Exhibit 10.37
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of April 26, 2007 (this "Agreement"),
by and between Somanta Pharmaceuticals, Inc., a Delaware corporation having its
principal place of business at 00000 Xxx Xxxxxx Xxx, Xxxxx 000, Xxxxxx, XX
00000, (the "Company"), and Access Pharmaceuticals, Inc., a Delaware corporation
having its principal place of business at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, (the "Lender") which are parties to a Note Purchase Agreement
dated as of the date hereof (as amended and in effect from time to time, the
"Note Purchase Agreement"), among the Company and the Lender.
WHEREAS, it is a condition precedent to the Lender's making any loans
to the Company under the Note Purchase Agreement that the Company execute and
deliver to the Lender, for the benefit of the Lender, a security agreement in
substantially the form hereof; and
WHEREAS, the Company wishes to grant a security interest in favor of
the Lender, for the benefit of the Lender, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Construction.
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1.1. Definitions.
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All capitalized terms used herein without definitions shall
have the respective meanings provided therefor in the Note Purchase
Agreement. The term "State", as used herein, means the Commonwealth of
Massachusetts. All terms defined in the Uniform Commercial Code of the
State and used herein shall have the same definitions herein as
specified therein. However, if a term is defined in Article 9 of the
Uniform Commercial Code of the State differently than in another
Article of the Uniform Commercial Code of the State, the term has the
meaning specified in Article 9. The term "Obligations", as used herein,
means all of the indebtedness, obligations and liabilities of the
Company to the Lender, individually or collectively, whether direct or
indirect, joint or several, absolute or contingent, due or to become
due, now existing or hereafter arising under or in respect of the Note
Purchase Agreement, any promissory notes (including the Note) or other
instruments or agreements executed and delivered pursuant thereto or in
connection therewith or this Agreement (collectively, the "Loan
Documents"). The term "Event of Default", as used herein, shall mean
any failure by the Company to pay or perform, as and when due to be
paid or performed under the terms of the Note Purchase Agreement or any
of the other Loan Documents (after giving effect to any applicable
grace periods), any of the Obligations. The term "Permitted Liens" as
used herein shall mean (a) liens to secure taxes in respect of
obligations that are either not overdue, or the validity or amount
thereof is currently being contested in good faith by appropriate
proceedings, and the Company has set aside on its books adequate
reserves with respect thereto, provided, such lien shall not constitute
a Permitted Lien under this paragraph (a) from and after the
commencement of any proceedings to foreclose such lien; (b) landlords'
or lessor's liens on real property, provided that none of such liens
interferes materially with the use of the property affected in the
ordinary course of business of the Company and individually or in the
aggregate have a material adverse effect on the business, operations,
assets or condition (financial or otherwise) of the Company (an "MAE");
(c) purchase money security interests in or purchase money mortgages on
real or personal property acquired after the date hereof to secure
purchase money indebtedness incurred in connection with the acquisition
of such property, which security interest or mortgages cover only the
real estate or personal property so acquired and liens in favor of
lessors under capitalized leases on assets subject to such capitalized
leases; (d) liens of carriers, warehousemen, mechanics and materialmen,
and other like liens on properties, in existence less than 120 days
after the date of creation thereof in respect of obligations not
overdue; (e) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations; (f) liens securing the
performance of bids, trade contracts (other than borrowed money),
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business; (g) encumbrances on real property consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto, provided
that none of such liens interferes materially with the use of the
property affected in the ordinary course of business of the Company and
individually or in the aggregate have a MAE; (h) liens consisting of
bankers' liens and rights of setoff arising by operation of law; (i)
liens on cell lines granted to Immunodex; and (j) liens on the checking
account related to credit card debt.
