Exhibit 10.112
SECURITY AGREEMENT
THIS
SECURITY AGREEMENT (the
“ Agreement ”) is effective as of the 15
th day of June, 2009 (the “ Effective Date
”), between Ore Pharmaceuticals Inc., a Delaware corporation
and its successors and assigns (“ Ore ”), and
Ocimum Biosolutions Inc., a Delaware corporation (“
Ocimum ” and, together with Ore, the “
Parties ”).
In
consideration of the covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency all of
which is hereby acknowledged, the Parties agree as
follows:
1. Definitions;
Construction . (a) The following
terms, when capitalized herein, shall have the respective meanings
assigned thereto in Article Nine: (i) “
Account ”; (ii) “ Chattel Paper
”; (iii) “ Commercial Tort Claim
”; (iv) “ Deposit Account ”; (v) “
Document ”; (vi) “ Goods ”; (vii)
“ General Intangible ”; (viii) “
Inventory ”; (ix) “ Investment Property
”; (x) “ Instrument ”; (xi) “
Letter-of-Credit Right ”; and (xii) “
Proceeds ”. When capitalized herein, the
term “ Contract Rights ” has the meaning
assigned thereto in 1962 Official Text With Comments of the Uniform
Commercial Code as promulgated by the National Conference of
Commissioners on Uniform State Laws and the American Law
Institute.
(b)
Defined Terms . In addition to the other
terms defined throughout this Agreement, the following capitalized
terms shall have the following meaning when used herein or in the
Note:
“Account Debtor” means each Person (i) to or for
whom Ocimum has provided or agreed to provide any goods or
services; (ii) which owes Ocimum any sum of money as a result of
goods or services provided by Ocimum; and (iii) which is the maker
or endorser of any instrument payable to Ocimum or otherwise owes
Ocimum any sum of money on account of any Security or other payment
obligation.
“Affiliate”
means, with respect to any Person,
any other Person directly or indirectly controlling, controlled by,
or under common control with such Person.
“Article Nine” means the Maryland Uniform
Commercial Code – Secured Transactions, Md. Code Ann., Comm.
Law, § 9-101 et seq., as it may be amended from time to
time.
“Business Day” means any day except Saturday,
Sunday or any day on which banks are authorized or required by Law
to close in Baltimore, Maryland.
“Collateral” means all assets, properties and
rights of Ocimum tangible and intangible, personal and real,
including, without limitation, all cash accounts, Ocimum
Receivables, Commercial Tort Claims, Deposit Accounts, Goods,
Inventory, Investment Property, and Payment Intangibles now
existing or hereafter acquired, together with all substitutions
therefor and replacements and renewals thereof and all Proceeds
from any and all of the foregoing.
“Contractual Obligation” means, as to any
Person, any agreement, instrument or undertaking to which such
Person is a party or by which it or any of its assets or property
is bound.
“Default” means any event, occurrence or
omission which, with the giving of notice, the passage of time, or
both, would constitute an Event of Default.
“Default Rate” means the fifteen percent (15%)
per annum, compounded monthly.
“GAAP” means United States generally accepted
accounting principles consistently applied.
“Guarantor” means Coramandel Infrastructure
Private Limited, a company incorporated under the Company Act,
1956, in the Republic of India.
“Guaranty Agreement” means an Unconditional
Guaranty Agreement executed by the Guarantor for the benefit of
Ore.
“
IAS” means international accounting standards
consistently applied as established by the International Accounting
Standards Board.
“Insolvency Proceedings” means, with respect to
any referenced Person, any (i) case or proceedings commenced by or
against such Person under any provision of the United States
Bankruptcy Code, as amended, or any other federal or state
bankruptcy or insolvency Law; (ii) assignment for the benefit of
creditors; (iii) formal or informal moratorium, receivership,
composition or extension with any creditor with respect to the
indebtedness of such Person.
“Laws” means all federal, state, local or
foreign laws (including common law), codes, statutes, ordinances,
orders, judgments, arbitration awards, decrees, administrative or
judicial promulgations, injunctions, determinations, approvals,
rules, regulations, permits, certificates, licenses and
governmental authorizations.
