GUARANTY
Exhibit
10.6
This GUARANTY (the “Guaranty”),
dated as of December 10, 2008, is executed and delivered by C-ACQUISITION CORP., a
Delaware corporation (“C-Acquisition”),
ACCUREL SYSTEMS INTERNATIONAL
CORPORATION, a California corporation (“Accurel”), and IMX ACQUISITION CORP., a
Delaware corporation (“IMX” and together
with C-Acquisition and Accurel, each a “Guarantor” and
collectively, “Guarantors”) in favor
of DMRJ GROUP, LLC, a
Delaware limited liability company, in its capacity as Investor under the
Purchase Agreement (as defined below) and as Secured Party under the Security
Agreement (as defined below) (in such capacities, and together with their
respective successors, transferees and assigns, “Secured
Party”).
W I T N E S S E T
H:
WHEREAS, each Guarantor is a
wholly owned subsidiary of Implant Sciences Corporation (the “Borrower”);
and
WHEREAS, in accordance with
that certain Note and Warrant Purchase Agreement of even date herewith between
the Borrower and the Secured Party (the “Purchase Agreement”),
and that certain Senior Secured Convertible Promissory Note to be issued by the
Borrower pursuant to the Purchase Agreement (the “Note”) and all
related agreements (collectively, as amended, restated, or extended from time to
time, the “Loan
Documents”), the Secured Party has agreed to loan to the Borrower up to
Five Million Six Hundred Thousand Dollars ($5,600,000) (the “Loan”);
and
WHEREAS, in order to induce
the Secured Party to enter into the Loan Documents and to extend the Loan and
other financial accommodations to Borrower pursuant to the Loan Documents, and
in consideration thereof, each Guarantor has agreed to jointly and severally
guaranty the Guarantied Obligations (as defined below) and execute and deliver
this Guaranty; and
WHEREAS, the aforesaid Loan
will be beneficial to the Guarantors inasmuch as the proceeds of the Loan to the
Borrower will indirectly benefit the Guarantors.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by Guarantors,
Guarantors hereby agree as follows:
1. Guaranty of Payment and
Performance. Each Guarantor hereby jointly and severally,
irrevocably and unconditionally guarantees to the Secured Party the full and
punctual payment when due (whether at maturity, pursuant to a mandatory
prepayment requirement, by acceleration or otherwise and whether for principal,
interest (including all interest that accrues
after the
commencement of any Insolvency Proceeding (as defined in the Security Agreement)
irrespective of whether a claim therefor is allowed in such case or proceeding),
fees, expenses or otherwise), and the performance, of all liabilities,
agreements and other obligations of the Borrower to the Secured Party, in each
case, whether direct or indirect, absolute or contingent, due or to become due,
secured or unsecured, now existing or hereafter arising or acquired (whether by
way of discount, letter of credit, lease, loan, overdraft or otherwise),
including without limitation all Obligations (as defined in the Security
Agreement) and any other obligations under the Purchase Agreement, the Note and
other Loan Documents (collectively, the “Guarantied
Obligations”). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of the
Guarantied Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Secured Party first attempts to
collect any of the Guarantied Obligations from the Borrower or resort to any
security or other means of obtaining their payment. Should the
Borrower default in the payment or performance of any of the Guarantied
Obligations, the obligations of each Guarantor hereunder shall become
immediately due and payable to the Secured Party, without demand or notice of
any nature, all of which are expressly waived by the
Guarantors. Payments by the Guarantors hereunder may be required by
the Secured Parties on any number of occasions.
2. Guarantors’ Agreement to
Pay. Each Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Secured Party, on demand, all costs and expenses (including court costs and
reasonable legal expenses) incurred or expended by the Secured Party in
connection with enforcement of this Guaranty, together with interest on amounts
recoverable under this Guaranty from the time such amounts become due under this
Guaranty until payment, at the rate per annum equal to the default rate set
forth in the Note; provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
3. Unlimited Guaranty;
Covenant. The liability of
each Guarantor hereunder shall be unlimited to the extent of the Guarantied
Obligations and the other obligations of the Guarantors hereunder (including,
without limitation, under Section 2 above).
