LOAN AGREEMENT
This LOAN AGREEMENT ("Agreement") is made and entered into effective
the 20th day of January, 1997, by and between Xxxxx Xxxxx, GEM Communications,
Inc. and Niche Pharmaceuticals, Inc., a Delaware corporation ("Borrower").
WHEREAS, Borrower desires to obtain from Lender and Lender is willing
to make such loan on the term and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties agree as follows:
1. LOAN. Lender shall make available to Borrower an aggregate sum of
One Hundred- Fifty Thousand Dollars ($150,000) for loan to Borrower. Borrower
may from time to time during the term of this Agreement make requests for
advances on the loan, such advances not to exceed in the aggregate the principal
sum of One Hundred-Fifty Thousand Dollars ($150,000). Any amounts advanced under
the loan shall bear interest at the rate of ten percent (10%) per annum.
2. REPAYMENT. Borrower shall repay any or all amounts advanced
by Lender hereunder upon demand by Lender therefor. Borrower's obligation to
repay to Lender any amounts advanced hereunder shall be represented by
Borrower's promissory note to Lender executed contemporaneously herewith and
attached hereto.
3. TERM. This Agreement shall be in effect for a period of one
(1) year from the effective date hereof.
4. SUCCESSORS AND ASSIGNS. The rights and obligations of the
parties under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the parties.
5. PARAGRAPH HEADINGS. The paragraph headings contained herein
are for convenience only, and do not purport to accurately summarize the
contents of the paragraph they head, and shall not modify, or in any way affect
the provisions of this Agreement or be of any relevance in the construction
thereof.
6. MEDIATION AND ARBITRATION OF DISPUTES.
A. Should either Party reasonably believe the other has
committed a breach of this Agreement, such party shall notify the other in
writing stating its belief that a breach has been committed and setting forth
its reasons for such belief;
B. If the Party in receipt of such notice does not respond
within thirty (30) days, except in the event of an alleged breach of Paragraph
3, which time shall be ten (10) days, of its receipt of same, or if it does
respond and the party receiving such response is not satisfied with the response
or the proposed remedy, such party may thereafter demand arbitration;
C. Should the Parties fail to resolve any controversy or claim
arising out of or relating to the interpretation or application of any term or
provision set forth herein, or the alleged breach thereof, such controversy or
claim shall be resolved by arbitration in accordance with the Rules of the
American Arbitration Association;
D. Judgment upon any award rendered pursuant to Paragraph 23 C
herein may be entered in any court having jurisdiction of the Party against whom
the award is rendered;
E. Any award rendered pursuant to the terms and conditions set
forth herein shall be final and binding; and
F. Any arbitration held pursuant to this Agreement shall be
held in Austin, Texas. Each Party shall bear its own expenses and shall equally
share the administrative expenses of the hearing, including arbitration fees,
the expenses of a court reporter, hearing room, etc.
7. APPLICABLE LAW. This Agreement shall be subject to, construed
in accordance with and governed by, the laws of the State of Texas, Venue of any
legal proceeding hereunder shall be in Xxxxxx County, Texas.
8. MUTUAL PREPARATION. Each party has read the foregoing
Agreement, fully understands the contents thereof, and is under no duress or
pressure of any sort to execute it. This Agreement was mutually prepared and
shall not be construed against any party by reason of his role in such
preparation.
9. MISCELLANEOUS. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had
never been contained herein . If, moreover, any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be excessively
broad as to time, duration, geographical scope, activity, or subject, it shall
be construed, by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
10. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, but all counterparts taken together shall constitute one and the
same Agreement, binding upon all of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Loan Agreement
effective the date set forth above.
LENDER:
/s/ Xxxxx X. Xxxxx
XXXXX XXXXX, PRESIDENT
BORROWER:
NICHE PHARMACEUTICALS, INC.
a Delaware Corporation
/s/ Xxxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXX, PRESIDENT/CEO
