GUARANTY
This
Guaranty is made this 31st day of March, 2008, by such Guarantors listed on
the
signature pages hereof (collectively, jointly and severally, “Guarantors”,
and
each, individually, a “Guarantor”),
in
favor of _________________________ (together with its successors and assigns,
“Buyer”).
W
I T N E S S E T H:
WHEREAS,
pursuant to that certain Securities Purchase Agreement dated as of March 31,
2008 (as amended, restated, supplemented, or otherwise modified from time to
time, including all schedules thereto, the “Purchase
Agreement”)
by and
among GENEREX BIOTECHNOLOGY CORPORATION, a Delaware corporation (“Parent”),
Buyer, and each of the other investors listed on the Schedule of Buyers attached
thereto (together with Buyer, “Buyers”),
Parent has agreed to sell, and Buyers have agreed to purchase, severally and
not
jointly, certain Notes and Warrants, and
WHEREAS,
each
Guarantor is a wholly-owned Subsidiary of Parent and will receive direct and
substantial benefits from the purchase by Buyers of the Notes and Warrants,
and
WHEREAS,
in
order to induce Buyers to purchase, severally and not jointly, the Notes and
Warrants as provided for in the Purchase Agreement, Guarantors have agreed
to
jointly and severally guaranty all of Parent’s obligations under and with
respect to the Notes and the Purchase Agreement, and
WHEREAS,
in
connection herewith, Guarantors, Parent and Buyers have entered into that
certain Security Agreement dated of even date herewith (as amended, restated,
supplemented, or otherwise modified from time to time, including all schedules
thereto, the “Security
Agreement”),
pursuant to which Guarantors and Parent (Guarantors and Parent, collectively,
“Obligors”
and
each, individually, an “Obligor”)
have
granted Buyers continuing security interests in all assets of each Obligor,
and
NOW,
THEREFORE,
for and
in consideration of the recitals made above and other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, each Guarantor hereby agrees as follows:
Definitions.
All terms defined in the Security Agreement that are not otherwise defined
herein shall have the meanings given them in the Security
Agreement.
Guaranteed
Obligations. Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to Buyer the due and punctual payment in full of all
of
the present and future payment and performance obligations of each Obligor
arising under the Purchase Agreement, any and all Notes payable to Buyer, the
Security Agreement, and the other Purchase Documents, including, without
duplication, reasonable attorneys’ fees and expenses and any interest, fees, or
expenses that accrue after the filing of an Insolvency Proceeding, regardless
of
whether allowed or allowable in whole or in part as a claim in any Insolvency
Proceeding (collectively, the “Guaranteed
Obligations”).
Guarantors’
Representations and Warranties. Each Guarantor represents and warrants to
Buyer that such Guarantor expects to derive substantial benefits from the
purchase by Buyers of the Notes and Warrants and the other transactions
contemplated hereby. Buyer may rely conclusively on a continuing warranty,
hereby made, that each Guarantor continues to be benefited by this Guaranty
and
Buyer shall have no duty to inquire into or confirm the receipt of any such
benefits, and this Guaranty shall be effective and enforceable by Buyer without
regard to the receipt, nature or value of any such benefits.
Unconditional
Nature. No act or thing need occur to establish any Guarantor’s liability
hereunder, and no act or thing, except full payment and discharge of all of
the
Guaranteed Obligations, shall in any way exonerate any Guarantor hereunder
or
modify, reduce, limit or release any Guarantor’s liability hereunder. This is an
absolute, unconditional and continuing guaranty of payment of the Guaranteed
Obligations and shall continue to be in force and be binding upon each Guarantor
until all of the Guaranteed Obligations are indefeasibly paid in full and
discharged.
Subrogation.
No Guarantor will exercise or enforce any right of contribution, reimbursement,
recourse or subrogation available to such Guarantor as to any of the Guaranteed
Obligations, or against any Person liable therefor, or as to any collateral
security therefor, unless and until all of the Guaranteed Obligations shall
have
been indefeasibly paid in full and discharged.
Enforcement
Expenses. Each Guarantor will pay or reimburse Buyer for all costs, expenses
and attorneys’ fees paid or incurred by Buyer in endeavoring to collect and
enforce the Guaranteed Obligations and in enforcing this Guaranty.
