EXHIBIT 10.1
AMENDMENT, WAIVER AND CONSENT TO TRANSACTION DOCUMENTS AGREEMENT
Agreement made this 28 day of July, 2005 ("Amendment") among Trend
Mining Company, a Delaware corporation (the "Company"), and the signators hereto
who are Subscribers under a certain Subscription Agreement with the Company
dated as of January 27, 2005 ("Subscribers").
For good and valuable mutual consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. All capitalized terms herein shall have the meanings ascribed to
them in the Transaction Documents (as defined in the Subscription Agreement).
2. The Company and the Subscribers hereby agree to amend the
Transaction Documents to reflect the additional Purchase Price ("Additional
Purchase Price") as set forth on Schedule A hereto. Purchase Price shall mean
the aggregate of the Purchase Price in connection with the January 27, 2005
Closing Date and the Additional Purchase Price.
3. An additional Closing (the "Second Closing") shall take place on or
before July 28, 2005 (the "Second Closing Date") in connection with the
Additional Purchase Price and the Notes and Warrants issuable in connection
therewith, upon satisfaction of all conditions to Closing set forth in the
Transaction Documents and in this Amendment. The amount of the Additional
Purchase Price and all documents to be delivered hereunder will be deposited and
held with the Escrow Agent and released pursuant to the Escrow Agreement. The
Notes and Warrants to be delivered on the Second Closing Date are included in
the definition of "Securities" in the Subscription Agreement.
4. All the representations, warranties and undertakings made by the
Company in the Transaction Documents as of the Closing Date are hereby made by
the Company as of the Second Closing Date, as if such representations,
warranties and undertakings were also made and given on the Second Closing Date
except as modified on Schedule B hereto.
5. All the representations, warranties and undertakings made by the
Subscribers contained in the Transaction Documents as of the Closing Date are
hereby made by the Subscribers as of the Second Closing Date, as if such
representations, warranties and undertakings were also made and given on the
Second Closing Date.
6. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Company as of and for the Second
Closing Date.
7. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Subscribers as of and for the
Second Closing Date.
8. On or before the Second Closing Date, the Company will deliver to
the Subscribers, Notes, and Warrants issued as of the Second Closing Date in the
amounts set forth on Schedule A hereto in connection with the Additional
Purchase Price which the Subscribers will deposit with the Escrow Agent on or
before the Second Closing Date.
9. The Filing Date to amend the Registration Statement to include the
Registrable Securities underlying the Additional Purchase Price Notes and
Warrants to be issued in connection with the Second Closing shall be fifteen
(15) days after the Second Closing Date. The Effective Date for all Registrable
Securities shall be forty-five (45) days after the Second Closing Date.
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10. The Maturity Date of the Notes to be issued on the Second Closing
Date will be the same as the Maturity Date of the Notes issued on the Closing
Date.
11. The Warrants to be issued on the Second Closing Date will be
identical to the Warrants issued on the Closing Date except as to the Issue Date
and Expiration Date.
12. On or before the Second Closing Date, the Company will deliver to
the Subscribers the legal opinion described in Section 6 of the Subscription
Agreement in relation to the Second Closing, Additional Purchase Price, Notes,
and Warrants to be delivered on the Second Closing Date, which opinion will be
substantively identical to the legal opinion delivered in connection with the
Closing.
13. In connection with the Additional Purchase Price, GHillie Finanz
will receive cash Due Diligence Fee and Due Diligence Warrants in the same
proportion as received in connection with the January 27, 2005 Closing.
14. The undersigned waive the rights granted to them pursuant to
Section 12 of the Subscription Agreement only to the extent such rights relate
to the aggregate Additional Purchase Price.
15. The attorney for the Subscribers will receive additional Legal Fees
from the Company of $5,000 which will be payable on the Release Date out of the
Escrowed Payment (as defined in the Escrow Agreement).
16. The signators hereto acknowledge and agree that the Security
Agreement and Collateral Agent Agreement executed by the Company, Subscribers
and Collateral Agent relate to the Additional Purchase Price as if such
Additional Purchase Price had been paid and released to the Company on the
January 27, 2005 Closing Date. The Collateral Agent is authorized to make
additional security interest filings at the discretion of the Collateral Agent.
17. The undersigned consent to the amendment of all Schedules, Exhibits
and documents including but not limited to the Security Agreement to include the
Additional Purchase Price.
18. The parties hereto agree to expeditiously proceed with the Second
Closing.
19. All other terms of the Transaction Documents shall remain in full
force and effect and govern this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first written above.
"COMPANY" "THE COLLATERAL AGENT"
TREND MINING COMPANY BARBARA R. MITTMAN
a Delaware corporation
By: /s/ Thomas Loucks /s/ Barbara Mittman
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Its: President and CEO
"SUBSCRIBERS":
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/s/ LONGVIEW FUND, LP /s/ LONGVIEW EQUITY FUND, LP
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LONGVIEW FUND, LP LONGVIEW EQUITY FUND, LP
/s/ LONGVIEW INTERNATIONAL EQUITY FUND, LP /s/ Deirdre M. McCoy
- ------------------------------------------ ------------------------------------------
LONGVIEW INTERNATIONAL EQUITY FUND, LP CAMDEN INTERNATIONAL, LTD.
/s/ ALPHA CAPITAL AKTIENGESELLSCHAFT
- ------------------------------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT
/s/ Barbara Mittman
- ------------------------------------------ ------------------------------------------
GRUSHKO & MITTMAN, P.C.
Escrow Agent
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SCHEDULE A TO AMENDMENT
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SUBSCRIBER ADDITIONAL PURCHASE PRICE PURCHASE PRICE OF
JANUARY 27, 2005
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LONGVIEW FUND, LP $350,000.00 $400,000.00
600 Montgomery Street, 44th Floor
San Francisco, CA 94111
Fax: (415) 981-5300
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LONGVIEW EQUITY FUND, LP -0- $250,000.00
600 Montgomery Street, 44th Floor
San Francisco, CA 94111
Fax: (415) 981-5300
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LONGVIEW INTERNATIONAL EQUITY FUND, LP -0- $150,000.00
600 Montgomery Street, 44th Floor
San Francisco, CA 94111
Fax: (415) 981-5300
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CAMDEN INTERNATIONAL, LTD. -0- $250,000.00
Charlotte House, Charlotte Street
P.O. Box N 9204
Nassau, Bahamas
Fax: 415-835-8320
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ALPHA CAPITAL AKTIENGESELLSCHAFT -0- $250,000.00
Pradafant 7
9490 Furstentums
Vaduz, Lichtenstein
Fax: 011-42-32323196
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TOTAL $350,000.00 $1,300,000.00
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