EXHIBIT
10.5
GUARANTY
This
GUARANTY (the “Guaranty”), dated as of September
4, 2009, 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 HOLDINGS, LLC ,
a Delaware limited liability company, in its capacity as Lender
under the Credit 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 Credit
Agreement of even date herewith between the Borrower and the
Secured Party (as amended, restated, or extended from time to time,
the “ Credit Agreement ”), and that certain
Revolving Credit Promissory Note to be issued by the Borrower
pursuant to the Credit Agreement (as amended, restated, or extended
from time to time, 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 Three
Million Dollars ($3,000,000) (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 Credit
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
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