UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): January 16, 2024
iBio, Inc.
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction of incorporation)
001-35023 |
26-2797813 |
(Commission File Number) |
(IRS Employer Identification No.) |
8800 HSC Parkway
Bryan, Texas 77807
(Address of principal executive offices and zip code)
(979) 446-0027
(Registrant’s telephone number including area code)
N/A
(Former Name and Former Address)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $0.001 par value per share |
IBIO |
NYSE American |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry Into a Material Definitive Agreement.
Credit and Security Agreement
On January 16, 2024, iBio, Inc. (the “Company”), entered into a credit and security agreement (the “Credit and Security Agreement”) with Loeb Term Solutions LLC, an Illinois limited liability company (“Lender”), for a term loan or equipment line of credit loan (the “Loan”) pursuant to which the Company issued to Lender a term promissory note in the principal amount of $1,071,572 (the “Term Note”) bearing interest at the Prime Rate, as quoted in the Wall Street Journal plus 8.5% (the “Effective Rate”), for proceeds of $1,027,455.23 after payment of $42,862.88 to Lender as an origination fee, $1,172.89 for appraisal costs, and $75.00 for bank wire fees.
The Term Note provides for monthly payments of principal and interest based on a four-year amortization period, with a balloon payment of all principal, accrued interest and any other amounts due on the two year anniversary of the Term Note. The Credit and Security Agreement granted to Lender a security interest in substantially all of the Company’s assets other than any intellectual property related to any of the Company’s filed patents (the “Collateral”) to secure the Company’s obligations under the Term Note. The Term Note is subject to a prepayment fee of: 4% of the principal amount being prepaid if the Term Note is prepaid during the first 12 months from its issuance, and 3% of the principal amount being prepaid if the Term Note is prepaid during the second 12 months from its issuance date.
The Credit and Security Agreement provides that the Company may request that Lender make further loan advances to the Company subject to certain conditions, including that the Company is not otherwise in default under the Credit and Security Agreement and its obligations and liabilities to Lender do not exceed a borrowing base equal to the lesser of: (a) eighty percent (80.0%) of the forced liquidation value of the Company’s Eligible Equipment as determined by Lender in its sole reasonable discretion, or (b) a monthly dollar amount. The Credit and Security Agreement defines “Eligible Equipment” as equipment that (a) is owned by the Company free of any title defect or any lien or interest of any person except the lien in favor of the Lender; (b) is located at locations permitted by the Credit and Security Agreement; (c) in the Lender’s reasonable opinion, is not obsolete, unsalable, damaged or unfit for further use; (d) is appraised by an appraiser satisfactory to the Lender; (e) complies with any representation or warranty with respect to equipment contained in the Credit and Security Agreement; and (f) is otherwise acceptable to the Lender in its reasonable discretion.
The Company’s obligations to Lender under the Term Note and Credit Security Agreement are further secured by an validity guarantee, dated January 16, 2024 (the “Validity Guarantee”), executed by Dr. Martin Brenner and Felipe Duran in their individual capacity (the “Indemnitors’) for the benefit of Lender. The Validity Guarantee provides that the Indemnitors will indemnify the Lender from any loss or damage, including any actual, consequential or incidental loss or damage, suffered by Lender as a result of, or arising out of, among other things, any willful or intentional misrepresentation or gross negligence by the Company in connection with the Loan and any acts of fraud, conversion, misappropriation or misapplication of funds or proceeds of any Collateral by the Company or the Indemnitors.
The Credit and Security Agreement contains customary events of default. If an event of default occurs, the Term Note provides that regardless of whether the Lender elects to accelerate the maturity of the Term Note, the entire principal remaining unpaid hereunder shall thereafter bear interest at the rate equal to the Effective Rate plus 6% per annum.
