AMENDED AND RESTATED GUARANTEE AND INDEMNITY
EXHIBIT
99.9
AMENDED
AND RESTATED GUARANTEE AND INDEMNITY
THIS
GUARANTEE AND INDEMNITY is made as of the 10th day of July,
2007,
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BY:
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GENESENSE
TECHNOLOGIES INC., a corporation incorporated under the laws of
Canada
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(the
“Guarantor”)
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IN
FAVOUR OF:
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THE
XXXX XXXXX INVESTMENT CORPORATION, a corporation incorporated
under the laws of the Province of Ontario
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(the
“Investor”)
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RECITALS:
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A.
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The
Guarantor entered into a guarantee and indemnity dated as of October
6,
2004 in favour of the Investor, as amended by the assignment, novation
and
amendment agreement and consent dated as of May 1, 2007 between
Lorus Therapeutics Inc. (“Lorus”), the Guarantor, New Lorus (as defined
below) and the Investor, as amended or supplemented from time to
time,
(the “Assignment Agreement”).
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B.
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Lorus
entered into a corporate reorganization transaction completed by
way of
plan of arrangement (the “Arrangement”) on July 10, 2007 under the
Canada Business Corporations Act pursuant to which Lorus
transferred substantially all of its assets, including its antisense
patent assets, to a new corporate entity, 6650309 Canada Inc., which
will
carry on business under the name “Lorus Therapeutics Inc.” (“New
Lorus”).
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C.
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As
part of the arrangement New Lorus assumed all indebtedness of Lorus
to the
Investor.
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NOW
THEREFORE in consideration of the sum of $1.00, the Investor making
available certain financing on the terms set forth in the Subscription Agreement
and for other good and valuable consideration (the receipt and sufficiency
of
which are hereby acknowledged), the Guarantor agrees with the Investor as
follows:
ARTICLE
1
INTERPRETATION
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1.1
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Definitions
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In
this Agreement:
1.1.1 “this
Agreement”, “hereto”, “herein”,
“hereof”, “hereby”,
“hereunder” and any similar expressions refer to this Guarantee
and Indemnity as it may be supplemented, amended or restated from time to time,
and not to any particular article, section or other portion hereof;
1.1.2 “Borrower”
means New Lorus and its successors;
1.1.3 “Business
Day” means any day, other than Saturday, Sunday or any statutory
holiday in the Province of Ontario;
1.1.4 “Conversion
Rate” means, in relation to the conversion of one currency to another
on a particular day, the rate of exchange quoted by the Investor as its spot
rate of exchange for the conversion of one currency to the other at
approximately noon (Toronto time) on such day;
1.1.5 “Debentures”
means the convertible secured debentures issued by the Borrower to the Investor
pursuant to the Subscription Agreement;
1.1.6 “Guaranteed
Obligations” means all of the obligations, liabilities and indebtedness
of the Borrower to the Investor from time to time, whether present or future,
absolute or contingent, liquidated or unliquidated, as principal or as surety,
alone or with others, of whatsoever nature or kind, in any currency, under
or in
respect of agreements or dealings between the Borrower and the Investor or
agreements or dealings between the Investor and any Person by which the Investor
may be or become in any manner whatsoever a creditor of the Borrower, including
without limitation under the Subscription Agreement and the Debentures; the
amount of Guaranteed Obligations will be determined without regard to any right
of set-off or counterclaim by the Borrower against the Investor;
1.1.7 “Indemnifiable
Circumstance” has the meaning attributed to such term in section
2.2;
1.1.8
“Indemnified Amounts” means the amounts to be paid by the
Guarantor under section 2.2;
1.1.9 “Person”
means any individual, partnership, limited partnership, joint venture,
syndicate, sole proprietorship, company or corporation with or without share
capital, unincorporated association, trust, government, parliament or
legislature, or any regulatory authority, agency, commission, board or other
entity however designated or constituted of any government, parliament or
legislature, including without limitation any trustee, executor, administrator
or other legal personal representative, liquidator, trustee in bankruptcy,
receiver, receiver and manager, and agent;
1.1.10 “Proceedings”
means any receivership, insolvency, proposal, bankruptcy, compromise,
arrangement, reorganization, winding-up, dissolution or other similar
proceedings, whether or not any of the foregoing is judicial in
nature;
1.1.11 “Security”
means:
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1.1.11.1
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any
mortgage, charge, assignment, lien, security interest or other
encumbrance;
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1.1.11.2
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any
guarantee; and
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1.1.11.3
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any
other arrangement designed to secure the payment or performance of
any
obligation, liability or
indebtedness,
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whether
obtained from the Borrower, the Guarantor or any other Person and whether
obtained before, at the time of or after the execution and delivery of this
Agreement; and
1.1.12 “Subscription
Agreement” means the subscription agreement among, inter alia,
the Borrower, the Investor and the Guarantor dated as of October 6, 2004, as
amended by the Assignment Agreement, as amended or supplemented from time to
time.
