FIFTH AMENDMENT OF REVOLVING LINE OF CREDIT AGREEMENT
Exhibit
10.1
FIFTH
AMENDMENT OF REVOLVING LINE OF CREDIT AGREEMENT
This
Fifth Amendment of Revolving Line of Credit Agreement is made and entered into
as of April 15, 2009, 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, as amended by
that certain Fourth Amendment of Revolving Credit Agreement.
The
Credit Agreement is amended as follows:
1. Definitions:
(a) “Credit Agreement” means the
Third Amended and Restated Credit Agreement, dated March 31, 2008, as amended by
the Fourth Amendment and this Fifth Amendment.
(b) “Fourth Amendment” means the
Fourth Amendment of Revolving Line of Credit Agreement.
(c) “Fifth Amendment” means this
Fourth Amendment of Revolving Line of Credit Agreement.
(d) “Maturity Date” means December
1, 2009.
(e) “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-1evidencing the new Loan amounts to be advanced by certain
Lenders.
(f) “Security Agreement” means
that certain Third Amended and Restated Security Agreement, dated March 31,
2008, as amended by a Fifth 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. Draw Period. The
Draw Period shall end on December 1, 2009.
3. Extension of Maturity
Date. Any Lender holding a Note due April 15, 2009 may extend
the Maturity Date of that Note to December 1, 2009 by executing and delivering
to Borrower an Amendment of Revolving Credit Note in the form of Exhibit
B.
4. 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 a December 1, 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 a new or additional commitment to lend under this Fifth Amendment, or (b)
agree to extend the Maturity Date of their Note to December 1, 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 OTC Bulletin Board 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 Fifth Amendment or an Amendment of
Revolving Credit Note.
5. 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-K
for the fiscal year ended December 31, 2008, and (b) all Current Reports on Form
8-K filed by Borrower since March 23, 2009 (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.
6. Exchange of Debt For
Equity. Lenders who execute an Amendment of Revolving Credit
Note may exchange their amended Notes for BioTime Exchange Shares or ESI
Exchange Shares as follows: Amended Notes that were exchangeable for
BioTime Exchange Shares at a price of $1.25 per share and ESI Exchange Shares at
$2.25 per share until April 15, 2009, may be exchanged for BioTime Exchange
Shares at $1.50 per share and ESI Exchange Shares at $2.75 per share until
December 1, 2009. Amended Notes that were exchangeable for BioTime
Exchange Shares at a price of $1.50 per share and ESI Exchange Shares at a price
of $2.50 per share until April 15, 2009, may be exchanged for BioTime Exchange
Shares at $1.75 per share and ESI Exchange Shares at $3.00 per share until
December 31, 2009.
Notes
having a Maturity Date of December 1, 2009 that were issued for a new Loan
commitment under this Fifth 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 $2.00 per share until December 1, 2009, or (y) ESI Exchange
Shares at a price of $3.50 per share until December 1, 2009. All
other provisions of Section 17 of the Credit Agreement shall
apply.
2
The
foregoing per share exchange prices are subject to proportional adjustment in
the event of a stock split, reverse stock split, stock dividend, or similar
event.
7. Other Provisions of Credit Agreement
Apply. Except as modified or amended by this Fifth Amendment,
all provisions of the Third Amended and Restated Revolving Line of Credit
Agreement as amended by the Fourth Amendment shall remain in full force and
effect. Any Lender who has not previously executed the Third Amended
and Restated Revolving Line of Credit Agreement and Fourth Amendment shall, by
executing this Fifth Amendment, (a) acknowledge receipt of the Third Amended and
Restated Revolving Line of Credit Agreement, and Fourth Amendment, (b) agree to
be bound by all terms and conditions of the Third Amended and Restated Revolving
Line of Credit Agreement, as amended by the Fourth Amendment and by this Fifth
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/ Xxxxxx X.
Xxxxxxxx
Title Chief Financial
Officer
By
/s/ Xxxxxx
Xxxxxx
Title
Vice President &
Secretary
3
LENDERS:
_______________________________________________
Xxxxxx
X. Xxxxxxxx
XXXXXXXX
PARTNERS, LP
By: Greenway
Partners, LP,
General Partner
By
Xxxxxx X. Xxxxxxxx, General
Partner
GREENBELT
CORPORATION
By: Xxxxxx
X. Xxxxxxxx,
President
By
Xxxxxx X. Xxxxxxxx,
President
_________________________________________________
Xxxxxx
Xxxxxxxxx
_________________________________________________
Xxxxxxx Xxxxxx
Broadwood
Partners, LP
By: Broadwood
Capital, Inc.,
General Partner of Broadwood Partners,
LP
By: _______________________________
Xxxx X. Xxxxxxxx,
President
4
Xxxxx
Brothers, LP
By:
____________________________________________
Title: General
Partner
_______________________________________________
Xxxxxx Xxxxxx
Harto
Family Trust
By:
____________________________________________
Title: Trustee
New
England Law School
By:
____________________________________________
Title: __________________________________________
_______________________________________________
Celine Cabanac
Life
Sciences Business Development, LLC
By:
____________________________________________
Title: __________________________________________
_______________________________________________
Xxxxxx X. Xxxxxxx
5
_______________________________________________
Xxxxxxx Xxxxxxx
Castaway
Clothing, LLC
By:
____________________________________________
Title: __________________________________________
SJCMB
Family Limited Partnership
By:
____________________________________________
Title: General
Partner
Xxxxxxxxxx
Xxxxxx Partners, LP
By:
____________________________________________
Title: General
Partner
6
SCHEDULE
I
Loan
Commitment—December 1, 2009 Maturity Date
Name and
Address
Of
Lender Amount of Loan
Commitment
EXHIBIT
A-1
REVOLVING CREDIT
NOTE
$___________ __________,
2009
FOR VALUE
RECEIVED, the undersigned, BioTime, Inc., a California corporation (Borrower")
hereby promises to pay to the order of ___________("Lender") the principal sum
of _____________ DOLLARS ($_______________) or such lesser amount as may from
time to time be outstanding as the Loan pursuant to that certain Fifth Amendment
of Revolving Line of Credit Agreement, dated as of April 15, 2009, 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 Fifth 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 and Fifth Amendment. 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.
A-1
(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
A-2
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.
A-3
(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
____________________________________________
A-4
EXHIBIT
B
AMENDMENT OF REVOLVING
CREDIT NOTE
$___________ __________,
2009
Reference
is made to that certain Revolving Credit Note dated ______, 200__, in the
principal sum of _____________ DOLLARS ($_______________) 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 December
1, 2009. The Note, as so amended, shall be governed by that certain
Fifth Amendment of Revolving Line of Credit Agreement 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
____________________________________________
