EXHIBIT 10.30
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is executed as of
December 13, 2004, by and between DCI USA, Inc. ("Lender"), whose
address for purposes of this Agreement is 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 and Apros and Chay MB Ltd. ("Borrower"),
whose address for purposes of this Agreement is 00 Xxxxx
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx 00000.
RECITALS
WHEREAS, Borrower desires to borrow, and the Lender desires
to lend, $96,000, and secure the payments to the Lender on the
terms and conditions contained in this Agreement; and
WHEREAS, the Borrower is willing to grant to the Lender a
warrant to purchase shares in the Borrower on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, Borrower and Lender agree as follows:
ARTICLE I
LOAN AND SECURITY
1.1 Loan. Subject to the terms of this Agreement, on the
date hereof Lender agrees to lend to Borrower and Borrower agrees
to borrow from Lender Ninety-Six Thousand Dollars ($96,000.00).
For purposes of this Agreement, Principal shall be defined as the
sum of (A) $96,000 plus (B) 60% of (i) either (a) the discount
paid to Cornell Capital Partners, L.P. ("Cornell") by the Lender
if the Lender converts the 8% Secured Convertible Debenture dated
December 13, 2004 (the "Cornell Note") issued by the Lender to
Cornell or (b) the premium paid to Cornell by the Lender if the
Lender redeems the Cornell Note plus (C) any closing costs
associated with either (a) or (b). Interest shall accrue on the
Principal sum at the annual rate of ten percent (10%) per annum
Principal and accrued interest thereon shall be due and payable
on December 13, 2005. Amounts owing under hereunder may be
prepaid by Borrower at any time.
1.2 Pledge. The obligations of the Borrower hereunder
shall be secured by a pledge in favor of the Lender hypothecating
all the issued and outstanding share capital of the Borrower. The
Borrower further agrees that after the date hereof it shall not
issue any shares, options, warrants or other convertible
securities without the prior written consent of the Lender.
The Borrower further agrees to grant to the Lender a second
pledge in the shares of Technoprises Ltd. owned by the Borrower
currently pledged to Cornell.. Promptly after the date hereof,
the Lender shall send an irrevocable direction letter to Cornell
instructing Cornell to deliver any shares of Technoprises held by
it to the Lender immediately after the release of the pledge
currently held by Cornell in said shares.
1.3 Loan Documents. At any time, upon the request of the
Lender, Borrower shall deliver to Lender a note, pledge, guaranty
and/or any other document reasonably requested by the Lender
evidencing the agreement of the parties under this Agreement.
Lender agrees that upon receipt of an additional $250,000 from
Cornell, 60% of the net proceeds thereof shall be lend to the
Borrower under the same terms and conditions of this Agreement.
1.4 Default by the Lender. If the Lender defaults in any
of its obligations to Cornell and as a result thereof the
48,500,000 shares of Technoprises or any portion thereof are not
returned (hereinafter referred to as the "Sold Shares"), the
Lender shall reimburse the Borrower for the value of the Sold
Shares. At the discretion of the Borrower, the value of the Sold
Shares shall be paid to it in cash, which can be done by
offsetting any amounts owed to the Lender hereunder, or by the
issuance of shares of the Lender, which shall be valued as of the
daily volume weighted average selling price for the 5 days prior
to issuance thereof.
ARTICLE II
WARRANT
2.1 Warrant. The Borrower hereby grants to the Lender a
warrant to purchase 960,000 shares of the Borrower at any time
after the date hereof until the close of business on December 13,
2005, provided, however, that the Lender, in its sole discretion,
shall have the right to extend such time for an additional 6
months. The purchase price per share of the Borrower shall be ten
cents ($0.10). In the event that the Borrower shall at any time
subdivide the outstanding shares of common stock, or shall issue
a stock dividend on the outstanding common stock, the warrant
exercise price in effect immediately prior to such subdivision or
the issuance of such dividend shall be proportionately decreased,
and in the event that the Borrower shall at any time combine the
outstanding shares of its common stock, the warrant exercise
price in effect immediately prior to such combination shall be
proportionately increased, effective at the close of business on
the date of such subdivision, dividend or combination as the case
may be.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As a material inducement to Lender's entry into this
Agreement, Borrower represents and warrants to Lender that:
3.1 Authority/Enforceability. Borrower is in substantial
compliance with all laws and regulations applicable to its
organization, existence and transaction of business and has all
necessary rights and powers to own, develop and operate its
property.
