Exhibit 10.36
Execution Version
A MENDMENT T O A MENDED A ND R ESTATED S ECURED P ROMISSORY N OTE A ND
A MENDED A ND R ESTATED L OAN A GREEMENT
This Amendment to Amended and Restated
Secured Promissory Note and Amended and Restated Loan Agreement
(this “ Amendment ”) is made and entered into as
of March 31, 2009 by and between Voyant International
Corporation , a Nevada corporation (the “ Company
”) and The Brown Family Trust, an Alaskan trust (the “
Lender ”).
WHEREAS , the Company has entered into an agreement with the
Lender under a Amended and Restated Loan Agreement, dated
June 9, 2008 (as amended, modified, supplemented, extended, and/or
restated from time to time, the “ Loan Agreement
”), and entered into an agreement with the Lender under a
Amended and Restated Secured Promissory Note, in the original
principal amount of $702,703 dated
June 9, 2008 (as amended, modified, supplemented, extended, and/or
restated from time to time, the “ Promissory Note
”), and issued the Promissory Note to the Lender.
WHEREAS , the Company and the Lender wish to amend certain
provisions of the Loan Agreement and the Promissory Note, as set
forth herein.
NOW, THEREFORE , in consideration of the premises and of the mutual
promises, covenants, representations and warranties made herein,
the Company and the Lender intending to be legally bound, hereby
agree as follows:
1.
D
EFINITIONS
.
Unless otherwise defined herein,
capitalized terms used in this Amendment shall have the meanings
ascribed to them under the Loan Agreement and the Promissory
Note.
2.
A
MENDMENTS TO
P ROMISSORY N OTE
2.1.
Maturity Date
For
purposes of the Promissory Note, the defined term “Maturity
Date” shall be amended to mean “October 9,
2009”.
3.
A
MENDMENTS TO
L OAN A GREEMENT
3.1.
Maturity Date
Section 2.4 of the Loan Agreement is
hereby amended to read as follows:
“2.4
Maturity Date .
Unless the Loan is earlier accelerated
pursuant to the terms hereof, the Loan and all accrued Interest
thereon shall be due and payable in full on October 9, 2009 (the
“ Maturity Date ”).”
3.2.
Identity of Lender
Any and all
references in the Loan Agreement to the “Lender” shall
be deemed to mean and include The Brown Family Trust, an Alaskan
trust, and its successors and assigns.
513022 000004 DALLAS
2464998.3
3.3.
Sale of Additional Equity Securities of the
Company
Notwithstanding the terms of the Loan Agreement,
including without limitation Section 5.1(b) thereof, to the
contrary, the Lender hereby agrees that the Company may (a) sell up
to $150,000 worth of additional common stock of the Company per
calendar month; provided, however, that (i) all such sales of
additional Equity Securities of the Company must be made for cash
consideration actually received by the Company, (ii) the proceeds
from the sales of such additional Equity Securities must be
utilized by the Company to pay the Company’s normal operating
expenses, and (iii) within five (5) days after the end of each
calendar month in which any such sale(s) occur, the Company shall
furnish to the Lender a certificate, executed by the chief
financial officer of the Company, stating the amount of such Equity
Securities of the Company sold during such calendar month,
including the identity of the party(ies) to whom such Equity
Securities were sold, the price(s) at which such Equity Securities
were sold, and such other information as the Lender shall, from
time to time, request with respect to the sale(s) of such Equity
Securities, and (b) issue common stock of the Company in order to
convert the Whitestar Subordinated Debt (as such term is
hereinafter defined) to common stock of the Company pursuant to,
and only in accordance with the terms of, Section 4(a) of the
Intercreditor Agreement (as such term is hereinafter defined),
following the failure of the Lender to exercise the Purchase Option
described in Subsection 6(d) of such Intercreditor Agreement. For
purposes of this Amendment, the term “Whitestar Subordinated
Debt” shall mean the existing subordinated indebtedness of
the Company, in the aggregate outstanding principal amount of
$300,000, owing to White Star LLC, SRZ Trading LLC, Mueller Trading
LP, and Jason Lyons (collectively, the “Whitestar
Parties”). For purposes of this Amendment, the term
“Intercreditor Agreement” shall mean that certain
Intercreditor Agreement, of even date herewith, among the Company,
the subsidiaries of the Company, the Lender, WAA, LLC, and the
Whitestar Parties.
4.
S
URVIVAL OF
P ROVISIONS . Except as specifically amended above, the
Promissory Note and Loan Agreement are hereby ratified, confirmed,
and acknowledged and shall remain in full force and
effect.
5.
A
DDITIONAL
C OVENANTS AND A GREEMENTS OF THE C OMPANY.
The Company hereby covenants and agrees
with the Lender as follows:
(a)
contemporaneously with the execution and
delivery of this Amendment, the Company shall have caused each of
its subsidiaries to have unconditionally guaranteed all of the
obligations and liabilities of
