Exhibit 10.6
GUARANTY
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
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