Exhibit 10.7
Execution
Copy
GUARANTY
This GUARANTY
AGREEMENT (“ Agreement ”), dated as of
June , 2008 is made by each of the
undersigned (each a “ Guarantor ”, and
collectively, the “ Guarantors ”), in favor of
YA GLOBAL INVESTMENTS, L.P. (the “ Secured
Party ”).
WHEREAS, in
connection with the Securities Purchase Agreement by and among
Isonics Corporation, a California corporation (the “
Company ”) and the Secured Party of even date herewith
(the “ Securities Purchase Agreement ”),
the Company has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue to the
Secured Party (i) an aggregate original principal amount of
$1,175,000 notes (the “ Notes ”); and
(ii) warrants (the “ Warrants ”) to be
exercisable to acquire additional shares of the Company’s
common stock (“ Common Stock ”), no par value
per share (the “ Warrants Shares ”) initially in
that number of shares of Common Stock set forth in the Securities
Purchase Agreement;
WHEREAS , each of
the Guarantors is executing and delivering a Security Agreement
dated the date hereof (the “ Security Agreement
”) granting a lien in all of the Pledged Property (as defined
in the Security Agreement) to the Secured Party;
WHEREAS, it is a
condition precedent to the Secured Party purchasing the Notes and
Warrants pursuant to the Securities Purchase Agreement that the
Guarantors shall have executed and delivered to the Secured Party
this Agreement guaranteeing all of the obligations of the Company
under the Transaction Documents (as defined in the Securities
Purchase Agreement, the “ Transaction Documents
”;
WHEREAS , each
Guarantor has determined that the execution, delivery and
performance of this Guaranty directly benefits, and is in the best
interest of, such Guarantor;
NOW, THEREFORE , in
consideration of the premises and the agreements herein and in
order to induce the Secured Party to perform under the Securities
Purchase Agreement, each Guarantor hereby agrees with the Secured
Party as follows:
SECTION 1.
Definitions . Reference is hereby made to the
Securities Purchase Agreement and the Notes issued pursuant thereto
for a statement of the terms thereof. All terms used in this
Guaranty, which are defined in the Securities Purchase Agreement or
the Notes and not otherwise defined herein, shall have the same
meanings herein as set forth therein.
SECTION 2.
Guaranty . The Guarantors, jointly and severally,
hereby unconditionally and irrevocably, guaranty the punctual
payment, as and when due and payable, by stated maturity or
otherwise, of all Obligations (as defined in the Security
Agreement) of the Company from time to time owing by it to the
Secured Party (such obligations, to the extent not paid by the
Company, being the “ Guaranteed Obligations ”),
and agrees to pay any and all expenses (including reasonable
counsel fees and expenses) reasonably incurred by the Secured Party
in enforcing any rights under this Guaranty. Without limiting
the generality of the foregoing, each Guarantor’s liability
hereunder shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Company to the
Secured Party but for the
fact that they
are unenforceable or not allowable due to the existence of an
insolvency proceeding involving any Guarantor or the Company (each,
a “ Transaction Party ”).
SECTION 3.
Guaranty Absolute; Continuing Guaranty; Assignments
.
(a)
The Guarantors, jointly and severally, guaranty that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Transaction Documents, 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. The obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against
any Guarantor to enforce such obligations, irrespective of whether
any action is brought against any Transaction Party or whether any
Transaction Party is joined in any such action or actions.
The liability of any Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each
Guarantor hereby irrevocably waives, to the extent permitted by
law, any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(i)
any lack of validity or enforceability of any Transaction Document
or any agreement or instrument relating thereto;
(ii)
any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any
Transaction Document, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of
additional credit to any Transaction Party or otherwise;
(iii)
any taking, exchange, release or non-perfection of any Pledged
Property (as defined in the Security Documents), or any taking,
release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations;
(iv)
any change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of any
Transaction Party; or
(v)
any other circumstance (including any statute of limitations) or
any existence of or reliance on any representation by the Secured
Party that might otherwise constitute a defense available to, or a
discharge of, any Transaction Party or any other guarantor or
surety.
This Guaranty shall
continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Secured Party or any other Person
upon the insolvency, bankruptcy or reorganization of any
Transaction Party or otherwise, all as though such payment had not
been made.
(b)
This Guaranty is a continuing guaranty and shall (i) remain in
full force and effect until the indefeasible cash payment in full
of the Guaranteed Obligations (other than inchoate indemnity
obligations) and (ii) be binding upon each Guarantor and its
respective successors and assigns. This Guaranty shall inure
to the benefit of and be enforceable by the Secured Party and its successors,
and permitted pledgees, transferees and assigns. Without
limiting the
generality of the foregoing sentence, the Secured Party may pledge,
assign or otherwise transfer all or any portion of its rights and
obligations under and subject to the terms of any Transaction
Document to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to
the Secured Party herein or otherwise, in each case as provided in
the Securities Purchase Agreement or such Transaction
Document.
SECTION 4.
Waivers . To the extent permitted by applicable law,
each Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that
the Secured Party exhaust any right or take any action against any
Transaction Party or any other Person or any Pledged
Property. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this
Section 4 is knowingly made in contemplation of such
benefits. The Guarantors hereby waive any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
SECTION 5.
Subrogation . No Guarantor may exercise any rights
that it may now or hereafter acquire against any Transaction Party
or any other guarantor that arise from the existence, payment,
performance or enforcement of any Guarantor’s obligations
under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy
of the Secured Party against any Transaction Party or any other
guarantor or any Pledged Property, whether or not such claim,
remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or
receive from any Transaction Party or any other guarantor, directly
or indirectly, in cash or other property or by set-off or in any
other manner, payment or security solely on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations
(other than inchoate indemnity obligations) and all other
amounts
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