Exhibit 10.2
CERTAIN INFORMATION IN THIS EXHIBIT MARKED
[***] HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.
FI N° 86508, FI ▇▇ ▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇, and FI N° 82693
Serapis N° 2016-0480
Curetis (EGFF)
Finance Contract
as amended and restated pursuant
to the First Amendment and Restatement Agreement dated 20 May 2019 and the Second Amendment and Restatement Agreement dated
2020
between the
European Investment Bank
and
Curetis GmbH
Luxembourg
on 12 December 2016
Contents
Clause Page
| INTERPRETATION AND DEFINITIONS |
4 |
| ARTICLE 1 |
16 |
| 1.01 Amount of Credit |
16 |
| 1.02 Disbursement procedure |
17 |
| 1.03 Currency of disbursement |
18 |
| 1.04 Conditions of disbursement |
18 |
| 1.05 Second Credit |
20 |
| 1.06 Deferment of disbursement |
21 |
| 1.07 Cancellation and suspension |
22 |
| 1.08 Cancellation after expiry of the Credit |
23 |
| ARTICLE 2 |
23 |
| 2.01 Amount of Loan |
23 |
| 2.02 Currency of repayment, interest and other charges |
23 |
| 2.03 Confirmation by the Bank |
23 |
| ARTICLE 3 |
23 |
| 3.01 Rate of interest – Cash Pay Margin |
23 |
| 3.02 Rate of interest – Deferred Interest |
24 |
| 3.03 Interest on overdue sums |
24 |
| 3.04 Market Disruption Event |
25 |
| 3.05 PPI |
25 |
| 3.06 Payment in kind (PIK) interest |
26 |
| ARTICLE 4 |
26 |
| 4.01 Normal repayment |
26 |
| 4.02 Voluntary prepayment |
26 |
| 4.03 Compulsory prepayment |
27 |
| 4.04 General |
29 |
| ARTICLE 5 |
29 |
| 5.01 Day count convention |
29 |
| 5.02 Time and place of payment |
29 |
| 5.03 No set-off by the Borrower |
30 |
| 5.04 Disruption to Payment Systems |
30 |
| 5.05 Application of sums received |
30 |
| ARTICLE 6 |
30 |
| 6.01 Use of Loan and availability of other funds |
31 |
| 6.02 Completion of Project |
31 |
| 6.03 Increased cost of Project |
31 |
| 6.04 Procurement procedure |
31 |
| 6.05 Continuing Project undertakings |
31 |
| 6.06 Disposal of assets |
32 |
| 6.07 Compliance with laws; Hedging |
33 |
| 6.08 Change in business |
33 |
| 6.09 Merger |
33 |
| 6.10 Ownership |
33 |
| 6.11 Books and records |
34 |
| 6.12 Acquisitions |
34 |
| 6.13 Indebtedness |
35 |
| 6.14 Guarantees |
35 |
| 6.15 Permitted Payments |
35 |
| 6.16 Intellectual Property Rights |
35 |
| 6.17 Maintenance of Status |
35 |
| 6.18 Eligibility Prerequisites |
35 |
| 6.19 Illicit origin |
35 |
| 6.20 Visibility |
35 |
| 6.21 Loans |
36 |
| 6.22 General Representations and Warranties |
36 |
| ARTICLE 7 |
38 |
| 7.01 Guarantee |
38 |
| 7.02 Negative pledge |
38 |
| 7.03 Pari passu ranking |
39 |
| 7.04 Clauses by inclusion |
40 |
| ARTICLE 8 |
40 |
| 8.01 Information concerning the Project |
40 |
| 8.02 Information concerning the Borrower |
41 |
| 8.03 Visits by the Bank |
42 |
| 8.04 Disclosure and publication |
43 |
| 8.05 Information required by an Accountant |
43 |
| ARTICLE 9 |
43 |
| 9.01 Taxes, duties and fees |
43 |
| 9.02 Other charges |
44 |
| 9.03 Increased costs, indemnity and set-off |
44 |
| 9.04 Accountant fees |
44 |
| ARTICLE 10 |
44 |
| 10.01 Right to demand repayment |
44 |
| 10.02 Other rights at law |
46 |
| 10.03 Indemnity |
46 |
| 10.04 Non-Waiver |
46 |
| ARTICLE 11 |
47 |
| 11.01 Governing Law |
47 |
| 11.02 Jurisdiction |
47 |
| 11.03 Agent of Service |
47 |
| 11.04 Place of performance |
47 |
| 11.05 Evidence of sums due |
47 |
| 11.06 Third party rights |
47 |
| 11.07 Entire Agreement |
48 |
| 11.08 Invalidity |
48 |
| 11.09 Amendments |
48 |
| 11.10 Counterparts |
48 |
| ARTICLE 12 |
48 |
| 12.01 Notices to either party |
48 |
| 12.02 Form of notice |
49 |
| 12.03 Demand after notice to remedy |
49 |
| 12.04 English language |
49 |
| 12.05 Recitals and Schedules |
49 |
| Schedule A |
52 |
| A.1. TECHNICAL DESCRIPTION |
52 |
| A2. PROJECT INFORMATION TO BE SENT TO THE BANK AND METHOD OF TRANSMISSION |
53 |
| Schedule B |
55 |
| Schedule C |
57 |
| Schedule D |
59 |
| Schedule E |
61 |
| Schedule F |
62 |
THIS CONTRACT IS MADE ON 12 DECEMBER
2016 (AND REFERENCES TO "THE DATE OF THIS CONTRACT" SHALL BE CONSTRUED ACCORDINGLY) AND IS SET OUT BELOW AS AMENDED AND
RESTATED PURSUANT TO THE FIRST AMENDMENT AND RESTATEMENT AGREEMENT AND THE SECOND AMENDMENT AND RESTATEMENT AGREEMENT (EACH AS
DEFINED BELOW) BETWEEN:
|
The European Investment Bank having
its seat at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, represented by Vice-President Ambroise Fayolle
|
(the "Bank") |
of the first part,
and
|
Curetis GmbH, a company incorporated
in Germany, having its registered office at ▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, represented by its Managing Directors
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
(the "Borrower") |
of the second part.
WHEREAS:
| (1) | The Borrower has stated that it is undertaking a project as more particularly described in the
technical description (the "Technical Description") set out in Schedule A (the "Initial Project"). |
| (2) | The total cost of the Initial Project, as estimated by the Bank, is EUR 50,000,000 (fifty million
euros) and the Borrower has stated that it intends to finance the Project as follows: |
| Source |
Amount (EUR m) |
| Own funds |
25,000,000 |
| Credit from the Bank |
25,000,000 |
| TOTAL |
50,000,000 |
| (3) | The Borrower has also stated that it is undertaking certain research and product development in
relation to a project to develop diagnostic solutions for COVID-19 (the "COVID-19 Project" and together with the
Initial Project, the "Project"). |
| (4) | The total cost of the COVID-19 Project, as estimated by the Bank, is EUR 10,000,000 (ten million
euros) and the Borrower has stated that it intends to finance the COVID-19 Project as follows: |
| Source |
Amount (EUR m) |
| Own funds |
5,000,000 |
| Credit from the Bank |
5,000,000 |
| TOTAL |
10,000,000 |
| (5) | In order to fulfil the financing plans set out in Recitals (2) and (4), the Borrower has requested
from the Bank a credit of EUR 30,000,000 (thirty million euros). |
| (6) | The Bank considering that the financing of the Project falls within the scope of its functions,
and having regard to the statements and facts cited in these Recitals, has decided to give effect to the Borrower's request providing
to it a credit in an amount of EUR 30,000,000 (thirty million euros) under this Finance Contract (the "Contract");
provided that the amount of the Bank loan shall not, in any case, exceed 50% (fifty per cent) of the total cost of the Project
set out in Recitals (2) and (4). |
| (7) | The Managing Directors of the Borrower have authorised the borrowing of the sum of EUR 30,000,000
(thirty million euros) represented by this credit on the terms and conditions set out in this Contract and it has been duly certified
that such borrowing is within the corporate powers of the Borrower. |
| (8) | The financial obligations of the Borrower under this Contract are guaranteed by OpGen and Ares
Genetics (each as defined below) under: |
| (a) | the guarantee and indemnity agreement entered into between the Bank and Ares Genetics, governed
by English law and dated 29 November 2017 (the "Ares Genetics First Guarantee Agreement"); |
| (b) | the guarantee and indemnity agreement entered into between the Bank and Ares Genetics, governed
by English law and dated 20 May 2019 (the "Ares Genetics Second Guarantee Agreement"); and |
| (c) | the guarantee and indemnity agreement entered into between the Bank and OpGen, governed by English
law and dated on or about the date of the Second Amendment and Restatement Agreement (the "OpGen Guarantee Agreement");
and |
| (d) | the guarantee and indemnity agreement entered into between the Bank and Ares Genetics, governed
by English law and dated on or about the date of the Second Amendment and Restatement Agreement (the "Ares Genetics Third
Guarantee Agreement"); |
| (9) | To avoid doubt, following the Effective Date the following guarantee and indemnity agreements have
been released by the Bank: |
| (a) | the guarantee and indemnity agreement entered into between the Bank and Curetis NV, governed by
English law and dated 12 December 2016 (the "Initial Guarantee Agreement"); |
| (b) | the guarantee and indemnity agreement entered into between the Bank and Curetis USA, governed by
English law and dated 22 December 2017 (the "Curetis USA First Guarantee Agreement"); |
| (c) | the guarantee and indemnity agreement entered into between the Bank and Curetis NV, governed by
English law and dated 20 May 2019 (the "Curetis NV Second Guarantee Agreement"); |
| (d) | the guarantee and indemnity agreement entered into between the Bank and Curetis USA, governed by
English law and dated 20 May 2019 (the "Curetis USA Second Guarantee Agreement"). |
| (10) | This operation benefits from a guarantee from the European Union under the European Fund for Strategic
Investments ("EFSI"). |
| (11) | The statute of the Bank provides that the Bank shall ensure that its funds are used as rationally
as possible in the interests of the European Union; and, accordingly, the terms and conditions of the Bank's loan operations must
be consistent with relevant policies of the European Union. |
| (12) | The Bank considers that access to information plays an essential role in the reduction of environmental
and social risks, including human rights violations, linked to the projects it finances and has therefore established its transparency
policy, the purpose of which is to enhance the accountability of the EIB Group towards its stakeholders and the citizens of the
European Union in general. |
| (13) | The processing of personal data shall be carried out by the Bank in accordance with applicable
European Union legislation on the protection of individuals with regard to the processing of personal data by the European Union
institutions and bodies and on the free movement of such data. |
NOW THEREFORE it is
hereby agreed as follows:
INTERPRETATION AND DEFINITIONS
In this Contract:
| (i) | References to Articles, Recitals, Schedules and Annexes are, save if explicitly stipulated otherwise,
references respectively to articles of, and recitals, schedules and annexes to this Contract. |
| (ii) | References to a provision of law are references to that provision as amended or re-enacted. |
| (iii) | References to any other agreement or instrument are references to that other agreement or instrument
as amended, novated, supplemented, extended or restated. |
| (iv) | References to "accrued interest" includes any Deferred Interest. |
In this Contract:
"Acceptance
Deadline" for a notice means:
| (a) | 16h00 Luxembourg time on the day of delivery, if the notice is delivered by 14h00 Luxembourg time
on a Business Day; or |
| (b) | 11h00 Luxembourg time on the next following day which is a Business Day, if the notice is delivered
after 14h00 Luxembourg time on any such day or is delivered on a day which is not a Business Day. |
"Accountant"
means any firm of accountants approved in advance by the Bank (such approval not to be unreasonably withheld or delayed).
"Accounting
Reference Date" means 31 December.
"Affiliates"
means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"Ares
Genetics" means Ares Genetics GmbH (a company incorporated in Austria with company number FN 468899 H and registered office
at ▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇).
"Authorisation"
means an authorisation, permit, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"BPE"
means, the British Private Equity & Venture Capital Association.
"Business
Day" means a day (other than a Saturday or Sunday) on which the Bank and commercial banks are open for general business
in Luxembourg.
"Cash
Pay Margin" has the meaning given in Article 3.01.
"Change-of-Control
Event" has the meaning given to it in Article 4.03A(3).
"Change
in the Beneficial Ownership" means a change in the ultimate ownership or control of the Borrower according to the definition
of "beneficial owner" set out in article 3(6) of Directive 2015/849 of the European Parliament and of the Council of
20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
"Change-of-Law
Event" has the meaning given to it in Article 4.03A(4).
"Compliance
Certificate" means a certificate substantially in the form set out in Schedule D.2.
"Contract"
has the meaning given to it in Recital (6).
"COVID-19"
means the COVID-19 coronavirus disease, declared as a "pandemic" by the World Health Organisation on 11 March 2020.
"COVID-19
Tranche" means the EUR 5,000,000 Tranche of the Second Credit which the Borrower may drawdown pursuant to Article 1.05(d).
"COVID-19
Tranche Due Payment" has the meaning given to that term in Article 3.05C.
"Credit"
means the First Credit and the Second Credit.
"Curetis
NV" means Curetis NV in liquidation (a company incorporated in the Netherlands with company number 64302679 and registered
office at ▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇).
"Curetis
USA" means Curetis USA Inc., (a company incorporated under the laws of the State of Delaware with registration number
607544 and having its principal executive office at 10525 Vista Sorrento Parkway, Suite 104, San Diego, CA 92121, United States
of America).
"Deferment
Indemnity" means a fee calculated on the amount of the disbursement deferred or suspended being the higher of:
| (a) | 0.125% (twelve point five basis points), per annum; and |
| (b) | the percentage rate by which: |
| (i) | the interest rate that would have been applicable to such amount had it been disbursed to the Borrower
on the Scheduled Disbursement Date, exceeds |
| (ii) | the rate calculated as EURIBOR (one month rate) less 0.125% (twelve point five basis points) (provided
that such rate shall not be less than zero), |
and such fee shall accrue
from the Scheduled Disbursement Date to the Disbursement Date or, as the case may be, until the date of cancellation of the Notified
Tranche in accordance with this Contract.
"Deferred
Interest" means the component of the interest defined in Article 3.02.
"Deferred
Interest Rate" means the rate of interest quantified in Article 3.02.
"Disbursement
Date" means the date on which actual disbursement of a Tranche is made by the Bank.
"Disbursement
Notice" means a notice from the Bank to the Borrower pursuant to and in accordance with Article 1.02C.
"Disbursement
Request" means a notice substantially in the form set out in Schedule C.1.
