FIRST AMENDED AND RESTATED REVOLVING LINE OF CREDIT AGREEMENT by and among BIOTIME, INC. as “Borrower” and ALFRED D. KINGSLEY, GEORGE KARFUNKEL, RICHARD LOWISH, and BROADWOOD PARTNERS, LP as “Lenders” Dated as of October 17, 2007
Exhibit
10.1
FIRST
AMENDED AND RESTATED REVOLVING LINE OF CREDIT AGREEMENT
by
and
among
BIOTIME,
INC.
as
“Borrower”
and
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇, and BROADWOOD PARTNERS, LP
as
“Lenders”
Dated
as
of October 17, 2007
TABLE
OF CONTENTS
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1.
|
General
Definitions.
|
1
|
|
2.
|
Draws
and Disbursements.
|
2
|
|
3.
|
Terms
of Payment.
|
4
|
|
4.
|
Shares.
|
5
|
|
5.
|
Events
of Default.
|
5
|
|
6.
|
Representations
and Warranties of Borrower.
|
6
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|
7.
|
Affirmative
Covenants.
|
8
|
|
8.
|
Maximum
Permitted Interest.
|
9
|
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9.
|
Governing
Law.
|
9
|
|
10.
|
Successors
and Assigns.
|
10
|
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11.
|
Entire
Agreement; Amendment.
|
10
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12.
|
Survival.
|
10
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13.
|
Notices.
|
10
|
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14.
|
Delays
and Omissions.
|
11
|
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15.
|
Rules
of Construction.
|
11
|
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16.
|
Counterparts.
|
12
|
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17.
|
Investment
Representations.
|
12
|
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18.
|
Registration
Rights.
|
13
|
|
19.
|
Legends.
|
14
|
FIRST
AMENDED AND RESTATED REVOLVING LINE OF CREDIT
AGREEMENT
This
First Amended and Restated Revolving Line of Credit Agreement (“Credit
Agreement”) is made and entered into as of October 17, 2007, by and among ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and Broadwood Partners, L.P.
(each a “Lender,” and collectively “Lenders”), and BioTime, Inc., a California
corporation (“Borrower”), and amends and restates that certain Revolving Line of
Credit Agreement dated April 12, 2006.
RECITALS
Borrower
has requested a credit facility consisting of a revolving line of credit, and
Lenders are 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:
1. General
Definitions.
The
following words shall have the following meanings:
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.
1.2 “Credit
Facility”
means
the right of Borrower to borrow up to $1,000,000 from Lenders under the terms
and conditions of this Credit Agreement and the Note.
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.
1.4 “Earmarked
Funds”
means
funds received by Borrower through (i) the sale of capital stock, (ii) loans
from other lenders, or (iii) funds in excess of $1,000,000 received by Borrower
through the collection of license fees, signing fees, milestone fees, or similar
fees (excluding royalties) under any other present or future agreement pursuant
to which Borrower grants one or more licenses to use Borrower’s patents or
technology.
1.5 “Event
of Default”
or
“Events
of Default”
means
any of the events specified in Section 5.
1.6 “Loan”
means
the loans made by Lenders to Borrower pursuant to this Credit Agreement, and
evidenced by the Note.
2
1.7 “Loan
Documents”
means
this Credit Agreement, the Note, and the Security Agreement, and all other
agreements, instruments, and documents in favor of a Lender, now or hereafter
executed by or on behalf of Borrower and delivered to a Lender in connection
with this Credit Agreement or in connection with any of the transactions
contemplated hereby.
1.8 “Maturity
Date”
means
the earlier of (i) April 30, 2008, 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 (excluding royalties) in excess of $1,000,000 under any 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).
1.9 “Note”
means
(a) each Amended and Restated Credit Note, dated April 12, 2006, in the form
attached as EXHIBIT A-1, evidencing the amount of the Loan previously advanced
by certain Lenders, and (b) each Revolving Credit Note, of even date, in the
form attached as EXHIBIT A-2, evidencing the amount of the Loan from each
Lender, to be executed concurrently with this Credit Agreement.
1.10 “Security
Agreement”
means
that certain Amended and Restated Security Agreement of even date 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.
1.11 “Shares”
means
common shares, no par value, of the Borrower.
