Exhibit 10.1
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this “
Agreement ”), dated as of October 4, 2011, is
entered into by and between Integrated BioPharma, Inc. (the “
Company ”) and Imperium Advisers, LLC, in its
capacity as collateral agent (in such capacity, “
Collateral Agent ”) for Investors (as defined
below).
W I T N E S
S E T H :
WHEREAS, pursuant to the (1) Amended and
Restated Securities Purchase Agreement, dated as of February 21,
2008, by and between the investors from time to time party thereto
(collectively, “ Investors ”) and the
Company (as amended, the “Securities Purchase
Agreement ”) and (2) other Transaction Documents (as
defined in the Securities Purchase Agreement), the Company sold the
Notes (as defined in the Securities Purchase Agreement) to
Investors and granted to Collateral Agent, for the benefit of
Investors, security interests in and liens upon substantially all
the Company’s assets, including, without limitation, the
Transferred iBio Stock (as defined below);
WHEREAS, as of the date hereof, certain Events
of Default have occurred and are continuing under the Transaction
Documents including the failure to repay the principal obligations
which are due and payable as of the date hereof (the
“ Specified Defaults ”); and
WHEREAS, the Company has requested that
Collateral Agent forbear from exercising its rights and remedies
due to the occurrence of such Specified Defaults, and Collateral
Agent is willing to agree to such request subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the
foregoing, and the respective agreements, warranties and covenants
contained herein, the parties hereto agree, covenant and warrant as
follows:
1.1 Additional
Definitions . As used herein, the following terms
shall have the respective meanings given to them below and the
Transaction Documents shall be deemed and are hereby amended to
include, in addition to and not in limitation of all other
definitions, each of the following definitions:
(a) “ CDS
Intercreditor Agreement ” shall mean the Amended and
Restated Intercreditor Agreement, dated as of February 21, 2008, by
and between CD Financial, LLC and Collateral Agent, on behalf of
Investors, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or
replaced.
(b) “
Forbearance Agreement ” shall mean the
Forbearance Agreement, dated as of October 4, 2011, by and between
the Company and Collateral Agent, as the same now exists or may
hereafter be amended, modified, extended, renewed restated or
replaced.
(c) “
Forbearance Termination Date ” shall mean the
earlier to occur of (i) December 31, 2011 (ii) the date the Company
fails to comply with the covenants, conditions and agreements
contained in this Agreement, (iii) the date of the occurrence of
any Event of Default other than the Specified Defaults or (iv) the
date that the Obligations are paid in full in cash and all other
obligations under the Transaction Documents are
satisfied.
(d) “ Net
Proceeds ” shall mean the aggregate proceeds received
by Collateral Agent from any sale or other disposition of the
Transferred iBio Stock less all reasonable fees and out of
pocket expenses payable in connection with such sale or other
disposition, including brokerage fees.
(e) “
Transferred iBio Stock ” shall mean 1,266,706
shares of the common stock of iBio, Inc. represented by Certificate
Number IBP 38.
1.2
Interpretation . Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them
in the Transaction Documents.
2.1 Acknowledgment
of Obligations . The Company hereby acknowledges
confirms and agrees that, as of the close of business on September
30, 2011, the aggregate outstanding principal amount of the Notes
(including accrued and accreted interest) is $7,805,000 (the
“ Unpaid Principal Obligations ”) and
that such amount, together with all interest accrued and accruing
thereon after September 30, 2011 at the non-default rate, and all
fees, costs, expenses and other charges now or hereafter payable by
the Company to Investors and Collateral Agent under the Transaction
Documents (all of the foregoing collectively referred to as the
“ Obligations ”), is unconditionally
owing by the Company to Investors and Collateral Agent without
offset, defense or counterclaim of any kind, nature or description
whatsoever.
2.2 Acknowledgment
of Security Interests . The Company hereby
acknowledges, confirms and agree that, since February 21, 2008, the
Collateral Agent, for itself and the benefit of Investors, has and
shall continue to have valid, enforceable and perfected liens upon
and security interests in the Collateral, including, without
limitation, the Transferred iBio Stock, and all other assets and
properties of the Company upon or in which Collateral Agent, for
the benefit of Investors, has been granted or holds a lien or
security interest.
2.3 Binding Effect
of Documents . The Company hereby acknowledges,
confirms and agrees that: (a) each of the Transaction
Documents to which it is a party has been duly executed and
delivered to Investors and/or Collateral Agent by the Company and
is in full force and effect as of the date hereof, (b) the
agreements and obligations of the Company contained in such
Transaction Documents constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with the terms thereof, and the Company has no valid
defense to the enforcement of such obligations, and
(c) Collateral Agent and Investors are and shall be entitled
to the rights, remedies and benefits provided for in the
Transaction Documents.
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FORBEARANCE
AS TO CERTAIN EVENTS OF DEFAULT .
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3.1 Acknowledgment
of Specified Defaults . &nb