The foregoing descriptions of the Credit and Security Agreement, Term Note and Validity Guarantee are qualified in their entirety by reference to the full text of such agreements, copies of which are attached hereto as Exhibits 10.1, 10.3, and 10.4 respectively, and each of which is incorporated herein in its entirety by reference. The representations, warranties and covenants contained in such agreements were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 above of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
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Description |
10.1 |
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10.2 |
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10.3 |
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Term Promissory Note, dated January 16, 2024, in the principal amount of $1,071,572 |
10.4 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: January 19, 2024 |
IBIO, INC. |
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By: |
/s/ Marc A. Banjak |
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Name: |
Marc A. Banjak |
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Title: |
General Counsel and Corporate Secretary |
Exhibit 10.1
CREDIT AND SECURITY AGREEMENT
This Credit and Security Agreement (the “Agreement”) is made and entered into as of January 16, 2024, by and between iBio, Inc., a Delaware corporation with its principal place of business located at 1175 Sorrento Valley Road, Suite 200, San Diego, CA 92121 (“Borrower”), and Loeb Term Solutions LLC, an Illinois limited liability company with an address at 8609 W. Bryn Mawr, Suite 208, Chicago, IL 60631 (“Lender”).
Recitals
This Agreement, including the Schedule to Credit and Security Agreement of even date herewith as may be amended or restated from time to time, sets forth the terms and conditions of the term loan or equipment line of credit loan (the “Loan”) and the obligations of Borrower. Borrower is required to execute the Schedule. The Schedule is incorporated into and made an integral part of this Agreement.
Agreement
In consideration of and as an inducement to Lender making the Loan to Borrower as evidenced by that certain Term Promissory Note of even date herewith, as may be amended or restated (the “Note”), and to secure the payment and performance of the Note and of any and all Obligations and liabilities of Borrower to Lender, whether arising in connection the Loan or any other with loans, advances, purchases, acquisitions, or other extensions of credit made to or on behalf of Borrower or any other person for whom Borrower serves as surety or Guarantor in favor of Lender, and whether direct or indirect, absolute or contingent, or now or hereafter existing, or due or to become due (collectively the “Obligations”), the parties hereto agree as follows:
5. | Representations and Covenants Relating to the Collateral. |
Credit and Security Agreement |
Page 1 of 6 |
CREDIT AND SECURITY AGREEMENT
shall not be unreasonably withheld, except for Inventory in the ordinary course of business.
Credit and Security Agreement |
Page 2 of 6 |
CREDIT AND SECURITY AGREEMENT
reasonably require. All premiums shall be paid by Borrower and the policies shall be delivered to Borrower and Certificate of Insurance shall be delivered to Lender. If Borrower fails to do so, Lender may (but shall not be required) procure such insurance at the Borrower’s expense. BORROWER ALSO GRANTS PERMISSION FOR LENDER TO SPEAK DIRECTLY WITH INSURANCE AGENT AS REQUIRED TO CONFIRM PROPER INSURANCE IS IN PLACE AND IT IS CURRENT.
Credit and Security Agreement |
Page 3 of 6 |
CREDIT AND SECURITY AGREEMENT
or the Collateral, or shall commence any proceedings under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statue of any jurisdiction, whether now or hereafter in effect, or if there shall have been filed any such petition or application, or any such proceeding shall have been commenced against Borrower or Guarantor, which is not dismissed within sixty (60) days;
Failure to exercise any and all rights or remedies Lender may have in the event of any Default shall not constitute a waiver of the right to exercise such rights or remedies in the event of any subsequent Default, whether of the same or different nature. No waiver of any right or remedy by Lender shall be effective unless made in writing and signed by Lender, nor shall any waiver on one occasion apply to any future occasion. Provided there would be no prejudice to Lender and Borrower is cooperative with Lender, Lender shall use good faith efforts to sell or otherwise liquidate the equipment constituting Collateral first.
Credit and Security Agreement |
Page 4 of 6 |
CREDIT AND SECURITY AGREEMENT
and all Guarantors shall have provided general releases in favor of Lender, in form satisfactory to Lender. Borrower understands that this provision constitutes a waiver of its rights under Section 9-513 of the Uniform Commercial Code.
