Exhibit 10.13
GUARANTEE
THIS DEED OF GUARANTEE dated for reference the 28th day of February, 2003, by
MFC BANCORP LTD., a corporation organized under the laws of the Yukon Territory
(the "Guarantor"), having an office at Suite 300 - 204 Black Street, Whitehorse,
Yukon, Canada X0X 0X0, and delivered to MFC MERCHANT BANK S.A., a bank organized
under the laws of Switzerland, having an office at Xxxxxxxxxxxxxxx 0, 0000
Xxxxxxx XX, Xxxxxxxxxxx (the "Lender"), witnesses that whereas:
A. Mymetics Corporation, a corporation organized under the laws of the
State of Delaware, having an office at 00-00 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, 00000 Xxxxx-Xxxxx-Xxxxx, Xxxxxx (the "Borrower"), entered
into a credit facility agreement with the Lender dated for reference
the 27th day of July, 2000, as amended by amendment agreements dated
for reference August 13, 2001 and February 27, 2002 (the "Original
Credit Agreement");
B. The Guarantor, having a direct or indirect interest in the financial
transactions between the Lender and the Borrower, wishes the Lender to
carry on or continue to carry on business with the Borrower;
C. The Lender, the Borrower and the Guarantor entered into a third
amendment agreement dated for reference February 28, 2003 (the "Third
Amendment") and subsequently an amended and restated credit facility
agreement dated for reference February 28, 2003, in the place and stead
of the Original Credit Agreement as amended by the Third Amendment (as
the same may be amended, extended, renewed or replaced from time to
time, the "Credit Agreement");
D. The Guarantor has agreed, pursuant to the terms and conditions of this
guarantee, to guarantee unconditionally a portion of the indebtedness
of the Borrower to the Lender, which now exists or which from time to
time hereafter exists under the Credit Agreement, limited to the
principal amount of such indebtedness in excess of Euro 2,000,000 and
all interest thereon (the "Guaranteed Indebtedness"); and
E. The Guarantor is a party to and acknowledges having received a copy of
the Credit Agreement,
NOW THEREFORE in consideration of the premises hereinafter set forth and for
other good and valuable consideration given by the Lender to the Guarantor, the
receipt and sufficiency of which is hereby acknowledged by the Guarantor, the
Guarantor agrees with the Lender as follows:
1. INTERPRETATION
Terms used as defined terms herein and not otherwise defined have the meanings
given to them in the Credit Agreement.
2. REPRESENTATIONS AND WARRANTIES
The Guarantor makes the following representations and warranties which shall be
continuing representations and warranties for so long as any Guaranteed
Indebtedness shall remain unpaid:
2.1 RIGHTS
The Guarantor has full power and authority to make and carry out this
guarantee.
2.2 GUARANTEE VALID
This guarantee is a legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms. If the Guarantor is
a corporation, the directors of the Guarantor have passed a resolution
which is now in effect and which confirms that the directors of the
Guarantor are of the opinion that the giving of this guarantee is in
the best interests of the Guarantor.
2.3 NO CONFLICT
The execution and delivery of this guarantee does not, and the
performance of this guarantee, and any indenture or undertaking to
which the Guarantor is a party or by which it or any of its property is
or may be bound or affected, does not, and will not, cause any security
interest, lien or other encumbrance to be created or imposed upon any
such property.
2.4 LITIGATION
There is no litigation or other proceeding pending or, to the knowledge
of the Guarantor, threatened against, or affecting, it or its
properties which, if determined adversely to the Guarantor, would have
a materially adverse effect on the financial condition, properties or
operations of the Guarantor, and the Guarantor is not in default with
respect to any order, writ, injunction, decree or demand of any court
or other governmental or regulatory authority.
2.5 ACCURACY OF RECITALS
Recital paragraphs A, B, C, D and E hereof are accurate, form part of
this guarantee and are contractual in nature.
