THIRD
AMENDED AND RESTATED REVOLVING LINE OF CREDIT
AGREEMENT
BIOTIME, INC.
Dated
as of March 31, 2008
TABLE OF CONTENTS
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1.
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General
Definitions.
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1
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2.
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Draws
and Disbursements.
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2
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3.
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Terms
of Payment.
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5
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4.
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Shares.
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6
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5.
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Events
of Default.
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6
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6.
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Representations
and Warranties of Borrower.
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7
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7.
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Affirmative
Covenants.
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8
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8.
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Maximum
Permitted Interest.
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10
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9.
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Governing
Law.
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10
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10.
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Successors
and Assigns.
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10
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11.
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Entire
Agreement; Amendment.
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10
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12.
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Survival.
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11
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13.
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Notices.
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11
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14.
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Delays
and Omissions.
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11
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15.
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Rules
of Construction.
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12
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16.
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Counterparts.
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12
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17.
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Exchange
of Debt for Equity.
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12
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18.
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Registration
Rights.
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13
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19.
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Legends.
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15
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20.
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Investment
Representations.
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15
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THIRD AMENDED AND RESTATED REVOLVING LINE OF CREDIT
AGREEMENT
This
Third Amended and Restated Revolving Line of Credit Agreement
(“Credit Agreement”) is made and entered into as
of March 31, 2008, 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 and restates that certain
Revolving Line of Credit Agreement dated April 12, 2006, the
First Amended and Restated Credit Agreement dated October 17,
2007, and the Second Amended and Restated Credit Agreement
dated February 15, 2008.
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
$2,500,000from 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 $2,500,000 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.
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) November
15, 2008, and (ii) such date on which Borrower shall have received
an aggregate of $4,000,000 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 $2,500,000 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 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.
1.10
“Security
Agreement” means that certain Third 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 Two Million Five Hundred
Thousand Dollars ($2,500,000), 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 November 15, 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. Upon the occurrence of an
Event of Default, 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:
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.
2.7
Amended Promissory
Notes . Each Lender who executes this Third
Amended and Restated Credited Agreement and who holds a Note
previously issued (“Original Note”), shall tender their
Original Note for an amended Note referencing the terms of this
Third Amended and Restated Revolving Line of Credit
Agreement. Until such time an Original Note is tendered
to Borrower and an amended Note is delivered to the Lender in
exchange, the capitalized terms in the Original Note shall be
deemed to have the meaning ascribed in this Third Amended and
Restated Revolving Line of Credit Agreement.
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 as
follows: (i) interest accrued on Draws made prior to
March 31, 2008 shall be paid on April 30, 2008; and (ii) all other
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.
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 99,999 Shares to Lenders who were
parties to this Agreement on April 12, 2006, has issued 200,000
Shares to Lenders who were parties to this Agreement on October 17,
2007, and has issued 10,000 Shares to a Lender who became a party
to this Agreement on February 15, 2008. As consideration
for making the amended Credit Facility available to Borrower under
this Credit Agreement (including the extension of the Maturity Date
in the case of Loan commitments made prior to the date of this
Agreement), Borrower shall issue and deliver to each Lender one
Share for each five dollars of the Lender’s Loan commitment
with respect to Loan commitments made prior to April 8, 2008, and
the lesser of (a) one Share for each five dollars of the
Lender’s Loan commitment, or (b) a number of Shares having an
aggregate market value (which shall be deemed to be the closing
price of the Shares on the OTCBB on the last day on which a closing
price of the Shares was reported) equal to six percent (6%) of the
Lender’s Loan commitment, with respect to Loan commitments
made on or after April 8, 2008. 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 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.
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 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.
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
either (a) a copy of Borrower’s 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 nine months ended
September 30, 2007, and all Current Reports on Form 8-K filed by
Borrower since September 30, 2007, or (b) a copy of
Borrower’s annual report on Form 10-KSB for the fiscal year
ended December 31, 2007 and all Current Reports on Form 8-K and
quarterly reports on Form 10-Q filed by Borrower since the filing
of the latest Form 10-KSB (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 decree 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.
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 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 the Shares, 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,
provided, however, that Schedule I may be amended from time to time
by Borrower to reflect the loan commitments of new Lenders who
execute a counterpart of this Agreement, or to reflect an increase
in the loan commitment of any Lender who agrees to increase their
loan commitment.
