confirms that nothing in the
Guaranty or this Amendment shall require or suggest that the consent or
confirmation by the undersigned of its obligations under the Guaranty is
required in connection with this Amendment or any other amendment or
modification of any of the Transaction Documents as a condition to the continued
effectiveness of the Guaranties.
OMNIROCK,
INC.
By: /s/ Xxxxxxx
Akerfeldt
Name: Xxxxxxx
Akerfeldt
Title: CEO
10
EXHIBITS/ATTACHMENTS
Exhibit
1.2A
Platinum Notes: | ||
Initial Platinum Note: |
Principal of
$5,394,100
|
|
Accrued Interest of $354,811.93 | ||
August Platinum Note: | Principal of $378,378.37 | |
Accrued Interest of $24,048.05 | ||
September 10 Platinum Note: | Principal of $1,081,081.08 | |
Accrued Interest of $67,027.03 | ||
September 29 Platinum Note: | Principal of $2,772,440.54 1 | |
Accrued Interest of $164,481.27 | ||
Total: | Principal: $9,625,999.99 | |
Interest: $610,368.28 | ||
Lakewood Notes: | ||
Initial Lakewood Note: | Principal of $1,348,525.00 | |
Accrued Interest of $88,702.98 | ||
August Lakewood Note: | Principal of $94,594.60 | |
Accrued Interest of $6,012.01 | ||
September 10 Lakewood Note: | Principal of $270,270.27 | |
Accrued Interest of $16,756.76 | ||
September 29 Lakewood Note: | Principal of $693,110.14 1 | |
Accrued Interest of $41,120.32 | ||
Total: | Principal: $2,406,500.01 | |
Interest: $152,592.07 |
__________________
1 Including the increase in principal
amount pursuant to Sections 2.9 and 3.1(c) hereof.
11