Credit and Security Agreement |
Page 5 of 6 |
CREDIT AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.
Borrower: |
iBio, Inc. |
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Signature: |
/s/ Felipe Duran |
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Name: |
Felipe Duran |
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Title: |
Chief Financial Officer |
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Date: |
January 16, 2024 |
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Lender: |
LOEB Term Solutions LLC |
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Signature: |
/s/ Howard Newman |
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Name: |
Howard Newman |
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Title: |
Manager |
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Date: |
January 16, 2024 |
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Credit and Security Agreement |
Page 6 of 6 |
Exhibit 10.2
SCHEDULE TO CREDIT AND SECURITY AGREEMENT
This Schedule to Credit and Security dated as of January 16, 2024 (the “Schedule”), is part of the Credit and Security Agreement dated as of the same date hereof by and between iBio, Inc., a Delaware corporation (“Borrower”), and Loeb Term Solutions LLC, an Illinois limited liability company (“Lender”), as may be amended or restated from time to time (the “Agreement”).
Recitals
This Schedule is incorporated into and made a part of the Agreement.
This following paragraph numbers correspond to the paragraph numbers in the Agreement.
Agreement
1.Terms and Conditions.
Loan Advances. Provided there is no Default, Borrower may request that Lender make Loan advances to Borrower (each an “Advance” or collectively the “Advances”) provided that the Obligations do not exceed the Borrowing Base (as defined below). Borrower may make one request for an Advance per month, and the request must be made not less than ten (10) days prior to the end of the month for an Advance to be made on the first day of the following month.
Borrowing Base. The “Borrowing Base” is the lesser of (a) eighty percent (80.0%) of the forced liquidation value (the “FLV”) of the Eligible Equipment (defined below) as determined by Lender in its sole reasonable discretion, or (b) the declining monthly dollar amount set forth on attached Exhibit A (the “Borrowing Base Dollar Limitation”). In addition to payments of interest and all unpaid fees set forth in this Schedule, on the first day of each month Borrower shall pay Lender the dollar amount that the outstanding principal amount of the Note exceeds the Borrowing Base. “Eligible Equipment” means equipment that (a) is owned by the Borrower free of any title defect or any lien or interest of any person except the lien in favor of the Lender; (b) is located at locations set forth in this Schedule or as otherwise permitted by the Agreement; (c) in the Lender’s reasonable opinion, is not obsolete, unsalable, damaged or unfit for further use; (d) is appraised by an appraiser satisfactory to the Lender, and all such appraisals shall be in form and substance satisfactory to the Lender; (e) complies with any representation or warranty with respect to equipment contained in the Agreement; and (f) is otherwise acceptable to the Lender in its reasonable discretion.
5.Representations and Covenants Relating to the Collateral.
Permitted Encumbrances. List security interest held by third parties as Permitted Encumbrances: None.
7.Reserves.
Occupancy Reserve. A reserve in the amount of $78,818.10 (the “Occupancy Reserve”) shall be established from the funding of the Note to secure payment of ninety (90) days rent payments as provided in the lease between Borrower and such landlord with respect to such principal place of business. In the event that the Borrower fails to timely pay rent payments on pursuant to such lease, the Lender is authorized to use funds in the Occupancy Reserve to make such payments. The Occupancy Reserve shall at all times constitute additional collateral security for the Loan, and from and after the occurrence of a Default, Lender may, but is not obligated to, apply the Occupancy Reserve to the outstanding indebtedness under the Loan (including, but not limited to, any fees due Lender, principal, interest or any protective advances made by Lender), in its sole and absolute discretion.
9.Inspection; Books, Records and Financial Statements and Reports.
Page 1 of 24
Schedule to Credit and Security Agreement
Management Prepared Financial Statements: Borrower will deliver to Lender quarterly management prepared financial statements, balance sheets, and profit and loss statements for the quarter then ended, certified to by the president, chief financial officer or manager of Borrower. Such reports will set forth the financial affairs and true condition of Borrower for such time period and will be delivered to Lender no later than forty five (45) days after the end of each quarter.
