FOURTH AMENDMENT OF REVOLVING LINE OF CREDIT AGREEMENT
Exhibit
10.35
FOURTH
AMENDMENT OF REVOLVING LINE OF CREDIT AGREEMENT
This
Fourth Amendment of Revolving Line of Credit Agreement is made and entered into
as of November 14, 2008, by and among each of the persons who have executed this
Agreement as a Lender (each a “Lender,” and collectively “Lenders”), and
BioTime, Inc., a California corporation (“Borrower”), and amends that certain
Third Amended and Restated Credit Agreement dated March 31, 2008. The
Third Amended and Restated Credit Agreement, dated March 31, 2008, as amended by
this Fourth Amendment of Revolving Credit Agreement is referred to as the
“Credit Agreement”.
The
Credit Agreement is amended as follows:
1. Definitions:
(a) “Fourth Amendment” means this
Fourth Amendment of Revolving Line of Credit Agreement.
(b) “Credit Facility” means the
right of Borrower to borrow up to $3,500,000 from Lenders under the terms and
conditions of this Credit Agreement and the Note.
(c) “Maturity Date” means (i)
April 15, 2009 with respect to any Note issued for an additional Loan commitment
under this Fourth Amendment, (ii) April 15, 2009 with respect to any Note issued
under the Third Amended and Restated Credit Agreement or an earlier amendment of
the Credit Agreement, if the Lender has signed an Amendment of Revolving Credit
Note extending the Maturity Date, or (iii) November 15, 2008 with respect to any
Note issued under the Third Amended and Restated Credit Agreement or an earlier
amendment of the Credit Agreement as to which clause (ii) does not
apply.
(d) “Note” means (a) each
promissory note evidencing a portion of the Loan previously advanced by certain
Lenders, and (b) each Revolving Credit Note in the form attached as EXHIBIT A-1
evidencing the new Loan amounts to be advanced by certain Lenders.
(e) “Security Agreement” means
that certain Third Amended and Restated Security Agreement, dated March 31,
2008, as amended by a Fourth Amendment of Security Agreement among Borrower and
Lenders pursuant to which Borrower is granting Lenders a first priority
perfected security interest in certain specified collateral to secure Borrower’s
obligations under this Agreement and the Note.
2. Maximum Loan
Amount. The Maximum Loan Amount shall be Three Million Five
Hundred Thousand Dollars ($3,500,000).
3. Draw Period. The
Draw Period shall end on April 15, 2009.
4. Extension of Maturity
Date. Any Lender holding a Note due November 15, 2008 may
extend the Maturity Date of that Note to April 15, 2009 by executing and
delivering to Borrower an Amendment of Revolving Credit Note in the form of
Exhibit B.
5. Earmarked Funds; Mandatory
Prepayment. The definition of Earmarked Funds and all
references to Earmarked Funds, including the mandatory prepayment of principal
pursuant to Section 3.2.1 of the Credit Agreement, shall not apply.
6. Shares. Borrower
shall issue and deliver to certain Lenders a number of Shares having an
aggregate market value equal to six percent (6%) of the Lender’s Loan commitment
having an April 15, 2009 Maturity Date (including any new or additional Loan
commitment, and the principal amount of any Loan as to which the Lender extended
the Maturity Date by executing an Amendment of Revolving Credit
Note). Shares will be issued only to those Lenders who (a) agree to
make all or a portion of the additional $1,000,000 of the Credit Facility
available under this Fourth Amendment, or (b) agree to extend the Maturity Date
of their Note to April 15, 2009 by executing an Amendment of Revolving Credit
Note. No fractional Shares shall be issued. For the
purpose of determining the number of Shares to be issued to a Lender entitled to
receive Shares, the market value shall be deemed to be the closing price of the
Shares on the OTCBB on the last day on which a closing price of the Shares was
reported prior to the date on which the Lender executed and delivered this
Fourth Amendment.
7. Disclosure
Documents. Borrower has delivered to Lenders following reports
filed by Borrower under Securities Exchange Act of 1934, as amended (the
“Exchange Act”): (a) a copy of Borrower’s annual report on Form
10-KSB for the fiscal year ended December 31, 2007, and quarterly report on Form
10-Q for the fiscal quarter and six months ended June 30, 2008, and all Current
Reports on Form 8-K filed by Borrower since August 15, 2008 (the “Current
Disclosure Documents”). The financial statements contained in the
Current 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 Current Disclosure Documents was true and correct in all material
respects when such reports were filed under the Exchange Act.
8. Exchange of Debt For
Equity. Notes that had a November 15, 2008 Maturity Date may
be exchanged, in whole or in part, including both unpaid principal and accrued
interest, for (a) BioTime Exchange Shares at a price of $1.00 per share until
November 15, 2008, or (b) BioTime Exchange Shares at a price of $1.25 per share
after November 15, 2008 and until April 15, 2009 if the Lender has executed an
Amendment of Revolving Credit Note, or (c) ESI Exchange Shares at a price of
$2.00 per share until November 15, 2008, or (d) ESI Exchange Shares at a price
of $2.25 per share after November 15, 2008 and until April 15, 2009 if the
Lender has executed an Amendment of Revolving Credit Note. Notes
having a Maturity Date of April 15, 2009 that were issued for a new Loan
commitment under this Fourth Amendment, may be exchanged, in whole or in part,
including both unpaid principal and accrued interest, for (x) BioTime Exchange
Shares at a price of $1.50 per share until April 15, 2009, or (y) ESI
Exchange
2
Shares at
a price of $2.50 per share until April 15, 2009. All other provisions
of Section 17 of the Credit Agreement shall apply.
