Exhibit 8
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REVOLVING LINE OF CREDIT AGREEMENT
by and between
BIOTIME, INC.
as "Borrower"
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as "Lender"
Dated as of March 27, 2001
TABLE OF CONTENTS
0.1 GENERAL DEFINITIONS..............................................1
0.2 DRAWS AND DISBURSEMENTS..........................................2
0.3 TERMS OF PAYMENT.................................................4
0.4 WARRANT..........................................................5
0.5 EVENTS OF DEFAULT................................................5
0.6 REMEDIES ON DEFAULT..............................................6
0.7 REPRESENTATIONS AND WARRANTIES OF BORROWER.......................6
0.8 AFFIRMATIVE COVENANTS............................................8
0.9 FEES AND CHARGES OF ATTORNEYS AND OTHERS.........................9
0.10 MAXIMUM PERMITTED INTEREST......................................10
0.11 GOVERNING LAW...................................................10
0.12 SUCCESSORS AND ASSIGNS..........................................10
0.13 ENTIRE AGREEMENT; AMENDMENT.....................................10
0.14 SURVIVAL........................................................10
0.15 NOTICES.........................................................10
0.16 DELAYS AND OMISSIONS............................................11
0.17 RULES OF CONSTRUCTION...........................................11
0.18 SEVERABILITY....................................................11
0.19 COUNTERPARTS....................................................12
REVOLVING LINE OF CREDIT AGREEMENT
This Revolving Line of Credit Agreement ("Credit Agreement") is made and entered
into as of March 27, 2001, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Lender"), and
BioTime, Inc., a California corporation ("Borrower").
RECITALS
Borrower has requested a credit facility consisting of a revolving line of
credit, and Lender is willing to make the requested credit facility to Borrower,
but only upon the terms, and subject to the conditions, contained herein.
AGREEMENT
Now, therefore, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
0.1 GENERAL DEFINITIONS. The following words shall have the following
meanings:
0.1.1 "BUSINESS DAY" means any day that is not a Saturday, a
Sunday, or a day on which banks are required, or permitted, to be closed in the
State of New York.
0.1.2 "CREDIT FACILITY" means the right of Borrower to borrow
up to $1,000,000 from Lender under the terms and conditions of this Credit
Agreement and the Note.
0.1.3 "DEBTOR RELIEF LAW" means the Bankruptcy Code of the
United States of America, as amended, or any other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief law affecting the rights of
creditors generally.
0.1.4 "EVENT OF DEFAULT" or "EVENTS OF DEFAULT" means any of
the events specified in Section 5, 2.
0.1.5 "LOAN" means the loans made by Lender to Borrower
pursuant to this Credit Agreement, and evidenced by the Note.
0.1.6 "LOAN DOCUMENTS" means this Credit Agreement, the Note,
the Warrant Agreement, and all other agreements, instruments, and documents in
favor of Lender, now or hereafter executed by or on behalf of Borrower and
delivered to Lender in connection with this Credit Agreement or in connection
with any of the transactions contemplated hereby.
0.1.7 "MATURITY DATE" means the earlier of (i) March 31, 2002,
and (ii) such date on which Borrower shall have received an aggregate of
$2,000,000 through (A) the sale of capital stock, (B) the collection of license
fees, signing fees, milestone fees, or similar fees under Borrower's Exclusive
License Agreement with ▇▇▇▇▇▇ Laboratories, Exclusive License Agreement with
Horus, B.V., or under any other present or future agreement pursuant to which
Borrower grants one or more licenses to use Borrower's patents or technology,
(C) funds borrowed from other lenders, or (D) any combination of sources under
clauses (A) through (C).
0.1.8 "NOTE" means the promissory note, of even date, in the
form attached as EXHIBIT A, evidencing the Loan to be executed concurrently with
this Credit Agreement.
0.1.9 "WARRANT" means the stock purchase warrant issued under
the Warrant Agreement attached as EXHIBIT B, entitling the holder thereof to
purchase common shares of the Borrower.
0.2 DRAWS AND DISBURSEMENTS.
0.2.1 MAXIMUM LOAN AMOUNT. On the terms and conditions set
forth in this Credit Agreement, Lender shall make available to Borrower the
Credit Facility, as a revolving line of credit in a principal amount not to
exceed at any one time One Million Dollars ($1,000,000), less all amounts of
principal prepaid or required to be prepaid under Section 3.2.1 of this Credit
Agreement (the "Maximum Loan Amount").
0.2.2 DRAW PERIOD. Borrower may request from Lender advances
of funds ("Draws") under the Credit Facility from the date of this Agreement
until March 1, 2002 (the "Draw Period"). As amounts drawn by Borrower hereunder
are repaid, they may be reborrowed subject to the terms and conditions of this
Credit Agreement; provided, that at no time shall the aggregate principal amount
of Loans outstanding under this Credit Agreement exceed the Maximum Loan Amount.