Projections: Upon request, Borrower shall deliver to Lender within forty five (45) days financial projections including a balance sheet, income statements, and statement of cash flows together with assumptions for the following thirteen (13) weeks/twelve (12) months broken down weekly/monthly.
Tax Returns: Upon request, Borrower will provide Lender with current annual tax returns not later than fifteen (15) days after the filing thereof.
Accounts Receivable and Accounts Payable Agings: Upon request, Borrower will furnish to Lender quarterly accounts receivable aging reports and accounts payable aging reports, certified to by the president, chief financial officer or manager of Borrower, no later than fifteen (15) days after the end of each quarter.
Appraisal and Inspection: The Lender shall have the right to have the Eligible Equipment appraised or inspected on an annual basis. At every appraisal or inspection, the loan balance needs to be at 80% Net FLV or lower and must be paid down at the time of the next scheduled Note payment to stay in formula. If the Loan does not close within forty-five (45) days of the initial inspection, Lender may perform a reinspection of the Collateral at the Borrower’s expense. After the occurrence of a Default, there shall be no limit on the number of appraisals and inspections, and Borrower shall reimburse Lender for costs related to such appraisals or inspections. Prior to the occurrence of a Default, Lender will give Borrower seventy-two (72) hours prior notice and such inspection will only be during normal business hours. Borrower authorizes Lender to debit the amount of the Appraisal Expense (as defined below) from Borrower’s bank account via ACH transfer as more fully set forth in the ACH Authorization Agreement. In addition, at all times Lender shall have the right to verify all Accounts, whether in its name or using a fictitious name.
13.Fees and Expenses.
Loan Fee. At closing of the Loan, Borrower will pay Lender a loan fee in an amount equal to four percent (4%) of the stated principal amount of the Note, which will be fully earned as of such date and not refundable.
Appraisal Expense. Borrower shall pay Lender $7,500 per appraisal or inspection performed by or for the benefit of Lender (the “Appraisal Expenses”).
Late Charges. Borrower shall pay to Lender a late charge for each, and every payment not received by Lender on its due date of $500.00. In the event Borrower has been late in making payments under the Note on more than three (3) separate occasions, from that point forward Borrower shall pay Lender a late charge of $750.00 for each and every payment not received by Lender. Such late charges shall be to cover the additional costs in connection with handling of late payments. The imposition of a late charge shall not affect the rights of Lender to declare a Default, to impose a default interest rate under the Note or to impose the Monitoring Fees and shall not be a waiver of any of Lender’s rights and remedies under the Loan Documents or applicable law.
Monitoring Fees. In the event that Borrower has been late in making payments under the Note on more than three (3) separate occasions:
a. |
There shall be no limit on the number of appraisals or inspections to be performed by or for the benefit of Lender, and no limit to the actual Appraisal Expenses incurred by Lender; and |
b. |
Borrower shall pay Lender a $10,000.00 monitoring fee to be paid on the earlier of the Maturity Date of the Note or the earlier repayment (including prepayment or acceleration) of the Note. |
Page 2 of 24
Schedule to Credit and Security Agreement
Amortization and Prepayment Fee. The Note has a four (4) year amortization with a two (2) year balloon (the “Term”). In the event of repayment in full of the indebtedness under the Note or any repayment of five percent (5.0%) or more of the outstanding indebtedness under this Note during any thirty (30) day period prior to the expiration of the Term, Borrower shall pay to Lender, as an early prepayment fee as liquidated damages and not as a penalty, an amount equal to four percent (4%) of the stated principal amount of the Note being prepaid (the “Prepayment Fee”), provided that after the passage of twelve (12) months from the date of the Loan, and provided that all payments under the Loan have been made timely up to that point in time, the Prepayment Fee shall be an amount equal to three percent (3%) of the stated principal amount of the Note being prepaid. In the event that payment of the Note shall be accelerated for any reason whatsoever by the Lender, the full Prepayment Fee shall be added to the outstanding balance of the Note in determining the debt for the purposes of any judgment under the Note, or the amount of Obligations secured by the Collateral.