2. Grant of Security Interest.
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The Company hereby pledges and grants to the Lender, for the benefit of
the Lender, to secure the payment and performance in full of all of the
Obligations, a security interest in the following properties, assets and rights
of the Company, wherever located, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof (all of the same being
hereinafter called the "Collateral"): all personal and fixture property of every
kind and nature, including, without limitation, all goods (including inventory,
equipment and any accessions thereto), instruments (including promissory notes),
documents, accounts, chattel paper (whether tangible or electronic), deposit
accounts, letter-of-credit rights (whether or not the letter of credit is
evidenced by a writing), commercial tort claims, securities and all other
investment property, supporting obligations, any other contract rights or rights
to the payment of money, insurance claims and proceeds, and all general
intangibles (including all payment intangibles, goodwill and intellectual
property of any kind or nature). The Lender acknowledges that the attachment of
its security interest in any commercial tort claim as original collateral is
subject to the Company's compliance with Section 4.6.
3. Authorization to File Financing Statements.
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The Company hereby irrevocably authorizes the Lender at any time and
from time to time to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statements and amendments thereto that (a)
indicate the Collateral (i) as all assets of the Company or words of similar
effect, regardless of whether any particular asset comprised in the Collateral
falls within the scope of Article 9 of the Uniform Commercial Code of the State
or such jurisdiction, or (ii) as being of an equal or lesser scope or with
greater detail, and (b) provide any other information required by part 5 of
Article 9 of the Uniform Commercial Code of the State or such other jurisdiction
for the sufficiency or filing office acceptance of any financing statement or
amendment, including (i) whether the Company is an organization, the type of
organization and any organizational identification number issued to the Company
and, (ii) in the case of a financing statement filed as a fixture filing or
indicating Collateral as as-extracted collateral or timber to be cut, a
sufficient description of real property to which the Collateral relates. The
Company agrees to furnish any such information to the Lender promptly upon
request.
4. Other Actions.
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Further to insure the attachment, perfection and first priority of, and
the ability of the Lender to enforce, the Lender's security interest in the
Collateral, the Company agrees, in each case at the Company's expense, to take
the following actions with respect to the following Collateral and without
limitation on the Company's other obligations contained in this Agreement:
4.1. Promissory Notes and Tangible Chattel Paper. If the
Company shall, now or at any time hereafter, hold or acquire any
promissory notes or tangible chattel paper, the Company shall promptly
endorse, assign and deliver the same to the Lender, accompanied by such
instruments of transfer or assignment duly executed in blank as the
Lender may from time to time specify.
4.2. Investment Property. If the Company shall, now or at any
time hereafter, hold or acquire any certificated securities, the
Company shall promptly endorse, assign and deliver the same to the
Lender, accompanied by such instruments of transfer, endorsement or
assignment duly executed in blank as the Lender may from time to time
specify. If any securities now or hereafter acquired by the Company are
uncertificated and are issued to the Company or its nominee directly by
the issuer thereof, the Company shall immediately notify the Lender
thereof and, at the Lender's request and option, pursuant to an
agreement in form and substance reasonably satisfactory to the Lender,
either (a) cause the issuer to agree to comply without further consent
of the Company or such nominee, at any time with instructions from the
Lender as to such securities, or (b) arrange for the Lender to become
the registered owner of the securities. If any securities, whether
certificated or uncertificated, or other investment property now or
hereafter acquired by the Company are held by the Company or its
nominee through a securities intermediary or commodity intermediary,
the Company shall promptly notify the Lender thereof and, at the
Lender's request and option, pursuant to an agreement in form and
substance reasonably satisfactory to the Lender, either (i) cause such
securities intermediary or (as the case may be) commodity intermediary
to agree to comply, in each case without further consent of the Company
or such nominee, at any time with entitlement orders or other
instructions from the Lender to such securities intermediary as to such
securities or other investment property, or (as the case may be) to
apply any value distributed on account of any commodity contract as
directed by the Lender to such commodity intermediary, or (ii) in the
case of financial assets or other investment property held through a
securities intermediary, arrange for the Lender to become the
entitlement holder with respect to such investment property, with the
Company being permitted, only with the consent of the Lender, to
exercise rights to withdraw or otherwise deal with such investment
property. The provisions of this paragraph shall not apply to any
financial assets credited to a securities account for which the Lender
is the securities intermediary.
