Exhibit 10.1
TERM LOAN AGREEMENT
Dated as of May 2, 1995
OXIS INTERNATIONAL, INC., a Delaware corporation ("OXIS"), BIOXYTECH
S.A., a French subsidiary of OXIS ("Bioxytech"), and SANOFI S.A. (the "Lender")
agree as follows:
W I T N E S S E T H
WHEREAS, the borrower of funds under this Agreement is OXIS
(hereinafter referred to as "Borrower"), and Bioxytech, which benefits
from the Advance (as defined below), is a party to this Agreement for the
purpose of guaranteeing its parent's obligations under this Agreement and
agreeing to make available its assets as part of the Collateral
(hereinafter defined) for the Advance; and
WHEREAS, OXIS is in need of cash and the Lender, which obtains raw
material supply from OXIS, is willing to accommodate OXIS on the terms
and conditions of this Agreement; and
WHEREAS, the parties are willing to enter into this Agreement with
the understanding that if definitive supply and licensing agreements by
and between OXIS and the Lender (hereinbelow provided for) are signed and
delivered, the Advance hereunder shall constitute a credit in favor of
the Lender, the same to be applied for offset under or in connection with
said supply and licensing agreements.
NOW, THEREFORE, in consideration of these premises and the further
agreements of the parties hereinbelow set forth, the parties agree with
each other as follows:
ARTICLE I AMOUNTS AND TERMS OF THE ADVANCE
SECTION 1.01 The Advance
The Lender agrees, on the terms and conditions hereinafter set forth, to
make an Advance (the "Advance") to Borrower upon full execution and delivery of
this Agreement in an aggregate amount equal to U.S.$600,000.00. Not later than
2:00 P.M. (New York City time) on the date of the Advance and upon fulfillment
of the applicable conditions set forth in Article II, the Lender will make the
Advance available to Borrower in same day funds at the time and place as
instructed by OXIS.
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SECTION 1.02 Interest and Repayment; Guaranty
(a) Borrower's Note. Borrower shall repay, and shall pay interest on,
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the unpaid principal amount of the Advance made thereto in accordance with a
promissory note of Borrower, in substantially the form of Exhibit A hereto (the
"Note"), evidencing the indebtedness resulting from the Advance and delivered to
the Lender pursuant to Article II.
(b) Bioxytech Guaranty. By signing this Agreement, Bioxytech, in
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consideration of a portion of the loan proceeds being applied to its debts,
hereby unconditionally and absolutely guarantees, to the extent permitted by
French law, the full, faithful and timely performance of all of OXIS'
obligations (whether now or hereafter existing) under this Agreement (the
"Obligations"), including, without limitation, its obligation to repay the
Advance (with accrued interest, if any) as and when the same shall become due
and payable under the terms of this Agreement. Bioxytech also agrees, to the
extent permitted by French law, to pay any and all expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by the Lender in
enforcing any rights under this Section 1.02(b). Without limiting the generality
of the foregoing, Bioxytech's liability shall extend to all amounts which
constitute part of the Obligations and would be owed by OXIS under this
Agreement and the Note but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving OXIS. Bioxytech guarantees, to the extent permitted by
French law, that the Obligations will be paid strictly in accordance with the
terms of this Agreement and the Note, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Lender with respect thereto. The obligations of Bioxytech
under this Section 1.02(b) are independent of the Obligations, and a separate
action or actions may, subject to the foregoing, be brought and prosecuted
against Bioxytech to enforce this guaranty, irrespective of whether any action
is brought against the Borrower or whether the Borrower is joined in any such
action or actions. The liability of Bioxytech under this guaranty shall be
absolute and unconditional, to the extent permitted under French law,
irrespective of:
(i) any lack of validity or enforceability of this Agreement, the
Note or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure from this Agreement or the Note,
including, without limitation, any increase in the Obligations resulting
from the extension of additional credit to the Borrower or any of its
subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds thereof,
to all or any of the Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Obligations or any
other assets of the Borrower or any of its subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its subsidiaries; or
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(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
This guaranty shall, to the extent permitted under French law, continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Obligations is rescinded or must otherwise be returned by the Lender
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
all as though such payment had not been made. Bioxytech hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Obligations and this guaranty and any requirement that the Lender
protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take action against the Borrower or any
other person or entity or any collateral.
