WAIVER OF DEFAULT
This
Waiver of Default (this “Waiver”)
is entered into as of February 16, 2010, by and between St. Xxxxxx Investments,
LLC, an Illinois limited liability company (“Lender”),
and Radiant Pharmaceuticals, Inc., a Delaware corporation (formerly AMDL, Inc.)
(“Borrower”).
A. Borrower
previously issued to Lender a certain Convertible Promissory Note dated
September 15, 2009 (the “Note”).
B. Under
that certain Waiver of Default entered into between Lender and Borrower as of
December 11, 2009 (the “Initial
Waiver”), Borrower agreed to repay the entire balance of the Note,
including any adjustments thereto pursuant to the terms of the Initial Waiver,
by February 1, 2010.
C. Borrower
failed to pay the entire balance of the Note by February 1, 2010 and is
consequently in default under the terms of the Note as of such date (the “Default”).
D. Borrower
now desires that Lender waive the Default and Lender has agreed to do so subject
to the terms and conditions of this Waiver.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Waiver. Subject
to Borrower’s compliance with the terms and conditions of this Waiver, Lender
hereby waives the occurrence of the Default effective as of the date hereof and
continuing through May 15, 2010. In conjunction therewith (and subject to
Borrower’s compliance with the terms and conditions of this Waiver), Lender
agrees to (i) not accelerate the amounts due under the Note prior to May 15,
2010, and (ii) exercise the Warrant to Purchase Shares of Common Stock
originally issued by Borrower to Lender on September 15, 2009 (the “Warrant”)
as to 140,000 shares of Borrower’s common stock at the price determined in the
Warrant, which price shall be payable in cash by February 16, 2010.
Notwithstanding anything to the contrary herein, the foregoing waiver and
agreement not to accelerate the Note shall not apply to the occurrence of a
Trigger Event or an Event of Default (as defined in the Note) on or after May
15, 2010, or any other Trigger Event or default not waived hereunder that occurs
prior to May 15, 2010, even if the occurrence of such Trigger Event or Default
incorporates days prior to May 15, 2010.
2. Prior Waiver. For the
avoidance of doubt and subject to the terms and conditions of this Waiver,
Lender’s rights under the Note shall be calculated as though all prior waivers
had never been entered into.
3. Default Fee. As
additional consideration for Lender’s waiver in Section 1, Borrower shall pay to
Lender a default fee equal to $50,000 (the “Default
Fee”), which Default Fee shall be added to the balance of the Note
effective as of the date of this Waiver.
4. Failure to Comply.
Upon the occurrence of any of the following events, Lender’s waiver given herein
shall immediately be deemed withdrawn, such waiver shall be deemed to have never
been given, and the occurrence of the Default shall again be
effective:
(a) If
any of Borrower’s assets are assigned to its creditors, if Borrower fails to pay
its debts generally as they become due, or if Borrower files any petition,
proceeding, case or action for relief under any bankruptcy, reorganization,
insolvency or moratorium law, rule, regulation, statute or ordinance
(collectively, “Laws and
Rules”), or any other Law and Rule for the relief of, or related to,
debtors;
(b) If
any involuntary petition is filed under any bankruptcy or similar Law or Rule
against Borrower, or a receiver, trustee, liquidator, assignee, custodian,
sequestrator or other similar official is appointed to take possession of any of
the assets or properties of Borrower or any guarantor; or
(c) If
Borrower fails to deliver shares of its common stock to Lender pursuant to a
conversion allowance under the Note within 5 days of Lender’s request for
conversion.
Upon the
occurrence of any of the foregoing, notwithstanding any other rights or remedies
of Lender hereunder, Lender shall remain entitled to the Common Shares and shall
receive the Default Fee as compensatory damages for Borrower’s breach of this
Waiver.
5. Ratification of
Note. The Note shall be and remain in full force and effect in
accordance with its terms and hereby is ratified and confirmed in all
respects. Except as expressly set forth herein, the execution,
delivery, and performance of this Waiver shall not operate as a waiver of, or as
an amendment of, any right, power, or remedy of Lender under the Note, as in
effect prior to the date hereof.
6. Governing Law; Venue.
This Waiver and all actions arising out of or in connection with this Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois, without regard to the conflicts of law provisions of the State of
Illinois or of any other state. With respect to any disputes arising
out of or related to this Agreement, the parties consent to the exclusive
jurisdiction of, and venue in, the state courts in Illinois (or in the event of
exclusive federal jurisdiction, the United States District Court Northern
District of Illinois).
7. Severability. If any
part of this Waiver is construed to be in violation of any law, such part shall
be modified to achieve the objective of the parties to the fullest extent
permitted and the balance of this Agreement shall remain in full force and
effect.
8. Further Assurances.
Each party shall do and perform or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other Party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated
hereby.
9. Attorneys’ Fees. If
any action in law or in equity is brought by a party to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and disbursements, in addition to any other relief to
which such party may be entitled.
10. Counterparts. This
Waiver may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
instrument.
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of page intentionally left blank]
IN
WITNESS WHEREOF, the undersigned have executed this Waiver as of the first date
above written.
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BORROWER:
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RADIANT
PHARMACEUTICALS, INC.
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By: ___________________________________
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Name:
_________________________________
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Title: _________________________________
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LENDER:
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ST.
XXXXXX INVESTMENTS, LLC
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By: ___________________________________
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Xxxx
X. Xxxx, Manager
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