LOAN AGREEMENT
EXHIBIT
10.1
Loan
Agreement
("Agreement")
dated
as of February 28, 2007 between Pure
Vanilla Exchange, Inc.,
a
Nevada
corporation (the "Company"),
and
Xxx
xxxxxx (the
"Lender").
Undefined terms contained herein shall have the meaning ascribed to them in
the
Note.
WITNESSETH:
Whereas,
the
Company has borrowed and Lender has loaned the Company $170,000 on February
14,
2007 (“First
Loan”)
and an
additional $170,000 on February 16, 2007 (“Second
Loan”),
represented
by the Notes set forth as Exhibit
A
and
Exhibit
B,
respectively (the “Prior
Notes”);
and
Whereas,
the
Company desires to borrow from the Lender, and the Lender wishes to loan to
the
Company, the additional principal amount of $220,000 (the “Third
Loan”)
and may
make additional loans to the Company on the same terms (together with the First,
Second and Third Loans, the “Loans”)
on the
terms and conditions set forth in the Note in the form of Exhibit
C
attached
hereto (the "New
Note"),
on the
terms and conditions set forth herein; and
Whereas,
the
Company has requested and the Lender has agreed to amend the Prior Notes to
provide for the same maturity as the Third Loan and subordinate the Loans to
an
outstanding secured obligation of the Company.
Now,
Therefore,
in
consideration of the foregoing premises and the covenants contained herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
1
Loan
and Note
Section
1.1 Issuance
of Note.
(a) Loans.
Upon the
following terms and conditions, the Company shall borrow from the Lender, and
the Lender shall loan to the Company, the principal amount of $410,000 (in
addition to the $340,000 principal amount of the First and Second Loans) and
such other additional principal amounts as Lender, in its sole discretion shall
determine. Within one business day of receiving advances from Lender, the
Company shall issue to the Lender its Note in a principal amount equal to the
amount of the Lender’s advance.
(b) The
Closing.
(i) The
closing of the Loans and the issuance of the Notes to the Lender and the other
transaction contemplated hereby (the "Closing"),
shall
take place at the offices of the Company or at such other place as is mutually
agreeable as to each advance, at 10:00 am., local time on: (x) the date on
which
the last to be fulfilled or waived of the conditions set forth in Article 4
hereof and applicable to the Closing shall be fulfilled or waived in accordance
herewith, or (y) such other time and place and/or on such other date as the
Lender and the Company may agree. The date on which the Closing occurs is
referred to herein as the "Closing
Date".
(ii) On
the
Closing Date, the Company shall deliver to the Lender one or more New Notes
(with the number of and outstanding principal amount of each Note to be as
reasonably requested by the Lender) representing the aggregate amount of the
Loan made by the Lender registered in the name of the Lender or his nominee
and
the Lender shall deliver to the Company the amount of the Loan being made by
the
Lender by wire transfer in immediately available funds to an account designated
in writing by the Company.
ARTICLE
2
Representations
and Warranties
Section
2.1 Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to the Lender
as of the date hereof and on each Closing Date:
(a) Organization
and Qualification; Material Adverse Effect.
The
Company is a corporation duly incorporated and existing in good standing under
the laws of the State of Nevada and has the requisite corporate power to own
its
properties and to carry on its business as now being conducted. The Company
does
not have any direct or indirect subsidiaries (defined as any entity of which
the
Company owns, directly or indirectly, 50% or more of the equity or voting power.
The Company is duly qualified as a foreign corporation to do business and is
in
good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary other
than
those in which the failure so to qualify would not have a Material Adverse
Effect. "Material
Adverse Effect"
means
any adverse effect on the business, operations, properties or financial
condition of the entity with respect to which such term is used and which is
(either alone or together with all other adverse effects) material to such
entity and other entities controlling or controlled by such entity taken as
a
whole, and any material adverse effect on the transactions contemplated under
this Agreement or any other agreement or document contemplated
hereby.
(b) Authorization;
Enforcement.
