ALLONGE (Firmly affix to Original Note)
10(b)
(Firmly
affix to Original Note)
THIS
ALLONGE ("Agreement®) is made as of February 23, 2007, by and between
DURAVEST,
INC., a
Illinois corporation ("Borrower") and ABSOLUTE OCTANE FUND LIMITED
("Holder").
RECITALS
The
Borrower executed and delivered to the order of the Holder its Amended and
Restated
Convertible Promissory Note, dated as of November 28, 2005 (ANote@), in the
original principal
amount of $1,000,000.00, 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:
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a.
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The
definition of "Maturity Date" is amended and modified by striking
the
following sentence from page 1 of the
Note:
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The
Principal of the Note shall be due and payable, together with any
then
unpaid
interest on November 28, 2006 (the "Maturity
Date").
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b.
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The
following sentence shall be inserted in its
place:
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The
Principal of the Note shall be due and payable, together with any
then
unpaid interest on the 31 day of January 2008 (the "Maturity
Date").
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c.
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The
following sentences shall be inserted at the end of the last sentence
in
subparagraph
(a) of the Note:
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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
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.
9.
Consent
To Jurisdiction: Agreement As to Venue.
The
Borrower irrevocably consents
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 all 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 any 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.
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WITNESS/ATTEST:
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BORROWER:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
(SEAL)
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
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Title:
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CEO | ||||
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HOLDER:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ |
(SEAL)
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇
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Title:
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Principal
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