EXHIBIT 10.7
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY") is made this 6th day of December,
2004 by the undersigned (hereinafter referred to as "GUARANTOR"), in favor of
the purchasers (each "LENDER" and collectively "LENDERS") of the 6% Senior
Secured Convertible Debentures (the "DEBENTURES") pursuant to the Securities
Purchase Agreement and the Exhibits thereto dated even date herewith (the
"SECURITIES PURCHASE AGREEMENT") (collectively, the "LOAN DOCUMENTS") from
SinoFresh HealthCare, Inc. ("BORROWER").
NOW, THEREFORE, as a material inducement to each Lender to purchase the
Debentures from Borrower, and for further good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed,
Guarantor does hereby, unconditionally, irrevocably and absolutely, warrant and
represent to and covenant with Lenders as follows:
1. GUARANTY OF OBLIGATION.
a. Guarantor unconditionally, irrevocably and absolutely, guarantees
to Lenders (i) that all obligations and indebtedness evidenced by or provided in
the Loan Documents, will be promptly paid when due and in accordance with the
terms and provisions thereof (and as they may be amended, extended or renewed
from time to time), and (ii) the prompt and full payment, performance and
observance, when due, of all other indebtedness, liabilities, obligations and
duties of every kind and character of Borrower to Lenders as provided in the
Loan Documents, whether now or hereafter existing, absolute or contingent, joint
or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, direct or
indirect, including, without limitation, interest on all of the above amounts as
agreed upon between Borrower and Lenders, or if there is no agreement, at the
highest lawful rate, and any and all renewals, extensions and rearrangements of
all or any part of the indebtedness, obligations and liabilities hereinabove
described.
b. All indebtedness, duties, obligations and liabilities described
above or otherwise covered by this Guaranty are hereinafter sometimes
collectively referred to as the "GUARANTEED INDEBTEDNESS".
2. CONTINUING GUARANTY. This is a continuing guaranty and shall continue
to apply without regard to the form or amount of indebtedness or obligation
which the Borrower may create, renew, extend or alter in whole or in part,
without notice to the Guarantor.
3. LIABILITY FOR OTHER INDEBTEDNESS. If Guarantor is or becomes liable for
any indebtedness owing by Borrower to any or all Lenders by endorsement or
otherwise than under this Guaranty, such liability shall not be in any manner
impaired or affected hereby, and the rights of such Lender hereunder shall be
cumulative of any and all other rights that such Lender may ever have against
Guarantor. The exercise by such Lender of any right or remedy hereunder or under
any other instrument, or at law or in equity, shall not preclude the concurrent
or subsequent exercise of any other right or remedy.
4. NO RELEASE FROM OBLIGATIONS. The obligations, covenants, agreements and
duties of Guarantor under this Guaranty shall not be released or impaired in any
manner whatsoever, without the written consent of the Lenders, including on
account of any or all of the following: (a) any permitted
assignment, endorsement or transfer, in whole or in part, of the Guaranteed
Indebtedness, although made without consent of Guarantor; (b) any waiver by any
Lender of the performance or observance by either or both of the Borrower or
Guarantor of any of the agreements, covenants, terms or conditions contained in
any document evidencing, governing or securing the Guaranteed Indebtedness; (c)
any extension of the time for payment or performance of all or any portion of
the Guaranteed Indebtedness; (d) the renewal, rearrangement, modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of Borrower set forth in any document evidencing, governing or securing the
Guaranteed Indebtedness; (e) the voluntary or involuntary liquidation, sale or
other disposition of all or substantially all of the assets of either or both of
Borrower or Guarantor; (f) any receivership, insolvency, bankruptcy,
reorganization or other similar proceedings or lack of corporate power,
affecting either or both of Borrower or Guarantor or any of its assets; (g) any
release, withdrawal, surrender, exchange, substitution, subordination or loss of
any security or other guaranty at any time existing in connection with all or
any portion of the Guaranteed Indebtedness, or the acceptance of additional or
substitute property as security therefor; (h) the release or discharge of
Borrower or Guarantor from the observance or performance of any agreement,
covenant, term or condition contained in any document evidencing, governing or
securing the Guaranteed Indebtedness; (i) any action which Lenders may take or
omit to take by virtue of any document evidencing, governing or securing the
Guaranteed Indebtedness or through any course of dealing with either or both of
the Borrower or Guarantor; (j) the addition of a new guarantor or guarantors;
(k) the operation of law or any other cause, whether similar or dissimilar to
the foregoing; (1) any adjustment, indulgence, forbearance or compromise that
may be granted or given by Lenders to any party; (m) the failure by Lenders to
file or enforce a claim against the estate (either in administration, bankruptcy
or other proceeding) of the Borrower; (n) if the recovery from Borrower becomes
barred by any statute of limitations or is otherwise prevented; (o) any
defenses, set-offs or counterclaims which may be available to the Borrower; (p)
any impairment, modification, change, release or limitation of liability of, or
stay of actions of lien enforcement proceedings against Borrower, its property,
or its estate in bankruptcy resulting from the operation of any present or
future provision of the Bankruptcy Code or any other similar federal or state
statute, or from the decision of any court; or (q) any neglect, delay, omission,
failure or refusal of Lenders to take or prosecute any action for the collection
of any of the Guaranteed Indebtedness or to foreclose or take or prosecute any
action in connection with any lien, right of security (including perfection
thereof), existing or to exist in connection with, or as security for, any of
the Guaranteed Indebtedness, it being the intention hereof that Guarantor shall
remain liable as principal on the Guaranteed Indebtedness, notwithstanding any
act, omission or thing which might, but for the provisions hereof, otherwise
operate as a legal or equitable discharge of any Guarantor.