(i) The
Company has all requisite corporate power and authority to enter into and
perform this Agreement and to issue the Note in accordance with the terms hereof
and thereof, (ii) the execution and delivery of this Agreement, the Note by
the
Company and the consummation by it of the transactions contemplated hereby
have
been duly authorized by all necessary corporate action, and no further consent
or authorization of the Company or its Board of Directors (or any committee
or
subcommittee thereof) or stockholders is required, (iii) this Agreement and
the
Note have been duly executed and delivered by the Company, and (iv) this
Agreement and the Note constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
2
(c) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
and the issuance of the Note do not and will not (i) result in a violation
of
the Company's Charter or By-Laws or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or
cancellation of, any agreement, indenture, patent, patent license or instrument
to which the Company is a party (collectively, "Company
Agreements"),
or
(iii) result in a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or by which any of its property
is bound or affected, except (other than in the case of clause (i) above) where
such violation would not reasonably be expected to have a Material Adverse
Effect. The business of the Company is being conducted in material compliance
with (i) its Charter and By-Laws, (ii) all Company Agreements and (iii) all
applicable laws, ordinances or regulations of any governmental entity, except
(other than in the case of clause (i) above) where such violation would not
reasonably be expected to have a Material Adverse Effect. Except for filings,
consents and approvals required under applicable state and federal securities
laws, the Company is not required under federal, state, local or foreign law,
rule or regulation to obtain any consent, authorization or order of, or make
any
filing or registration with, any court or governmental agency in order for
it to
execute, deliver or perform any of its obligations under this Agreement and
the
Note.
(d) No
General Solicitation.
Neither
the Company, nor any of its affiliates, or, to its knowledge, any person acting
on its or their behalf has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Securities
Act
in connection with the offer or sale of the Note.
(e) No
Litigation.
No
litigation or claim (including those for unpaid taxes) against the Company
is
pending or, to the Company's knowledge, threatened, and no other event has
occurred, which if determined adversely could reasonably be expected to have
a
Material Adverse Effect on the Company or could reasonably be expected to
materially and adversely affect the transactions contemplated
hereby.
(f) Permits;
Compliance.
The
Company is in possession of all franchises, grants, authorizations, licenses,
permits, easements, variances, exemptions, consents, certificates, approvals
and
orders necessary to own, lease and operate its properties and to carry on its
business as it is now being conducted (collectively, the "Company
Permits"),
except
where failure to possess such Company Permits would not have a Material Adverse
Effect on the Company and there is no action pending or, to the knowledge of
the
Company, threatened regarding suspension or cancellation of any of the Company
Permits except for such Company Permits the failure of which to possess, or
the
cancellation or suspension of which, would not, individually or in the
aggregate, have a Material Adverse Effect on the Company. To the best of its
knowledge the Company is in not material conflict with, or in material default
or material violation of, any of the Company Permits. The Company has not
received any notification with respect to possible material conflicts, material
defaults or material violations of applicable laws.
3
(g) Taxes.
All
federal, state, city and other tax returns, reports and declarations required
to
be filed or extended by or on behalf of the Company have been filed or extended
and all such filed returns are complete and accurate and disclose all taxes
(whether based upon income, operations, purchases, sales, payroll, licenses,
compensation, business, capital, properties or assets or otherwise) required
to
be paid in the periods covered thereby. All taxes required to be withheld by
or
on behalf of the Company in connection with amounts paid or owing to any
employees, independent contractor, creditor or other party have been withheld,
and such withheld taxes have either been duly and timely paid to the proper
governmental authorities or set aside in accounts for such
purposes.
(h) Title
to Properties; Encumbrances.
The
Company owns (with good and marketable title in the case of real property)
all
the properties and assets (whether real, personal, or mixed and whether tangible
or intangible ("Company Property")) that it purports to own. All material
Company Property is free and clear of all encumbrances
Section
2.2 Representations
and Warranties of the Lender.
The
Lender makes the following representations and warranties to the Company as
of
the date hereof and on each Closing Date:
(a) Authorization;
Enforcement.
(i) The
Lender has the requisite power and authority to enter into and perform this
Agreement, to make the Loan, (ii) the execution and delivery of this Agreement
by the Lender and the consummation by him of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate or
partnership action, and (iii) this Agreement constitutes the valid and binding
obligation of the Lender enforceable against the Lender in accordance with
its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to,
or affecting generally the enforcement of creditors' rights and remedies or
by
other equitable principles of general application.
(b) No
Conflicts.
The
execution, delivery and performance of this Agreement and the performance under
the Note and the consummation by the Lender of the transactions contemplated
hereby and thereby do not and will not (i) conflict with any agreement,
indenture or instrument to which the Lender is a party, or (ii) result in a
material violation of any law, rule, or regulation, or any order, judgment
or
decree of any court or governmental agency applicable to the Lender. The Lender
is not required to obtain any consent or authorization of any governmental
agency in order for it to perform its obligations under this Agreement or the
Note.
