Exhibit 10.21
ROYALTY TERMINATION
AGREEMENT
THIS ROYALTY TERMINATION
AGREEMENT (this “
Agreement ”) is made as of November 17, 2010, by
and among AUTOVAXID, INC., a Florida corporation (“
AutovaxID ”) and BIOVEST INTERNATIONAL, INC., a
Delaware corporation (“ Biovest ”), on the one
hand, and LV ADMINISTRATIVE SERVICES, INC., a Delaware corporation,
as administrative and collateral agent for the Lenders (the “
Agent ”), LAURUS MASTER FUND, LTD. (IN LIQUIDATION)
(“ Laurus ”), VALENS U.S. SPV I, LLC, VALENS
OFFSHORE SPV I, LTD., VALENS OFFSHORE SPV II, CORP. and PSOURCE
STRUCTURED DEBT LIMITED (collectively, the “ Prepetition
Lenders ” and together with the Agent, the “
Creditor Parties ”), on the other hand.
RECITALS
WHEREAS , pursuant to that certain letter agreement
dated as of March 19, 2007 (the “ March 2007
Agreement ”), by and among Biovest, the Biovest
Subsidiaries, Accentia and Laurus, Biovest and AutovaxID granted to
Laurus a non-cancelable royalty equal to three percent (3%) of
world-wide Net Sales (defined as gross receipts from the world-wide
sales of AutovaxID™ Instruments less any rebates, returns and
discounts) of AutovaxID™ Instruments (defined as the
automated cell and biologic production instrument known as
AutovaxID™) for a period of five years commencing on
May 31, 2007 (the “ AutovaxID Royalty
”);
WHEREAS , pursuant to that certain Term Loan and
Security Agreement (the “ Security Agreement ”)
dated as of November 17, 2010, by and among Biovest, the
Lenders party thereto and the Agent, the parties hereto, in
consideration for the acceptance by certain of the Prepetition
Lenders of the allowed secured claims against Biovest as provided
therein, have agreed, among other things, to the termination of the
AutovaxID Royalty; and
WHEREAS , pursuant to the terms and conditions of the
Security Agreement and the Confirmed Plan, the parties hereto
hereby desire to terminate the AutovaxID Royalty effective as of
the date of this Agreement.
NOW, THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized
terms used but not defined herein shall have the meanings ascribed
to them in the Security Agreement.
2. The
parties hereto agree that the above Recitals are true and correct
in all respects.
3. The
parties hereto hereby consent to the termination of the AutovaxID
Royalty (and all of the rights and obligations created thereunder)
effective as of the date of this Agreement.
4. Each
of the Creditor Parties hereby acknowledges and agrees that it
shall have no claims of any nature whatsoever against Biovest,
AutovaxID or Accentia as a result of the termination of the
AutovaxID Royalty.
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5. This
Agreement shall be binding upon the parties hereto and their
respective successors and assigns. The parties hereto agree that
this Agreement is fully and adequately supported by consideration,
is fair and reasonable, and that they have had the opportunity to
discuss this matter with counsel of their choice. This Agreement
may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall be deemed to
constitute one agreement. It is understood and agreed that if
facsimile copies of this Agreement bearing facsimile signatures are
exchanged between the parties hereto, such copies shall in all
respects have the same weight, force and legal effect and shall be
fully as valid, binding, and enforceable as if such signed
facsimile copies were original documents bearing original
signature.
6. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED ACCORDING TO, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS PROVISIONS
THEREOF. ANY ACTION BROUGHT CONCERNING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE STATE
COURTS OF NEW YORK OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF
NEW YORK. The prevailing party shall be entitled to recover
from the other party its reasonable attorneys’ fees and
costs. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
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IN WITNESS WHEREOF
, the undersigned have executed
thi
