FOURTH AMENDMENT AND RESTATEMENT OF LOAN AGREEMENT AND PROMISSORY NOTE
FOURTH AMENDMENT AND
RESTATEMENT OF LOAN AGREEMENT AND PROMISSORY NOTE
THIS FOURTH AMENDMENT AND RESTATEMENT
OF LOAN AGREEMENT AND PROMISSORY NOTE (“Amendment and Note Restatement”) by and
between BLINK COUTURE, INC., a Delaware corporation (the "Maker") and REGENT
PRIVATE CAPITAL, LLC, an Oklahoma limited liability company (the "Payee") is
dated as of March 15, 2010. Each of the Maker and the Payee are
referred to herein as a “Party”, and collectively as the “Parties.”
WHEREAS, on January 31, 2009,
the Maker entered into a Loan Agreement and Promissory Note (the “Original
Note”) with Fountainhead Capital Management Limited (“Fountainhead”), which Note
was amended by a First Amendment to Loan Agreement and Promissory Note, dated as
of April 30, 2009, and subsequently amended by a Second Amendment to Loan
Agreement and Promissory Note, dated as of July 31, 2010, and then further
amended by a Third Amendment to Loan Agreement and Promissory Note, dated as of
October 31, 2009, in each case increasing the principal amount of the Original
Note (collectively referred to hereafter as the “Note Amendments” and the
Original Note and the Note Amendments, as amended and restated by this Amendment
and Note Restatement, hereinafter being referred to as the
“Note”); and
WHEREAS, on December 29, 2009,
in connection with certain transactions, Fountainhead assigned all of its right,
title and interest in and to the Original Note, along with the Note Amendments
including, without limitation, the payment of all amounts due and payable
thereunder, to the Payee; and
WHEREAS, pursuant to the
provisions of the Original Note and the Note Amendments, all outstanding
principal and accrued interest thereon became due and payable on or before
January 31, 2010; and
WHEREAS, the Maker did not
repay all of the outstanding principal and accrued interest on or before January
31, 2010; and
WHEREAS, the Payee has not
elected to declare the Maker in default under the terms of the Original Note and
the Note Amendments, as permitted pursuant to Paragraph 5 of the Original Note,
but instead has agreed to this Amendment and Note Restatement extending the
maturity date of the Note, upon the terms and conditions provided herein;
and
WHEREAS, the Maker has agreed
to this Amendment and Note Restatement, upon the terms and conditions provided
herein;
NOW THEREFORE, in
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
hereby agree as follows:
1. Extension
of Maturity Date. Effective as of January 31, 2010, the
maturity date of the Original Note, which was January 31, 2010, shall be
extended through and until January 31, 2011, upon which date the Maker
unconditionally promises to pay to the order of the Payee, the principal sum
then outstanding under this Note together with accrued interest
thereon.
2. Additional
Advances. The Parties
hereby agree that during the period from November 1, 2009 through January 31,
2010, Fountainhead and the Payee have made additional advances to the Maker, in
the aggregate amount of $33,493, in payment of the Maker’s operating expenses
during that period, so that effective as of January 31, 2010, the total
outstanding principal amount due and payable pursuant to this Note was
$123,946.
3. Interest. Unpaid
principal of this Note shall bear interest (computed on the basis of a year of
365 days of actual days elapsed) of 6% per annum in cash or kind, from the date
hereof until such principal is paid.
4. Prepayment. The
Maker shall have the option to prepay any or all of the principal amount due
hereunder, without penalty, at any time, together with interest accrued
thereon to the date of such prepayment.
5. Place of
Payment. All amounts payable hereunder shall be payable at the
address of the Payee at 0000 X. Xxxxx Xxxxxx, Xxxxx 000 Xxxxx, XX 00000, unless
another place of payment shall be specified in writing by the
Payee.
6. Event of
Default. It shall be an event of default (“Event of Default”), and the
then unpaid portion of this Note shall become immediately due and payable, at
the election of Payee, upon the occurrence of any of the following
events:
(a) any
failure on the part of Maker to make any payment hereunder when due, whether by
acceleration or otherwise;
(b) Maker
shall commence (or take any action for the purpose of commencing) any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of debt,
moratorium or similar law or statute; or
(c) a
proceeding shall be commenced against Maker under any bankruptcy,
reorganization, arrangement, readjustment of debt, moratorium or similar law or
statute and relief is ordered against Maker, or the proceeding is controverted
but is not dismissed within sixty (60) days after the commencement
thereof.