4.3. Collateral in the Possession of a Bailee. If Collateral
with a fair market value of at least $10,000 is, now or at any time
hereafter, in the possession of a bailee, the Company shall promptly
notify the Lender thereof and, at the Lender's request and option,
shall promptly obtain an acknowledgement from the bailee, in form and
substance reasonably satisfactory to the Lender, that the bailee holds
such Collateral for the benefit of the Lender and such bailee's
agreement to comply, without further consent of the Company, at any
time with instructions of the Lender as to such Collateral.
4.4. Electronic Chattel Paper and Transferable Records. If the
Company, now or at any time hereafter, holds or acquires an interest in
any electronic chattel paper or any "transferable record," as that term
is defined in Section 201 of the federal Electronic Signatures in
Global and National Commerce Act, or in ss.16 of the Uniform Electronic
Transactions Act as in effect in any relevant jurisdiction, the Company
shall promptly notify the Lender thereof and, at the request and option
of the Lender, shall take such action as the Lender may reasonably
request to vest in the Lender control, under ss.9-105 of the Uniform
Commercial Code, of such electronic chattel paper or control under
Section 201 of the federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, ss.16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such
transferable record.
4.5. Letter-of-credit Rights. If the Company is, now or at any
time hereafter, a beneficiary under a letter of credit now or
hereafter, the Company shall promptly notify the Lender thereof and, at
the request and option of the Lender, the Company shall, pursuant to an
agreement in form and substance reasonably satisfactory to the Lender,
either (a) arrange for the issuer and any confirmer of such letter of
credit to consent to an assignment to the Lender of the proceeds of the
letter of credit or (b) arrange for the Lender to become the transferee
beneficiary of the letter of credit, with the Lender agreeing, in each
case, that the proceeds of the letter of credit are to be applied as
provided in the Note.
4.6. Commercial Tort Claims. If the Company shall, now or at
any time hereafter, hold or acquire a commercial tort claim, the
Company shall promptly notify the Lender in a writing signed by the
Company of the particulars thereof and grant to the Lender, for the
benefit of the Lender, in such writing a security interest therein and
in the proceeds thereof, all upon the terms of this Agreement, with
such writing to be in form and substance reasonably satisfactory to the
Lender.
4.7. Other Actions as to any and all Collateral. The Company
further agrees, upon the request of the Lender and at the Lender's
option, to take any and all other actions as the Lender may reasonably
determine to be necessary or useful for the attachment, perfection and
first priority of, and the ability of the Lender to enforce, the
Lender's security interest in any and all of the Collateral, including,
without limitation, (a) executing, delivering and, where appropriate,
filing financing statements and amendments relating thereto under the
Uniform Commercial Code, to the extent, if any, that the Company's
signature thereon is required therefor, (b) causing the Lender's name
to be noted as secured party on any certificate of title for a titled
good if such notation is a condition to attachment, perfection or
priority of, or ability of the Lender to enforce, the Lender's security
interest in such Collateral, (c) complying with any provision of any
statute, regulation or treaty of the United States as to any Collateral
if compliance with such provision is a condition to attachment,
perfection or priority of, or ability of the Lender to enforce, the
Lender's security interest in such Collateral, (d) obtaining
governmental and other third party waivers, consents and approvals, in
form and substance satisfactory to the Lender, including, without
limitation, any consent of any licensor, lessor or other person
obligated on Collateral, (e) obtaining waivers from mortgagees and
landlords in form and substance reasonably satisfactory to the Lender
and (f) taking all actions under any earlier versions of the Uniform
Commercial Code or under any other law, as reasonably determined by the
Lender to be applicable in any relevant Uniform Commercial Code or
other jurisdiction, including any foreign jurisdiction.