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1.2
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Headings
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The
inclusion of headings in this Agreement is for convenience of reference only
and
shall not affect the construction or interpretation hereof.
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1.3
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References
to Articles and Sections
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Whenever
in this Agreement a particular article, section or other portion thereof is
referred to, such reference pertains to the particular article, section or
portion thereof contained herein unless otherwise indicated.
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1.4
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References
to Agreements and
Enactments
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Except
as otherwise specifically provided:
1.4.1 reference
in this Agreement to any contract, agreement or any other document shall be
deemed to include (i) reference to the same as supplemented, amended or restated
from time to time and (ii) reference to any contract, agreement or any other
document which substitutes, in whole or in part, for the same from time to
time;
and
1.4.2 reference
in this Agreement to any enactment, including, without limitation, any statute,
law, by-law, regulation, rule, ordinance or order, shall be deemed to include
reference to such enactment as re-enacted or amended from time to time and
to
any enactment in substitution therefor.
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1.5
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Currency
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All
amounts in this Agreement are stated and shall be paid in Canadian currency,
provided that if Guaranteed Obligations are outstanding in a currency other
than
Canadian currency, the Investor, at its option, may require that such amounts
be
paid in such other currency, to the extent that the Guaranteed Obligations
are
outstanding in such other currency.
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1.6
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Gender
and Number
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In
this Agreement, unless the context otherwise requires, words importing the
singular include the plural and vice versa, words importing gender include
all
genders or the neuter, and words importing the neuter include all
genders.
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1.7
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Invalidity
of Provisions
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Each
of the provisions contained in this Agreement is distinct and severable and
a
declaration of invalidity or unenforceability of any such provision or part
thereof by a court of competent jurisdiction shall not affect the validity
or
enforceability of any other provision hereof. To the extent permitted
by applicable law, the parties waive any provision of law which renders any
provision of this Agreement invalid or unenforceable in any
respect.
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1.8
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No
Conditions Precedent
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This
Agreement is effective upon execution and delivery of this Agreement by the
Guarantor. Where in this Agreement or elsewhere more than one Person
is named as Guarantor or as a guarantor, this Agreement will be effective
against each Person named as a Guarantor upon execution and delivery of this
Agreement by that Person even if one or more of the other Person(s) never sign
this Agreement or any other guarantee. Such execution and delivery
constitutes conclusive evidence that this Agreement was not delivered in escrow
and that any conditions precedent to the effectiveness of this Agreement have
been satisfied or waived by the Guarantor.
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1.9
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Entire
Agreement
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This
Agreement constitutes the entire agreement between the parties pertaining to
the
subject matter of this Agreement. There are no warranties,
conditions, or representations (including any that may be implied by statute)
and there are no agreements in connection with such subject matter except as
specifically set forth or referred to in this Agreement. No reliance
is placed on any warranty, representation, opinion, advice or assertion of
fact
made either prior to, contemporaneous with, or after entering into this
Agreement, or any amendment or supplement thereto, by any party to this
Agreement or its directors, officers, employees or agents, to any other party
to
this Agreement or its directors, officers, employees or agents, except to the
extent that the same has been reduced to writing and included as a term of
this
Agreement, and none of the parties to this Agreement has been induced to enter
into this Agreement or any amendment or supplement by reason of any such
warranty, representation, opinion, advice or assertion of
fact. Accordingly, there shall be no liability, either in tort or in
contract, assessed in relation to any such warranty, representation, opinion,
advice or assertion of fact, except to the extent contemplated
above.
