Exhibit 10.1
LAURUS MASTER FUND,
LTD.
c/o Laurus Capital Management,
LLC
335 Madison Avenue, 10th
Floor
New York, New York
10017
March 19, 2007
Biovest International,
Inc.
377 Plantation Street
Worcester, Massachusetts 01605
Attention: Chief Financial Officer
|
|
Re:
|
Waiver of
Events of Default; Amendment to Note; and Consent to Bridge
Financing
|
Ladies and Gentlemen:
Reference is made to that certain
(a) Note and Warrant Purchase Agreement dated as of
March 31, 2006 (as amended, restated, supplemented and/or
modified from time to time, “the Purchase Agreement
”) by and between Biovest International, Inc. (“
Biovest ”) and Laurus Master Fund, Ltd. (“
Laurus ”), (b) Secured Promissory dated
March 31, 2006 (as amended, restated, supplemented and/or
modified from time to time, the “ Note ”) in the
original principal amount of $7,799,000 and (c) Joinder
Agreement dated as of December 8, 2006 (as amended, restated,
supplemented and/or modified from time to time, the “
Joinder Agreement ”) made by AutovaxID, Inc. (“
AutovaxID ”) and Biolender II, LLC in favor of Laurus
pursuant to which, among other things, AutovaxID agreed to
(i) join that certain Subsidiary Guaranty dated March 31,
2006 made by Biovax, Inc. in favor of Laurus and
(ii) guarantee all of the obligations and liabilities of
Biovest under the Purchase Agreement, the Note and the other
Related Agreements (as defined in the Purchase Agreement) (the
“ Biovest Obligations ”). Capitalized terms used
herein that are not defined shall have the meanings given to them
in the Note.
Biovest has requested that Laurus
(a) waive certain Events of Default that have occurred and are
continuing under the Note, (b) amend the terms of the Note to
defer the payment of certain principal payments that are due and
owing under the Note and (c) consent to Biovest entering into
a bridge financing transaction (the “Bridge Financing”)
and, in each case, Laurus has agreed to do so on the terms and
conditions set forth below.
In consideration of the foregoing
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Upon satisfaction of the
conditions precedent set forth in Section 4 below, Laurus
hereby waives the Events of Default that have occurred
(collectively, the “ Existing Defaults ”) as a
result of Biovest’s failure to make (a) principal
payments to Laurus under the Note on the first business day of each
month from January 2007 through and including March 2007 in the
aggregate principal amount of $511,993.36 in accordance with the
terms of Section 1.4 of the Note (the “ Missed
Principal Payments ”) and (b) interest payments to
Laurus under the Note on the first business day of each month from
January 2007 through and including March 2007 in
accordance with the terms of Section 1.1 of
the Note in the aggregate amount of $180,602.16 (collectively, the
“ Missed Interest Payments ”). Laurus and
Biovest hereby agree that (a) the aggregate principal amount
of the Missed Principal Payments shall be due and payable on the
Maturity Date and (b) the aggregate amount of the Missed
Interest Payments shall be due and payable on the date hereof. The
foregoing is a limited waiver relating solely to the Existing
Defaults and the execution and delivery of this letter agreement
does not constitute a waiver by Laurus of any other Event of
Default heretofore, now or hereafter existing, under the same or
any other term or provision of the Note. This waiver does not
(a) except as expressly set forth above, constitute a waiver
of any term or provision of the Note, or constitute a waiver by
Laurus of any of its other rights or remedies under the Note (all
such rights and remedies being expressly reserved) or
(b) establish a custom or a course of dealing or conduct
between Laurus and Biovest and any of its subsidiaries.
2.(a) Upon satisfaction of the
conditions precedent set forth in Section 4 below, Laurus and
Biovest hereby agree to amend Section 1.4 of the Note in its
entirety to provide as follows:
“1.4 Principal Payments
. Amortizing payments of the aggregate Principal Amount outstanding
under this Note shall be made by the Company on August 1, 2007
and on the first business day of each succeeding month thereafter
through and including the Maturity Date (each, an “
Amortization Date ”). Commencing on the first
Amortization Date, the Company shall make monthly payments to the
Holder on each Amortization Date, each such payment in the amount
of $267,070.24, together with any accrued and unpaid interest on
such portion of the Amortizing Principal Amount plus any and all
other unpaid amounts which are then owing under this Note, the
Purchase Agreement and/or any other Related Agreement. Any
outstanding Principal Amount together with any accrued and unpaid
interest and any a