Obligations
Absolute. Each Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected
by any circumstance which constitutes a legal or equitable discharge of a
guarantor or surety other than the indefeasible payment in full and discharge
of
the Guaranteed Obligations. In furtherance of the foregoing and without limiting
the generality thereof, each Guarantor agrees that none of its obligations
hereunder shall be affected or impaired by any of the following acts or things
(which Buyer is expressly authorized to do, omit or suffer from time to time,
without consent or approval by or notice to any Guarantor): (a) any
acceptance of collateral security, guarantors, accommodation parties or sureties
for any or all of the Guaranteed Obligations; (b) one or more extensions or
renewals of the Guaranteed Obligations (whether or not for longer than the
original period) or any modification of the interest rates, maturities, if
any,
or other contractual terms applicable to any of the Guaranteed Obligations
or
any amendment or modification of any of the terms or provisions of any of the
Purchase Documents; (c) any waiver or indulgence granted to Parent or any
other Obligor, any delay or lack of diligence in the enforcement of the
Guaranteed Obligations, or any failure to institute proceedings, file a claim,
give any required notices or otherwise protect any of the Guaranteed
Obligations; (d) any full or partial release of, compromise or settlement
with, or agreement not to xxx, Parent, any other Obligor or any other Person
liable in respect of any of the Guaranteed Obligations; (e) any release,
surrender, cancellation or other discharge of any evidence of the Guaranteed
Obligations or the acceptance of any instrument in renewal or substitution
therefor; (f) any failure to obtain collateral security (including rights
of setoff) for the Guaranteed Obligations, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any collateral
security; or any modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment, limitation,
loss
or discharge of any collateral security; (g) any collection, sale, lease or
disposition of, or any other foreclosure or enforcement of or realization on,
any collateral security; (h) any assignment, pledge or other transfer of
any of the Guaranteed Obligations or any evidence thereof; or (i) any
manner, order or method of application of any payments or credits upon the
Guaranteed Obligations. Each Guarantor waives any and all defenses and
discharges available to a surety, guarantor or accommodation
co-obligor.
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Waivers
by Guarantors. Each Guarantor waives any and all defenses, claims, setoffs
and discharges of Parent, or any other Obligor or Person, pertaining to the
Guaranteed Obligations, except the defense of discharge by indefeasible payment
in full. Without limiting the generality of the foregoing, no Guarantor will
assert, plead or enforce against any Buyer any defense of waiver, release,
discharge or disallowance in any Insolvency Proceeding, statute of limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to Parent
or any other Person liable in respect of any of the Guaranteed Obligations,
or
any setoff available to any Buyer against Parent or any other such Person,
whether or not on account of a related transaction. Each Guarantor expressly
agrees that such Guarantor shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage or security interest securing the
Guaranteed Obligations, whether or not the liability of Parent or any other
Obligor or Person for such deficiency is discharged pursuant to statute or
judicial decision. The liability of each Guarantor shall not be affected or
impaired by any voluntary or involuntary liquidation, dissolution, sale or
other
disposition of all or substantially all of the assets, marshalling of assets
and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit
of
creditors, reorganization, arrangement, composition or readjustment of, or
other
similar event or proceeding affecting, Parent or any of its assets. No Guarantor
will assert, plead or enforce against any Buyer any claim, defense or setoff
available to such Guarantor against Parent. Each Guarantor waives presentment,
demand for payment, notice of dishonor or nonpayment and protest of any
instrument evidencing the Guaranteed Obligations. Buyer shall not be required
first to resort for payment of the Guaranteed Obligations to Parent or any
other
Person, or their properties, or first to enforce, realize upon or exhaust any
collateral security for the Guaranteed Obligations, before enforcing this
Guaranty.
If
Payments Set Aside, etc. If any payment applied by Buyer to the Guaranteed
Obligations is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of Parent or any other Obligor or Person), the
Guaranteed Obligations to which such payment was applied shall for the purpose
of this Guaranty be deemed to have continued in existence, notwithstanding
such
application, and this Guaranty shall be enforceable as to such Guaranteed
Obligations as fully as if such application had never been made.
Additional
Obligation of Guarantors. Each Guarantor’s liability under this Guaranty is
in addition to and shall be cumulative with all other liabilities of such
Guarantor to Buyer as guarantor, surety, endorser, accommodation co-obligor
or
otherwise of any of the Guaranteed Obligations, without any limitation as to
amount.
