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Exhibit 10.17
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For the Sparkasse [Savings Bank] Sparkasse 1/99
Freiburg - Northern Breisgau
Loan with initial fixed interest P.O. Box 11 70
to legal entities or for commercial or independent 00000 Xxxxxxxx
professional purposes already exercised FKA/035/ADL/BR
-Sparkasse-
Account no. 6000316396
Date Freiburg, May 7, 1999
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ADL Vertriebs GmbH Gesellschaft fur
Allergie, Diaknostika und Laborkonzepte
Xxxxxxxxxx Xxxxxxx 0
00000 Xxxxxxxx
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- hereinafter called the Borrower - receive(s) from the Sparkasse under the
following terms a
loan for the nominal amount of 380,000.00 DM
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Account to be credited: 1 002 038 6 Account to be debited: 1 002 038 6
1 COSTS OF LOAN, REPAYMENT
1.1 INTEREST: The loan is subject to interest at 5.200 percent per year. This
interest rate is unchanging until May 30, 2004. No earlier than six weeks, no
later than two weeks before the end of the fixed interest period either party
can request that the terms for granting of the loan (interest rate, disagio,
etc.) be renegotiated. If no new loan conditions are agreed to before the end of
the fixed interest period, the loan will continue under terms subject to change.
The interest rate set by the Sparkasse for loans of this type shall apply. If
market conditions change, the Sparkasse has the right to lower or raise the
interest effective immediately by declaration to the Borrower.
1.2 The Sparkasse will impose a disagio of percent and a one-time
processing commission of percent of the loan amount. The two amounts will
be charged by the Sparkasse upon the first payout. In the event of early
repayment of the loan, the processing commission will not be refunded - not even
in part. The disagio will be charged as follows:
1.3 OTHER COSTS: All costs which arise as a result of the conclusion and
execution of this contract, including the furnishing of collateral, shall be
borne by the Borrower.
1.4 PROVISION, NON-ACCEPTANCE: The Borrower is obligated to prepare the
conditions for payout and to receive the loan. Starting on November 1, 1999 the
Sparkasse has the right to charge provision interest of 3.00 percent per year
for the amount of the loan not used. If the payout ultimately does not come
about for a reason for which the Sparkasse is not responsible, it retains all of
its contractual and legal rights. Even in this case the provision commission
will be charged. This also applies even if the Sparkasse make use of its rights
in accordance with No. 9.3.
1.5 REPAYMENT AND PAYMENT DEADLINES: All amounts due for payment well be debited
from the debit account designated above. INTEREST is due for the first time on
the payment date following the first payout, PRINCIPAL PAYMENTS for the first
time on June 30, 1999.
Redemption loans: Repayment 17.55 percent per year of the face value of the loan
plus the interest saved by the repayment.
The annual payment (interest plus principal) is at present 86,471.28 DM. It is
to be paid in installments of (1) 7,205.94 DM on/at the end of the month. Until
the beginning of repayment, only the interest is to be paid on these dates. If
there is a change in the interest rate (No. 1.1), the Sparkasse can also adjust
the payment amount.
Installment loans: Annual repayment(1) in installments of(1) on/at
. The interest is to be paid in installments on/at .
Fixed loans: The loan is to be repaid on/at . The interest is to be
paid in installments on/at .
1.6 If the borrower does not make a payment when it is due, the Sparkasse can
charge for its damages from the delay without jeopardizing additional claims.
2 SPECIAL PROVISIONS
The costs of the loan statement in the amount of DM 20.00 per year shall be
borne by the borrower. Also applicable are the conditions named in Appendices 1,
2 and 3, which are a material part of this loan agreement.