21.Miscellaneous.
THE PARTIES HERETO AGREE THAT THE AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE SIGNED AND/OR TRANSMITTED BY FACSIMILE, E-MAIL OF A PDF DOCUMENT OR USING ELECTRONIC SIGNATURE TECHNOLOGY (E.G., VIA DOCUSIGN OR SIMILAR ELECTRONIC SIGNATURE TECHNOLOGY), AND THAT SUCH SIGNED ELECTRONIC RECORD SHALL BE VALID AND AS EFFECTIVE TO BIND THE PARTY SO SIGNING AS A PAPER COPY BEARING SUCH PARTY’S HAND-WRITTEN SIGNATURE. THE PARTIES FURTHER CONSENT AND AGREE THAT (a) TO THE EXTENT A PARTY SIGNS THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS USING ELECTRONIC SIGNATURE TECHNOLOGY, BY CLICKING “SIGN”, SUCH PARTY IS SIGNING THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS ELECTRONICALLY, AND (b) THE ELECTRONIC SIGNATURES APPEARING ON THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TREATED, FOR PURPOSES OF VALIDITY, ENFORCEABILITY AND ADMISSIBILITY, THE SAME AS HAND-WRITTEN SIGNATURES.
23.Notices. Addresses for Notices:
If to Borrower, then to: |
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If to Lender, then to: |
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Company: |
iBio, Inc. |
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Company: |
Loeb Term Solutions LLC |
Attention: |
Felipe Duran |
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Attention: |
Howard Newman |
Address: |
11750 Sorrento Valley Rd |
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Address: |
8609 W. Bryn Mawr, |
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Suite 200 |
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Suite 208 |
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San Diego, CA 92121 |
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Chicago, IL 60631 |
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Office Phone: |
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Office Phone: |
773-548-4131 |
Cell Phone: |
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Cell Phone: |
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Email: |
felipe.duran@ibioinc.com |
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Email: |
Legal@loebtermsolutions.com |
Page 3 of 24
Schedule to Credit and Security Agreement
25. |
JURISDICTION AND VENUE. |
The “Chosen Forum” is any courts, whether federal, state or local, situated in the County of Cook, State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Schedule to be executed as of the date first written above.
Borrower: iBio, Inc. |
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Signature: |
/s/ Felipe Duran |
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Name: |
Felipe Duran |
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Title: |
Chief Financial Officer |
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Date: |
January 16, 2024 |
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Lender: LOEB Term Solutions LLC |
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Signature: |
/s/ Howard Newman |
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Name: |
Howard Newman |
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Title: |
Manager |
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Date: |
January 16, 2024 |
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Page 4 of 24
Schedule to Credit and Security Agreement
EXHIBIT A
(NON-EXCLUSIVE EQUIPMENT LIST)
Page 5 of 24
Schedule to Credit and Security Agreement
Page 6 of 24
Schedule to Credit and Security Agreement
Page 7 of 24
Schedule to Credit and Security Agreement
Page 8 of 24
Schedule to Credit and Security Agreement
Page 9 of 24
Schedule to Credit and Security Agreement
Page 10 of 24
Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
Page 13 of 24
Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
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Schedule to Credit and Security Agreement
Exhibit 10.3
TERM PROMISSORY NOTE
Principal Loan Amount: |
$1,071,572.00 |
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City, State: |
Chicago, IL |
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Date: |
1/16/2024 |
FOR VALUE RECEIVED, iBio, Inc., a Delaware corporation, with its principal place of business located at 1175 Sorrento Valley Road, Suite 200, San Diego, CA 92121 (“Borrower”), promises to pay to the order of Loeb Term Solutions LLC, an Illinois limited liability company with its principal place of business located at 8609 W. Bryn Mawr, Suite 208, Chicago, Illinois 60631 (“Lender”), the principal sum of ONE MILLION SEVENTY ONE THOUSAND FIVE HUNDRED SEVENTY TWO and NO/100 DOLLARS ($1,071,572.00), together with interest from time to time outstanding at the Prime Rate (as defined below) plus eight and one-half percent (8.50%) per annum (the “Effective Rate”). Interest shall be computed based on a 365 day year based on a simple interest basis. The Prime Rate shall mean the rate of interest quoted in the Wall Street Journal, Money Rates Section as the “Prime Rate”. In the event that the Wall Street Journal quotes more than one rate, or a range of rates as the Prime Rate, then the Prime Rate shall mean the highest of the quoted rates. In the event that the Wall Street Journal ceases to publish a Prime Rate, then the Prime Rate shall be the average interest rate of the three largest U.S. money center commercial banks, as determined by Lender. The Effective Rate hereunder shall change each time there is a change in the Prime Rate.
The proceeds of this Note shall be used exclusively for business purposes and not for household, family or personal use.
Borrower and all endorsers, sureties, guarantors and any other persons liable or to become liable with respect to the loan (the “Loan”) evidenced by this Term Promissory Note (the “Note”) are each included in the term “Obligors” as used in this Note.
This Note is referred to in and was delivered pursuant to a certain Credit and Security Agreement of even date herewith, as may be amended or restated from time to time (the “Security Agreement”). Reference is made to the Security Agreement for additional terms relating to this Note and the security given for this Note. Any capitalized terms used in this Note, if not defined in this Note, will have the meanings assigned to such terms in the Security Agreement.
From and after a Default (as defined in the Security Agreement), and regardless of whether the Lender elects to accelerate the Maturity Date of this Note, the entire principal remaining unpaid hereunder shall bear interest at the rate equal to the Effective Rate plus six percent (6%) per annum.
Borrower understands and agrees that the monthly payments under this Note are based on a four (4) year amortization (the “Amortization Period”), but with a balloon payment of all principal, accrued interest and all other amounts owing hereunder due on the two (2) year Maturity Date (defined below).
Payments of principal and interest under this Note shall be payable in lawful money of the United States when due without set-off, counterclaim, deduction or withholding for any reason whatsoever on the dates and in the amounts specified below:
Payments of principal and interest shall be made in twenty four (24) consecutive monthly payments as follows: twenty three monthly installments of principal on the first day of each month (each a “Payment Date”) commencing on the first day of the month after the date of this Note, together with accrued and unpaid interest on the outstanding principal amount of the Loan, and then the twenty fourth (24th) and final installment due on the Payment Date of the twenty fourth (24th) month after the date of this Note (the “Maturity Date”) of all outstanding principal, accrued interest, fees and all other amounts due hereunder. It is understood and agreed that monthly payments will first be applied to payment of interest, second to late charges and other fees, and the balance, if any, will be applied to the payment of principal. Borrower understands and agrees that the monthly payments will not fully amortize the Loan over a period of two (2) years, and that the final balloon payment will be substantially higher than the regular monthly payments. In addition, in the event that the Prime Rate increases the Lender may require an adjustment in the monthly payments hereunder by utilizing the Effective Rate in effect on such date and the principal amount outstanding on such date such that the monthly payments so calculated would pay off the Note in full by the end of the Amortization Period, and which adjusted amount the Borrower agrees to pay.
Page 1 of 3
In the event of such adjustment in the monthly payment, the Amortization Period of the Loan shall not change. The Lender shall provide Borrower with an amortization table in connection with the Loan closing setting forth, among other things, the then current monthly payment amount, and shall use reasonable efforts to provide Borrower a revised amortization table when it advises Borrower of a change in the monthly payment amount.