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1.10
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Waiver,
Amendment
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Except
as expressly provided in this Agreement, no amendment or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any provision
of this Agreement constitute a continuing waiver unless otherwise expressly
provided.
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1.11
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Governing
Law, Attornment
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This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Ontario and the laws of Canada applicable therein and the Guarantor
hereby irrevocably attorns to the jurisdiction of the courts of
Ontario.
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ARTICLE
2
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2.1
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Guarantee
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The
Guarantor unconditionally and irrevocably guarantees the due payment and
performance of all Guaranteed Obligations including without limitation and
for
greater certainty the performance by the Borrower of all terms and conditions
in
the Subscription Agreement, the Debentures and all other agreements enforceable
by the Investor to which the Borrower is a party or by which the Borrower or
its
property and assets are bound relating to the Guaranteed Obligations (whether
or
not involving parties other than the Borrower and the Investor).
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2.2
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Indemnity
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The
Guarantor shall indemnify and save the Investor harmless from and against any
losses which may arise by virtue of any of the Guaranteed Obligations, the
Subscription Agreement, the Debentures or any other agreement relating to any
of
the foregoing being or becoming for any reason whatsoever in whole or in
part:
2.2.1 void,
voidable, ultra xxxxx, illegal, invalid, ineffective or otherwise
unenforceable by the Investor in accordance with its terms, or
2.2.2 released
or discharged by operation of law,
(all
of the foregoing collectively, an “Indemnifiable Circumstance”). For
greater certainty, these losses shall include without limitation the amount
of
all Guaranteed Obligations which would have been payable by the Borrower but
for
the existence of an Indemnifiable Circumstance.
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2.3
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Guarantor
Liable as Principal
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The
Guarantor shall be liable to the Investor as principal debtor and not as surety
only, and will not plead or assert to the contrary in any action taken by the
Investor in enforcing this Agreement.
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2.4
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Continuing
Guarantee and Indemnity
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The
guarantee and indemnity herein shall be a continuing guarantee of the payment
and performance of all the Guaranteed Obligations and a continuing indemnity
for
the payment of all indemnified amounts.
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2.5
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Reinstatement
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The
guarantee and indemnity herein shall be reinstated if at any time any payment
of
any Guaranteed Obligations or Indemnified Amounts is rescinded or must otherwise
be returned by the Investor upon any Proceedings of or affecting the Borrower
or
any other Person or for any other reason whatsoever, all as though such payment
had not been made. The Investor may concede or compromise any claim
that such payment ought to be rescinded or otherwise returned, without
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discharging,
diminishing or in any way affecting the liability of the Guarantor hereunder
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the effect of this Section 2.5.
ARTICLE
3
ENFORCEMENT
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3.1
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Demand
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Upon
the default in the payment or performance of the Guaranteed Obligations or
any
part thereof, the Guarantor shall, on demand by the Investor, forthwith pay
to
the Investor, or perform or cause the performance of, all Guaranteed Obligations
for which such demand was made. All Indemnified Amounts shall be
payable by the Guarantor to the Investor forthwith upon demand by the
Investor.
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3.2
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Right
to Immediate Payment or
Performance
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The
Investor shall not be bound to make any demand on or to seek or exhaust its
recourse against the Borrower or any other Person or to realize on any Security
held by it in respect of the Guaranteed Obligations before being entitled to
demand payment from or performance by the Guarantor and enforce its rights
under
this Agreement, and the Guarantor hereby renounces all benefits of discussion
and division.
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3.3
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Interest
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All
amounts payable by the Guarantor under this Agreement shall bear interest
payable by the Guarantor from the date of demand for payment both before and
after default and judgment at the Prime Rate plus 2%. For the
purposes of the foregoing, “Prime Rate” means, for any day, the annual rate
established by the Royal Bank of Canada and which it refers to as its “prime
rate of interest”.
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3.4
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Investor’s
Statement
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The
statement in writing of the Investor as to the amount of the Guaranteed
Obligations, the Indemnified Amounts and all other amounts payable hereunder
shall be binding upon the Guarantor and conclusive against it in the absence
of
manifest error.
