SECOND AMENDMENT AND EXTENSION OF STANDSTILL AND FORBEARANCE AGREEMENT
Exhibit 10.1
SECOND AMENDMENT AND EXTENSION OF STANDSTILL AND FORBEARANCE
AGREEMENT
This
Second Amendment and Extension of Standstill and Forbearance
Agreement (this “Agreement”) is entered
into as of January 31, 2021, by
and between GT Biopharma, Inc., a Delaware corporation (the
“Company”), and [●]
(the “Lender”), with respect to
that certain Standstill and Forbearance Agreement, dated as of June
23, 2020, between the Company and the Lender (as amended,
supplemented, or otherwise modified from time to time, the
“Forbearance
Agreement”). Any capitalized term used in this
Agreement and not otherwise defined shall have the meaning ascribed
to it in the Forbearance Agreement.
RECITALS
A. The
Company and the Lender are parties to the Forbearance Agreement
pursuant to which the Lender agreed to refrain and forbear from
exercising certain rights and remedies with respect to the Notes
and Default Indebtedness, as further described and set forth in
such Forbearance Agreement.
B. The
Fixed Termination Date as set forth in the Forbearance Agreement
was set at the earlier of (i) the date that the Company obtains and
closes on the New Financing (as defined in Section 5 of the
Forbearance Agreement), and (ii) January 31, 2021.
C. The
Company has requested that the Fixed Termination Date be extended
to February 15, 2021, and the Lender is willing to do so on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
promises and the mutual agreements therein, and for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as
follows:
Section
1.
Extension of Fixed Termination
Date. The parties hereto acknowledge and agree that Section
4 of the Forbearance Agreement shall be deleted in its entirety and
replaced with the following:
“In reliance
upon the representations, warranties and covenants of the Company
contained in this Agreement, and subject to Section 5 and provided
that the Company does not take any action that is inconsistent with
Sections 2 and 3 of this Agreement, the Lender agrees that, from
the date of this Agreement until the earlier of (i) the date that
the Company obtains and closes on the New Financing (as defined in
Section 5 of this Agreement), and (ii) February 15, 2021,
(such earlier date being the “Fixed Termination Date”
and the period commencing on the date of this Agreement and ending
on the Fixed Termination Date being the “Standstill Period”), the
Lender will forbear from exercising its rights and remedies based
on any Existing Default.”
Section
2.
No Other Modification. The
amendments set forth in Section 1 are effective only
for the express purposes set forth herein, are limited precisely as
written and shall not constitute or be deemed to constitute an
amendment, waiver or modification of, or consent to any deviation
from, the terms and conditions of the Forbearance Agreement, except
as expressly set forth herein, and shall not prejudice any right or
remedy which the Lender may now have or may have in the future
under or in connection with the Forbearance Agreement or the Notes.
Except as expressly set forth herein, the Forbearance Agreement
shall remain in full force and effect and is hereby confirmed and
ratified in all respects.
Section
3.
Incorporation by Reference. The
terms and provisions of Section 7 (Other SFA and Other Holders), Section
11 (Waiver of Jury Trial;
Governing Law and Consent to Jurisdiction) and Section 13
(Miscellaneous) are hereby
incorporated by reference and shall apply to this Agreement
mutatis mutandis as if fully set forth
herein.
Section
4.
Public Disclosure. The Company
shall, as soon as practical, taking into account legal
requirements, file a Form 8-K with the Commission, reasonably
acceptable to the Lender, disclosing the material terms of the
transactions contemplated hereby. The Company shall consult with
the Lender in issuing any other press releases with respect to the
transactions contemplated hereby.
Section
5.
Effectiveness. The Company has
entered into Standstill and Forbearance Agreements (the
“Other SFAs”) substantially the same in all material
respects, except for the name of the lender and the securities
owned by such lender to the Forbearance Agreement, with the holders
(the “Other Holders”) of securities issued by the
Company convertible, exercisable, or exchangeable for shares of the
Company’s common stock covering all securities convertible,
exercisable, or exchangeable for shares of the Company’s
common stock. This Amendment shall be effective upon the execution
of amendments identical, except for the name of the lender, to this
Amendment, by all the Other Holders that hold notes that have
passed their maturity date or the expiration of the standstill
period in their Other SFAs, and provided the Company shall obtain
all such signatures no later than January 31, 2021.
IN WITNESS WHEREOF, each of the
undersigned parties have caused this Agreement to be signed by
their respective duly authorized officers, effective as of the date
first above written.
By:
____________________________
Name:
Title:
[NAME OF LENDER]:
By:
____________________________
Name:
Title:
[Signature
Page for Second Amendment and Extension of Standstill and
Forbearance Agreement]