(d) Investment
Representations.
(i) Access
to Other Information. The
Lender acknowledges that the Company has made available to the Lender the
opportunity to examine such additional documents from the Company and to ask
questions of, and receive full answers from, the Company concerning, among
other
things, the Company, its financial condition, its management, its prior
activities and any other information which the Lender considers relevant or
appropriate in connection with entering into this Agreement.
4
(ii) Risks
of Investment.
The
Lender acknowledges that the Note has not been registered under the Act. The
Lender is familiar with the provisions of Rule 144 and understands that in
the
event all of the applicable requirements of Rule 144 are not satisfied,
registration under the Act or some other exemption from the registration
requirements of the Act will be required in order to dispose of the Note, and
that the Lender may be required to hold the Note for a significant period of
time prior to reselling it. The Lender acknowledges that the Company has no
obligation to register such Note. The Lender is capable of assessing the risks
of an investment in the Note and is fully aware of the economic risks
thereof.
(iii) Investment
Representation.
The
Lender is acquiring the Note for his own account and not with a view to
distribution in violation of any securities laws. The Lender has no present
intention to sell the Note in violation of federal or state securities laws
and
the Lender has no present arrangement (whether or not legally binding) to sell
the Note to or through any person or entity; provided,
however, that by making the representations herein, the Lender does not agree
to
hold the Note for any minimum or other specific term and reserves the right
to
dispose of the Note at any time in accordance with federal and state securities
laws applicable to such disposition.
(iv) Restricted
Securities. He
acknowledges and understands that the terms of issuance have not been reviewed
by the SEC or by any state securities authorities and that the Note will be
issued in reliance on the certain exemptions for non-public offerings under
the
Act, which exemptions depend upon, among other things, the representations
made
and information furnished by the Lender, including the bona fide nature of
the
Lender’s investment intent as expressed above.
(v) Ability
to Bear Economic Risk. He
is an
"accredited" Lender as defined in Rule 501 of Regulation D, as amended, under
the Act, and that it (i) is able to bear the economic risk of his investment
in
the Note, (ii) is able to hold the Note for an indefinite period of time, (iii)
can afford a complete loss of his investment in the Note, and (iv) has adequate
means of providing for his current needs.
(vi) No
Public Solicitation. At
no
time was the Lender presented with or solicited by any general mailing, leaflet,
public promotional meeting, newspaper or magazine article, radio or television
advertisement, or any other form of general advertising or general solicitation
in connection with the issuance.
5
(vii) Reliance
by the Company.
The
Lender understands that the Note is being or will be, as the case may be,
offered and sold in reliance on a transactional exemptions from the registration
requirements of federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Lender set forth herein
in
order to determine the applicability of such exemptions and the suitability
of
the Lender to acquire the Note.
(e) Brokers.
The
Lender has taken no action which would give rise to any claim by any person
for
brokerage commissions, finder's fees or similar payments by the Company relating
to this Agreement or the transactions contemplated hereby.
ARTICLE
3
Covenants
Section
3.1 Replacement
Note.
The
Note held by the Lender (or then holder) may be exchanged by the Lender (or
such
holder) at any time and from time to time for Note with different denominations
representing an equal principal amount of Note, as requested by the Lender
(or
such holder) upon surrendering the same. No service charge will be made for
such
registration or transfer or exchange.
Section
3.2 Use
of
Proceeds.
The
Company agrees that the proceeds received by the Company from the sale of the
Note hereunder shall be used for working capital purposes.
Section
3.3 Form
D; Blue Sky Laws.
The
Company agrees to file a Form D with respect to the Note as required under
Regulation D. The Company shall take such action as the Company shall have
reasonably determined is necessary to qualify the Note under applicable
securities or "blue sky" laws of the states of the United States (or to obtain
an exemption from such qualification).
Section
3.4 Subsequent
Financing.
(a) Most
Favored Nation Provision.
