**Exhibit 4.4**

 

Execution Version

 

**FORM OF GUARANTY**

 

In consideration of loans, advances,and all other credit transactions and financial accommodations given or to be given or to be continued from time to time to Psyence BiomedicalLtd., (“Borrower”) by [              ] and any of its affiliates (collectively, “Lender”), the undersigned Psyence Biomed II Corp. (“Guarantor”)hereby agrees with Lender as follows:

 

1.             Guarantorhereby irrevocably and unconditionally guarantees the punctual payment and performance to Lender of any and all present and future obligationsand liabilities of Borrower to Lender when due, whether at stated maturity by acceleration or otherwise, whether now or hereafter existingor arising, direct or indirect, liquidated or contingent, secured or unsecured, due or to become due, joint or several, and howsoeverarising, and whether for principal, interest (including, without limitation, interest accruing after the commencement of any bankruptcyor insolvency proceeding, whether or not allowed or allowable thereunder), premiums, costs, expenses, indemnity payments, fees, claims,damages, costs, taxes and expenses of enforcement, including, without limitation, all attorneys’ fees incurred by Lender in connectionwith the enforcement of any of its rights against Borrower, Guarantor or any other person liable for any of the foregoing, in each case,all as set forth in the promissory note, dated as of the date hereof, in the principal amount of $1,562,000 from Borrower for the benefitof Lender (the “Note”), or in any other document, instrument or agreement heretofore or hereafter executed or deliveredin connection therewith (the Note and each such other document, instrument or agreement, as amended, supplemented or otherwise modifiedfrom time to time and any replacements thereof, are hereinafter collectively referred to as the “Loan Documents”),whether or not the principal obligation under the Note is undersecured or oversecured or whether the interest obligation under the Noteis deemed allowable or provable or interest is deemed to be accruing against Borrower (collectively, the “Guaranteed Obligations”).

 

 

 

2.1             GeneralRepresentations and Warranties. Guarantor represents and warrants to Lender that: (i) the execution, delivery and performanceby Guarantor of this Agreement, any other Loan Document to which Guarantor is a party and any other agreement executed in connectionherewith by Guarantor do not and will not violate or conflict with, if Guarantor is a non-natural person, its constituent documents or,if Guarantor is a trust, the trust agreement governing the trust, and, in all cases, with any law, rule, regulation, judgment or orderbinding on Guarantor or Guarantor’s assets, or any agreement or instrument to which Guarantor is a party or by which Guarantoror Guarantor’s assets are bound; (ii) this Agreement, any other Loan Document to which Guarantor is a party and any otheragreement executed in connection herewith by Guarantor have been duly authorized and executed by Guarantor, and constitute legal, validand binding obligations of Guarantor, enforceable against Guarantor in accordance with their respective terms and Guarantor will receivedirect or indirect benefits by reason of the extension of credit by Lender to Borrower; (iii) no authorization, consent, approvalor license from, or filing or registration with, any court, governmental agency, fiscal authority or public office is necessary in connectionwith the execution, delivery or performance by Guarantor of this Agreement, any other Loan Document to which Guarantor is a party orany other agreement executed in connection herewith by Guarantor, except such as have been taken or obtained and are in full force andeffect; (iv) there are no pending or threatened investigations, actions, suits or proceedings against or affecting Guarantor, orif applicable, any of Guarantor’s subsidiaries, before any arbitrator, court, commission, bureau or other governmental agency orinstrumentality, which (A) purports to affect the legality, validity or enforceability of this Agreement, any other Loan Documentto which Guarantor is a party or the consummation of the transactions contemplated hereby or (B) could reasonably be expected tohave a material adverse effect on the financial condition, operations, business, assets or prospects of Guarantor, and if applicable,Guarantor’s subsidiaries; (v) the financial statements of Guarantor previously delivered to Lender are true, correct and completeand fairly present the financial condition of Guarantor, and if applicable, Guarantor’s subsidiaries, as of the date thereof andthere has been no material adverse change in the financial condition of Guarantor, and if applicable, Guarantor’s subsidiaries,since the date of the last financial statement of Guarantor delivered to Lender; (vi) Guarantor is, and after giving effect to theincurrence of all obligations hereunder will be and will continue to be, solvent; (vii) the information regarding Guarantor setforth opposite Guarantor’s signature below (“Guarantor Information”) is true, correct and complete on the datehereof; (viii) Guarantor has all necessary right, power and authority to own Guarantor’s property and assets, to transactthe business in which Guarantor is engaged and to grant to Lender the guaranty hereunder, and has taken all necessary action to authorizeall filings and recordations in connection herewith; (ix) there is no tax, levy, impost, deduction, charge or withholding imposedby Guarantor’s country or any political subdivision thereof on or by virtue of the execution, delivery or enforcement of this Agreement;(x) Guarantor has, independently and without reliance upon Lender and based on such documents and information as Guarantor has deemedappropriate, made Guarantor’s own credit analysis and decision to enter into this Agreement, and Guarantor has established adequatemeans of obtaining from any other source on a continuing basis information pertaining to, and is now and on a continuing basis will becompletely familiar with, the financial condition, operations, properties and prospects of Borrower and any other relevant party; (xi) noperson, including Lender, Borrower, has made any representation to Guarantor as to any matter which may affect or in any way relate tothe financial condition, relationships or transactions of Borrower, or any other person, including the business, assets, liabilities,type or value of any security therefor, financial condition, management or control of Borrower or any such other person; and (xii) Lenderis not obligated to notify Guarantor or any other person of any change in the business, assets, liabilities, type or value of any securitytherefor, financial condition, management or control of Borrower or of any other person, and none of such changes shall release or otherwiseimpair any of the rights of Lender against Guarantor;