"Disruption
Event" means either or both of:
| (a) | a material disruption to those payment or communications systems or to those financial markets
which are, in each case, required to operate in order for payments to be made in connection with this Contract; or |
| (b) | the occurrence of any other event which results in a disruption (of a technical or systems-related
nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that party: |
| (i) | from performing its payment obligations under this Contract; or |
| (ii) | from communicating with other parties in accordance with the terms of this Contract, |
and which disruption (in
either such case as per (a) or (b) above) is not caused by, and is beyond the control of, the party whose operations are disrupted.
"EBITDA"
means, in respect of any Relevant Period, the consolidated operating profit of the Group before taxation (excluding the results
from discontinued operations):
| (a) | before deducting any interest, commission, fees, discounts, prepayment fees, premiums or
charges and other finance payments whether paid, payable or capitalised by any member of the Group (calculated on a consolidated
basis) in respect of that Relevant Period; |
| (b) | not including any accrued interest owing to any member of the Group; |
| (c) | after adding back any amount attributable to the amortisation or depreciation of assets
of members of the Group; |
| (d) | before taking into account any Exceptional Items; |
| (e) | after deducting the amount of any profit (or adding back the amount of any loss) of any
member of the Group which is attributable to minority interests; |
| (f) | plus or minus the Group's share of the profits or losses (after finance costs and tax) of
Non-Group Entities; |
| (g) | before taking into account any unrealised gains or losses on any financial instrument (other
than any derivative instrument which is accounted for on a hedge accounting basis); and |
| (h) | before taking into account any gain arising from an upward revaluation of any other asset, |
in each case, to the extent
added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before
taxation.
"Effective
Date" has the meaning given to that term in the Second Amendment and Restatement Agreement.
"EFSI"
has the meaning given in Recital (10).
"EFSI
Regulation" means the Regulation 2015/1017 of the European Parliament and of the Council of 25 June 2015 on the European
Fund for Strategic Investments.
"Environment"
means the following, in so far as they affect human health and social well-being:
| (b) | soil, water, air, climate and the landscape; and |
| (c) | cultural heritage and the built environment, |
and includes, without limitation,
occupational and community health and safety.
"Environmental
Approval" means any Authorisation required by Environmental Law.
"Environmental
Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
"Environmental
Law" means:
| (a) | European Union law, including principles and standards; |
| (b) | national laws and regulations; and |
| (c) | applicable international treaties, |
of which a principal objective
is the preservation, protection or improvement of the Environment.
"EURIBOR"
has the meaning given to it in Schedule B.
"EUR"
or "euro" means the lawful currency of the Member States of the European Union which adopt or have adopted it
as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning
of the European Union or their succeeding treaties.
"Event
of Default" means any of the circumstances, events or occurrences specified in Article 10.01.
"Exceptional
Items" means any material items of an unusual or non-recurring nature which represent gains or losses including those
arising on:
| (a) | the restructuring of the activities of an entity and reversals of any provisions for the cost of
restructuring; |
| (b) | disposals, revaluations, write downs or impairment of non-current assets or any reversal of any
write down or impairment; |
| (c) | disposals of assets associated with discontinued operations; and |
| (d) | any other examples of "exceptional items" (as such term has the meaning attributed to
it in IFRS). |
"FDA"
means the US Food and Drugs Administration.
"Final
Availability Date" means,
| (a) | in respect of each Tranche other than the COVID-19 Tranche, 12 December 2019; and |
| (b) | in respect of the COVID-19 Tranche, the date falling 9 months after the date of the Second Amendment
and Restatement Agreement. |
"Finance
Document" means this Contract, any Guarantee Agreement, the First Amendment and Restatement Agreement, the Second Amendment
and Restatement Agreement, the US Security Agreement (following its entry into force), and any other document designated from time
to time as such between the Bank and the Borrower.
"Finance
Lease" means any lease or hire purchase contract which would, in accordance with IFRS, be treated as a finance or capital
lease.
"Financial
Quarter" means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
"Financial
Year" means the annual accounting period of the Group ending on the Accounting Reference Date.
"First
Amendment and Restatement Agreement" means the amendment and restatement agreement in relation to this Contract made between
the Bank, the Borrower, Curetis NV, Ares Genetics and Curetis USA and dated 20 May 2019.
"Floating
Rate" means a fixed-spread floating interest rate, that is to say an annual interest rate determined by the Bank for each
successive Floating Rate Reference Period equal to EURIBOR plus the Cash Pay Margin. If the Floating Rate for any Floating Rate
Reference Period is calculated to be below zero, it will be set at zero.
"Floating
Rate Reference Period" means each period from one Payment Date to the next relevant Payment Date; the first Floating Rate
Reference Period shall commence on the date of disbursement of the Tranche.
"GAAP"
means generally accepted accounting principles in Germany and the United States of America, including German GAAP (HGB), IFRS and
US-GAAP.
"Group"
means OpGen and its Affiliates from time to time, and the Borrower and its Affiliates.
"Guarantee"
means any guarantee and indemnity that is the subject of a Guarantee Agreement.
"Guarantee
Agreement" means the Initial Guarantee Agreement and/or any Subsequent Guarantee Agreement.
"Guarantor"
means any person which enters into a Guarantee Agreement in the capacity as a guarantor.
"Hedging
Policy" means any derivative transaction by a member of the Group to hedge actual or projected exposure arising in the
ordinary course of trading or any derivative instrument of a member of the Group which is accounted for on a hedge accounting basis
and does not include any derivative transaction and/or instrument for speculative purposes.
"Holding
Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.
"IFRS"
means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements.
"Illegal
Activities" means any of the following illegal activities or activities carried out for illegal purposes: tax evasion,
tax fraud, fraud, corruption, coercion, collusion, obstruction, money laundering, financing of terrorism, organised crime or any
illegal activity that may affect the financial interests of the EU, according to applicable laws.
"Indebtedness"
means any:
| (a) | obligations for borrowed money; |
| (b) | indebtedness under any acceptance credit; |
| (c) | indebtedness under any bond, debenture, note or similar instrument; |
| (d) | instrument under any ▇▇▇▇ of exchange; |
| (e) | indebtedness in respect of any interest rate or currency swap or forward currency sale or purchase
or other form of interest or currency hedging transaction (including without limit caps, collars and floors); |
| (f) | indebtedness under any Finance Lease; |
| (g) | indebtedness (actual or contingent) under any guarantee, bond security, indemnity or other agreement; |
| (h) | indebtedness (actual or contingent) under any instrument entered into for the purpose of raising
finance; |
| (i) | indebtedness in respect of a liability to reimburse a purchaser of any receivables sold or discounted
in the event that any amount of those receivables is not paid; |
| (j) | indebtedness arising under a securitisation; or |
| (k) | other transaction which has the commercial effect of borrowing. |
"Indemnifiable
Prepayment Event" means a Prepayment Event other than those specified in Articles 4.03A(2) or 4.03A(5).
"Initial
Guarantee Agreement" has the meaning given to it in Recital (8).
"Intellectual
Property Rights" means, including without limitation, intellectual property of every designation (including patents, utility
patents, copyrights, design rights, trademarks, service marks and know how) whether capable of registration or not.
"IPEV
Valuation Standards" means, the International Private Equity and Venture Capital Valuation Guidelines published by, amongst
others, BPE in December 2018 as may be amended, updated or replaced from time-to-time.
"Joint
Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture
or partnership or any other entity.
"Lead
Organisation" means reputable international, standard-setting institutions and organisations including the European Union,
the United Nations, the International Monetary Fund, the Financial Stability Board, the Financial Action Task Force and the Organisation
for Economic Co-operation and Development Global Forum on Transparency and Exchange of Information for Tax Purposes.
"Loan"
means the aggregate amount of Tranches disbursed from time to time by the Bank under this Contract.
"Market
Capitalisation" means:
| (i) | OpGen holds all the voting shares in the Borrower, and |
| (ii) | OpGen is listed on the OpGen Exchange or another regulated market exchange, |
the market value in Euros
(as determined by the Bank, and with any necessary currency exchanges being calculated at the Bank's spot rate of exchange) of
OpGen on a PPI Demand Date calculated as the sum of:
| (iii) | the non-weighted average closing price per share over the 90 Trading Days prior to that PPI Demand
Date, multiplied by the total number of issued shares as at that PPI Demand Date; and |
| (i) | the aggregate of all dividends and other distributions or similar payments made to any shareholder
of OpGen in the period from the Disbursement Date of the PPI Tranche or the COVID-19 Tranche (as applicable) until the relevant
PPI Payment Date; and |
| (b) | at any other time, the sum of (as determined by the Bank): |
| (i) | the market value of the Borrower in Euros on a PPI Demand Date as determined by an Accountant (at
the cost of the Borrower) in accordance with IPEV Valuation Standards (with any necessary currency exchanges being calculated at
the Bank's spot rate of exchange); |
| (ii) | the aggregate of all dividends and other distributions or similar payments made to any shareholder
of OpGen in the period from the Disbursement Date of the PPI Tranche or the COVID-19 Tranche (as applicable) until the relevant
PPI Payment Date (with any necessary currency exchanges being calculated at the Bank's spot rate of exchange). |
"Market
Disruption Event" means any of the following circumstances:
| (a) | there are, in the reasonable opinion of the Bank, events or circumstances adversely affecting the
Bank's access to its sources of funding; |
| (b) | in the opinion of the Bank, funds are not available from its ordinary sources of funding in order
to adequately fund a Tranche in the relevant currency and/or for the relevant maturity and/or in relation to the reimbursement
profile of such Tranche; |
| (c) | in relation to a Tranche in respect of which interest is or would be payable at Floating Rate: |
| (A) | the cost to the Bank of obtaining funds from its sources of funding, as determined by the Bank,
for a period equal to the Floating Rate Reference Period of such Tranche (i.e. in the money market) would be in excess of EURIBOR; |
or
| (B) | the Bank determines that adequate and fair means do not exist for ascertaining EURIBOR for the
relevant currency of such Tranche or it is not possible to determine EURIBOR in accordance with the definition contained in Schedule
B. |
"Material
Adverse Change" means, any event or change of condition, which, in the reasonable opinion of the Bank has a material adverse
effect on:
| (a) | the ability of any Obligor to perform its obligations under any Finance Document to which it is
party; |
| (b) | the business, operations, property or financial conditions or prospects of any Obligor or the Group
as a whole; or |
| (c) | the validity or enforceability of, or the effectiveness or ranking of, or the value of any security
granted to the Bank, or the rights or remedies of the Bank under any Finance Document. |
"Material
Subsidiary" means any Subsidiary of OpGen from time to time (other than, to avoid doubt, Curetis USA) whose gross revenues,
total assets or EBITDA represents not less than 10% (ten per cent) of (i) the consolidated gross revenues of the Group taken as
a whole and attributable to the shareholders of the Borrower or, (ii) the consolidated total assets of the Group taken as a whole
or, (iii) as the case may be, the consolidated EBITDA of the Group taken as a whole, as each of the foregoing is calculated based
on the then latest consolidated audited accounts of the Group .
"Maturity
Date" means, in relation to each Tranche, the date falling on the 5th anniversary of the Scheduled Disbursement Date of
that Tranche.
"Merck
Promissory Note" means the senior secured promissory note dated 14 July 2015 issued by OpGen in favour of Merck Global
Health Innovation Fund in a principal amount of up to US$1,000,000 (as amended and restated from time-to-time including most recently
on 28 June 2017).
“Merck
Security Agreement" means the Security Agreement, dated 14 July 2015, entered into between OpGen, AvanDx Inc., and Merck
Global Innovation Fund LLC pursuant to which OpGen and AvanDx Inc., granted security interests in all their assets, including IP,
as collateral security for secured amounts outstanding under the Merck Promissory Note in favour of Merck Global Innovation Fund
LLC.
"Merck
Supplemental Security Agreements" means each of (i) the Patent Security Agreement dated 14 July 2015, entered into between
OpGen, AvanDx Inc., and Merck Global Innovation Fund LLC as a supplement to the Merck Security Agreement for purposes of filing
with the United States Patent and Trademark Office and (ii) the Trademark Security Agreement, dated 14 July 2015, entered into
between OpGen, AvanDx Inc., and Merck Global Innovation Fund LLC as a supplement to the Merck Security Agreement for purposes of
filing with the United States Patent and Trademark Office.
"Non-Group
Entity" means any investment or entity (which is not itself a member of the Group (including associates and Joint Ventures))
in which any member of the Group has an ownership interest.
"Notified
Tranche" means a Tranche in respect of which the Bank has issued a Disbursement Notice.
"Obligor"
means the Borrower and any Guarantor.
"OpGen"
means OpGen, Inc., a company incorporated under the laws of the State of Delaware having its principal executive office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇.
"OpGen
Exchange" means the NASDAQ Capital Market (or any replacement exchange).
"Payment
Date" means quarterly, semi-annual or annual dates specified in the Disbursement Notice of a Tranche until, and including
the Maturity Date for such Tranche, save that, in case any such date is not a Relevant Business Day, it means for a Tranche, the
next day, if any, of that calendar month that is a Relevant Business Day or, failing that, the nearest preceding day that is a
Relevant Business Day, in all cases with corresponding adjustment to the interest due under Article 3.01.