ARTICLE
4
APPROPRIATION
AND SET-OFF BY INVESTOR
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4.1
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Appropriation
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The
Investor shall be at liberty, without in any way prejudicing or affecting its
rights hereunder, to appropriate or to refrain from appropriating any payment
made to, or monies received by, the Investor from:
4.1.1 the
Borrower or others to any portion of the Guaranteed Obligations;
and
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4.1.2 the
Guarantor to any portion of the Guaranteed Obligations, the Indemnified Amounts,
all other amounts payable hereunder and any , liabilities and indebtedness
of
the Guarantor to the Investor,
in
each case whether then due or to become due, and whether absolute or contingent,
and from time to time to revoke or alter any such appropriation, all as the
Investor may from time to time in its sole discretion determine.
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4.2
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Set-Off
by Investor
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The
Investor may, without demand or notice of any kind, set off, appropriate and
apply any and all deposits, general or special, matured or unmatured, in any
currency, held by or for the benefit of the Guarantor with the Investor, and
any
other indebtedness and liability of the Investor to the Guarantor, matured
or
unmatured, in any currency, against and on account of the Guarantor’s liability
hereunder in any currency upon the Investor making demand for payment hereunder
when the Guaranteed Obligations are due, in such order of application as the
Investor may from time to time elect. If the amounts being set-off
are not payable in the same currency, the Investor may convert either amount
into the other currency at the Conversion Rate on the day as of which that
set-off is being effected, or if that day is not a Business Day then on the
Business Day preceding the day as of which that set-off is being
effected.
ARTICLE
5
POSTPONEMENT
OF DEBTS
AND
GUARANTOR NOT TO COMPETE
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5.1
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Postponement
of Debts
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All
liabilities and indebtedness, present and future, absolute or contingent, of
the
Borrower to the Guarantor, and of any other guarantor or Person liable directly
or as surety for the Guaranteed Obligations or any part thereof, are hereby
assigned to the Investor and postponed to the payment and performance in full
of
the Guaranteed Obligations, the Indemnified Amounts and all other amounts
payable hereunder and all monies received by the Guarantor in respect thereof
shall be received in trust for the Investor or, in the Province of Quebec,
as
agent for the Investor and forthwith upon receipt shall be paid over to the
Investor, the whole without in any way lessening or limiting the liability
of
the Guarantor under this Agreement. Such assignment and postponement
is independent of the guarantee and indemnity herein and shall remain in full
force and effect until the Investor has received payment and performance in
full
of all Guaranteed Obligations, all Indemnified Amounts and all other amounts
payable hereunder, notwithstanding that the liability of the Guarantor under
the
guarantee and indemnity herein may have been discharged or
terminated.
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5.2
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Guarantor
Not to Compete
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The
Guarantor shall not:
5.2.1 take
any Security or dividend from the Borrower or any other guarantor or Person
liable directly or as surety for all or any part of the Guaranteed
Obligations;
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5.2.2 claim,
rank, prove or vote as a creditor in any Proceedings of or affecting the
Borrower or any other guarantor or Person liable directly or as surety for
all
or any part of the Guaranteed Obligations;
5.2.3 assert
any right (including without limitation any right of set-off, right of indemnity
or reimbursement or right of contribution, and any right whether or not the
right arises under any Security) against the Borrower or any other guarantor
or
Person liable directly or as surety for all or any part of the Guaranteed
Obligations; or
5.2.4 have
any right of subrogation to the Investor or be otherwise entitled to claim
the
benefit of any Security now or hereafter held by the Investor in respect of
the
Guaranteed Obligations;
until
the Investor has received payment and performance in full of all Guaranteed
Obligations, all Indemnified Amounts and all other amounts payable
hereunder. Any money, Security, or other personal or real property
taken or received by the Guarantor in contravention of this section 5.2 or
as
requested by the Investor under section 5.2.2 above shall be held by the
Guarantor in trust for the Investor or, in the Province of Quebec, as agent
for
the Investor and shall be delivered or transferred to the Investor on
demand.
