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Exhibit 10.1
FORBEARANCE AGREEMENT
THIS FORBEARANCE
AGREEMENT (this "Agreement") is entered into as of
August 31, 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
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 and
August 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 has
requested that the Lender agree to forbear for the
period of time set forth below from exercising its rights and
remedies arising
solely in connection with the Specified Defaults.
D. The Lender has
agreed to do so, but only pursuant to the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE,
for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
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.
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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) September 10, 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 t