2.6 FINANCIAL BENEFIT
The Guarantor hereby acknowledges and warrants that it has derived or
expects to derive a financial advantage from each and every loan,
advance, other extension of credit or release of funds under the Credit
Agreement, and from each and every renewal, extension, release of
collateral or forbearance from pursuit or other relinquishment of legal
rights, made or granted or to be made or granted by the Lender to the
Borrower.
2.7 SOLVENCY
The Guarantor is not, and after the granting of this guarantee will not
be, insolvent.
3. GUARANTEE
3.1 GUARANTEE
The Guarantor unconditionally guarantees and promises to pay or cause
to be paid to or to the order of the Lender, on demand, the Guaranteed
Indebtedness of the Borrower to the Lender in accordance with the
provisions of this guarantee with interest thereon from the date of
demand for payment until the date of payment at the rate of interest
payable thereon by the Borrower pursuant to the Credit Agreement. The
Guarantor covenants, agrees, represents and warrants as follows:
(a) the Guarantor acknowledges that the Lender may demand payment under
this guarantee for and on behalf of the Lender and enter into renewals,
compromises or extensions; and
(b) the Guarantor acknowledges that all sums due, accruing due or arising
due under this guarantee shall be secured by the Credit Facility
Documents granted by the Guarantor to and in favour of the Lender and
the Guarantor shall not dispute the Lender's entitlement or authority
to exercise its powers thereunder.
3.2 CONTINUING GUARANTEE
This is a continuing guarantee and this guarantee shall not be
determined or affected by, and the Lender's rights hereunder shall not
be prejudiced by, any of the death, the bankruptcy or reorganization,
the loss or diminution of capacity or winding-up or dissolution of the
Borrower, the Guarantor or any person or persons who is or are or shall
become responsible in any way for payment of the Guaranteed
Indebtedness or any part thereof, or by any change in the name,
structure, memorandum, letters patent, articles, organization or
management of the Borrower or the Guarantor. If the Borrower shall
amalgamate or otherwise merge with one or more other corporations, this
guarantee shall continue and apply to all Guaranteed Indebtedness owing
to the Lender by the corporation continuing from amalgamation or
merger.
3.3 NATURE OF GUARANTEE
The liability of the Guarantor hereunder is independent of the
obligations of the Borrower and a separate action or separate actions
may be brought and prosecuted against the Guarantor whether such action
is brought or prosecuted against the Borrower or whether the Borrower
is joined in any such action or actions. The liability of the Guarantor
hereunder is independent of and not in consideration of or contingent
upon the liability of any other person (including any other party
comprising the Guarantor if more than one party executes this
instrument as Guarantor) under this or any similar instrument and the
release of, or cancellation by, any signer of this or any similar
instrument shall not act to release or otherwise affect the liability
of the Guarantor hereunder. The Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or the
enforcement thereof to the fullest extent permitted by law. Any part
payment by the Borrower or other circumstance which operates to toll
any statute of limitations as to the Borrower shall operate to toll any
statute of limitations as to the Guarantor.
3.4 GUARANTOR OBLIGATIONS
For greater certainty it is hereby declared and acknowledged by the
Guarantor to be the intention of the Lender, the Borrower and the
Guarantor that this guarantee shall be construed so as to impose the
like obligation upon the Guarantor as if the Guarantor had covenanted
as principal, jointly and severally with the Borrower, to be directly
responsible for and to pay the Guaranteed Indebtedness; provided that
nothing in this section 3.4 characterizing the liability of the
Guarantor as that of a principal debtor is intended nor should be
interpreted to confer on the Guarantor any right, benefit or advantage
that the Guarantor would not otherwise have in the absence of this
section 3.4.
3.5 TERMS OF PAYMENT
In implementation of the foregoing,
(a) the Guarantor guarantees that the Guaranteed Indebtedness will
be paid to the Lender strictly in accordance with the terms
and provisions of any agreement, express or implied, which has
been made or may hereafter be made by the Borrower, regardless
of any law, regulation or decree, now or hereafter in effect,
which might in any manner affect any of the terms or
provisions of any such agreement or rights of the Lender as
against the Borrower with respect to any of the Guaranteed
Indebtedness or cause or permit to be invoked, any alteration
in the time, amount or manner of payment by the Borrower of
any of the Guaranteed Indebtedness; and
(b) in each instance when the Borrower shall have agreed, relative
to any of the Guaranteed Indebtedness hereby guaranteed, to
pay or provide the Lender with any amount of money, if such
amount is not actually paid or provided as and when agreed or
within such time as the Lender deems reasonable, the Guarantor
will, upon request, and as the Lender may elect, pay or
provide the amount in the exact currency and place as agreed
by the Borrower.
