ex_10-1.htm


     

    
      

      

    

    EXHIBIT 10.1

     

     

    FORBEARANCE
AGREEMENT

     

    This
FORBEARANCE AGREEMENT
(this “Agreement”) is made
and entered into as of July 22, 2009 by and among (a) York Pharma plc, a public
limited company incorporated under the laws of England and Wales with company
number 04422613 (the “Borrower”) and
(b) ULURU Inc., a Nevada corporation (the “Lender”).  All
capitalized terms used herein without definition shall have the same meanings
herein as in the Note Purchase Agreement referenced below.

     

    WHEREAS, the Borrower and the
Lender are parties to that certain Note Purchase Agreement, dated as of March
31, 2009 (the “Note
Purchase Agreement”), pursuant to which the Lender has made certain loans
to the Borrower (the “Loans”);

    


    WHEREAS, the current
outstanding principal amount under the Note is US$1,000,000.00 and the current
accrued but unpaid interest amount under the Note is US$24,246.58;

    


    WHEREAS, as communicated to
the Borrower by the Lender in a letter to the Borrower dated July 21, 2009, all
such amounts of principal and accrued but unpaid interest under the Note are due
and payable on the date hereof;

    


    WHEREAS, the Borrower has
informed the Lender that it is only able to pay US$250,000.00 (the “Present Payment
Amount”) of such amounts, which will result in a balance of US$774,246.58
remaining unpaid under the Note as of the date hereof (the “Unpaid
Amount”),

    


    WHEREAS, the Borrower and the
Lender acknowledge and agree that the Present Payment Amount will be applied
first to satisfy any and all accrued but unpaid interest due under the Note;
and

    


    WHEREAS, the inability of the
Borrower to satisfy in full the aggregate amount due under the Note on the date
hereof represents a failure by the Borrower to make due and punctual payment of
any interest or principal on the Note when the same shall become due and
payable, thereby constituting an Event of Default under the Note (such Event of
Default being herein referred to as the “Specified
Default”).

    


    NOW, THEREFORE, in
consideration of the premises and the mutual agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:

    


    


    §1.           Forbearance Agreement.  Subject to the
terms and conditions set forth herein, the Lender hereby agrees to forbear from
exercising its rights and remedies under the Loan Documents with respect to the
Specified Default until that date (the “Forbearance Termination
Date”) which is the earliest to occur of (i) July 29, 2009, (ii) the
occurrence after the date hereof of any Event of Default other than the
Specified Default, including without limitation, any application for, or consent
by the Borrower to, the appointment of an administrator, receiver, trustee or
liquidator of any of the Borrower’s properties or assets, (iii) the failure of
the Borrower to comply with any term set forth in this Agreement, or (iv) the
date that the Borrower shall commence any litigation proceeding against the
Lender or any Affiliate of the Lender in connection with or related to any of
the transactions contemplated by the Loan Documents, this Agreement or any
documents, agreements or instruments executed in connection with any of the
foregoing.  On and after the Forbearance Termination Date, the Lender
shall be free in its sole and absolute discretion to proceed to enforce any or
all of its rights under or in respect of the Loan Documents and applicable law,
including, without limitation, (x) the right to require the immediate repayment
of the Loans and the other obligations of the Borrower under the Loan Documents
(the “Obligations”) in full
in accordance with the provisions of the Loan Documents, and (y) the right to
take possession of the Collateral (as defined in the Security
Agreement).

    


    §2.           Covenants.  Without any
prejudice or impairment whatsoever to any of the rights and remedies of the
Lender contained in the Loan Documents, the Borrower covenants and agrees with
the Lender as follows:

    


    (a)           Expenses.  Borrower
hereby agrees to pay and reimburse the Lender, on or prior to the Forbearance
Termination Date, for all costs and expenses (including without limitation, any
fees of counsel) incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and all other documents and instruments
delivered in connection herewith.

     

    (b)           Compliance with Loan
Documents.  The Borrower shall comply with all of the terms,
covenants and provisions contained in the Loan Documents, except as such terms,
covenants and provisions are expressly modified by this Agreement upon the terms
set forth herein.

     

    (c)           Further
Assurances.  The Borrower shall at any time and from time to
time execute and deliver such further instruments and take such further action
as the Lender may reasonably request to effect the purposes of this Agreement
and the Loan Documents.

     

    (d)           Event of
Default.  Any failure by the Borrower to comply with any
provision of this §2 or any material breach by the Borrower of any of its
representations and warranties set forth in §4 below, shall constitute an Event
of Default.

     

    (f)           Rate of
Interest.  In accordance with the terms of the Note, during the
period from and including July 23, 2009 through and including the Forbearance
Termination Date, the Unpaid Amount shall bear interest at a rate per annum
equal to fourteen percent (14%).

    


    §3.           Condition
to Effectiveness.  The effectiveness
of this Agreement shall be conditioned upon:

     

    (a)           the
execution and delivery of this Agreement by the Borrower to the Lender;
and

     

    (b)           the
receipt by the Lender of a cash amount equal to the Present Payment Amount by
wire transfer of immediately available funds pursuant to wire instructions
previously provided to the Borrower by the Lender for the payment of amounts due
under the Note.

