Exhibit 10.11
SECOND AMENDED CREDIT FACILITY AGREEMENT
This second Amended Credit Agreement is dated for reference February
27, 2002 and made among MFC MERCHANT BANK S.A., a bank organized under the laws
of Switzerland ("Merchant Bank" or the "Lender") and MYMETICS CORPORATION (f/k/a
Ichor Corporation, a corporation organized under the laws of the State of
Delaware, as a successor in interest hereunder by assignment and assumption to
Hippocampe) (the "Borrower").
WHEREAS Merchant Bank and the Borrower entered into that certain Credit
Facility Agreement dated July 27, 2000 (the "Credit Agreement");
WHEREAS on December 29, 2000, all the rights and obligations under the
Credit Agreement were assigned to and assumed by Ichor Corporation;
WHEREAS Ichor Corporation changed its name to Mymetics Corporation on
July 23, 2001;
WHEREAS Merchant Bank and the Borrower entered into an Amended Credit
Facility Agreement dated August 13, 2001 (the "First Amended Credit Agreement")
in order to extend the Maturity Date of the Credit Agreement to February 28,
2002;
WHEREAS on December 27, 2001 the Borrower prepaid Euro 747,300 of the
outstanding aggregate principal amount of the Advances made to the Borrower
under the Credit Agreement; and
WHEREAS Merchant Bank and the Borrower have agreed to further extend
the Maturity Date of the Credit Agreement to August 31 2002 and the Borrower has
agreed to provide additional security to Merchant Bank in consideration
therefor.
NOW THEREFORE, in consideration of the premises and the covenants
contained herein the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit
Agreement.
2. EXTENSION OF MATURITY DATE. Section 2.1 of the Credit
Agreement shall be amendment in its entirety by deleting such
section and replacing the same with the following:
SECTION 2.1. CREDIT FACILITY. The Lender shall make available to the
Borrower in accordance with, and subject to the terms and the conditions of this
Agreement, until August 31, 2002 (the "Maturity Date"), a revolving term
facility in the principal amount of up to Euro 1,300,000 (the "Credit Facility")
and made available to the Borrower by way of Advances in accordance with Section
2.2 hereof. The Maturity Date may be extended for an additional term of up to
six months at the option of the Lender, which option is exercisable in the
Lender's sole discretion.
3. REPLACEMENT OF SCHEDULE A. Schedule A to the Credit Agreement
shall be amended in its entirety by deleting such schedule and
replacing the same with Schedule A attached hereto.
4. CONTINUED PERFECTION AND AGREED RELEASE OF SECURITY. The
Borrower shall take such action and execute and deliver to the
Lender such agreements, conveyances, deeds and other documents
and instruments as the Lender shall reasonably request for the
purpose of establishing, perfecting, preserving and protecting
the Security and any additional security given to the Lender
to secure the Obligations, in each case forthwith upon request
therefor by the Lender and in form and substance reasonably
satisfactory to the Lender.
5. FULL FORCE AND EFFECT. All the other provisions of the Credit
Agreement shall continue in full force and effect and shall
not be modified hereby.
6. GOVERNING LAW. This Second Amended Credit Agreement shall be
construed, performed and enforced in accordance with, and
governed by, the internal laws of Switzerland, without giving
effect to the principles of conflict of law thereof.
7. CONSENT TO JURISDICTION.
(1) Each of the parties hereby irrevocably affords to the
non-exclusive jurisdiction of the Courts of Geneva
(Switzerland) in any action or proceeding arising out
of ore relating to this Second Amended Credit
Agreement. The Borrower agrees that a final judgment
in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by Law.
(2) Nothing in this Section 7 shall affect the right of
the Lender to serve legal process in any other manner
permitted by Law or affect the right of the Lender to
bring any action or proceeding against the Borrower
or its property in the courts or other jurisdictions.
8. ENGLISH VERSION. The parties hereby represent, warrant,
acknowledge and agree that: (i) they have agreed that this
Second Amended Credit Agreement be drawn upon in the English
language; and (ii) the English version of this Second Amended
Credit Agreement shall govern for all purposes.
9. SEVERABILITY. If one or more provisions of this Second Amended
Credit Agreement be or become invalid, or unenforceable in
whole or in part in any jurisdiction, the validity of the
remaining provisions of this Second Amended Credit Agreement
shall not be affected. The parties hereto undertake to replace
any such invalid provision without delay with a valid
provision which as nearly as possible duplicates the corporate
intent of the invalid provision.
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10. SUCCESSORS AND ASSIGNS. This Second Amended Credit Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and assigns.
11. COUNTERPARTS. This Second Amended Credit Agreement may be
executed in counterparts, each of which will be an original
and all of which will continue the same document.
12. FACSIMILE. The parties hereto agree that this Second Amended
Credit Agreement may be transmitted by facsimile or such
similar device and that the reproduction of signatures by
facsimile or such similar device will be treated as binding as
if originals and each party hereto undertakes to provide each
and every other party hereto with a copy of the Second Amended
Credit Agreement bearing original signatures forthwith upon
demand.
THE BORROWER:
MYMETICS CORPORATION
Per: /s/ [illegible]
-----------------------------
Authorized Signatory
Per: /s/ [illegible]
-----------------------------
Authorized Signatory
THE LENDER:
MFC MERCHANT BANK S.A.
Per: /s/ [illegible]
-----------------------------
Authorized Signatory
Per: /s/ [illegible]
-----------------------------
Authorized Signatory
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X-0
XXXXXXXX A
LIST OF PATENTS OF BORROWER
APPLICATION NO. APPLICATION DATE PUBLICATION NO.
--------------- ---------------- ---------------
97/74587 November 17, 0000 0000000
PCT/FR9X02447 November 17, 1998 WO99/25377
99/06528 May 21, 1999 N/A
PCT/FR00/01399 May 22, 2000 N/A
01/10910 August 17, 2001 N/A
01/15423 November 23, 2001 N/A
01/15424 November 29, 0000 X/X
00/00000 Xxxxxxxx 00, 0000 X/X
XX 60/340492 December 18, 2001 N/A
A-1