No
Duties Owed by Buyer. Each Guarantor acknowledges and agrees that Buyer
(a) has not made any representations or warranties with respect to,
(b) does not assume any responsibility to such Guarantor for, and
(c) has no duty to provide information to such Guarantor regarding, the
enforceability of any of the Guaranteed Obligations or the financial condition
of Parent or any other Obligor or Person. Each Guarantor has independently
determined the creditworthiness of Parent and the enforceability of the
Guaranteed Obligations and until the Guaranteed Obligations are paid in full
will independently and without reliance on Buyer continue to make such
determinations.
Miscellaneous
(a) This
Guaranty may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by telefacsimile
or other electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Guaranty. Any party
delivering an executed counterpart of this Guaranty by telefacsimile or other
electronic method of transmission also shall deliver an original executed
counterpart of this Guaranty but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect
of
this Guaranty.
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(b) Any
provision of this Guaranty which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting
the validity or enforceability of such provision in any other
jurisdiction.
(c) Headings
used in this Guaranty are for convenience only and shall not be used in
connection with the interpretation of any provision hereof.
(d) The
pronouns used herein shall include, when appropriate, either gender and both
singular and plural, and the grammatical construction of sentences shall conform
thereto.
(e) Unless
the context of this Guaranty or any other Purchase Document clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the terms “includes” and “including” are not
limiting, and the term “or” has, except where otherwise indicated, the inclusive
meaning represented by the phrase “and/or.” The words “hereof,” “herein,”
“hereby,” “hereunder,” and similar terms in this Guaranty or any other Purchase
Document refer to this Guaranty or such other Purchase Document, as the case
may
be, as a whole and not to any particular provision of this Guaranty or such
other Purchase Document, as the case may be. Section, subsection, clause,
schedule, and exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty or in any other Purchase Document
to
any agreement, instrument, or document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as applicable
(subject to any restrictions on such alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders,
and
supplements set forth herein). Any reference herein or in any other Purchase
Document to the satisfaction or repayment in full of the Guaranteed Obligations
shall mean the repayment in full in cash of all Guaranteed Obligations other
than unasserted contingent indemnification Guaranteed Obligations. Any reference
herein to any Person shall be construed to include such Person’s successors and
assigns.
(f) This
Guaranty shall be effective upon delivery to Buyer, without further act,
condition or acceptance by Buyer, shall be binding upon each Guarantor and
the
successors and assigns of each Guarantor, and shall inure to the benefit of
Buyer and its participants, successors and assigns. This Guaranty may not be
waived, modified, amended, terminated, released or otherwise changed except
by a
writing signed by each Guarantor and Buyer.
Notices.
All notices and other communications provided for hereunder shall be given
in
the form and manner, and delivered to such addresses, as specified in the
Security Agreement.
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Governing
Law; Jurisdiction; Service of Process; Jury Trial. All questions concerning
the construction, validity, enforcement and interpretation of this Guaranty
shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the
State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Each
Guarantor hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in The City of New York, Borough of Manhattan, for
the adjudication of any dispute hereunder or in connection herewith or with
any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper; provided, however, that
any suit seeking enforcement of this Guaranty may be brought, at Buyer’s option,
in the courts of any jurisdiction where Buyer elects to bring such action.
Each
Guarantor hereby irrevocably waives personal service of process and consents
to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Guaranty
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Without limitation of the foregoing, each Guarantor
hereby irrevocably appoints Parent as such Guarantor’s agent for purposes of
receiving and accepting any service of process hereunder. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH
GUARANTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
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IN
WITNESS WHEREOF, this Guaranty has been duly executed by each Guarantor as
of
the date set forth above.
| ANTIGEN EXPRESS, INC., a Delaware corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| GENEREX PHARMACEUTICALS (USA) LLC, a North Carolina limited liability company | ||
| By: | ||
| Name: | ||
| Title: | ||
| GENEREX MARKETING & DISTRIBUTION INC., an Ontario corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| GENEREX PHARMACEUTICALS INC., an Ontario corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| 1097346 ONTARIO INC., an Ontario corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| GENEREX (BERMUDA), INC., a corporation existing pursuant to the Bermuda Companies Act | ||
| By: | ||
| Name: | ||
| Title: | ||