SECTION 1.03 Optional Prepayments
Borrower may prepay the outstanding principal amount of the Advance made
thereto in whole or in part, together with accrued interest (if any is due) to
the date of such prepayment on the principal amount prepaid; provided, however,
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that each partial prepayment shall be in a principal amount not less than
$25,000.
SECTION 1.04 Payments and Computations
Borrower shall make payment hereunder and under any other Loan Document
(as hereinafter defined) not later than 2:00 P.M. (New York City time) on the
day when due in lawful money of the United States of America to the Lender c/o
Sanofi, Inc., 90 Park Avenue, New York, New York 10016 in same day funds or as
otherwise agreed by the Lender and Borrower. All computations of interest under
the Note shall be made by the Lender on the basis of the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable. Each determination by the Lender of an interest
rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
ARTICLE II CONDITIONS PRECEDENT TO THE ADVANCE
SECTION 2.01 The Lender's Conditions
The obligation of the Lender to make the Advance is subject to the
condition precedent that the Lender shall have received on or before the day of
the Advance the following, each dated such day, in form and substance
satisfactory to the Lender:
(a) The Note.
(b) A Security Agreement, duly executed by Borrower and
Bioxytech, in substantially the form of Exhibit B hereto (the "Security
Agreement", and together with this Agreement and the Note, collectively, the
"Loan Documents"), together with proper Financing Statements (Form UCC-l), duly
signed by Borrower, for all domestic jurisdictions as may be necessary or, in
the opinion of the Lender, desirable to perfect the security interests created
by the Security Agreement,
Borrower and Bioxytech make no representation or warranty to Lender that
Bioxytech can lawfully grant a security interest in Bioxytech's assets under
French law as applied to Bioxytech's
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circumstances; however, Borrower covenants that, promptly following receipt of
the Advance, it will take whatever additional steps Lender deems appropriate to
cause Bioxytech to grant to the Lender a security interest in Bioxytech's assets
and to perfect such security interest under French law, in each case to the
fullest extent permitted under French law.
(c) Certified copies of the resolutions of the Board of Directors
of Borrower and the Supervisory Board of Bioxytech approving each Loan Document
to which such entity is or will be a party, and of all documents evidencing
other necessary corporate or similar action with respect to each such Loan
Document.
(d) A certificate of the Secretary or an Assistant Secretary of
Borrower, in form and substance satisfactory to the Lender.
(e) Such other approvals, opinions or documents as the Lender may
reason ably request.
(f) A Waiver and Consent (as hereinafter defined), duly executed
by the parties.
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of Borrower
Borrower represents and warrants as follows:
(a) Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware.
(b) The execution, delivery and performance by Borrower of each
Loan Document to which it is or will be a party are within its corporate powers,
have been duly authorized by all necessary corporate action, do not contravene
(i) its charter or bylaws or (ii) law or any contractual restriction binding on
or affecting it, and do not result in or require the creation of any lien,
security interest or other charge or encumbrance (other than pursuant hereto)
upon or with respect to any of its properties. Neither Borrower nor Bioxytech
makes any warranty or representation regarding the validity or enforceability of
Bioxytech's guarantee provided under this Agreement; provided, that Borrower
covenants to cause Bioxytech to take such steps as are necessary to ratify
Bioxytech's participation in this Agreement as of this date, all in accordance
with applicable French law; provided further, however, if under applicable
French law such ratification is prohibited, Borrower shall notify the Lender of
such fact and take such further action regarding Bioxytech's participation in
this Agreement as shall be reasonably requested by Lender.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body that is
material is required for the due execution, delivery and performance by
Borrower of any Loan Document to which Borrower is or will be a party.
(d) This Agreement is, and each other Loan Document to which
Borrower or Bioxytech will be a party when delivered hereunder will be, a legal,
valid and binding obligation of Borrower, enforceable against it in accordance
with its terms, except as enforceability may be
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limited or affected by applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the rights of
creditors and except as enforceability may be limited by rules of law governing
specific performance, injunctive relief or other equitable remedies.
(e) There is no pending or threatened action or proceeding
affecting Borrower before any court, governmental agency or arbitrator, which
may materially adversely affect the financial condition or operations of
Borrower.
