IRREVOCABLE GUARANTEE AGREEMENT
IRREVOCABLE GUARANTEE AGREEMENT
THIS AGREEMENT MADE EFFECTIVE AS OF THE 13TH DAY OF NOVEMBER 2002 (the "Effective Date").
BETWEEN:
RESPONSE BIOMEDICAL CORP., a company incorporated under the laws of British Columbia having its head office at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company")
AND:
MENDERES HOLDING AG, c/o Bank Xxxxxxx & Cie, Xxxxxxxxxxxxxxxxxx 00 XX, 0000 Xxxxx, Xxxxxxxxxxx
(the "Guarantor")
WHEREAS:
A. the Company is entering into a line of credit agreement with The Toronto-Dominion Bank ("the "Creditor"), evidenced by the materials attached as Schedule "A" for a total of US$500,000 and referred to herein as the "Credit Line ", contingent upon the issuance of a suitable standby letter of credit ("LC") to the Creditor by Bank Xxxxxxx Xxxxxxxxxxxxxxxxxx 00 XX, 0000 Xxxxx, Xxxxxxxxxxx;
B. he Guarantor has agreed to guarantee the LC by providing an unconditional and irrevocable guarantee for the amount of US$500,000 (the "Guarantee") to Bank Xxxxxxx expiring at the office the Creditor on the close of business September 30, 2003;
C. the Guarantor has agreed to accept common share purchase warrants (the "Warrants") providing the Guarantor the right to purchase 700,621 common shares without par value (the "Shares") in the capital stock of the Company as consideration for providing the Guarantee, such Warrants to be exercisable at a price of Cdn $0.45 per Share and the total aggregate number of Shares calculated based on the Bank of Canada Noon Exchange Rate on the effective date of this agreement, of C$/US$1.5764;
D. the Guarantor is a person to whom the Company may issue securities pursuant to the exemption (the "Exemptions") provided by Multilateral Instrument #45-103 of the British Columbia Securities Act, Rules, Regulations, Instruments or Notices; and
E. the Warrants will be issued pursuant to the Exemptions and that the Company is relying on the Exemptions from the requireme4ts to provide the purchaser with a prospectus and to sell securities through a person registered to sell securities under the B.C. Securities Act and, as a consequence of acquiring securities pursuant to the Exemptions, certain protections, rights and remedies provided by the B.C. Securities Act, including statutory rights of rescission or damages, will not be available to the purchaser.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree with each other (the "Agreement") as follows:
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| l. | On the basis of the representations
and warranties of the Guarantor contained in this Agreement and subject
to the terms of this Agreement, the Company agrees to issue the Warrants
to or at the direction of the Guarantor as full consideration for providing
the Guarantee. |
| 2. | For the term of the Guarantee, the Company
agrees to inform the Guarantor of the Credit Line balance by e-mail or
fax on the last business day of each calendar month. |
| 3. | This Agreement is subject to all necessary
approvals of the TSX Venture Exchange (the "Exchange") and the B.C. Securities
Commission (the "Regulators"). |
| 4. | Subject to the Creditor having first
accepted a LC from Bank Xxxxxxx and the Creditor and the Company executing
the Credit Line, the Company shall deliver a warrant certificate representing
the Warrants to the Guarantor at his address shown on the first page of
this Agreement within ten days of receiving written notice of the last
of the approvals of the Regulators. |
| 5. | The Guarantor acknowledges that the
Shares will be subject to a four (4) month hold period from the
date of the issuance of the Warrants imposed by the Exchange and by the
operation of applicable securities rules or by applicable securities regulatory
bodies, and that a share certificate issued within four months of issuing
the Warrants, as a result of exercising the Warrants, will bear legends
to that effect. |
| 6. | The Guarantor acknowledges that this
Agreement is not being entered into and the Warrants are not being acquired
by the Guarantor as a result of any material information about the Company's
affairs that has not been publicly disclosed. |
| 7. | In the event of any subdivision, consolidation
or other change in the share capital of the Company prior to the issuance
of the Warrants, the number of Warrants issued pursuant to this Agreement
shall be adjusted in accordance with such subdivision, consolidation or
other change in the share capital of the Company. |
| 8. | Time shall be of the essence in this
Agreement. |
| 9. | This Agreement is subject to, governed
by and construed in accordance with the laws of the Province of British
Columbia. |
| 10. | All references to funds in this Agreement
are in Canadian funds unless otherwise noted. |
| 11. | This Agreement shall enure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, administrators, successors and assigns. |
| 12. | The parties hereto agree to execute
and deliver all such further documents and other writings of any kind
whatsoever and all such further acts and things as are reasonably required
to carry out the full intent and meaning of this Agreement. |
| 13. | Whenever the singular or masculine is
used in this Agreement the same shall be deemed to include the plural
or the feminine or the body corporate as the context may require. |
| 14. | This Agreement constitutes the entire
agreement between the parties and there are no representations, warranties,
covenants or agreements collateral hereto other than as contained herein. |
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| 15. | This Agreement may be signed in as many counterparts
as may be deemed necessary, each of which so signed shall be deemed to
be an original, and all such counterparts together shall constitute one
and the same instrument. |
IN WITNESS WHEREOF the parties have executed this written Agreement effective as of the Effective Date.