"Permitted
Acquisition" means an acquisition:
| (a) | by the Borrower or any other member of the Group of shares or other ownership interests by way
of acquisition of a wholly owned shelf company, provided that such company is incorporated in a country that is a member of either
or both of the European Union or the Organisation of Economic Co-Operation and Development; |
| (b) | for which the prior written consent of the Bank has been received; |
| (c) | of the Gyronimo platform and all related intellectual property, know-how and assets from Carpegen
and Systec (the "Gyronimo Acquisition") for (i) an initial up front-payment of no more than EUR 5,000,000, (ii) potential
future milestone payments of EUR 2,500,000 in total, and (iii) royalties of [***]% of net sales on Gyronimo application cartridges
and Gyronimo analyzers (capped at EUR 9,000,000); provided that the Gyronimo Acquisition will be signed by 31 January 2017; or |
| (d) | of shares or other ownership interests in a Target Entity, which do not exceed an aggregate amount
of EUR 1,000,000 (one million euros) during the term of the Credit, |
but, in relation to paragraphs
(a), and (d) above, only if:
| (i) | no Event of Default is continuing on the date the relevant acquisition agreement is entered into
or would occur as a result of the acquisition; |
| (ii) | the acquired Target Entity, business or undertaking is engaged in a business similar or complementary
to the business carried on by the Group as at the date of this Contract; |
| (iii) | the acquired Target Entity, business or undertaking is not incorporated or located in a jurisdiction
that is blacklisted by any Lead Organisation in connection with activities such as money laundering, financing of terrorism, tax
fraud and tax evasion or harmful tax practices as such blacklist may be amended from time to time; |
| (iv) | a business plan (in the form of the most recent budget supplemented to account for the effects
of the acquisition) in respect of the 3 (three) next following financial years and any due diligence reports received in connection
with the acquisition (if any) are provided to the Bank; and |
| (v) | the Borrower demonstrates that the acquisition has been approved by the Borrower's Managing Directors. |
"Permitted
Disposal" means any act effecting a sale, transfer, lease or other disposal of assets which is for fair market value and
on arms' length terms:
| (a) | related to the sale of finished products and/or services made on arm's length terms in the ordinary
course of business of the Borrower or other member of the Group; |
| (b) | by an Obligor to another member of the Group which is also an Obligor; |
| (c) | by any member of the Group which is not an Obligor to a member of the Group which is an Obligor; |
| (d) | for cash in an amount reflecting or exceeding the fair market value of such assets, which is reinvested
in assets of comparable or superior type, value and quality; |
| (e) | made in exchange for other assets comparable or superior as to type, value and quality; |
| (f) | constituted by a licence of Intellectual Property Rights; |
| (g) | made in relation to non-material assets which have depreciated to less than 25% (twenty five per
cent) of their initial value or which are obsolete; |
| (h) | excluding any disposal permitted under (a) to (g) above, disposals where the higher of the market
value or consideration receivable for such disposals does not exceed EUR 5,000,000 (five million euros) during the term of the
Credit; |
| (i) | arising as a result of Permitted Security; or |
| (j) | made with the prior written consent of the Bank. |
"Permitted
Guarantees" means guarantees issued in the ordinary course of business by any member of the Group:
| (a) | under a Guarantee Agreement; |
| (b) | under any negotiable instruments; |
| (c) | in connection with any performance bond; |
| (d) | in connection with any Permitted Indebtedness; |
| (e) | by an Obligor to another member of the Group which is also an Obligor; |
| (f) | by any member of the Group which is not an Obligor to a member of the Group which is an Obligor;
or |
| (g) | with the prior written consent of the Bank, |
provided that the maximum
aggregate liability in respect of any guarantees described above (excluding all Guarantee Agreements) shall not any time exceed
an aggregate amount equal 10% of the Total Assets at any time.
"Permitted
Indebtedness" means Indebtedness of the Borrower and/or members of the Group incurred under:
| (c) | any Finance Lease if the aggregate liability in respect of the equipment leased does not at any
time exceed EUR 1,500,000 (one and a half million euros) (or its equivalent in another currency or currencies) for finance leases
and EUR 100,000 (one hundred thousand euros) (or its equivalent in another currency or currencies) for capital leases (as defined
by IFRS); |
| (d) | the leasing of the laser welding machine concluded in August 2012 which will be terminated on or
before 31 May 2017; |
| (e) | any hedging or derivative transactions entered into in accordance with the Hedging Policy; |
| (f) | a working capital facility of an amount no more than EUR 3,000,000 (or its equivalent in another
currency or currencies); |
| (g) | a Permitted Guarantee; |
| (h) | the Merck Promissory Note; or |
| (i) | any other Indebtedness incurred with the prior written consent of the Bank. |
"Permitted
Loan" means:
| (a) | any trade credit extended by any member of the Group to its customers on normal commercial terms
and in the ordinary course of its trading activities; |
| (b) | any loan made by the Borrower to a Guarantor or by a Guarantor to the Borrower; |
| (c) | any loan made by one member of the Group (other than the Borrower or a Guarantor) to another member
of the Group (other than the Borrower or a Guarantor); or |
| (d) | any other Indebtedness or loan advanced to or made available by any member of the Group with the
prior written consent of the Bank. |
"Permitted
Merger" means any amalgamation, demerger, merger or corporate reconstruction which does not result in a Material Adverse
Change and which is on a solvent basis, and where:
| (a) | only members of the Group are involved; and |
| (b) | the resulting entity will not be incorporated or located in a country which is in a jurisdiction
that is blacklisted by any Lead Organisation in connection with activities such as money laundering, financing of terrorism, tax
fraud and tax evasion or harmful tax practices as such blacklist may be amended from time to time; and |
| (c) | if an Obligor is involved, (i) the rights and obligations of that Obligor under the Finance Documents
to which it is a party will remain with that Obligor, (ii) the surviving entity will be that Obligor and the statutory seat of
that Obligor would not as a result of such merger be transferred to a different jurisdiction, (iii) the merger will not have an
effect on the validity, legality or enforceability of any Obligor's obligations under the Finance Documents to which it is a party;
and (iv) all of the business and assets of each Obligor are retained by it; or |
| (d) | any other amalgamation, demerger, merger or corporate reconstruction with prior written consent
of the Bank. |
"Permitted
Payments" means
| (a) | shares purchased from former employees, managers or directors, provided that such shares were awarded
under a share programme of the Borrower or any Guarantor; |
| (b) | dividends of any member of the Group distributed to the Borrower in accordance with Article 6.15; |
| (c) | any payment made under a Permitted Loan; or |
| (d) | any payment made with prior written consent of the Bank, |
in each case without double
counting.
"Permitted
Security" means the security listed in Schedule E (Existing Security) and as described in Article 7.02(b).
"PIK
Interest Rate" means 10% (1000 basis points) per annum.
"PPI"
means:
| (a) | in relation to a PPI Tranche Due Payment and its PPI Demand Date, an amount in euros equal to: |
| (b) | in relation to a COVID-19 Tranche Due Payment and its PPI Demand Date, an amount in euros equal
to: |
"PPI
Amount" means in relation to a PPI Demand Date, an amount in Euros equal to the PPI Rate multiplied by the relevant PPI
Demand Date Market Capitalisation.
"PPI
Demand Date" means the date of any written demand by the Bank for a payment of PPI delivered by the Bank to the Borrower
in accordance with Article 3.05B.
"PPI
Payment Date" means any date on which PPI becomes payable pursuant to Article 3.05B.
"PPI
Demand Date Market Capitalisation" means the Market Capitalisation of the Borrower's entire issued share capital on a
PPI Demand Date.
"PPI
Rate" means:
| (a) | in relation to the PPI Tranche, 0.3%; and |
| (b) | in relation to the COVID-19 Tranche, 0.7%. |
"PPI
Tranche" means the EUR 5,000,000 Tranche of the Second Credit (which is not the COVID-19 Tranche) which the Borrower may
drawdown pursuant to Article 1.05(b).
"PPI
Tranche Due Payment" has the meaning given to that term in Article 3.05B.
"Prepayment
Amount" means the amount of a Tranche to be prepaid by the Borrower in accordance with Article 4.02A.
"Prepayment
Date" means the date, which shall be a Payment Date, on which the Borrower proposes to effect prepayment of a Prepayment
Amount.
"Prepayment
Event" means any of the events described in Article 4.03(a).
"Prepayment
Fee" means the fee payable in accordance with Article 4.02(b).
"Prepayment
Notice" means a written notice from the Bank to the Borrower in accordance with Article 4.02C.
"Prepayment
Request" means a written request from the Borrower to the Bank to prepay all or part of the Loan, in accordance with Article
4.02(b).
"Project"
has the meaning given to it in Recital (3).
"Quarter
Date" means each of 31 March, 30 June, 30 September and 31 December from the date of this Contract until the final Maturity
Date.
"Redeployment
Rate" means a fixed annual rate determined by the Bank, being a rate which the Bank would apply on the day of the indemnity
calculation to a loan that has the same currency, the same terms for the payment of interest and the same repayment profile to
the Maturity Date as the Tranche in respect of which a prepayment or cancellation is proposed or requested to be made. Such rate
shall not be of negative value.
"Relevant
Business Day" means a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system
which utilises a single shared platform and which was launched on 19 November 2007 (TARGET2) is open for the settlement of payments
in EUR.
"Relevant
Period" means each period of twelve months ending on or about the last day of the Financial Year and each period of twelve
months ending on or about the last day of the second Financial Quarter of a Financial Year.
"Repeating
Representations" means each of the representations and warranties set out in paragraphs (a) to (f), (h) to (m), (o) to
(t), and (v) to (gg) (in each case inclusive) of clause 6.22 (General Representations and Warranties).
"Revised
Group Structure Chart" means the group structure chart delivered by the Borrower to the Bank pursuant to paragraph 5(b)
of Schedule 1 (Conditions Precedent) of the Second Amendment and Restatement Agreement.
"Scheduled
Disbursement Date" means the date on which a Tranche is scheduled to be disbursed in accordance with Article 1.02.C.
"Second
Amendment and Restatement Agreement" means the amendment and restatement agreement in relation to this Contract made between
the Bank, the Borrower, OpGen and Ares Genetics and dated __________________ 2020.
"Security"
means any mortgage, pledge, lien, charge, assignment, hypothecation, or other security interest securing any obligation of any
person or any other agreement or arrangement having a similar effect.
"Subsidiary"
means an entity of which OpGen has direct or indirect control or owns directly or indirectly more than 50% of the voting capital
or similar right of ownership and "control" for this purpose means the power to direct the management and the policies
of the entity, whether through the ownership of voting capital, by contract or otherwise.
"Subsequent
Guarantee Agreement" means:
| (a) | the Curetis NV Second Guarantee Agreement; |
| (b) | the Curetis USA First Guarantee Agreement; |
| (c) | the Curetis USA Second Guarantee Agreement; |
| (d) | the Ares Genetics First Guarantee Agreement; |
| (e) | the Ares Genetics Second Guarantee Agreement; |
| (f) | the Ares Genetics Third Guarantee Agreement; |
| (g) | the OpGen Guarantee Agreement; and |
| (h) | any other guarantee and indemnity in materially the same form as the Initial Guarantee Agreement
executed by a member of the Group in favour of the Bank, as contemplated in Article 6.10A(e) (Ownership). |
"Target
Entity" means any limited liability company, corporation, limited liability partnership or any equivalent.
"Tax"
means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable
in connection with any failure to pay or any delay in paying any of the same).
"Technical
Description" has the meaning given to it in Recital (1).
"Total
Assets" means the total consolidated assets of the Group, as shown in the Borrower's latest consolidated financial statements.
"Trading
Day" means a day (other than a Saturday or Sunday) on which the OpGen Exchange or any other relevant regulated market
exchange (as applicable) is open for trading.
"Tranche"
means each disbursement made or to be made under this Contract. In case no Disbursement Notice has been delivered, Tranche shall
mean a Tranche as requested under Article 1.02.B.
"US
Security Agreement" means the New York law governed security agreement in respect of patents and utility patents granted
by the Borrower in favour of the Bank to secure all amounts owing to the Bank under the Finance Documents.
"USD"
means the lawful currency of the United States of America.
"Yorkville
Facility" means the up to EUR 20,000,000 convertible note issuance to Ya II PN, LTD dated 2 October 2018.
ARTICLE
1
Credit and Disbursements
By this Contract the Bank
establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR 10,000,000 (ten million euros) for
the financing of the Project (the "First Credit").
By this Contract the Bank
establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR 20,000,000 (twenty million euros)
for the financing of the Project (the "Second Credit").
| 1.02 | Disbursement procedure |
The Bank shall disburse the
Credit in Euros in up to five (5) Tranches. The amount of each Tranche, if not being the undrawn balance of the Credit, shall be
in a minimum amount of EUR 3,000,000 (three million euros).
| 1.02B | Disbursement Request |
| (a) | The Borrower may present to the Bank a Disbursement Request for the disbursement of a Tranche,
such Disbursement Request to be received at the latest 15 (fifteen) days before the Final Availability Date. The Disbursement Request
shall be in the form set out in Schedule C.1 and shall specify: |
| (i) | the amount and currency (to be EUR) of the Tranche; |
| (ii) | the preferred disbursement date for the Tranche; such preferred disbursement date must be a Relevant
Business Day falling at least 15 (fifteen) days after the date of the Disbursement Request and, in any event, on or before the
Final Availability Date, it being understood that notwithstanding the Final Availability Date the Bank may disburse the Tranche
up to 4 (four) calendar months from the date of the Disbursement Request; |
| (iii) | the interest rate basis of the Tranche, pursuant to the relevant provisions of Article 3.01 and/
or Article 3.06 (as applicable); |
| (iv) | the interest payment periodicity for the Tranche, determined in accordance with Article 3.01 and/
or Article 3.06 (as applicable); |
| (v) | the terms for repayment of principal for the Tranche, chosen in accordance with Article 4.01; |
| (vi) | the date for repayment of principal for the Tranche; |
| (vii) | the IBAN code (or appropriate format in line with local banking practice) and SWIFT BIC of the
bank account to which disbursement of the Tranche should be made in accordance with Article 1.02D; |
| (viii) | the applicable PIK interest; |
| (ix) | whether PPI is payable on the Tranche in accordance with Article 3.05 (to avoid doubt, failure
to specify whether the PPI is payable on the Tranche shall not prevent the Bank from demanding PPI in accordance with the provisions
of Article 3.05); and |
| (x) | whether Deferred Interest is applicable to the Tranche in accordance with Article 3.02 (to avoid
doubt, failure to specify whether Deferred Interest is applicable to the Tranche shall not prevent the Bank from demanding Deferred
Interest in accordance with the provisions of this Contract). |
| (b) | Each Disbursement Request shall be accompanied by evidence of the authority of the person or persons
authorised to sign it and the specimen signature of such person or persons or a declaration by the Borrower that no change has
occurred in relation to the authority of the person or persons authorised to sign Disbursement Requests under this Contract. |
| (c) | Subject to Article 1.02C(b), each Disbursement Request is irrevocable. |
| (a) | Not less than 10 (ten) days before the proposed Scheduled Disbursement Date of a Tranche the Bank
shall, if the Disbursement Request conforms to this Article 1.02, deliver to the Borrower a Disbursement Notice which shall specify: |
| (i) | the currency, and amount of the Tranche; |
| (ii) | the Scheduled Disbursement Date; |
| (iii) | the interest rate basis for the Tranche, pursuant to the relevant provisions of Article 3.01 and/
or Article 3.06 (as applicable); |
| (iv) | the first interest Payment Date and the periodicity for the payment of interest for the Tranche; |
| (v) | the terms for repayment of principal for the Tranche; |
| (vi) | the date for repayment of principal for the Tranche; |
| (vii) | the applicable Payment Dates for the Tranche; and |
| (viii) | the Floating Rate and the Deferred Interest Rate applicable to the Tranche until the Maturity Date
of the Tranche. |
| (b) | If one or more of the elements specified in the Disbursement Notice does not reflect the corresponding
element, if any, in the Disbursement Request, the Borrower may following receipt of the Disbursement Notice revoke the Disbursement
Request by written notice to the Bank to be received no later than 12h00 Luxembourg time on the next Business Day and thereupon
the Disbursement Request and the Disbursement Notice shall be of no effect. If the Borrower has not revoked in writing the Disbursement
Request within such period, the Borrower will be deemed to have accepted all elements specified in the Disbursement Notice. |
| 1.02D | Disbursement Account |
Disbursement shall be made
to such account of the Borrower as the Borrower shall notify in writing to the Bank not later than 15 (fifteen) days before the
Scheduled Disbursement Date (with IBAN code or with the appropriate format in line with local banking practice).