 

2.2           AdditionalRepresentations and Warranties for Business Entities. If Guarantor is a non-natural person, it also represents and warrants to Lenderthat: (i) Guarantor is duly organized and validly existing in good standing under the laws of Guarantor’s jurisdiction offormation, and is duly qualified in each jurisdiction where Guarantor’s business or property so requires; (ii)  all necessaryactions have been taken by the managers, directors, members, partners or shareholders of Guarantor, as the case may be for the execution,delivery of, and performance by Guarantor under, this Agreement and the other Loan Documents to which it is a party; (iii) Guarantoris owned, directly or indirectly, and controlled by those parties or party set forth opposite Guarantor’s signature; and (iv) Guarantoris not an “investment company” or a company “controlled” by an “investment company” within the meaningof the Investment Company Act of 1940, as amended.

 

 

 

2.3           Reserved.

 

2.4           AdditionalRepresentations and Warranties for Foreign Individuals or Non-Natural Persons1*.*If Guarantor is a foreign individual or a non-natural person, Guarantor also represents and warrants to Lender that: (i) thisAgreement is in proper legal form under the law of Guarantor’s country (as set forth opposite Guarantor’s signature) forthe enforcement thereof against Guarantor under such law; and to ensure the legality, validity, enforceability or admissibility in evidenceof this Agreement in Guarantor’s country it is not necessary that this Agreement or any other document be filed or recorded withany court or other authority in Guarantor’s country or that any stamp or similar tax be paid on or in respect of this Agreement;(ii) under the laws of Guarantor’s country or any political or taxing authority thereof or therein to which Guarantor is subject,Guarantor will not be required to make any deduction or withholding from any payment Guarantor may make to Lender hereunder; (iii) thereis no tax, levy, impost, deduction, charge or withholding imposed by Guarantor’s country or any political subdivision thereof onor by virtue of the execution, delivery or enforcement of this Agreement; (iv) the submission by Guarantor to the jurisdiction ofthe courts specified in this Agreement and any appointment of agent for the service of process of such courts are valid and binding uponGuarantor and not subject to revocation; and (v) to the best of Guarantor’s knowledge, there are no treaties or laws whichwould preclude the recognition of any judgment rendered by any state or federal court sitting in the State of New York, and the enforcementof any such judgment, by the courts of Guarantor’s country, and Guarantor agrees that Guarantor shall interpose no defense or claimagainst and shall consent to the issuance of all necessary documents by the courts of Guarantor’s country in order to execute uponsuch judgment.

 