2. Draws
and Disbursements.
2.1 Maximum
Loan Amount.
On the
terms and conditions set forth in this Credit Agreement, Lenders 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”). Each Lender shall be
severally, and not jointly and severally, obligated to lend the amount shown
on
Schedule I.
2.2 Draw
Period.
Borrower
may request from Lenders advances of funds (“Draws”) under the Credit Facility
from the date of this Agreement until April 30, 2008 (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 Loan 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 Lenders. Subject to the terms and
conditions of this Credit Agreement, and provided that no Event of Default
has
occurred, Lenders shall make advances to Borrower upon request as provided
in
this Section 2.
3
Upon
the
occurrence of an Event of, one of Lenders’ remedies includes Lenders’ right to
terminate the Draw Period and Borrower’s right to make Draws under this Credit
Agreement.
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.
Each Lender shall advance a portion of each Draw such that, immediately after
funding the Draw, the total outstanding principal amount of the Loan funded
by
each Lender shall be in proportion to their respective loan commitments shown
on
Schedule I.
2.4 Use
of Funds.
All
funds borrowed under this Credit Agreement will be used as working capital
to
pay Borrower’s expenses arising in the ordinary course of business.
2.5 Disbursement
Procedures.
2.5.1 Borrower
hereby appoints the Chief Executive Officer, each member of its Office of the
President, and the 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 Lenders. Facsimile documents
may be accepted by Lenders 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 Lenders
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 Lenders harmless from loss or liability of any kind
arising from or related to any action or inaction taken by Lenders in good
faith
in reliance upon instructions received from any Authorized Officer.
2.6 Conditions
Precedent.
The
following conditions must be satisfied before Lenders shall be obligated to
disburse any Loan to Borrower pursuant to a Draw:
4
2.6.1 Due
execution.
Lenders
shall have received duly executed originals of this Credit Agreement and all
other Loan Documents.
2.6.2 Approvals.
Lenders
shall have received evidence satisfactory to them 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
Lenders 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 Lenders
a
certificate executed by an Authorized Officer to such effect.
2.6.5 Independent
Verification.
Borrower
must provide for Lenders’ review and acceptance such documentation as may be
required by Lenders 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 Shares.
Prior to
the initial Draw under this Credit Agreement, Borrower must have issued the
Shares to Lenders as described in Section 4 of this Credit
Agreement.
2.6.7 Closing
Costs.
Borrower
must have paid all attorneys’ fees (not to exceed $2,500 for all Lenders in the
aggregate) incurred by Lenders in connection with the preparation, execution,
and delivery of the Loan Documents, and all reports and notices required to
be
filed by Lenders or their respective affiliates under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), in connection with this Agreement
and Lenders’ receipt of the Shares.
2.7 Amended
Promissory Notes.
Except
for such Notes as may be paid in full upon the Maturity Date, each original
Note
dated April 12, 2006 (“Original Note”) shall be exchanged for an amended Note in
the form of EXHIBIT A-1. Each Lender holding an Original Note shall tender
their
Original Note for an amended Note. Until such time an Original Note
is
5
tendered
to Borrower and an amended Note is delivered to the Lender in exchange, the
Original Note shall be deemed to include all of the terms set forth in EXHIBIT
A-1.
3. Terms
of Payment.
3.1 Interest.
Interest
shall accrue and be payable at the rate of (a) 10% per annum on the outstanding
principal balance of the Loan through October 31, 2007, and (b) 12% per annum
on
the outstanding principal balance of the Loan from October 31, 2007 until the
Maturity Date or any earlier date on which the principal balance is paid in
full. 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.
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 Earmarked Funds, Borrower shall use the Earmarked
Funds to prepay principal, plus accrued interest, within two business days
after
such Earmarked Funds are received by Borrower, and the amount of principal
so
prepaid shall reduce the Maximum Loan Amount.
3.3 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.
3.4 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.
3.5 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.
3.6 Application
of Payments.
All
payments shall be applied first to costs of collection, next to late charges
or
other sums owing Lenders, next to accrued interest, and then to principal,
or in
such other order or proportion as Lenders, in their sole discretion, may
determine.
6
3.7 Currency.
All
payments shall be made in United States Dollars.
