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Exhibit 10.6
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of
February 21, 2008 (this “ Agreement
”), is by and between CD Financial, LLC (“
CDS ”) and Imperium Master Fund, Ltd.
(“ Imperium Master Fund ”).
W I T N E S S E T
H:
WHEREAS, pursuant to a Securities Purchase
Agreement, dated as of the date hereof (the “
Imperium Purchase Agreement ”), by and
between Integrated BioPharma, Inc., a Delaware corporation (the
“ Company ”), and Imperium Master
Fund, the Company has, among other things, sold and issued to
Imperium Master Fund shares of its Series C Convertible
Preferred Stock (the “ Series C Preferred
Stock ”) and an 8% Senior Secured Note (the
“ Imperium Note ”);
WHEREAS, the Company’s obligations to
repay the Imperium Note and to make certain default payments (if
any) under the Registration Rights Agreement, dated as of the
date hereof (the “ Imperium Registration Rights
Agreement ”), by and between the Company and
Imperium Master Fund, are secured by the assets of the Company
and its subsidiaries pursuant to a Security Agreement, dated as
of the date hereof (the “ Imperium Security
Agreement ”), by and among the Company, its
subsidiaries and Imperium Advisers, LLC, a Delaware limited
liability company (“ Imperium Advisers
” and, together with Imperium Master Fund, “
Imperium ”), in its capacity as agent for
Imperium Master Fund;
WHEREAS, pursuant to a Securities Purchase
Agreement, dated as of the date hereof (the “ CDS
Purchase Agreement ”), by and between the Company
and CDS, the Company has, among other things, sold and issued to
CDS shares of Series C Preferred Stock and a Convertible Note
(the “ CDS Note ”);
WHEREAS, the Company’s obligations to
repay the CDS Note and to make certain default payments (if any)
under the Registration Rights Agreement, dated as of the date
hereof (the “ CDS Registration Rights
Agreement ”), by and between the Company and CDS,
are secured by the assets of the Company and its subsidiaries
pursuant to a Security Agreement, dated as of the date hereof
(the “ CDS Security Agreement ”), by
and among the Company, its subsidiaries and CDS; and
WHEREAS, CDS and Imperium desire to enter into
this Agreement to (i) confirm the relative priority of the
security interests of CDS and Imperium, in the assets and
properties of the Company and its subsidiaries, and (ii) provide
for the orderly sharing among them, in accordance with such
priorities, of proceeds of such assets and properties upon any
foreclosure thereon or other disposition thereof.
NOW THEREFORE, in consideration of the mutual
benefits accruing to CDS and Imperium hereunder and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto do hereby agree as
follows:
As used in this Agreement, the following terms
shall have the meanings ascribed to them below:
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1.1
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“CDS” shall have the meaning set
forth in the preamble hereto.
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1.2
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“CDS Debt” shall mean any and all
obligations, liabilities and indebtedness of every kind, nature
and description owing by any Obligor to CDS arising under the
CDS Documents, including, without limitation, the
“Obligations”, as such term is defined in the CDS
Security Agreement, whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured,
including principal, interest, charges, fees, premiums, costs,
indemnities and expenses, however evidenced, whether as
principal, surety, endorser, guarantor or otherwise, whether now
existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of the CDS Documents or
after the commencement of any Insolvency Proceeding with respect
to any Obligor (and including, without limitation, the payment
of interest which would accrue and become due but for the
commencement of such Insolvency Proceeding, whether or not such
interest is allowed or allowable in whole or in part in any such
Insolvency Proceeding).
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1.3
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“CDS Documents” shall mean the CDS
Note, CDS Purchase Agreement, CDS Security Agreement, CDS
Registration Rights Agreement and any other document or
instrument executed and delivered at any time pursuant to any
CDS Document or otherwise, with respect to any CDS Debt, as the
same may be amended, modified, supplemented, extended, renewed,
or restated from time to time.
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1.4
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“CDS Note” shall have the meaning
set forth in the recitals hereto.
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1.5
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“CDS Purchase Agreement” shall have
the meaning set forth in the recitals hereto.