“Material Adverse Effect” means any event,
change, effect or circumstance that has occurred (when taken
together with all other events, changes, effects and circumstances
that have occurred) that (i) is, or is reasonably likely to be,
materially adverse to the financial condition or results of
operations of Ocimum; (ii) is likely to prevent or materially delay
the performance of Ocimum under any of the Security Documents;
(iii) has, or is reasonably likely to have, a material adverse
effect on the rights or remedies of Ore under any of the Security
Documents or the value, condition, use or availability of any of
the Collateral; provided, however, that, in no event shall
any of the following be taken into account in determining whether
there has occurred (or whether there is reasonably likely to be) a
Material Adverse Effect: (i) any change or effect resulting from
changes in general economic conditions, conditions in the United
States or worldwide capital markets or any outbreak of hostilities
or war (except for any changes which disproportionately affect
Ocimum, results of operations, properties, condition, assets or
liabilities of Ocimum, taken as a whole, as compared to other
industry participants); (ii) any change or effect resulting from
conditions generally affecting the industries in which Ocimum
conducts its business; (iii) changes in any Laws applicable to
Ocimum after the date hereof, (vi) changes in IAS after the date
hereof; (iv) any actions taken, or failures to take action, or such
other effects, changes, occurrences or developments to which
Company has specifically consented in writing after the date hereof
and prior to such actions, failures, effects, changes, occurrences
or developments; or (v) terrorist activities or the material
commencement or worsening of hostilities or war.
“
Maturity Dates ” means August 1, 2009 and September
15, 2009.
“Note” means that certain Secured Note, of even
date herewith, in the principal amount of Three Million Dollars
($3,000,000), as such amount may be adjusted from time to time in
accordance with the terms thereof, made by Ocimum and Ocimum India
in favor of Ore.
“Obligations” shall mean all sums due and
payable to Ore by Ocimum with respect to the Note, together with
all other sums due under this Agreement or any other Security
Document.
“Ocimum India” means Ocimum Bio Solutions
(India) Limited, a company incorporated under the Company Act,
1956, in the Republic of India.
“Ordinary Course” means the ordinary course of
Ocimum’s business, consistent with past practice.
“Person” means an individual, a sole
proprietorship, a partnership, a corporation, an association, an
institution, a joint stock company, a limited liability company, a
trust, a joint venture, an unincorporated organization, or a
governmental entity or any other legal entity.
“Premises” means all real property included in
the Collateral.
“Ocimum Receivables” means all Accounts,
Contract Rights, Instruments, Documents, General Intangibles,
Chattel Paper, Letter-of-Credit Rights (including all proceeds of
letters of credit and all choses in action), notes, notes
receivable, drafts, acceptances, rights of and to payment and
performance of every kind and nature of Ocimum, in all cases
whether now existing or hereinafter created or acquired, and all
proceeds and products thereof (including insurance proceeds), and
all rights thereto.
“Principal
Amount” has the
meaning assigned thereto in the Note.
“Records” means correspondence, memoranda,
tapes, disks, papers, books and other documents, or transcribed
information of any type, whether expressed in ordinary, computer or
machine language, and all copies of the foregoing.
“Security
Documents” means
this Agreement, all exhibits hereto, the Note and all notes,
financing statements and other documents executed pursuant to this
Agreement or contemplated hereby, or executed to provide further
assurance to Ore with respect to collection of sums hereunder or
under notes executed pursuant hereto and the Guaranty
Agreements.
“Senior Indebtedness” means the indebtedness of
Ocimum set forth on Schedule 1 , as such indebtedness may be
extended or renewed by the same lender from time to time (but not
increased); provided that such extension or renewal shall
not include refinancings or extensions of credit for additional
purposes.