3.             Guarantorcovenants and agrees with Lender that so long as this Agreement remains in effect or any portion of the Guaranteed Obligations or otheramount is owing to Lender hereunder or under any Loan Document: (a) Guarantor is not engaged in, nor will it engage in, any businessor transaction for which any property remaining with Guarantor constitutes unreasonably small capital; (b) Guarantor has not made,nor will it make, any transfer, nor incurred, nor will incur, any obligation (including pursuant to this Agreement) with actual intentto hinder, delay or defraud any person; (c) Guarantor is presently informed of the financial condition of Borrower and of all othercircumstances that a diligent inquiry would reveal and that bear upon the risk of nonpayment of the Guaranteed Obligations, and Guarantorwill continue to keep informed of Borrower’s financial condition, the status of other guarantors, if any, and of all other circumstancesthat bear upon the risk of nonpayment; (d) Guarantor will promptly notify Lender of the occurrence of any Default hereunder or otherwisein respect of the Guaranteed Obligations and of any default under any Loan Document to which Guarantor is a party or which has a partythat Guarantor owns or controls; (e) Lender shall not be obligated to notify Guarantor or any other person of any change in thebusiness, assets, liabilities, type or value of any security therefor, financial condition, management or control of Borrower or of anyother person, and none of such changes shall release or otherwise impair any of the rights of Lender against Guarantor; (f) Guarantorwill not change any of the Guarantor Information without the prior written consent of Lender; (g) Lender may rely upon any written(including, without limitation, fax), telephonic or oral communication in good faith believed by Lender to have been authorized by Guarantor;provided, however, that if any such communication is oral or telephonic, it shall be promptly confirmed in writing (including, withoutlimitation, by fax) (but the lack of such confirmation or any conflict between such confirmation and the relevant telephonic or oralcommunications shall not affect any action taken by Lender in reliance on such telephonic or oral communications prior to receipt ofsuch confirmation); (h) Guarantor shall deliver to Lender from time to time as requested by Lender, within ten Business Days ofLender’s request, financial statements that have been previously prepared by Guarantor and are then available to Guarantor, whichfinancial statements shall be prepared in accordance with sound accounting principles and are otherwise consistent with the financialstatements of Guarantor previously delivered to Lender, certified to Lender by Guarantor as accurately reflecting the financial conditionof Guarantor as of the date thereof and, in all events, Guarantor shall deliver to Lender such additional financial or other informationas Lender may from time to time reasonably request; (i) Guarantor shall not become insolvent; (j) Guarantor shall not incuror suffer to exist indebtedness of Guarantor, whether recourse or nonrecouse, absolute or contingent (including, but not limited to,guarantees), whether now existing or hereafter arising without written approval of Lender, other than inter-company indebtedness withaffiliates of Guarantor, (k) Guarantor shall not create, incur, assume or suffer to exist any lien upon any of its property, whethernow owned or hereafter acquired, other than in favor of Lender, (l) Guarantor shall not dispose of any of its property, whethernow owned or hereafter acquired, having a fair market value in excess of $100,000, (m) if Guarantor is a non-natural person, Guarantorshall not sell, transfer, pledge or encumber or permit the sale, transfer, pledge or encumbrance of any interest in Guarantor, directlyor indirectly, that would cause a change in Guarantor’s direct parent company and (n) if Guarantor is a non-natural person,Guarantor shall not seek or effect its liquidation, dissolution, winding up, consolidation, division or merger.

  

 

 

4.             Uponthe happening of any of the following (each a “Default”) with respect to Guarantor or any other person liable forany of the Guaranteed Obligations: (i) failure to pay any Guaranteed Obligation when due, (ii) dissolution, liquidation orsuspension of such person’s business, (iii) default in the payment of any indebtedness in excess of $100,000, other than withrespect to inter-company indebtedness with affiliates of Guarantor, (iv) failure to furnish financial information to Lender in accordancewith Section 3 hereof, (v) any representation made to Lender shall be false or misleading in any material respect when madeor deemed made, (vi) a material adverse change in Guarantor’s ability to perform and pay the Guaranteed Obligations, as determinedby Lender in its reasonable discretion, (vii) default in the performance or observance of any covenant, agreement or obligationhereunder and the failure to cure any such default within ten Business Days’ of Lender’s request, or default in the performanceor observance of any covenant, agreement or obligation under any other Loan Document, after the expiration of any applicable cure orgrace periods, (viii) insolvency (howsoever determined), (ix) the commencement of any proceedings by or against any of themunder any bankruptcy, reorganization, arrangement of debt, insolvency, receivership, liquidation, dissolution or similar laws relatingto the relief of debtors, or the making of an assignment for the benefit of creditors, and with respect to any such proceeding broughtagainst any of them, the failure to dismiss such proceeding within 60 days, or (x) one or more judgments have been entered againstGuarantor in the aggregate amount exceeding $200,000 in excess of any applicable insurance coverage; then and in any such event, andat any time thereafter, Lender may, at its sole election, without notice to Borrower or any other person (except as otherwise providedin the Loan Documents), make the Guaranteed Obligations to Lender, whether or not then due, immediately due and payable hereunder byGuarantor, provided that in the event of any Default described in Section 4(ix) above, such Guaranteed Obligations shall automaticallybecome due and payable without any election by Lender. Guarantor will forthwith pay the Guaranteed Obligations then due and payable,upon notice of such default and request for payment, but without any other written legal notice or demand, in United States Dollars inimmediately available funds at the office of Lender set forth in the signature page hereto and Lender shall be entitled to enforcethe obligations of Guarantor hereunder.

 

 

 

5.             Guarantorhereby irrevocably, unconditionally and expressly waives, to the fullest extent permitted by applicable law, all defenses, counterclaims,rights of setoff, any requirement that Lender first proceed against Borrower any guarantor or any other security, any requirement thatLender join Borrower or any other party in any action against Guarantor hereunder, all requirements for notice of any kind, demand, protest,presentment, notice of non-payment, default or dishonor of any Guaranteed Obligation, notice of acceptance hereof or notice that credithas been extended in reliance on this Agreement, notice of inability to enforce performance of the Guaranteed Obligations, notice ofacceleration of maturity of any Guaranteed Obligations, demand for performance or observance of, and any enforcement of any provisionof any Loan Document or the Guaranteed Obligations or any pursuit or exhaustion of rights or remedies against Borrower Guarantor or anyother person in respect of the Guaranteed Obligations or any requirement of diligence or promptness on the part of Lender in connectionwith any of the foregoing, marshalling of assets and the like, including without limitation, any right to notice or judicial hearingin connection with Lender’s taking possession of or disposition of any collateral, any notice of any sale, transfer or other dispositionby Lender of any Guaranteed Obligation, any requirement that Lender first proceed against Borrower, any collateral or any other personor non-natural person liable for any of the Guaranteed Obligations, any sale, lease or transfer of any of the assets of Borrower or Guarantorto any other person, or any other change of form, structure, or status under any law in respect of Borrower or Guarantor or any changein the interests in Borrower or Guarantor, any increase in principal amount of, or extension of the time for payment of the principalof or interest on, any Guaranteed Obligation, and all damages occasioned by any of the foregoing (except as finally determined by a competentcourt to have been the direct result of Lender’s gross negligence or willful misconduct). No invalidity, irregularity or unenforceabilityof any Guaranteed Obligations shall affect, impair or be a defense to any of Guarantor’s obligations or agreements or any of Lender’srights or remedies hereunder. Lender may from time to time, without notice to or consent by Guarantor, and without affecting or impairingGuarantor’s obligations or agreements or Lender’s rights and remedies hereunder: (i) change the manner, place, timingor terms of payment of, or the interest rate on, any of the Guaranteed Obligations, any security therefore or other guaranty thereof,or increase, renew, extend, settle, compromise, accelerate, or alter any of the same or otherwise modify, amend, waive, change or consentto departure from any term of any Loan Document or any other guaranty of any of the Guaranteed Obligations and the guaranty herein madeshall apply to the Guaranteed Obligations as so changed, extended, renewed, accelerated or altered, (ii) sell, release, exchange,settle, compromise or otherwise dispose of or deal with any property or other security for any of the Guaranteed Obligations or subordinatethe payment of all or any part thereof to the payment of any liability (whether due or not) of Borrower to their respective creditorsother than Lender and Guarantor, (iii) exercise (in such order as Lender may choose), or refrain from exercising, any rights againstBorrower Guarantor or any other person or non-natural person liable for any of the Guaranteed Obligations and (iv) apply any sumsby whomsoever paid or howsoever realized to any of the Guaranteed Obligations regardless of what Guaranteed Obligations remain unpaid.To the fullest extent permitted by law, Guarantor also waives any and all rights or defenses (other than payment) which Borrower or Guarantormay now or hereafter have to the payment of the Guaranteed Obligations, together with all suretyship defenses, which could otherwisebe asserted by Guarantor, including defenses arising by reason of (w) any “one action” or “anti-deficiency”law that would otherwise prevent Lender from bringing any action, including, without limitation, any claim for a deficiency, or exercisingany right or remedy (including, without limitation, any right of set-off) against Guarantor before or after the commencement or completionof any foreclosure action or sale of any collateral for the Guaranteed Obligations, whether judicially, by exercise of power of saleor otherwise, (x) any other law that in any other way would otherwise require any election of remedies by Lender, (y) any actor omission on the part of Lender which may impair or prejudice the rights of Guarantor, including rights to obtain subrogation, exoneration,contribution, indemnification or any other reimbursement from Borrower, Guarantor or any other person, or otherwise operate as a deemedrelease or discharge or (z) any statute of limitations or any statute or rule of law which provides that the obligation ofa surety must be neither larger in amount nor in other respects more burdensome than the obligation of the principal.

 

 

 

6.             Neitherthe liabilities of Guarantor hereunder, nor Lender’s rights hereunder, shall be reduced, limited, terminated or in any other wayaffected by reason of any guaranty executed in favor of Lender by any other person (and the guaranty hereunder shall be enforceable againstGuarantor without regard to such other guaranty or guaranties or any release or consent to departure from, or any amendment or waiverof, any such other guaranty or guaranties).

 

7.             Untilfinal and prior payment in full to Lender of all Guaranteed Obligations, Guarantor hereby waives any claim or other right which Guarantormay now have or hereafter acquire against Borrower or any other person arising out of the existence or performance of Guarantor’sobligations under this Agreement or otherwise with respect to any of the Guaranteed Obligations, such waiver to include, without limitation,any and all rights by subrogation, reimbursement, exoneration, contribution, indemnification and any right to participate in any claimor remedy of Lender against Borrower any collateral, or any other person by reason of any payment made to or for the benefit of Lenderhereunder or otherwise with respect to any of the Guaranteed Obligations, and the right to take or receive from Borrower directly orindirectly, in cash or other property or by set-off or in any other manner, payment or security on account of any such claim or rights.In any bankruptcy proceeding relating to Borrower, Lender shall be entitled to file a proof of claim on Guarantor’s behalf andaccept, receipt for and apply amounts so received to the Guaranteed Obligations. Guarantor hereby unconditionally and irrevocably agreesthat, until final payment in full of all of the Guaranteed Obligations to Lender, all present and future indebtedness of Borrower toGuarantor shall be and hereby is subordinated in right and time of payment and security to the prior and final payment in full of allof the Guaranteed Obligations to Lender and that until such time Guarantor will not exercise any rights, claims or remedies which Guarantormay acquire by way of subrogation, contribution or the like, whether arising under this Agreement or otherwise with respect to any ofthe Guaranteed Obligations. If any amount shall be paid to Guarantor in violation of these provisions, such amount shall be deemed tohave been paid to Guarantor for, and shall be held in trust for, the benefit of Lender, and shall forthwith be paid over to Lender (withany necessary endorsements) to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured in accordance withtheir terms.

 

 

 

8.             ThisAgreement constitutes an absolute, unconditional, irrevocable, present and continuing guaranty of payment and not of collection and allliabilities to which the guaranty hereunder applies or may apply under the terms hereof shall be conclusively presumed to have been createdin reliance hereon. This Agreement shall not be affected or impaired by (i) the death, incapacity, present or future financial condition,dissolution, bankruptcy, insolvency, reorganization, liquidation or the like of Borrower, Guarantor or any other person; (ii) anyreceipt of any other collateral security, failure to perfect a security interest therein, or release thereof; (iii) any limitationon Borrower’s liability with respect to any of the Guaranteed Obligations now or hereafter imposed by any statute, regulation orother applicable law; (iv) any merger or consolidation of Borrower or Guarantor with or into any other person, or the sale, leaseor other disposition of any or all assets of Borrower to any other person; (v) any notice from Guarantor not to renew, extend orotherwise modify any Guaranteed Obligation; (vi) any validity, illegality, irregularity, unenforceability, avoidance or contractualor other subordination of all or any part of the Guaranteed Obligations; or (vii) any other circumstance which might otherwise constitutea legal or equitable discharge or defense of a guarantor or any defense which Borrower could assert on the Guaranteed Obligations (including,without limitation, failure of consideration, breach of warranty, fraud, payment, accord and satisfaction, strict foreclosure, statuteof frauds, bankruptcy, infancy, statute of limitations, lender liability and usury).

  

9.             Anyacknowledgment or new promise, whether by payment of principal or interest or otherwise and whether by Borrower or others (includingGuarantor), with respect to any of the Guaranteed Obligations shall, if the statute of limitations in favor of Guarantor against Lendershall have commenced to run, toll the running of such statute of limitations and, if the period of such statute of limitations shallhave expired, prevent the operation of such statute of limitations.

 

10.           Eachand every default in respect of the Guaranteed Obligations and each and every default hereunder shall give rise to a separate cause ofaction hereunder, and separate suits may be brought hereunder as each cause of action arises, but nothing herein shall preclude Lenderfrom accelerating payment of the Guaranteed Obligations upon the occurrence of any default or of the liabilities of Guarantor as hereinprovided.

 

11.           Ifany claim is ever made upon Lender for repayment or recovery of any amount or amounts received by Lender in payment or on account ofany of the Guaranteed Obligations, including claims in connection with any insolvency, bankruptcy or reorganization of Borrower, andclaims of invalid, fraudulent or preferential transfers, and Lender repays all or part of said amount by reason of (a) any judgment,decree or order of any court or administrative body having jurisdiction over Lender or any of its property, or (b) any settlementor compromise of any such claim effected by Lender with any such claimant (including Borrower), then and in such event Guarantor agreesthat any such judgment, decree, order, settlement or compromise shall be binding upon Guarantor, notwithstanding any revocation or terminationhereof or the cancellation of the Note, any other Loan Document or any other instrument evidencing any Guaranteed Obligation, and Guarantorshall be and remain liable to Lender hereunder for the amount so repaid or recovered to the same extent as if such amount had never originallybeen received by Lender.

 

 

 

12.           Inthe event and to the extent that any provision of this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, thevalidity, legality and enforceability of the remaining provisions, or of such provision in any other jurisdiction, shall not in any waybe affected or impaired thereby.

  

13.           Nofailure or delay by Lender in exercising any right or remedy and no course of dealing between Lender and Guarantor shall operate as awaiver thereof, nor shall any single or partial exercise of any right preclude any other or future exercise thereof. All rights and remediesof Lender shall be cumulative and may be exercised singly or concurrently. No notice to or demand on Guarantor shall entitle Guarantorto any other or further notice or demand, or constitute a waiver of Lender’s rights.