If the
Company effects a subsequent bridge financing at any time prior to the maturity
date of the Note, and the interest rate of the subsequent bridge financing
is
higher than the Note or the warrant coverage of such financing is different
that
the Loans, the interest rate of the Prior Notes and New Notes shall be adjusted
to the stated interest rate of the subsequent bridge financing and the Company,
at the Lender’s election, shall issue identical warrants to the Lender in the
same ratio as such warrants bear to debt securities issued in the subsequent
bridge financing. The Company shall provide the Lender written notice of any
such subsequent bridge financing three business days prior to
closing.
(b) “Exempt
Issuance”
means
the issuance of (a) shares of Common Stock or options to employees, officers,
directors or consultants pursuant to any stock or option plan duly adopted
by a
majority of the non-employee members of the Board of Directors of the Company
or
a majority of the members of a committee of non-employee directors established
for such purpose, (b) warrants issued to obtain the extension of indebtedness
outstanding on the date of this or (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of the
disinterested directors, provided any such issuance is not primarily for the
purpose of raising capital or to an entity whose primary business is investing
in securities.
6
ARTICLE
4
Conditions
to Closings
Section
4.1 Conditions
Precedent to the Obligation of the Company to Issue the New Note.
The
obligation hereunder of the Company to issue the Note to the Lender at each
Closing (unless otherwise specified) is subject to the satisfaction, at or
before such Closing, of each of the applicable conditions set forth below.
These
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
(a) Accuracy
of the Lender’s Representations and Warranties.
The
representations and warranties of the Lender will be true and correct in all
material respects as of the date when made and as of each Closing Date as though
made at that time (except for representations and warranties as of an earlier
date, which will be true and correct as of such date).
(b) Performance
by the Lender.
The
Lender shall have performed all agreements and satisfied all conditions required
to be performed or satisfied by the Lender at or prior to each
Closing.
(c) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement or the New Note.
(d) Loan
Price.
The
Company shall have received the aggregate amount of the Loan from the Lender,
without discount.
Section
4.2 Conditions
Precedent to the Obligation of the Lender to Make Loan.
The
obligation hereunder of the Lender to make the Loan at each Closing (unless
otherwise specified) is subject to the satisfaction, at or before such Closing,
of each of the applicable conditions set forth below. These conditions are
for
the Lender's benefit and may be waived by the Lender at any time in his sole
discretion.
(a) Accuracy
of the Company's Representations and Warranties.
The
representations and warranties of the Company shall be true and correct in
all
material respects as of the date when made and as of each Closing Date as though
made at that time (except for representations and warranties as of an earlier
date, which shall be true and correct as of such date).
7
(b) Performance
by the Company.
The
Company shall have performed all agreements and satisfied all conditions
required to be performed or satisfied by the Company at or prior to each
Closing.
(c) No
Injunction.
No
statute, rule, regulation, executive, judicial or administrative order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction which prohibits
the consummation of any of the transactions contemplated by this Agreement
or
the New Note.
(d) Adverse
Changes.
No event
which had or is likely to have, in the reasonable judgment of the Lender, a
Material Adverse Effect on the Company or any of its direct or indirect
subsidiaries shall have occurred.
(e) Note.
The
Lender shall have received the New Note substantially in the form annexed hereto
as Exhibit
C.
ARTICLE
5
Subordination
(a) Subordination.
Holder
for itself, its successors and assigns covenants and agrees that to the extent
and in the manner hereinafter set forth, the Loans shall be subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness (defined below) solely in the manner set forth in this Section
5.
The provisions of this Section 5 are made for the benefit of all holders of
Senior Indebtedness and are intended to be and are an inducement and a
consideration for each holder of Senior Indebtedness, whether created on, before
or after the date hereof, to acquire and hold or continue to hold such Senior
Indebtedness. Any such holder may proceed to enforce such provisions and Holder
for itself, its successors and assigns hereby waives notice or proof of reliance
hereon by any holder of Senior Indebtedness and protest, demand for payment
and
notice of default.
(b) “Senior
Indebtedness”
means
“Indebtedness”
as
defined in the Senior Secured Convertible Note issued on December 26, 2006
in
the original principal amount of $1,500,000 to Gottbetter Master,
Ltd.
(c) Subordination
Agreements.
Lender
covenants and agrees that payment of the sums due or to be due under the Notes
are expressly subordinated to all Senior Indebtedness in the manner provided
herein, and Lender agrees to enter into any further subordination agreement
by
any holder of Senior Indebtedness, provided, however, that such agreement is
reasonable and consistent with the terms and conditions set forth in this
Section 5.