All such payments shall be made without set-off or counterclaim and
free and clear of, and without deduction for or on account of, any
present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions or
conditions of any nature whatsoever now or hereafter imposed, levied,
calculated, withheld or assessed by any country or any political
subdivision or taxing authority thereof.
3.6 LENDER'S RECORDS CONCLUSIVE
The statement in writing of an officer of the Lender given from time to
time of the amount of the Guaranteed Indebtedness existing at the
relevant time shall be binding on and conclusive against the Guarantor.
3.7 AUTHORIZATION
The Guarantor authorizes the Lender without notice or demand and
without affecting the liability of the Guarantor hereunder, from time
to time, to do any one or more of the following:
(a) renew, compromise, extend, accelerate or otherwise change the
time for payment of, or otherwise change the terms of, the
Guaranteed Indebtedness or any part thereof, including
increasing or decreasing the rate of interest payable thereon
by the Borrower;
(b) take and hold security for the payment of this guarantee or
the Guaranteed Indebtedness or any part thereof, and exchange,
enforce, waive or release any such security and apply any such
security and direct the order or manner of sale thereof, all
as the Lender in its discretion may determine;
(c) release or substitute any one or more endorsers, guarantors
and/or other obligors of this guarantee or the Guaranteed
Indebtedness or any part thereof;
(d) grant any other indulgence to the Borrower, the Guarantor or
any other person in respect of the Guaranteed Indebtedness or
any other part thereof, or any instrument representing or
relating thereto and to compromise and settle with all or any
of such persons as the Lender shall see fit; and
(e) otherwise amend, supplement, modify, vary or otherwise change
any of the terms or conditions of the Credit Agreement or any
of the Credit Facility Documents in any manner whatsoever,
provided that any such action that would require the amendment of an
agreement or document to which the Guarantor is a party will require
the execution and delivery by the Guarantor of an instrument in writing
providing for such amendment. None of the foregoing actions set out in
subsections 3.7(a) through (e) hereof shall in any way lessen, limit or
otherwise affect the obligations or liability of the Guarantor under
this guarantee, regardless of whether any such action has the effect of
increasing, expanding or otherwise affecting the nature, effect, term
or scope of the Guaranteed Indebtedness hereunder.
3.8 SECURITY
This guarantee and the agreements of the Guarantor herein contained
shall take effect and shall be and are hereby declared to be binding
upon the Guarantor notwithstanding any defect in or omission from any
securities instrument under which the Lender has taken or may hereafter
take any security for the Guaranteed Indebtedness or any part thereof,
or
any non-registration or non-filing or defective registration or filing
thereof and notwithstanding any failure or diminution of the security
intended to be created thereby. The Guarantor hereby further agrees:
(a) that neither any amendment to, release of, nor any loss of or
in respect of, any security received by the Lender from the
Borrower or anyone else, whether occasioned through the fault
of the Lender or otherwise shall discharge (pro tanto or
otherwise), limit or diminish the liability of the Guarantor
under this guarantee; and
(b) that the Lender may take securities from and give the same up
to, may abstain from taking securities from or from perfecting
securities of, may accept compositions from, and may otherwise
deal with, the Borrower and all other persons (including the
Guarantor) as the Lender may see fit.