Only one account may be specified
for each Tranche.
| 1.03 | Currency of disbursement |
The Bank shall disburse each
Tranche in EUR.
| 1.04 | Conditions of disbursement |
The disbursement of the first
Tranche under Article 1.02 is conditional upon receipt by the Bank, in form and substance satisfactory to it, on or before the
date falling 5 (five) Business Days before the Scheduled Disbursement Date, of the following documents or evidence:
| (a) | a certified copy (certified by a Managing Director of the Borrower as a true and up to date copy)
of the resolution of the competent body (general meeting of shareholders) of the Borrower duly authorising the execution of this
Contract and duly authorising the person or persons signing this Contract on behalf of the Borrower together with the specimen
signature of each such person or persons; |
| (b) | a certified copy (certified by a Managing Director of Curetis NV as a true and up to date copy)
of the resolution of the competent body (board of directors and supervisory board) of Curetis NV duly authorising the execution
of the Initial Guarantee Agreement and duly authorising the person or persons signing the Initial Guarantee Agreement on behalf
of Curetis NV together with the specimen signature of each such person or persons; |
| (c) | evidence that the Borrower has obtained all necessary Authorisations required in connection with
this Contract and the Project; |
| (d) | this Contract duly executed by the Borrower; |
| (e) | the duly executed Initial Guarantee Agreement; |
| (f) | a legal opinion of ▇▇▇▇▇ Lovells International LLP, addressed to the Bank, on the legality, validity
and enforceability of each Finance Document governed by English law, such legal opinion to be in the form distributed to the Bank
prior to the signing of this Contract; |
| (g) | a legal opinion of CMS ▇▇▇▇▇▇ ▇▇▇▇▇, Partnerschaft von Rechtsanwälten und Steuerberatern mbB,
addressed to the Bank in form and substance satisfactory to the Bank, on the valid existence of the Borrower, the authority and
capacity of the Borrower to enter into this Contract and on the due execution and choice of law of this Contract; |
| (h) | a legal opinion of CMS ▇▇▇▇▇ Star Busmann NV, addressed to the Bank in form and substance satisfactory
to the Bank, on the valid existence of Curetis NV, the authority and capacity of Curetis NV to enter into the Initial Guarantee
Agreement and on the due execution and choice of law of the Initial Guarantee Agreement; |
| (i) | copies of the latest audited consolidated financial statements of the Group and the latest unaudited
financial statements of the Borrower and of Curetis NV; |
| (j) | copies of the constitutional documents of the Borrower and Curetis NV; |
| (k) | the group structure chart showing the Group as of the date of this Contract; |
| (l) | a certificate of an authorised signatory of the Borrower and Curetis NV certifying that each copy
document relating to it specified in this Article 1.04A is correct, complete and in full force and effect as at a date no earlier
than the date of this Contract; |
| (m) | evidence that insurances in accordance with the requirements of Article 6.05(c) are in place; |
| (n) | evidence of appointment and acceptance of the Borrower's and Curetis NV's agent of service; |
| (o) | evidence of payment of all the fees and expenses as required under the Finance Documents; and |
| (p) | a copy of any other document, authorisation, opinion or assurance which the Bank reasonably considers
to be necessary (if it has notified the Borrower and Curetis NV accordingly) in connection with the entry into and performance
of the Finance Documents. |
The disbursement of each
Tranche under Article 1.02, including the first, is subject to the following conditions:
| (a) | that the Bank has received, in form and substance satisfactory to it, on or before the date falling
5 (five) Business Days before the Scheduled Disbursement Date for the proposed Tranche, of the following documents or evidence: |
| (i) | a certificate from the Borrower in the form of Schedule D.1, signed by an authorised representative
of the Borrower and dated no earlier than the date falling 10 (ten) days before the Scheduled Disbursement Date; |
| (ii) | a copy of any other authorisation or other document, opinion or assurance which the Bank has reasonably
notified the Borrower is necessary in connection with the entry into and performance of, and the transactions contemplated by,
this Contract or the validity and enforceability of the same; |
| (b) | that on the Disbursement Date for the proposed Tranche: |
| (i) | the representations and warranties which are repeated pursuant to Article 6.22 are materially correct
in all respects; and |
| (ii) | no event or circumstance has occurred and is continuing which constitutes or would with the expiry
of a grace period and/or the giving of notice under this Contract constitute: |
(aa) an Event of Default;
or
| (bb) | a Prepayment Event other than pursuant to Articles 4.03A(1) (Project Cost Reduction) or
4.03A(2) (Pari Passu to Non-EIB Financing), |
or would, in each case, result
from the disbursement of the proposed Tranche.
The disbursement of a Tranche
of the Second Credit is also subject to the following conditions and written evidence reasonably satisfactory for the Bank of:
| (a) | for the disbursement of an amount of up to EUR 3,000,000: FDA clearance of Unyvero platform and
LRT (Lower Respiratory Tract) application cartridge; |
| (b) | for the disbursement of an amount up to EUR 5,000,000: upon realisation of the condition under
letter (a) above and following to the relevant disbursement indicated therein: a cumulative new equity raised by Curetis NV of
at least EUR [***] |
| (c) | for the disbursement of an amount up to EUR 7,000,000: upon realisation of the condition under
paragraph (a) and (b) above and following to the relevant disbursements indicated therein: |
| (ii) | consolidated Group top-line revenues of at least EUR [***] ([***] euros) (or its equivalent in
another currency or currencies) over the 12 months preceding the date of any Disbursement Request. |
| (d) | for the disbursement of the COVID-19 Tranche, being an amount up to EUR 5,000,000 |
| (i) | realisation of the condition under paragraph (a) above; |
| (ii) | the Borrower having raised additional equity of at least EUR 5,000,000 (such equity to be raised
after 1 April 2020); |
| (iii) | the US Security Agreement having been duly executed by the parties thereto and being in form and
substance satisfactory to the Bank; |
| (iv) | the Bank having been provided with evidence that the Security created (or purportedly created)
pursuant to the US Security Agreement has been duly created and perfected as first ranking Security over all assets and rights
subject to the US Security Agreement (it being understood that the Borrower will only be required to demonstrate perfection of
such Security in the United States of America); |
| (v) | receipt of such legal opinions in relation to the US Security Agreement as the Bank may reasonably
require; |
| (vi) | written evidence satisfactory to the Bank that the current review by the German Ministry of Economy
and Energy of the Borrower's acquisition by OpGen and, If applicable, any other review or investigation commenced by any other
competent authority in any jurisdiction (each a "Review") has been concluded and the acquisition of the Borrower
by OpGen has been approved (or, to the extent not required to be approved, has not been prohibited or conditioned), and, in each
case, no findings decisions coming out of, or related to, a Review prejudices the interests and the reputation of the Bank as lender
to the Borrower and/or adversely affects the implementation or operation of the Project; |
| (vii) | each Obligor is compliant in all respects with all laws, regulations and decisions to which the
Borrower, such Obligor or the Project is subject; and |
| (viii) | a copy of any other authorisation, document, opinion or assurance which the Bank considers to be
necessary or desirable (if it has notified the Borrower accordingly) in connection with (1) the entry into and performance of the
transactions contemplated by any US Security Agreement or for the validity and enforceability of US Security Agreement; or (2)
the COVID-19 Tranche. |
| 1.06 | Deferment of disbursement |
| 1.06A | Grounds for deferment |
Upon the written request
of the Borrower, the Bank shall defer the disbursement of any Notified Tranche in whole or in part to a date specified by the Borrower
being a date falling not later than 6 (six) months from the Scheduled Disbursement Date of the Tranche indicated in the Disbursement
Notice. In such case, the Borrower shall pay the Deferment Indemnity calculated on the amount of disbursement deferred.
Any request for deferment
shall have effect in respect of a Tranche only if it is made at least 5 (five) Business Days before its Scheduled Disbursement
Date.
If for a Notified Tranche
any of the conditions referred to in Article 1.04 is not fulfilled or waived as at the specified date and at the Scheduled Disbursement
Date (or the date expected for disbursement in case of a previous deferment), disbursement will be deferred to a date agreed between
the Bank and the Borrower falling not earlier than 5 (five) Business Days following the fulfilment or waiver of all conditions
of disbursement (without prejudice to the right of the Bank to suspend and/or cancel the undisbursed portion of the Credit in whole
or in part pursuant to Article 1.07B). In such case, the Borrower shall pay the Deferment Indemnity calculated on the amount of
disbursement deferred for the period of the deferral.
| 1.06B | Cancellation of a disbursement deferred by more than 6 (six) months |
The Bank may, by notice in
writing to the Borrower, cancel a disbursement which has been deferred under Article 1.06A by more than 6 (six) months in aggregate.
The cancelled amount shall remain available for disbursement under Article 1.02.
| 1.07 | Cancellation and suspension |
| 1.07A | Borrower's right to cancel |
The Borrower may at any time
by notice in writing to the Bank cancel, in whole or in part and with immediate effect, the undisbursed portion of the Credit.
However, the notice shall have no effect in respect of (i) a Notified Tranche which has a Scheduled Disbursement Date falling within
5 (five) Business Days of the date of the notice or (ii) a Tranche in respect of which a Disbursement Request has been submitted
but no Disbursement Notice has been issued.
| 1.07B | Bank's right to suspend and cancel |
| (a) | The Bank may, by notice in writing to the Borrower, suspend and/or cancel the undisbursed portion
of the Credit in whole or in part at any time and with immediate effect: |
| (i) | upon the occurrence of a Prepayment Event other than pursuant to Articles 4.03A(1) or 4.03A(2),
an Event of Default or an event or circumstance which would with the passage of time or giving of notice under this Contract constitute
a Prepayment Event other than pursuant to Articles 4.03A(1) or 4.03A(2) or an Event of Default; or |
| (ii) | by an amount equal to the amount by which it is entitled to cancel any Credit pursuant to Articles
4.03A(1) or 4.03A(2). |
| (b) | The Bank may also suspend the portion of any Credit in respect of which it has not issued a Disbursement
Notice with immediate effect in the case that a Market Disruption Event occurs. |
| (c) | Any suspension shall continue until the Bank ends the suspension or cancels the suspended amount. |
| 1.07C | Indemnity for suspension and cancellation of a Tranche |
1.07C(1) SUSPENSION
If the Bank suspends a Notified
Tranche, whether upon an Indemnifiable Prepayment Event or an Event of Default or upon the occurrence of a Material Adverse Change,
the Borrower shall pay to the Bank the Deferment Indemnity calculated on the amount of disbursement suspended for the period of
deferral.
1.07C(2) CANCELLATION
| (a) | If pursuant to Article 1.07A, the Borrower cancels any part of the Credit other than a Notified
Tranche, no indemnity is payable. |
| (b) | If pursuant to Article 1.07A, a Borrower cancels a Tranche which is a Notified Tranche, the Borrower
shall pay to the Bank a Prepayment Fee as per Article 4.02B. |
| (c) | If the Bank cancels a Notified Tranche upon an Event of Default, the Borrower shall indemnify the
Bank under Article 10.03. |
Save in the circumstances
listed in paragraphs (b) and (c) above, no indemnity is payable upon cancellation of a Tranche by the Bank.
The indemnity shall be calculated
on the basis that the cancelled amount is deemed to have been disbursed and repaid on the Scheduled Disbursement Date or, to the
extent that the disbursement of the Tranche is currently deferred or suspended, on the date of the cancellation notice.
| 1.08 | Cancellation after expiry of the Credit |
On the day following the
Final Availability Date, and unless otherwise specifically agreed to in writing by the Bank, the part of the Credit in respect
of which no Disbursement Request has been made in accordance with Article 1.02B shall be automatically cancelled, without any notice
being served by the Bank to the Borrower and without liability arising on the part of either party.
| 1.09 | Sums due under Article 1 |
Sums due under Articles 1.06
and 1.07 shall be payable in EUR. They shall be payable within 15 (fifteen) days of the Borrower's receipt of the Bank's demand
or within any longer period specified in the Bank's demand.
ARTICLE
2
The Loan
The Loan shall comprise the
aggregate amount of Tranches disbursed by the Bank under the Credit, as confirmed by the Bank pursuant to Article 2.03.
| 2.02 | Currency of repayment, interest and other charges |
Interest, repayments and
other charges payable in respect of each Tranche shall be made by the Borrower in EUR.
Any other payment shall be
made in the currency specified by the Bank having regard to the currency of the expenditure to be reimbursed by means of that payment.
| 2.03 | Confirmation by the Bank |
Within 10 (ten) days after
disbursement of each Tranche, the Bank shall deliver to the Borrower a schedule showing the Disbursement Date, currency, the amount
disbursed, the repayment terms and the interest rate of and for that Tranche.
ARTICLE
3
Interest
| 3.01 | Rate of interest – Cash Pay Margin |
For the purposes of this
Contract "Cash Pay Margin" means [***] basis points ([***]%).
The Borrower shall pay interest
on the outstanding balance of each Tranche (other than the COVID-19 Tranche) at the Floating Rate quarterly, semi-annually or annually
in arrears on the relevant Payment Dates, as specified in the Disbursement Notice commencing on the first such Payment Date following
the Disbursement Date of the Tranche. If the period from the Disbursement Date to the first Payment Date is fifteen (15) days or
less then the payment of interest accrued during such period shall be postponed to the following Payment Date.
The Bank shall notify the
Floating Rate to the Borrower within 10 (ten) days following the commencement of each Floating Rate Reference Period.
If pursuant to Articles 1.06
and 1.07 disbursement of any Tranche (other than the COVID-19 Tranche) takes place after the Scheduled Disbursement Date EURIBOR,
applicable to the first Floating Rate Reference Period shall apply as though the disbursement had been made on the Scheduled Disbursement
Date.
Interest shall be calculated
in respect of each Floating Rate Reference Period on the basis of Article 5.01. If the Floating Rate for any Floating Rate Reference
Period is below zero, it will be set at zero.
| 3.02 | Rate of interest – Deferred Interest |
For the purposes of this
Contract "Deferred Interest" means, in addition to the interest mentioned in Article 3.01, interest at the Deferred
Interest Rate which accrues on a daily basis on the outstanding amount of each Tranche (other than the COVID-19 Tranche) during
the period starting on the Disbursement Date of such Tranche and ending on the Maturity Date of the relevant Tranche (or on any
date earlier than that Maturity Date in the event of a prepayment or an acceleration of all or part of that Tranche).
