EXHIBIT 10.17
LOAN AGREEMENT
LOAN AGREEMENT (the "Agreement") dated as of June 9, 1996 by and between
Harrier, Inc., a Delaware corporatio (the "Borrower") and New Capital Investment
Fund, a Cayman Islands corporation (the "Lender").
RECITALS:
A. The Borrower desires to borrow from the Lender an amount of up to five
hundred thousand U.S. DOLLARS (USD $500,000) upon the terms and conditions set
forth herein, and
B. The Lender is willing, subject to and upon the terms and conditions herein
set forth, to lend this amount to the Borrower.
AGREEMENTS:
NOW, THEREFORE: in consideration of the foregoing recitals and of the mutual
undertakings set forth herein, it is hereby agreed as follows:
1. AMOUNT AND TERMS OF LOAN
1.1 LOAN AND CLOSING DATE. Subject to the terms and conditions herein set
forth, the Lender shall lend to the Borrower five hundred thousand U.S. DOLLARS
(USD $500,000). The loan is being made simultaneously with the execution of this
Agreement (the "Closing Date") at the offices of the Borrower.
1.2 INTEREST. The loan shall bear interest from the Closing Date to
maturity on the unpaid principal balance at an annual rate equal to twelve
percent (12%) and, after maturity, whether by acceleration or otherwise, at an
annual rate of fifteen percent (15~), or the highest rate allowed by law,
whichever is less. Interest shall be accrued monthly from the Closing Date until
the entire loan amount (principal and interest) is paid in full. Interest shall
be payable in full at the maturity date of the loan. Therefore, interest shall
be accrued during the term of the loan and payable at the maturity of the loan.
1.3 MATURITY AND REPAYMENT. Maturity is defined as 360 days from the day
and year first above written, on which day the entire principal amount of five
hundred
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thousand (USD $500,000) and all unpaid interest (accrued and other) shall be due
and payable in full.
(a) At the sole discretion of the Borrower, the loan principal shall be
payable in cash or in the common stock of Harrier, Inc. (or any successor
company or corporation or of its subsidiary, Glycosyn, Inc.), or a combination
thereof. If the Lender elects to be paid in the common stock of Harrier (or any
successor company or corporation or of its subsidiary, Glycosyn), the common
stock will be valued at seventy-five percent (75%) of the average public market
price of Harrier stock for the immediate 90 days preceding the repayment date
(or in the case of Glycosyn, at 75% of the initial public offering price of
Glycosyn, if Glycosyn stock is offered for sale through a registered public
underwriting governed by the regulations of the US Securities and Exchange
Commission.)
(b) At the sole discretion of the Borrower, the loan interest (accrued and
other) will be payable in cash or in the common stock of Harrier (or any
successor company or corporation or of its subsidiary, Glycosyn), or a
combination thereof. If the Borrower elects to be paid in the common stock of
Harrier (or any successor company or corporation or of its subsidiary,
Glycosyn), the common stock will be valued at seventy-five percent (75%) of the
average public market price of Harrier stock for the immediate 90 days preceding
the repayment date (or in the case of Glycosyn, at 75% of the initial public
offering price of Glycosyn, if Glycosyn stock is offered for sale through a
registered public underwriting governed by the regulations of the US Securities
and Exchange Commission.)
2. USE OF PROCEEDS
2.1 The proceeds from this loan shall be used exclusively for the
expenditure categories listed in Appendix "A" to the Agreement. Any change in
the actual use of proceeds must be approved, in writing by the Lender, prior to
the expenditure of funds by the Borrower.
3. PREPAYMENTS
3.1 REQUIRED PREPAYMENTS. The Borrower shall not be required to make any
prepayment of principal prior to the maturity thereof, except in the Event of
Default as defined herein.
3.2 OPTIONAL PREPAYMENT. The Borrower shall have the absolute right from
time-to-time and at any time to pay the outstanding balance, in whole or in
part, provided that, in no event, shall the total interest payment payable by
the Borrower to the Lender be less than the amount of interest which would have
accrued if the Total Loan Amount were outstanding in full on the Closing Date
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and for a continuous period of three (3) months thereafter: a minimum of three
months interest is due and payable at the time of any prepayment.