ARTICLE
6
PROTECTION
OF INVESTOR
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6.1
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Defects
in Creation of Guaranteed
Obligations
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The
Investor shall not be concerned to see or enquire into the capacity and powers
of the Borrower or its directors, officers, employees or agents acting or
purporting to act on its behalf. All obligations, liabilities and
indebtedness purporting to be incurred by the Borrower in favour of the Investor
shall be deemed to form part of the Guaranteed Obligations even though the
Borrower may not be a legal entity or the incurring of such obligations,
liabilities or indebtedness was irregularly, fraudulently, defectively or
informally effected or in excess of the capacity or powers of the Borrower
or
its directors, officers, employees or agents and notwithstanding that the
Investor has specific notice of the capacity and powers of the Borrower or
its
directors, officers, employees or agents.
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6.2
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Liability
Absolute
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The
liability of the Guarantor hereunder shall be absolute and unconditional and
shall not be discharged, diminished or in any way affected by:
6.2.1 any
amalgamation, merger, consolidation or reorganization of the Borrower, the
Guarantor or the Investor or any continuation of the Borrower, the Guarantor
or
the Investor from the statute under which it now or hereafter exists to another
statute whether under the laws of the same jurisdiction or another
jurisdiction;
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6.2.2 any
change in the name, business, objects, capital structure, ownership, constating
documents, by-laws or resolutions of the Borrower, the Guarantor or the
Investor, including without limitation any transaction (whether by way of
transfer, sale or otherwise) whereby all or any part of the undertaking,
property and assets of the Borrower, the Guarantor or the Investor becomes
the
property of any other Person;
6.2.3 any
Proceedings of or affecting the Borrower, the Guarantor, the Investor or any
other Person and any court orders made or action taken by the Borrower, the
Guarantor, the Investor or any other Person under or in connection with those
Proceedings, whether or not those Proceedings or orders or that action results
in any of the matters described in section 6.3.1.1 to 6.3.1.8 occurring with
or
without the consent of the Investor;
6.2.4 the
current existence or subsequent occurrence of an Indemnifiable
Circumstance;
6.2.5 any
defence, counterclaim or right of set-off available to the
Borrower;
6.2.6 the
fact that the Borrower ceases to be liable for any reason whatsoever to the
Investor in respect of all or any part of the Guaranteed Obligations (otherwise
than by reason of the payment of those Guaranteed Obligations to the Investor)
or the fact that a court determines that the liability of the Borrower to the
Investor in respect of all or any part of the Guaranteed Obligations has been
satisfied or is deemed to have been satisfied (except in circumstances where
payment of those Guaranteed Obligations has been received by the Investor);
and
6.2.7 any
other circumstance which might otherwise constitute in whole or in part a
defence available to, or a discharge of, the Guarantor, the Borrower or any
other Person in respect of the Guaranteed Obligations or the liability of the
Guarantor.
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6.3
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Dealings
by Investor
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6.3.1 The
Investor may from time to time in its absolute discretion, without discharging,
diminishing or in any way affecting the liability of the Guarantor
hereunder:
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6.3.1.1
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advance
any funds to the Borrower or make or continue to make any financing
available to the Borrower constituting or relating to Guaranteed
Obligations;
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6.3.1.2
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permit
any increase or decrease, however significant, of the Guaranteed
Obligations or otherwise supplement, amend, restate or substitute,
in
whole or in part, however significant, the Guaranteed Obligations,
the
Subscription Agreement, the Debentures or any other agreement relating
to
any of the foregoing or, in whole or in part, terminate the availability
of any financing relating to, or demand repayment of any Guaranteed
Obligations;
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6.3.1.3
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enforce
or take action under or abstain from enforcing or taking action under
the
Subscription Agreement, the Debentures or any other agreement relating
to
any of the foregoing;
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6.3.1.4
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receive,
give up, subordinate, release or discharge any Security; supplement,
amend, restate, substitute, renew, abstain from renewing, perfect
or
abstain from perfecting or maintaining the perfection of any Security;
enforce, take action under or realize in any manner or abstain from
enforcing, taking action under or realizing any Security; deal with
or
abstain from dealing with all or any part of the undertaking, property
and
assets covered by any Security or allow or abstain from allowing
the
Borrower or other Persons to deal with all or any part of such
undertaking, property and assets;
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6.3.1.5
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renew
all or any part of the Guaranteed Obligations or grant extensions
of time
or any other indulgences to the Borrower or to any other guarantor
or
other Person liable directly or as surety for all or any part of
the
Guaranteed Obligations;
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6.3.1.6
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accept
or make any compositions or arrangements with or release, discharge
or
otherwise deal with or abstain from dealing with the Borrower or
any other
guarantor or other Person liable directly or as surety for all or
any part
of the Guaranteed Obligations;
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6.3.1.7
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in
whole or in part prove or abstain from proving a claim of the Investor
in
any Proceedings of or affecting the Borrower or any other Person;
and
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6.3.1.8
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agree
with the Borrower, any other guarantor or any other Person to do
anything
described in sections 6.3.1.1 to 6.3.1.7
above;
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whether
or not any of the matters described in sections 6.3.1.1 to 6.3.1.8 above occur
alone or in connection with one or more other such matters.