(f) No proceeds of any Advance will be used to acquire any
security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act, as amended, or otherwise subject to Section 13 thereof.
(g) Neither Borrower nor Bioxytech is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) OXIS has no subsidiaries except for Bioxytech S.A., which is a
party to this Agreement for the purposes hereinabove specified.
(i) The execution and delivery by ALTA-Berkeley L.P. II ("ALTA"), on
behalf of ALTA and the other Secured Parties (as defined in the Security
Agreement dated as of February 7, 1995 between ALTA and Innolion S.A., as
Security Agents, and OXIS) (collectively, the "Secured Parties"), of the Waiver
and Consent dated as of May 2, 1995 between ALTA and Sanofi (the "Waiver and
Consent"), have been duly authorized by all necessary corporate or similar
action.
(j) The Waiver and Consent is the legal, valid and binding
obligation of each of the Secured Parties enforceable against each of the
Secured Parties in accordance with its terms, except to the extent limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar law affecting the availability or enforcement of creditors'
rights generally or (ii) general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without limitation,
those relating to the availability of the remedy of specific performance or
injunctive relief or to concepts of materiality, reasonableness, good faith or
fair dealing.
ARTICLE IV COVENANTS OF BORROWER
SECTION 4.01 Affirmative Covenants
So long as the Note shall remain unpaid, Borrower will, unless the Lender
shall otherwise consent in writing:
(a) Compliance with Laws Etc. Comply, and cause Bioxytech to
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comply,in all material respects with all applicable laws, rules, regulations and
orders to the degree necessary to permit OXIS and Bioxytech to continue to
operate their respective businesses in the manner currently so operated.
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(b) Reporting Requirements. Furnish to the Lender:
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(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of OXIS
and to the extent not duplicated under (ii) below, unaudited, quarterly
balance sheets of OXIS and its subsidiaries as of the end of such
quarter and statements of income and retained earnings of OXIS and its
subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, certified in customary form
by the chief financial officer of OXIS;
(ii) promptly after the sending or filing thereof, copies of all
reports which such Borrower sends to any of its security holders, and
copies of all reports and registration statements which such Borrower or
any subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
(iii) as soon as possible (and, in all cases, within five business
days) after the occurrence of each Event of Default and each event which,
with the giving of notice or lapse of time or both, would constitute an
Event of Default, continuing on the date of such statement, a statement
of the chief financial officer of such Borrower setting forth details of
such Event of Default or event and the action which Borrower has taken
and proposes to take with respect thereto; and
(iv) such other information respecting the condition or
operations, financial or otherwise, of such Borrower or any of its
subsidiaries as the Lender may from time to time reasonably request;
provided, however, that all information not disclosed above pertaining
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to b/SOD and r/SOD (as such terms are defined below) shall be furnished
to the Lender only in connection with the good faith negotiations
between the parties under Section V; and provided further that, with to
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confidential or proprietary respect information, Borrower shall not be
obligated under this Section 4.01(b)(iv) to furnish such information to
the Lender until the Lender shall have executed and delivered a
confidentiality agreement with respect thereto, in substance reasonably
satisfactory to Borrower.
(c) Use of Proceeds. To the extent that OXIS shall use any funds
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from the Advance to pay salaries or similar obligations to its employees or
agents, OXIS shall pay all withholding and similar taxes related thereto with
funds from the Advance.
(d) Pledge of Bioxytech Ownership Interest. Borrower hereby
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agrees to pledge to Lender, in full compliance with French law and as soon as
practicable after the date hereof, all of Borrower's ownership interest in
Bioxytech. Borrower shall, promptly following the date of this Agreement,
cooperate fully with Lender in documenting the required instruments of pledge to
perfect Lender's security interest in the aforesaid Bioxytech share ownership.
(e) Further Documents. Execute deliver or cause to be executed
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and delivered to the Lender from time to time such security agreements,
financing statements, reaffirmations and consents and such other similar
documents, instruments or agreements (including, without limitation, security
agreements or similar documents with respect to the Collateral of Bioxytech in
proper form for filing and recordation in France), as the Lender may reasonably
request.