5. Patent and Trademark Assignments.
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Concurrently herewith the Company is executing and delivering to the
Lender, for the benefit of the Lender, the Patent Assignment and the Trademark
Assignment pursuant to which the Company is granting a security interest in and
assigning to the Lender, for the benefit of the Lender, certain Collateral
consisting of patents and patent rights and trademarks, service marks and
trademark and service xxxx rights, together with the goodwill appurtenant
thereto. The provisions of the Patent Agreement and the Trademark Agreement are
supplemental to the provisions of this Agreement, and nothing contained in the
Patent Assignment or the Trademark Assignment shall derogate from any of the
rights or remedies of the Lender hereunder. Neither the delivery of, nor
anything contained in, the Patent Assignment or the Trademark Assignment, shall
be deemed to prevent or postpone the time of attachment or perfection of any
security interest in such Collateral created hereby.
6. Representations and Warranties Concerning Company's Legal
Status.
On or before the date hereof, the Company has delivered to the Lender a
certificate signed by the Company and entitled "Collateral Information
Certificate" (the "Information Certificate"). The Company represents and
warrants to the Lender as follows: (a) the Company's exact legal name is that
indicated on the Collateral Information Certificate and on the signature page
hereof, (b) the Company is an organization of the type, and is organized in the
jurisdiction, set forth in the Collateral Information Certificate, (c) the
Collateral Information Certificate accurately sets forth the Company's
organizational identification number or accurately states that the Company has
none, (d) the Collateral Information Certificate accurately sets forth the
Company's place of business or, if more than one, its chief executive office, as
well as the Company's mailing address, if different, (e) all other information
set forth on the Collateral Information Certificate pertaining to the Company is
accurate and complete, and (f) there has been no change in any of such
information since the date on which the Collateral Information Certificate was
signed by the Company.
7. Covenants Concerning Company's Legal Status.
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The Company covenants with the Lender as follows: (a) the Company will
not change its name, its place of business or, if more than one, chief executive
office, or its mailing address or organizational identification number if it has
one, (b) if the Company does not have an organizational identification number
and later obtains one, the Company will promptly notify the Lender of such
organizational identification number, and (c) the Company will not change its
type of organization, jurisdiction of organization or other legal structure.
8. Representations and Warranties Concerning Collateral, Etc.
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The Company further represents and warrants to the Lender as follows:
(a) the Company is the owner of or has other rights in or power to transfer the
Collateral, free from any right or claim of any person or any adverse lien,
except for the Permitted Liens and the security interest created by this
Agreement, (b) none of the Collateral constitutes, or is the proceeds of, "farm
products" as defined in ss.9-102(a)(34) of the Uniform Commercial Code of the
State, (c) none of the account debtors or other persons obligated on any of the
Collateral is a governmental authority covered by the Federal Assignment of
Claims Act or like federal, state or local statute or rule in respect of such
Collateral, (d) the Company holds no commercial tort claim except as indicated
on the Collateral Information Certificate, (e) the Company has at all times
operated its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances, except where
the failure to do so would not have a MAE, (f) all other information set forth
on the Collateral Information Certificate pertaining to the Collateral is
accurate and complete, and (g) there has been no change in any of such
information since the date on which the Collateral Information Certificate was
signed by the Company.