For the purposes of this
Contract "Deferred Interest Rate" means a fixed interest rate of 6% per annum.
The Borrower shall pay all
accrued Deferred Interest in arrears on the Maturity Date of the relevant Tranche (or earlier on any prepayment or acceleration
of all or part of that Tranche).
Deferred Interest shall be
calculated in respect of each annual period following the Disbursement Date of each Tranche (other than the COVID-19 Tranche) on
the basis of Article 5.01.
| 3.03 | Interest on overdue sums |
Without prejudice to Article
10 and by way of exception to Article 3.01, if the Borrower fails to pay any amount payable by it under this Contract on its due
date, interest shall accrue (subject to mandatory provisions of the applicable laws) on any overdue amount payable under the terms
of this Contract from the due date to the date of actual payment at an annual rate equal to:
| (i) | for overdue sums relating to Tranches (other than the COVID-19 Tranche), the applicable Floating
Rate plus [***]% ([***] basis points); |
| (ii) | for overdue sums relating to the COVID-19 Tranche, the higher of (a) the PIK Interest Rate plus
2% (200 basis points) or (b) EURIBOR plus [***]% ([***] basis points); or |
| (iii) | for overdue sums other than under (i) or (ii) above, EURIBOR plus 2% (200 basis points), |
and shall be payable in accordance
with the demand of the Bank. For the purpose of determining EURIBOR in relation to this Article 3.03, the relevant periods within
the meaning of Schedule B shall be successive periods of one month commencing on the due date.
If the overdue sum is in
a currency other than the currency of the Loan, the following rate per annum shall apply, namely the relevant interbank rate that
is generally retained by the Bank for transactions in that currency plus [***]% ([***] basis points), calculated in accordance
with the market practice for such rate.
| 3.04 | Market Disruption Event |
In relation to a specific
Tranche, if at any time (i) from the issuance by the Bank of the Disbursement Notice in respect of such Tranche, and (ii) until
the date falling thirty (30) calendar days prior to the Scheduled Disbursement Date, a Market Disruption Event occurs, the Bank
may notify to the Borrower that this clause has come into effect. In such case, the rate of interest applicable to such Notified
Tranche until the Maturity Date of such Notified Tranche shall be the percentage rate per annum which is the sum of:
| · | the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive
cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate
or an alternative rate determination method reasonably determined by the Bank. The Borrower shall have the right to refuse in writing
such disbursement within the deadline specified in the notification and shall bear charges incurred as a result, if any, in which
case the Bank shall not effect the disbursement and the corresponding Credit shall remain available for disbursement under Article
1.02B. If the Borrower does not refuse the disbursement in time, the parties agree that the disbursement and the conditions thereof
shall be fully binding for both parties. |
| 3.05A | In addition to the interest payable pursuant to Articles 3.01 and 3.02 above, provided either the
PPI Tranche or the COVID-19 Tranche is drawn, the Borrower shall pay PPI according to this Article 3.05. |
| 3.05B | Upon any repayment or prepayment of any part of the PPI Tranche becoming due (a "PPI Tranche
Due Payment") (whether or not it is paid and to avoid doubt whether as a result of the occurrence of the PPI Tranche's Maturity
Date, or following acceleration, or as a result of voluntary or mandatory prepayment, or otherwise), the Borrower shall pay the
Bank the relevant PPI within 30 days of the Bank's written demand, provided that such demand is delivered by the Bank to the Borrower
no later than the first anniversary of the PPI Tranche's Maturity Date. |
| 3.05C | Upon any repayment or prepayment of any part of the COVID-19 Tranche becoming due (a "COVID-19
Tranche Due Payment") (whether or not it is paid and to avoid doubt whether as a result of the occurrence of the COVID-19
Tranche's Maturity Date, or following acceleration, or as a result of voluntary or mandatory prepayment, or otherwise), the Borrower
shall pay the Bank the relevant PPI within 30 days of the Bank's written demand, provided that such demand is delivered by the
Bank to the Borrower no later than the first anniversary of the COVID-19 Tranche's Maturity Date. |
| 3.05D | For the avoidance of doubt the Bank has the right to demand the relevant PPI in relation to any
PPI Tranche Due Payment and any COVID-19 Tranche Due Payment at any time up to (and including) the first anniversary of the PPI
Tranche's Maturity Date or the COVID-19 Tranche's Maturity Date (as applicable). |
| 3.05E | The Borrower and the Bank hereby agree that the calculations illustrated as examples of the amount
of PPI to be paid by the Borrower under Schedule F (Performance Participation Interest Example) fairly represent the intention
of the parties. |
| 3.06 | Payment in kind (PIK) interest |
In relation to the COVID-19
Tranche, interest shall accrue daily on the outstanding balance of the COVID-19 Tranche at the PIK Interest Rate and shall be capitalised
on each Payment Date and added to the outstanding principal amount of the relevant Loan. All such accrued interest shall, after
being so capitalised, be treated as part of the principal amount of the relevant Loan, shall bear all interest in accordance with
this Article 3.06 and shall be payable on the Maturity Date of the COVID-19 Tranche, or, where the COVID-19 Tranche is voluntarily
prepaid or compulsorily prepaid on the relevant prepayment date (or, to avoid doubt, on such date as the COVID-19 Tranche becomes
due and payable as a result of an acceleration).
ARTICLE
4
Repayment
The Borrower shall repay
each Tranche, together with all other amounts outstanding under this Contract in relation to that Tranche, in a single instalment
on the Maturity Date of that Tranche.
Subject to Articles 4.02B,
4.02C and 4.04, the Borrower may prepay all or part of any Tranche, together with accrued interest (including any Deferred Interest
and, if applicable (in relation to the COVID-19 Tranche only), interest accruing at the PIK Interest Rate) and indemnities if any,
upon giving a Prepayment Request with at least 1 (one) month's prior notice specifying (i) the Prepayment Amount, (ii) the Prepayment
Date, (iii) the Prepayment Fee and (iv) the contract number ("FI nr") mentioned on the cover page of this Contract.
Subject to Article 4.02C
the Prepayment Request shall be binding and irrevocable.
Upon the prepayment of all
or part of any Tranche under Article 4.02 or cancellation as per Article 1.07C(2)(b), the Borrower shall pay a fee for each Tranche
being prepaid as follows:
| (a) | a fee of [***]% of the Prepayment Amount if the Prepayment Date is on or after the Disbursement
Date but before the first anniversary of the Disbursement Date; |
| (b) | a fee of [***]% of the Prepayment Amount if the Prepayment Date is on or after the first anniversary
of the Disbursement Date but before the second anniversary of the Disbursement Date; |
| (c) | a fee of [***]% of the Prepayment Amount if the Prepayment Date is on or after the second anniversary
of the Disbursement Date but before the third anniversary of the Disbursement Date; or |
| (d) | a fee of [***]% of the Prepayment Amount if the Prepayment Date is on or after the third anniversary
of the Disbursement Date but on or before the fourth anniversary of the Disbursement Date, |
with each fee being payable
on the applicable Prepayment Date.
For the avoidance of doubt,
no such fee shall be payable if the Prepayment Date is after the fourth anniversary of the Disbursement Date.
| 4.02C | Prepayment mechanics |
Upon presentation by the
Borrower to the Bank of a Prepayment Request, the Bank shall issue a Prepayment Notice to the Borrower, not later than 15 (fifteen)
days prior to the Prepayment Date. The Prepayment Notice shall specify the Prepayment Amount, the accrued interest (including any
Deferred Interest) due thereon, the Prepayment Fee payable under Article 4.02B or, as the case may be, that no Prepayment Fee is
due, the indemnity payable under Article 4.04, if any, the method of application of the Prepayment Amount and the Acceptance Deadline.
If the Borrower accepts the
Prepayment Notice no later than by the Acceptance Deadline, it shall effect the prepayment. In any other case, the Borrower may
not effect the prepayment.
The Borrower shall accompany
the prepayment by the payment of accrued interest (including any interest under Article 3.06), the indemnity payable under Article
4.04, if any, and the Prepayment Fee under Article 4.02B, if any, due on the Prepayment Amount, as specified in the Prepayment
Notice.
| 4.03 | Compulsory prepayment |
| 4.03A(1) | Project Cost Reduction |
If the total cost of the
Project falls below the figure stated in Recital (2) so that the amount of the Credit exceeds 50% (fifty per cent) of such total
cost, the Bank may forthwith, by notice to the Borrower, cancel the undisbursed portion of the Credit and/or demand prepayment
of the Loan up to the amount by which the Credit exceeds 50% (fifty per cent) of the total cost of the Project. The Borrower shall
effect payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty)
days from the date of the demand.
| 4.03A(2) | Pari Passu to Non-EIB Financing |
If the Borrower (or any other
member of the Group) or any Guarantor voluntarily prepays (for the avoidance of doubt, prepayment shall include a repurchase, redemption
or cancellation where applicable) a part or the whole of any Non-EIB Financing and:
| · | such prepayment is not made within a revolving credit facility (save for the cancellation of the
revolving credit facility); |
| · | such prepayment is not made out of the proceeds of a loan or other indebtedness having a term at
least equal to the unexpired term of the Non-EIB Financing prepaid, |
the Bank may, by notice to
the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan. The proportion of the Loan that the
Bank may require to be prepaid shall be the same as the proportion that the prepaid amount of the Non-EIB Financing bears to the
aggregate outstanding amount of all Non-EIB Financing.
The Borrower shall effect
payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days
from the date of the demand.
For the purposes of this
Article, "Non-EIB Financing" includes any loan (save for the Loan and any other direct loans from the Bank to
the Borrower (or any other member of the Group) or any Guarantor), credit bond or other form of financial indebtedness or any obligation
for the payment or repayment of money originally granted to the Borrower (or any other member of the Group) or any Guarantor) for
a term of more than 3 (three) years.
| 4.03A(3) | Change of Control |
The Borrower shall promptly
inform the Bank if a Change-of-Control Event has occurred or is likely to occur in respect of itself or any Guarantor. At any time
after the occurrence of a Change-of-Control Event, the Bank may, by notice to the Borrower, cancel the undisbursed portion of the
Credit and demand prepayment of the Loan, together with accrued interest and all other amounts accrued or outstanding under this
Contract.
In addition, if the Borrower
has informed the Bank that a Change-of-Control Event is about to occur, or if the Bank has reasonable cause to believe that a Change-of-Control
Event is about to occur, the Bank may request that the Borrower consult with it. Such consultation shall take place within 30 (thirty)
days from the date of the Bank's request. After the earlier of (a) the lapse of 30 (thirty) days from the date of such request
for consultation, or (b) at any time thereafter, upon the occurrence of the anticipated Change-of-Control Event the Bank may, by
notice to the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan, together with accrued interest
and all other amounts accrued or outstanding under this Contract.
The Borrower shall effect
payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days
from the date of the demand.
For the purposes of this
Article:
| (a) | a "Change-of-Control Event" occurs if: |
| (i) | any person (to avoid doubt, other than OpGen) or group of persons acting in concert gains control
of the Borrower or of the entity directly or ultimately controlling the Borrower, or a Material Subsidiary or a Guarantor; |
| (ii) | the Borrower, any Guarantor or any Material Subsidiary, as the case may be, consolidates or merges
into any other corporation (other than, to avoid doubt, OpGen), unless such consolidation or merger is a Permitted Merger; or |
| (iii) | a sale of all or substantially all, in the reasonable opinion of the Bank, of the assets of the
Borrower, any Guarantor or any Material Subsidiary, takes place (other than, to avoid doubt, to OpGen); |
| (b) | "acting in concert" means acting together pursuant to an agreement or understanding
(whether formal or informal); and |
| (c) | "control" means (i) the ownership (whether legally or beneficially in any jurisdiction)
of more than 50% of the ordinary shares of the Borrower, a Guarantor or any Material Subsidiary, as the case may be, or (iii) the
power to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise. |
The Borrower shall promptly
inform the Bank if a Change-of-Law Event has occurred or is reasonably likely to occur. In such case, or if the Bank has reasonable
cause to believe that a Change-of-Law Event has occurred or is about to occur, the Bank may request that the Borrower consult with
it. Such consultation shall take place within 30 (thirty) days from the date of the Bank's request. If, after the lapse of 30 (thirty)
days from the date of such request for consultation the Bank is of the opinion that the effects of the Change-of-Law Event cannot
be mitigated to its satisfaction, the Bank may by notice to the Borrower, cancel the undisbursed portion of the Credit and demand
prepayment of the Loan, together with accrued interest and all other amounts accrued or outstanding under any Finance Document.
The Borrower shall effect
payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days
from the date of the demand.
For the purposes of this
Article "Change-of-Law Event" means the enactment, promulgation, execution or ratification of or any change in
or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that
occurs after the date of this Contract and which, in the reasonable opinion of the Bank, would materially impair the Borrower's
or a Guarantor's ability to perform its obligations under this Contract or any guarantee or security provided in respect of this
Contract.
If it becomes unlawful in
any applicable jurisdiction for the Bank to perform any of its obligations as contemplated in any Finance Document or to fund or
maintain the Loan, the Bank shall promptly notify the Borrower and may immediately (i) suspend or cancel the undisbursed portion
of the Credit and/or (ii) demand prepayment of the Loan, together with accrued interest and all other amounts accrued or outstanding
under the Finance Documents on the date indicated by the Bank in its notice to the Borrower, provided such date is no earlier than
five days prior to the notice, unless an immediate or earlier payment is required by law.
| 4.03B | Prepayment mechanics |
Any sum demanded by the Bank
pursuant to Article 4.03A, together with any interest (including any Deferred Interest) or other amounts accrued or outstanding
under this Contract including, without limitation, any indemnity due under Article 4.04, if any, shall be paid on the date indicated
by the Bank in its notice of demand.
A repaid or prepaid amount
may not be reborrowed. This Article 4 shall not prejudice Article 10.
If the Borrower prepays a
Tranche on a date other than a relevant Payment Date, the Borrower shall indemnify the Bank in such amount as the Bank shall certify
is required to compensate it for receipt of funds otherwise than on a relevant Payment Date.
ARTICLE
5
Payments
Any amount due by way of
interest, indemnity or fee from the Borrower under this Contract, shall in respect of a fraction of a year, be calculated on the
basis of a year of 360 (three hundred and sixty) days and the number of days elapsed.
| 5.02 | Time and place of payment |
Unless otherwise specified
in this Contract (including, without limitation, at article 3.05B) or in the Bank's demand, all sums other than sums of interest,
indemnity and principal are payable within 15 (fifteen) days of the Borrower's receipt of the Bank's demand.