5. PAYMENT AND PERFORMANCE OF OBLIGATIONS. In the event of default by
Borrower in payment or performance of the Guaranteed Indebtedness, or any part
thereof, when such indebtedness or performance becomes due, either by its terms
or as the result of the exercise of any power to accelerate, Guarantor shall,
without notice or demand, and without any notice having been given to Guarantor
of the acceptance by Lender of this Guaranty and without any notice having been
given to Guarantor of the creating or incurring of such indebtedness, pay the
amount due thereon to each Lender, at its office, or at such other place as may
be designated in writing by such Lender, and it shall not be necessary for any
Lender, in order to enforce such payment by Guarantor, first, to institute suit
or exhaust its remedies against Borrower or others liable on such indebtedness,
or to enforce its rights against any security which shall ever have been given
to secure such indebtedness.
6. WAIVER OF NOTICE. Notice to Guarantor of the acceptance of this
Guaranty and of the making, renewing or assignment of the Guaranteed
Indebtedness and each item thereof, are hereby expressly waived by Guarantor.
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7. PAYMENTS BY BORROWER. Each payment on the Guaranteed Indebtedness shall
be deemed to have been made by Borrower unless express written notice is given
to Lender at the time of such payment that such payment is made by Guarantor as
specified in such notice.
8. RELEASES AND WAIVERS. If all or any part of the Guaranteed Indebtedness
at any time be secured, Guarantor agrees that Lenders may at any time and from
time to time, at their discretion and with or without valuable consideration,
allow substitution or withdrawal of collateral or other security and release
collateral or other security without impairing or diminishing the obligations of
Guarantor hereunder. Guarantor further agrees that if Borrower executes in favor
of Lenders any collateral agreement, deed of trust or other security instrument,
the exercise by Lenders of any right or remedy thereby conferred on Lenders
shall be wholly discretionary with Lenders, and that the exercise or failure to
exercise any such right or remedy shall in no way impair or diminish the
obligations of Guarantor hereunder. Guarantor further agrees that Lenders shall
not be liable for their failure to use diligence in the collection of the
Guaranteed Indebtedness or in preserving the liability of any person liable on
the Guaranteed Indebtedness, and Guarantor hereby waives presentment for
payment, protest and notice thereof, notice of acceleration, and diligence in
bringing suits against any person liable on the Guaranteed Indebtedness, or any
part thereof.
9. NO RELEASE OF GUARANTOR. If the Guaranteed Indebtedness at any time
exceeds the amount permitted by law, or the Borrower is not liable because the
act of creating the Guaranteed Indebtedness is ultra ▇▇▇▇▇, or the officers or
persons creating the Guaranteed Indebtedness acted in excess of their authority,
and for these reasons the Guaranteed Indebtedness which Guarantor agrees to pay
cannot be enforced against the Borrower, such fact shall in no manner affect
Guarantor's liability hereunder, but Guarantor shall be liable under this
guaranty notwithstanding that the Borrower is not liable for the Guaranteed
Indebtedness, and to the same extent Guarantor would have been liable if the
Guaranteed Indebtedness had been enforceable against the Borrower.
10. OPTIONAL ACCELERATION. In the Event of Default by Borrower, as such
term is defined in the Debentures which are part of the Loan Documents, and if
any such Event of Default shall occur at a time when any of the Guaranteed
Indebtedness may not then be due and payable, such Guaranteed Indebtedness, at
the option of Lenders, shall thereupon be deemed to be immediately due and
payable in full, and Guarantor shall pay to Lenders forthwith the full amount
which would be payable hereunder if all Guaranteed Indebtedness were then due
and payable.
11. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of Lenders,
their permitted successors and assigns, and in the event of an assignment by
either Lender, its permitted successors or assigns, of the Guaranteed
Indebtedness, or any part thereof, the rights and benefits hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness.