9. Covenants Concerning Collateral, Etc.
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The Company further covenants with the Lender as follows: (a) the
Collateral, to the extent not delivered to the Lender pursuant to Section 4,
will be kept at those locations listed on the Collateral Information Certificate
and the Company will not remove the Collateral from such locations, except in
the ordinary course of business, without providing at least thirty (30) days
prior written notice to the Lender, (b) except for the security interest herein
granted and Permitted Liens, the Company shall be the owner of the Collateral
free from any right or claim of any other person or any lien, and the Company
shall defend the same against all claims and demands of all persons at any time
claiming the same or any interests therein adverse to the Lender, (c) the
Company shall not pledge, mortgage or create, or suffer to exist any right of
any person in or claim by any person to the Collateral, or any lien in the
Collateral in favor of any person, other than the Lender except for Permitted
Liens, (d) the Company will keep the Collateral in good order and repair and
will not use the same in violation of law or any policy of insurance thereon,
(e) the Company will permit the Lender, or any designee thereof, to inspect the
Collateral at any reasonable time, wherever located, (f) the Company will pay
promptly when due all taxes, assessments, governmental charges and levies upon
the Collateral or incurred in connection with the use or operation of the
Collateral or incurred in connection with this Agreement, except for taxes,
assessments, charges and levies contested in good faith and for which reserves
have been placed on the books of the Company, provided, the Company will pay all
such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to forclose any lien that may have attached as a
security therefor, (g) the Company will continue to operate its business in
compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances, except where the failure to do so would
not have a MAE, and (h) the Company will not sell or otherwise dispose, or offer
to sell or otherwise dispose, of the Collateral or any interest therein except
for (i) sales and leases of inventory and licenses of general intangibles in the
ordinary course of business, and (ii) so long as no Event of Default has
occurred and is continuing, sales or other dispositions of obsolescent items of
equipment consistent with past practices.
10. Insurance.
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10.1. Maintenance of Insurance. The Company will maintain,
with financially sound and reputable insurers, insurance with respect
to its properties and business against such casualties and
contingencies as shall be in accordance with general practices of
businesses engaged in similar activities in similar geographic areas.
Such insurance shall be in such minimum amounts that the Company will
not be deemed a co-insurer under applicable insurance laws, regulations
and policies and otherwise shall be in such amounts, contain such
terms, be in such forms and be for such periods as may be reasonably
satisfactory to the Lender. In addition, all such insurance shall be
payable to the Lender as loss payee for the benefit of the Lender with
respect to property insurance and Lender shall be named as an
additional insured with respect to liability insurance. Without
limiting the foregoing, the Company will (a) keep all of its physical
property insured with casualty or physical hazard insurance on an "all
risks" basis, with broad form electronic data processing coverage, with
a full replacement cost endorsement and an "agreed amount" clause in an
amount equal to 100% of the full replacement cost of such property, (b)
maintain all such workers' compensation or similar insurance as may be
required by law and (c) maintain, in amounts and with deductibles equal
to those generally maintained by businesses engaged in similar
activities in similar geographic areas, general public liability
insurance against claims of bodily injury, death or property damage
occurring, on, in or about the properties of the Company; and product
liability insurance.
10.2. Insurance Proceeds. The proceeds of any casualty
insurance in respect of any casualty loss of any of the Collateral
shall, subject to the rights, if any, of other parties with an interest
having priority in the property covered thereby, (a) so long as no
Event of Default has occurred and is continuing, be disbursed to the
Company for direct application by the Company solely to the repair or
replacement of the Company's property so damaged or destroyed, and (b)
in all other circumstances, be held by the Lender as cash collateral
for the Obligations. The Lender may, at its sole option, disburse from
time to time all or any part of such proceeds so held as cash
collateral, upon such terms and conditions as the Lender may reasonably
prescribe, for direct application by the Company solely to the repair
or replacement of the Company's property so damaged or destroyed, or
the Lender may apply all or any part of such proceeds to the
Obligations.
10.3. Continuation of Insurance. Within thirty (30) days after
the Closing, all policies of insurance shall provide for at least
twenty (20) days prior written cancellation notice to the Lender. In
the event of failure by the Company to provide and maintain insurance
as herein provided, the Lender may, at its option, provide such
insurance and charge the amount thereof to the Company. The Company
shall furnish the Lender with certificates of insurance and policies
evidencing compliance with the foregoing insurance provision.