     

    §4.           Representations
and Warranties.  The Borrower
represents and warrants to the Lender as follows:

    


    (a)           The
representations and warranties of the Borrower contained in the Loan Documents
were true and correct in all material respects as of the date when made and
continue to be true and correct in all material respects on the date hereof,
except to the extent of changes resulting from transactions or events
contemplated by the Loan Documents and changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse to the
Borrower.

    


    (b)           The
execution, delivery and performance by the Borrower of this Agreement and the
consummation of the transactions contemplated hereby: (i) are within the legal
powers of the Borrower and have been duly authorized by all necessary company
action on the part of the Borrower, (ii) do not require any approval or consent
of, or filing with, any governmental agency or authority, or any other person,
association or entity, which bears on the validity or enforceability of this
Agreement and which is required by law or any regulation or rule of any agency
or authority, or other person, association or entity, (iii) do not violate any
provisions of any order, writ, judgment, injunction, decree, determination or
award presently in effect which is binding on or applicable to the Borrower, or
any law, regulation or rule binding on or applicable to the Borrower or any
provision of the charter documents or by-laws of the Borrower, (iv) do not
result in any breach of or constitute a default under any agreement or
instrument to which the Borrower is a party or to which it is bound, including
without limitation any indenture, credit or loan agreement, lease, debt
instrument or mortgage, except for such breaches and defaults which would not
have a material adverse effect on the Borrower taken as a whole, and (v) do not
result in or require the creation or imposition of any mortgage, deed of trust,
pledge or encumbrance of any nature upon any of the assets or properties of the
Borrower.

     

    


    (c) This
Agreement and the other Loan Documents constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms, provided that (i)
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors, and (ii) enforcement may be subject to general principles
of equity, and the availability of the remedies of specific performance and
injunctive relief may be subject to the discretion of the court before which any
proceeding for such remedies may be brought.

    


    (d)         Except
for the Specified Default, no default or event of default exists under or in
connection with the Loan Documents.

    


    §5.           Loan
Document.  The Borrower and the
Lender agree that this Agreement is a Loan Document for the purposes of the Note
Purchase Agreement.

    


    §6.           Reaffirmation.  Except as
modified hereby, the Borrower hereby reaffirms in all respects all the
covenants, agreements, terms and conditions of the Loan Documents which are
incorporated in full herein by reference, and all terms, conditions and
provisions thereof shall remain in full force and effect.

    


    §7.           Execution
in Counterparts.  This Agreement
may be executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument.  In proving
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is
sought.

    


    §8.           Release.  In order to
induce the Lender to enter into this Agreement, the Borrower acknowledges and
agrees that: (a) the Borrower does not have any claim or cause of action
(absolute or contingent or matured or unmatured) against the Lender (or any of
its directors, officers, employees or agents); (b) the Borrower does not
have any offset right, counterclaim or defense of any kind against any of its
obligations, indebtedness or liabilities to the Lender; and (c) the Lender
has heretofore properly performed and satisfied in a timely manner all of its
obligations to the Borrower.  The Lender wishes (and the Borrower
agrees) to eliminate any possibility that any past conditions, acts, omissions,
events, circumstances or matters would impair or otherwise adversely affect any
of the rights, interests, contracts, collateral security or remedies of the
Lender.  Therefore, the Borrower unconditionally releases, waives and
forever discharges (i) any and all liabilities, obligations, duties,
promises or indebtedness of any kind of the Lender to the Borrower, except the
obligations to be performed by the Lender for the Borrower as set forth in this
Agreement and in the Loan Documents and (ii) all claims, offsets, causes of
action, suits or defenses of any kind whatsoever (if any) arising or existing on
or prior to the date hereof, whether against the Lender or any of its directors,
officers, employees or agents, predecessors, attorneys, affiliates,
subsidiaries, successors and assigns, whether arising at law or in equity,
whether known or unknown, in the case of clause (i) or (ii) above, on
account of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind.

     

    §9.           Effective
Date.  Subject to the
satisfaction of the condition precedent set forth in §3 hereof, this Agreement
shall be deemed to be effective as of July 22, 2009 (the “Effective Date”).

    


     

    §10.           Governing
Law; Consent to Jurisdiction.  This Agreement will be governed
by and interpreted and construed in accordance with the internal laws of the
State of Texas, without regards to conflicts of laws principles.  The
Borrower agrees that any action or claim arising out of any dispute in
connection with this Agreement, any rights or obligations hereunder or the
performance or enforcement of such rights or obligations may be brought in the
courts of the State of Texas or any federal court sitting therein, and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Borrower by mail at the address specified
herein.  The Borrower hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
is brought in an inconvenient court.

    


    §11.           Counterparts.  This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.

     

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    IN
WITNESS WHEREOF, the undersigned have duly executed this Forbearance Agreement
as a sealed instrument as of the date first above written.

     

    


     

    ULURU
Inc.

     

    By:    /s/ Renaat Van
den
Hooff                                                                

    
      	
               
      

            	
              Name:
      Renaat Van den Hooff

            


    

    
      	
               
      

            	
              Title:  President
      and Chief Executive Officer

            


    

    


     

    


     

    YORK
PHARMA PLC

     

    


     

    By:    /s/ Ian
Miscampbell                                                              

    
      	
               
      

            	
              Name:  Ian
      Miscampbell

            


    

    
      	
               
      

            	
              Title:  Finance
      Director