Each sum payable by the
Borrower under this Contract shall be paid to the relevant account notified by the Bank to the Borrower. The Bank shall notify
the account not less than 15 (fifteen) days before the due date for the first payment by the Borrower and shall notify any change
of account not less than 15 (fifteen) days before the date of the first payment to which the change applies. This period of notice
does not apply in the case of payment under Article 10.
The Borrower shall indicate
in each payment made hereunder the contract number ("FI nr") found on the cover page of this Contract.
A sum due from the Borrower
shall be deemed paid when the Bank receives it.
Any disbursements by and
payments to the Bank under this Contract shall be made using account(s) acceptable to the Bank. For the avoidance of doubt, any
account in the name of the Borrower held with a duly authorised financial institution in the jurisdiction where the Borrower is
incorporated or where the Project is undertaken is deemed acceptable to the Bank.
| 5.03 | No set-off by the Borrower |
All payments to be made by
the Borrower under this Contract shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| 5.04 | Disruption to Payment Systems |
If either the Bank determines
(in its discretion) that a Disruption Event has occurred or the Bank is notified by the Borrower that a Disruption Event has occurred:
| (a) | the Bank may, and shall if requested to do so by the Borrower, consult with the Borrower with a
view to agreeing with the Borrower such changes to the operation or administration of the Contract as the Bank may deem necessary
in the circumstances; |
| (b) | the Bank shall not be obliged to consult with the Borrower in relation to any changes mentioned
in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation
to agree to such changes; and |
| (c) | the Bank shall not be liable for any damages, costs or losses whatsoever arising as a result of
a Disruption Event or for taking or not taking any action pursuant to or in connection with this Article 5.04. |
| 5.05 | Application of sums received |
Sums received from the Borrower
shall only discharge its payment obligations if received in accordance with the terms of this Contract.
If the Bank receives a payment
that is insufficient to discharge all the amounts then due and payable by the Borrower under this Contract, the Bank shall apply
that payment in or towards payment of:
| (i) | first, any unpaid fees, costs, indemnities and expenses due under this Contract; |
| (ii) | secondly, any accrued interest due but unpaid under this Contract; |
| (iii) | thirdly, any principal due but unpaid under this Contract; and |
| (iv) | fourthly, any other sum due but unpaid under this Contract. |
| (c) | Allocation of sums related to Tranches |
In case of receipt of sums
which cannot be identified as applicable to a specific Tranche, and on which there is no agreement between the Bank and the Borrower
on their application, the Bank may apply these between Tranches at its discretion.
ARTICLE
6
Borrower undertakings and representations
The undertakings in this
Article 6 remain in force from the date of this Contract for so long as any amount is outstanding under this Contract or the Credit
is in force.
A. Project undertakings
| 6.01 | Use of Loan and availability of other funds |
The Borrower shall use all
amounts borrowed by it under the Loan for the execution of the Project.
The Borrower shall ensure
that it has available to it the other funds listed in Recital (2) and that such funds are expended, to the extent required, on
the financing of the Project.
| 6.02 | Completion of Project |
The Borrower shall or shall
procure that the Project is carried out in accordance with the Technical Description as may be modified from time to time with
the approval of the Bank, and complete it by the final date specified in the Technical Description.
| 6.03 | Increased cost of Project |
If the total cost of the
Project exceeds the estimated figure set out in Recital (2), the Borrower shall obtain the finance to fund the excess cost without
recourse to the Bank, so as to enable the Project to be completed in accordance with the Technical Description. The plans for funding
the excess cost shall be communicated to the Bank without delay.
| 6.04 | Procurement procedure |
The Borrower shall purchase
equipment, secure services and order works for the Project (a) in so far as they apply to it or to the Project, in accordance with
European Union law in general and in particular with the relevant applicable European Union Directives and (b) in so far as European
Union Directives do not apply, by procurement procedures which, to the satisfaction of the Bank, respect the criteria of economy
and efficiency and, in case of public contracts, the principles of transparency, equal treatment and non-discrimination on the
basis of nationality.
| 6.05 | Continuing Project undertakings |
The Borrower shall:
| (a) | Maintenance: maintain, repair, overhaul and renew all project assets as commercially reasonably
required to keep such assets in good working order; |
| (b) | Project assets: unless the Bank shall have given its prior consent in writing retain title
to and possession of all or substantially all the project assets or, as appropriate, replace and renew such assets and maintain
the Project in substantially continuous operation in accordance with its original purpose; provided that the Bank may withhold
its consent only where the proposed action would prejudice the Bank's interests as lender to the Borrower or would render the Project
ineligible for financing by the Bank under its statute or under Article 309 of the Treaty on the Functioning of the European Union; |
| (c) | Insurance: insure all works and property forming part of the Project with reputable insurance
companies to the extent such insurances are commercially reasonably required based on the relevant industry practice; |
| (d) | Rights and Permits: maintain in force all rights of way or use and all Authorisations necessary
for the execution and operation of the Project; and |
| (i) | implement and operate the Project in compliance with Environmental Law; |
| (ii) | obtain and maintain requisite Environmental Approvals for the Project; and |
| (iii) | comply with any such Environmental Approvals; |
On becoming aware of any
breach of this Article 6.05(e):
| (A) | the Borrower shall promptly notify the Bank; |
| (B) | the Borrower and the Bank will consult for 15 Business Days from the date of notification (the
consultation period) with a view to agreeing the manner in which the breach should be rectified; and |
| (C) | the Borrower will use its best endeavours to comply with the provisions set out in paragraphs (i)
to (iii) (inclusive) above and shall in any event remedy the breach within 30 Business Days of the end of the consultation period. |
| (f) | Integrity: take, within a reasonable timeframe, appropriate measures in respect of any member
of its management bodies who has been convicted by a final and irrevocable court ruling of an Illegal Activity perpetrated in the
course of the exercise of his/her professional duties, in order to ensure that such member is excluded from any Borrower's activity
in relation to the Loan or the Project; |
| (g) | Integrity Audit Rights: ensure that all contracts under the Project to be procured after
the date of signature of this Contract in accordance with European Union Directives on procurement provide for: |
| (i) | the requirement that the relevant contractor promptly informs the Bank of a genuine allegation,
complaint or information with regard to Illegal Activities related to the Project; |
| (ii) | the requirement that the relevant contractor keeps books and records of all financial transactions
and expenditures in connection with the Project; and |
| (iii) | the Bank's right, in relation to an alleged Illegal Activity, to review the books and records of
the relevant contractor in relation to the Project and to take copies of documents to the extent permitted by law. |
B. General undertakings
| (a) | The Borrower shall not, and shall procure that no other member of the Group will, either in a single
transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily dispose of all or any
part of the Borrower's or other Group member's business, undertaking or assets, including any Intellectual Property Rights. |
| (b) | Paragraph (a) above does not apply to any disposal of assets which constitutes a Permitted Disposal. |
For the purposes of this
Article, "dispose" and "disposal" includes any act effecting sale, transfer, lease or other disposal.
| 6.07 | Compliance with laws; Hedging |
| 6.07A | Compliance with laws |
The Borrower and any Guarantor
shall comply in all respects with all laws and regulations to which it or the Project is subject.
The Borrower shall not, and
shall procure that each other member of the Group shall not, enter into any derivative transaction other than in accordance with
the Hedging Policy.
The Borrower shall procure
that no substantial change is made to the general nature of the business of the Borrower or the Group as a whole from that carried
on at the date of this Contract.
The Borrower shall not, and
shall ensure that no other member of the Group shall, enter into any amalgamation, demerger, merger or corporate reconstruction
unless such amalgamation, demerger, merger or corporate reconstruction is a Permitted Merger.
| (a) | The Borrower shall maintain not less than 100% (one hundred per cent) of the share capital, directly
or indirectly, of each of its Material Subsidiaries, unless a prior written consent of the Bank is received by the Borrower. |
| (b) | The Borrower shall ensure that OpGen shall in aggregate maintain not less than 100% (one hundred
per cent) of the share capital, directly or indirectly, of the Borrower, unless prior written consent of the Bank is received by
the Borrower. |
| (c) | The Borrower shall immediately notify the Bank in the event of a new entity becoming a majority
owned subsidiary (meaning ownership of 50.1% (fifty point one per cent) or more) through any means, including but not limited to
acquisition, creation and spin-off. |
| (d) | The undertakings in paragraphs (a) and (b) above shall be calculated in accordance with GAAP as
applied by the Borrower on the date of this Contract and as GAAP is amended from time to time and tested annually. |
| (e) | The Borrower shall procure that, as soon as any member of the Group becomes a Material Subsidiary,
unless notified by the Bank to the Borrower to the contrary or unless the Bank determines that it is not reasonably practicable
to do so, that member of the Group shall promptly enter into a Guarantee and provide the Bank with: |
| (i) | a certified copy of the constitutional documents of such Material Subsidiary; |
| (ii) | a certified copy of the resolution of the competent body (board of directors and/or general meeting
of shareholders) of such Material Subsidiary duly authorising the execution of such Guarantee and duly authorising the person or
persons signing such Guarantee on behalf of such Material Subsidiary together with the specimen signature of each such person or
persons; |
| (iii) | evidence that such Material Subsidiary has obtained all necessary Authorisations required in connection
with such Guarantee; |
| (iv) | a legal opinion in form and substance satisfactory to the Bank of a reputable law firm acceptable
to the Bank in the jurisdiction of incorporation of such Material Subsidiary, addressed to the Bank covering materially the same
issues as the opinions referred to in Articles 1.04A (f) and (h) and relating to the granting of the relevant Guarantee; and |
| (v) | a copy of any other authorisation or other document, opinion or assurance which the Bank reasonably
considers to be necessary (if it has notified the Borrower accordingly) in connection with the entry into and performance of the
transactions contemplated by such Guarantee or for the validity and enforceability of such Guarantee, |
each in form and substance
satisfactory to the Bank. If it is not practicable (in the sole opinion of the Bank) for the Material Subsidiary to grant a guarantee
in favour of the Bank, the Bank may request alternative credit support in form and substance satisfactory to the Bank in its sole
discretion.
| 6.10B | Minimum worth of Obligors |
The Borrower shall ensure
that at all times:
| (a) | gross revenues of the Obligors represent not less than 85% of the consolidated gross revenues of
the Group taken as a whole; |
| (b) | total assets of the Obligors represent not less than 85% of the Total Assets; and |
| (c) | EBITDA of the Obligors represents not less than 85% of the consolidated EBITDA of the Group, |
each as calculated based
on the then latest consolidated audited accounts of the Group.
The Borrower shall ensure
that it has kept and will continue to keep proper books and records of account, in which full and correct entries shall be made
of all financial transactions and the assets and business of the Borrower, including expenditures in connection with the Project,
in accordance with GAAP as in effect from time to time.
The Borrower shall not, and
shall ensure that no other member of the Group shall invest in or acquire any entity or a business going concern or an undertaking
(whether whole or substantially the whole of the assets or business), or any division or operating unit thereof, or any shares
or securities of any entity or a business or undertaking (or in each case, any interest in any of them) (or agree to any of the
foregoing), unless such acquisition is a Permitted Acquisition.
The Borrower shall not, and
shall ensure that no other member of the Group shall incur any Indebtedness, unless such Indebtedness is Permitted Indebtedness.
The Borrower shall not, and
shall procure that no other member of the Group will issue or allow to remain outstanding any guarantees in respect of any liability
or obligation of any person unless such guarantees are Permitted Guarantees.
The Borrower shall not, and
shall procure that no other member of the Group shall, declare or distribute dividends, or make any payment in respect of any intercompany
loan, or return or purchase shares unless such payments are Permitted Payments.
| 6.16 | Intellectual Property Rights |
The Borrower shall, and shall
procure that each other member of the Group shall, (i) safeguard and maintain its rights with respect to the Intellectual Property
Rights required for the implementation of the Project in accordance with this Contract, including complying with all material contractual
provisions and that the implementation of the Project in accordance with this Contract will not result in the infringement of the
rights of any person with regard to the Intellectual Property Rights and (ii) ensure that any Intellectual Property Rights required
for the implementation of the Project will be owned by or licensed to the Borrower, and where such Intellectual Property Rights
which are owned by a member of the Group are capable of registration, are registered to that member of the Group.
| 6.17 | Maintenance of Status |
The Borrower shall, and shall
procure that each other member of the Group shall, remain duly incorporated and validly existing as a corporate entity with limited
liability under the jurisdiction in which it is incorporated and that it and each other member of the Group will have no centre
of main interests, permanent establishment or place of business outside the jurisdiction in which it is incorporated (or in the
case of OpGen outside of the State of Maryland, United States of America) and that it and each other member of the Group will continue
to have the power to carry on its business as it is now being conducted and continue to own its property and other assets.
| 6.18 | Eligibility Prerequisites |
The Borrower shall, and shall
procure that each other member of the Group shall, satisfy the eligibility prerequisites, as amended from time to time, that are
required to be satisfied in order to obtain finance under the joint initiative between the Bank and the European Commission as
set out in Recital (10).
The Borrower shall, and shall
procure that each other member of the Group shall, promptly inform the Bank if at any time it becomes aware of any funds that are
invested in the Project by the Borrower or by any other member of the Group that are of illicit origin, including products of money
laundering or linked to the financing of terrorism.
The operation benefits from
a guarantee under EFSI and the Borrower agrees to cooperate with the Bank to ensure that any press releases or publications made
by the Borrower regarding the financing and the Project include an appropriate acknowledgement of the financial support provided
by EIB with the backing of the European Union through EFSI.