 

14.           ThisAgreement may not be modified, changed, waived or discharged orally, except by a writing signed by the parties hereto. Any waiver ofany provision of this Agreement or any consent to any departure by Guarantor therefrom shall be effective only in the specific instanceand for the specific purpose for which given. This Agreement shall be and remain the independent obligation of Guarantor, shall inureto the benefit of and be enforceable by Lender and its successors, transferees and assigns, and shall be binding upon Guarantor and Guarantor’sheirs, legal representatives, executors, successors and assigns, provided that Guarantor may not transfer, assign or delegateany of Guarantor’s rights or obligations hereunder, and, at Lender’s option, any such purported transfer, assignment or delegationshall be void. This Agreement shall terminate upon final payment in full to Lender of all of the Guaranteed Obligations and terminationof any obligation of Lender to make advances or other financial accommodations, and shall continue to be effective or shall be reinstated,as the case may be, if at any time payment of or on account of any of the Guaranteed Obligations is rescinded or must otherwise be restoredor returned by Lender upon the insolvency, bankruptcy or reorganization of Guarantor or any other person or otherwise, all as thoughsuch payment had not been made.

 

15.           Guarantorwill indemnify and hold Lender harmless for, and pay in U.S. dollars all liabilities, losses, damages, claims, taxes, penalties, costs,fees and expenses of any kind whatsoever, including, without limitation, attorneys’ fees, imposed upon, incurred by or assertedagainst Lender in connection with this Agreement and the enforcement of Lender’s rights hereunder. All payments hereunder shallbe made without defense, setoff or counterclaim, and free and clear of, and without deduction for or on account of, any present or futureincome, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, and all interest, penalties and otherliabilities with respect thereto (collectively, “Taxes”), now or hereafter imposed, levied, collected, withheld orassessed by any jurisdiction, or any department, agency, state, political subdivision or taxing authority thereof or therein. If anyTaxes are so levied or imposed, Guarantor agrees to pay the full amount thereof, and such additional amounts as may be necessary so thateach net payment received by Lender will not be less than the amount provided for herein, provided that any subsequent reimbursementreceived by Lender from such authority for such withholding or deduction, after its remittance, is reimbursed as soon as practicableto Guarantor. Guarantor will furnish to Lender within 30 days after each payment of Taxes is due, originals or certified copies of taxreceipts evidencing such payment. The provisions of this Section shall survive repayment of the Guaranteed Obligations and terminationof this Agreement.

 

16.           Anynotice hereunder shall be effective: if sent by mail, three (3) days after deposit in the mails, postage prepaid; if sent by facsimile,when sent with a confirmation received; if delivered by hand or courier when delivered against a receipt therefor; if sent by overnightcourier, on the next Business Day to the address for such party listed on the signature page hereto. Each party may change its addressfor notices by written notice to the other, provided that any notice or other communication delivered prior to receipt of the noticeof a change of address shall be deemed effective as set forth above.

 

 

 