12. MODIFICATIONS AND WAIVERS. CUMULATIVE RIGHTS. No modification,
consent, amendment or waiver of any provision of this Guaranty, nor consent to
any departure by any Guarantor therefrom, shall be effective unless the same
shall be in writing and signed by an officer of each Lender and Guarantor, and
then shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on Guarantor in any case shall, of itself,
entitle Guarantor to any other or further notice or demand in similar or other
circumstances. No delay or omission by any Lender in exercising any power or
right hereunder shall impair any such right or power or be construed as a waiver
thereof or any acquiescence therein, nor shall any single or partial exercise of
any such power preclude
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other or further exercise thereof, or the exercise of any other right or power
hereunder. All rights and remedies of Lenders hereunder are cumulative of each
other and of every other right or remedy which Lenders may otherwise have at law
or in equity or under any other contract or document, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies. In this Guaranty, whenever the
context so requires, the singular number includes the plural, and conversely.
13. COMPLIANCE WITH LAWS. Should the Guarantor be permitted to raise usury
as a defense under applicable law, then no provision herein or in the Loan
Documents shall require the payment or permit the collection of interest in
excess of the maximum permitted by law. Should such defense be available,
Guarantor shall not be obligated to pay the amount of such interest to the
extent that it is in excess of the amount permitted by law as to a Guarantor.
Should the Guarantor be permitted to raise the usury defense and prevail, the
Loan Documents shall be held subject to reduction of the interest charged to the
amount allowed under said usury laws as now or hereafter construed by the courts
having jurisdiction. The parties agree that New York law shall control as to
this issue.
14. BENEFIT TO GUARANTOR. Guarantor acknowledges and warrants that it has
derived or expects to derive financial and other advantage and benefit, directly
or indirectly, from the Guaranteed Indebtedness and each and every advance
thereof and from each and every renewal, extension, release of collateral or
other relinquishment of legal rights made or granted or to be made or granted by
Lenders to Borrower.
15. ATTORNEY'S FEES. In the event of any dispute between the parties
arising under this Agreement, the prevailing party shall be entitled to recover
its reasonable attorney's fees and expenses.
16. GUARANTOR'S WARRANTIES. Guarantor hereby warrants and represents to
each Lender that (a) Guarantor has received or will receive, direct or indirect
benefit from the making of this Guaranty, (b) each and every warranty and
representation made by Guarantor in each Loan Document to which Guarantor is a
party is true and correct, (c) each covenant and obligation made by Guarantor in
the Loan Document will be fulfilled and satisfied, in accordance with the terms
thereof, and (c) this Guaranty constitutes a legal, valid and binding obligation
of Guarantor, and is fully enforceable, against Guarantor in accordance with its
terms.
17. SUBORDINATION AND NO SUBROGATION. If, for any reason whatsoever, the
Borrower now or hereafter becomes indebted to the Guarantor, such indebtedness
and all interest thereon, shall, at all times, be subordinate in all respects to
the Loan Documents, and Guarantor shall not be entitled to enforce or receive
payment thereof until the Guaranteed Indebtedness has been fully paid and
satisfied. Notwithstanding anything to the contrary contained in this Guaranty
or any payments made by Guarantor hereunder, Guarantor shall not have any right
of subrogation in or under the Loan Documents or to participate in any way
therein, or any right, title or interest in and to any mortgaged property or any
collateral for the Guaranteed Indebtedness, all such rights of subrogation and
participation being hereby expressly waived and released, until the Guaranteed
Indebtedness has been fully paid and satisfied.
18. LAW GOVERNING AND JURISDICTION. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED
IN NEW YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT,
THE
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AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. THE PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. THE PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT ANY PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. THE PARTIES AGREE THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT
SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS' FEES,
INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH DISPUTE.
19. SEVERABILITY. If any provision of this Guaranty or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, neither the remainder of this Guaranty nor the
application of such provision to any other persons or circumstances shall be
affected thereby, but rather the same shall be enforced to the greatest extent
permitted by law.
20. PARAGRAPH HEADINGS. The paragraph headings inserted in this Guaranty
have been included for convenience only and are not intended, and shall not be
construed, to limit or define in any way the substance of any paragraph
contained herein.
21. COMPOUNDING AND SETTLEMENT. Guarantor agrees that Lender, in its
discretion, may (i) bring suit against Guarantor and other guarantors, if any,
jointly and severally or against any one or more of them, (ii) compound or
settle with any one or more of guarantor(s) for such consideration as the Lender
may deem proper, and (iii) release one or more of guarantor(s) from liability
hereunder, and that no such action shall impair the rights of Lender to collect
the Guaranteed Indebtedness (or the unpaid balance thereof) from the Guarantor,
not so sued, settled with or released.
EXECUTED AND DELIVERED on the date first above recited.
SINOFRESH CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Executive Officer
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