3.9 WAIVERS
The Guarantor waives the right to require the Lender to proceed against
the Borrower or any other person, to proceed against or to endeavour to
enforce or exhaust any security held from the Borrower or anyone else,
or to pursue any other remedy in the Lender's power whatsoever and the
Guarantor waives any right the Guarantor may have to require the
property of the Borrower to be applied to the discharge of the
Guaranteed Indebtedness before being entitled to payment of the
Guaranteed Indebtedness from the Guarantor. The Lender may, at its
election, exercise any right or remedy it may have against the Borrower
or any security held by the Lender, including, without limitation, the
right to foreclosure upon any such security or to exercise any power of
sale without affecting or impairing in any way the liability of the
Guarantor hereunder, and the Guarantor waives any defence arising out
of absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other right or remedy of the
Guarantor against the Borrower, or any such security, whether resulting
from such election or exercise of rights or remedies by the Lender, or
otherwise. The Guarantor waives any defence arising by reason of the
cessation from any cause whatsoever of the liability, either in whole
or in part, of the Borrower to the Lender for the Guaranteed
Indebtedness or any part thereof. Without limiting any of the foregoing
or section 3.10, the Guarantor also waives all right to question in any
way the Lender's present or future method of dealing with the Borrower
or any person or persons now or hereafter liable to the Lender for the
Guaranteed Indebtedness or any part thereof, or with any security now
or hereafter held by the Lender or with any property covered by such
security, including any rights under so-called "seize or xxx"
legislation.
3.10 ADDITIONAL WAIVERS AND DEFERRAL OF SUBROGATION
Until all of the Guaranteed Indebtedness has been paid in full,
including such part thereof as shall exceed the limit, if any, of
liability of the Guarantor hereunder:
(a) the Guarantor shall have no right of subrogation to, and waives any
right to enforce, any remedy which the Lender now has or may hereafter
have against the Borrower in respect of the Guaranteed Indebtedness;
and
(b) the Guarantor waives any benefit of, and any right to participate
in, any security, whether over real or personal property or otherwise,
now or hereafter held by the Lender for the Guaranteed Indebtedness, or
any part thereof.
The Guarantor waives all presentments, demands for performance, notices
of non-performance, protests, notices of protest, notices of dishonour
and notices of acceptance of this guarantee and of the existence,
creation or incurring of new or additional Guaranteed Indebtedness of
the Borrower to the Lender. The Guarantor also waives the benefit of
any rights to receive a copy of any financing statement or financing
change statement registered by the Lender. The Guarantor also waives
the benefit of any rights of division. The Guarantor assumes the
responsibility for being informed and keeping itself informed of the
financial condition of the Borrower, the level of the Guaranteed
Indebtedness which diligent inquiry would reveal and of all other
circumstances bearing upon the risk of non-payment of the Guaranteed
Indebtedness and agrees that the Lender shall have no duty to advise
the Guarantor of information now or hereafter known to it regarding
such financial condition or any such circumstances.
3.11 POWERS OF BORROWER
Where the Borrower is a corporation, partnership or other organization,
it is not necessary for the Lender to inquire into the powers of the
Borrower or the officers, directors, partners, trustees or agents
acting or purporting to act on behalf of the Borrower and any
Guaranteed Indebtedness made or created in reliance upon the
professional exercise of such powers shall form part of the Guaranteed
Indebtedness even though such indebtedness is or was irregularly,
fraudulently, defectively or informally made or created by or in excess
of the powers of the Borrower or of any of its officers, directors,
partners, trustees or agents and notwithstanding that the Lender has
specific notice of any limitation on any of the powers of the Borrower
or any of its officers, directors, partners, trustees or agents.
3.12 BANKRUPTCY AND DISSOLUTION
Upon the bankruptcy of the Borrower, or where the Borrower is a
corporation, upon the dissolution, winding up or other distribution of
assets of the Borrower or of any surety or guarantor for any of the
Guaranteed Indebtedness or any part thereof, the Lender's rights shall
not be affected or impaired by any omission by the Lender to prove its
claim or to prove its full claim and the Lender may prove or not prove
such claim as it sees fit and may refrain from valuing any security
held by the Lender without in any way releasing, reducing, or otherwise
affecting the liability to the Lender of the Guarantor and until all of
the Guaranteed Indebtedness has been fully paid, the Lender shall have
the right to include in its claim the amount of all sums paid by the
Guarantor under this guarantee and to prove and rank for and receive
dividends in respect of such claim, any and all right of the Guarantor
to prove and rank for such sums paid by the Guarantor and to receive
the full amount of all dividends in respect thereof being hereby
assigned and transferred to the Lender. All dividends, compositions,
and money received by the Lender from the Borrower, the Guarantor or
any other person or estate that is capable of being applied by the
Lender in reduction of the Guaranteed Indebtedness shall be regarded
for all purposes
as payments in gross, and the Lender shall be entitled to prove in
respect of the whole of the Guaranteed Indebtedness against the
Borrower or the estate of the Borrower, as the case may be, upon the
bankruptcy, dissolution, winding up or other distribution of assets of
the Borrower.
