amendwaiv.htm


    
      AMENDMENT
        AND WAIVER AGREEMENT

      


      This
        Amendment and Waiver Agreement (this “Agreement”), is made
        and entered into as of December 31, 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
        (i) 13% Secured Convertible Debentures due, subject to the terms therein,
        November 24, 2007 (the “Debentures”) and (ii)
        Common Stock Purchase Warrants dated November 24, 2007, subject to the terms
        therein (the “Warrants”) 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)(i)(A) as a result of the Company’s failure to pay the principal amount of
        the Debentures on November 29, 2007 (the “Existing
        Default”);

      


      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 Default, 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 Default has 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, upon written notice, 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
        Default.  The Holder hereby agrees, solely in connection with
        the existence of the Existing Default, to waive until the Maturity Date (as
        defined in the Debentures and amended hereunder) its right to enforce payment
        of
        the Debentures and to deem such Existing Default to have not
        occurred.  Notwithstanding anything herein to the contrary, this
        waiver is limited only to the Existing Default and any other past or future
        Events of Default, including a breach of this Agreement, shall not be deemed
        waived hereunder (except in cases where such Events of Default have been
        specifically waived in writing by the Holders.

      


      3. Amendment
        to
        Debentures.

       

      A. The
        definition of “Maturity Date” under the Debentures is hereby amended such that
        the entire principal amount of the Debentures is due and payable on March
        31,
        2008, or such earlier date as the Debentures are required or permitted to
        be
        repaid as provided thereunder.

       

      B.           
        In consideration of the extension of the Maturity Date set forth
        above:

       

      (i)
        Section 4(b) of the Debentures is hereby amended in its entirety and replaced
        with the following:

       

      “b)           
        Conversion
        Price.  The conversion price in effect on any Conversion Date
        shall be equal to $0.10 subject to adjustment herein (the “Conversion Price”).”;
        and

       

      (ii)
        Section 2(b) of the Warrants is hereby amended in its entirety and replaced
        with
        the following:

       

      “b)           
        Exercise
        Price.  The exercise price per share of the Common Stock under
        this Warrant shall be equal to $0.10 subject to adjustment herein (the “Exercise
        Price”).”

       

      4. RELEASE.  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.

       

      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: (a) 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 and (b)
        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 of the Company certifying
        that, to the best knowledge of the Chief Executive Officer after reasonable
        investigation, 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 (including
        the
        Additional Debentures) 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 the fourth Trading Day
        immediately following the date hereof, 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.

       

      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/Lori
        Jones

            Name:  Lori
        Jones

            Title:  Chief
        Executive Officer

      


      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

      Signature
        of Authorized Signatory of
        Holder: /s/Peter
        Cooper

      Name
        of
        Authorized Signatory: Navigator Management LTD, Director

      Title
        of
        Authorized Signatory:   Director

      


      Name
        of
        Holder:  Harborview Master Fund, LP

      Signature
        of Authorized Signatory of
        Holder: /s/David
        K. Sims /s/ Peter
        Cooper

      Name
        of
        Authorized Signatory:  Navigator Management Ltd

      Title
        of
        Authorized Signatory:   Authorized Signatory

      


      Name
        of
        Holder:  DKR Soundshore Oasis Holdgin Fund Ltd

      Signature
        of Authorized Signatory of
        Holder: /s/Barbara
        Burger

      Name
        of
        Authorized Signatory: Barbara Burger

      Title
        of
        Authorized Signatory:   Authorized signatory of DKR Oasis
        Management Company LP, its investment manager