The Borrower shall not, and
shall ensure that no other member of the Group will, be a creditor in respect of any Indebtedness, save for any Permitted Loans.
| 6.22 | General Representations and Warranties |
The Borrower represents and
warrants to the Bank that:
| (a) | it is duly incorporated and validly existing as a company with limited liability under the laws
of Germany and it has power to carry on its business as it is now being conducted and to own its property and other assets; |
| (b) | OpGen is duly incorporated and validly existing as a company with limited liability under the laws
of the State of Delaware, United States of America and it has power to carry on its business as it is now being conducted and to
own its property and other assets; |
| (c) | it has the power to execute, deliver and perform its obligations under this Contract and all necessary
corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same by it; |
| (d) | this Contract constitutes its legally valid, binding and enforceable obligations; |
| (e) | the execution and delivery of, the performance of its obligations under and compliance with the
provisions of this Contract do not and will not: |
| (i) | contravene or conflict with any applicable law, statute, rule or regulation, or any judgement,
decree or permit to which it is subject; |
| (ii) | contravene or conflict with any agreement or other instrument binding upon it which might reasonably
be expected to have a material adverse effect on its ability to perform its obligations under this Contract; |
| (iii) | contravene or conflict with any provision of its constitutional documents; |
| (f) | the latest available consolidated audited accounts of the Group and the latest available unaudited
accounts of the Borrower, OpGen and any Guarantor have been prepared on a basis consistent with previous years and have been approved
by its auditors as representing a true and fair view of the results of its operations for that year and accurately disclose or
reserve against all the liabilities (actual or contingent) of the Borrower; |
| (g) | there has been no Material Adverse Change since 21 October 2016; |
| (h) | no event or circumstance which constitutes an Event of Default has occurred and is continuing unremedied
or unwaived; |
| (i) | no litigation, arbitration, administrative proceedings or investigation is current or to its knowledge
is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably
likely to result in a Material Adverse Change, nor is there subsisting against it or any of its Subsidiaries any unsatisfied judgement
or award; |
| (j) | it has obtained all necessary Authorisations in connection with this Contract and in order to lawfully
comply with its obligations hereunder, and the Project and all such Authorisations are in full force and effect and admissible
in evidence; |
| (k) | its payment obligations under this Contract rank not less than pari passu in right of payment with
all other present and future unsecured and unsubordinated obligations under any of its debt instruments except for obligations
mandatorily preferred by law applying to companies generally; |
| (l) | it is in compliance with Article 6.05(e) and to the best of its knowledge and belief (having made
due and careful enquiry) no Environmental Claim has been commenced or is threatened against it not previously disclosed to the
Bank; |
| (m) | no financial covenants have been concluded with any other creditor of the Borrower (excluding financial
covenants which are contained within financing agreements permitted under paragraphs (c) or (f) of Permitted Indebtedness, the
transactions under paragraph (e) of Permitted Indebtedness that are FX hedging transactions, and the Yorkville Facility) which
are more restrictive than the ones contained in this Contract; |
| (n) | the Group structure chart is true, complete and accurate in all material respects and represents
the complete corporate structure of the Group as at the date of this Contract; |
| (o) | the Borrower is not required to make any deduction for or on account of any Tax from any payment
it may make under this Contract; |
| (p) | to the best of its knowledge, no funds invested in the Project by the Borrower or by its controlling
entities or by another member of the Group are of illicit origin, including products of money laundering or linked to the financing
of terrorism. The Borrower shall promptly inform the Bank if at any time it becomes aware of the illicit origin of any such funds; |
| (q) | all Tax returns required to have been filed by it or on its behalf under any applicable law have
been filed when due and contain the information required by applicable law to be contained in them; |
| (r) | it has paid when due all Taxes payable by it under applicable law except to the extent that it
is contesting payment in good faith and by appropriate means; |
| (s) | with respect to Taxes which have not fallen due or which it is contesting, it is maintaining reserves
adequate for their payment and in accordance, where applicable, with GAAP; |
| (t) | the Accounting Reference Date of the Borrower is 31 December; |
| (u) | under the laws of Germany it is not necessary that this Contract be filed, recorded or enrolled
with any court or other authority in Germany or that any stamp, registration or similar tax be paid on or in relation to this Contract,
or the transactions contemplated by this Contract; |
| (v) | any factual information provided by the Borrower and any member of the Group for the purposes of
entering into this Contract and any related documentation was true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated; |
| (w) | the Borrower has no Indebtedness outstanding other than Permitted Indebtedness; |
| (x) | neither it, nor any of its assets, is entitled to immunity from suit, execution, attachment or
other legal process; |
| (y) | it has done, or will have done by the appropriate time for the Project to be implemented in accordance
with this Contract, all that is reasonably required to obtain, safeguard and maintain its rights with respect to the Intellectual
Property Rights required for the implementation of the Project in accordance with this Contract including complying with all contractual
provisions; |
| (z) | to the best of its knowledge and belief, having made reasonable enquiry, the implementation of
the Project in accordance with this Contract, will not result in the infringement of the rights of any person with regard to the
Intellectual Property Rights; |
| (aa) | the pension schemes for the time being operated by the Borrower (if any) are funded in accordance
with their rules and to the extent required by law or otherwise comply with the requirements of any law applicable in the jurisdiction
in which the relevant pension scheme is maintained; |
| (bb) | it is in compliance with all applicable European Union and German legislation, including any applicable
anti-corruption legislation; |
| (cc) | other than as set out in the Group structure chart, the Borrower owns no other equity and/or shares
in any other business entity; |
| (dd) | it has acquainted itself with this Contract and determined that it is in its best commercial interest
and consistent with its purpose of operations to enter into this Contract; |
| (ee) | no member of the Group is dormant; |
| (ff) | it is in compliance with all undertakings under this Contract; |
| (gg) | it is not engaged in any Illegal Activities and to the best of its knowledge no Illegal Activities
have occurred in connection with the Project; |
| (hh) | the Revised Group Structure Chart is true, complete and accurate in all material respects and represents
the complete corporate structure of the Group as at the Effective Date; and |
The Repeating Representations
are deemed repeated on each Disbursement Request, Disbursement Date and on each Payment Date by reference to the facts and circumstances
then existing.
ARTICLE
7
Security
The undertakings in this
Article 7 remain in force from the date of this Contract for so long as any amount is outstanding under this Contract or the Credit
is in force.
The obligations of the Bank
under this Contract are conditional upon the prior execution and delivery to the Bank of each Guarantee Agreement in form and substance
satisfactory to it and of a legal opinion, addressed to the Bank in form and substance satisfactory to the Bank, on the valid existence
of the relevant Guarantor, the authority and capacity of the relevant Guarantor to enter into the relevant Guarantee Agreement
and on the due execution and choice of law of the Guarantee Agreement. The Borrower hereby acknowledges and consents to the terms
of each Guarantee Agreement.
| (a) | The Borrower shall not (and the Borrower shall ensure that no other member of the Group will) create
or permit to subsist any Security over any of its assets. |
For the purposes of this
Article 7.02, the term Security shall also include any arrangement or transaction on assets or receivables or money (such as the
sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any
other member of the Group, the sale, transfer or otherwise dispose of any receivables on recourse terms or any arrangement under
which money or the benefit of a bank account or other account may be applied or set-off or any preferential arrangement having
a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit
or of financing the acquisition of an asset.
| (b) | Paragraph (a) above does not apply to any Security, listed below: |
| (i) | any netting or set-off arrangement entered into by any member of the Group in the ordinary course
of its banking arrangements for the purpose of netting debit and credit balances; |
| (ii) | any payment or close out netting or set-off arrangement pursuant to any hedging transaction entered
into by a member of the Group for the purpose of: |
| (A) | hedging any risk to which any member of the Group is exposed in its ordinary course of trading;
or |
| (B) | its interest rate or currency management operations which are carried out in the ordinary course
of business and for non-speculative purposes only, |
excluding, in each case,
any Security under a credit support arrangement in relation to a hedging transaction;
| (iii) | any lien arising by operation of law and in the ordinary course of trading; |
| (iv) | any Security over or affecting any asset acquired by a member of the Group after the date of this
Contract if: |
| (A) | the Security was not created in contemplation of the acquisition of that asset by a member of the
Group; |
| (B) | the principal amount secured has not been increased in contemplation of or since the acquisition
of that asset by a member of the Group; and |
| (C) | the Security is removed or discharged within three (3) months of the date of acquisition of such
asset; |
| (v) | any Security over or affecting any asset of any company which becomes a member of the Group after
the date of this Contract, where the Security is created prior to the date on which that company becomes a member of the Group,
if: |
| (A) | the Security was not created in contemplation of the acquisition of that company; |
| (B) | the principal amount secured has not increased in contemplation of or since the acquisition of
that company; and |
| (C) | the Security is removed or discharged within three (3) months of that company becoming a member
of the Group; |
| (vi) | any Security entered into pursuant to this Contract; |
| (vii) | any Security arising under any retention of title, hire purchase or conditional sale arrangement
or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and
on the supplier's standard or usual terms and not arising as a result of any default or omission by any member of the Group; or |
| (viii) | any Security listed in Schedule E (Existing Security) except to the extent the principal amount
secured by that Security exceeds the amount stated in that Schedule. |
The Borrower shall ensure
that its payment obligations under this Contract rank, and will rank, not less than pari passu in right of payment with all other
present and future unsecured and unsubordinated obligations under any of its debt instruments except for obligations mandatorily
preferred by law applying to companies generally.
If the Borrower or any other
member of the Group concludes with any other financial creditor a financing agreement (excluding any facility which is permitted
under paragraphs (c) or (f) of Permitted Indebtedness and the transactions under paragraph (e) of Permitted Indebtedness that are
FX hedging transactions) that includes a loss-of-rating clause or a covenant or other provision regarding its financial ratios,
if applicable, that is not provided for in this Contract or is more favourable to the relevant financial creditor than any equivalent
provision of this Contract is to the Bank, the Borrower shall promptly inform the Bank and shall provide a copy of the more favourable
provision to the Bank. The Bank may request that the Borrower promptly executes an agreement to amend this Contract so as to provide
for an equivalent provision in favour of the Bank.
ARTICLE
8
Information and Visits
| 8.01 | Information concerning the Project |
The Borrower shall:
| (i) | the information in content and in form, and at the times, specified in Schedule A.2
or otherwise as agreed from time to time by the parties to this Contract; |
| (ii) | any such information or further document concerning the Project as the Bank may require to comply
with its obligations under the EFSI Regulation; |
| (iii) | any such information or further document concerning the financing, procurement, implementation,
operation and environmental matters of or for the Project as the Bank may reasonably require within a reasonable time; and |
| (iv) | any such other information delivered to any Accountant in relation to any valuation in accordance
with IPEV Valuation Standards, |
provided always that if such
information or document is not delivered to the Bank on time, and the Borrower does not rectify the omission within a reasonable
time set by the Bank in writing, the Bank may remedy the deficiency, to the extent feasible, by employing its own staff or a consultant
or any other third party, at the Borrower's expense and the Borrower shall provide such persons with all assistance necessary for
the purpose;
| (b) | submit for the approval of the Bank without delay any material change to the Project, also taking
into account the disclosures made to the Bank in connection with the Project prior to the signing of this Contract, in respect
of, inter alia, the price, design, plans, timetable or to the expenditure programme or financing plan for the Project; |
| (c) | promptly inform the Bank of: |
| (i) | any action or protest initiated or any objection raised by any third party or any genuine complaint
received by the Borrower or any Environmental Claim that is to its knowledge commenced, pending or threatened against it with regard
to environmental or other matters affecting the Project; and |
| (ii) | any fact or event known to the Borrower, which may substantially prejudice or affect the conditions
of execution or operation of the Project; |
| (iii) | a genuine allegation, complaint or information with regard to Illegal Activities related to the
Loan and/or Project; |
| (iv) | any non-compliance by it with any applicable Environmental Law; and |
| (v) | any suspension, revocation or modification of any Environmental Approval, |
and set out the action to
be taken with respect to such matters;
| (d) | provide to the Bank, if so requested: |
| (i) | a certificate of its insurers showing fulfilment of the requirements of Article 6.05(c); |
| (ii) | annually, a list of policies in force covering the insured property forming part of the Project,
together with confirmation of payment of the current premiums. |
| 8.02 | Information concerning the Borrower |
The Borrower shall:
| (i) | as soon as they become available but in any event within 180 days after the end of each of its
financial years the Group's audited consolidated annual report, balance sheet, profit and loss account and auditors report for
that financial year, and the unconsolidated annual report, balance sheet, profit and loss account of the Borrower, together with
a Compliance Certificate as set out in Schedule D.2 signed by two directors; |
| (ii) | as soon as they become publicly available but in any event within 120 days after the end of each
of the relevant accounting periods the Group's consolidated and Borrower's unconsolidated semi-annual or quarterly reports, balance
sheet and profit and loss account for the first half-year or each of the first three quarters of each of its financial years together
with a Compliance Certificate as set out in Schedule D.2 signed by two directors; |
| (iii) | on each Accounting Reference Date and on each date falling six months after an Accounting Reference
Date updates in form and substance satisfactory to the Bank on (1) all regulatory approvals relating to the Unyvero platform and
cartridges; (2) placements of the Unyvero platform; and (3) financial performance of the Group compared to the budget; and |
| (iv) | from time to time, such further information on its general financial situation as the Bank may
reasonably require or such certificates of compliance with the undertakings of Article 6 as the Bank may reasonably deem necessary; |
and
| (b) | inform the Bank immediately of: |
| (i) | any material alteration to its constitutional documents or shareholding structure and of any change
of ownership of 5% or more of its shares after the date of this Contract; |
| (ii) | any fact which obliges it to prepay any financial indebtedness or any European Union funding; |
| (iii) | any event or decision that constitutes or may result in a Prepayment Event; |
| (iv) | any intention on its part to grant any security over any of its assets in favour of a third party
except for those cases not prohibited by this Contract; |
| (v) | any intention on its part to relinquish ownership of any material component of the Project; |
| (vi) | any fact or event that is reasonably likely to prevent the substantial fulfilment of any obligation
of the Borrower under this Contract; |
| (vii) | any event listed in Article 10.01 having occurred or being threatened or anticipated; |
| (viii) | any investigations concerning the integrity of the members of the Borrower's Managing Directors,
other administrative body or managers; |
| (ix) | to the extent permitted by law, any material litigation, arbitration, administrative proceedings
or investigation carried out by a court, administration or similar public authority, which, to the best of its knowledge and belief,
is current, imminent or pending against the Borrower or its controlling entities or members of the Borrower's management bodies
in connection with Illegal Activities related to the Loan and/or the Project; |
| (x) | any measure taken by the Borrower pursuant to Article 6.05(f) of this Contract; |
| (xi) | any litigation, arbitration or administrative proceedings or investigation which is current, threatened
or pending and which if adversely determined is reasonably likely to result in a Material Adverse Change; or |
| (xii) | any Change in the Beneficial Ownership of the Borrower. |
The Borrower shall allow
the Bank and, when either required by the relevant mandatory provisions of European Union law or pursuant to the EFSI Regulation,
the competent European Union institutions including the European Court of Auditors, the European Commission, the European Anti-Fraud
Office, as well as persons designated by the foregoing to:
| (a) | visit the sites, installations and works comprising the Project; |
| (b) | interview representatives of the Borrower, any other member of the Group and/or any Guarantor,
and not obstruct contacts with any other person involved in or affected by the Project; and |
| (c) | conduct such on the spot audits and checks as they may wish and review the Borrower's, any other
member of the Group and/or each Guarantor's books and records in relation to the execution of the Project and to be able to take
copies of related documents to the extent permitted by the law. |
The Borrower shall provide
the Bank, or ensure that the Bank is provided, with all necessary assistance for the purposes described in this Article 8.03.