9. Other Provisions of Credit Agreement
Apply. Except as modified or amended by this Fourth Amendment,
all provisions of the Third Amended and Restated Revolving Line of Credit
Agreement shall remain in full force and effect. Any Lender who has
not previously executed the Third Amended and Restated Revolving Line of Credit
Agreement shall, by executing this Fourth Amendment, (a) acknowledge receipt of
the Third Amended and Restated Revolving Line of Credit Agreement, (b) agree to
be bound by all terms and conditions of the Third Amended and Restated Revolving
Line of Credit Agreement, as amended by this Fourth Amendment, and (c) shall be
deemed to have made the representations and warranties set forth in Section 20
of the Third Amended and Restated Revolving Line of Credit Agreement, except
that references to the Disclosure Documents shall instead mean the Current
Disclosure Documents.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
BORROWER:
BIOTIME,
INC.
By
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Title
CEO
By
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Title
Vice President &
Secretary
3
LENDERS:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
PARTNERS, L.P.
By: Greenhouse
Partners, L.P.,
General Partner
By /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General
Partner
Broadwood
Partners, L.P.
By: Broadwood
Capital, Inc.,
General Partner of Broadwood Partners,
L.P.
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
▇▇▇▇▇
Brothers, LP
By:
/s/ ▇▇▇▇
▇▇▇▇▇
Title: General
Partner
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/
▇▇▇▇▇▇
Bayern
▇▇▇▇▇▇ Bayern
5
SCHEDULE
I
Loan
Commitment—April 15, 2009 Maturity Date
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Name and Address Of Lender
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Amount of Loan
Commitment
|
||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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$250,000
|
||
|
▇▇▇
▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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|||
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▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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|||
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FAX: (▇▇▇)
▇▇▇-▇▇▇▇
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|||
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Greenway
Partners, LP
|
$300,000
|
||
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▇/▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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|||
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▇▇▇
▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|||
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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|||
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FAX: (▇▇▇)
▇▇▇-▇▇▇▇
|
|||
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Broadwood
Partners, L.P.
|
$550,000
|
||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
|||
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▇
▇▇
▇▇▇▇▇
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|||
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▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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|||
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FAX: (▇▇▇)
▇▇▇-▇▇▇▇
|
|||
|
▇▇▇▇▇
Brothers, LP
|
$200,000
|
||
|
▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
|
|||
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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|||
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FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
$100,000
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|||
|
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
|
▇▇▇▇▇▇
Bayern
|
$50,000
|
||
|
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
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|||
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▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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6
EXHIBIT
A-1
7
REVOLVING CREDIT
NOTE
$___________ __________,
2008
FOR VALUE
RECEIVED, the undersigned, BioTime, Inc., a California corporation (Borrower")
hereby promises to pay to the order of ___________("Lender") the principal sum
of _____________ DOLLARS ($_______________) or such lesser amount as may from
time to time be outstanding as the Loan pursuant to that certain Fourth
Amendment of Revolving Line of Credit Agreement, dated ________________, ___,
2008, between Borrower and Lender, together with interest on the unpaid balance
of the Loan at the rate or rates hereinafter set forth. This
Revolving Credit Note is one of the Notes described in the Fourth Amendment of
Revolving Line of Credit Agreement. As used in this Note the term
“Credit Agreement” means the Third Amended and Restated Revolving Line of Credit
Agreement, dated March 31, 2008, as amended by the Fourth Amendment of Revolving
Line of Credit Agreement. All capitalized terms not otherwise defined
in this Note shall have the meanings defined in the Credit
Agreement.
1. Terms
of Payment.
(a) Interest
Rate. Interest shall accrue and be payable at the rate of 12%
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.
(b) Payments of
Principal. The outstanding principal balance of the Loan,
together with accrued interest, shall be paid in full on the Maturity
Date.
(c) 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.
(d) 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.
8
(e) 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.
(f) 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.
(g) Currency. All
payments shall be made in United States Dollars.
2. 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 Note or the Credit Agreement or any other Note arising under the Credit
Agreement; (b) the failure of Borrower to perform or observe any other term or
provision of this Note, or any other Note arising under the Credit Agreement, or
any term, provision, covenant, or agreement in the Credit Agreement or any other
Loan Document; (c) any act, omission, or other event that constitutes an "Event
of Default" under the Credit Agreement; (d) 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 incorrect 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 (as defined below); (f) Borrower making an
assignment for the benefit of creditors; other than repayment of the Loan, in
whole or in part, to Lenders; (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
of 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 (e) 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 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.
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
9
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.
4. Miscellaneous.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) The
rights and remedies of the Lender as provided in this Note, in the Credit
Agreement, and in the Security 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.
(f) 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.
10
(g) 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.
(h) This
Note shall be construed under and governed by the laws of the State of
California without regard to conflicts of law.
(i) 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
____________________________________________
11
EXHIBIT
B
12
AMENDMENT OF REVOLVING
CREDIT NOTE
$___________ __________,
2008
Reference
is made to that certain Revolving Credit Note dated ______, 2008, in the
principal sum of _____________ DOLLARS ($_______________) made by BioTime, Inc.,
as “Borrower,” and payable the order of the undersigned as “Lender” (the
“Note”). The Maturity Date of the Note is hereby extended to April
15, 2009. The Note, as so amended, shall be governed by that certain
Fourth Amendment of Revolving Line of Credit Agreement, dated September ___,
2008, between Borrower and Lender.
LENDER:
_________________________________________
(Please Print Name of
Lender)
By: ______________________________________
(Signature)
Title: _____________________________________
(Please Show Title If
Applicable)
BORROWER:
BIOTIME,
INC.
By
_____________________________________________
Title
___________________________________________
By
_____________________________________________
Title
____________________________________________
13