EXHIBIT 4.6
CUSTODIAL AND SECURITY AGREEMENT
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THIS CUSTODIAL AND SECURITY AGREEMENT (this "Agreement") is made as of
November 10, 2004, by and among Generex Biotechnology Corporation, a Delaware
corporation with an address at 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX X0X 2
(the "Company"), the purchasers signatory hereto (each individually, a
"Purchaser," and collectively, the "Purchasers"), and Xxxxxxx Xxxxxxxxx LLP, as
custodial agent for and for the benefit of the Purchasers, with an address at
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Custodian").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Securities Purchase Agreement referred to in the first recital.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and each Purchaser has entered into the Securities
Purchase Agreement of even date herewith (the "Purchase Agreement"), pursuant to
which the Purchasers are purchasing the Company's 6% Secured Convertible
Debentures due February 10, 2006 (collectively, the "Debentures") and Warrants;
and
WHEREAS, in order to induce the Purchasers to enter into the Purchase
Agreement and to purchase the Debentures, and as a condition precedent thereto,
the Company has agreed to secure the payment and performance of its obligations
under the Purchase Agreement, the Debentures, this Agreement and the other
Transaction Documents by granting to the Purchasers a first priority security
interest in the net cash proceeds from the sale of the Debentures; and
WHEREAS, the Company and the Purchasers have requested that the
Custodian hold the net cash proceeds from the sale of the Debentures for the
benefit of the Purchasers, as secured parties, in accordance with the terms
hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Closing.
(a) Upon the Custodian's receipt from the Purchasers of
Subscription Amounts of, in the aggregate, $4,000,000 (the "Secured
Proceeds") into its master custodial account, together with each
Purchaser's executed counterparts of this Agreement, the Purchase
Agreement and the Registration Rights Agreement, the Custodian shall
telephonically advise the Company, or the Company's designated attorney
or agent, of its receipt of such funds and such documents.
(b) Wire transfers to the Custodian shall be made as follows:
STERLING NATIONAL BANK
000 0XX XXXXXX
XXX XXXX, XX 00000
Account Name: Xxxxxxx Xxxxxxxxx LLP
ABA ROUTING NO: 000000000
ACCT NO: 0000000000
Remark: GNBT/[FUND NAME]
(c) The Company, upon receipt of the telephonic notice
described in Section 1(a) above, shall deliver to the Custodian the
certificates representing the Debentures, the Warrants and Additional
Investment Rights to be issued to each Purchaser at the Closing
together with:
(i) a counterpart of the Registration Rights
Agreement, duly executed by the Company;
(ii) the executed legal opinion of Company Counsel;
(iii) a counterpart of the Purchase Agreement, duly
executed by the Company;
(iv) warrant(s) issued to The Shemano Group
("Shemano") and/or its designees to purchase up to a number of
shares of Common Stock equal to 3% of the aggregate Secured
Proceeds divided by the same price used to calculate the
Purchaser Warrant coverage, otherwise in the form of the
Warrants ("Shemano Warrants"); and
(v) a counterpart of this Agreement, duly executed by
the Company.
(d) In the event that the foregoing items have not been
delivered to the Custodian by the Company within five (5) Trading Days
after the Custodian has received all of the Subscription Amounts, then
each Purchaser shall have an independent and separate right to demand
and receive the return of its Subscription Amount.
(e) Once the Custodian receives all of the items required to
be delivered hereunder, it shall:
(i) transfer $2,000,000 of the Secured Proceeds into
a separate segregated account of the Custodian (the "Custodial
Account");
(ii) wire 7% of the gross Secured Proceeds per the
instructions of Shemano; and
(iii) wire the balance of the funds per the
instructions to the Company, net of a $20,000 non-accountable
expense allowance to be wired per the instructions of Omicron
Master Trust.
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(f) Thereafter, the Custodial Account shall be maintained by
the Custodian in accordance with the terms of this Agreement and shall,
if possible and at the discretion of the Custodian, be invested in an
interest-bearing account made available by the Custodian's bank. The
Custodian, by its execution and delivery of this Agreement, hereby
agrees to accept receipt of the Secured Proceeds and to hold such
proceeds for the benefit of the Purchasers, as secured parties. Within
five (5) Trading Days after transferring the Secured Proceeds into the
Custodial Account, the Custodian shall then arrange to have originals
or counterpart originals of the Purchase Agreement, the Warrants, the
Additional Investment Rights, the Debentures, the Registration Rights
Agreement, this Agreement and the opinion of counsel delivered to the
appropriate parties.
(g) The Custodian shall hold the Secured Proceeds in the
Custodial Account, for the benefit of each Purchaser, and not release
such proceeds except as provided herein. NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT TO THE CONTRARY, AS TO ANY PURCHASER, THE CUSTODIAN
SHALL ONLY RELEASE FUNDS TO THE COMPANY OR A PURCHASER UNDER THIS
AGREEMENT TO THE EXTENT ALL SUCH RELEASES ON ACCOUNT OF SUCH PURCHASER,
IN THE AGGREGATE, DO NOT EXCEED 50% OF THE ORIGINAL PRINCIPAL AMOUNT OF
DEBENTURES PURCHASED BY SUCH PURCHASER PURSUANT TO THE PURCHASE
AGREEMENT.
2. [INTENTIONALLY OMITTED].
3. [INTENTIONALLY OMITTED].
4. Release of Secured Proceeds upon Maturity or Event of Default.
(a) Subject to Section 4(c) below, if on the maturity date of
the Debentures, any Debentures shall remain unpaid, then upon receipt
by the Custodian of a written notice from a Purchaser holding such
Debentures certifying that such Debentures remain unpaid, the Custodian
shall release out of the Secured Proceeds to the Purchaser, subject to
the limitation set forth in Section 1(g), an amount equal to the
principal amount of Debentures then held by such Purchaser, and such
Secured Proceeds shall be applied to reduce amounts due and owing to
such Purchaser with respect to the Debentures and the Purchase
Agreement as follows: first, to the payment of fees and expenses;
second, to interest payable in cash with respect to the Debentures; and
third, to the outstanding principal under the Debentures.
(b) Subject to Section 4(c) below, at any time after the
occurrence of an Event of Default (as defined in the Debentures), any
Purchaser may, at its option, deliver a certificate to the Custodian
and the Company specifying the nature of the Event of Default. If,
within five days (5) after its receipt of such certificate, the
Custodian shall not have received written notice from the Company that
it disputes the occurrence of such Event of Default, along with
reasonable proof that a dispute exists, then the Custodian shall
release out of the Secured Proceeds, subject to the limitation set
forth in Section 1(g), to such Purchaser an amount equal to the
principal amount of Debentures then held by such Purchaser. In the
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event that the Company does deliver a timely notice to the Custodian
and the Purchaser that it disputes such determination, then such
dispute shall be resolved between the Company and the Purchaser by
arbitration conducted as follows: the arbitration shall be conducted in
New York, New York, before an arbitration panel of three arbitrators,
one of whom shall be selected by the Purchaser, one of whom shall be
selected by the Company, with the remaining arbitrator to be agreed
upon by the first two. The arbitration shall be conducted in accordance
with the commercial arbitration rules of the American Arbitration
Association then in effect. Any arbitration decision or award shall be
final and conclusive as to the parties to this Agreement and their
successors and assigns; judgment upon such decision or award may be
entered in any competent court. In the event that the arbitration shall
be decided in favor of the applicable Purchaser, then upon delivery of
a written copy of such decision by the Purchaser to the Custodian, the
Custodian shall promptly release such Secured Proceeds to the
Purchaser. The prevailing party in such hearing shall be reimbursed by
the other party for its reasonable attorneys' fees and other costs and
expenses incurred with the investigation, preparation and prosecution
of such arbitration proceeding but shall not be paid out of the Secured
Proceeds. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF AN EVENT
OF DEFAULT IS A RESULT OF THE COMPANY'S RECEIPT FROM ITS INDEPENDENT
AUDITORS OF A GOING CONCERN OPINION, PUBLIC DISCLOSURE IN THE COMPANY'S
SEC REPORTS SHALL BE DEEMED INDISPUTABLE EVIDENCE OF THE EXISTENCE OF
AN EVENT OF DEFAULT AND THE CUSTODIAN IS HEREBY AUTHORIZED TO RELEASE
THE SECURED PROCEEDS NOTWITHSTANDING ANY OBJECTION BY THE COMPANY.
(c) Release of Secured Proceeds upon Filing of Form 10-K.
After such time as the Company files with the Commission its Annual
Report on Form 10-K for the year ended July 31, 2004 and such filing is
made with an unqualified opinion with respect to the financial
statements to be included in such filing from BDO Dunwoody, LLP, the
Company's accountants ("Unqualified Opinion"), such Purchaser and the
Company shall promptly thereafter execute a joint certificate to the
Custodian certifying that an Unqualified Opinion has been delivered to
the Company (a "Unqualified Opinion Certificate"). Promptly after its
receipt of an Unqualified Opinion Certificate, the Custodian shall
release the Secured Proceeds to the Company per the written
instructions of the Company.
5. Security Agreement.
(a) Grant. The Company hereby unconditionally and irrevocably
grants to the Purchasers, to secure the payment and performance in full
when due of all of the Obligations (as said term is defined below), a
continuing first priority security interest in, and so pledges and
assigns to the Purchasers all of, the Secured Proceeds and any interest
that accrues thereon ("Collateral"). "Obligations" means all present
and future indebtedness, obligations, covenants, duties and liabilities
of any kind or nature of the Company to the Purchasers (or any of them)
under this Agreement, the Debentures and the other Transaction
Documents, 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. Without limiting
the generality of the foregoing, this Agreement secures the payment of
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all amounts that constitute part of the Obligations and would be owed
by the Company to the Purchasers under the Transaction Documents but
for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding
involving the Company or any of the Company's Subsidiaries. The
security interest in the Secured Proceeds shall terminate upon the
release of all of the Secured Proceeds from the Custodial Account, it
being understood however that the Company's obligations under the
Debentures shall remain in full force and effect.
(b) Further Assurances. The Company agrees that at any time
and from time to time, at the expense of the Company, the Company shall
promptly execute and deliver all further instruments, documents and/or
other agreements and take all further action, including any UCC or
other filings, that may be necessary or desirable, or that the
Purchasers may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to
enable any Purchaser to exercise and enforce its rights and remedies
hereunder with respect to any of the Collateral.
(c) Rights and Remedies. At any time after the occurrence of
an Event of Default, and without any other notice to or demand upon the
Company, the Purchasers shall have, in any jurisdiction in which
enforcement hereof is sought, in addition to all other rights and
remedies, the rights and remedies of a secured party under the Uniform
Commercial Code in effect from time to time in the State of New York
(the "UCC") and any additional rights and remedies which may be
provided to a secured party in any applicable jurisdiction.
(d) Power of Attorney. The Company hereby irrevocably
constitutes and appoints the Purchasers, and each of them, and any
officer, partner, member or agent thereof, with full power of
substitution, as its true and lawful attorneys-in-fact with full
irrevocable power and authority in the name, place and stead of the
Company or in their own names, for the purpose of carrying out the
terms of this Section 6, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or
useful to accomplish the purposes of this Section 6 and, without
limiting the generality of the foregoing, hereby gives said attorneys
the power and right, on behalf of the Company, without notice to or
assent by the Company, at any time after the occurrence of an Event of
Default, to make any agreement with respect to or otherwise transfer
any of the Collateral in such manner as is consistent with the UCC and
as fully and completely as though the Purchasers were the absolute
owners thereof for all purposes, and to do, at the Company's expense,
at any time or from time to time, all acts and things which the
Purchasers deem necessary or useful to protect, preserve or realize
upon the Collateral and the security interest of the Purchasers
therein, in order to effect the intent of this Section 6, all at least
as fully and effectively as the Company might do.
(e) Representations, Warranties and Covenants. The Company
hereby represents and warrants to, and covenants and agrees with, the
Purchasers as of the date hereof as follows: (i) The Company's exact
legal name is that indicated in the Perfection Certificate annexed to
this Agreement (the "Perfection Certificate"); (ii) the Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware; (iii) the Perfection Certificate
accurately sets forth the Company's organizational identification
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number or accurately states that the Company has none; (iv) the
Perfection Certificate accurately sets forth the Company's place of
business or, if more than one, its chief executive office, as well as
the Company's mailing address, if different; (v) the Collateral is free
and clear of any right or claim or any person or any adverse lien,
security interest or other encumbrance, except for the security
interest created by this Agreement; (vi) all other information set
forth on the Perfection Certificate pertaining to the Company and the
Collateral is accurate and complete; (vii) the Company will not change
its name, its place of business or, if more than one, chief executive
office, or its mailing address or organizational identification number
if it has one, without in each case providing at least 15 days prior
written notice to the Purchasers; (viii) the Company will not change
its type of organization, jurisdiction of organization or other legal
structure, without in each case providing at least 15 days prior
written notice to the Purchasers of such change; (ix) the Company shall
take no action to cause any right or claim of any other Person, lien,
security interest or other encumbrance, and the Company shall defend
the same against all claims and demands of all Persons at any time
claiming the same or any interests therein adverse to the Purchasers;
and (x) the Company shall not pledge, mortgage, create or suffer to
exist any right of any Person in or claim by any Person to any of the
Collateral, or any security interest, lien or encumbrance in any of the
Collateral in favor of any Person, other than the Purchasers.