4. CONDITIONS
4.1 CORRECTNESS OF WARRANTIES. All representations and warranties contained
herein or otherwise made by the Borrower to the Lender in connection herein
shall be true and correct.
4.2 PROCEEDINGS: RECEIPT OF DOCUMENTS. All corporate and legal proceedings
and all documents and instruments in connection with the borrowing under this
Agreement shall be satisfactory in form and substance to the Lender and Xxxxxxx
and Xxxxxx, counsel to the Lender. The Lender shall have received all
information and copies of all documents, including records of corporate
proceedings which the Lender has reasonably requested. Such documents where
requested by the Lender shall be certified by appropriate corporate or
governmental authorities.
5. COVENANTS
The Borrower covenants and agrees that, until the entire principal balance
together with interest thereon and all its other indebtedness to the Lender
under this Agreement are paid in full, unless specifically waived by the Lender
in writing:
5.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower shall provide
the Lender the following financial statements prepared in accordance with U.S.
generally accepted accounting principles (GAAP):
(a) As soon as practical and within 45 days after the close of each of the
first three quarters of each fiscal year of the Borrower, an unaudited
consolidated and consolidating balance sheet of the Borrower and its
subsidiaries, a consolidated and consolidating statement of income and surplus
account of the Borrower and its subsidiaries, and a consolidated and
consolidating statement of cash flows of the Borrower and its subsidiaries. Each
financial statement shall contain a comparison to the appropriate comparable
period of the previous fiscal year. All statements shall be in reasonable detail
and certified by the Chief Accounting Officer of the Borrower to be true and
correct, subject to normal year-end audit adjustments.
(b) As soon as practical and within 90 days after the close of each fiscal
year of the Borrower, a consolidated and consolidating balance sheet of the
Borrower and its subsidiaries, a consolidated and consolidating statement of
income and surplus account of the Borrower and its subsidiaries, and a
consolidated and consolidating statement of cash flows of the Borrower and its
subsidiaries. Each financial statement shall contain a comparison
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to the appropriate comparable period of the previous two fiscal years. All
statements shall be in reasonable detail and prepared by independent public
accountants selected by the Borrower and satisfactory to the Lender.
Concurrently with such financial statement, the Borrower shall submit a written
statement signed by such independent accountants to the effect that, in making
the examination necessary for their review of financial statements, they have
not obtained any knowledge of the existence of any Event of Default or other
act, condition of event which, with the giving of notice of lapse of time, or
both, as specified in Articles 7 and 8 of the Agreement, would constitute such
an Event of Default, or, if such independent accountants shall have obtained
from such review any such knowledge they shall disclose in such written
statement the Event of Default or other act, condition or event and the nature
thereof.-GREATER THAN SYMBOL
(c) As soon as practical and within 45 days after the close of each of the first
three quarters of each fiscal year of the Borrower and within 9o days after the
close of each fiscal year of the Borrower, and promptly upon the concurrence of
any Event of Default, a certificate signed by the Chief Executive Officer and
the Chief Financial Officer of the Borrower, stating that a review of the
activities of the Borrower and its subsidiaries during such period has been made
under their immediate supervision with a view to determining the Borrower has
observed, performed and fulfilled all of its obligations under the Agreement.
(d) Promptly upon receipt thereof, copies of all financial reports, if any,
submitted to the Borrower or any of its subsidiaries by its auditors, in
connection with each annual or interim audit of their respective books by such
auditors.
(e) Promptly upon receipt thereof, copies of all notices and financial
reports from the US Securities and Exchange Commission (SEC) or any other
governmental agency or any other securities exchange and all reports, notices or
statements sent to its stockholders.
(f) With reasonable promptness, such other information respecting the
business, operations and financial condition of the Borrower or any subsidiary
of the Borrower as the Lender may from time-to-time request. The Lender is
hereby authorized to deliver a copy of any financial statement or any other
information relating to the business, operations, or financial conditions of the
Borrower or any subsidiary which may be furnished to it or come to its attention
pursuant to the Agreement or otherwise, to any regulatory body or agency having
jurisdiction over the Lender or to any person which shall have the right or
obligation to succeed to all or any part of the Lender's interest on the
Agreement.
