Exhibit 10.37
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 an Amended and Restated Loan Agreement, dated October
14, 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 an
Amended and Restated Secured Promissory Note, in the original
principal amount of $1,000,000, dated as of October 14, 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 T O L OAN A GREEMENT
2.1.
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
513022 000004 DALLAS
2472333.1
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.
3.
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.
4.
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 the Company to the Lender (the
“ Obligations ”), pursuant to documentation in
form and substance acceptable to the Lender, in its sole and
complete discretion, including, without limitation, such
representations, warranties, covenants and agreements as the Lender
shall deem appropriate in connection with a transaction of this
type;
(b)
contemporaneously with the execution and
delivery of this Amendment, t