11. Collateral Protection Expenses; Preservation of Collateral.
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11.1. Expenses Incurred by the Lender. In the Lender's
discretion, if the Company fails to do so, the Lender may discharge
taxes and other encumbrances at any time levied or placed on any of the
Collateral, maintain any of the Collateral, make repairs thereto and
pay any necessary filing fees or insurance premiums. The Company agrees
to reimburse the Lender on demand for all expenditures so made. The
Lender shall have no obligation to the Company to make any such
expenditures, nor shall the making thereof be construed as a waiver or
cure of any Event of Default.
11.2. Lender's Obligations and Duties. Anything herein to the
contrary notwithstanding, the Company shall remain obligated and liable
under each contract or agreement comprised in the Collateral to be
observed or performed by the Company thereunder. The Lender shall not
have any obligation or liability under any such contract or agreement
by reason of or arising out of this Agreement or the receipt by the
Lender of any payment relating to any of the Collateral, nor shall the
Lender be obligated in any manner to perform any of the obligations of
the Company under or pursuant to any such contract or agreement, to
make inquiry as to the nature or sufficiency of any payment received by
the Lender in respect of the Collateral or as to the sufficiency of any
performance by any party under any such contract or agreement, to
present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have
been assigned to the Lender or to which the Lender may be entitled at
any time or times. The Lender's sole duty with respect to the custody,
safe keeping and physical preservation of the Collateral in its
possession, under ss.9-207 of the Uniform Commercial Code of the State,
similar provisions in such other jurisdiction where Collateral may be
located, or otherwise, shall be to deal with such Collateral in the
same manner as the Lender deals with similar property for its own
account.
12. Securities and Deposits. The Lender may at any time following
and during the continuance of an Event of Default, at its option, transfer to
itself or any nominee any securities constituting Collateral, receive any income
thereon and hold such income as additional Collateral or apply it to the
Obligations. The Lender may following and during the continuance of an Event of
Default demand, xxx for, collect, or make any settlement or compromise which it
deems desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Lender to the Company may at any time be
applied to or set off against any of the Obligations then due and owing.
13. Notification to Account Debtors and Other Persons Obligated on
Collateral.
If an Event of Default shall have occurred and be continuing, the
Company shall, at the request and option of the Lender, notify account debtors
and other persons obligated on any of the Collateral of the security interest of
the Lender in any account, chattel paper, general intangible, instrument or
other Collateral and that payment thereof is to be made directly to the Lender
or to any financial institution designated by the Lender as the Lender's agent
therefor, and the Lender may itself, if an Event of Default shall have occurred
and be continuing, without notice to or demand upon the Company, so notify
account debtors and other persons obligated on Collateral. After the making of
such a request or the giving of any such notification, the Company shall hold
any proceeds of collection of accounts, chattel paper, general intangibles,
instruments and other Collateral received by the Company as trustee for the
Lender, for the benefit of the Lender, without commingling the same with other
funds of the Company and shall turn the same over to the Lender in the identical
form received, together with any necessary endorsements or assignments. The
Lender shall apply the proceeds of collection of accounts, chattel paper,
general intangibles, instruments and other Collateral received by the Lender to
the Obligations, such proceeds to be immediately credited after final payment in
cash or other immediately available funds of the items giving rise to them.
