EXHIBIT 10.4
REAFFIRMATION AND RATIFICATION
AGREEMENT
July 31, 2008
LV Administrative Services, Inc., as
Agent
Laurus Master Fund, Ltd.
Valens U.S. SPV I, LLC
Valens Offshore SPV I, Ltd.
Valens Offshore SPV II, Corp.
PSource Structured Debt Limited
c/o Valens Capital Management, LLC
and Laurus Capital Management, LLC
355 Madison Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to (a) that
certain Note and Warrant Purchase Agreement dated as of
March 31, 2006 (as amended, supplemented, restated or modified
from time to time, the “ March 2006 Laurus Purchase
Agreement ”) by and between Laurus Master Fund, Ltd.
(“ Laurus ”) and Biovest International, Inc.
(“ Biovest ”); (b) that certain Secured
Promissory Note dated March 31, 2006 (as amended,
supplemented, restated or modified from time to time, the “
Laurus March 2006 Note ”) in the original principal
amount of $7,799,000 issued by Biovest in favor of Laurus;
(c) the Related Agreements (as defined in the March 2006
Laurus Purchase Agreement); (d) that certain Note Purchase
Agreement dated as of October 30, 2007 (as amended,
supplemented, restated or modified from time to time, the “
October 2007 Valens US Purchase Agreement ”) by and
between Valens U.S. SPV I, LLC (“ Valens US ”)
and Biovest; (e) that certain Secured Promissory Note dated
October 30, 2007 (as amended, supplemented, restated or
modified from time to time, the “ Valens US October 2007
Note ”) in the original principal amount of $245,000
issued by Biovest in favor of Valens US; (f) the Related
Agreements (as defined in the October 2007 Valens US Purchase
Agreement); (g) that certain Note Purchase Agreement dated as
of October 30, 2007 (as amended, supplemented, restated or
modified from time to time, the “ October 2007 Valens
Offshore II Purchase Agreement ”) by and between Valens
Offshore SPV II, Corp. (“ Valens Offshore II ”)
and Biovest; (h) that certain Secured Promissory Note dated
October 30, 2007 (as amended, supplemented, restated or
modified from time to time, the “ Valens Offshore II
October 2007 Note ”) in the original principal amount of
$255,000 issued by Biovest in favor of Valens Offshore II;
(i) the Related Agreements (as defined in the October 2007
Valens Offshore II Purchase Agreement); (j) that certain Note
Purchase Agreement dated as of December 10, 2007 (as amended,
supplemented, restated or modified from time to time, the “
December 2007 Valens US Purchase Agreement ”) by and
between Valens US and Biovest; (k) that certain Secured
Promissory Note dated December 10, 2007 (as amended,
supplemented, restated or modified from time to time, the “
Valens US December 2007 Note ”) in the original
principal amount of $4,900,000 issued by Biovest in favor of Valens
US; (l) the Related Agreements (as defined in the December
2007 Valens US Purchase Agreement); (m) that certain Note
Purchase Agreement dated as of December 10, 2007 (as amended,
supplemented, restated or modified from time to time, the “
December 2007 Valens Offshore II Purchase Agreement
”)
by and between Valens Offshore II and Biovest;
(n) that certain Secured Promissory Note dated
December 10, 2007 (as amended, supplemented, restated or
modified from time to time, the “ Valens Offshore II
December 2007 Note ”, and collectively with the Laurus
March 2006 Note, the Valens US October 2007 Note, the Valens
Offshore II October 2007 Note, the Valens US December 2007 Note and
the Valens Offshore II December 2007 Note, the “ Existing
Notes ”) in the original principal amount of $3,600,000
issued by Biovest in favor of Valens Offshore II; (o) the
Related Agreements (as defined in the December 2007 Valens Offshore
II Purchase Agreement); (p) that certain Guaranty dated as of
December 10, 2007 (as amended, supplemented, restated or
modified from time to time, the “ Subsidiary Guaranty
”) by Biovax, Inc., a Florida corporation (“
Biovax ”), AutovaxID, Inc., a Florida corporation
(“ AutovaxID ”), Biolender, LLC, a Delaware
limited liability company (“ Biolender I ”) and
Biolender II, LLC, a Delaware limited liability company (“
Biolender II ”; and together with Biovax, AutovaxID
and Biolender I, collectively, the “ Subsidiary
Guarantors ”) in favor of LV Administrative Services,
Inc., as agent (the “ Agent ”), Valens US and
Valens Offshore II; (q) that certain Guaranty dated as of
December 10, 2007 (as amended, supplemented, restated or
modified from time to time, the “ Parent Guaranty
”) by Accentia Biopharmaceuticals, Inc., a Florida
corporation (the “ Parent Guarantor ”), in favor
of Agent, Valens US and Valens Offshore II; (r) that certain
Limited Guaranty dated as of January 31, 2008 (as amended,
supplemented, restated or modified from time to time, the “
Limited Guaranty �
