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Exhibit 10.6
EXHIBIT F
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of December 5, 2006 (this "
Guarantee "), made by each of the signatories hereto
(together with any other entity that may become a party hereto as
provided herein, (the " Guarantors "), in favor of the
purchasers signatory (the " Purchasers ") to that certain
Securities Purchase Agreement, dated as of the date hereof, between
Ceragenix Pharmaceuticals, Inc., a Delaware corporation (the "
Company ") and the Purchasers.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase Agreement,
dated as of the date hereof, by and between the Company and the
Purchasers (the " Purchase Agreement "), the Company has
agreed to sell and issue to the Purchasers, and the Purchasers have
agreed to purchase from the Company the Company’s Secured
Convertible Debentures, due December 5, 2009 (the "
Debentures "), subject to the terms and conditions set forth
therein; and
WHEREAS, each Guarantor will directly benefit from the extension
of credit to the Company represented by the issuance of the
Debentures; and
NOW, THEREFORE, in consideration of the premises and to induce
the Purchasers to enter into the Purchase Agreement and to carry
out the transactions contemplated thereby, each Guarantor hereby
agrees with the Purchasers as follows:
1.
Definitions . Unless otherwise defined herein, terms defined
in the Purchase Agreement and used herein shall have the meanings
given to them in the Purchase Agreement. The words "hereof,"
"herein," "hereto" and "hereunder" and words of similar import when
used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and Section and
Schedule references are to this Guarantee unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms. The following terms shall have the following
meanings:
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" Guarantee " means this Subsidiary Guarantee, as the
same may be amended, supplemented or otherwise modified from time
to time.
" Obligations " means in addition to all other costs and
expenses of collection incurred by Purchasers in enforcing any of
such Obligations and/or this Guarantee, all of the liabilities and
obligations (primary, secondary, direct, contingent, sole, joint or
several) due or to become due, or that are now or may be hereafter
contracted or acquired, or owing to, of any Debtor to the Secured
Parties, including, without limitation, all obligations under this
Agreement, the Debentures, this Guarantee and any other
instruments, agreements or other
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documents executed and/or delivered in connection
herewith or therewith, in each case, whether now or hereafter
existing, voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or
any portion of such obligations or liabilities that are paid, to
the extent all or any part of such payment is avoided or recovered
directly or indirectly from any of the Secured Parties as a
preference, fraudulent transfer or otherwise as such obligations
may be amended, supplemented, converted, extended or modified from
time to time. Without limiting the generality of the
foregoing, the term "Obligations" shall include, without
limitation: (i) principal of, and interest on the Debentures and
the loans extended pursuant thereto; (ii) any and all other fees,
indemnities, costs, obligations and liabilities of the Debtors from
time to time under or in connection with this Agreement, the
Debentures, the Guarantee and any other instruments, agreements or
other documents executed and/or delivered in connection herewith or
therewith; and (iii) all amounts (including but not limited to
post-petition interest) in respect of the foregoing that would be
payable but for the fact that the obligations to pay such amounts
are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving any
Debtor.
2.
Guarantee .
(a)
Guarantee .
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(i)
The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the Purchasers and
their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Company when
due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(ii)
Anything herein or in any other Transaction Document
to the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Transaction Documents shall
in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws, including laws
relating to the insolvency of debtors, fraudulent conveyance or
transfer or laws affecting the rights of creditors generally (after
giving effect to the right of contribution established in Section
2(b)).
(iii)
Each Guarantor agrees that the Obligations may at
any time and from time to time exceed the amount of the liability
of such Guarantor hereunder without impairing the
guarantee
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(b)
Right of Contribution . Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Guarantor
shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder which has not paid its proportionate
share of such payment. Each Guarantor’s right of contribution
shall be subject to the terms and conditions of Section 2(c). The
provisions of this Section 2(b) shall in no respect limit the
obligations and liabilities of any Guarantor to the Purchasers, and
each Guarantor shall remain liable to the Purchasers for the full
amount guaranteed by such Guarantor hereunder.
(c)
No Subrogation . Notwithstanding any payment made by
any Guarantor hereunder or any set-off or application of funds of
any Guarantor by
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the Purchasers, no Guarantor shall be entitled to
be subrogated to any of the rights of the Purchasers against the
Company or any other Guarantor or any collateral security or
guarantee or right of offset held by the Purchasers for the payment
of the Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Company or any
other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Purchasers by the Company
on account of the Obligations are paid in full. If any amount shall
be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in
full, such amount shall be held by such Guarantor in trust for the
Purchasers, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over to
the Purchasers in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Purchasers, if required), to be
applied against the Obligations, whether matured or unmatured, in
such order as the Purchasers may determine.
(d)
Amendments, Etc. With Respect to the Obligations . Each
Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without
notice to or further assent by any Guarantor, any demand for
payment of any of the Obligations made by the Purchasers may be
rescinded by the Purchasers and any of the Obligations continued,
and the Obligations, or the liability of any other Person upon or
for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Purchasers, and the Purchase Agreement and the other Transaction
Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Purchasers may deem
advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by the Purchasers for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to
protect, secure, perfect or insure any Lien at any time held by
them as security for the Obligations or for the guarantee contained
in this Section 2 or any property subject thereto.
(e)
Guarantee Absolute and Unconditional . Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the
Purchasers upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the
Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended
or waived, in reliance upon the guarantee contained in this Section
2; and all dealings between the Company and any of the Guarantors,
on the one hand, and the Purchasers, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each
Guarantor waives to the extent permitted by law diligence,
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presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Company or any of
the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section
2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or
enforceability of the Purchase Agreement or any other Transaction
Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment
or performance or fraud or misconduct by Purchasers) which may at
any time be available to or be asserted by the Company or any other
Person against the Purchasers, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Company
or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the
Obligations, or of such Guarantor under the guarantee contained in
this Section 2, in bankruptcy or in any other instance. When making
any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Purchasers may, but shall be
under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as they may have against the
Company, any other Guarantor or any other Person or against any
collateral security or guarantee for the Obligations or any right
of offset with respect thereto, and any failure by the Purchasers
to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Company, any other Guarantor or
any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release
of the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Purchasers
against any Guarantor. For the purposes hereof, "demand" shall
include the commencement and continuance of any legal
proceedings.
(f)
Reinstatement . The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the
Obligations is res
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