4. Waivers by Guarantors;
Secured Party’s Freedom to Act. Each Guarantor
agrees that the Guarantied Obligations will be paid and performed strictly in
accordance with their terms regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Secured Party with respect thereto. Each Guarantor
waives presentment, demand, protest, notice of acceptance, notice of Guarantied
Obligations incurred and all other notices of any kind, all defenses which may
be available to the Borrower by virtue of any valuation, stay, moratorium law or
other similar law now or hereafter in effect, any right to require the
marshalling of assets of the Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, each Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of each Guarantor
hereunder shall not be released or discharged, in whole or in part, or otherwise
affected by (i) the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against the Borrower; (ii) any
extensions, renewals, increases, restatements, replacements, settlements or
compromises of any Obligation; (iii) any rescissions, forbearances,
waivers, amendments or modifications of any of the terms or provisions of any
agreement evidencing, securing or otherwise executed in
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connection
with any Obligation; (iv) the substitution or release of any entity
primarily or secondarily liable for any Obligation or of any property or asset
subject to a Lien in favor of Secured Party; (v) the adequacy of any rights
Secured Party may have against any collateral or other means of obtaining
repayment of the Guarantied Obligations; (vi) the impairment of any
collateral securing the Guarantied Obligations, including without limitation the
failure to perfect or preserve any rights Secured Party might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of such Guarantor or
otherwise operate as a release or discharge of Borrower or any other guarantor,
all of which may be done without notice to such Guarantor.
5. Unenforceability of
Obligations Against Borrower. If for any reason
the Borrower has no legal existence or is under no legal obligation to discharge
any of the Guarantied Obligations, or if any of the Guarantied Obligations have
become irrecoverable from the Borrower by operation of law or for any other
reason, this Guaranty shall nevertheless be binding on each Guarantor to the
same extent as if such Guarantor at all times had been the principal obligor on
all such Guarantied Obligations. In the event that acceleration of the time for
payment of the Guarantied Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of any agreement evidencing,
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantors.
6. Subrogation;
Subordination. Until the payment
and performance in full of all Guarantied Obligations, no Guarantor shall
exercise any rights against the Borrower arising as a result of payment by such
Guarantor hereunder, by way of subrogation or otherwise, (the Secured Party
having no duty or obligation to take any action at any time to protect or
preserve any right of subrogation) and will not prove any claim in competition
with Secured Party or its affiliates in respect of any payment hereunder in
bankruptcy or insolvency proceedings of any nature; no Guarantor will claim any
set-off or counterclaim against the Borrower in respect of any liability of such
Guarantor to the Borrower; and each Guarantor waives any benefit of and any
right to participate in any collateral which may be held by Secured
Party. The payment of any amounts due with respect to any
indebtedness of the Borrower now or hereafter held by any Guarantor is hereby
subordinated to the prior payment in full of the Guarantied
Obligations. Each Guarantor agrees that after the occurrence of any
default in the payment or performance of the Guarantied Obligations, after the
expiration of any applicable grace period, if any, it will not demand, xxx for
or otherwise attempt to collect after such time any such indebtedness of the
Borrower to such Guarantor until the Guarantied Obligations shall have been paid
in full. If, notwithstanding the foregoing sentence, any Guarantor shall
collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by such Guarantor as trustee
for the Secured Party and be paid over to the Secured Party on account of the
Guarantied Obligations without affecting in any manner the liability of the
Guarantors under the other provisions of this Guaranty.
7. Further
Assurances. Each Guarantor
agrees to do all such things and execute all such documents, as the Secured
Party may consider reasonably necessary or desirable to give full effect to this
Guaranty and to perfect and preserve the rights and powers of the Secured Party
hereunder.
