AMENDMENT TO LOAN AGREEMENT
AMENDMENT TO LOAN
AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT
is dated as of November 30, 2010
(this “Amendment”), by and
between Emerald Dairy Inc., a Nevada
corporation (the “Company”), and Wen
Xxxxx Xxx, a resident of the People’s Republic of China (the “Lender”).
RECITALS:
A. On
November 30, 2009, the Company and the Lender entered into a Loan Agreement (the
“Loan
Agreement”), pursuant to which the Lender made a loan (the “Loan”) to the Company
in the principal amount of One Million Seven Hundred Fifty Thousand ($1,750,000)
Dollars (the “Principal”), in
consideration for which the Company issued to the Lender a non-negotiable
promissory note in the amount of the Principal (the “Original Note”),
which matures on November 30, 2010, and bears interest at a rate of 10% per
annum, which is also payable on November 30, 2010.
B. The
parties desire to amend the Loan Agreement, in order to, inter alia, modify the
terms and conditions thereof upon the terms and subject to the conditions set
forth in this Amendment and the Exhibits hereto.
NOW, THEREFORE, in
consideration of the premises and the other mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Accuracy
of Recitals; Definitions. Each of the Company and the Lender
acknowledges and agrees that the foregoing Recitals are true and accurate and
are incorporated herein by reference. The Loan Agreement and Original
Note shall be referred to herein collectively as the “Transaction
Documents.” Capitalized terms used and not otherwise defined herein
are used as defined in the Transaction Documents.
2. Amendments
to the Original Note.
2.1 Upon
satisfaction of the conditions set forth in Section 3 below, the Original Note
shall be amended so that the Maturity Date of the
Original Note is extended from November 30, 2010 to November 30, 2011;
and
2.2 The Company shall issue and deliver, or cause to be
delivered, to the Lender, against delivery by the Lender of his Original Note,
marked “canceled”, a duly executed Amended and Restated Note reflecting the
change set forth in Section 2.1 above, in the form of Amended and Restated Note
attached hereto as Exhibit A (the “Amended Note”).
3. Conditions
Precedent. The effectiveness
of this Amendment is subject to satisfaction of each of the following conditions
precedent:
3.1 The
representations and warranties made by the Company in this Amendment are
accurate in all respects.
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3.2 No
Event of Default shall be in existence under the Original Note.
3.3 No
Material Adverse Effect has occurred since the date of filing of the Company’s
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
2010.
3.4 No
suit, proceeding or action has been commenced against or involving the Company
which, if successful, would result in a Material Adverse Effect.
3.5 The
Lender shall have received the following documents and other items from the
Company, duly executed by an authorized representative of the Company, as
necessary:
(a) An
executed copy of this Amendment;
(b) An
executed original of the Amended Note; and
(c) Evidence
that the execution, delivery and performance of this Amendment by the Company
has been duly authorized by all necessary corporate action.
3.6 The
Company shall have received the following documents and other items from the
Lender:
(a) An
executed copy of this Amendment; and
(b) The
Original Note, marked “canceled”.
4. Transaction
Documents in Full Force and Effect as Amended. Except as
specifically amended hereby, the Transaction Documents shall remain in full
force and effect and hereby are ratified and confirmed as so
amended. This Amendment shall not constitute a novation, satisfaction
and accord, cure, release and/or satisfaction of the Transaction Documents, but
shall constitute an amendment thereof. The parties hereto agree to be
bound by the terms and conditions of the Transaction Documents as amended by
this Amendment, as though such terms and conditions were set forth herein and
therein in full. Each reference in the Transaction Documents or any
other document or instrument to any Transaction Documents, or words of similar
import shall mean and be a reference to the Transaction Documents as amended
hereby.
5. Representations. The Company
hereby represents and warrants to the Lender as follows: (a) it is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (b) the execution, delivery and performance by it
of this Amendment are within its powers, have been duly authorized, and do not
contravene (i) its articles of incorporation, bylaws or other organizational
documents, or (ii) any applicable law, statute, regulation, ordinance, tariff or
order; (c) no consent, license, permit, approval or authorization of, or
registration, filing or declaration with any governmental authority or other
person is required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment by or against it; (d) this
Amendment has been duly executed and delivered by it; (e) this Amendment
constitutes its legal, valid and binding obligations enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally or by general principles of equity; (f) to the best of its knowledge, it is in compliance with all covenants and
agreements in the Transaction Documents and it is not in default under the
Transaction Documents, and no Event of Default exists, has occurred and is
continuing or would result by the execution, delivery or performance of this
Amendment; and (g) the representations and warranties contained in the
Transaction Documents are true and correct in all material respects as of the
date hereof as if made on the date hereof.
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6. Miscellaneous.
6.1 The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the
Transaction Documents, or any right, power or remedy of the Lender, nor
constitute a waiver of any provision of the Transaction Documents, or any other
document, instrument and/or agreement executed or delivered in connection
therewith or of any Event of Default under any of the foregoing, in each case
whether arising before or after the date hereof or as a result of performance
hereunder or thereunder. This Amendment shall not preclude the future
exercise of any right, remedy, power or privilege available to the parties
whether under the Transaction Documents,
at law, or otherwise.
6.2 This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto or thereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own
facsimile signature and that it accepts the facsimile signature of
each other party. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction
of any of the provisions hereof or thereof. Whenever the context and
construction so require, all words herein in the singular number herein shall be
deemed to have been used in the plural, and vice
versa, and the masculine gender shall
include the feminine and neuter and the neuter shall include the masculine and
feminine.
6.3 This
Amendment may not be changed, amended, restated, waived, supplemented,
discharged, canceled, terminated or otherwise modified
orally or by any course of dealing or in any manner other
than as provided in the applicable Transaction Documents. This
Amendment shall be considered part of the Transaction Documents for all purposes
under the Transaction Documents. In the event of any inconsistency
between this Amendment and any of the other Transaction Documents, the terms of
this Amendment shall control.
6.4 This
Amendment, the Amended Note and the Transaction Documents constitute the final,
entire agreement and understanding between the parties with respect to the
subject matter hereof and thereof and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties, and
shall be binding upon and inure to the benefit of the successors and assigns of
the parties hereto and thereto. There are no unwritten oral
agreements between the parties with respect to the subject matter hereof and
thereof. If any provision of this Amendment is adjudicated to be
invalid under applicable laws or regulations, such provision shall be
inapplicable to the extent of such invalidity without affecting the validity or
enforceability of the remainder of this Amendment which shall be given effect so
far as possible.
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7.5 THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW
PROVISIONS SET FORTH IN THE TRANSACTION DOCUMENTS, AS AMENDED BY THIS
AMENDMENT.
7.7 Each
party shall execute and deliver such other documents, certificates and/or
instruments and
take such other actions as reasonably requested by the other party in
order more effectively to consummate the transactions contemplated
hereby.
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IN
WITNESS WHEREOF,
the parties have caused this Amendment to be executed under seal
by their respective
officers thereunder duly authorized, as of the date first above
written.
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COMPANY:
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By:
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/s/ Xxx Xxxxxx
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Name:
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Xxx Xxxxxx
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Title:
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Chief Financial Officer
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LENDER:
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/s/ Xxx Xxxxx Xxx
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Xxx
Xxxxx Xxx
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EXHIBIT
A
(Form of
Amended Note)
