LOAN AGREEMENT
between
1. HEXAL XX, Xxxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxxxx, Xxxxxxx
represented by the member of the managing board, Xxxxxx Xxxxxx
- the Lender -
and
2. HEXAL PHARMA INC., 000-00 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
XXX
represented by the general manager, Xxxxxxx Xxxx
- the Borrower -
1
SECTION 1
PAYMENT OF LOAN
The Lender grants the Borrower a loan in the maximum amount of
USD 20,000,000.00
(in words: twenty Million USD)
which shall be paid out in partial amounts at the Borrower's request. The
loan is paid into an account to be determined by the Borrower in writing.
The Borrower assures that all currency authorisations for the borrowing have
been given.
SECTION 2
PURPOSE OF THE LOAN
The Borrower commits himself to use the funds received under this loan
agreement exclusively for the following purposes:
- development of the market
SECTION 3.
INTEREST
From the day of the first payment of loan onwards the loan is to yield an
interest in the amount of the sum paid at the USD-12-month LIBOR
(Xxx-Xxxxx-Telerate) effective on December 30 of the preceding year plus 0.75
% p.a.. If no LIBOR rate is fixed on December 30, the rate of the preceding
bank working day shall apply. If the amount of the loan pursuant to Section 1
is paid in a currency participating in the European Monetary Union, the
EURIBOR will replace the LIBOR from January 1, 1999 onwards.
The interest is calculated on the basis of act./360. The payments of interest
are due at the respective last bank working day in Germany of the respective
calendar year.
2
SECTION 4
REPAYMENT OF THE LOAN
The loan is to be redeemed in one amount after termination pursuant to
Section 7 or according to a special agreement.
The Borrower is entitled to redeem whenever and whatever amount.
In case the Borrower does not redeem the loan when due, it is in default
without written reminder.
SECTION 5
DEFAULT
It the Borrower is in default with the redemption, it is to pay interest on
the outstanding amount of redemption with an additional 3 % p.a. (default
interest).
SECTION 6
REPORTING OBLIGATION
The Borrower commits himself to send to the Lender the annual statement of
accounts including the balance sheet and profit and loss account respectively
three months after the end of the business year at the latest.
The Borrower shall grant permission to the Lender to inspect its books upon
request. The inspection is to be granted to the Lender himself or to a third
party appointed by the Lender who is bound to secrecy by act of law.
The Borrower shall not be entitled to grant loans to third parties or to be
granted loans by third parties without the prior consent of the Lender.
3
SECTION 7
TERMINATION
The loan agreement can be terminated by both parties by giving a three
month's written notice.
The Lender can terminate the agreement for an important reason without giving
due notice. An important reason In particular exists if the Borrower uses the
funds received due to this loan agreement contrary to the purpose agreed upon
in Section 2 or if the Borrower is In default by more than 30 days with a
repayment of interest or redemption.
After the termination, the principal amount of the loan still outstanding,
including the interest accrued, becomes due for repayment.
SECTION 8
COLLATERAL FOR THE LOAN
No particular collateral for the loan is provided for in this agreement.
However, the Borrower is obliged to provide appropriate collateral upon
written request of the Lender.
SECTION 9
PAYMENTS
All payments made by the Borrower to the Lender are to be directed to the
account of the Lender at:
Bayerische Hypo- und Vereinsbank AG
Xx Xxxxxxxxxx 00
00-000 Xxxxxxx
Bank Code: 700 202 70
Swift-Code: HYVE DE MM 448
Account number: 846229590
4
The payments are made in the currency determined in Section 1, as long as
this currency continues to exist as deposit money. If the currency agreed
upon in Section 1 is replaced by another, sole legal currency, it replaces
the currency determined in Section 1.
All payments are to be made without deductions by virtue of fiscal, customs
or currency provisions (gross upon).
SECTION 10
SET-OFF/RIGHT OF RETENTION
The Borrower can only claim a set-off vis-a-vis the Lender if the claim of
the Borrower is, according to written agreement, undisputed or recognized by
declaratory judgement.
The Borrower can only enforce a lien if the claim for payment of the Lender
and the counterclaim of the Borrower are based an the same contractual
relationship.
SECTION 11
COLLATERAL CLAUSES
Collateral agreements, changes and supplements to this agreement have to be
made in writing. This in particular applies for the abolition of the
requirement of written form.
This agreement shall be governed in accordance with the laws of the Federal
Republic of Germany.
Exclusive place of jurisdiction shall be Munich.
If certain provisions of this agreement are invalid or unenforceable, the
validity of the remaining provisions shall not be affected. Instead of the
invalid or unenforceable provision the parties shall agree upon a provision
which in its economic and legal contents corresponds as closely as possible
to the invalid or unenforceable provision.
5
THIS LOAN AGREEMENT IS EFFECTIVE FROM JANUARY 1ST 2000 AND REPLACES ALL
PREVIOUS LOAN AGREEMENTS.
Holzkirchen, dated 03.01.2000
[SEAL]
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
---------------------- ---------------------------------
HEXAL AG Hexal Pharma, Inc.
6
ANNEX OF THE LOAN AGREEMENT
FOR USD 20.000.000,00 DT. 03.01.2000
AMENDMENT
SECTION 3
INTEREST
From January 01st 2001 the loan is to yield an interest in the amount of the
sum paid at the USD-12-Month-LIBOR (Xxx-Xxxxx-Telerate) effective on December
30th of the preceding year plus 1,25% p.a.
If no LIBOR/EURIBOR rate is fixed on December 30th, the rate of the preceding
bank working day shall apply.
The interest is calculated on the basis of act./360, The payments of interest
are due on quarterly base.
Holzkirchen, dated 01.01.2001
[SEAL]
/s/ HEXAL AG /s/ Xxxxxxx X. Xxxx
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HEXAL AG HEXAL Pharmaceuticals Inc.
