ex10-1.htm


    Exhibit 10.1

    
 

    AMENDMENT
AGREEMENT

     

    AMENDMENT
AGREEMENT dated as of October ___, 2009 (this “Amendment Agreement”)
with respect to that certain (i) Secured Convertible Debenture dated December
30, 2005 in the original principal amount of $1,159,047 (as amended, modified,
supplemented or amended and restated from time to time, the “First Debenture”)
issued by Trey Resources, Inc. (“Company”) to YA
Global Investments, L.P. (“Holder”), (ii)
Secured Convertible Debenture dated December 30, 2005 in the original principal
amount of $600,000 (as amended, modified, supplemented or amended and restated
from time to time, the “Second Debenture”)
issued by Company to Holder and (iii) Secured Convertible Debenture dated May 5,
2006 in the original principal amount of $600,000 (as amended, modified,
supplemented or amended and restated from time to time, the “Third Debenture” and,
collectively with the First Debenture and Second Debenture, the “Debentures”) issued
by Company to Holder.

     

    W I T N E S S E T H:

     

    WHEREAS,
pursuant to the Debentures, Holder provided Company with financial
accommodations which remain outstanding; and

     

    WHEREAS,
the Company has requested that Holder amend the Debentures, and Holder is
willing to do so, but only on the terms and conditions set forth
herein;

     

    NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:

     

    ARTICLE
I

     

    AGREEMENT
TO AMEND DEBENTURES

     

    Section
1.1. Amendment
Agreement.  Holder hereby agrees to amend the Debentures in
accordance with the terms and conditions of the Debenture Amendments (as
hereinafter defined).

     

    ARTICLE
II

     

    EFFECTIVE
DATE

     

    Section
2.1. Effective
Date.  This Amendment Agreement shall become effective as of
the date hereof (the “Effective Date”) upon
receipt by Holder of counterparts of the following, in each case, duly executed
and delivered by the Company and Holder:  (a) this Agreement, (b)
amendment number 1 to First Debenture (“First Debenture
Amendment”), (c) amendment number 1 to Second Debenture (“Second Debenture
Amendment”) and (d) amendment number 1 to Third Debenture (“Third Debenture
Amendment” and, collectively, with the First Debenture Amendment and
Second Debenture Amendment, the “Debenture
Amendments”).

     

    ARTICLE
III

     

    INTERPRETATION

     

    Section
3.1. Continuing Effect of
Debenture.  The Company hereby ratifies, confirms, and
reaffirms all and singular the terms and conditions of the Debentures and the
other Transaction Documents (as defined in the Debentures).  The
Company and Holder each hereby acknowledges and agrees that the Debentures shall
continue to be and shall remain unchanged and in full force and effect in
accordance with their respective terms, except as expressly modified hereby or
by the Debenture Amendments.  Any terms or conditions contained in
this Amendment Agreement and the Debenture Amendments shall control over any
inconsistent terms or conditions in the Debentures.

    Section
3.2. No
Waiver.  Nothing contained in this Amendment Agreement shall be
construed or interpreted or is intended as a waiver of any default or Event of
Default (as defined in the Transaction Documents) or of any rights, powers,
privileges or remedies that the Holder has or may have under the Debentures, any
other related document or applicable law on account of such default or Event of
Default.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ARTICLE
IV

     

    MISCELLANEOUS

     

    Section
4.1. Representations and
Warranties.  The Company hereby represents and warrants as of
the date hereof that, after giving effect to this Amendment Agreement, (a) no
default or Event of Default has occurred and is continuing and (b) all
representations and warranties of the Company contained in the Debentures and
the other Transaction Documents are true and correct in all material respects on
and as of the date hereof (or if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date).

     

    Section
4.2. Perfection
Certificate.  The Company shall, within 20 days of the date
hereof, deliver to Holder a current updated perfection certificate in the form
attached hereto as Exhibit A (“Perfection
Certificate”).  The agreement of the Company to deliver the
Perfection Certificate shall be deemed to be, and shall be, an agreement under
each of the Debentures, and any breach by Company of this Section 4.2 shall,
without the requirement of notice or any further action of any party, constitute
an Event of Default.

     

    Section
4.3. Cross-Default; Cross
Collateralization.  The Company hereby ratifies, confirms, and
reaffirms that (a) the obligations secured by the Transaction Documents include,
without limitation, the Obligations (as defined in the Transaction Documents),
and any future modifications, amendments, substitutions or renewals thereof, (b)
all collateral, whether now existing or hereafter acquired, granted to Holder
pursuant to the Transaction Documents, or otherwise shall secure all of the
Obligations until full and final payment of the Obligations, and (c) the
occurrence of a default and/or Event of Default under any Transaction Document
shall constitute a default and/or Event of Default under all of the Transaction
Documents, it being the express intent of the Company that all of the
Obligations be fully cross-collateralized and
cross-defaulted.  Without limiting the foregoing, and for the
avoidance of doubt, the Company hereby grants the Holder a security interest in
all of the Company’s assets, whether now existing or hereafter acquired,
including, without limitation, all accounts, inventory, goods, equipment,
software and computer programs, securities, investment property, financial
assets, deposit accounts, chattel paper, electronic chattel paper, instruments,
documents, letter-of-credit rights, health-care-insurance receivables,
supporting obligations, notes secured by real estate, commercial tort claims,
and general intangibles, including payment intangibles, and all products and
proceeds of the foregoing.

     

    Section
4.4. Fees and
Expenses.  The Company
agrees to pay to the Holder on demand all expenses including attorney’s fees and
expenses of the Holder in connection with the preparation, negotiation and
execution of this Amendment Agreement.

     

    Section
4.5. Counterparts.  This
Amendment Agreement may be executed by the parties hereto in any number of
separate counterparts, each of which when duly executed shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.

     

    Section
4.6. GOVERNING
LAW.  THIS
AMENDMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT GIVING EFFECT TO
ITS CONFLICTS OF LAW PRINCIPLES).

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.

     

    


    
      	
              TREY
      RESOURCES, INC.

               

               

              By:
      _________________________________

              Name:

              Title:

            
	 
      
	
              YA
      GLOBAL INVESTMENTS, L.P.

            
	 
      
	
              By:           Yorkville
      Advisors, LLC

            
	
              Its:           General
      Partner

            
	 
      
	
              By:                                                                              
        

            
	
              Name:           Mark
      Angelo

            
	
              Title:           Portfolio
      Manager

            


    

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A


    PERFECTION
CERTIFICATE