(d) Hold
Payments in Trust.
If
Lender receives any payment in respect of any sum due or to be due under the
Notes which Lender knows it is not entitled to receive, it will hold any amount
so received in trust for the benefit of the holders of the Senior Indebtedness
and will forthwith turn over such payment to such holders of the Senior
Indebtedness in the form received to be applied on the Senior Indebtedness
upon
receipt of written notice from all such holders.
8
(e) No
Action.
Lender
will not commence any action or proceeding against the Company or any guarantor
hereof to recover all or any part of this Note or join with any creditor under
any bankruptcy, reorganization, readjustment or arrangement of debt,
receivership, liquidation or insolvency law or statute of the federal or any
state government, unless Lender shall have given the holders of the Senior
Indebtedness 60 days notice of its intention to do so and unless the holders
of
the Senior Indebtedness shall also have the opportunity to join in bringing
any
such proceedings against the Company.
(f)
Changes
to Senior Indebtedness.
At any
time and from time to time, the holders of the Senior Indebtedness may, without
the consent of or notice to Lender, without incurring responsibility to Lender,
and without impairing or releasing any of their rights or any of the obligations
of Lender hereunder:
(i) change
the amount, manner, place or terms of payment or change or extend the time
of
payment of or renew or alter the Senior Indebtedness in any manner;
(ii) sell,
exchange, release or otherwise deal with any property pledged or mortgaged
to
secure, or howsoever securing, the Senior Indebtedness;
(iii)
release
anyone liable in any manner for the payment or collection of the Senior
Indebtedness;
(iv)
exercise
or refrain from exercising any rights against the Company and others;
and
(v) apply
any
sums by whomsoever paid or however realized to the Senior
Indebtedness.
ARTICLE
6
Amendment
(a) Amendment.
The
Prior Notes are hereby amended to strike paragraph 1 of each Note and substitute
the following:
“1. Payments.
Maker
shall pay principal and accrued interest on the earlier of (i) two business
days
after the date on which the Company has raised and reported, in the aggregate
from February 12, 2007 to the date of such report, $20 million of “Net
Financing”
(defined below) provided, all “Indebtedness”
defined
in the Senior Secured Convertible Note issued on December 26, 2006 in the
original principal amount of $1,500,000 to Gottbetter Master, Ltd. has been
paid
in full and (ii) September 29, 2007. For the purposes of this Note,
“Net
Financing”
means,
the gross proceeds received by the Company from the sale of any of its
securities, less any loans that have been outstanding for a term of less than
six months on the date such financing is closed (regardless of the maturity
at
the date of issue) that are repaid from the proceeds of the Financing. Payments
shall be made at the offices of Maker or at such other place as Payee or any
subsequent holder may designate to Maker in writing.”
9
(b) Notation.
Lender
will endorse the following on each of the Prior Notes and will fax a copy of
each to the Company:
“All
sums
due on this Note are subordinated to the rights of a secured lender pursuant
to
a loan agreement between the Company and Xxx Xxxxxx dated as of February 28,
2007.”
ARTICLE
7
Legend
The
Company will issue one or more Note in the name of the Lender and in such
denominations to be specified by the Lender prior to (or from time to time
subsequent to) Closing. Each certificate representing the Note and any shares
of
Common Stock issued upon conversion or exercise thereof initially shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
|
This
note has not been registered under the Securities Act of 1933 or
any state
securities laws. It may not be Transferred, Assigned, sold or offered
for
sale except pursuant to an effective registration statement under
said Act
and any applicable state securities law or an opinion of counsel,
in form
and substance reasonably acceptable to the company, that registration
is
not required because of an applicable exemption from such registration
requirements.
|
The
Company agrees to reissue Note, without the legend set forth above at such
time
as (i) the holder thereof is permitted to dispose of such Note pursuant to
Rule
144 under the Act, or (ii) such Note is sold to a purchaser or purchasers who
(in the opinion of counsel to the seller or such purchaser(s), in form and
substance reasonably satisfactory to the Company and its counsel) are able
to
dispose of such shares publicly pursuant to an Effective Registration or
exemption.
ARTICLE
8
Miscellaneous
Section
8.1 Stamp
Taxes.
The
Company shall pay all stamp and other taxes and duties levied in connection
with
the issuance of the Note.