4. Shares.
As
consideration for Lenders making the Credit Facility available to Borrower,
Borrower has issued 33,333 Shares to Lenders who were parties to this Agreement
on April 12, 2006. As consideration for Lenders making the amended Credit
Facility available to Borrower, Borrower shall issue and deliver to Lenders
one
Share for each five dollars of the Loan commitment of the Lender shown on
Schedule I. No fractional Shares shall be issued.
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
held by any Lender; (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 or the Security Agreement; (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 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; (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
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.
5.1 Remedies
On Default.1.6Remedies
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 to Lender 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, provided that no notice or demand shall be required if the Event
of
Default is a proceeding under any Debtor Relief Law. Each 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
7
rights,
powers, and remedies of a Lender may be exercised at any time by the Lender
and
from time to time after the occurrence of an Event of Default. All rights,
powers, and remedies of a 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.
6. Representations
and Warranties of Borrower.
Borrower
represents and warrants to Lenders the following:
6.1 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.
6.2 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 has been duly authorized by, and 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
Shares. 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.
6.3 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.
8
6.4 Shares.
When
issued pursuant to this Agreement, the Shares will be validly issued and
outstanding, fully paid and non-assessable.
6.5 Accuracy
of Information.
Borrower
has delivered to Lenders a copy of its annual report on Form 10-KSB for the
fiscal year ended December 31, 2006, and quarterly reports on Form 10-QSB for
the fiscal quarter and six months ended June 30, 2007, and all Current Reports
on Form 8-K filed by Borrower since June 30, 2007 (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 Exchange Act.
6.6 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.
6.7 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.
7. 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:
7.1 Furnish
Information.
Borrower
will, at any 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.
9
7.2 Comply
with Terms and Conditions.
Borrower will comply with all terms and conditions of all other Loan
Documents.
7.3 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.
7.4 Limitation
on Dividends and Other Distributions by Borrower.
Borrower shall not declare or pay any dividend or other distribution of cash,
other property (excluding shares of capital stock and options, warrants or
other
rights to acquire capital stock or stock purchase warrants of Borrower), or
evidences of indebtedness, on account of or with respect to any shares of
capital stock.
7.5 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.
7.6 Fees
and Charges of Attorneys and Others.1.9Fees
and Charges of Attorneys and Others.
In the
event that a Lender employs attorneys, accountants, appraisers, consultants,
or
other professional assistance, excluding the services of any such person who
is
a direct employee of a Lender, in connection with any of the following, then,
the reasonable amount of costs, expenses, and fees incurred by the Lender shall
be payable on demand. A Lender may, at its option, add the amount of such costs,
expenses, and reasonable fees to the principal amount of the Loan. A 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:
7.7 The
preparation, modification, or renewal of this Credit Agreement and the Note,
or
any other documentation incident to the loan transaction;
7.8 Any
litigation, dispute, proceeding or action, whether instituted by Lender,
Borrower, or any other person, relating to the Note or this Agreement, 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;
7.9 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
10
distinct
to federal bankruptcy law, rules and proceedings as well as other federal and
state litigation and proceedings;
7.10 The
inspection, verification, protection, collection, processing, sale, liquidation,
or disposition of security given for the Note;
7.11 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 theShares, or other equity securities
issued by Borrower.
8. 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.
9. Governing
Law.
This
Credit Agreement shall be construed and governed in all respects by the laws
of
the State of California.
10. 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 Lenders.
11. 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.
12. 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 Loan is repaid in full.
13. 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 to the Lenders at their respective
addresses shown on Schedule I, or to Borrower as follows:
11
BioTime,
Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
Lippenberger,
Thompson, Welch, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇.
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any
party
may change its address for the purpose of this Section 13 by giving notice
to
each other party in accordance with this Section 13.
14. Delays
and Omissions.
No delay
or omission to exercise any right, power, or remedy accruing to a 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 the 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 a 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 a 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.
15. Rules
of Construction.
15.1 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.
15.2 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.
15.3 Section
Headings.
Section
headings are for the convenience of the parties and do not form a part of this
Agreement.
12
15.4 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.
15.5 Severability.1.18Severability.
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.
16. 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.
17. Investment
Representations.