17.1         **EACHOF GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANYRIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.**In any action or proceeding arising out of or relating to this Agreement, Guarantor hereby irrevocably submits to, and accepts forboth Guarantor and Guarantor’s property, the exclusive jurisdiction of the courts of the State of New York and of the Federal courtsof the United States, in either case sitting in New York County, provided, that nothing in this Agreement shall be deemed or operateto preclude Lender from bringing suit or taking other legal action in any other jurisdiction whether to collect the Obligations or toenforce a judgment or other court order in favor of Lender, or otherwise. Guarantor expressly submits and consents in advance to suchjurisdiction in any action or suit commenced in any such court. **GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINTAND OTHER PROCESS ISSUED IN ANY ACTION OR SUIT BROUGHT BY LENDER IN CONNECTION HEREWITH**. **GUARANTOR DOES HEREBY DESIGNATE AND APPOINTCORPORATION SERVICE COMPANY (CSC) AT 19 WEST 44TH STREET, SUITE 200, NEW YORK, NY 10036 (THE “SERVICE AGENT”), AS ITS AUTHORIZEDAGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDINGIN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON THE SERVICE AGENT AT SAID ADDRESS AND WRITTENNOTICE OF SAID SERVICE OF GUARANTOR MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVESERVICE OF PROCESS UPON GUARANTOR (UNLESS LOCAL LAW REQUIRES ANOTHER METHOD OF SERVICE), IN ANY SUCH SUIT, ACTION OR PROCEEDINGIN THE STATE OF NEW YORK. GUARANTOR (i) HEREBY AUTHORIZES LENDER TO MAKE SUCH ANNUAL OR OTHER PAYMENTS REQUIRED BY THE SERVICE AGENTTO PROVIDE THE ABOVE-DESCRIBED SERVICE (“SERVICE FEES”) AND TO CHARGE ANY OF GUARANTOR’S ACCOUNTS WITH LENDER OR ANYOF ITS AFFILIATES FOR SUCH SERVICE FEES OR TO ADD THE AMOUNT OF SUCH SERVICE FEES TO THE PRINCIPAL AMOUNT OF THE OBLIGATIONS AND TREATEDAS A PRINCIPAL PORTION OF THE OBLIGATIONS FOR ALL PURPOSES THEREOF, NOTWITHSTANDING THAT THE PRINCIPAL AMOUNT OF THE OBLIGATIONS MAY THEREBYEXCEED THE MAXIMUM AMOUNT OF THE NOTE, (ii) MAY, AT ANY TIME AND FROM TIME TO TIME, AUTHORIZE LENDER TO DESIGNATE AND PAY A SUBSTITUTESERVICE AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS FOR SERVICE OF PROCESS), AND (iii) HEREBYAUTHORIZES LENDER TO DESIGNATE A SUBSTITUTE SERVICE AGENT (AND NOTIFY GUARANTOR PROMPTLY THEREAFTER) IF THE CURRENT SERVICING AGENT CEASESTO HAVE AN OFFICE IN NEW YORK CITY OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.**Guarantor hereby irrevocably waives any objectionGuarantor may now or hereafter have to the laying of venue in the aforesaid courts, and any claim that any of the aforesaid courts isan inconvenient forum. To the extent that Guarantor or Guarantor’s property may have or hereafter acquire immunity, on the groundsof sovereignty or otherwise, from any judicial process in connection with this Agreement, Guarantor hereby irrevocably waives, to thefullest extent permitted by applicable law, any such immunity and agrees not to claim same. Guarantor agrees that a final judgment inany such action or proceeding shall be conclusive, and may be enforced in any other jurisdiction by suit on the judgment or in any otherpermitted manner. Guarantor further agrees that any action or proceeding by Guarantor against Lender in respect to any matters arisingout of, or in any way relating to, this Agreement or the Obligations or any of the other obligations or agreements of Guarantor hereundershall be brought only in the State and County of New York.

 

 

 

17.2         If,for the purpose of obtaining a judgment in any court with respect to any obligation of Guarantor under this Agreement it becomes necessaryto convert into any other currency any amount in U.S. dollars due hereunder, then that conversion shall be made at the average of thebuying spot rates of exchange for freely transferable U.S. dollars (the “Exchange Rate”) in effect at the lendingoffice selected by Lender as at the close of business on the day before the day on which judgment is rendered. If there is a change inthe Exchange Rate prevailing between the day before the day on which judgment is rendered and the date of payment of the judgment, thenGuarantor shall pay such additional amount as may be necessary to ensure that the amount paid on the date of payment is the amount insuch currency which, when converted at the Exchange Rate in effect on the date of payment, is the amount in U.S. dollars then due. Anyadditional amount owing by Guarantor hereunder shall be due as a separate debt, and shall not be affected by or merged into any judgmentobtained for any other amounts due hereunder.

 

18.           Ifthis Agreement is signed by two or more parties as Guarantor, they shall be jointly and severally liable hereunder, and the term “Guarantor”as used herein shall mean the debtors parties hereto, and each of them. This Agreement may be signed in any number of counterparts, eachof which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery ofan executed counterpart of a signature page of this Agreement by telecopy shall be as effective as delivery of an original executedcounterpart.

 

19.           Lendershall have the exclusive right to determine the application of payments and credits, if any, from Guarantor or Borrower or from any otherperson on account of the Guaranteed Obligations or the liabilities of Guarantor hereunder.

 

20.           ThisAgreement has been executed and delivered by Guarantor after arms’-length negotiations between Guarantor or a duly authorized representativeof Guarantor and Lender, Guarantor having been represented by counsel of choice of Guarantor during such negotiations, and this Agreementshall not be construed against Lender on the ground that Lender has prepared the same. The Section headings hereof are insertedfor convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. Guarantor waivesany obligation which may now or hereafter exist on the part of Lender to inform Guarantor of the risks being undertaken by entering thisAgreement or of any changes in such risks.

 

 

 

21.1         Forthe purposes of this Section 21 the following terms have the following meanings:

 

“Sanctions” means any trade,economic or financial sanctions laws, sanctions regulations, embargoes or restrictive measures administered, enacted or enforced by aSanctions Authority.

 

“Sanctions Authority”means any of the United Nations “UN”), the United States of America (“US”), the European Union(“EU”), the United Kingdom of Great Britain and Northern Ireland (“UK”) and the governments andofficial institutions or agencies of any of foregoing, including but not limited to, the Office of the President of the US, the Officeof Foreign Assets Control (“OFAC”) of the US Department of Treasury, the US Department of State, the US Departmentof Commerce and Her Majesty’s Treasury of the United Kingdom (“HMT”).