The Draw Period may be terminated by Borrower at any time by written notice to
Lender. Subject to the terms and conditions of this Credit Agreement, and
provided that no Event of Default has occurred, Lender shall make advances to
Borrower upon request as provided in this Section 2. Upon the occurrence of an
Event of, one of Lender's remedies includes Lender's right to terminate the Draw
Period and Borrower's right to make Draws under this Credit Agreement.
0.2.3 INCREMENTS. Draws must be in increments of not less than
One Hundred Thousand Dollars ($100,000), or the remaining amount available under
the Credit Facility, whichever is less.
0.2.4 USE OF FUNDS. All funds borrowed under this Credit
Agreement will be used as working capital to pay Borrower expenses arising in
the ordinary course of business.
0.2.5 DISBURSEMENT PROCEDURES.
2.5.1 Borrower hereby appoints its Chief Executive
Officer, President, and Chief Financial Officer as the officers authorized to
make Draws under this Credit Agreement during the Draw Period. Any one of such
officers (the "Authorized Officers") is authorized to make Draws. Lender, at its
sole option, may require that all requests for Loan funds be in writing, signed
by an Authorized Officer, in a form acceptable to Lender. Facsimile documents
may be accepted by Lender as originals. Any Draw by an Authorized Officer shall
constitute an ongoing representation and warranty by Borrower that at the time
of request for or payment of any Draw no Event of Default has occurred.
2.5.2 Draws shall be paid according to the Authorized
Officer's instructions, except that checks representing Loan funds shall always
be made payable to Borrower, and wire transfers shall only be permitted if
Borrower has authorized payment into the account into which the funds are to be
deposited. The appointment of the above-named Authorized Officer(s) shall remain
in full force and effect until written notice of revocation of appointment
signed by the Chief Executive Officer or Chief Financial Officer of Borrower has
been received by Lender.
2.5.3 Lender shall advance Loan funds available under
the Credit Facility in accordance with Borrower's Draws within four (4) Business
Days after the receipt of the Draw.
2.5.4 Each Draw shall be accompanied by the
certificates required by Section 2.6.
2.5.5 Borrower shall indemnify and hold Lender
harmless from loss or liability of any kind arising from or related to any
action or inaction taken by Lender in good faith in reliance upon instructions
received from any Authorized Officer.
0.2.6 CONDITIONS PRECEDENT. The following conditions must be
satisfied before Lender shall be obligated to disburse Loan funds to Borrower
pursuant to a Draw:
2.6.1 DUE EXECUTION. Lender shall have received duly
originals of this Credit Agreement and all other Loan Documents.
2.6.2 APPROVALS. Lender shall have received evidence
satisfactory to it that all consents and approvals which are necessary for, or
required as a condition of, the validity and enforceability of this Credit
Agreement and all other Loan Documents have been obtained and are in full force
and effect.
2.6.3 REPRESENTATIONS AND WARRANTIES CORRECT. All of
Borrower's representations and warranties contained in this Credit Agreement and
in any other Loan Document shall be true and correct in all material respects on
the date the Loan funds are disbursed, and Borrower shall have delivered to
Lender a certificate executed by an Authorized Officer to such effect.
2.6.4 NO EVENT OF DEFAULT. No Event of Default shall
have occurred, and Borrower shall have delivered to Lender a certificate
executed by an Authorized Officer to such effect.
2.6.5 INDEPENDENT VERIFICATION. Borrower must provide
for Lender's review and acceptance such documentation as may be required by
Lender to ensure Borrower is in compliance with the terms and conditions of this
Credit Agreement, including, without limitation, resolutions of Borrower's board
of directors or a duly constituted and authorized committee thereof, certified
by the secretary or an assistant secretary of the corporation, authorizing the
execution and delivery of this Agreement and the other Loan Documents and
performance of Borrower's obligations hereunder and thereunder.
2.6.6 WARRANT. Prior to the initial Draw under this
Credit Agreement, Borrower must have executed the Warrant Agreement and issued
the Warrant to Lender.
2.6.7 CLOSING COSTS. Borrower must have paid all
attorneys' fees incurred by Lender in connection the preparation, execution, and
delivery of the Loan Documents, and all reports and notices required to be filed
by Lender or its affiliates under the Securities Exchange Act of 1934, as
amended, in connection with this Agreement and Lender's receipt of the Warrant.
0.3 TERMS OF PAYMENT.
0.3.1 INTEREST. Interest shall accrue and be payable at the
rate of 10% per annum on the outstanding principal balance of the Loan. Interest
shall accrue from the date of each disbursement of principal pursuant to a Draw.