3 COLLATERAL
The loan cannot be drawn upon until all of the prerequisites are fulfilled so
that the agreed-upon collateral is available to the Sparkasse, and the Sparkasse
has verification thereof, if appropriate. The following collateral is provided
to the Sparkasse in special documents, irrespective of the liability of any
already existing or future collateral in conjunction with the collateral purpose
thereof:
- Security assignment of merchandise stock; provider of collateral: ADL
Vertriebs GmbH
- Assignment of accounts receivable, blanket assignment from A to Z; provider
of collateral: ADL Vertriebs GmbH
- Assignment of the rights and claims of a term life insurance policy for
DM 300,000.00; insured: Xxxxx Xxxxx
- Indemnity bond of the Burgschaftsbank Baden-Wurttemberg GmbH for
DM 266,000.00
- Absolute guaranty from Mr. Xxxxx Xxxxx for DM 350,000.00
- Absolute guaranty from Mr. Xxxxxxx Xxxxxx for DM 120,000.00
- Absolute guaranty from Ms. Xxx Xxxxx for DM 120,000.00
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Exhibit 10.17
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4 SPECIAL TERMS OF PAYOUT FOR CONSTRUCTION FINANCING
4.1 The loan will be disbursed if the audit of the documents which are still to
be submitted to the Sparkasse so permit. To test the condition for disbursement
of the loan, the Sparkasse has the right to have an inspection and appraisal of
the mortgaged property performed at the Borrower's expense.
4.2 At the option of the Sparkasse, depending on the progress of the
construction work partial payments can be made, as long as the conditions for
disbursement are satisfied. Care must be taken to ensure that the construction
project can be completed with the funds still available. As a rule the Sparkasse
will make partial payments only after all outside and inside funds have been
used and after the shell construction is complete.
5 LIMITATION OF ASSIGNMENT
The claim for disbursement of the loan can only be assigned or pledged with the
consent of the Sparkasse.
6 MULTIPLE BORROWERS, RETRANSFER OF COLLATERAL
In the case of multiple borrowers, each is entitled separately to receive the
loan. Multiple borrowers are liable as co-debtors, including liability for any
overdraft of the giro account of one of the borrowers due to debiting of the
installment charges.
If the Sparkasse is satisfied by one of the borrowers, it does not test whether
the latter is entitled to items of collateral which it no longer requires. In
principle it will return such collateral to the provider of the collateral, if
the borrower who makes the payment does not prove that the provider of the
collateral has approved having it turned over to him.
7 FULFILLMENT
All payments are to be paid or remitted - at no cost to the Sparkasse - in the
business premises of the Sparkasse or at a place to be designated by it. The
Sparkasse has the right to apply the payments to the amounts owed at its own
discretion, and if there are multiple debt relationships, can determine to which
debt relationship, and to which amounts owed, payments are to be applied.
8 DUTY OF DISCLOSURE AND NOTIFICATION
The Borrower must grant the Sparkasse, a fiduciary designated by it, or a
responsible auditing agency access at all times to examine the Borrower's
business circumstances, must in particular submit its books, balance sheets,
financial statements and business papers or must allow these procedures to be
examined and audited, must give all desired information and allow its operations
to be observed. The Sparkasse is required by law to have the business
circumstances of the Borrower disclosed to it.
AFTER CONSULTATION WITH THE BORROWER, THE SPARKASSE CAN REQUEST THE NECESSARY
DOCUMENTS AND INFORMATION DIRECTLY FROM THE BORROWER'S ACCOUNTING AND TAX
ADVISORS.
If the specified documents and information are stored on data media, the
Borrower is obligated to make them readable within a reasonable time.
THE SPARKASSE HAS THE RIGHT TO EXAMINE THE PUBLIC REGISTERS AND THE REAL ESTATE
REGISTER AND FILES AT ANY TIME AND TO REQUEST SIMPLE OR CERTIFIED COPIES AND
EXTRACTS AT THE BORROWER'S EXPENSE, AND TO OBTAIN INFORMATION FROM INSURANCE
COMPANIES, GOVERNMENT AGENCIES AND OTHER SOURCES WHICH IT MAY CONSIDER NECESSARY
FOR EVALUATING THE LOAN RELATIONSHIP.
9 CANCELLATION, ACCOUNT DUE IMMEDIATELY
9.1 The loan can be terminated in whole or in part by either side with one
month's notice, effective at the expiration of the first or a subsequent fixed
interest agreement in accordance with No. 1.1. If the loan is continued at a
variable interest rate after the expiration of the first or a subsequent fixed
interest agreement, it can be terminated at any time with three months' notice
to the other contracting party.
The cancellation is to be in writing. Termination by the Borrower will be
treated as null and void, if the Borrower does not pay back the amount owed
within two weeks after the effective date of the termination.