3.13 INDEMNITY
The Guarantor hereby covenants and agrees, as a separate obligation to
the guarantee provided herein, to indemnify and save harmless the
Lender from and against that portion of all losses, damages, costs and
expenses in excess of Euro 2,000,000 which the Lender may sustain,
incur or become liable for by reason of:
(a) the failure, for any reason whatsoever, of the Borrower to pay
any amounts expressed to be payable pursuant to the provisions
of the Credit Agreement in excess of Euro 2,000,000,
regardless of whether the Borrower's obligation to pay such
amounts is valid or enforceable against the Borrower;
(b) the failure, for any reason whatsoever, of the Borrower to
perform any other obligation under the Credit Agreement, the
Credit Facility Documents or any other security for the Credit
Facility; or
(c) any act, action or proceeding of or by the Borrower for or in
connection with the recovery of such amounts or the
performance of such obligations.
4. MISCELLANEOUS
4.1 SURVIVAL OF WARRANTIES
All agreements, representations and warranties made herein shall
survive the execution and delivery of this guarantee.
4.2 FAILURE OR INDULGENCE NOT WAIVER
No failure or delay on the part of the Lender in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by the Lender of any such
power, right or privilege preclude any other or further exercise of any
such power, right or privilege. All powers, rights and privileges of
the Lender are cumulative to, and not exclusive of, any powers, rights
or privileges otherwise available.
4.3 MODIFICATION OF GUARANTEE
No alteration, modification or waiver of this guarantee or any of its
terms, provisions or conditions shall be binding on the Lender unless
made in writing over the signature of a duly authorized officer of the
Lender.
4.4 GOVERNING LAW
This Agreement shall be construed, performed and enforced in accordance
with, and governed by, the internal laws of Switzerland, without giving
effect to the principles of conflict of law thereof.
4.5 ENTIRE AGREEMENT
Upon the execution and delivery by the Guarantor to the Lender of this
guarantee, the guarantee shall be deemed to be finally and
unconditionally executed and delivered by the Guarantor and shall not
be subject to or affected by any promise or condition affecting or
limiting the liability of the Guarantor except as expressly set forth
herein. No statement, representation, agreement or promise on the part
of the Lender or any officer, employee or agent thereof unless
expressly stated herein forms any part of this guarantee or has induced
the making hereof or shall be deemed to affect the Guarantor's
liability hereunder. There are no agreements, promises,
representations, warranties, or other statements, express or implied,
made by or on behalf of the Guarantor which are collateral hereto.
4.6 SEVERABILITY
In case any provision in this guarantee shall be invalid, illegal or
unenforceable, such provision shall be severable from the remainder of
this guarantee and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
4.7 ENUREMENT AND ASSIGNABILITY
This guarantee shall be binding upon the Guarantor and its successors
and assigns and shall enure to the benefit of the Lender and its
successors and assigns. The Lender may assign this guarantee or any of
its rights and powers hereunder without notice and free of all
equities, with respect to all or any of the Guaranteed Indebtedness and
in such event the assignee and further assignees shall have the same
rights and remedies as if originally named herein in place of the
Lender, free of all intervening equities.
4.8 MULTIPLE GUARANTORS
If more than one party executes this instrument as Guarantor, then the
provisions hereof shall be read with all grammatical changes thereby
rendered necessary and each reference to the Guarantor shall include
each and every one of them severally, all representations, warranties,
covenants and agreements of the Guarantor herein shall be deemed to be
joint and several representations, warranties, covenants and agreements
of each such party, and any notice shall be deemed to have been given
to each party comprising the Guarantor when such notice is first given
to any such parties.