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5.2 TAXES AND CLAIMS. The Borrower shall duly pay and discharge and shall
cause each of its subsidiaries to pay and discharge: (a) all taxes, assessments
and governmental charges upon or against the Borrower or its subsidiaries or
their respective properties or assets prior to the date of which penalties
attach thereto, unless and to the extent that such appropriate proceedings and
appropriate reserves thereof have been established and (b)) all lawful claims,
whether for tort damages, labor, materials, supplies, services, repairs, wages
or otherwise, which might or could if unpaid, become a lien or charge upon the
properties or assets of the Borrower or its subsidiaries, unless and to the
extent only that the same are being diligently contested on good faith and by
appropriate proceedings and appropriate reserves thereof have been established.
6. OTHER REQUIREMENTS
6.1 BOOKS AND RECORDS. The Borrowers shall:
(a) Maintain at all times true and complete books, records and accounts in
which true and correct entries shall be made of its transactions in accordance
with U.S. GAAP consistently applied and consistent with those applied in the
preparation of financial statements.
(b) By means of appropriate quarterly entries, reflect in its accounts and
in all financial statements proper liabilities and reserves for all taxes and
proper reserves for depreciation, renewable and replacements, obsolescence and
amortization of its properties and consistently applied, as above described.
6.2 PROPERTIES IN GOOD CONDITION. The Borrower shall keep its properties in
good repair, working order and condition and, from time-to-time, make all
needful and proper repairs, renewal, replacements, additions and improvements
thereto, so that the business carried on may be properly and advantageously
conducted at all times in accordance with prudent business management.
6.3 INSPECTION BY LENDER. The Borrower shall allow any representative of
the Lender to visit and inspect any of the properties of the Borrower, to
examine the books of account and other records and files of the Borrower, to
make copies thereof and to discuss the affairs, business, finances and accounts
of the Borrower with its officers and employees, all at such reasonable times
and as often as the Lender may request.
6.4 BUSINESS OF THE BORROWER. The Borrower shall only conduct those
businesses and activities in which it is presently engaged, except for new
activities related to the Use of Proceeds.
6.4 PAY INDEBTEDNESS AND PERFORM COVENANTS. The Borrower shall:
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(a) Make full and timely payment of the principal and interest of
indebtedness of the Borrower to the Lender, whether now existing of hereafter
arising.
(b) Duly comply with all terms and covenants with or pursuant to this
Agreement, all at the times and places and in the manner set forth therein.
6.5 FURTHER ASSURANCE. The Borrower shall, at its own cost and expense,
upon the request of the Lender, duly execute and deliver to the Lender such
further instruments and do and cause to be done such further acts as may be
necessary or proper in the opinion of the Lender to carry our more effectively
the provisions and purposes of this Agreement.
7. EVENTS OF DEFAULT AND REMEDIATION
The following shall constitute events of defaults:
(a) Failure to pay interest or principal within ten (10) days of due
dates,
(b) Failure to provide accounting of Use of Proceeds,
(c) Failure to use proceeds in accordance with provisions of Section 2 of
the Agreement,
(d) Failure to comply with covenants and other requirements contained in
Sections 5 and 6 of this Agreement,
(e) Upon discovery of any misrepresentations made by the Borrower in
connection with this Agreement.
Upon any default, the principal and unpaid interest shall become due and
payable from the Borrower on demand by the Lender.
8. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the loan as
herein provided for, the Borrower makes the following representations and
warranties to the Lender, which shall survive the execution and delivery of this
Agreement and any inspection or examination at any time made by or on behalf of
the Lender:
8.1 CORPORATE STATUS. The Borrower has the corporate power and authority to
own its properties and to transact the business in which it is engaged or
presently proposes to engage in. The Borrower is duly qualified as a business
organization under the laws of California and is in good standing in all legal
entities in which its business or the ownership and use of its properties
requires such qualification.