Accrued interest shall be paid with principal on the Maturity Date. Interest
will be charged on that part of outstanding principal of the Loan which has not
been paid and shall be calculated on the basis of a 360-day year and a 30-day
month.
0.3.2 PAYMENT OF PRINCIPAL. The outstanding principal balance
of the Loan, together with accrued interest, shall be paid in full on the
Maturity Date.
3.2.1 MANDATORY PREPAYMENT OF PRINCIPAL. In the event
that Borrower receives, in the aggregate, an amount of funds in excess of
$1,000,000 but less than $2,000,000 from (A) the sale of capital stock, (B) the
collection of license fees, signing fees, milestone fees, or similar fees under
Borrower's Exclusive License Agreement with ▇▇▇▇▇▇ Laboratories, Exclusive
License Agreement with Horus, B.V., or under any other present or future
agreement pursuant to which Borrower grants one or more licenses to use
Borrower's patents or technology, (C) funds borrowed from other lenders, or (D)
any combination of sources under clauses (A) through (C), Borrower shall use the
funds in excess of $1,000,000 to prepay principal, plus accrued interest, within
two business days after such funds are received by Borrower, and the amount of
principal so prepaid shall reduce the Maximum Loan Amount.
3.2.2 OPTIONAL PREPAYMENT OF PRINCIPAL. Borrower may
prepay principal, with accrued interest, at any time and the amount of principal
so prepaid shall be available for further Draws by Borrower during the Draw
Period to the extent that the prepayment of principal was not required under
Section 3.2.1.
0.3.3 DEFAULT INTEREST RATE; LATE PAYMENT CHARGE. In the event
that any payment of principal or interest is not paid within five (5) days from
on the date on which the same is due and payable, such payment shall continue as
an obligation of the Borrower, and interest thereon from the due date of such
payment and interest on the entire unpaid balance of the Loan shall accrue until
paid in full at the lesser of (i) fifteen percent (15%) per annum, or (ii) the
highest interest rate permitted under applicable law (the "Default Rate"). From
and after the Maturity Date or upon acceleration of the Note, the entire unpaid
principal balance of the Loan with all unpaid interest accrued thereon, and any
and all other fees and charges then due at such maturity, shall bear interest at
the Default Rate.
0.3.4 DATE OF PAYMENT. If the date on which a payment of
principal or interest on the Loan is due is a day other than a Business Day,
then payment of such principal or interest need not be made on such date but may
be made on the next succeeding Business Day.
0.3.5 APPLICATION OF PAYMENTS. All payments shall be applied
first to costs of collection, next to late charges or other sums owing Lender,
next to accrued interest, and then to principal, or in such other order or
proportion as Lender, in its sole discretion, may determine.
0.3.6 CURRENCY. All payments shall be made in United States
Dollars.
0.4 WARRANT. As consideration for Lender making Credit Faculty
available to Borrower, Borrower will issue and deliver Lender a Warrant to
purchase fifty thousand (50,000) common shares, no par value of Borrower. The
exercise price of the Warrant will be $8.31.
0.5 EVENTS OF DEFAULT. The following shall constitute Events of
Default: (a) the default of Borrower in the payment of any interest or principal
due under this Credit Agreement or the Note; (b) the failure of Borrower to
perform or observe any other term or provision of, or covenant, agreement, or
obligation under, this Credit Agreement or any other Loan Document; (c) any act,
omission, or other event that constitutes an "Event of Default" under the Note;
(d) any representation or warranty of Borrower contained in this Credit
Agreement or in any other Loan Document, or in any certificate delivered by
Borrower pursuant to this Credit Agreement or any other Loan Document, is false
or misleading in any material respect when made or given; (e) Borrower becoming
the subject of any order for relief in a proceeding under any Debtor Relief Law;
(f) Borrower making an assignment for the benefit of creditors; (g) Borrower
applying for or consenting to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer for it or
for all or any part of its property or assets; (h) the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar
officer for Borrower, or for all or any part of the property or assets of
Borrower, without the application or consent Borrower if such appointment
continues undischarged or unstayed for sixty (60) calendar days; (i) Borrower
instituting or consenting to any proceeding under any Debtor Relief Law with
respect to Borrower, or all or any part of its property or assets, or the
institution of any similar case or proceeding without the consent of Borrower,
if such case or proceeding continues undismissed or unstayed for sixty (60)
calendar days; (j) the dissolution or liquidation of Borrower, or the winding-up
of the business or affairs of Borrower; (k) the taking of any action by Borrower
to initiate any of the actions described in clauses (f) through (j) of this
paragraph; (l) the issuance or levy of any judgment, writ, warrant of attachment
or execution or similar process against all or any material part of the property
or assets of Borrower if such process is not released, vacated or fully bonded
within sixty (60) calendar days after its issue or levy; or (m) any breach or
default by Borrower under its Exclusive License Agreement with ▇▇▇▇▇▇
Laboratories, its Exclusive License Agreement with Horus, B.V., or under any
loan agreement, promissory note, or other instrument evidencing indebtedness
payable to a third party.
