AMENDED AND RESTATED REVOLVING CREDIT NOTE
Exhibit
10.2
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 17, 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 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.
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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.
(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
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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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