14. Power of Attorney.
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14.1. Appointment and Powers of the Lender. The Company hereby
irrevocably constitutes and appoints the Lender and any officer or
agent thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the
place and stead of the Company or in the Lender's own name, for the
purposes hereinafter set forth in this Section 14.1, and in connection
herewith, hereby gives said attorneys the power and right, on behalf of
the Company, without notice to or assent by the Company, to do the
following:
(a) upon the occurrence and during the
continuance of an Event of Default, generally to sell,
transfer, pledge, make any agreement with respect to or
otherwise dispose of or deal with any of the Collateral in
such manner as is consistent with the Uniform Commercial Code
of the State or such other jurisdiction where Collateral may
be located and as fully and completely as though the Lender
were the absolute owner thereof for all purposes, and to do,
at the Company's expense, at any time, or from time to time,
all acts and things which the Lender deems necessary or useful
to protect, preserve or realize upon the Collateral and the
Lender's security interest therein, in order to effect the
intent of this Agreement, all no less fully and effectively as
the Company might do, including, without limitation, (i) the
filing and prosecuting of registration and transfer
applications with the appropriate federal, state or local
agencies or authorities with respect to trademarks, copyrights
and patentable inventions and processes, (ii) upon written
notice to the Company, the exercise of voting rights with
respect to voting securities, which rights may be exercised,
if the Lender so elects, with a view to causing the
liquidation of assets of the issuer of any such securities
and (iii) the execution, delivery and recording, in connection with any
sale or other disposition of any Collateral, of the endorsements,
assignments or other instruments of conveyance or transfer with respect
to such Collateral; and
(b) to the extent that the Company's
authorization given in Section 3 is not sufficient, to file
such financing statements with respect hereto, with or without
the Company's signature, or a photocopy of this Agreement in
substitution for a financing statement, as the Lender may deem
appropriate and to execute in the Company's name such
financing statements and amendments thereto and continuation
statements which may require the Company's signature.
14.2. Ratification by Company. To the extent permitted by law,
the Company hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and is irrevocable.
14.3. No Duty on the Lender. The powers conferred on the
Lender hereunder are solely to protect the interests of the Lender in
the Collateral and shall not impose any duty upon the Lender to
exercise any such powers. The Lender shall be accountable only for the
amounts that it actually receives as a result of the exercise of such
powers, and neither it nor any of its officers, directors, employees or
agents shall be responsible to the Company for any act or failure to
act, except for the Lender's own gross negligence or willful
misconduct.
15. Rights and Remedies.
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If an Event of Default shall have occurred and be continuing, the
Lender, without any other notice to or demand upon the Company, shall
have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a
secured party under the Uniform Commercial Code of the State and any
additional rights and remedies as may be provided to a secured party in
any jurisdiction in which Collateral is located, including, without
limitation, the right to take possession of the Collateral, and for
that purpose the Lender may, so far as the Company can give authority
therefor, enter upon any premises on which the Collateral may be
situated and remove the same therefrom. The Lender may in its
discretion require the Company to assemble all or any part of the
Collateral at such location or locations within the jurisdiction(s) of
the Company's principal office(s) or at such other locations as the
Lender may reasonably designate. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold
on a recognized market, the Lender shall give to the Company at least
ten (10) business days prior written notice of the time and place of
any public sale of Collateral or of the time after which any private
sale or any other intended disposition is to be made. The Company
hereby acknowledges that ten (10) business days prior written notice of
such sale or sales shall be reasonable notice. In addition, the Company
waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Lender's rights and remedies
hereunder, including, without limitation, its right following an Event
of Default to take immediate possession of the Collateral and to
exercise its rights and remedies with respect thereto.
16. No Waiver by the Lender, etc.
----------------------------
The Lender shall not be deemed to have waived any of its rights and
remedies in respect of the Obligations or the Collateral unless such waiver
shall be in writing and signed by the Lender. No delay or omission on the part
of the Lender in exercising any right or remedy shall operate as a waiver of
such right or remedy or any other right or remedy. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion. All rights and remedies of the Lender with respect to the
Obligations or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the
Lender deems expedient.
17. Suretyship Waivers by Company.
-----------------------------
The Company waives demand, notice, protest, notice of acceptance of
this Agreement, notice of loans made, credit extended, Collateral received or
delivered or other action taken in reliance hereon and all other demands and
notices of any description. With respect to both the Obligations and the
Collateral, the Company assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of or
failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Lender may deem advisable. The Lender shall have no duty as to the collection or
protection of the Collateral or any income therefrom, the preservation of rights
against prior parties, or the preservation of any rights pertaining thereto
beyond the safe custody thereof as set forth in Section 11.2. The Company
further waives any and all other suretyship defenses.