Section
8.2 Specific
Performance; Consent to Jurisdiction; Jury Trial.
(a) The
Company and the Lender acknowledge and agree that irreparable damage would
occur
in the event that any of the provisions of this Agreement were not performed
in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement
and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity.
10
(b) the
Company and the Lender (i) hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court, the New York state courts
and
other courts of the United States sitting in New York County, New York for
the
purposes of any suit, action or proceeding arising out of or relating to this
agreement and (ii) hereby waives, and agrees not to assert in any such suit
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought
in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. to the extent permitted by applicable law, the company and each of
the
Lender consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address in effect for notices
to
it under this agreement and agrees that such service shall constitute good
and
sufficient service of process and notice thereof. nothing in this paragraph
shall affect or limit any right to serve process in any other manner permitted
by applicable law.
(c) The
Company and the Lender each hereby waives all rights to a trial by
jury.
Section
8.3 Entire
Agreement; Amendment.
This
Agreement, together with the Note and the agreements and documents executed
in
connection herewith and therewith, contains the entire understanding of the
parties with respect to the matters covered hereby and thereby, supersedes
any
prior understanding, memoranda or other written or oral agreements between
or
among any of them respecting the matters covered hereby and thereby and, except
as specifically set forth herein or therein, neither the Company nor the Lender
makes any representation, warranty, covenant or undertaking with respect to
such
matters. No provision of this Agreement may be waived or amended other than
by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
Section
8.4 Notices.
Any
notice or other communication required or permitted to be given hereunder shall
be in writing by mail, facsimile or personal delivery and shall be effective
upon actual receipt of such notice. The addresses for such communications shall
be:
to
the
Company:
Pure
Vanilla eXchange, Inc.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
to
the
Lender:
Xxx
Xxxxxx
______________________
______________________
11
Any
party
hereto may from time to time change its address for notices by giving at least
10 days' written notice of such changed address to the other parties
hereto.
Section
8.5 Indemnity.
Each
party shall indemnify each other party against any loss, cost or damages
(including reasonable attorney's fees but excluding consequential damages)
incurred as a result of such parties' breach of any representation, warranty,
covenant or agreement in this Agreement; or incurred as a result of the
enforcement of this indemnity.
Section
8.6 Waivers.
No
waiver by any party of any default with respect to any provision, condition
or
requirement of this Agreement shall be deemed to be a continuing waiver in
the
future or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder in
any
manner impair the exercise of any such right accruing to it
thereafter.
Section
8.7 Headings.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
Section
8.8 Successors
and Assigns.
Except
as otherwise provided herein, this Agreement shall be binding upon and inure
to
the benefit of the parties and their successors and permitted assigns. The
parties hereto may amend this Agreement without notice to or the consent of
any
third party. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of all Lender (which
consent may be withheld for any reason in their sole discretion), except that
the Company may assign this Agreement in connection with the sale of all or
substantially all of its assets provided that (a) the Company is not released
from any of its obligations hereunder, (b) such assignee assumes all obligations
of the Company hereunder, and (c) appropriate adjustment of the provisions
contained in this Agreement and the Note, in form and substance reasonably
satisfactory to the Lender, to place the Lender in the same position as they
would have been but for such assignment, in accordance with the terms of the
Note. The Lender may not assign this Agreement (in whole or in part) or any
rights or obligations hereunder without the consent of the Company (which shall
not be unreasonably withheld), except that the Lender may assign his rights
hereunder in connection with an assignment of the Note.
Section
8.9 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
Section
8.10 Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York applicable to agreements executed and to be
performed entirely within such State.
Section
8.11 Survival.
The
representations and warranties and the agreements and covenants of the Company
and the Lender contained herein shall survive the Closing.
12
Section
8.12 Execution.
This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement, it being understood that all parties
need
not sign the same counterpart.
Section
8.13 Publicity.
The
Company agrees that it will not disclose, and will not include in any public
announcement, the name of the Lender without the express written agreement
of
the Lender, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement. The Company agrees
that it will deliver a copy of any public announcement regarding the matters
covered by this Agreement or any agreement and document executed herewith to
the
Lender and any public announcement including the name of the Lender to the
Lender, reasonably in advance of the release of such announcements.
Signature
Page Follows
13
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
COMPANY:
PURE
VANILLA EXCHANGE, INC.
By:/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title: Chief
Executive Officer
LENDER:
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
14