6.3.2 In
no case will the liability of the Guarantor hereunder be discharged, diminished
or in any way affected as a result of:
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6.3.2.1
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any
negligence of the Investor or its agents whatsoever, including without
limitation any negligence in respect of, or in the course of, any
matter
described in sections 6.3.1.1 to 6.3.1.7 above;
or
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6.3.2.2
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any
default under, or breach by the Investor or its agents of (i) the
Subscription Agreement, the Debenture, or any other agreement including
without limitation any Security, (ii) any applicable law, or (iii)
any
other obligation or duty binding the Investor or its
agents.
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No
loss of or in respect of any Security for the Guaranteed Obligations or any
part
thereof, whether occasioned through the fault of the Investor or otherwise,
shall discharge, diminish or in any way affect the liability of the Guarantor
hereunder. Neither the Investor nor any of its directors, officers,
employees or agents or any receiver or receiver-manager appointed by it or
by a
court shall have any liability, whether in tort, contract or otherwise, for
any
neglect or any act taken or omitted to be taken by the Investor or by any of
such other Persons in connection with the
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Guaranteed
Obligations or any part thereof or any Security for the Guaranteed Obligations
or any part thereof including without limitation any of the matters described
above in this section 6.3. The Guarantor waives all rights it may
have as surety, whether at law, in equity or otherwise, that are inconsistent
with the provisions of this Agreement.
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6.4
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Waiver
of Notice
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The
Guarantor expressly waives any right to receive notice of the existence or
creation of all or any of the Guaranteed Obligations and presentment, demand,
notice of dishonour, protest, notice of any of the events or circumstances
described in sections 6.1, 6.2 and 6.3 and all other notices whatsoever in
respect of the Guaranteed Obligations except to the extent, if at all, that
the
Personal Property Security Act (Ontario) or other applicable law
requires notice to be given to the Guarantor in connection with any disposition
of collateral by or on behalf of the Investor. The Guarantor hereby
acknowledges communication to it of the terms of the Subscription Agreement,
the
Debenture and all agreements and other documents referred to in the Subscription
Agreement and the Debenture and of all the provisions therein contained and
consents to and approves the same.
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6.5
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Expanded
Interpretation
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Notwithstanding
anything else in this Agreement, where the Investor allows the Borrower or
any
other Person to deal with any property and assets covered by any Security on
terms which stipulate that the Security continues to cover such property and
assets after such dealing, each reference to the Borrower in Article 6 shall
be
deemed to include the Person acquiring an interest in such property and
assets.
ARTICLE
7
MISCELLANEOUS
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7.1
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Payment
of Costs and Expenses
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The
Guarantor shall pay to the Investor on demand all costs and expenses of the
Investor, its officers, employees and agents and any receiver or
receiver-manager appointed by it or by a court in connection with this
Agreement, including, without limitation:
7.1.1 any
actual or proposed amendment or modification hereof or any waiver hereunder
and
all instruments supplemental or ancillary thereto;
7.1.2 obtaining
advice as to the Investor’s rights and responsibilities under this Agreement;
and
7.1.3 the
defence, establishment, protection or enforcement of any of the rights or
remedies of the Investor under this Agreement including, without limitation,
all
costs and expenses of establishing the validity and enforceability of, or of
collection of amounts owing under, this Agreement;
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and
further including, without limitation, all of the fees, expenses and
disbursements of the Investor’s lawyers, on a solicitor and his own client
basis, incurred in connection therewith and all sales or value-added taxes
payable by the Investor (whether refundable or not) on all such costs and
expenses.