(f) Marshalling. All rights and remedies of the Purchasers
hereunder and in respect of the Collateral and other assurances of
payment shall be cumulative and in addition to all other rights and
remedies, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating
to the marshalling of assets which might cause a delay in or impede the
enforcement of the rights and remedies of the Purchasers under this
Agreement, the Debentures, the other Transaction Documents or under any
other instrument creating or evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and to
the extent that it lawfully may, the Company hereby irrevocably waives
the benefits of all such laws.
(g) No Waiver, etc. The Purchasers shall not be deemed to have
waived any of their rights or remedies in respect of the Obligations or
the Collateral unless such waiver shall be in writing and signed by the
Purchasers. No delay or omission on the part of the Purchasers in
exercising any right or remedy shall operate as a waiver of such right
or remedy or any other right or remedy. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on
any future occasion. All rights and remedies of the Purchasers with
respect to the Obligations or the Collateral, whether evidenced hereby
or by any other document or instrument, shall be cumulative and may be
exercised singularly, alternatively, successively or concurrently at
such time or at such times as the Purchasers deem expedient.
(h) Certain Defined Terms. Terms used in this Section 6 but
not otherwise defined in this Agreement that are defined in the UCC
shall have the respective meanings given such terms therein; provided,
however, that if a term is defined in Article 9 of the UCC differently
than in another Article of the UCC, then such term shall have the
meaning specified in Article 9.
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6. Condition to Custodian's Duties. The acceptance by the Custodian of
its duties as such under this Agreement is subject to the following terms and
conditions, which all of the parties to this Agreement hereby agree shall govern
and control with respect to the rights, duties, liabilities and immunities of
the Custodian:
(a) The Custodian is not a party to, nor is it bound by, any
other agreement by which the other parties hereto may be bound (whether
or not it has knowledge of such), other than as expressly herein set
forth.
(b) The Custodian shall be protected in acting upon any
written notice, request, waiver, consent, receipt or other document
which the Custodian, in good faith, believes to be genuine and what it
purports to be. No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof, or of any other covenant or provision herein
contained. No extension of time for performance of any obligation or
act shall be deemed an extension of the time for performance of any
other obligation or act. If the Custodian reasonably requires other or
further instruments in connection with this Agreement or obligations in
respect hereto, the necessary parties hereto shall join in furnishing
such instruments.
(d) The Custodian shall be indemnified and held harmless by
the Company and the Purchasers, jointly and severally, from and against
any and all loss, expense, fees (including attorneys' fees) and damages
that may be incurred by the Custodian as a result of its agreeing to
act in such capacity and its performance of this Agreement. The
Custodian shall not be obligated to any party for any error in judgment
or for any act done or steps taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or
refrain from doing in connection therewith, except as a result of its
own gross negligence or willful misconduct. This indemnity includes the
costs of enforcing the indemnification (including reasonable attorneys'
fees).
(e) The Custodian may consult with or retain legal counsel in
connection with any dispute or question as to the construction of any
of the provisions hereof or with regard to its duties and shall be held
harmless and protected by the Company and the Purchasers in acting in
good faith in accordance with the instructions of such counsel. Such
counsel's reasonable fees and expenses shall be paid as set forth in
Section 7(f) hereof. The Custodian may represent itself at its usual
rates.
(f) The Custodian shall not be responsible or liable for the
default or misconduct of its agents, attorneys or employees, if they
are selected with reasonable care.
