FIRST AMENDED AND RESTATED REVOLVING CREDIT NOTE
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$4,000,000.00 February 9, 2002
FOR VALUE RECEIVED, the undersigned, XXXX BIOMEDICAL, INC., a California
corporation ("Borrower"), promises to pay, in lawful money of the United States,
to the order of XXXXXX HEALTHCARE FINANCE, INC., a Delaware corporation
(together with its successors and assigns, "Lender"), the principal sum of Four
Million Dollars and No/100 Dollars ($4,000,000.00), or so much of such principal
sum as shall be advanced or readvanced and shall remain unpaid under the Loan
established pursuant to that certain Loan and Security Agreement dated December
26, 2000 by and between the undersigned and Lender (as amended, modified,
restated or replaced from time to time, the "Loan Agreement"), plus interest on
the unpaid balance thereof, computed on a 360-day basis, at the rate per annum
that is set forth in the Loan Agreement. This First Amended and Restated
Revolving Credit Note amends, restates and replaces in its entirety the
Revolving Credit Note dated December 26, 2000 which was previously executed and
delivered by Xxxxxxxx and made payable to Lender.
1. All capitalized terms used and not otherwise specifically defined in
this First Amended and Restated Revolving Credit Note (as amended, modified,
restated or replaced from time to time, the "Note") shall have the meanings
given to them in the Loan Agreement.
2. This Note shall evidence the undersigned's obligation to repay all sums
advanced by Xxxxxx from time to time under the Loan Agreement and as part of the
Loan. The actual amount due and owing from time to time under this Note shall be
evidenced by Xxxxxx's records of receipts and disbursements with respect to the
Loan, which shall be conclusive evidence of that amount, absent manifest error.
3. Interest due pursuant to this Note shall be payable monthly, in arrears,
on the first Business Day of each month after the date of this Note (for the
previous month). For purposes of this Note, a "Business Day" shall mean any day
on which banks are open for business in Maryland, excluding Saturdays and
Sundays.
4. This Note shall become due and payable upon the earlier to occur of (a)
the expiration of the Term, or (b) the occurrence of any Event of Default under
the Loan Agreement, or any other event under any other Loan Documents which
would result in this Note becoming due and payable. At such time, the entire
principal balance of this Note and all other fees, costs and expenses, if any,
shall be due and payable in full. Xxxxxx shall then have the option at any time
and from time to time to exercise all of the rights and remedies set forth in
this Note and in the other Loan Documents, as well as all rights and remedies
otherwise available to Lender at law or in equity, to collect the unpaid
indebtedness under this Note and the other Loan Documents. This Note is secured
by the Collateral, as defined in and described in the Loan Agreement.
5. Whenever any principal and/or interest and/or fee under this Note shall
not be paid when due, whether at the stated maturity or by acceleration,
interest on such unpaid amounts shall thereafter be payable at a rate per annum
equal to five (5) percentage points above the stated rate of interest on this
Note until such amounts shall be paid.
6. The undersigned and Lender intend to conform strictly to the applicable
usury laws in effect from time to time during the term of the Loan. Accordingly,
if any transaction contemplated by the Loan Agreement or this Note would be
usurious under such laws, then notwithstanding any other provision hereof: (a)
the aggregate of all interest that is contracted for, charged, or received under
this Note or under any other Loan Document shall not exceed the maximum amount
of interest allowed by applicable law, and any excess shall be promptly credited
to the undersigned by Xxxxxx (or, to the extent that such consideration shall
have been paid, such excess shall be promptly refunded to the undersigned by
Xxxxxx); (b) neither the undersigned nor any other Person (as defined in the
Loan Agreement) now or hereafter liable hereunder shall be obligated to pay the
amount of such interest to the extent that it is in excess of the maximum
interest permitted by applicable law; and (c) the effective rate of interest
shall be reduced to the Highest Lawful Rate (as defined in the Loan Agreement).