3.2 Binding Obligations. Borrower is authorized to execute,
deliver and perform its obligations under this Agreement and such
obligations are and shall continue to be valid and binding
obligations of Borrower.
3.3 No Violation. Borrower's execution, delivery, and
performance under this Agreement do not: (a) require any consent
or approval not heretofore obtained under any partnership
agreement, operating agreement, limited liability company
agreement, articles of incorporation, bylaws or other document;
(b) materially violate any governmental requirement applicable to
the Borrower or any other statute, law, regulation or ordinance
or any order or ruling of any court or governmental entity; (c)
materially conflict with, or constitute a material breach or
default or permit the acceleration of obligations under any
agreement, contract, lease, or other document by which the
Borrower or its property are bound or regulated; or
(d) materially violate any statute, law, regulation or ordinance,
or any order of any court or governmental entity.
ARTICLE IV
DEFAULTS AND REMEDIES
4.1 Default. The occurrence of any one or more of the
following shall constitute an event of default ("Default") under
this Agreement:
(a) Borrower's failure to perform any obligation under this
Agreement or any other agreement entered into in connection
herewith; or
(b) The material failure of any representation or warranty
of Borrower to be true, correct and complete as of the date made;
or
(c) (i) The filing of a petition by Borrower for relief
under any present or future state or federal law regarding
bankruptcy, reorganization or other debtor relief law; (ii) a
general assignment by Borrower for the benefit of creditors; or
(iii) Borrower applying for, or the appointment of, a receiver,
trustee, custodian or liquidator of Borrower or any of its
property; or
(d) (i) The filing of any pleading or an answer by Borrower
in any involuntary proceeding under any bankruptcy code or other
debtor relief law which admits the jurisdiction of the court or
the petitions material allegations regarding Borrower's
insolvency; or (ii) the failure of Borrower to effect a full
dismissal of any involuntary petition under any bankruptcy code
or under any other debtor relief law that is filed against
Borrower or in any way restrains or limits Borrower, prior to the
earlier of the entry of any court order granting relief sought in
such involuntary petition, or forty-five (45) days after the date
of filing of such involuntary petition; or
(e) The occurrence of any material management or
organizational change in Borrower or in the partners, venturers
or stockholders of Borrower.
4.2 Acceleration Upon Default; Remedies. Upon the
occurrence of any Default, Lender may, at its sole option,
declare all sums owing to Lender hereunder immediately due and
payable.
Notwithstanding anything contained herein to the contrary,
the Lender agrees that prior to exercising any rights hereunder,
the Lender shall first provide written notice to the Borrower and
its counsel and not exercise any right or remedy until and unless
the breach by the Borrower has not been cured by the expiration
of 15 business days from the date such notice has been delivered.
4.3 Rights Cumulative, No Waiver. All Lender's rights and
remedies provided in this Agreement, together with those granted
by law or at equity, are cumulative. No waiver shall be implied
from any failure of Lender to take, or any delay by Lender in
taking, action concerning any Default or failure of condition
under this Agreement, or from any previous waiver of any similar
or unrelated Default or failure of condition. Any waiver or
approval under any of this Agreement must be in writing and shall
be limited to its specific terms.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Indemnity. The Borrower hereby agrees to defend,
indemnify and hold harmless the Lender, its officers, directors,
employees, agents, successors and assigns from and against any
and all losses, damages, liabilities, claims, actions, judgments,
court costs and legal or other expenses (including, without
limitation, attorneys' fees and expenses) which the Lender may
incur as a direct or indirect consequence of: (a) the purpose to
which the Borrower applies the loan proceeds; (b) the failure of
the Borrower to perform any obligations as and when required by
this Agreement; or (c) any act or omission by the Borrower,
except to the extent caused or contributed to by the bad faith,
gross negligence or willful misconduct of the Lender.