18. Marshalling.
-----------
The Lender shall not be required to marshal any present or future
collateral security (including but not limited to the Collateral) for, or other
assurances of payment of, the Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the rights and remedies of the Lender hereunder and of the Lender in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights and remedies, however existing or
arising. To the extent that it lawfully may, the Company hereby agrees that it
will not invoke any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of the Lender's rights and remedies
under this Agreement or under any other instrument creating or evidencing any of
the Obligations or under which any of the Obligations is outstanding or by which
any of the Obligations is secured or payment thereof is otherwise assured, and,
to the extent that it lawfully may, the Company hereby irrevocably waives the
benefits of all such laws.
19. Proceeds of Dispositions; Expenses.
----------------------------------
The Company shall pay to the Lender on demand any and all expenses,
including reasonable attorneys' fees and disbursements, incurred or paid by the
Lender in protecting, preserving or enforcing the Lender's rights and remedies
under or in respect of any of the Obligations or any of the Collateral. After
deducting all of said expenses, the residue of any proceeds of collection or
sale or other disposition of Collateral shall, to the extent actually received
in cash, be applied to the payment of the Obligations in such order or
preference as the Lender may determine, proper allowance and provision being
made for any Obligations not then due. Upon the final payment and satisfaction
in full of all of the Obligations and after making any payments required by
Sections 9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial Code of the
State or similar provisions in such other jurisdiction where Collateral may be
located, any excess shall be returned to the Company. In the absence of final
payment and satisfaction in full of all of the Obligations, the Company shall
remain liable for any deficiency.
20. Overdue Amounts.
---------------
Until paid, all amounts due and payable by the Company hereunder shall
be a debt secured by the Collateral and shall bear, whether before or after
judgment, interest at the rate of interest for overdue principal set forth in
the Note.
21. Governing Law; Consent to Jurisdiction.
--------------------------------------
THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE.
The Company 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 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 Company by mail at the address specified in the Note
Purchase Agreement. The Company 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.
22. Waiver of Jury Trial.
--------------------
THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO 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 ANY SUCH
RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives any right
which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Company (a)
certifies that neither the Lender nor any representative, agent or attorney of
the Lender has represented, expressly or otherwise, that the Lender would not,
in the event of litigation, seek to enforce the foregoing waivers or other
waivers contained in this Agreement, and (b) acknowledges that, in entering into
the Note Purchase Agreement and the other Loan Documents to which the Lender is
a party, the Lender is relying upon, among other things, the waivers and
certifications contained in this Section 22.
23. Miscellaneous.
-------------
The headings of each section of this Agreement are for convenience only
and shall not define or limit the provisions thereof. This Agreement and all
rights and obligations hereunder shall be binding upon the Company and its
successors and assigns, and shall inure to the benefit of the Lender and their
respective successors and assigns. If any term of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity of all other terms hereof
shall in no way be affected thereby, and this Agreement shall be construed and
be enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Company acknowledges receipt of a copy of this Agreement.
[Signatures on following page]
IN WITNESS WHEREOF, intending to be legally bound, the Company has
caused this Agreement to be duly executed as of the date first above written.
SOMANTA PHARMACEUTICALS, INC.
By: /s/ XXXXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Executive Chairman
Agreed and Accepted:
ACCESS PHARMACEUTICALS, INC.
By: /s/ XXXXXXX XXXXXX
------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and CEO
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 26th day of April, 2007, personally appeared Xxxxxxxx
Xxxxxxxxx, to me known personally, and who, being by me duly sworn, deposes and
says that he is the Executive Chairman of Somanta Pharmaceuticals, Inc., and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors, and said Xxxxxxxx Xxxxxxxxx acknowledged
said instrument to be the free act and deed of said corporation.
/s/ B. BORNASO
--------------------------------------
Notary Public
My commission expires: 9/15/09