4.9 HEADINGS
Headings of the articles and sections of this guarantee are inserted
for convenience only and shall not be deemed to constitute a part
hereof or considered in its interpretation.
4.10 TIME OF THE ESSENCE
Time shall be of the essence hereof.
4.11 EXPENSES AND FEES
The Guarantor hereby agrees to be responsible for and to pay all costs
and expenses, including, without limitation, all fees and disbursements
of accountants, lawyers and other advisors and consultants which are
incurred by the Lender in connection with the creation, execution and
delivery, administration and enforcement of this guarantee and the
collection of the Guaranteed Indebtedness or any part thereof, whether
such collection be from the Borrower or from the Guarantor or anyone
else.
4.12 ASSIGNMENT AND POSTPONEMENT
All debts and liabilities of every nature and kind, whether now or
hereafter in existence, of the Borrower to the Guarantor and all
security therefor (the "Subject Indebtedness") are hereby assigned and
transferred to the Lender as continuing collateral security for the
obligations of the Guarantor hereunder. The Guarantor shall not assign
the Subject Indebtedness or any part thereof to any person other than
the Lender. The Subject Indebtedness shall be held in trust by the
Guarantor for the Lender and shall be collected, enforced or approved
subject to and for the purpose of this guarantee and any payments
received by the Guarantor in respect thereof shall be segregated from
other funds and property held by the Guarantor and forthwith paid over
to the Lender on account of the Subject Indebtedness. The Lender shall
be entitled to receive payment of the Guaranteed Indebtedness in full
before the Guarantor shall be entitled to receive any payment on
account of the Subject Indebtedness. The Subject Indebtedness shall not
be released or withdrawn by the Guarantor unless the Lender's written
consent to such release or withdrawal is first obtained and the
Guarantor shall not permit the prescription of the Subject Indebtedness
by any statute of limitations or ask for or obtain any security or
negotiable paper for or other evidence of the Subject Indebtedness
except for the purpose of delivering the same to the Lender.
4.13 GUARANTOR NOT TO TAKE SECURITY
Without the prior written consent of the Lender, the Guarantor will not
take or hold security from the Borrower for any purpose. The Guarantor
agrees that any security from time to time held by the Guarantor,
whether or not with the consent of the Lender, and all proceeds of such
security, shall be held in trust for the Lender and dealt with as
directed by the Lender.
4.14 INTERPRETATION
Wherever the singular or masculine or neuter is used herein, the same
shall be construed as meaning the plural or the feminine or body
corporate or vice-versa, where the context or the parties hereto so
require.
4.15 GUARANTEE NOT IN SUBSTITUTION
This guarantee is in addition to and not in substitution for any other
guarantee or other security held or which may hereafter be held by the
Lender.
4.16 FURTHER ASSURANCES
The Guarantor agrees to promptly do all such further acts, and promptly
execute and deliver all such further documents, as the Lender may
consider necessary or advisable for the purpose of giving effect to or
carrying out the provisions and intent of this guarantee.
4.17 COPY OF GUARANTEE
The Guarantor acknowledges receipt of a copy of this guarantee.
4.18 COUNTERPARTS
This guarantee may be executed in several parts in the same form and
such parts as so executed shall together constitute one original
document, and such parts, if more than one, shall be read together and
construed as if all the signing parties had executed one copy of the
said guarantee.
IN WITNESS WHEREOF the Guarantor has caused this guarantee to be duly executed
under seal, in the case of a corporation by its duly authorized officer or
officers, as of the date first written above.
MFC BANCORP LTD.
By: /s/ [illegible]
----------------------------------------
Name: c/s
--------------------------------------
Title:
-------------------------------------
This is page 11 of a Deed of Guarantee by MFC Bancorp Ltd.
in favour of MFC Merchant Bank S.A. dated for reference
the 28th day of February, 2003.