0.6 REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, at
Lender's option, all unpaid principal and accrued interest, and all other
amounts payable under this Credit Facility and any other Loan Document shall
become immediately due and payable without presentment, demand, notice of
non-payment, protest, or notice of non-payment. Lender also shall have all other
rights, powers, and remedies available under this Credit Agreement and the Note
or any other Loan Document, or accorded by law or at equity. All rights, powers,
and remedies of Lender may be exercised at any time by Lender and from time to
time after the occurrence of an Event of Default. All rights, powers, and
remedies of Lender in connection with this Credit Agreement and the Note and any
Loan Document are cumulative and not exclusive and shall be in addition to any
other rights, powers, or remedies provided by law or equity.
0.7 REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower represents and
warrants to Lender the following:
0.7.1 ORGANIZATION; CAPITALIZATION. Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
state of California and has all requisite corporate power and authority to own
its property and to carry on its business as now being conducted.
0.7.2 AUTHORITY; ENFORCEABILITY. Borrower has the power and
authority to execute and deliver this Credit Agreement and each of the other
Loan Documents, and to perform all of Borrower's obligations under this Credit
Agreement and the other Loan Documents. This Credit Agreement and each of the
other Loan Agreements is the valid and binding agreement and obligation of
Borrower, enforceable in accordance with its respective terms, except to the
extent limited by any bankruptcy, insolvency, or similar law affecting the
rights of creditors generally. There are no corporate, contractual, statutory,
regulatory, judicial, or other restrictions of any kind upon the power and
authority of Borrower to execute and deliver this Credit Agreement or any other
Loan Document, and to consummate the transactions contemplated by this Credit
Agreement and the other Loan Documents, including, without limitation: (a) the
payment of all principal and interest that may become due on the Loan; and (b)
the issuance of the Warrant and common shares issuable upon the exercise of the
Warrant. No action, approval or consent by, or notice to or filing with, any
federal, state, municipal or other governmental department, commission, agency,
regulatory authority, or court is necessary to make this Credit Agreement or the
other Loan Documents the valid agreements binding upon Borrower in accordance
with their respective terms, or to consummate the transactions contemplated by
this Credit Agreement and the other Loan Documents.
0.7.3 NO CONFLICT. The execution and delivery of this Credit
Agreement and the other Loan Documents, and the consummation of the transactions
contemplated by this Credit Agreement and the other Loan Documents, do not and
will not (a) violate any provisions of (i) any rule, regulation, statute, or
law, or (ii) the terms of any order, writ or decree of any court or judicial or
regulatory authority or body, or (iii) the Articles of Incorporation or Bylaws
of Borrower, and (b) conflict with or result in a breach of any condition or
provision or constitute a default under or pursuant to the terms of any
contract, mortgage, lien, lease, agreement, debenture or instrument to which
Borrower or any Subsidiary is a party, or which is or purports to be binding
upon Borrower, any Subsidiary, or upon any of their respective properties, and
(c) result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets or properties of Borrower or any Subsidiary.
0.7.4 WARRANT AND WARRANT SHARES. The Warrant, when issued
pursuant to this Credit Agreement, will be a duly authorized, valid, and binding
obligation of Borrower, enforceable in accordance with its terms. When issued
and sold upon the exercise of the Warrant in accordance with its terms, the
common shares of the Borrower will be validly issued and outstanding, fully paid
and non-assessable.
0.7.5 ACCURACY OF INFORMATION. Borrower has delivered to
Lender a copy of Borrower's financial statements for the year ended on December
31, 2000, as will be included in its Form 10-K for such fiscal year, its annual
report on Form 10-K for the fiscal year ended December 31, 1999, and quarterly
report on Form 10-Q for the fiscal quarter and nine months ended September 30,
2000, and Form 8-K (the "Disclosure Documents"). The financial statements
contained in the Disclosure Documents were prepared in accordance with generally
accepted accounting principles, consistently applied, and accurately reflect the
financial condition and results of operations of Borrower at and as of the dates
reported. All financial information and other information contained in the
Disclosure Documents was true and correct in all material respects when such
reports were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in the case of the financial statements for the fiscal year
ended December 31, 2000, is true and correct in all material respects on the
date of this Credit Agreement, except for changes arising from operations in the
ordinary course of business since December 31, 2000.
