SECOND AMENDMENT TO SECURITY AGREEMENT
EXHIBIT
10.30
SECOND
AMENDMENT TO SECURITY AGREEMENT
This
SECOND
AMENDMENT TO SECURITY AGREEMENT (the
“Second
Amendment”)
is
made as of December 6, 2006 between the lenders listed on the signature page
hereto (hereinafter, collectively, the “Secured
Parties”)
and
Access Pharmaceuticals, Inc., a Delaware corporation with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: President (the “Debtor”).
WHEREAS,
on
February 16, 2006, the Debtor issued in favor of each of the Secured Parties,
promissory notes (collectively the “February
Notes”),
in
the aggregate principal amount of Five Million Dollars ($5,000,000); such
February Notes were issued pursuant to the terms of a Convertible Note and
Warrant Purchase Agreement dated as of February 16, 2006 between the Debtor
and
the Secured Parties;
WHEREAS,
in
connection with the issuance of the February Notes, the Debtor entered into
that
certain Security Agreement dated as of February 16, 2006, between the Debtor
and
the Secured Parties (the “Security
Agreement”);
WHEREAS,
on
October 24, 2006, the Debtor issued in favor of certain of the Secured Parties
(the “October
Secured Parties”),
promissory notes (collectively the “October
Notes”),
in
the aggregate principal amount of Five Hundred Thousand Dollars ($500,000);
such
October Notes were issued pursuant to the terms of a Convertible Note and
Warrant Purchase Agreement dated as of October 24, 2006 between the Debtor
and
the October Secured Parties;
WHEREAS,
in
connection with the issuance of the October Notes, the Debtor entered into
that
certain Security Agreement Amendment dated as of October 24, 2006, between
the
Debtor, the Secured Parties and the October Secured Parties (the “First
Amendment”);
WHEREAS,
on the
date hereof, the Debtor has issued in favor of certain of the Secured Parties
(the “December
Secured Parties”),
promissory notes (collectively the “December
Notes”),
in
the aggregate principal amount of Five Hundred Thousand Dollars ($500,000);
such
Notes have been issued pursuant to the terms of a Convertible Note and Warrant
Purchase Agreement (the “December
Purchase Agreement”)
of
even date herewith between the Debtor and the December Secured Parties (such
transaction, the “December
Financing”);
WHEREAS,
it is a
condition precedent to the December Secured Parties’ making any loans under
December Purchase Agreement and the December Notes or
otherwise extending credit to the Debtor that the Debtor execute and deliver
this Second Amendment; and
WHEREAS,
the
Debtor and each of the Secured Parties desires to further amend the Security
Agreement as amended pursuant to the First Amendment in order to secure the
Debtor’s obligations pursuant to the December Notes;
NOW,
THEREFORE,
in
consideration of the premises and to induce the December Secured Parties to
extend the loans to the Debtor pursuant to the December Notes, the Debtor and
the Secured Parties hereby agree as follows:
1. Capitalized
Terms.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to such terms in the Security Agreement, as amended.
2. Amendment
to the Security Agreement.
(a)
Section 1(c) of the Security Agreement, as amended pursuant to the First
Amendment is hereby further amended by inserting the following defined terms
in
appropriate alphabetical order therein; provided that
if any
of the following defined terms are defined in the Security Agreement, as amended
pursuant to the First Amendment, such defined terms shall be deleted in their
entirety and replaced with the defined terms as set forth herein:
“Note”
and
“Notes”
means
the February Notes, the October Notes and/or the December Notes. This definition
shall supersede the definition of such terms set forth in the recitals to this
Agreement.
“December
Notes”
means
the Secured Convertible Promissory Notes of the Debtor in the aggregate
principal amount of Five Hundred Thousand Dollars ($500,000) issued pursuant
to
the December Purchase Agreement.
“December
Purchase Agreement”
means
the Convertible Note and Warrant Purchase Agreement dated as of December 6,
2006, between the Debtor and certain of the Secured Parties.
“Purchase
Agreement”
means
the February Purchase Agreement, the October Purchase Agreement and/or the
December Purchase Agreement. This definition shall supersede the definition
of
such term in the recitals to this Agreement.”
3. Consent
to December Financing.
The
Secured Parties hereby consent to the December Financing and, in connection
therewith, the Debtor’s execution, delivery and performance of the December
Purchase Agreement, the sale of the December Notes and the consummation of
the
other transactions and execution of the other agreements and documents
contemplated by the December Purchase Agreement.
4. Full
Force and Effect of the Security Agreement.
Except
as specifically amended hereby, the Security Agreement, as amended pursuant
to
the First Amendment, shall remain of full force and effect and is hereby
ratified and affirmed in all respects.
5. Governing
Law, etc.
This
Second Amendment shall be deemed to be a contract made under the laws of the
State of New York and shall be construed in accordance with such
laws.
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6. Counterparts;
Facsimile Execution.
This
Second Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument. Executed signature pages delivered by facsimile or other
means of electronic image transmission shall have the same force and effect
as
an original thereof.
[Signature
pages follow.]
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Second Amendment to Security Agreement to be
duly executed and delivered as of the date first above written.
ACCESS
PHARMACEUTICALS, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
VP
- CFO
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OMNIBUS
SIGNATURE PAGE TO
ACCESS
PHARMACEUTICALS, INC.
SECOND
AMENDMENT TO SECURITY AGREEMENT
The
undersigned, as a Secured Party, hereby executes and delivers the Second
Amendment to Security Agreement to which this signature page is attached, which,
together with all counterparts of the Second Amendment to Security Agreement
and
signature pages of the other parties named in said Second Amendment to Security
Agreement, shall constitute one and the same document in accordance with the
terms of the Second Amendment to Security Agreement.
|
Print
Name:
|
SCO
Capital Partners LLC
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
Title:
|
Chairman
|
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OMNIBUS
SIGNATURE PAGE TO
ACCESS
PHARMACEUTICALS, INC.
SECOND
AMENDMENT TO SECURITY AGREEMENT
The
undersigned, as a Secured Party, hereby executes and delivers the Second
Amendment to Security Agreement to which this signature page is attached, which,
together with all counterparts of the Second Amendment to Security Agreement
and
signature pages of the other parties named in said Second Amendment to Security
Agreement, shall constitute one and the same document in accordance with the
terms of the Second Amendment to Security Agreement.
| Print Name: | Lake End Capital LLC |
| By: | /s/ Xxxxxxx X. Xxxxx |
| Name: | Xxxxxxx X. Xxxxx |
| Title: | Chairman |
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OMNIBUS
SIGNATURE PAGE TO
ACCESS
PHARMACEUTICALS, INC.
SECOND
AMENDMENT TO SECURITY AGREEMENT
The
undersigned, as a Secured Party, hereby executes and delivers the Second
Amendment to Security Agreement to which this signature page is attached, which,
together with all counterparts of the Second Amendment to Security Agreement
and
signature pages of the other parties named in said Second Amendment to Security
Agreement, shall constitute one and the same document in accordance with the
terms of the Second Amendment to Security Agreement.
| Print Name: | Beach Capital LLC |
| By: | /s/ Xxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxx X. Xxxxxxxxx |
| Title: | Chairman |
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