AMENDMENT AND WAIVER AGREEMENT
This
Amendment and Waiver Agreement (this “Agreement”),
is
made and entered into as of September 30, 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
13%
Secured Convertible Debentures due, subject to the terms therein, November
24,
2007 (the “Debentures”)
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)(vii) and 8(a)(xii) as a result of the Company’s delisting from Nasdaq and
failure to timely effect the Reverse Stock Split, which shall be deferred
pursuant to the terms hereunder (collectively, the “Existing
Defaults”);
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 Defaults, 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 Defaults have 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 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 Defaults.
The
Holder hereby agrees, solely in connection with the existence of the Existing
Defaults, to waive until the Maturity Date (as defined in the Debentures) its
right to enforce payment of the Debentures. Notwithstanding anything herein
to
the contrary, this waiver is limited only to the Existing Defaults and any
other
past or future Events of Default, including a breach of this Agreement, shall
not be deemed waived hereunder.
3. Amendment
to Debentures.
A. Sections
8(a)(vii) and 8(a)(xii) of the Debentures are hereby amended in their entirety
and replaced with the following:
“(vii) [INTENTIONALLY
OMITTED];”
“(xii) [INTENTIONALLY
OMITTED]; or”
4. RELEASE.
IN
CONSIDERATION FOR GRANTING THE WAIVER SET FORTH IN SECTION 2 ABOVE AND THE
AMENDMENTS IN SECTION 3 ABOVE, 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.
iv. Survival
and Bring Down.
All of
the Company’s warranties and representations contained in this Agreement shall
survive the execution, delivery and acceptance of this Agreement by the parties
hereto. The Company expressly reaffirms that each of the representations and
warranties set forth in the Purchase Agreement, except with respect to the
Existing Defaults, continues to be true, accurate and complete, and the Company
hereby remake and incorporate herein by reference each such representation
and
warranty as though made on the date of this Agreement.
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:
i. Authority.
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. 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 on behalf of the Company
certifying that 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 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 October 4, 2007, 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.
[SIGNATURE
PAGE FOLLOWS]
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
********************
[HOLDERS’
SIGNATURE PAGE FOLLOWS]
[HOLDER’S
SIGNATURE PAGE TO ANLT AMENDMENT AGREEMENT]
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, LP
Signature
of Authorized Signatory of Holder:
/s/Xxxxx
Xxxxxx and Xxxxxx xxx Xxxxx
Name
of
Authorized Signatory: Navigator Management LTD
Title
of
Authorized Signatory: Director
Name
of
Holder: Harborview Master Fund, LP
Signature
of Authorized Signatory of Holder:
/s/
Xxxxxxx Xxxxx and Xxxxxx xxx Xxxxxx
Name
of
Authorized Signatory: Navigator Management LTD
Title
of
Authorized Signatory: Authorized Signatory
Name
of
Holder: DKR Soundshore Oasis Holding Fund, Ltd, by DKR Oasis Management Company
LP, its investment managerP
Signature
of Authorized Signatory of Holder:
/s/Xxxxxxx
Xxxxxx
Name
of
Authorized Signatory: Xxxxxxx Xxxxxx
Title
of
Authorized Signatory: Authorized Signatory
ANALYTICAL
SURVEYS, INC.
CHIEF
EXECUTIVE OFFICER’S CERTIFICATE
Dated
September 30, 2007
In
connection with that certain Amendment and Waiver Agreement dated as of
September 30, 2007 (the “Waiver Agreement”), the undersigned hereby certifies
that she is the duly elected, qualified and acting Chief Executive Officer
of
Analytical Surveys, Inc. (the “Company”), and that the undersigned is authorized
to execute this Certificate on behalf of the Company, and further certifies
that:
The
Company hereby certifies that no Event of Default and no event which, with
the
giving of notice or passage of time (or both), would constitute a Event of
Default under the Debentures (as defined in the Waiver Agreement) has occurred
or is continuing.
IN
WITNESS WHEREOF,
the
undersigned has duly executed this Certificate as of the date first written
above.
ANALYTICAL
SURVEYS, INC.
By:
/s/Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Its: Chief
Executive Officer