0.7.6 TAXES. Borrower has filed when due all federal, state
and local income tax returns and has filed when due all other returns with
respect to taxes which are required to be filed with the Internal Revenue
Service and the appropriate authorities of the jurisdictions where business is
transacted by them. All items and entries provided for or reflected in such
returns are correct and are made on a proper basis. All amounts, if any,
required to be paid, as shown on such returns, have been paid. None of such tax
returns has been audited. There are no suits, actions, claims, or
investigations, inquiries or proceedings now pending against Borrower in respect
of taxes, governmental charges or assessments, nor are there any matters under
discussion with any governmental authority relating to taxes, governmental
charges or assessments asserted by any such authority.
0.7.7 LITIGATION. Except as disclosed in the Disclosure
Documents, there are no lawsuits, arbitration proceedings, administrative
proceedings, actions or claims pending or threatened against Borrower. No fine,
penalty or other sanction has been imposed by any federal, state, local or
municipal court, judicial, administrative or regulatory body or authority
against Borrower. There is no outstanding order, writ, injunction or degree of
any court, administrative agency or governmental body or arbitration tribunal
against or affecting Borrower or any of its respective properties, assets,
business or prospects.
0.8 AFFIRMATIVE COVENANTS. During the Draw Period, and until such time
as the entire principal balance and accrued interest on the Loan, and all other
amounts payable by Borrower under this Credit Agreement or any other Loan
Document have been paid in full, Borrower shall comply with the following
covenants and agreements:
0.8.1 FURNISH INFORMATION. Borrower will, at Lender's request,
furnish information to Lender relating to Borrower's business and financial
affairs and permit Lender to examine Borrower's books and records.
0.8.2 OTHER DOCUMENTS. Borrower will execute all other
documents as Lender may reasonably require in connection with this Credit
Agreement and Note in order to perfect its lien or security interest in any of
the collateral for the loan, or otherwise to give effect to the terms and
conditions of the loan or guaranty for the loan.
0.8.3 COMPLY WITH TERMS AND CONDITIONS. Borrower will comply
with all terms and conditions of all other Loan Documents.
0.8.4 FINANCIAL REPORTS. Borrower will file with the
Securities and Exchange Commission, when due, all quarterly reports, annual
reports, current reports, and other documents required pursuant to the Exchange
Act and within 5 days of the date such reports and other documents are so
required to be filed, to mail to Lender a copy of such reports.
0.8.5 LIMITATION ON DIVIDENDS AND OTHER DISTRIBUTIONS BY
BORROWER. Borrower shall not declare or pay any dividend or other distribution
of cash, other property, or evidences of indebtedness, on account of or with
respect to any shares of capital stock.
0.8.6 INSURANCE. Borrower will, and will cause its
Subsidiaries, to maintain insurance with responsible carriers against such risks
and in such amounts as is customarily carried by similar businesses with such
deductible as are customarily carried by similar businesses of similar size,
including, without limitation, property and casualty loss, workers' compensation
and interruption of business insurance.
0.9 FEES AND CHARGES OF ATTORNEYS AND OTHERS. In the event that Lender
employs attorneys, accountants, appraisers, consultants, or other professional
assistance, including the services of any such person who is a direct employee
of Lender, in connection with any of the following, then, the reasonable amount
of costs, expenses, and fees incurred by Lender shall be payable on demand.
Lender may, at its option, add the amount of such costs, expenses, and
reasonable fees to the principal amount of the Loan. Lender thereafter may
charge interest on such amount at the interest rate then applicable to the
principal. Costs, expenses, and reasonable fees of professionals covered by this
provision include such charges for the following:
0.9.1 The preparation, modification, or renewal of this Credit
Agreement and the Note, or any other documentation incident to the loan
transaction;
0.9.2 Any litigation, dispute, proceeding or action, whether
instituted by Lender, Borrower, or any other person, relating to the Note,
including representation of Lender in any bankruptcy, insolvency, or
reorganization case or proceeding instituted by or against Borrower, and any
attempt by Lender to enforce any rights against Borrower;
0.9.3 In the event of any controversy, claim, or dispute
relating to the Note or this Agreement, including but not limited to any action
to construe or enforce the terms of the loan obligations, the prevailing party
shall be entitled to recover its reasonable costs, expenses, and reasonable
attorney fees;
0.9.4 In the event of bankruptcy or insolvency proceedings
(whether state or federal) instituted by or against Borrower or involving the
Borrower or Property of the Borrower, the Lender may recover all costs,
expenses, and reasonable attorney fees incurred to protect or defend Lender's
rights under the Note, and other documents underlying the loan transactions
whether such costs, expenses, and attorney fees be contractual or bankruptcy
related, including costs, expenses, and attorney fees for meetings, sessions,
matters, proceedings and litigation involving issues solely distinct to federal
bankruptcy law, rules and proceedings as well as other federal and state
litigation and proceedings;
0.9.5 The inspection, verification, protection, collection,
processing, sale, liquidation, or disposition of security given for the Note;
0.9.6 The preparation and filing of all reports required to be
filed by Lender under the Exchange Act during the term of this Credit Agreement
in connection with the ownership, acquisition, or disposition of the Warrant,
common shares, or other equity securities issued by Borrower.