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SECTION 4.02 Negative Covenants
So long as the Note shall remain unpaid, Borrower will not, without the
written consent of the Lender:
(a) Liens. Etc. Create or suffer to exist, or permit any of its
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subsidiaries to create or suffer to exist, any lien, security interest or other
charge or encumbrance, or any other type of preferential arrangement, upon or
with respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its subsidiaries to assign, any right to receive
income, in each case if the effect thereof were to cause the Lender to lose its
first lien position on any of the Collateral under the Security Agreement;
provided, however, that, notwithstanding anything to the contrary, in no event
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shall Borrower create or suffer to exist, or permit any of its subsidiaries to
create or suffer to exist, any lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement, upon or with respect
to b/SOD or r/SOD or grant, or permit any of its subsidiaries to grant, any
license or licensing rights to any person or entity other than the Lender with
respect to b/SOD or r/SOD (unless OXIS and Lender fail to reach agreement on the
Supply and Licensing Agreements (as hereafter defined) referred to below in
Article V within the prescribed time frame set forth in such Article, after
which time OXIS, with prior notice to Lender, may seek and undertake all
appropriate alternative courses of action, subject to Lender's first lien rights
as hereinabove agreed).
(b) Dividends, Etc. Declare or pay any dividends, purchase or
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otherwise acquire for value any of its capital stock now or hereafter
outstanding, or make any distribution of assets to its stockholders as such, or
permit any of its subsidiaries to purchase or otherwise acquire for value any
stock of Borrower.
(c) Mergers, Etc. Except for a possible merger involving Therox
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(for which Lender grants its consent), merge or consolidate with or into, or,
outside the ordinary course of its business, convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
any of its material assets (whether now owned or hereafter acquired and
including, without limitation, any of its right, title or interest in or with
respect to b/SOD or r/SOD) to, or acquire all or substantially all of the
assets of, any person or entity, or permit any of its subsidiaries to do so,
without the Lender's prior written consent, which shall not be unreasonably
withheld.
ARTICLE V. COVENANTS OF THE LENDER AND BORROWER
SECTION 5.01 Supply and Licensing Agreements
Each of Borrower and the Lender shall use good faith efforts to execute
and deliver, or to cause the appropriate party to execute and deliver, as the
case may be, as soon as practicable after the date hereof, but in no event later
than June 30, 1995, on terms reasonably satisfactory to OXIS and the Lender, the
following agreements (collectively, the "Supply and Licensing Agreements"):
(a) bulk supply agreement pursuant to which pharmaceutical
grade bovine superoxide dismutase ("b/SOD") will be supplied to the Lender; and
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(b) a license agreement pursuant to which the Lender will be
provided with, among other things, the proprietary processes and know-how to
manufacture b/SOD and the right to manufacture, market and sell b/SOD; and
(c) a license agreement pursuant to which the Lender will be
provided with, among other things, the proprietary processes and know-how to
manufacture recombinant human superoxide dismutase ("r/SOD") and the right to
manufacture, market and sell r/SOD.
SECTION 5.02 Limitations
The obligations of the Lender and Borrower to act in good faith under
Section 5.01 shall continue throughout the term of this Agreement, subject to
the following:
(a) If the Note is paid in full, the parties may, but shall not
be required to, continue negotiating agreement on the Supply and Licensing
Agreements.
(b) If OXIS is voluntarily, or involuntarily, placed in
bankruptcy under the United States bankruptcy laws, either OXIS or the Lender
may cease further negotiations with respect to the Supply and Licensing
Agreements.
(c) If after this date Lender enters into any agreement with
OXIS or Bioxytech, whereby Lender owes monies to either, such amounts due and
owing thereunder at such time shall be applied as a credit against the amount of
the Advance (first against accrued interest, if any, and then against
principal), provided sums are still outstanding and payable under the Note and
OXIS is not then in bankruptcy as aforesaid and, in such case, if such amounts
for which Lender is obligated at least equal the amount of the Advance (plus
accrued interest if any) then all sums owed under this Loan Agreement shall be
deemed paid and this Agreement shall be fully performed and cease. Borrower, in
the case of any such set off and application, agrees to promptly notify Lender
thereof, provided that failure to give such notice shall not affect the validity
of such set off and application.