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1.6
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“CDS Registration Rights Agreement”
shall have the meaning set forth in the recitals hereto.
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1.7
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“CDS Security Agreement” shall have
the meaning set forth in the recitals hereto.
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1.8
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“Company” shall have the meaning set
forth in the recitals hereto.
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1.9
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“Collateral” shall mean all of the
property and interests in property, real or personal, tangible
or intangible, of the Obligors, whether now owned or hereafter
acquired by any of the Obligors, in or upon which any of CDS or
Imperium, at any time has a Lien, including, without limitation,
all proceeds and products of such property.
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1.10
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“Collateral Enforcement Date” shall
have the meaning specified in Section 2.6(b) of this
Agreement.
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1.11
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“Event of Default” means each
“Event of Default” or similar term, as such term is
defined in any CDS Document or any Imperium, Document, so long
as any such Transaction Document is in effect.
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1.12
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“Imperium” shall have the meaning
set forth in the recitals hereto.
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1.13
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“Imperium Advisers” shall have the
meaning set forth in the recitals hereto.
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1.14
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“Imperium Debt” shall mean any and
all obligations, liabilities and indebtedness of every kind,
nature and description owing by any Obligor to Imperium arising
under the Imperium Documents, including, without limitation, the
“Obligations”, as such term is defined in the
Imperium Security Agreement, whether direct or indirect,
absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or
unsecured, including principal, interest, charges, fees,
premiums, costs, indemnities and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise,
whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the
Imperium Documents or after the commencement of any Insolvency
Proceeding with respect to any Obligor (and including, without
limitation, the payment of interest which would accrue and
become due but for the commencement of such Insolvency
Proceeding, whether or not such interest is allowed or allowable
in whole or in part in any such Insolvency Proceeding).
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1.15
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“Imperium Documents” shall mean the
Imperium Note, Imperium Purchase Agreement, Imperium Security
Agreement, Imperium Registration Rights Agreement and any other
document or instrument executed and delivered at any time
pursuant to any Imperium Document or otherwise, with respect to
any Imperium Debt, as the same may be amended, modified,
supplemented, extended, renewed, or restated from time to
time.
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1.16
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“Imperium Master Fund” shall have
the meaning set forth in the preamble hereto.
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1.17
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“Imperium Note” shall have the
meaning set forth in the recitals hereto.
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1.18
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“Imperium Purchase Agreement” shall
have the meaning set forth in the recitals hereto.
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1.19
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“Imperium Registration Rights
Agreement” shall have the meaning set forth in the
recitals hereto.
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1.20
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“Imperium Security Agreement” shall
have the meaning set forth in the recitals hereto.
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1.21
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“Insolvency Proceeding” shall mean,
as to any Obligor, any of the following, occurring after the
date hereof: (a) any
case or proceeding with respect to such Obligor under the U.S.
Bankruptcy Code, any other federal, state or provincial
bankruptcy, insolvency, reorganization or other law affecting
creditors’ rights generally or any other or similar
proceedings of any other jurisdiction or otherwise seeking any
stay, reorganization, arrangement, liquidation, dissolution,
composition or readjustment of the obligations and indebtedness
of such Obligor or (b) any proceeding seeking the appointment of any
receiver, administrative receiver, receiver and manager,
examiner, judicial custodian, trustee, liquidator, official
manager, administrator or similar official for any Obligor or
any material part of its properties or (c) any proceedings for
liquidation, dissolution or other winding up of the business of
such Obligor or (d) the sale of all or substantially all of the assets or
capital stock of such Obligor or (e) any assignment for the
benefit of creditors or any marshaling of assets of such
Obligor.
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1.22
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“Lien” shall mean any mortgage, deed
of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance (including, but not
limited to, easements, rights of way and the like), lien
(statutory or other), security agreement or transfer intended as
security, including without limitation, any conditional sale or
other title retention agreement, the interest of a lessor under
a capital lease or any financing lease having substantially the
same economic effect as any of the foregoing.