If any payment falls due on a day other than a Business Day, then such payment shall instead be made on the next succeeding Business Day, and interest shall accrue accordingly. Any payment received by Lender after 1:00 p.m. (Central Standard Time) shall not be credited against the indebtedness under this Note until the next succeeding Business Day. “Business Day” means any day excluding Saturday, Sunday, and any day which is a legal holiday under the laws of the State of Illinois or which is a day on which Lender is otherwise closed for transacting business. Borrower shall receive immediate credit on payments only if made in the form of a federal wire transfer of cleared funds.
All payments to the Lender shall either (a) be made via ACH payment pursuant to an Automatic ACH Debit Agreement, or (b) are payable to the Lender at the following bank account, or such other account as may be determined by Lender from time to time and as to which Lender has provided written notice to Borrower not later than ten (10) days prior to a Payment Date:
Wiring Instructions
Byline Bank
1800 S. Halsted
Chicago, IL 60608
ABA#071001533
Account #6300673887
Beneficiary Name: Loeb Term Solutions, LLC
On the Memo Line of the Wire ACH: Notify accounting@loebequipment.com
Upon a Default or at any time thereafter at the option of Lender all principal, interest and any other amounts remaining unpaid hereunder shall immediately become due and payable and Lender shall be entitled to pursue any and all rights and remedies provided by this Note, the Security Agreement and applicable law.
It is the intent of the parties that any money or other property charged, taken or received as interest, a finance charge or fee for the Loan, shall not exceed the limits (if any) imposed or provided by applicable law, and Lender hereby waives any right to demand such excess. In the event that any money or other property charged, taken or received as interest, a finance charge or a fee under this Note exceeds the maximum interest rate permitted by applicable law, then without further agreement or notice the obligation to be fulfilled shall be automatically reduced to such limit and all sums received by Lender in excess of those lawfully collectible as interest shall be (a) applied against the principal of the Loan with the same force and effect as though Borrower had specifically designated such extra sums to be so applied to principal and Lender had agreed to accept such extra payment(s) as a premium-free prepayment or prepayments, and (b) if there are no outstanding obligations under this Note the remaining amount, if any, shall be refunded to Borrower.
Borrower hereby: (a) waives presentment, protest, notice of dishonor, and the filing of any suit against or joinder of any other person; (b) waives any exemption of any property, wherever located, from garnishment, levy, execution, seizure or attachment prior to or in execution of judgment, or sale under execution or other process for the collection of debts; (c) waives any right to plead laches as a defense in any action or proceeding; and (d) agrees that until Lender receives all sums due under this Note in immediately available funds, no Obligor shall be released from liability with respect to the Loan unless Lender expressly releases such Obligor in a writing signed by Lender, and Lender’s release of any Obligor(s) shall not release any other person liable with respect to the Loan.
This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of Illinois.
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Any provision of this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
This Note cannot be changed or modified orally. Lender shall have the right unilaterally to correct patent error or omissions.
IN WITNESS WHEREOF, the Borrower has caused this Term Promissory Note to be executed as of the date first written above.
Borrower: iBio, Inc.
Signature: |
/s/ Felipe Duran |
Name: |
Felipe Duran |
Title: |
Chief Financial Officer |
Date: |
January 16, 2024 |
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Exhibit 10.4
Date: January 16, 2024
Loeb Term Solutions LLC (“LTS”)
8609 W. Bryn Mawr, Suite 208
Chicago, IL 60631
RE: iBio, Inc., a Delaware corporation (the “Debtor”)
Ladies and Gentlemen:
The undersigned (collectively, jointly and severally, “Indemnitor”) are entering into this Indemnification Agreement (this “Agreement”) to induce LTS to extend or continue to extend financial accommodations to or for the benefit of the Debtor pursuant to the terms of a Term Promissory Note dated as of the approximate date hereof and a Credit and Security Agreement dated as of the approximate date hereof between LTS and Debtor, as may be amended or restated (collectively the “Credit Agreement”). All obligations of the Debtor to LTS arising under the Credit Agreement are hereinafter referred to as the “Obligations”. Any capitalized term not defined herein shall have the meaning ascribed thereto in the Credit Agreement.
