Exhibit 10.38
Execution Version
A MENDMENT T O S ECOND A MENDED A ND R ESTATED S ECURED P ROMISSORY N OTE A ND
S ECOND A MENDED A ND R ESTATED L OAN A GREEMENT
This Amendment to Second Amended and
Restated Secured Promissory Note and Second 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 Second Amended and Restated Loan Agreement,
dated February 29, 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 Second Amended and Restated Secured Promissory Note,
in the original principal amount of $2,000,000, dated as of
February 29, 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 have heretofore entered
into a certain Amendment, dated February 20, 2009, to the Loan
Agreement and the Promissory Note, pursuant to which the maturity
date of the Promissory Note has been extended to May 26,
2009.
WHEREAS , the Company and the Lender wish to further 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 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 T O L OAN A GREEMENT
3.1.
Due Date
The
following sentence in Section 2.5 of the Loan Agreement:
“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 the earlier of
(i) the date that is three hundred sixty (360) days following the
Loan Closing Date; and (ii) the date on which the Company has
received an aggregate of $2,500,000 from
the sale(s) of its Equity Securities,
from and after the Loan Closing Date, in one or a series of
transactions (the ‘Maturity Date’).”
shall be replaced with the following
sentence:
“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.
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 O F 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 DDITION
