Exhibit 10.1
LINE OF CREDIT AGREEMENT
Date: June 4, 2002
THIS AGREEMENT is entered into between BIOPHAN TECHNOLOGIES, INC., a
Nevada corporation having an office address at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
000,Xxxx Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as the
"Borrower") and BIOMED SOLUTIONS, LLC, a New York limited liability company
having an office at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxx,
Xxx Xxxx 00000 (hereinafter the "Lender").
The Lender has agreed to lend Borrower an amount up to Two Hundred Fifty
Thousand Dollars ($250,000.00) in accordance with the terms of this Agreement.
1. COMMITMENT. The Lender agrees to make loans to the Borrower at any time
during this Agreement and prior to the Termination Date, in an aggregate
principal amount up to but not exceeding the sum of $250,000 at any one time
outstanding (herein called the "Commitment"). Advances shall be requested and
made in accordance with the terms of paragraph 8 hereof. During this period,
the Borrower may use the Commitment by borrowing, paying, renewing or
prepaying the outstanding balance as reflected by this Agreement, in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof. The Commitment shall extend through September 1, 2002, which date
shall be the Termination Date. During the term of the Commitment, Borrower's
obligations shall be represented by the Lender's Convertible Promissory Note
in the form attached hereto as Exhibit A.
2. NOTICE OF BORROWING. The Borrower shall give the Lender written notice
of the date and the amount of each proposed borrowing pursuant to the
Commitment, which notice shall comply with the requirements of paragraph 8
hereof. On or before the date specified in such notice, the Lender will make
the amount then to be loaned by it available to the Borrower by deposit in
Borrower's account maintained at the Lender.
3. INTEREST. The Borrower shall pay interest upon the amount at any time
outstanding upon the Note, at the rate of eight percent (8%) per annum.
Interest on the outstanding balance of principal advanced shall accrue and be
payable upon payment or prepayment in full of the unpaid principal balance.
4. VOLUNTARY PREPAYMENTS. The Borrower may, at its option at any one time
or from time to time, prepay either Note, in whole or in part, without premium
or penalty, upon the payment of accrued interest on the amount prepaid to the
date of prepayment.
5. PAYMENT. Payment shall be made on the Termination Date in accordance with
the terms of the Note. All payments (including prepayments) by the Borrower on
account of principal and interest on either Note shall be made to the Lender
by corporate check at the address specified in the Note or by wire transfer.
6. WARRANTS. In consideration of the Commitment, the Lender shall receive
warrants to purchase 75,000 shares of common stock of the Borrower, at an
exercise price of $1.00 per share. In the event that this Note is not repaid
in full within 30 days after the Termination Date, then Lender shall receive
warrants for an additional 50,000 shares for each month there after in which
the Note remains unpaid. Lender shall also receive warrants with respect to
accrued interest, in an amount of shares equal to the amount of accrued
interest divided by 2, which warrants shall be issued upon payment of the
interest (or upon election of conversion). The form of Warrant is attached
hereto as Exhibit B.
8. USE OF PROCEEDS. The proceeds of the loans made hereunder shall be used
for the corporate working capital purposes of the Borrower
9. TRANSFER AGREEMENT. The parties have entered into a Transfer Agreement,
dated December 1, 2000, amended June 12, 2001, pursuant to which Lender
transferred certain technology to Borrower, and Borrower agreed to pay Lender
$500,000, which payment is due on June 1, 2002. The due date for that payment
is hereby extended to September 1, 2002; at the Borrower's option, that due
date may be further extended to December 1, 2002. The failure to make the
payments due under this Note shall constitute an event of default under the
Transfer Agreement, and Lender shall have the right thereupon to declare the
payment due under the Transfer Agreement immediately due and payable.
10. WARRANTS FOR TRANSFER AGREEMENT EXTENSION. The Lender shall receive
warrants to purchase 250,000 shares of common stock of Borrower, at an
exercise price of $1.00 per share, in consideration of the extension of the
Transfer Agreement payment to September 1, 2002. If the Borrower shall
exercise its option to extend the Transfer Agreement payment to December 1,
2002, the Lender shall receive an additional 125,000 warrants.