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7. No
Waiver; Remedies. No failure on the
part of the Payee or any other holder of this Note to exercise and no delay in
exercising any right, remedy or power hereunder or under any other document or
agreement executed in connection herewith shall operate as a waiver thereof, nor
shall any single or partial exercise by the Payee or any other holder of this
Note of any right, remedy or power hereunder preclude any other or future
exercise of any other right, remedy or power.
8. Enforceability. This Note shall
be binding upon the Maker and the Maker’s successors and assigns.
9. Governing
Law. This Note shall
be governed by and construed in accordance with the laws of the State of
Delaware, excluding the conflicts of laws principles thereof.
10. Severability. In the
event that any one or more of the provisions of this Note shall for any reason
be held to be invalid, illegal or unenforceable, in whole or in part, or in any
respect, or in the event that any one or more of the provisions of this Note
shall operate, or would prospectively operate, to invalidate this Note, then,
and in any such event, such provision or provisions only shall be deemed null
and void and of no force or effect and shall not affect any other provision of
this Note, and the remaining provisions of this Note shall remain operative and
in full force and effect, shall be valid, legal and enforceable, and shall in no
way be affected, prejudiced or disturbed thereby.
11. Usury. All
agreements between the Maker and the Payee, whether now existing or hereafter
arising and whether written or oral, are expressly limited so that in no
contingency or event whatsoever, whether by acceleration of the maturity of this
Note or otherwise, shall the amount paid, or agreed to be paid, to the Maker, or
any other holder of this Note, for the use, forbearance or detention of the
money to be loaned hereunder or otherwise, exceed the maximum amount permissible
under applicable law.
12. Assignment. Subject to
applicable federal and state securities laws, the Payee may assign this Note
without first obtaining the consent of the Maker.
13. Certain
Waivers. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE MAKER, AND ALL OTHERS THAT MAY
BECOME LIABLE FOR ALL OR ANY PART OF THE OBLIGATIONS EVIDENCED BY THIS NOTE,
HEREBY WAIVES PRESENTMENT, DEMAND, NOTICE OF NONPAYMENT, PROTEST AND ALL OTHER
DEMANDS AND NOTICES IN CONNECTION WITH THE DELIVERY, ACCEPTANCE, PERFORMANCE OR
ENFORCEMENT OF THIS NOTE, AND DOES HEREBY CONSENT TO ANY NUMBER OF RENEWALS OR
EXTENSIONS OF THE TIME OF PAYMENT HEREOF AND AGREE THAT ANY SUCH RENEWALS OR
EXTENSIONS MAY BE MADE WITHOUT NOTICE TO ANY SUCH PERSONS AND WITHOUT AFFECTING
THEIR LIABILITY HEREIN AND DO FURTHER CONSENT TO THE RELEASE OF ANY PERSON
LIABLE WITH RESPECT TO FAILURE TO GIVE SUCH NOTICE, (ALL WITHOUT AFFECTING THE
LIABILITY OF THE OTHER PERSONS, FIRMS, OR CORPORATIONS LIABLE FOR THE PAYMENT OF
THIS NOTE).
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14. Waiver of
Jury Trial. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE MAKER HEREBY KNOWINGLY AND VOLUNTARILY
WAIVES TRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY
KIND ARISING UNDER OR OUT OF OR OTHERWISE RELATED TO OR CONNECTED WITH THIS NOTE
OR ANY RELATED DOCUMENT.
15. Miscellaneous. If any payment of
principal or interest on this Note shall become due on a Saturday, Sunday, or a
public holiday under the laws of the State of Delaware, such payment shall be
made on the next succeeding business day and such extension of time shall be
included in computing interest in connection with such payment. Upon
payment in full of all aggregate unpaid principal and interest payable
hereunder, this Note shall be surrendered to the Maker for
cancellation.
16. Fees and
Expenses. The
Maker shall reimburse the Payee for all fees in connection with the
documentation and administration of this Note upon an invoice being provided by
the Payee.
17. Entire
Agreement. This Amendment
and Note Restatement shall set forth the entire agreement of the Parties with
respect to the subject matter contained herein and shall replace all prior
agreements and understandings relating to the subject matter contained herein,
whether oral or written, including without limitation the Original Note and the
Note Amendments.
IN
WITNESS WHEREOF, the Maker has caused this Fourth Amendment and Restatement of
Loan and Promissory Note to be duly executed and delivered as of the day and
year first written above.
| BLINK COUTURE, INC. | |||
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By:
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/s/ Xxxxxxxx Field | |
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Name:
Xxxxxxxx Field
Title:
President & CEO
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| REGENT PRIVATE CAPITAL, LLC | |||
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By:
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/s/ Xxxxxx Xxxxxxx | |
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Name: Xxxxxx
Xxxxxxx
Title:
Managing Director
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