Each
Lender represents and warrants to Borrower that:
17.1 Lender
is
relying on the information provided in the Disclosure Documents or otherwise
communicated to Lender in writing by Borrower. Lender has not relied on any
statement or representations inconsistent with those contained in the Disclosure
Documents. Lender has had a reasonable opportunity to ask questions of and
receive answers from the executive officers and directors of Borrower, or one
or
more of its officers, concerning Borrower and to obtain additional information,
to the extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the information in the Disclosure Documents. All such
questions have been answered to Lender’s satisfaction;
17.2 Lender
understands that the Shares are being offered and sold without registration
under the Securities Act of 1933, as amended (the “Act”) or qualification under
the California Corporate Securities Law of 1968, or under the laws of other
states, in reliance upon the exemptions from such registration and qualification
requirements for non-public offerings. Lender acknowledges and understands
that
the availability of the aforesaid exemptions depends in part upon the accuracy
of certain of the representations, declarations and warranties contained herein,
which Lender hereby makes with the intent that they may be relied upon by
Borrower and its officers and directors in determining Lender’s suitability to
acquire the Shares. Lender understands and acknowledges that no federal, state
or other agency has reviewed or endorsed the offering of the Shares or made
any
finding or determination as to the fairness of the offering or completeness
of
the information in the Disclosure Documents;
17.3 Lender
understands that the Shares may not be offered, sold, or transferred in any
manner unless subsequently registered under the Act, or unless there is an
exemption from such registration available for such offer, sale or
transfer;
13
17.4
Lender
has such knowledge and experience in financial and business matters to enable
Lender to utilize the information contained in the Disclosure Documents, or
otherwise made available to Lender to evaluate the merits and risks of an
investment in the Shares and to make an informed investment decision with
respect thereto.
17.5 Lender
is
acquiring the Shares solely for Lender’s own account and for long-term
investment purposes, and not with a view to, or for sale in connection with,
any
distribution of the Shares; and
17.6 Lender
is
an “accredited investor,” as such term is defined in Regulation D promulgated
under the Act.
18. Registration
Rights.
18.1
Borrower
agrees, at its expense, upon written request from the Lenders, to use
commercially reasonable efforts to register under the Act, the Shares and to
take such other actions as may be necessary to allow the Shares to be freely
tradable, without restrictions, in compliance with all regulatory requirements.
A written request for registration shall specify the quantity of the Shares
intended to be sold, the plan of distribution and the identity of the sellers,
which may include the Lender and assignees of its rights hereunder
(collectively, “Selling Securities Holders”), and whether the registration shall
be pursuant to an underwritten public offering or a “shelf’ registration
pursuant to Rule 415 (or similar rule that may be adopted by the Securities
and
Exchange Commission). Borrower shall not be obligated to file more than two
such
registration statements, other than registration statements on Form S-3.
Borrower shall use commercially reasonable efforts keep such registration
statements effective for a period of at least nine months, except that
registration statements on Form S-3 shall be kept effective for at least three
years (or such lesser period as the parties may agree, but in no event beyond
the completion of the distribution or distributions being made pursuant
thereto). Borrower shall utilize Form S-3 if it qualifies for such use. Borrower
shall make all filings required with respect to the registration statements
and
will use commercially reasonable efforts to cause such filings to become
effective, so that the Shares being registered shall be registered or qualified
for sale under the securities or blue sky laws of such jurisdictions as shall
be
reasonably appropriate for distribution of the Shares covered by the
registration statement. Borrower will furnish to the Selling Securities Holders
such numbers of copies of a prospectus, including a preliminary prospectus,
in
conformity with the requirements of the Act and such other related documents
as
the Selling Securities Holders may reasonably request in order to effect the
sale of the Shares. To effect any offering pursuant to a registration statement
under this Section, Borrower shall enter into an agreement containing customary
representations and warranties, and indemnification and contribution provisions,
all for the benefit of Selling Securities Holders, and, in the case of an
underwritten public offering. an underwriting agreement with an investment
banking firm selected by the Lender and reasonably acceptable to Borrower,
containing such customary representations and warranties, and indemnification
and contribution provisions Borrower shall have no obligation to make any cash
settlement or payment to the Lenders or any holder of Shares or to issue any
additional Shares in the event that Borrower is unable to effect
or
14
maintain
in effect the registration of the Shares under the Act or any state securities
law despite Borrower’s commercially reasonable efforts so to do.