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8. Termination;
Reinstatement. This Guaranty
shall remain in full force and effect until the Guarantied Obligations are paid
in full and not subject to any recapture or preference in bankruptcy or similar
proceedings. This Guaranty shall continue to be effective or be
reinstated if at any time any payment made or value received with respect to an
Obligation is rescinded or must otherwise be returned by Secured Party upon the
insolvency, bankruptcy or reorganization of the Borrower, or otherwise, all as
though such payment had not been made or value received.
9. Successors and
Assigns. This Guaranty
shall be jointly and severally binding upon each Guarantor, its respective
successors and assigns, and shall inure to the benefit of and be enforceable by
the Secured Party and its successors, transferees and assigns. The
Secured Party may assign or otherwise transfer any agreement or any note held by
it evidencing, securing or otherwise executed in connection with the Guarantied
Obligations, or sell participations in any interest therein, to any other person
or entity, and such other person or entity shall thereupon become vested, to the
extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to the Secured
Party herein.
10. Amendments and
Waivers. No 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 the Secured Party. No failure on the part of the Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right.
11. Notices. All notices and
other communications called for hereunder shall be made in writing and, unless
otherwise specifically provided herein, shall be deemed to have been duly made
or given when delivered by hand or mailed first class mail postage prepaid or,
in the case of telegraphic or telexed notice, when transmitted, answer back
received, addressed as follows: if to the Guarantors, at the address set forth
in the Purchase Agreement for the Borrower, and if to the Secured Party, at the
address set forth in the Purchase Agreement.
12. Governing Law; Consent to
Jurisdiction. This Guaranty
shall be governed by, and construed in accordance with, the laws of the State of
New York without reference to its conflicts of laws provisions. Each
Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of the State of New York or any federal court sitting
therein and consents to the non-exclusive jurisdiction of such court and to
service of process in any such suit being made upon such Guarantor by mail at
the address specified in Section 11 hereof. Each Guarantor hereby
waives any objection that it may now or hereafter have to the venue of any such
suit or any such court or that such suit was brought in an inconvenient
court. Any enforcement action relating to this Guaranty may be
brought by motion for summary judgment in lieu of a complaint pursuant to
Section 3213 of the New York Civil Practice Law and Rules.
13. WAIVER OF JURY
TRIAL. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY,
THE SECURED PARTY, HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT
WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF: (A) THIS GUARANTY
OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION WITH
THE
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OBLIGATIONS;
(B) THE VALIDITY, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF; OR
(C) ANY OTHER CLAIM OR DISPUTE HOWEVER ARISING BETWEEN ANY GUARANTOR AND
THE SECURED PARTY.
14. Certain
References. All pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the person, persons, entity or
entities may require. The terms “herein”, “hereof” or “hereunder” or
similar terms used in this Guaranty refer to this entire Guaranty and not only
to the particular provision in which the term is used. Capitalized
Terms used but not defined herein shall have the meaning ascribed to such terms
in the Purchase Agreement.
15. Miscellaneous. This Guaranty,
together with the Security Agreement executed and delivered by the Guarantors as
of the date hereof to the Secured Parties (the “Security Agreement”),
constitutes the entire agreement of the Guarantors with respect to the matters
set forth herein. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of the
Obligations. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and shall not
affect the meaning of the relevant provisions. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the singular
and plural, masculine, feminine and generic forms of the
terms defined.
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IN WITNESS WHEREOF, each
Guarantor has caused this Guaranty to be executed and delivered as of the date
appearing in the introductory paragraph of this Guaranty.
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C-ACQUISITION
CORP.
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By: /s/ Xxxxxxx X.
Thomas_________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
President
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ACCUREL
SYSTEMS INTERNATIONAL CORPORATION
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By: /s/ Xxxxxxx X.
Thomas_________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
President
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IMX
ACQUISITION CORP.
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By: /s/ Xxxxxxx X.
Thomas_________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
President
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