ALLONGE (Firmly affix to original Note)
10(c)
ALLONGE
(Firmly
affix to original Note)
THIS
ALLONGE ("Agreement") is made as of February 23, 2007, by and
between DURAVEST, INC., Illinois corporation ("Borrower") and ABSOLUTE
OCTANE
FUND LIMITED ("Holder").
RECITALS
The
Borrower executed and delivered to the order of tile Holder its Convertible
Secured Promissory Note, dated as of January 17,2006 (ANote"), in the original
principal amount of $714,233.00, to evidence certain indebtedness extended
by
the Holder to the Borrower (ALoan®).
The
Borrower has requested that the Holder modify the terms of the Note in
certain
respects. The Holder has agreed to the Borrower=s request, but only upon
the
terms and conditions provided in this Agreement.
NOW
THEREFORE, in consideration of these premises, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Amendments To Note. The provisions of the Note are hereby amended and
modified as follows:
a.
The
definition of "Maturity Date" is amended
and modified by striking the following sentence from page 1 of the
Note:
The
Principal of the Note shall be due and payable, together with any then
unpaid
interest on January 17, 2007 (the "Maturity Date").
b.
The
following sentence shall be inserted in
its place:
The
Principal of the Note shall be due and payable, together with any then
unpaid
interest on the 31st day of January 2007 (the "Maturity Date").
c.
The
following sentences shall be
inserted at the end of the last sentence in subparagraph (a) of the
Note:
To
the extent the Company's Amended and Restated Articles of
Incorporation ("Charter") do not have a sufficient number of shares of
Common
Stock authorized to satisfy a conversion notice, the Company will issue
and
deliver to Holder the maximum number of shares of Common Stock that it
is
authorized to deliver under its Charter. The Company will use its best
efforts
to amend the Charter to authorize a sufficient number of shares of Common
Stock
to satisfy the full conversion and shall promptly issue and deliver such
shares
to Holder upon the effective date of such amendment
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2.
Warranties and Representations. As an inducement to the Holder to enter
into this Agreement, the Borrower makes the following representations and
warranties to the Holder and acknowledges the Holder=s justifiable reliance
thereon:
a.
All warranties and representations previously made to the Holder by the
Borrower
remain true; accurate and complete.
b.
This Agreement and the Note, as modified and amended in accordance herewith,
are
the valid and binding obligations of the Borrower and are fully enforceable
in
accordance with their terms.
3.
No Novation: No Refinance; No Adverse Affect On Liens. The parties hereto
do not intend that a novation of the Loan or the Note shall be created
or
effected by or as a result of the amending of the Note as described herein.
The
parties hereto do not intend that the execution of this Agreement or the
amendments to the Note as described herein shall: (a) constitute a refinance
of
the Loan; or (b) affect the validity or priority of any of the liens or
security
interests imposed by or granted in the Note.
4.
Incorporation. The terms and conditions of the Note are incorporated by
reference herein and made a part hereof, as if fully set forth herein.
In the
event of any inconsistency between this Agreement and the Note, such
inconsistency shall be construed, interpreted and resolved so as to benefit
the
Holder, independent of whether this Agreement or the Note controls, and
the
Holder=s election of which interpretation or construction is for the Holder=s
benefit shall absolutely govern.
5.
No Other Modification; Final Agreement. Except as set forth in this
Agreement, the Note remains unmodified and in full force and effect. Nothing
contained herein shall be deemed to affect the priority or enforceability
of the
Note.
6.
Fees And Expenses. The Borrower shall pay on the date of this Agreement
reasonable costs in connection with this Agreement, including but not limited
to
reasonable attorneys= fees.
7. Binding
Effect.
This
Agreement shall inure to the benefit of the parties hereto, and shall
be binding
upon their successors, personal representatives and assigns.
8. Choice
of Law.
The
laws of the State of Illinois (excluding, however, conflict of law
principles) shall govern and be applied to determine all issues relating
to this
Agreement and the
rights and obligations of the parties hereto, including the validity,
construction, interpretation,
and enforceability of this Agreement and its various provisions and the
consequences and legal effect of all transactions and events which resulted
in
the execution of this
Agreement or which occurred or were to occur as a direct or indirect
result of
this Agreement
having been executed.
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9.
Consent To Jurisdiction; Agreement As To Venue. The Borrower irrevocably
consent to the non-exclusive jurisdiction of the state or federal courts
of the
State of Illinois or the State of New York.
10. Tense,
Gender, Defined Terms, Captions.
As used
Herein, the plural shall refer to and include the singular, and the singular,
the plural and the Use of any gender shall include and refer
to
any other gender. All defined terms are completely capitalized throughout
this
Agreement. All captions are for the purpose of convenience
only.
11.
Time. Time is of the essence with respect to this Agreement and alt
terms
and conditions described herein.
12.
No
Defenses Or Offsets; Release Of Any Claims. In consideration For the
agreement of the Holder to extend the maturity of the Loan as provided
for
herein, the Borrower hereby acknowledges and agrees that it hereby forever
waives and releases any and all defenses or offsets, known or unknown to
the
Borrower, which might restrict the immediate right of the Holder, upon
the
occurrence of an event of default Under the Note, to do the following:
(a)
require the payment in full of the Loan; and (b) initiate enforcement and
collection proceedings against the Borrower or against any collateral securing
the obligations of the Borrower to the Holder. The Borrower hereby releases,
waives, discharges and agrees to hold the Holder and its officers, directors,
agents and employees harmless from arty and all claims, known or unknown,
which
the Borrower might have against the Holder or its officers, directors,
agents or
employees which in any way relate, pertain, or arise, directly or indirectly,
from the Loan, the Note, this Agreement, or which otherwise relate or pertain
to
the collateral securing the obligations of the Borrower due to the Holder
or the
transactions described in this Agreement or the conduct of the parties
with
respect thereto.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as
of the date first above written. This Agreement may be executed in
counterparts.
| WITNESS/ATTEST: | BORROWER: | ||
| /s/ Xxxxxxx Xxxxxx | (SEAL) | ||
| Name: Xxxxxxx Xxxxxx | |||
| Title: CEO |
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| HOLDER: | |||
| /s/ Xxxxxxx Xxxx | (SEAL) | ||
| Name: Xxxxxxx Xxxx | |||
| Title: Principal |
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