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Exhibit 10.5
GUARANTY
GUARANTY (the “Guaranty”), dated as of January 9, 2009,
by Urigen N.A., Inc., a Delaware corporation with an address of 27
Maiden Lane, Suite 595, San Francisco, California, 94108 (the
“Guarantor”), in favor of the Purchasers identified in
the Purchase Agreement (as defined below) (collectively,
“Secured Parties”).
WHEREAS, the Guarantor is a subsidiary or affiliate of Urigen
Pharmaceuticals, Inc. (the “Borrower”); and
WHEREAS, in accordance with certain senior secured convertible
notes, dated as of the date hereof (the “Notes”),
executed by the Borrower, and certain related agreements between
the Borrower and the Secured Parties (collectively, as amended,
restated, or extended from time to time, the “Loan
Documents”), the Secured Parties have agreed to loan to the
Borrower up to Two Hundred Fifty-Seven Thousand Dollars ($257,000)
(the “Loan”); and
WHEREAS, the Secured Parties’ willingness to extend the loan
is conditioned upon the Guarantor executing and delivering this
Guaranty; and
WHEREAS, the aforesaid Loan will be beneficial to the Guarantor
inasmuch as the proceeds of the Loan to the Borrower will
indirectly benefit the Guarantor;
NOW, THEREFORE, in order to induce the Secured Parties to make the
Loan to the Borrower pursuant to the Loan Documents, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the Guarantor, the Guarantor hereby
agrees as follows:
1. Guaranty
of Payment and Performance. The Guarantor hereby
guarantees to the Secured Parties the full and punctual payment
when due (whether at maturity, by acceleration or otherwise), and
the performance, of all liabilities, agreements and other
obligations of the Borrower to the Secured Parties, whether direct
or indirect, absolute or contingent, due or to become due, secured
or unsecured, now existing or hereafter arising or acquired
(whether by way of discount, letter of credit, lease, loan,
overdraft or otherwise), including without limitation all
obligations under the Note (collectively, the
“Obligations”). This Guaranty is an
absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of the Obligations and not of
their collectibility only and is in no way conditioned upon any
requirement that the Secured Parties first attempt to collect any
of the Obligations from the Borrower or resort to any security or
other means of obtaining their payment. Should the
Borrower default in the payment or performance of any of the
Obligations, the obligations of the Guarantor hereunder shall
become immediately due and payable to the Secured Parties, without
demand or notice of any nature, all of which are expressly waived
by the Guarantor. Payments by the Guarantor hereunder
may be required by the Secured Parties on any number of
occasions.
2. Guarantor’s
Agreement to Pay. The Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the
Secured Parties, on demand, all reasonable costs and expenses
(including court costs and reasonable legal expenses) incurred or
expended by the Secured Parties in connection with enforcement of
this Guaranty, together with interest on amounts
recoverable under this Guaranty from the time such amounts become
due under this Guaranty until payment, at the rate per annum equal
to the default rate set forth in the Note; provided that if such
interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum
permitted amount. 1
3. Unlimited
Guaranty. The liability of the Guarantor hereunder shall
be unlimited to the extent of the Obligations and the other
obligations of the Guarantor hereunder (including, without
limitation, under Section 2 above). The Guarantor hereby
covenants not to take any action that would constitute (or
otherwise cause) an Event of Default under the Notes.
4. Waivers
by Guarantor; Secured Party’s Freedom to Act. The
Guarantor agrees that the Obligations will be paid and performed
strictly in accordance with their respective terms regardless of
any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Secured Parties with respect thereto. The Guarantor
waives presentment, demand, protest, notice of acceptance, notice
of Obligations incurred and all other notices of any kind, all
defenses which may be available to Borrower by virtue of any
valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets
of the Borrower, and all suretyship defenses generally. Without
limiting the generality of the foregoing, the Guarantor agrees to
the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the
obligations of the Guarantor hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by
(i) the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against the Borrower;
(ii) any extensions or renewals of any Obligation;
(iii) any rescissions, waivers, amendments or modifications of
any of the terms or provisions of any agreement evidencing,
securing or otherwise executed in connection with any Obligation
(provided, that, the obligations of the Guarantor hereunder shall
be appropriately modified to reflect any amendment or modification
of the Obligations); (iv) the substitution or release of any
entity primarily or secondarily liable for any Obligation;
(v) the adequacy of any rights any Secured Party may have
against any collateral or other means of obtaining repayment of the
Obligations; (vi) the impairment of any collateral securing
the Obligations, including without limitation the failure to
perfect or preserve any rights a Secured Party might have in such
collateral or the substitution, exchange, surrender, release, loss
or destruction of any such colla
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