Indemnitor indemnifies LTS from any loss or damage, including any actual, consequential or incidental loss or damage, including but not limited to costs, expenses and reasonable attorneys’ fees, suffered by LTS as a result of, or arising out of, the following:
i. |
any willful or intentional misrepresentation or gross negligence by Debtor in connection with the Loan, including but not limited to the Debtor’s representations concerning the ownership and liens on the equipment portion of the Collateral; |
ii. |
any acts of fraud, conversion, misappropriation or misapplication of funds or proceeds of any Collateral by Debtor or Indemnitor; |
iii. |
any unauthorized, consensual and intentional transfer, assignment, sale, encumbrance or lien of any Collateral for the Loan, if not expressly permitted by the Credit Agreement; |
iv. |
any waste to the Collateral, caused by the intentional, consensual, willful, wanton or tortious act or omission of Debtor or Indemnitor, |
v. |
the removal or disposal of any portion of the Collateral in contravention of the Credit Agreement; or |
vii. |
Indemnitor asserts any claim, defense, or offset against LTS that Indemnitor has waived or agreed not to assert. |
Indemnitor obligations hereunder shall not be affected by, and Indemnitor waives any and all claims and defenses arising out of, any of the following:
● | Any failure to perfect or continue the perfection of any security interest in or other lien upon any Collateral. |
● | The invalidity, unenforceability, impropriety of manner of enforcement of, or loss or change in priority of, any security interest or lien in the Collateral. |
● | The failure to protect, preserve or insure any Collateral. |
● | Any failure of the Indemnitor to receive notice of presentment, demand, protest, default, non-payment, partial payment, any intended disposition of any of the Collateral, the acceptance of this Agreement or the Credit Agreement, any extension of credit by LTS to Debtor, and all other notices to which Indemnitor might be otherwise entitled. |
● | Any failure or omission by LTS in enforcing LTS’s claims against the Debtor or the Collateral. |
● | Any amendment, release, settlement or compromise of the Obligations. |
● | Any amendment, modification or termination of the Credit Agreement or related documents. |
● | The invalidity or unenforceability of the Obligations. |
● | The filing of an insolvency proceeding by or against Debtor. |
This Agreement shall remain in full force and effect until the later to occur of termination of the Credit Agreement or repayment in full of the Obligations.
In the event of any litigation arising hereunder, the prevailing party shall recover its attorney’s fees and expenses from the unsuccessful party. Any action arising hereunder may, at LTS’s election, be prosecuted in any court located in Illinois (the “Acceptable Forums”). We agree that such forum in convenient to us and we submit to such jurisdiction and waive any objections to jurisdiction or venue. Should we commence an action in any other forum; we waive any right to oppose LTS’s motion or application to transfer such proceeding to a court in the Acceptable Forums.
WE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT WE MAY HAVE TO TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. WE ACKNOWLEDGE THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO LTS IN EXTENDING CREDIT OR CONTINUING TO EXTEND FINANCIAL ACCOMMODATIONS TO THE DEBTOR, THAT LTS WOULD NOT HAVE EXTENDED SUCH CREDIT OR FINANCIAL ACCOMMODATIONS WITHOUT THIS JURY TRIAL WAIVER, AND THAT WE HAVE BEEN REPRESENTED BY AN ATTORNEY OR HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTAND THE LEGAL EFFECT OF THIS WAIVER.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. Each party acknowledges that is has reviewed this Agreement, and the parties hereby agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. Delivery of this Agreement or an executed counterpart hereof shall be deemed a good and valid execution and delivery hereof or thereof.
Name: |
Martin Brenner |
|
Name: |
Felipe Duran |
Address: |
11750 Sorrento Valley Road |
|
Address: |
11750 Sorrento Valley Road |
|
Suite 200 |
|
|
Suite 200 |
|
San Diego, CA 92121 |
|
|
San Diego, CA 92121 |
Sincerely,
/s/ Martin Brenner |
|
/s/ Felipe Duran |
Martin Brenner, Individually |
|
Felipe Duran, Individually |