18.2 If,
at
any time, Borrower proposes to register any of its securities under the Act
(otherwise than pursuant to Section 18.1 above or on a Form S-8 if such form
cannot be used for registration of the Shares pursuant to its terms), Borrower
shall, as promptly as practicable, give written notice to the Lender. Borrower
shall include in such registration statement the Shares proposed to be sold
by
the Selling Securities Holders. Notwithstanding the foregoing, if the offering
of Borrower’s securities is to be made through underwriters, Borrower shall not
be required to include the Shares if and to the extent that the managing
underwriter reasonably believes in good faith that such inclusion would
materially adversely affect such offering unless the Selling Securities Holders
agree to postpone their sales until 10 days after the distribution is completed.
18.3 Borrower
shall pay the cost of the registration statements filed pursuant to this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws (including counsel’s
fees and expenses in connection therewith), printing expenses, messenger and
delivery expenses, internal expenses of Borrower, listing fees and expenses,
and
fees and expenses of Borrower’s counsel, independent accountants and other
persons retained or employed by Borrower. Selling Securities Holders shall
pay
any underwriters discounts applicable to the Shares.
19. Legends.
The
Shares issued pursuant to this Agreement shall bear an appropriate legend,
conspicuously disclosing the restrictions on transfer under the Act until the
same are registered for sale under the Act. Borrower agrees that upon the sale
of the Shares pursuant to a registration statement or an exemption, upon the
presentation of the certificates containing such a legend to it’s transfer
agent, it will remove such legend. Borrower further agrees to remove the legend
at such time as registration under the Act shall no longer be required.
15
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
VP & Secretary; Member, Office of the
President
LENDERS:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
16
Broadwood
Partners, L.P.
By:
Broadwood Capital, Inc., General Partner of Broadwood Partners,
L.P.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇, President
17
SCHEDULE
I
Name
and Address
Of
Lender Amount
of Loan Commitment
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
$250,000
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
$250,000
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
FAX
(▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
$250,000
▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
FAX
▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Broadwood
Partners,
L.P.
$250,000
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
18
EXHIBIT
A-1
AMENDED
AND RESTATED REVOLVING CREDIT NOTE
$100,000
April
12,
2006
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 HUNDRED THOUSAND ($100,000) or such lesser amount as may from time to
time be outstanding as the Loan pursuant to that certain First Amended and
Restated Revolving Line of Credit Agreement, dated October __, 2007, 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
Amended and Restated Revolving Credit Note is one of the Notes described in
the
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 (a) 10% per annum on the outstanding
principal balance of the Loan through October 31, 2007, and (b) 12% per annum
on
the outstanding principal balance of the Loan from October 31, 2007 until the
Maturity Date or such earlier date on which the principal balance is paid in
full. 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) Mandatory
Prepayment of Principal.
In the
event that Borrower receives Earmarked Funds, Borrower shall use the Earmarked
Funds to prepay principal, plus accrued interest, within two business days
after
such Earmarked Funds are received by Borrower, and the amount of principal
so
prepaid shall reduce the Maximum Loan Amount.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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 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
2
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-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.
3
(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.
(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
___________________________________________
4
EXHIBIT
A-2
REVOLVING
CREDIT NOTE
$___________ October
__, 2007
FOR
VALUE
RECEIVED, the undersigned, BioTime, Inc., a California corporation (Borrower")
hereby promises to pay to the order of ___________("Lender") the principal
sum
of _____________ DOLLARS ($_______________) or such lesser amount as may from
time to time be outstanding as the Loan pursuant to that certain First Amended
and Restated Revolving Line of Credit Agreement, dated October __, 2007, 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 one of the Notes described in the 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) Mandatory
Prepayment of Principal.
In the
event that Borrower receives Earmarked Funds, Borrower shall use the Earmarked
Funds to prepay principal, plus accrued interest, within two business days
after
such Earmarked Funds are received by Borrower, and the amount of principal
so
prepaid shall reduce the Maximum Loan Amount.
(d) 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.
(e) 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
1
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.
(f) 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.
(g) 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.
(h) 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 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
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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-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.
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(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.
(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
___________________________________________
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