SIGNED, SEALED AND DELIVERED BY
RESPONSE BIOMEDICAL CORP. per:
/s/ Xxxxxxx X. Xxxxxx
Authorized Signatory
Name of Signatory: Xxxxxxx X. Xxxxxx
Title of Signatory: President and C.E.O.
| SIGNED, SEALED & DELIVERED by | ) | |
| MENDERES HOLDING AG | ) | |
| in the presence of: | ) | |
| ) | ||
| /s/ Xxx Xxxxxxxxx | ) | MENDERES HOLDING AG |
| Signature of Witness | ) | |
| ) | ||
| Name: /s/ Xxx Xxxxxxxxx | ) | Per: Xxxx X. Xxxxxxx |
| ) | ||
| Address: c/o Bank Xxxxxxx | ) | /s/ Xxxx X. Xxxxxxx |
| ) | Duly Authorized Signatory of the Guarantor | |
| Occupation: Secretary of the Group Executive Docs. | ) | |
| ) | Chairman of the Board |
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SCHEDULE A
1. Standby Letter of Credit issued by Bank Xxxxxxx to The Toronto-Dominion Bank
2. Line of Credit Agreement between the Company and The Toronto-Dominion Bank
| The Toronto Dominion Bank | |
| Xx. Xxxxxxx Xxxxxxxxx, Analyst | |
| 0xx Xxxxx, 000 Xxxx Xxxxxxx Xxxxxx | |
| P.O. Box 10001 - Pacific Centre | |
| Xxxxxxxxx, XX X0X 0X0 | |
| Xxxxxx | |
| Basel, 14th November 2002 | |
| AFLI / 7268 |
IRREVOCABLE STANDBY LETTER OF CREDIT NO. 5952
We, BANK XXXXXXX & CO. LTD, Basel/Switzerland, for the account of Menderes Holding AG, Basel, hereby establish an unconditional and irrevocable standby letter of credit no. 5952, in favour of The Toronto Dominion Bank, 000 Xxxxxxxxx Xxxxxx & Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx. X0X 0X0, Transit#96990 004 for drawing up to
USD 500,000. -- (US Dollars five hundred thousand)
effective immediately and expiring at our office with our close of business on
30th September 2003 (thirtieth September two thousand and three)
after which date this letter of credit shall become null and void. Except when the amount of this letter of credit is increased, this credit cannot be modified or revoked without your consent.
This letter of credit is established to secure a credit facility extended by The Toronto Dominion Bank, 000 Xxxxxxxxx Xxxxxx & Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 1 V3 Transit#96990 004 to Response Biomedical Corp. 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx VJ 5J1.
Credit is available to you by your authenticated swift demand stating:
"monies drawn pursuant to this letter of credit represents outstanding and unpaid principal and interest calculated up to the value date of the drawing due and owing in connection with an agreement between Response Biomedical Corp. 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx VJ 5J1, and The Toronto Dominion Bank, 000 Xxxxxxxxx Xxxxxx & Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0 Transit#96990 004."
Reimbursement shall be effected in accordance with your instructions contained in your authenticated swift demand.
Partial drawings are permitted. With each payment under this letter of credit our obligation will be reduced pro rata.
This letter of credit is subject to the uniform customs and practice for documentary credit (1993 revision) international chamber of commerce publication no. 500.
Yours faithfully,
BANK XXXXXXX & CO. LTD.
| /s/ Fabio Bobia | /s/ Xxxxx Xxxxxxxx |
| Xxxxx Xxxxx | Xxxxx Xxxxxxxx |
Bank Xxxxxxx & Cie AG . Xxxxxxxxxxxxxxxxxx 00 - Xxxxxxxx
- XX-0000 Xxxxx
Telefon x00 (0)00 000 00 00 • Telefax x00 (0)00 000 00 00 • Telex
964 597 • Internet xxx.xxxxxxx.xx