8.2 NO VIOLATION OF AGREEMENT. Neither the Borrower nor any subsidiary is
in default under any indenture, mortgage, deed of trust, agreement, or other
instruments to which it is a party or by which it may be bound. Neither the
execution and delivery of
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this Agreement, or any of the instruments and documents to be delivered pursuant
to this Agreement, nor the consummation of the transactions herein or therein
contemplated, nor compliance with the provisions thereof or thereof will violate
any law or regulation or any order or decree or any court of governmental
instrumentality, or will conflict with, or result in the breach of, or
constitute a default under, any indenture, mortgage, deed of trust, agreement or
other instrument to which the Borrower or any subsidiary is a party or by which
any of them may be bound, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property of the Borrower, or any
subsidiary thereunder, or violate any provision of the Articles or Certificate
of Incorporation or Bylaws of the Borrower or any subsidiary.
9. MISCELLANEOUS
9.1 COLLECTION COSTS. In the event that the Lender shall retain or engage
an attorney or attorneys to collect, enforce or protect its interests with
respect to this Agreement or any instrument or document delivered pursuant to
this Agreement, the Borrower shall pay all of the costs and expenses or such
collection, enforcement or protection, including, without limitation, reasonable
attorneys' fees and coupt costs, and the lender may take judgement for all such
amounts, in addition to the unpaid principal and accrued interest.
9.1 MODIFICATION AND WAIVER. No modification or waiver of this Agreement
and no consent by the Lender to any departure therefrom by the Borrower shall be
effective unless such modification or waiver shall be in writing and signed by
the duly authorized officer of the Lender, and the same shall then be effective
only for the period, on conditions and for specific instances an purposes
specified in such writing. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
circumstances.
9.3 LAW. This Agreement shall be construed to be in accordance with and
governed by the laws of Switzerland.
9.4 NOTICES. All notices, requests, demands or other communications
provided for herein shall be in the written English language and shall be deemed
to have been given when sent by registered or certified mail, return receipt
requested, addressed, as the case may be to:
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The Lender: Xxxx Xxxxxx, Director
New Capital Investment Fund
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Georgetown, Grand Cayman
Cayman Islands, British West Indies
With a Copy to Xxxxxxx and Xxxxxx
Attn: Xxx Xxxxxxx
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000 XXX
The Borrower Harrier, Inc.
Attn: Xxxxxxx Xxxxxx, CFO
0000 Xxxxxxx Xxxxx Xxxxxxx #000
Xxxxxxx Xxxxx, XX 00000
With a Copy to
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------------------------------
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9.5 WAIVER OF JURV TRIAL AND SETOFF. The Borrower hereby waives trial by
jury in any litigation in any court with respect to, in connection with, or
arising out of this Agreement or any other instrument or document delivered
pursuant to this Agreement or the validity, protection, interpretation,
collection or enforcement thereof or any other claim or dispute howsoever
arising between the Borrower and the Lender; and the Borrower hereby waives the
right to interpose any setoff, counterclaim or cross-claim in connection with
any such litigation, irrespective of the nature of such setoff, counterclaim or
cross-claim. Borrower and Lender agree to use a Swiss mediator of mutual choice.
9.6 U.S. CURRENCY. All dollar amounts set forth in the Agreement shall be
designated and payable in the currency of the United States of America (USD $).
9.7 ENGLISH. All communications, letters and documents related to any and
all aspects of this Agreement shall be made in the English language.
9.8 COUNTERPART EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute a single original Agreement.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this Agreement
consisting of nine (9) pages, including a one page Appendix "A", to be duly
executed by their respective officers "hereunto duly authorized as of the day
and year first above written.
THE BORROWER: Harrier, Inc.
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Chief Financial Officer
THE LENDER: NEW CAPITAL INVESTMENT FUND, a
Cayman Islands Corporation
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Director
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Appendix "A"
USE OF PROCEEDS
Legal fees $ 60,000
Accounting fees $ 40,000
Capitalize/Start-up of Glycosyn laboratory $ 60,000
Pay/Reschedule outstanding payables $ 150,000
Working capital $ 190,000
Total Proceeds $ 500,000
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Appendix "B"
In addition to the Repayment terms specified in section 1.3, the borrower agrees
to pay the lender a consideration of 1% of the outstanding shares of its
subsidiary Glycosyn Pharmaceuticals, Inc. which amounts to 52,100 shares of
common stock.
The Borrower: /s/ Xxxxxxx Xxxxxx
Harrier, Inc.
The Lender: /s/ Xxxx Xxxxxx
New Capital Investment Fund
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