peregrine_10q-ex10113.htm

Exhibit 10.113

    SECURED
TERM PROMISSORY NOTE

    
    

     

    
      	$3,500,000	
              December 19,
      2008

            


    

    


    FOR VALUE
RECEIVED, PEREGRINE
PHARMACEUTICALS, INC., a Delaware corporation (“Peregrine”), and AVID BIOSERVICES, INC., a
Delaware corporation (“Avid,” and together with
Peregrine, jointly and severally, individually and collectively, referred to as
“Borrower”) hereby
jointly and severally promise to pay to the order of MIDCAP FUNDING I, LLC, a
Delaware limited liability company, or the registered holder of this Note
(“Lender”), at such place of payment as the registered holder of this Secured
Term Promissory Note (this “Promissory Note”) may specify from time to time in
writing, in lawful money of the United States of America, the principal amount
of Three Million Five Hundred Thousand Dollars ($3,500,000) or such other
principal amount as Lender has advanced to Borrower, together with interest in
accordance with the Loan Agreement (as hereinafter defined) (or if and when
applicable, at a rate equal to the “Default Rate” (as defined in the Loan
Agreement referenced below) based upon a year consisting of 360 days, with
interest computed daily based on the actual number of days in each month until
the principal balance is paid in full.

     

    This
Promissory Note is executed and delivered in connection with that certain Loan
and Security Agreement of even date herewith by and among Borrower, MidCap
Funding I, LLC, as agent for Lenders, MidCap Funding I, LLC, as a Lender, and
BlueCrest Capital Finance, L.P., as a Lender (as the same may from time to time
be amended, modified, restated or supplemented in accordance with its terms, the
“Loan Agreement”), and is entitled to the benefit and security of the Loan
Agreement and the other Loan Documents (as defined in the Loan Agreement), to
which reference is made for a statement of all of the terms and conditions
thereof.  All payments shall be made in accordance with the Loan
Agreement.  All terms defined in the Loan Agreement shall have the
same definitions when used herein, unless otherwise defined
herein.  An Event of Default under the Loan Agreement shall constitute
a default under this Promissory Note, and upon any such Event of Default and
default, all principal and interest and other obligations owing under this
Promissory Note may be accelerated and declared immediately due and payable as
provided for in the Loan Agreement.  Reference to the Loan Agreement
shall not affect or impair the absolute and unconditional obligation of Borrower
to pay all principal and interest and premium, if any, under this Promissory
Note upon demand or as otherwise provided herein.

     

    Borrower
waives presentment and demand for payment, notice of dishonor, protest and
notice of protest under the Uniform Commercial Code as in effect in the State of
Maryland or any applicable law.  Borrower agrees to make all payments
under this Promissory Note without setoff, recoupment or deduction and
regardless of any counterclaim or defense.  This Promissory Note has
been negotiated and delivered to Lender and is payable in the State of
Maryland.  This Promissory Note shall be governed by and construed and
enforced in accordance with, the laws of the State of Maryland, excluding any
conflicts of law rules or principles that would cause the application of the
laws of any other jurisdiction.  Without limiting the generality of
the preceding paragraph, the provisions of Section 11 of the Loan Agreement
regarding jurisdiction, venue and jury trial waiver are incorporated
herein.

     

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    IN
WITNESS WHEREOF, Borrower, as of the day and year first above written, has
caused this Note to be executed under seal.

    
    

     

     

    
      	 	
              PEREGRINE
      PHARMACEUTICALS, INC.

               

            	 
	 	By:  /s/ Steven
      King  	(SEAL)
	 	
              Name:
      Steven King

              Title:
      President and CEO

            	 
	 	 	 
	 	AVID BIOSERVICES,
      INC.	 
	 	 	 
	 	By:  /s/ Steven
      King 	(SEAL)
	 	
              Name:
      Steven King

              Title:
      President and CEO