0.10 MAXIMUM PERMITTED INTEREST. No provision of this Credit Agreement
or any other Loan Document, or any transaction related thereto, shall be
construed or so operate as to require the Borrower to pay interest at a greater
rate than the maximum allowed by applicable state or federal law. Should any
interest or other charges paid or payable by the Borrower in connection with the
Loan result in the computation or earning of interest in excess of the maximum
allowed by applicable state or federal law, then any and all such excess shall
be and the same is hereby waived by Lender, and any and all such excess paid
shall be credited automatically against and in reduction of the outstanding
principal balance due of the Loan, and the portion of said excess which exceeds
such principal balance shall be paid by Lender to the Borrower.
0.11 GOVERNING LAW. This Credit Agreement shall be construed and
governed in all respects by the laws of the State of California.
0.12 SUCCESSORS AND ASSIGNS. The provisions of this Credit Agreement
shall inure to the benefit of, and be binding upon, the respective successors,
assigns, heirs, executors and administrators of Borrower and Lender.
0.13 ENTIRE AGREEMENT; AMENDMENT. This Credit Agreement and the other
Loan Documents constitute the full and entire understanding and agreement among
the parties with regard to the subject matter thereof. This Credit Agreement and
any term of this Credit Agreement may be amended, waived, discharged or
terminated only by a written instrument signed by the party to be charged.
0.14 SURVIVAL. Borrower's representations and warranties contained in
this Credit Agreement shall survive the funding of each Draw and any
investigation made by any party until the Maturity Date.
0.15 NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given four (4) days after being deposited in the United States mail,
certified postage prepaid, return receipt requested, or when delivered by hand,
by messenger or express air freight service, in any case addressed as follows:
To Lender: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
To Borrower: BioTime, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Lippenberger, Thompson, Welch, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change its address for the purpose of this Section 15 by giving
notice to each other party in accordance with this Section 15.
0.16 DELAYS AND OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to Lender, upon any breach or default of Borrower
under this Credit Agreement or any other Loan Document, shall impair any such
right, power, or remedy of Lender, nor shall it be construed to be a waiver of,
or an acquiescence in, any such breach or default or any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent, or approval of any kind or
character on the part of Lender of any breach or default by Borrower under this
Credit Agreement or any other Loan Document, or any waiver of any provisions or
conditions of this Credit Agreement or any other Loan Document by Lender, must
be made in writing, and shall be effective only to the extent specifically set
forth in such writing. All remedies either under this Agreement or by law and
otherwise afforded to any party shall be cumulative and not alternative.
0.17 RULES OF CONSTRUCTION.
0.17.1 TITLES AND SUBTITLES. The titles or headings of the
Sections and paragraphs of this Credit Agreement are for convenience of
reference only and are not to be considered in construing this Credit Agreement.
0.17.2 SINGULAR; PLURAL. Whenever appropriate in this
Agreement, terms in the singular form shall include the plural (and vice versa)
and any gender form shall include all others.
0.17.3 SECTION HEADINGS. Section headings are for the
convenience of the parties and do not form a part of this Agreement.
0.17.4 SECTIONS AND OTHER REFERENCES. References in this
Agreement to sections, paragraphs, and exhibits are references to articles,
sections, and paragraphs in this Agreement and schedules and exhibits attached
to this Agreement unless specified otherwise.
0.18 SEVERABILITY. If one or more provisions of this Credit Agreement
are held to be unenforceable under applicable law, each such unenforceable
provision shall be excluded from this Credit Agreement and the balance of this
Credit Agreement shall be interpreted as if each such unenforceable provision
were so excluded, and the balance of this Credit Agreement as so interpreted
shall be enforceable in accordance with its terms.
0.19 COUNTERPARTS. This Credit Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BORROWER: BIOTIME, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title Chief Executive Officer
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By /s/ Victoria Bellport
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Title Chief Financial Officer
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LENDER: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
EXHIBIT A
REVOLVING CREDIT NOTE
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$1,000,000 March 27, 2001
FOR VALUE RECEIVED, the undersigned, BioTime, Inc., a California
corporation (Borrower") hereby promises to pay to the order of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("Lender") the principal sum of ONE MILLION DOLLARS ($1,000,000) or
such lesser amount as may from time to time be outstanding as the Loan pursuant
to that certain Revolving Line of Credit Agreement, of even date, between
Borrower and Lender (the "Credit Agreement"), together with interest on the
unpaid balance of the Loan at the rate or rates hereinafter set forth. This
Revolving Credit Note is the Note described in the Credit Agreement. All
capitalized terms not otherwise defined in this Note shall have the meanings
defined in the Credit Agreement.