|
7.2
|
No
Set-off By Guarantor
|
All
amounts payable by the Guarantor under this Agreement shall be paid without
set-off or counterclaim and without any deduction or withholding whatsoever
unless and to the extent that the Guarantor shall be prohibited by law from
doing so, in which case the Guarantor shall pay to the Investor such additional
amount as shall be necessary to ensure that the Investor receives the full
amount it would have received if no such deduction or withholding had been
made.
|
7.3
|
No
Waiver
|
No
delay on the part of the Investor in the exercise of any right, power or remedy
hereunder or otherwise shall operate as a waiver thereof, and no single or
partial exercise by the Investor of any right, power or remedy shall preclude
other or further exercise thereof or the exercise of any other right, power
or
remedy. No action of the Investor permitted hereunder shall in any
way impair or affect its rights, powers or remedies under this
Agreement.
|
7.4
|
Additional
Security
|
This
Agreement shall be in addition to, and shall not be in any way prejudiced by
nor
shall this Agreement prejudice:
7.4.1 any
other Security now or hereafter held by the Investor, and
7.4.2 the
endorsement by the Guarantor of any notes or other documents,
and
the Investor’s rights under this Agreement shall not be merged in any such other
Security or endorsement.
|
7.5
|
Assignment
by Investor
|
The
Investor may sell, assign or transfer all or any of the Guaranteed Obligations,
and in such event each and every immediate and successive assignee, transferee
or holder of all or any of the Guaranteed Obligations, shall have, in respect
of
the rights or obligations sold, assigned or transferred to it, the full benefit
hereof to the same extent as if it were an original party hereto and to the
Guaranteed Obligations or the part thereof so sold, assigned or transferred,
without regard to any set-off, counterclaim or equities between the Borrower
and
the Investor or the Guarantor and the Investor.
|
7.6
|
Communication
|
Any
demand, notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid mail, by facsimile
or other means of electronic communication or by hand-delivery as hereinafter
provided. Any such demand, notice or
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other
communication, if mailed by prepaid mail at any time other than during or within
three Business Days prior to a general discontinuance of postal service due
to
strike, lockout or otherwise, shall be deemed to have been received on the
fourth Business Day after the post-marked date thereof, or if sent by facsimile
or other means of electronic communication, shall be deemed to have been
received on the Business Day following the sending, or if delivered by hand
shall be deemed to have been received at the time it is delivered to the
individual designated below as the person to whose attention demands, notices
and other communications are to be given or to the addressee at the applicable
address noted below to the attention of the individual designated
below. Notice of change of address shall also be governed by this
section. In the event of a general discontinuance of postal service
due to strike, lock-out or otherwise, demands, notices or other communications
shall be delivered by hand or sent by facsimile or other means of electronic
communication and shall be deemed to have been received in accordance with
the
foregoing. Demands, notices and other communications shall be
addressed as follows:
|
|
(a)
|
if
to the Investor:
|
The
Xxxx Xxxxx Investment Corporation
0000
Xxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxx
X. Xxxxx
Telecopier
number: (000)
000-0000
|
|
(b)
|
if
to the Guarantor:
|
GeneSense
Technologies Inc.
0
Xxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxxxx
Xxxxx
Telecopier
number: (000)
000-0000
|
7.7
|
Successors
and Assigns
|
This
Agreement shall be binding upon the Guarantor and its successors and enure
to
the benefit of the Investor and its successors and assigns.
|
7.8
|
Copy
Received
|
The
Guarantor acknowledges receipt of a copy of this Agreement.
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IN
WITNESS WHEREOF the Guarantor has executed this Agreement as of the
date first above written.
|
GENESENSE
TECHNOLOGIES INC.
|
|||
| by: |
“Xxxxxx
Xxxxx”
|
||
| Name: | |||
| Title: | |||
| by: |
|
||
| Name: | |||
| Title: | |||