All sums paid, or agreed to be paid, to Lender for the use, forbearance, and
detention of the debt of Borrower to Lender shall, to the extent permitted by
applicable law, be allocated throughout the full term of this Note until payment
is made in full so that the actual rate of interest does not exceed the Highest
Lawful Rate in effect at any particular time during the full term thereof. If at
any time the rate of interest under this Note exceeds the Highest Lawful Rate,
the rate of interest to accrue pursuant to this Note shall be limited,
notwithstanding anything to the contrary in this Note, to the Highest Lawful
Rate, but any subsequent reductions in the Base Rate shall not reduce the
interest to accrue pursuant to this Note below the Highest Lawful Rate until the
total amount of interest accrued equals the amount of interest that would have
accrued if a varying rate per annum equal to the interest rate under the Note
had at all times been in effect. If the total amount of interest paid or accrued
pursuant to this Note under the foregoing provisions is less than the total
amount of interest that would have accrued if a varying rate per annum equal to
the interest rate under this Note had been in effect, then the undersigned
agrees to pay to Lender an amount equal to the difference between (x) the lesser
of (A) the amount of interest that would have accrued if the Highest Lawful Rate
had at all times been in effect, or (B) the amount of interest that would have
accrued if a varying rate per annum equal to the interest rate under the Note
had at all times been in effect, and (y) the amount of interest accrued in
accordance with the other provisions of this Note and the Loan Agreement.
7. This Note is the "Note" referred to in the Loan Agreement, and is issued
pursuant to the Loan Agreement. Reference is made to the Loan Agreement for a
statement of the additional rights and obligations of the undersigned and
Lender. In the event of any conflict between the terms of this Note and the
terms of the Loan Agreement, the terms of the Loan Agreement shall prevail. All
of the terms, covenants, provisions, conditions, stipulations, promises and
agreements contained in the Loan Documents to be kept, observed and/or performed
by the undersigned are made a part of this Note and are incorporated into this
Note by this reference to the same extent and with the same force and effect as
if they were fully set forth in this Note; the undersigned promises and agrees
to keep, observe and perform them or cause them to be kept, observed and
performed, strictly in accordance with the terms and provisions thereof.
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8. Each party liable on this Note in any capacity, whether as maker,
endorser, surety, guarantor or otherwise, (a) waives presentment for payment,
demand, protest and notice of presentment, notice of protest, notice of
non-payment and notice of dishonor of this debt and each and every other notice
of any kind respecting this Note and all lack of diligence or delays in
collection or enforcement hereof; (b) agrees that Lender at any time or times,
without notice to the undersigned or its consent, may grant extensions of time,
without limit as to the number of the aggregate period of such extensions, for
the payment of any principal, interest or other sums due hereunder; (c) to the
extent permitted by law, waives all exemptions under the laws of the State of
Maryland and/or any state or territory of the United States; (d) to the extent
permitted by law, waives the benefit of any law or rule of law intended for its
advantage or protection as an obligor under this Note or providing for its
release or discharge from liability on this Note, in whole or in part, on
account of any facts or circumstances other than full and complete payment of
all amounts due under this Note; and (e) agrees to pay, in addition to all other
sums of money due, all cost of collection and attorney's fees, whether suit be
brought or not, if this Note is not paid in full when due, whether at the stated
maturity or by acceleration.
9. No waiver by Lender of any one or more defaults by the undersigned in
the performance of any of its obligations under this Note shall operate or be
construed as a waiver of any future default or defaults, whether of a like or
different nature. No failure or delay on the part of Lender in exercising any
right, power or remedy under this Note (including, without limitation, the right
to declare this Note due and payable) shall operate as a waiver of such right,
power or remedy nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise of such right, power or
remedy or the exercise of any other right, power or remedy.
10. If any term, provision, covenant or condition of this Note or the
application of any term, provision, covenant or condition of this Note to any
party or circumstance shall be found by a court of competent jurisdiction to be,
to any extent, invalid or unenforceable, then the remainder of this Note and the
application of such term, provision, covenant, or condition to parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, provision, covenant or condition
shall be valid and enforced to the fullest extent permitted by law. Upon
determination that any such term, provision, covenant or condition is invalid,
illegal or unenforceable, Lender may, but is not obligated to, advance funds to
Borrower under this Note until Borrower and Lender amend this Note so as to
effect the original intent of the parties as closely as possible in a valid and
enforceable manner.
11. No amendment, supplement or modification of this Note nor any waiver of
any provision of this Note shall be made except in writing executed by the party
against whom enforcement is sought.