11. EVENTS OF DEFAULT. Upon the occurrence of any of the following Events
of Default:
a. Failure by the Borrower to pay the principal of or interest upon the
Note within 30 days after the Termination Date;
b. If any representation or warranty made by the Borrower in any
certificate or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have been
untrue or misleading in any material respect;
c. Fifteen (15) days after notice from Lender, if the Borrower shall:
(A) default in the payment of principal or interest on any obligation
for borrowed money (other than the Note), or for the deferred
purchase price of property, beyond the period of grace, if any,
provided with respect thereto, or (B) default in the performance or
observance of any other term, condition, or agreement contained in
any such obligation or in any agreement relating thereto if the
effect thereof is to cause, or permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders) to
cause, such obligation to become due prior to its stated maturity.
d. (A) The Borrower shall commence any case, proceeding, or other action
(i) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, or
relief of debtors, seeking to have an order for relief entered with
respect to it or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, liquidation,
dissolution, composition, or other relief with respect to it or its
debts, or (ii) seeking appointment of a receiver, trustee,
custodian, or other similar official for it or for all or any
substantial part of its property, or the Borrower shall make a
general assignment of the benefit of its creditors; (B) there shall
be commenced against the Borrower, any case, proceeding, or other
action of a nature referred to in clause (A) above or seeking
issuance of a warrant of attachment, execution, restraint, or similar
process against all or any substantial part of its property, which
case, proceeding, or other action (i) results in the entry of an
order for relief, or (ii) remains undismissed, undischarged, or
unbonded for a period of 60 days; (C) the Borrower shall take any
action indicating its consent to, approval of, acquiescence in, or in
furtherance of any of the acts set forth in clauses (A) and (B) above;
or (D) the Borrower shall generally not, or shall be unable to, pay
its debts as they become due or shall admit in writing its inability
to pay its debts;
e. The Borrower shall be dissolved or liquidated; then, and in any such
event, the Lender may by notice to the Borrower declare the
Commitment immediately terminated and/or any amounts outstanding
hereunder to be forthwith due and payable, whereupon the Commitment
shall be immediately terminated and/or the outstanding principal
amount of the Note, together with accrued interest thereon, shall
become immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby
expressly waived, anything contained herein to the contrary
notwithstanding.
12. MISCELLANEOUS.
a. Notices. All notices, requests, and demands to or upon the
respective parties hereto shall be deemed to have been given or made
when deposited in the mail, postage prepaid, addressed as set forth
above or to such other address as may be hereafter designated in
writing by the respective parties hereto.
b. No Waiver, Cumulative Remedies, Amendment. No failure to exercise
and no delay in exercising on the part of the Lender, any right,
power, or privilege hereunder or under either Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, power, or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies provided by law. No
modification or waiver of any provision of this Agreement nor consent
to any departure by the Borrower from the provisions hereof shall be
effective unless the same shall be in writing from the Lender, and
then such waiver or consent shall be effective only in the specific
instance and for the purpose for which it is given. No notice to the
Borrower shall entitle the Borrower to any other or further notice in
other similar circumstances unless expressly provided for herein. No
course of dealing between the Borrower and the Lender shall operate
as a waiver of any of the rights of the Lender under this Agreement.
c. Payment of Fees. The Borrower agrees to pay all reasonable costs and
expenses of the Lender in connection with the enforcement of, or the
preservation of rights arising under, either Note, including
reasonable legal fees and disbursements arising in connection
therewith.
d. Survival of Agreements. All agreements, representations, and
warranties made herein and in any certificate delivered pursuant
hereto shall survive the execution and delivery of this Agreement,
and the making and renewal of loans hereunder and shall continue in
full force and effect until the indebtedness of the Borrower under
either Note has been paid in full.
e. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower may not transfer or
assign any of its rights or interests hereunder without the prior
written consent of the Lender.
f. Construction. This Agreement and the rights and obligations of the
parties hereunder and thereunder shall be governed by, and construed
in accordance with, the laws of the State of New York.
13. REGISTRATION. The Borrower agrees that the shares of its common stock
which underlie the Warrants granted hereunder and the conversion of the
Note shall bear "piggyback" registration rights on any registration
statement filed by the Borrower, not including the currently
contemplated registration statement for shares to be purchased by
Bonanza, as more fully spelled out in the Warrant.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date set forth above.
BORROWER:
BIOPHAN TECHNOLOGIES, INC.
By: /s/Xxxxxxx Xxxxxxx
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Printed Name: Xxxxxxx Xxxxxxx
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Title: Chairman
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LENDER:
BIOMED SOLUTIONS, LLC
By: /s/Xxxxxxx X. Xxxxxx
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Printed Name: /Xxxxxxx X. Xxxxxx
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Title: Manager
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