9.2 Irrespective of its right to cancel without advance notice for other
significant cause (No. 26 AGB), the Sparkasse can declare the principal due and
payable immediately,
- if the provider of the collateral violates the special duties imposed upon
it in the separate collateral agreement or land charge initiation
documents;
- if the Borrower violates the duties imposed upon it in No. 8;
- if the Borrower falls more than 14 days behind with payments due, and also
does not pay after an additional follow-up deadline of at least 14 days has
been set by the Sparkasse;
- if forced sale or forced administration is initiated with respect to the
encumbered collateral property or parts thereof; the case of forced sale
because of conflict between co-owners or co-holders of hereditary building
rights is excluded;
- if accessory items, rents or lease charges are attached, or if they are
disposed of without the consent of the Sparkasse, unless the disposal of
the accessory items takes place within the bounds of proper business;
- if the pledged property is sold in whole or in part, or is otherwise
disposed of, without the consent of the Sparkasse, or if, in the case of a
hereditary building right, the owner of the land makes use of its right of
reversion;
- if the legal validity or the priority of the land charge is disputed, or
the agreed-upon priority is not procured within two months.
9.3 THE SPARKASSE HAS THE RIGHT TO REFUSE TO DISBURSE THE LOAN, OR TO DECLARE
AMOUNTS WHICH HAVE ALREADY BEEN PAID OUT IMMEDIATELY DUE AND PAYABLE, IF
- the information contained in the loan documents turns out to be incorrect
or if significant changes occur in the personal and business circumstances
of the Borrower or the provider of collateral, in particular if the overall
financing of the building project is no longer assured or completion
appears threatened for other reasons,
- the right to disbursement of the loan is attached.
If there are multiple borrowers or providers of collateral, the provisions
stated above under 9.1 to 9.3 apply even if the conditions for cancellation
recall of the loan reside in the person of only one borrower or provider of
collateral.
00 XXXXX XX XXXXXXXXXXXX
If the place of jurisdiction is not determined by the encumbered parcel of land,
and the authority of the general place of jurisdiction is not already evident
from ss. 10 ZPO (Code of Civil Procedure), the Sparkasse can pursue its claims
at its general place of jurisdiction, if the contracting partner to be sued is a
Kaufmann [specially defined entrepreneur under German law - Transl.] or a legal
entity in the meaning of No. 6 AGB [General Business Terms and Conditions], or
has no general place of jurisdiction in Germany at the time of entering into the
contract, or later relocates his residence or usual whereabouts outside of the
Federal Republic of Germany, or if his place of residence or usual whereabouts
are not known at the time the action is brought.
11 CONSENT TO DISCLOSURE OF INFORMATION IN CONJUNCTION WITH REFINANCING
The Borrower consents to the Sparkasse conveying to a central bank or a
refinancing bank (refinancing institute) the necessary information (such as
amount of loan, due date, name and address of the Borrower), if the Sparkasse
assigns or pledges the loan receivable to a refinancing institute or uses it for
refinancing on the basis of some other legal instrument.
12 GENERAL BUSINESS TERMS AND CONDITIONS
The Sparkasse specifically points out that in addition, its General Business
Terms and Conditions (AGB) are part of the contract. The AGB are available for
review in the counter hall of the Sparkasse.
The contract and the copy/copies are to be signed by all of the borrowers named
on the front!
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Note: if a jointly liable borrower is a consumer in the meaning of ss.1
VerbrKrG, form 191 050.000 is also required.
City, date (if different from Page 1)
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Freiburg, May 31, 1999
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Verification of identity
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Person 2 known & already verified under account_____________
Identified by __Personal Identity Card __Passport
No._______________________________________ issued by
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Person 2 known & already verified under account_____________
Identified by __Personal Identity Card __Passport
No._______________________________________ issued by
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Identity checked Signature of the preparer (with ID no.)
and for the
correctness of the
signature(s):
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Company name and signature(s) of Borrower(s)
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The borrower(s) is/are acting on own account:
__ Yes __ No
Xxxxx Xxxxx
ADL Vertriebs GmbH Gesellschaft fur Allergie, Diaknostika und Laborkonzepte
For the Sparkasse:
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Sparkasse
Freiburg - Northern Breisgau
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(1) Each party to the contract will receive a copy of the AGB, if there is no
prior business relationship and the contract is concluded outside of the
Sparkasse.