12. This Note shall be binding upon the undersigned and its successors and
assigns. Notwithstanding the foregoing, the undersigned may not assign any of
its rights or delegate any of its obligations under this Note without the prior
written consent of Lender, which may be withheld in its sole discretion.
13. THIS NOTE IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MARYLAND WITHOUT RESPECT TO ANY OTHERWISE APPLICABLE
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CONFLICTS-OF-LAWS PRINCIPLES, BOTH AS TO INTERPRETATION AND PERFORMANCE, AND THE
PARTIES EXPRESSLY CONSENT AND AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF MARYLAND AND THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND AND TO THE LAYING OF VENUE IN THE STATE OF MARYLAND,
WAIVING ALL CLAIMS OR DEFENSES BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE, INCONVENIENT FORUM OR THE LIKE. BORROWER HEREBY CONSENTS TO SERVICE OF
PROCESS BY MAILING A COPY OF THE SUMMONS TO BORROWER, BY CERTIFIED OR REGISTERED
MAIL, POSTAGE PREPAID, TO XXXXXXXX'S ADDRESS SET FORTH IN SECTION 9.4 OF THE
LOAN AGREEMENT. BORROWER FURTHER WAIVES ANY CLAIM FOR CONSEQUENTIAL DAMAGES IN
RESPECT OF ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY LENDER IN GOOD FAITH.
14. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES SHALL
BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF ALL
APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE
FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). XXXXXXXX AGREES
THAT XXXXXX'S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY
OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY
DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN
EVIDENCE DEPOSITION. BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE
EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN
THE MANNER REQUESTED BY XXXXXX, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE,
ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO THE
DISPUTE IN ANY JURISDICTION THAT RECOGNIZES THAT (OR ANY SIMILAR) DISTINCTION.
15. THE UNDERSIGNED HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT TO TRIAL
BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY THE
UNDERSIGNED, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE.
XXXXXX IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS NOTE TO ANY COURT
HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS TO
SERVE AS CONCLUSIVE EVIDENCE OF THE UNDERSIGNED'S WAIVER OF THE RIGHT TO JURY
TRIAL. FURTHER, THE UNDERSIGNED HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
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OF LENDER (INCLUDING XXXXXX'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO ANY BORROWER THAT XXXXXX WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
16. THE UNDERSIGNED HEREBY AUTHORIZES ANY ATTORNEY ADMITTED TO PRACTICE
BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR THE CLERK OF SUCH COURT TO
APPEAR ON BEHALF OF THE UNDERSIGNED IN ANY COURT IN ONE OR MORE PROCEEDINGS, OR
BEFORE ANY CLERK THEREOF OF PROTHONOTARY OR OTHER COURT OFFICIAL, AND TO CONFESS
JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF XXXXXX IN THE FULL AMOUNT DUE ON
THIS NOTE (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY AND ALL CHARGES, FEES
AND COSTS) PLUS ATTORNEYS' FEES EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT
DUE, PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR OPPORTUNITY OF BORROWER FOR
PRIOR HEARING. THE UNDERSIGNED AGREES AND CONSENTS THAT VENUE AND JURISDICTION
SHALL BE PROPER IN THE CIRCUIT COURT OF ANY COUNTY OF THE STATE OF MARYLAND OR
OF BALTIMORE CITY, MARYLAND, OR IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND. THE UNDERSIGNED WAIVES THE BENEFIT OF ANY AND EVERY
STATUTE, ORDINANCE, OR RULE OF COURT WHICH MAY BE LAWFULLY WAIVED CONFERRING
UPON BORROWER ANY RIGHT OR PRIVILEGE OF EXEMPTION, HOMESTEAD RIGHTS, STAY OF
EXECUTION, OR SUPPLEMENTARY PROCEEDINGS, OR OTHER RELIEF FROM THE ENFORCEMENT OR
IMMEDIATE ENFORCEMENT OF A JUDGMENT OR RELATED PROCEEDINGS ON A JUDGMENT. THE
AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST THE UNDERSIGNED
SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, OR BY ANY IMPERFECT
EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT
THERETO; SUCH AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS FROM
TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN AS LENDER SHALL
DEEM NECESSARY, CONVENIENT, OR PROPER.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date
first above written.
BORROWER:
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XXXX BIOMEDICAL, INC.
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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