constitute but one and the same instrument.
8.12 No Usury. Regardless of any other provision of this Agreement,
the Note or in any other Loan Document, if for any reason the effective interest
should exceed the maximum lawful interest, the effective interest shall be
deemed reduced to, and shall be, such maximum lawful interest, and (a) the
amount which would be excessive interest shall be deemed applied to the
reduction of the principal balance of the Note and not to the payment of
interest, and (b) if the Loan evidenced by the Note have been or is thereby paid
in full, the excess shall be returned to the party paying same, such application
to the principal balance of the Note or the refunding of excess to be a complete
settlement and acquittance thereof.
8.13 Cross-References. References to Sections and Schedules herein
shall be construed as referring to the Sections and Schedules of this Agreement,
unless otherwise stated.
[Remainder of Page Intentionally Left Blank]
12
In Witness Whereof, the parties hereto have caused this Loan Agreement to
be duly executed as of the day and year first above written.
LENDER:
LEO PHARMA A/S
By:
/s/ Gitte P. Aabo
Name:
Gitte P. Aabo
Title:
President and Chief Executive Officer
By:
/s/ John Mehlbye
Name:
John Mehlbye
Title:
Executive Vice-President, Plants & Manufacturing
[Signature Page to Loan Agreement]
BORROWER:
PEPLIN, INC.
By:
/s/ Thomas Wiggans
Name:
Thomas Wiggans
Title:
Chief Executive Officer
[Signature Page to Loan Agreement]
Exhibit A
Wire Instructions
Acct Name: Peplin Ltd
Bank: Commonwealth Bank, 48 Martin Place Sydney, Australia
SWIFT code: CTBAAU2S
Acct No.: 100617627USD1156
A-1
Exhibit B
Form of Unsecured Promissory Note
THIS INSTRUMENT AND THE INDEBTEDNESS, RIGHTS AND OBLIGATIONS EVIDENCED HEREBY
AND ANY LIENS OR OTHER SECURITY INTERESTS SECURING SUCH RIGHTS AND OBLIGATIONS
ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED FROM
TIME TO TIME, THE "SUBORDINATION AGREEMENT") DATED AS OF SEPTEMBER 2, 2009, BY
AND AMONG THE SUBORDINATED CREDITORS IDENTIFIED THEREIN AND GENERAL ELECTRIC
CAPITAL CORPORATION ("GECC") IN ITS CAPACITY AS AGENT FOR CERTAIN LENDERS
(TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, "SENIOR CREDITOR AGENT"), TO CERTAIN
INDEBTEDNESS, RIGHTS, AND OBLIGATIONS OF PEPLIN LIMITED (ACN 090 819 275),
PEPLIN, INC. AND THE GUARANTORS PARTY THERETO, TO SENIOR CREDITOR AGENT AND
SENIOR CREDITOR (AS DEFINED THEREIN) AND LIENS AND SECURITY INTERESTS OF SENIOR
CREDITOR AGENT SECURING THE SAME ALL AS DESCRIBED IN THE SUBORDINATION
AGREEMENT; AND EACH HOLDER AND TRANSFEREE OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF APPLICABLE STATES.
UNSECURED PROMISSORY NOTE
September 2, 2009
Emeryville, California
For value received, the receipt and sufficiency of which are hereby
acknowledged, Peplin, Inc., a Delaware corporation ("Borrower"), hereby promises
to pay to the order of Leo