Exhibit 10.6
SECOND OMNIBUS AMENDMENT AND
WAIVER
This Second Omnibus Amendment and
Waiver (this “Amendment”), dated as of
February 13, 2006, by and between Accentia Biopharmaceuticals,
Inc., a Florida corporation (the “ Parent ”),
The Analytica Group, Inc., a Florida corporation (“
Analytica ” and, together with the Parent, the “
Companies ” and, each a “ Company
”) and Laurus Master Fund, Ltd., a Cayman Islands company
(the “ Purchaser ”), amends that certain
(i) Securities Purchase Agreement, dated as of April 29,
2005 (the “ Initial Closing Date ”), by and
between the Parent and the Purchaser (as amended, modified or
supplemented, the “ Securities Purchase Agreement
”); (ii) that certain Registration Rights Agreement,
dated as of April 29, 2005, by and between the Parent and the
Purchaser (as amended, modified or supplemented, the “
Registration Rights Agreement ”); (iii) that
certain Amended and Restated Secured Convertible Term Note, dated
as of April 29, 2005 and amended and restated as of
August 16, 2005, by the Parent in favor of Purchaser in the
initial face amount of $5,000,000, and increased to $10,000,000 (as
amended, modified or supplemented, the “ Term Note
”); (iv) that certain Amended and Restated Secured
Convertible Minimum Borrowing Note, dated as of April 29, 2005
and amended and restated as of August 16, 2005, by the Parent
and Analytica in favor of Purchaser in the initial face amount of
$2,500,000 (as amended, modified or supplemented, the “
Minimum Borrowing Note ”); (v) that certain
Amended and Restated Secured Non-Convertible Revolving Note, dated
as of April 29, 2005 and amended and restated as of
August 16, 2005, by the Parent and Analytica in favor of
Purchaser in the initial face amount of $5,000,000 (as amended,
modified or supplemented, the “ Revolving Note
”); and (v) that certain Security Agreement, dated as of
April 29, 2005 between the Parent, Analytica and the Purchaser
(as amended, modified or supplemented, the “ Security
Agreement ”, collectively, with the Securities Purchase
Agreement, the Registration Rights Agreement, the Term Note, the
Minimum Borrowing Note and the Revolving Note, the “
Funding Documents ”). Capitalized terms used but not
defined herein shall have the meanings given them in the Securities
Purchase Agreement and/or the Security Agreement, as
applicable.
WHEREAS, Laurus has agreed to waive
on the terms and conditions set forth herein, the Events of Default
that may have occurred and are continuing as a result of
investments made by the Parent in Biovest International, Inc.
(“ Biovest ”) in amounts otherwise prohibited
under the Securities Purchase Agreement and Security Agreement and
incurrence by the Parent of Indebtedness from the Missouri State
Bank (“ MSB ”), and, in consideration therefore
and in consideration of the other agreements set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the
Company has agreed to issue the Additional Warrant (as defined
below) to Laurus; and
WHEREAS, the Company and Laurus have
agreed to make certain changes to the Securities Purchase
Agreement, the Registration Rights Agreement, the Term Note, the
Minimum Borrowing Note, the Revolving Note and the Security
Agreement as set forth herein.
NOW, THEREFORE, in consideration of
the above, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
WAIVERS
1. Effective as of the Amendment
Effective Date (as defined below), Laurus hereby waives each Event
of Default that may have arisen under the Funding Documents solely
as a result of (x) investments made by the Parent in Biovest
in an aggregate amount not to exceed $[23,750,000], and
(y) the incurrence by the Parent and TEAMM Pharmaceuticals,
Inc. (“ TEAMM ”) of Indebtedness from MSB in the
aggregate amount not to exceed at any time $3,000,000;
2. Laurus and each Company hereby
agree that the Companies shall not be required to pay the principal
portion of any Monthly Amount (as defined in the Term Note) due on
the first business day of January 2006, February
2006, March 2006, April 2006, May 2006 and June 2006
on such dates (collectively, the “ Postponed Principal
”); provided that , the Postponed Principal
shall be paid in full on the Maturity Date (as defined in the Term
Note), together with all other amounts due and payable on such date
under the Securities Purchase Agreement and the Related
Agreements.
AMENDMENTS
3. Effective as of the Amendment
Effective Date, Section 6.12(e)(w)(z)(I)(B) of the Securities
Purchase Agreement is hereby amended by deleting in full said
clause (e)(w)(z)(I)(B) of Section 6.12(e) and inserting the
following new clause (e)(w)(z)(I)(B) in lieu thereof:
“the aggregate amount of all
such investments shall not exceed at any time outstanding the
greater of (1) $[23,750,000] and (2) the maximum
amoun