(g) The Company will pay the Custodian's fees (at the
Custodian's customary hourly rate for legal services) and out-of-pocket
disbursements for time spent in performing its duties under this
Agreement, and if any of Custodian's invoices are not paid in full
within 30 days, the Custodian is directed to pay itself directly from
the Custodial Account; provided that if fees are taken directly from
the Custodial Account by the Custodian, the Purchasers shall have no
claim against the Custodian for such funds but shall have a claim
against the Company for reimbursement. The Company shall promptly
replenish any funds that are disbursed to the Custodian from the
Custodial Account.
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(h) No modification of this Agreement shall, without the
consent of the Custodian and all other parties hereto, modify the
provisions of this Agreement relating to the duties, obligations or
rights of the Custodian. This Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the
subject matter hereof and supersedes all prior understandings with
respect thereto.
7. Conflict with Respect to Collateral.
(a) In the event that the Custodian at any time receives or
becomes aware of conflicting demands or claims with respect to the
Collateral, this Agreement or its duties hereunder, the Custodian shall
have the right to discontinue and refrain from any and all activities
on its part under this Agreement or in connection herewith until such
conflict is resolved to its satisfaction.
(b) The Custodian shall have the further right to commence or
defend any action or proceedings for the determination of such
conflict. The Company and the Purchasers jointly and severally agree to
pay all costs, damages, judgments and expenses, including reasonable
attorneys' fees, suffered or incurred by the Custodian in connection
with or arising out of this Agreement and the transactions described
herein in the event of bona fide conflicting claims or demands,
including, but without limiting the generality of the foregoing, a suit
in interpleader brought by the Custodian. In the event that the
Custodian files a suit in interpleader, it shall thereupon be fully
released and discharged from all further obligations to perform any and
all duties or obligations imposed upon it by this Agreement (except it
may not release the Collateral except as designated by the court).
8. Acknowledgement. ALL PARTIES HERETO AGREE THAT THE CUSTODIAN IS
COUNSEL FOR OMICRON MASTER TRUST ("OMICRON") AND SHALL BE ENTITLED TO REPRESENT
OMICRON WITH RESPECT TO THE PURCHASE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREUNDER; AND THE COMPANY AND EACH OTHER PURCHASER HEREBY WAIVES ANY RIGHT OR
CLAIM TO OBJECT TO SUCH LEGAL REPRESENTATION BY CUSTODIAN OF OMICRON IN
CONNECTION WITH THIS TRANSACTION.
9. Resignation of Custodian. The Custodian may at any time resign
hereunder by giving written notice of its resignation to the Company and the
Purchasers, at least ten (10) days prior to the date specified for such
resignation to take effect, and upon the effective date of such resignation, all
property then held by the Custodian hereunder shall be delivered by it to such
Person as may be designated by the Company and the Purchasers, in writing,
whereupon all the Custodian's obligations hereunder shall cease and terminate.
If no such Person shall have been designated by such date, all obligations of
the Custodian hereunder shall, nevertheless, cease and terminate. The
Custodian's sole responsibility thereafter shall be to keep safely all property
then held by it and to deliver the same to a Person designated by the parties
hereto or in accordance with the directions of a final order or judgment of a
court of competent jurisdiction, or to file a suit in interpleader as provided
in Section 8 above.
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10. Interest on Secured Proceeds. The Custodian shall owe no duty and
have no obligation whatsoever to the Company or the Purchasers to obtain or
maintain any level of interest on the Secured Proceeds.
11. Successors and Assigns. The Purchasers may assign their rights
hereunder in connection with the transfer of Debentures. The Company may not
assign its rights under this Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and permitted assigns.
12. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND
THE PARTIES AGREE AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND
STATE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING
HEREUNDER, AND TO SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED
(WHICH SHALL CONSTITUTE "PERSONAL SERVICE"). THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
13. Amendment. No provision of this Agreement may be amended or waived
without the prior written consent of the Company and all the Purchasers;
provided, however, that any provision relating to the duties, obligations and
rights of the Custodian shall in addition require the approval of the Custodian,
as provided in Section 7(g) above.
14. Notices. All notices or other communications between the parties
contemplated under, or relating to, this Agreement shall be in writing, shall be
signed by each person giving such notice or communication, and shall be
delivered by hand, reputable overnight courier or by certified mail, return
receipt requested, to the parties at their respective addresses set forth above
or to such other address as to which the sending party has received written
notice in accordance with this Section 15.