ARTICLE VI. EVENTS OF DEFAULT
SECTION 6.01 Events of Default
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) Borrower shall fail to pay any principal of, or interest on,
the Note when due; or
(b) Any representation or warranty made by or for Borrower under
any Loan Document shall prove to have been incorrect in any material respect
when made and shall remain incorrect five days after written notice thereof
shall have been given to Borrower by the Lender; or
(c) Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Sections 4.01(b)(iii), 4.01(c), 4.02, or 5.01
or (ii) any other material term, covenant or agreement contained in any Loan
Document on its part to be performed or observed
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and such failure shall remain unremedied for 10 days after written notice
thereof shall have been given to such Borrower by the Lender; or
(d) Borrower or any of its subsidiaries shall fail to pay any of
their respective debts (other than debt evidenced by the Note) when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise),
if the failure to make such payment has the effect of causing the Lender to
lose its first priority lien position in any of the Collateral, subject only to
the following (the "Prior Liens"): the valid and perfected lien existing as of
the date hereof in favor of United States National Bank of Oregon, including its
lien which Borrower asserts is perfected on the Blue Bonnet CD; the security
interest existing as of the date hereof in favor of Alta-Berkeley L.P. II,
Innolion S.A., Sofinnova Capital F.C.P.R., Sofinnova S.A. and Finovelec S.A.,
in certain of Borrower's clinical diagnostic products and certain assets related
thereto (which security interest, by the terms of the Waiver and Consent, is
subordinated in favor of Lender); and the valid and perfected liens currently
established under French law; or
(e) Borrower makes a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against Borrower seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property; or Borrower shall take any corporate
or similar action to authorize any of the actions set forth above in this
subsection (e); or
(f) The Security Agreement after delivery thereof shall for any
reason, except to the extent permitted by the terms thereof, cease to create a
valid and perfected first priority security interest in Borrower's assets, as
therein agreed, in any of the Collateral purported to be covered thereby (the
"Collateral"), subject only to the Prior Liens; or
(g) The Collateral comprising Borrower's assets, in whole or
part, is seized or levied upon under any legal or governmental process against
Borrower or against the Collateral; or
(h) The loss of, substantial damage to, or destruction of, any
material portion of the Collateral comprising Borrower's assets;
then, and in any such event, the Lender may, by notice to Borrower, declare the
Note, all interest thereon and all other amounts payable under this Agreement or
any other Loan Document to be forthwith due and payable, whereupon the Note, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Borrower; provided, however, that in the
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event of an actual or deemed entry of an order for relief with respect to
Borrower under the Federal Bankruptcy Code, the Note, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower.
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ARTICLE VII. MISCELLANEOUS
SECTION 7.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or the Note,
nor consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 7.02 Notices, Etc.
All notices and other communications provided for hereunder shall be in
writing (including telecopies or telegraphic communication) and mailed,
telecopied or telegraphed or delivered, if to OXIS and/or Bioxytech, at the
address of OXIS at 6040 North Cutter Circle, Suite 317, Portland, OR 97217,
Attention: President, telecopier no. (503) 283-4058; with copy to Bioxytech, in
the case of notice involving Bioxytech, at its address at 2 av. des Coquelicots,
94365 Bonneuil-Sur-Marne, France, Attention: President, telecopier no.
011-331-49800166; and if to the Lender, at its address at 32-34 rue Marbeuf,
75008 Paris, France, Attention: President, telecopier no. 011-331-53774133, with
a copy to Sanofi Winthrop, Inc., 90 Park Avenue, New York, NY 10016, Attention:
Vice President and General Counsel, telecopier no. (212) 551-4919; or, as to any
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall, when
mailed, telecopied or telegraphed, be effective when deposited in the mails,
telecopied or delivered to the telegraph company, respectively, except that
notices to the Lender pursuant to the provisions of Article I shall not be
effective until received by the Lender.
SECTION 7.03 No Waiver; Remedies
No failure on the part of the Lender to exercise, and no delay in
exercising, any right under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right. The remedies provided in the Loan Documents are cumulative and not
exclusive of any remedies provided by law.
SECTION 7.04 Accounting Terms
All accounting terms not specifically defined herein shall be construed
in accordance with United States generally accepted accounting principles
consistently applied, except as otherwise stated herein.