5.2 Amendment. The form and substance of all documents,
instruments, and forms of evidence to be delivered to Lender
under the terms of this Agreement shall be subject to Lender's
approval and shall not be modified, superseded or terminated in
any respect without Lender's prior written approval
5.3 No Third Parties Benefited. No person other than
Lender and Borrower and their permitted successors and assigns
shall have any right of action under any of this Agreement.
5.4 Further Assurances. Upon Lender's request and at
Borrower's sole cost and expense, Borrower shall execute,
acknowledge and deliver any other instruments and perform any
other acts necessary, desirable or proper, as determined by
Lender, to carry out the purposes of this Agreement or to perfect
and preserve any liens created by this Agreement.
5.5 Assignment. Without the prior written consent of
Lender, Borrower shall not assign Borrower's interest under this
Agreement, or in any monies due or to become due hereunder, and
any assignment without such consent shall be void.
5.6 Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall
be in writing and shall be deemed to have been given when
delivered (i) if delivered in person or (ii) the fifth business
day following the delivery thereof, if delivered through an
internationally recognized overnight carrier, addressed to each
party at the address indicated on the signature page hereof.
5.7 Attorney-in-Fact. Borrower hereby irrevocably
appoints and authorizes Lender, as Borrower's attorney-in-fact,
which agency is coupled with an interest, to execute and/or
record in Lender's or Borrower's name any notices, instruments or
documents that Lender deems appropriate to protect Lender's
interest under this Agreement.
5.8 Relationship of Parties. The relationship of Borrower
and Lender is, and shall at all times remain, solely that of
borrower and lender, and Lender neither undertakes nor assumes
any responsibility or duty to Borrower or to any third party with
respect to the proceeds of the loan hereunder.
5.9 Related Party Transaction. The parties acknowledge
that members of the Borrower are or may be considered related
and/or affiliated parties of the Lender and waive any conflict of
interest resulting therefrom.
5.10 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(a) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT (AS
NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO
TRIAL BY JURY.
5.11 Severability. If any provision or obligation
under this Agreement shall be determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, that
provision shall be deemed severed from this Agreement and the
validity, legality and enforceability of the remaining provisions
or obligations shall remain in full force as though the invalid,
illegal, or unenforceable provision had never been a part of this
Agreement.
5.12 Successors and Assigns. Except as otherwise
expressly provided under the terms and conditions of this
Agreement, the terms of this Agreement shall bind and inure to
the benefit of the heirs, successors and assigns of the parties.
5.13 Headings. All article, section or other headings
appearing in this Agreement are for convenience of reference only
and shall be disregarded in construing this Agreement.
5.14 Governing Law. This Agreement shall be governed
by, and construed and enforced in accordance with the laws of the
State of New York, except to the extent preempted by federal
laws. Borrower hereby consents to the jurisdiction of any federal
or state court within the State of New York having proper venue
and also consent to service of process by any means authorized by
New York or federal law.
5.15 Integration. This Agreement contains or expressly
incorporates by reference the entire agreement of the parties
with respect to the matters contemplated therein and supersede
all prior negotiations or agreements, written or oral.
5.16 Counterparts. This Agreement and any subsequent
modifications, amendments, waivers, consents or supplements
thereof, if any, may be executed by facsimile and in any number
of counterparts, each of which when executed and delivered shall
be deemed to be an original and all such counterparts together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Lender have executed this
Agreement as of the date appearing on the first page of this
Agreement.
Lender:
DCI USA, Inc.
By: _/s/_David Yerushalmi
Lender's US address:
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Borrower:
APROS & CHAY MB LTD.
By: _/s/_Adam Ofek
Borrower's address:
00 Xxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx 00000