***********************
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
COMPANY:
GENEREX BIOTECHNOLOGY CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and General Counsel
CUSTODIAN:
XXXXXXX XXXXXXXXX LLP
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
[PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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[PURCHASER'S SIGNATURE PAGE TO GNBT CUSTODIAL AND SECURITY AGREEMENT]
Name of Investing Entity: Cranshire Capital, L.P.
---------------------------------
Signature of Authorized Signatory of Investing Entity: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxxx X. Xxxxx
--------------------------------
Title of Authorized Signatory: President of General Partner
-------------------------------
[ADDITIONAL PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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[PURCHASER'S SIGNATURE PAGE TO GNBT CUSTODIAL AND SECURITY AGREEMENT]
Name of Investing Entity: Iroquois Capital, L.P.
---------------------------------
Signature of Authorized Signatory of Investing Entity: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxxxx
--------------------------------
Title of Authorized Signatory: Partner
-------------------------------
[ADDITIONAL PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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[PURCHASER'S SIGNATURE PAGE TO GNBT CUSTODIAL AND SECURITY AGREEMENT]
Name of Investing Entity: Omicron Master Trust
---------------------------------
Signature of Authorized Signatory of Investing Entity: /s/ Xxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxx Xxxxxxxxx
--------------------------------
Title of Authorized Signatory: Managing Partner
-------------------------------
[ADDITIONAL PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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[PURCHASER'S SIGNATURE PAGE TO GNBT CUSTODIAL AND SECURITY AGREEMENT]
Name of Investing Entity: Smithfield Fiduciary LLC
---------------------------------
Signature of Authorized Signatory of Investing Entity: /s/ Xxxx X. Chill
-------------------------
Name of Authorized Signatory: Xxxx X. Chill
--------------------------------
Title of Authorized Signatory:
-------------------------------
[ADDITIONAL PURCHASERS' SIGNATURE PAGES TO FOLLOW]
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PERFECTION CERTIFICATE
[Delivered Pursuant to Section 6 of Custodial and Security Agreement]
The undersigned, the ____________________of GENEREX BIOTECHNOLOGY
CORPORATION, a Delaware corporation ("Debtor"), hereby certifies, with reference
to the Custodial and Security Agreement dated as of July __, 2004 between Debtor
and the "Purchasers" party thereto (collectively, the "Secured Party"), to the
secured Party as follows (terms defined in such Custodial and Security Agreement
having the same meanings herein as specified therein):
1. NAME. The exact legal name of Debtor as that name appears on its
Certificate of Incorporation is as follows: GENEREX BIOTECHNOLOGY CORPORATION
2. OTHER IDENTIFYING FACTORS.
(a) The following is a mailing address for Debtor:
(b) If different from its indicated mailing address, Debtor's
place of business or, if more than one, its chief executive office, is located
at the following address:
ADDRESS COUNTY STATE
NONE
(c) The following is the type of organization of Debtor:
CORPORATION
(d) The following is the jurisdiction of Debtor's
organization:
(e) The following is Debtor's state-issued organizational
identification number [STATE "NONE" IF THE STATE DOES NOT ISSUE SUCH A NUMBER]:
[GENEREX BIOTECHNOLOGY CORPORATION: ]
3. OTHER NAMES, ETC.
(a) The following is a list of all other names (including
trade names or similar appellations) used by Debtor, or any other business or
organization to which Debtor became the successor by merger, consolidation,
acquisition, change in form, nature or jurisdiction of organization or
otherwise, now or at any time during the past five years:
GENEREX BIOTECHNOLOGY CORPORATION
GLOBAL GENOMICS
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(b) Attached hereto as SCHEDULE 3 is the information required
in Section 2 above for any other business or organization to which Debtor became
the successor by merger, consolidation, acquisition of assets, change in form,
nature or jurisdiction of organization or otherwise, now or at any time during
the past five years.
4. OTHER CURRENT LOCATIONS.
(a) The following are all other locations in the United States
of America in which Debtor maintains any books or records relating to any of the
Collateral consisting of accounts or general intangibles:
ADDRESS COUNTY STATE
NONE
(b) The following are all other places of business of Debtor in the United
States of America:
(c)
ADDRESS COUNTY STATE
NONE
IN WITNESS WHEREOF, this Certificate has been duly executed on
July __, 2004.
GENEREX BIOTECHNOLOGY
CORPORATION
By:
-------------------------
Name:
-----------------------
Title:
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