(c)
Interpretation . Unless the context of
this Agreement otherwise clearly requires, (i) references to
the plural include the singular, and references to the singular
include the plural, (ii) references to any gender include the
other gender, (iii) the words “include,”
“includes” and “including” do not limit the
preceding terms or words and shall be deemed to be followed by the
words “without limitation”, (iv) the terms
“hereof”, “herein”,
“hereunder”, “hereto” and similar terms in
this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement, (v) the terms
“day” and “days,” if not capitalized, mean
and refer to calendar day(s) and (vi) the terms
“year” and “years” mean and refer to
calendar year(s). Unless otherwise set forth herein,
references in this Agreement to any document, instrument or
agreement (including this Agreement) (A) includes and
incorporates all schedules and other attachments thereto,
(B) includes all documents, instruments or agreements issued
or executed in replacement thereof and (C) means such
document, instrument or agreement, or replacement or predecessor
thereto, as amended, modified or supplemented from time to time in
accordance with its terms and in effect at any given
time. All Article, Section and Schedule references
herein are to Articles, Sections and Schedules of this Agreement,
unless otherwise specified. All accounting terms not
specifically defined in this Agreement shall be construed in
accordance with IAS.
(d)
Coordination With Note . This Agreement is
the “Security Agreement” referred to and incorporated
into the Note.
(e)
Incorporation by Reference . The terms and
conditions of the other Security Documents are incorporated herein
by reference and made a part hereof, as if fully set forth
herein. .
2.
Cancellation of Prior Security Agreement
. The Parties agree and
acknowledge that upon execution of this Agreement and the Note, the
Security and Patent and Trademark Security Agreement dated December
14, 2007 (“ Prior Note” ) between Ocimum and Ore
(then doing business as Gene Logic Inc.) shall be deemed hereby
cancelled, revoked and superseded by this Agreement.
3. Deferred
Payment . (a) Ocimum agrees, upon
the terms and conditions contained in this Agreement and the Note,
to pay to Ore the Principal Amount, adjusted in accordance with
Section 3 of the Note.
(b) Interest
shall accrue on the Principal Amount and shall be due and payable
in accordance with Section 3 of the Note.
(c) The
Principal Amount, and any and all other sums which may be due and
owing to the Ore in accordance with the terms contained herein and
in the Note, is due on the Maturity Dates.
4. Security
. (a) As
security for the payment and satisfaction of all Obligations, Ore
shall have, and Ocimum hereby grants to Ore, a continuing security
interest in the Collateral (the “ Security Interest
”). The Security Interest, upon perfection, shall
be an indefeasible lien and security interest with respect to the
Collateral prior to any other liens or encumbrances on the
Collateral. Notwithstanding the foregoing, the Security
Interest shall be subordinate to all liens or security interests
securing any Senior Indebtedness which is set forth on Schedule
1 . Ore shall, in addition to all other rights
granted herein have all the rights and benefits available to a
secured party under the terms of the Uniform Commercial Code in
effect in Maryland or any similar Law in effect in any other state
which would be applicable to the Collateral or the rights and
transactions contemplated by the Security Documents.
(b)
Further Assurances . Ocimum agrees to
execute, or cause to be executed, all financing statements which
Ore may request Ocimum to execute to further evidence and to
perfect the Security Interest and to do all other acts or things
and execute all other documents which may be required to further
perfect and protect the Security Interest.
(c)
Satisfaction of Obligations . At such time
as all of the Obligations are repaid Ore will, at Ocimum’s
expense, execute releases of financing statements and return any of
the Collateral then in Ore’s possession and do all such other
acts and things and execute all such documents as may be necessary
to release the security interest herein granted to Ore.
(d)
Guaranty Agreements . The Guarantor shall
execute and deliver a Guaranty Agreement, which shall guarantee,
among other things, the absolute full payment and performance by
Ocimum of the Obligations.
5. Representations and
Warranties . Ocimum hereby makes the following
representations and warranties to Ore as of the date
hereof:
(a)
Organization and Capitalization . Ocimum
is duly organized, validly existing and in good standing under the
Laws of the State of Delaware and has all requisite corporate power
and authority to own, lease or otherwise hold the Collateral and to
carry on its business as currently conducted.
(b)
Authority . Ocimum has the right, power
and capacity to execute and deliver the Security Documents and to
perform its obligations under the Secur