SECTION 7.05 Costs, Expense and Taxes
Borrower agrees to pay on demand all costs and expenses in connection
with the preparation, execution, delivery, filing, recording, administration and
modification and amendment, if any, of the Loan Documents and the other
documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Lender with respect thereto and with respect to advising the Lender as
to its rights and responsibilities under the Loan Documents, provided, however,
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that for purposes of OXIS' reimbursement obligation, such outside counsel fees
shall not exceed $5,000. Should the Lender,
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OXIS or Bioxytech institute any action to enforce this Agreement or any of its
provisions, the parties not prevailing in such action shall pay all reasonable
counsel fees and expenses incurred therein as shall be determined by the Court
or Tribunal having jurisdiction in the matter. In addition, Borrower shall pay
any and all stamp and other taxes and costs payable in connection with the
execution, delivery, filing and recording of the Loan Documents and the other
documents required to be delivered under the Loan Documents, and agree to save
the Lender harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or failing to pay such taxes and costs.
SECTION 7.06 Right of Set-off
The Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any indebtedness
at any time owing by the Lender to or for the credit or the account of either of
Borrower or any of their respective subsidiaries against any and all of the
obligations of Borrower now or hereafter existing under the Loan Documents,
irrespective of whether or not the Lender shall have made any demand under such
Loan Document and although such obligations may be unmatured. The Lender agrees
promptly to notify Borrower after any such set-off and application, provided
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that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Lender may have.
SECTION 7.07 Binding Effect
This Agreement shall be binding upon and inure to the benefit of Borrower
and the Lender and Bioxytech and their respective successors and assigns, except
that neither Borrower nor Bioxytech shall have the right to assign any of their
respective rights hereunder or any interest herein (except as permitted under
Section 4.02(c)) without the prior written consent of the Lender, which consent
shall not be unreasonably withheld.
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SECTION 7.08 Governing Law
This Agreement and the Note shall be governed by, and construed in
accordance with, the laws of the State of Oregon.
SECTION 7.09 Severability
Invalidation of any of the provisions contained in this Agreement, or of
the application thereof to any party (e.g. Bioxytech), by judgment or court
order or other legal proceedings, shall not affect any of the other provisions
hereof or the application thereof to any other party or circumstances and the
same shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
OXIS INTERNATIONAL, INC.
By /s/ Ray R. Rogers
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Title Chairman of the Board of Directors
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BIOXYTECH S.A.
By /s/ Anna D. Barker
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Supervisory Board Vice President
LENDER:
SANOFI S.A.
By /s/ Stevenson E. Ward
----------------------
Title Attorney-in-Fact
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EXHIBIT A
PROMISSORY NOTE
$600,000 Dated: May 4, 1995
FOR VALUE RECEIVED, the undersigned, OXIS International, Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of Sanofi
S.A. (the "Lender") the principal sum of U.S.$600,000 on the date which is one
year from this date. The Borrower shall pay interest on the principal amount
hereof from time to time outstanding after the earlier to occur of (a) the date
six months from this date, or (b) the date of the first occurrence of an Event
of Default (as defined in the Loan Agreement), until such principal amount is
paid in full. Interest shall be payable on the final day when such principal
amount becomes due, at a fluctuating interest rate per annum in effect from
time to time equal at all times to 2% per annum (4% per annum from and after
said Event of Default) above the rate of interest announced publicly by
Citibank, N.A., in New York, New York, from time to time as its prime rate (the
"Prime Rate"). Each change in the fluctuating interest rate hereunder shall take
effect simultaneously with the corresponding change in the Prime Rate.
Both principal and interest are payable in lawful money of the United
States of America to the Lender c/o Sanofi, Inc., 90 Park Avenue, New York, New
York 10016, in same-day funds or as otherwise agreed by the Lender and the
Borrower. All payments made on account of the principal amount hereof shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is the Note referred to in, and is entitled to the
benefits of, the Term Loan Agreement, dated as of May 2, 1995 (the "Loan
Agreement"), between the Borrower, Bioxytech S.A., and the Lender, and the
Security Agreement (as defined in the Loan Agreement). The Loan Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
OXIS INTERNATIONAL, INC.
By
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Title
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