10 1.1 TERMS OF PAYMENT.
1.1.1 INTEREST RATE. Interest shall accrue and be payable at
the rate of 10% per annum on the outstanding principal balance of the Loan.
Interest shall accrue from the date of each disbursement of principal pursuant
to a Draw. Accrued interest shall be paid with principal. Interest will be
charged on that part of outstanding principal of the Loan which has not been
paid and shall be calculated on the basis of a 360-day year and a 30-day month.
1.1.2 PAYMENTS OF PRINCIPAL. The outstanding principal balance
of the Loan, together with accrued interest, shall be paid in full on the
Maturity Date. "Maturity Date" means the earlier of (i) March 31, 2002, and (ii)
such date on which Borrower shall have received an aggregate of $2,000,000
through (A) the sale of capital stock, (B) the collection of license fees,
signing fees, milestone fees, or similar fees under Borrower's Exclusive License
Agreement with ▇▇▇▇▇▇ Laboratories, Exclusive License Agreement with Horus,
B.V., or under any other present or future agreement pursuant to which Borrower
grants one or more licenses to use Borrower's patents or technology, (C) funds
borrowed from other lenders, or (D) any combination of sources under clauses (A)
through (C).
1.1.3 MANDATORY PREPAYMENT OF PRINCIPAL. In the event that
Borrower receives, in the aggregate, an amount of funds in excess of $1,000,000
but less than $2,000,000 from sources described in clauses (A) through (C) of
paragraph (b) of this Section 1, Borrower shall use the funds in excess of
$1,000,000 to prepay principal, plus accrued interest, within two business days
after such funds are received by Borrower, and the amount of principal so
prepaid shall not be available for further Draws by Borrower during the Draw
Period.
1.1.4 OPTIONAL PREPAYMENT OF PRINCIPAL. Borrower may prepay
principal, with accrued interest, at any time and the amount of principal so
prepaid shall be available for further Draws by Borrower during the Draw Period
to the extent that the prepayment of principal was not required under paragraph
(c) of this Section 1.
1.1.5 DEFAULT INTEREST RATE. In the event that any payment of
principal or interest is not paid within five (5) days from on the date on which
the same is due and payable, such payment shall continue as an obligation of the
Borrower, and interest thereon from the due date of such payment and interest on
the entire unpaid balance of the Loan shall accrue until paid in full at the
lesser of (i) fifteen percent (15%) per annum, or (ii) the highest interest rate
permitted under applicable law (the "Default Rate"). From and after the Maturity
Date or upon acceleration of the Note, the entire unpaid principal balance of
the Loan with all unpaid interest accrued thereon, and any and all other fees
and charges then due at such maturity, shall bear interest at the Default Rate.
1.1.6 DATE OF PAYMENT. If the date on which a payment of
principal or interest on the Loan is due is a day other than a Business Day,
then payment of such principal or interest need not be made on such date but may
be made on the next succeeding Business Day.
1.1.7 APPLICATION OF PAYMENTS. All payments shall be applied
first to costs of collection, next to late charges or other sums owing Lender,
next to accrued interest, and then to principal, or in such other order or
proportion as Lender, in its sole discretion, may determine.
1.1.8 CURRENCY. All payments shall be made in United States
Dollars.
1.2 EVENTS OF DEFAULT. The following shall constitute Events of
Default: 1.2.1 the default of Borrower in the payment of any interest or
principal due under this Note or the Credit Agreement; 1.2.2 the failure of
Borrower to perform or observe any other term or provision of this Note, or any
term, provision, covenant, or agreement in the Credit Agreement or any other
Loan Document; 1.2.3 any act, omission, or other event that constitutes an
"Event of Default" under the Credit Agreement; 1.2.4 any representation or
warranty of Borrower contained in the Credit Agreement or in any other Loan
Document, or in any certificate delivered by Borrower pursuant to the Credit
Agreement or any other Loan Document, is false or misleading in any material
respect when made or given; 1.2.5 Borrower becoming the subject of any order for
relief in a proceeding under any Debtor Relief Law (as defined below); 1.2.6
Borrower making an assignment for the benefit of creditors; 1.2.7 Borrower
applying for or consenting to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer for it or
for all or any part of its property or assets; 1.2.8 the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar
officer for Borrower, or for all or any part of the property or assets of
Borrower, without the application or consent Borrower, if such appointment
continues undischarged or unstayed for sixty (60) calendar days; 1.2.9 Borrower
instituting or consenting to any proceeding under any Debtor Relief Law with
respect to Borrower or all or any part of its property or assets, or the
institution of any similar case or proceeding without the consent of Borrower,
if such case or proceeding continues undismissed or unstayed for sixty (60)
calendar days; 1.2.10 the dissolution or liquidation of Borrower, or the
winding-up of the business or affairs of Borrower; 1.2.11 the taking of any
action by Borrower to initiate any of the actions described in clauses (f)
through (j) of this paragraph; 1.2.12 the issuance or levy of any judgment,
writ, warrant of attachment or execution or similar process against all or any
material part of the property or assets of Borrower if such process is not
released, vacated or fully bonded within sixty (60) calendar days after its
issue or levy; or (m) any breach or default by Borrower under its Exclusive
License Agreement with ▇▇▇▇▇▇ Laboratories, its Exclusive License Agreement with
Horus, B.V., or under any loan agreement, promissory note, or other instrument
evidencing indebtedness payable to a third party. As used in this Note, the term
"Debtor Relief Law" means the Bankruptcy Code of the United States of America,
as amended, or any other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief law affecting the rights of creditors generally.