 

“Sanctions Target”means any person who is (A) the subject or target of any Sanctions, or (B) owned 50% or more by, or otherwise controlled by,or acting on behalf of, one or more persons referenced in clause (A) above, or (C) located, organized or resident in a SanctionedCountry.

 

“Sanctions Violation”means any violation of any Sanctions of any Sanctions Authority.

 

“Sanctioned Country”means any country or territory that is the subject or target of country-wide or territory-wide Sanctions targeted by OFAC, EU and HMT.

 

21.2         Guarantorrepresents and warrants to Lender that (A) Guarantor is not in violation of, and agrees with Lender that Guarantor shall not hereafterviolate, any laws, rules or regulations relating to terrorism or money laundering including the law commonly known as the U.S. PatriotAct (any such violation, a “Patriot Act Offense”), (B) neither Guarantor nor its affiliates has nor intends tohave any business operations or other dealings (x) in any Sanctioned Country, (y) with any Specially Designated National(“SDN”) on OFAC’s SDN list or with a person targeted by asset freeze sanctions imposed by the UN, EU or HMT,or (z) involving services of a Sanctioned Country, and (C) Guarantor shall deliver to Lender any certification or other evidence,including evidence of identification, required by Lender to confirm compliance by Guarantor with the provisions hereof.  With regardto Sanctions Violations of US Sanctions, this provision shall apply only if and to the extent that it does not result in a violationof the Council Regulation (EC) No. 2271/96 of 22 November 1996 as amended by Commission Delegated Regulation (EU) 2018/1100of 6 June 2018, section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung - AWV) or any other applicableanti-boycott or similar laws or regulations. Notwithstanding the foregoing, in the event that Guarantor uses any part of the proceedsadvanced under any Loan Document in actual violation of any Sanctions, Lender shall have the right to exercise all remedies availableto it in accordance with the provisions of Section 6 hereof.  In addition, Guarantor will not directly or indirectly use anypart of the proceeds advanced under the Loan Documents, or lend, contribute or otherwise make available such proceeds to any person (1) tofund or facilitate any activities of or business with a person that, at the time of such funding or facilitation, is a Sanctions Target,or (2) to fund or facilitate any activities of, or business in, a Sanctioned Country, or (3) to fund or facilitate any activityor business that, at the time of such funding or facilitation, is subject to Sanctions, or (4) in any other manner that will resultin a Sanctions Violation, or (5) who has been previously indicted for or convicted of any felony involving a crime or crimes ofmoral turpitude or for any Patriot Act Offense including the crimes of conspiracy to commit, or aiding and abetting another to commit,a Patriot Act Offense or (6) is currently under investigation by any governmental authority for alleged criminal activity.

 

 

 

22.           ThisAgreement represents the entire agreement of Guarantor and Lender with respect to the subject matter hereof, and there are no promises,undertakings, representations or warranties by Lender relative to the subject matter hereof not expressly set forth or referred to hereinor in the other Loan Documents.

 

23.           Lenderis hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits(general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by Lender (or anyaffiliate of Lender) to or for the credit or the account of Guarantor against any and all of the Guaranteed Obligations, whether or notLender shall have made any demand under this Agreement, the Note, any other Loan Document or otherwise, and although such obligationsmay be unmatured. Lender agrees promptly to notify Guarantor after any such setoff and application, provided, however,that the failure to give such notice shall not affect the validity of such setoff and application. The rights of Lender under this Section arein addition to any other rights and remedies (including, without limitation, other rights of setoff) that Lender may have.

 

**24.****          THISAGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLESTHEREOF RELATING TO CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES WOULD DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION).THE PARTIES AGREE THAT THE STATE OF NEW YORK IS LENDER’S JURISDICTION FOR PURPOSES OF ARTICLES 8 AND 9 OF THE UCC.**

 

**25.****           ALLOR CERTAIN OF THE GUARANTEED OBLIGATIONS MAY BE PAYABLE ON DEMAND. GUARANTOR ACKNOWLEDGES AND AGREES THAT, IN SUCH EVENT, NOPROVISION HEREOF OR OF ANY OTHER AGREEMENT BETWEEN GUARANTOR AND LENDER IS INTENDED TO OR SHALL IN ANY WAY LIMIT, PREJUDICE OR OTHERWISEAFFECT THE DEMAND NATURE OF SUCH OBLIGATIONS, AND THAT LENDER SHALL HAVE THE ABSOLUTE AND UNCONDITIONAL RIGHT TO DEMAND PAYMENT OF SUCHGUARANTEED OBLIGATIONS IN ITS DISCRETION, REGARDLESS OF THE EXISTENCE OF ANY PROVISION HEREOF OR OF ANY COMPLIANCE OR NON-COMPLIANCEBY GUARANTOR WITH ANY SUCH PROVISION.**

 

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