ex10-4.htm


    Exhibit
10.4

     

    FIRST
AMENDMENT TO SECURED CONVERTIBLE DEBENTURE

        (Original
Principal Amount: $1,159,047; No. CCP-2; Issued December 30, 2005)

     

    FIRST
AMENDMENT dated as of October ___, 2009 (this “Amendment”) with
respect to that certain 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 “Debenture”) issued by
Trey Resources, Inc. (“Company”) to YA
Global Investments, L.P. (“Holder”).

     

    W I T N E S S E T H:

     

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

     

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

     

    WHEREAS,
this is the First Debenture Amendment referred to in that certain Amendment
Agreement dated as of the date hereof (the “Amendment Agreement”)
by and between Company and Holder.

     

    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

     

    AMENDMENTS

     

    Section
1.1. Amendment to
Debenture.  The definition of “Maturity Date” in the “FOR VALUE
RECEIVED” clause on page 1 of the Debenture is hereby amended by deleting the
date “December 30, 2007” and inserting in lieu thereof the date “December 30,
2010.”

     

    ARTICLE
II

     

    EFFECTIVE
DATE

     

    Section
2.1. Effective
Date.  This Amendment shall become effective as of the
Effective Date (as defined in the Amendment Agreement).

     

    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 Debenture and the
other Transaction Documents (as defined in the Debenture).  The
Company and Holder each hereby acknowledges and agrees that the Debenture shall
continue to be and shall remain unchanged and in full force and effect in
accordance with its terms, except as expressly modified hereby and by the
Amendment Agreement.  Any terms or conditions contained in this
Amendment and the Amendment Agreement shall control over any inconsistent terms
or conditions in the Debenture.

     

    Section
3.2. No
Waiver.  Nothing contained in this Amendment 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 Debenture, 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, (a) no default or
Event of Default has occurred and is continuing and (b) all representations and
warranties of the Company contained in the Debenture 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. 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.

     

    Section
4.3. Counterparts.  This
Amendment 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
4.4. GOVERNING
LAW.  THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT
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 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