1.3 REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, at
Lender's option, all unpaid principal and accrued interest, and all other
amounts payable under this Note shall become immediately due and payable without
presentment, demand, notice of non-payment, protest, or notice of non-payment.
Lender also shall have all other rights, powers, and remedies available under
the Credit Agreement and any other Loan Document, or accorded by law or at
equity. All rights, powers, and remedies of Lender may be exercised at any time
by Lender and from time to time after the occurrence of an Event of Default. All
rights, powers, and remedies of Lender in connection with this Note and any
other Loan Document are cumulative and not exclusive and shall be in addition to
any other rights, powers, or remedies provided by law or equity.
1.4 MISCELLANEOUS.
1.4.1 Borrower and all guarantors and endorsers of this Note
severally waive (i) presentment, demand, protest, notice of dishonor, and all
other notices; (ii) any release or discharge arising from any extension of time,
discharge of a prior party, release of any or all of the security for this Note,
and (iii) any other cause of release or discharge other than actual payment in
full of all indebtedness evidenced by or arising under this Note.
1.4.2 No delay or omission of Lender to exercise any right,
whether before or after an Event of Default, shall impair any such right or
shall be construed to be a waiver of any right or default, and the acceptance of
any past-due amount at any time by the Lender shall not be deemed to be a waiver
of the right to require prompt payment when due of any other amounts then or
thereafter due and payable. The Lender shall not be deemed, by any act or
omission, to have waived any of Lender's rights or remedies under this Note
unless such waiver is in writing and signed by Lender and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
1.4.3 Lender may accept, indorse, present for payment, and
negotiate checks marked "payment in full" or with words of similar effect
without waiving Lender's right to collect from Borrower the full amount owed by
Borrower.
1.4.4 TIME IS OF THE ESSENCE UNDER THIS NOTE. Upon any Event
of Default, the Lender may exercise all rights and remedies provided for in this
Note and by law, including, but not limited to, the right to immediate payment
in full of this Note.
1.4.5 The rights and remedies of the Lender as provided in
this Note, in the Credit Agreement and in law or equity, shall be cumulative and
concurrent, and may be pursued singularly, successively, or together at the sole
discretion of the Lender, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or a release of any such right or remedy.
1.4.6 It is expressly agreed that if this Note is referred to
an attorney or if suit is brought to collect this Note or any amount due under
this Note, or to enforce or protect any rights conferred upon Lender by this
Note then Borrower promises and agrees to pay on demand all costs, including
without limitation, reasonable attorneys' fees, incurred by Lender in the
enforcement of Lender's rights and remedies under this Note, and such other
agreements.
1.4.7 The terms, covenants, and conditions contained in this
Note shall be binding upon the heirs, executors, administrators, successors, and
assigns of Borrower, and each of them, and shall inure to the benefit of the
heirs, executors, administrators, successors and assigns of Lender.
1.4.8 This Note shall be construed under and governed by the
laws of the State of California without regard to conflicts of law.
1.4.9 No provision of this Note shall be construed or so
operate as to require the Borrower to pay interest at a greater rate than the
maximum allowed by applicable state or federal law. Should any interest or other
charges paid or payable by the Borrower in connection with this Note or the Loan
result in the computation or earning of interest in excess of the maximum
allowed by applicable state or federal law, then any and all such excess shall
be and the same is hereby waived by Lender, and any and all such excess paid
shall be credited automatically against and in reduction of the outstanding
principal balance due of the Loan, and the portion of said excess which exceeds
such principal balance shall be paid by Lender to the Borrower.
BORROWER: BIOTIME, INC.
By _____________________________________________
Title ___________________________________________
By _____________________________________________
Title ___________________________________________