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EXHIBIT 10.2
AMENDED AND RESTATED FORBEARANCE AGREEMENT
THIS AMENDED AND
RESTATED FORBEARANCE AGREEMENT (this "AGREEMENT") is
entered into as of September 24, 2009 between Ivivi Technologies,
Inc., a New
Jersey corporation (the "COMPANY"), and Emigrant Capital Corp, a
Delaware
corporation (the "LENDER"). All capitalized terms used herein and
not otherwise
defined shall have the meanings ascribed to such terms in the Loan
Agreement
dated as of April 7, 2009 between the Company and the Lender (the
"LOAN
AGREEMENT").
RECITALS
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A. The Company and
the Lender have entered into the Loan Agreement.
B. An Event of
Default has occurred (or shall occur) (i) under Section
9.1(i) of the Loan Agreement as a result of the Company's failure
to repay the
principal of the Loans on the Maturity Date, (ii) under Section
9.1(c) of the
Loan Agreement as a result of the Company's failure to deliver to
the Lender
within the time period specified in Section 8.1(c)(ii)of the Loan
Agreement the
quarterly financial information required by such Section 8.1(c)(ii)
for the
fiscal quarter ended June 30, 2009, (iii) under Section 9.1(c) of
the Loan
Agreement as a result of the Company's failure to deliver to the
Lender within
the time period specified in Section 8.1(c)(iii) of the Loan
Agreement the
monthly financial information required by such Section 8.1(c)(iii)
for July 2009
(and an Event of Default will occur under Section 9.1(c) of the
Loan Agreement
as a result of the Company's expected failure to deliver to the
Lender within
the time period specified in Section 8.1(c)(iii) of the Loan
Agreement the
monthly financial information required by such Section 8.1(c)(iii)
for August
and September 2009) and (iv) under Section 9.1(b) of the Loan
Agreement as a
result of the Company's failure to file its quarterly report on
Form 10-Q within
the time period specified by applicable law, as required by Section
8.1(f) of
the Loan Agreement (the Events of Default described in the
foregoing clauses
(i), (ii), (iii) and (iv) are hereinafter referred to collectively
as the
"SPECIFIED DEFAULTS").
C. The Company and
the Lender have heretofore entered into a
Forbearance Agreement, dated as of August 31, 2009 (as amended by
that certain
letter agreement, dated September 9, 2009, that certain letter
agreement, dated
September 14, 2009, and that certain letter agreement, dated
September 16, 2009,
the "ORIGINAL FORBEARANCE AGREEMENT").
D. The Company,
Ivivi Technologies, LLC and Ajax Capital LLC are,
contemporaneously with the execution of this Agreement, entering
into an Asset
Purchase Agreement, dated as of even date hereof (the "PURCHASE
Agreement").
E. In connection
with the entry by the Company into the Purchase
Agreement, the Company has requested that the Original Forbearance
Agreement be
amended and restated to provide that, among other things, the
Lender agrees to
forbear for the period of time set forth below from exercising its
rights and
remedies arising solely in connection with the Specified
Defaults.
F. The Lender has
agreed to do so, but only pursuant to the terms and
conditions set forth herein.
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AGREEMENT
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NOW, THEREFORE,
for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree that the
Original Forbearance Agreement be, and hereby is, amended and
restated in its
entirety as herein set forth:
1. ESTOPPEL,
ACKNOWLEDGEMENT AND REAFFIRMATION. The Company hereby
acknowledges and agrees that (i) the Specified Defaults currently
exist and have
not been waived by the Lender, (ii) the Company is indebted and
liable to the
Lender in the aggregate principal amount of $2,500,000.00 in
respect of the
Loans, plus interest, fees, expenses (including but not limited to
attorneys'
and financial advisors' fees that are reimbursable under the Loan
Agreement),
charges and all other obligations incurred in connection therewith
as provided
in the Loan Agreement or any Loan Document, and (iii) such amounts
outstanding
under the Loan Agreement constitute valid and subsisting
obligations of the
Company to the Lender that are not subject to any credits, offsets,
defenses,
claims, counterclaims or adjustments of any kind. The Company
hereby (i)
acknowledges and affirms its obligations under the Loan Documents
to which it is
a party, (ii) acknowledges and affirms the Liens created and
granted by the
Company in the Loan Documents and (iii) agrees that this Agreement
shall in no
manner adversely affect or impair such Liens.
2. FORBEARANCE.
Subject to the terms and conditions set forth herein,
the Lender hereby agrees that, during the period commencing on the
date hereof
to (but excluding) the earlier of (a) November 30, 2009 and (b) the
date that a
Forbearance Termination Event occurs (such period, the "FORBEARANCE
PERIOD"),
the Lender shall forbear from (i) declaring the Loans, all interest
thereon and
all other amounts payable under the Loan Documents to be due and
payable as a
result of the occurrence of the Specified Defaults and (ii)
instituting any
judicial or non-judicial action or proceeding to enforce or obtain
payment of
the Loans or to enforce the Lender's Liens as a result of the
Specified
Defaults. The Borrower agrees that, during the Forbearance Period,
the
outstanding principal amount of the Note shall bear interest at a
rate per annum
equal to the lesser of (i) 18% and (ii) the maximum rate permitted
by law.
Nothing set forth herein or contemplated hereby is intended to
constitute an
agreement by the Lender to forbear from exercising any of the
rights or remedies
available to it under the Loan Documents or under applicable law
(all of which
rights and remedies are hereby expressly reserved by the Lender)
with respect to
the Specified Defaults upon or after the termination of the
Forbearance Period.
In addition, nothing herein shall be construed to constitute an
agreement by the
Lender to forbear from exercising any rights and remedies available
to it under
the Loan Documents as a result of any Default or Event of Default
that may exist
on or after the date hereof, other than the Specified Defaults.
Except as
expressly set forth in this Agreement, this Agreement shall not
operate as a
waiver, amendment or modification of any Loan Document.
3. FORBEARANCE
TERMINATION EVENTS. As used herein, a "FORBEARANCE
TERMINATION EVENT" shall mean the occurrence of any of the
following: (i) any
failure by the Company to comply with any of the terms of this
Agreement, (ii)
the exercise of any remedies by any lender (or the administrative
or collateral
agent on behalf of such lender) with respect to any other
Indebtedness for
borrowed money of the Company, (iii) the entry of any final
judgment or
settlement of any lawsuit or proceeding by or on behalf of a holder
or holders
of any other Indebtedness for borrowed money of the Company against
the Company
to receive payments in connection with such Indebtedness, (iv) the
making of any
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payment made by the Company or any of its subsidiaries (a) in cash
in respect of
any Indebtedness for borrowed money of the Company other than the
Loans or (b)
of an extraordinary nature to members of the Company's management,
including,
without limitation, bonuses or other forms of additional cash
compensation, (v)
the Closing (as defined in the Purchase Agreement) of the
transactions
contemplated by the Purchase Agreement, (vi) the Company failing to
consummate
the Closing (as defined in the Purchase Agreement) within three
business days
following the receipt of the Company Shareholder Approval (as
def