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1.23
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“Lien Enforcement Action” means
(a) any action by any
Secured Creditor to foreclose on the Lien of such Person in any
portion of the applicable Collateral, (b) any action by any Secured
Creditor to take possession of, sell or otherwise realize
(judicially or non-judicially) upon all or any portion of the
applicable Collateral (including, without limitation, by setoff
or notification of account debtors), and/or (c) the commencement by any
Secured Creditor of any legal proceedings against or with
respect to any portion of the applicable Collateral to
facilitate the actions described in (a) or (b) above.
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1.24
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“Obligors” shall mean, collectively,
the Company and each of its direct and indirect subsidiaries
that are or that hereafter become party to the CDS Security
Agreement or Imperium Security Agreement; and sometimes being
referred to herein individually as an “Obligor”.
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1.25
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“Person” or “person”
shall mean any individual, sole proprietorship, partnership,
corporation (including, without imitation, any corporation which
elects subchapter S status under the Internal Revenue Code of
1986, as amended), limited liability corporation, limited
liability partnership, business trust, unincorporated
association, joint stock company, trust, joint venture, or other
entity or any government or any agency or instrumentality or
political subdivision thereof.
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1.26
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“Secured Creditors” shall mean,
collectively, (a) CDS
and (b)
Imperium, and, in each case, their respective successors and
assigns; and sometimes being referred to herein individually as
a “Secured Creditor”.
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1.27
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“Transaction Documents” shall mean,
collectively, the CDS Documents and the Imperium Documents.
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1.28 “Waiting
Period” shall have the meaning set forth in Section 2.6(b) of
this Agreement.
All terms defined in the Uniform Commercial Code
as in effect in the State of New York, unless otherwise defined
herein shall have the meanings set forth therein. All references
to any term in the plural shall include the singular and all
references to any term in the singular shall include the
plural.
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2.
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SECURITY INTERESTS;
PRIORITIES; REMEDIES
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2.1
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Acknowledgment of Liens . CDS hereby
acknowledges that Imperium acting for and on behalf of itself
has been granted Liens upon all of the Collateral pursuant to
the Imperium Documents to secure the Imperium Debt. Imperium
hereby acknowledges that CDS has been granted Liens upon the
Collateral pursuant to the CDS Documents to secure the CDS
Debt.
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2.2
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Priority of Liens . Notwithstanding
the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any
document or instrument, or other method of perfecting a security
interest in favor of each Secured Creditor in any Collateral,
and notwithstanding any conflicting terms or conditions which
may be contained in any of the Agreements, the Liens upon the
Collateral of Imperium, have and shall have priority over the
Liens upon the Collateral of CDS, and such Liens of CDS in the
Collateral are and shall be, in all respects, subject and
subordinate to the Liens of Imperium therein to the full extent
of the Imperium Debt.
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2.3
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Priorities Unaffected by Action or
Inaction . The lien priorities provided in Section 2.2 shall
not be altered or otherwise affected by any amendment,
modification, supplement, extension, renewal, restatement,
replacement or refinancing of either the CDS Debt or the
Imperium Debt, nor by any action or inaction which any Secured
Creditor may take or fail to take in respect of the
Collateral.
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2.4
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Rights of Third Parties; No Contest of
Lien . Each Secured Creditor shall be solely responsible for
perfecting and maintaining the perfection of its Lien in and to
each item constituting the Collateral in which such Secured
Creditor has been granted a Lien. The foregoing provisions of
this Agreement are intended solely to govern the respective lien
priorities as between the Secured Creditors and shall not impose
on any Secured Creditor any obligations in respect of the
disposition of proceeds of foreclosure on any Collateral which
would conflict with prior perfected claims therein in favor of
any other person or any order or decree of any court or other
governmental authority or any applicable law. Each Secured
Creditor agrees that it will not contest the validity,
perfection, priority or enforceability of the Liens upon the
Collateral of CDS or Imperium, as the case may be, and that as
between CDS, on the one hand, and Imperium, on the other, the
terms of this Agreement shall govern even if part or all of the
CDS Debt or the Imperium Debt or the Liens securing
payme
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