In the case of a genuine
allegation, complaint or information with regard to Illegal Activities related to the Loan and/or the Project, the Borrower shall
consult with the Bank in good faith regarding appropriate actions. In particular, if it is proven that a third party committed
Illegal Activities in connection with the Loan and/or the Project with the result that the Loan or the EFSI financing were misapplied,
the Bank may, without prejudice to the other provisions of this Contract, inform the Borrower if, in its view, the Borrower should
take appropriate recovery measures against such third party. In any such case, the Borrower shall in good faith consider the Bank's
views and keep the Bank informed.
| 8.04 | Disclosure and publication |
The Borrower acknowledges
and agrees that the Bank may:
| (i) | be obliged to communicate information relating to the Borrower and the Project to any competent
institution or body of the European Union in accordance with the relevant mandatory provisions of European Union law or pursuant
to the EFSI Regulation; and |
| (ii) | publish on its website or produce press releases containing information related to the financing
provided pursuant to this Contract with support of the EFSI, including the name, address and country of establishment of the Borrower,
the purpose of the financing and the type and amount of financial support received under this Contract. |
| 8.05 | Information required by an Accountant |
The Borrower shall promptly
provide any Accountant with any information and assistance it requires for the purposes of calculating the Market Capitalisation.
ARTICLE
9
Charges and expenses
| 9.01 | Taxes, duties and fees |
The Borrower shall pay all
Taxes, duties, fees and other impositions of whatsoever nature, including stamp duty and registration fees, arising out of the
execution or implementation of this Contract or any related document and in the creation, perfection, registration or enforcement
of any security for the Loan to the extent applicable.
The Borrower shall pay all
principal, interest, indemnities and other amounts due under this Contract gross without deduction of any national or local impositions
whatsoever; provided that, if the Borrower is obliged to make any such deduction, it will gross up the payment to the Bank so that
after deduction, the net amount received by the Bank is equivalent to the sum due.
The Borrower shall bear all
reasonable and documented charges and expenses, including professional, banking or exchange charges incurred in connection with
the preparation, execution, implementation, enforcement and termination of any Finance Document or any related document, any amendment,
supplement or waiver in respect of any Finance Document or any related document, and in the amendment, creation, management, enforcement
and realisation of any Guarantee and/or any security for the Loan. All legal fees incurred by the Bank in connection with the preparation,
execution, implementation of this Finance Contract are capped up to an amount referred in the letter dated 17 June 2016 signed
by the Borrower and the Bank.
| 9.03 | Increased costs, indemnity and set-off |
| (a) | The Borrower shall pay to the Bank any documented sums or expenses incurred or suffered by the
Bank as a consequence of the introduction of or any change in (or in the interpretation, administration or application of) any
law or regulation or compliance with any law or regulation made after the date of signature of this Contract, in accordance with
or as a result of which (i) the Bank is obliged to incur additional costs in order to fund or perform its obligations under this
Contract, or (ii) any amount owed to the Bank under this Contract or the financial income resulting from the granting of the Credit
or the Loan by the Bank to the Borrower is reduced or eliminated. |
| (b) | Without prejudice to any other rights of the Bank under this Contract or under any applicable law,
the Borrower shall indemnify and hold the Bank harmless from and against any loss incurred as a result of any payment or partial
discharge that takes place in a manner other than as expressly set out in this Contract. |
| (c) | The Bank may set off any matured obligation due from the Borrower under this Contract (to the extent
beneficially owned by the Bank) against any obligation (whether or not matured) owed by the Bank to the Borrower regardless of
the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank
may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. If either
obligation is unliquidated or unascertained, the Bank may set off in an amount estimated by it in good faith to be the amount of
that obligation. |
The Borrower shall, within
ten Business Days of demand, pay to any Accountant (or to the Bank for the account of such Accountant) the amount of all costs
and expenses (including legal and other fees) incurred by that Accountant in connection with the valuation of the Borrower pursuant
to Article 3.05.
ARTICLE
10
Events of Default
| 10.01 | Right to demand repayment |
The Borrower shall repay
all or part of the Loan (as requested by the Bank) forthwith, together with accrued interest (including any Deferred Interest)
and all other accrued or outstanding amounts under this Contract, upon written demand being made by the Bank in accordance with
the following provisions.
The Bank may make such demand
immediately:
| (a) | if any Obligor does not pay on the due date any amount payable pursuant to any Finance Document
at the place and in the currency in which it is expressed to be payable, unless (i) its failure to pay is caused by an administrative
or technical error or a Disruption Event and (ii) payment is made within three (3) Business Days of its due date; |
| (b) | if any information or document given to the Bank by or on behalf of any Obligor or any member of
the Group or any representation, warranty or statement made or deemed to be made by any Obligor or any member of the Group in or
pursuant to any Finance Document is or proves to have been incorrect, incomplete or misleading in any material respect; |
| (c) | if, following any default of any Obligor or any other member of the Group in relation to any loan,
or any obligation arising out of any financial transaction, other than the Loan, |
| (i) | any Obligor or any other member of the Group is required or is capable of being required or will,
following expiry of any applicable contractual grace period, be required or be capable of being required to prepay, discharge,
close out or terminate ahead of maturity such other loan or obligation; or |
| (ii) | any financial commitment for such other loan or obligation is cancelled or suspended; |
| (d) | if any Obligor or any member of the Group is unable to pay its debts as they fall due, or suspends
its debts, or makes or seeks to make a composition with its creditors; |
| (e) | if any corporate action, legal proceedings or other procedure or step is taken in relation to the
suspension of payments, a moratorium of any indebtedness, dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) or an order is made or an effective resolution is passed for the winding up of any Obligor
or any member of the Group, or if any Obligor or any member of the Group takes steps towards a substantial reduction in its capital,
is declared insolvent or ceases or resolves to cease to carry on the whole or any substantial part of its business or activities; |
| (f) | if an encumbrancer takes possession of, or a receiver, liquidator, administrator, administrative
receiver or similar officer is appointed, whether by a court of competent jurisdiction or by any competent administrative authority
or by any person, of or over, any part of the business or assets of any Obligor or any member of the Group or any property forming
part of the Project; |
| (g) | if any Obligor or any member of the Group defaults in the performance of any obligation in respect
of any other loan granted by the Bank or financial instrument entered into with the Bank; |
| (h) | if any Obligor or any member of the Group defaults in the performance of any obligation in respect
of any other loan made to it from the resources of the Bank or the European Union; |
| (i) | if any distress, execution, sequestration or other process is levied or enforced upon the property
of any Obligor or any property forming part of the Project and is not discharged or stayed within 14 (fourteen) days; |
| (j) | if a Material Adverse Change occurs, as compared with an Obligor's condition at the date of this
Contract; or |
| (k) | if it is or becomes unlawful for any Obligor to perform any of its obligations under any Finance
Document or any Finance Document is not effective in accordance with its terms or is alleged by any Obligor to be ineffective in
accordance with its terms. |
| 10.01B | Demand after notice to remedy |
The Bank may also make such
demand:
| (a) | if the Borrower fails to comply with any obligation under this Contract not being an obligation
mentioned in Article 10.01A or a Guarantor fails to comply with any obligation under a Guarantee; or |
| (b) | if any fact related to any Obligor or the Project stated in the Recitals materially alters and
is not materially restored and if the alteration either materially prejudices the interests of the Bank as lender to the Borrower
or adversely affects the implementation or operation of the Project, |
unless the non-compliance
or circumstance giving rise to the non-compliance is capable of remedy and is remedied within a reasonable period of time specified
in a notice served by the Bank on any Obligor.
Article 10.01 shall not restrict
any other right of the Bank at law to require prepayment of the Loan.
In case of demand under Article
10.01 in respect of any Tranche, the Borrower shall pay to the Bank the amount demanded together with a sum equal to the present
value of 0.15% (fifteen basis points) per annum calculated and accruing on the amount of principal due to be prepaid in the same
manner as interest would have been calculated and would have accrued, if that amount had remained outstanding according to the
original amortisation schedule of that Tranche, until the Maturity Date of that Tranche.
The value shall be calculated
at a discount rate equal to the Redeployment Rate applied as of each relevant Payment Date.
Amounts due by the Borrower
pursuant to this Article 10.03 shall be payable on the date of prepayment specified in the Bank's demand.
No failure or delay or single
or partial exercise by the Bank in exercising any of its rights or remedies under this Contract shall be construed as a waiver
of such right or remedy. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights or remedies
provided by law.
ARTICLE
11
Law and jurisdiction, miscellaneous
This Contract and any non-contractual
obligations arising out of or in connection with it shall be governed by the laws of England and Wales.
| (a) | The courts of England and Wales have exclusive jurisdiction to settle any dispute (a "Dispute")
arising out of or in connection with this Contract (including a dispute regarding the existence, validity or termination of this
Contract or the consequences of its nullity) or any non-contractual obligation arising out of or in connection with this Contract. |
| (b) | The parties agree that the courts of England and Wales are the most appropriate and convenient
courts to settle Disputes between them and, accordingly, that they will not argue to the contrary. |
| (c) | This Article 11.02 is for the benefit of the Bank only. As a result and notwithstanding Article
11.02(a), it does not prevent the Bank from taking proceedings relating to a dispute (including a dispute relating to the existence,
validity or termination hereof or any non-contractual obligation arising out of or in connection with this Contract) in any other
courts with jurisdiction. To the extent allowed by law, the Bank may take concurrent proceedings in any number of jurisdictions. |
Without prejudice to any
other mode of service allowed under any relevant law, the Borrower hereby irrevocably appoints Vistra (UK) Ltd., 3rd Floor ▇▇-▇▇
▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its agent of service for the purposes of accepting service on its behalf of
any writ, notice, order, judgement or other legal process. The Borrower agrees that failure by a process agent to notify it of
the process will not invalidate the proceedings concerned.
The Bank hereby appoints
The Securities Management Trust Limited of ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to be its agent for the purpose of accepting
service of legal process.
| 11.04 | Place of performance |
Unless otherwise specifically
agreed by the Bank in writing, the place of performance under this Contract, shall be the seat of the Bank.
| 11.05 | Evidence of sums due |
In any legal action arising
out of this Contract the certificate of the Bank as to any amount or rate due to the Bank under this Contract shall, in the absence
of manifest error, be prima facie evidence of such amount or rate.
A person who is not a party
has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the benefit of any term of this Contract.
This Contract constitutes
the entire agreement between the Bank and the Borrower in relation to the provision of the Credit hereunder, and supersedes any
previous agreement, whether express or implied, on the same matter.
If at any time any term of
this Contract is or becomes illegal, invalid or unenforceable in any respect, or this Contract is or becomes ineffective in any
respect, under the laws of any jurisdiction, such illegality, invalidity, unenforceability or ineffectiveness shall not affect:
| (a) | the legality, validity or enforceability in that jurisdiction of any other term of this Contract
or the effectiveness in any other respect of this Contract in that jurisdiction; or |
| (b) | the legality, validity or enforceability in other jurisdictions of that or any other term of this
Contract or the effectiveness of this Contract under the laws of such other jurisdictions. |
Any amendment to this Contract
shall be made in writing and shall be signed by the parties hereto.
This Contract may be executed
in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each counterpart is an
original, but all counterparts shall together constitute one and the same instrument.
ARTICLE
12
Final clauses
| 12.01 | Notices to either party |
The address and electronic
mail address (and the department or officer, if any, for whose attention the communication is to be made) of each party for any
communication to be made or document to be delivered under or in connection with this Contract is:
| For the Bank |
Attention: TMR
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Email: ▇▇▇-▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
Facsimile no: ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
|
| For Curetis GmbH |
Attention: Managing Directors and
cc to Corporate Legal
▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Facsimile no.: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇ |
| (a) | Any notice or other communication given under this Contract must be in writing and, unless otherwise
stated, may be made by letter, electronic mail and facsimile. |
| (b) | Notices and other communications for which fixed periods are laid down in this Contract or which
themselves fix periods binding on the addressee, may be made by hand delivery, registered letter, facsimile or by electronic mail.
Such notices and communications shall be deemed to have been received by the other party: |
| (i) | on the date of delivery in relation to a hand-delivered or registered letter; |
| (ii) | on receipt of transmission in relation to a facsimile; |
| (iii) | in the case of any electronic mail sent by the Borrower to the Bank, only when actually received
in readable form and only if it is addressed in such a manner as the Bank shall specify for this purpose; or |
| (iv) | in the case of any electronic mail sent by the Bank to the Borrower, when the electronic mail is
sent. |
| (c) | Any notice provided by the Borrower or any Obligor to the Bank by electronic mail shall: |
| (i) | mention the contract number ("FI nr") found on the cover page of this Contract in the
subject line; and |
| (ii) | be in the form of a non-editable electronic image (pdf, tif or other common non editable file format
agreed between the parties) of the notice signed by an authorised signatory with individual representation right or by two or more
authorised signatories with joint representation right of the Borrower or any Obligor as appropriate, attached to the electronic
mail. |
| (d) | Notices issued by the Borrower pursuant to any provision of this Contract shall, where required
by the Bank, be delivered to the Bank together with satisfactory evidence of the authority of the person or persons authorised
to sign such notice on behalf of the Borrower and the authenticated specimen signature of such person or persons. |
| (e) | Without affecting the validity of electronic mail or facsimile notices or communication made in
accordance with this Article 12.02, the following notices, communications and documents shall also be sent by registered letter
to the relevant party at the latest on the immediately following Business Day: |
| (ii) | revocation of a Disbursement Request according to Article 1.02C(b); and |
| (iii) | any notices and communication in respect of the deferment, cancellation, and suspension of a disbursement
of any Tranche, Market Disruption Event, Prepayment Request, Prepayment Notice, Event of Default, any demand for prepayment; and |
| (iv) | any other notice, communication or document required by the Bank. |
| (f) | The parties agree that any above communication (including via electronic mail) is an accepted form
of communication and shall constitute admissible evidence in court. |
| 12.03 | Demand after notice to remedy |
The Bank and the Borrower
shall promptly notify the other party in writing of any change in their respective communication details.
| (a) | Any notice or communication given under or in connection with this Contract must be in English. |
| (b) | All other documents provided under or in connection with this Contract must be: |
| (ii) | if not in English, and if so required by the Bank, accompanied by a certified English translation
and, in this case, the English translation will prevail. |
| 12.05 | Recitals and Schedules |
The Recitals and following
Schedules form part of this Contract:
| Schedule A |
Project Specification and Reporting |
| Schedule B |
Definition of EURIBOR |
| Schedule C |
Forms for Borrower |
| Schedule D |
Conditions Precedent and Certificates of the Borrower |
| Schedule E |
Existing Security |
| Schedule F |
PPI Examples |
|
|
|
| |
|
IN WITNESS WHEREOF the parties
hereto have caused this Contract to be executed in four originals in the English language.
At Luxembourg, this 12 December 2016
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