Exhibit 10.4
Execution
Copy
SECURITY
AGREEMENT
THIS SECURITY
AGREEMENT (the
“ Agreement ”), is entered into and made
effective as of June 13, 2008, by and between ISONICS
CORPORATION, a California corporation with its principal place
of business located at 5906 McIntyre Street, Golden, CO 80403 (the
“ Company ”), and the undersigned subsidiaries
of the Company (each a “ Guarantor ,” and
collectively together with the Company, the “ Grantors
”), in favor YA GLOBAL INVESTMENTS, L.P. (the “
Secured Party ”).
WHEREAS,
in connection with the
Securities Purchase Agreement by and among 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 of
notes (the “ Notes ”); and (ii) warrants
(the “ Warrants ”) to be exercisable to acquire
shares of the Company’s common stock, no par value per share
(the “ Common Stock ”) initially in that number
of shares of Common Stock set forth in the Securities Purchase
Agreement;
WHEREAS , each of the Guarantors (other than
the Company) has executed and delivered a Guaranty dated the date
hereof (the “ Guaranty ”) in favor of the
Secured Party, with respect to the Company’s obligations
under the Securities Purchase Agreement, the Notes, and the
Transaction Documents (as defined below); and
WHEREAS , each of the Guarantors shall
receive a direct benefit from the Secured Party entering into the
Securities Purchase Agreement, the Notes, and the Transaction
Documents; and
WHEREAS,
it is a condition
precedent to the Secured Party purchasing the Notes and Warrants
pursuant to the Securities Purchase Agreement that the Grantors
shall have executed and delivered to the Secured Party this
Agreement providing for the grant to the Secured Party of a
security interest in all personal property of each Grantor to
secure all of the Company’s obligations under the
“Transaction Documents” (as defined in the Securities
Purchase Agreement) (the “ Transaction Documents
”) and the Guarantors’ obligations under the
Guaranty;
NOW, THEREFORE,
in consideration of the
promises and the mutual covenants herein contained, and for other
good and valuable consideration, the adequacy and receipt of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1.
DEFINITIONS AND
INTERPRETATIONS
Section 1.1.
Recitals
. The above recitals
are true and correct and are incorporated herein, in their
entirety, by this reference.
Section 1.2.
Interpretations . Nothing herein expressed or implied is
intended or shall be construed to confer upon any person other than
the Secured Party any right, remedy or claim under or by reason
hereof.
Section 1.3.
Definitions
. Reference is hereby made to
the Securities Purchase Agreement and the Convertible Debentures
for a statement of the terms thereof. All capitalized terms
used in this Agreement and the recitals hereto and not defined
herein shall have the meanings set forth in the Securities Purchase
Agreement, the Convertible Debentures, or in Articles 8 or 9 of the
Uniform Commercial Code as in effect from time to time in the State
of New Jersey (the “ Code ”).
Section 1.4.
Other
Definitions . As used in this Agreement, the
following terms shall have the respective meanings indicated below,
such meanings to be applicable equally to both the singular and
plural forms of such terms:
“ Event of Default ” shall
be deemed to have occurred under this Agreement upon the failure by
the Company to perform, observe, or comply with any of the
covenants, agreements, terms or conditions set forth herein or the
occurrance of an Event of Default under and as defined in the
Convertible Debentures.
ARTICLE 2.
PLEDGED
PROPERTY
Section 2.1.
Grant of Security
Interest .
(a)
As collateral security for
all of the Obligations (as defined in Section 2.2
hereof), each Grantor hereby pledges and assigns to the Secured
Party, and grants to the Secured Party for its benefit, a
continuing security interest in and to all personal property of
each Grantor, wherever located and whether now or hereinafter
existing and whether now owned or hereafter acquired, of every kind
and description, tangible or intangible, including without
limitation, all Goods, Inventory, Equipment, Fixtures, Instruments
(including promissory notes), Documents, Accounts (including
health-care-insurance receivables, and license fees), Contracts,
Contract Rights, Chattel Paper (whether tangible or electronic),
Deposit Accounts (and in and to any deposits or other sums at any
time credited to each such Deposit Account), Money, Letters of
Credit and Letter-of-Credit Rights (whether or not the letter of
credit is evidenced by a writing), Commercial Tort Claims,
Securities and all other Investment Property, General Intangibles
(including payment intangibles and software), Farm Products, all
books and records relating to any of the foregoing, and all
supporting obligations, and any and all proceeds and products of
any thereof, including proceeds of insurance covering any or all of
the foregoing, wherever located, whether now owned, or now due, in
which a Grantor has an interest or the power to transfer rights, or
hereafter acquired, arising, or to become due, or in which a
Grantor obtains an interest, or the power to transfer rights, and
as more particularly described on Exhibit A attached
hereto (collectively, the Pledged Property).
(b)
Simultaneously with the
execution and delivery of this Agreement, each Grantor shall make,
execute, acknowledge, file, record and deliver to the
Secured
Party such documents, instruments, and
agreements, including, without limitation, financing statements,
certificates, affidavits and forms as may, in the Secured
Party’s reasonable judgment, be necessary to effectuate,
complete or perfect, or to continue and preserve, the security
interest of the Secured Party in the Pledged Property.
Section 2.2
Security for
Obligations . The security interest created hereby in
the Pledged Property constitutes continuing collateral security for
all of the following obligations, whether now existing or
hereinafter incurred (collectively, the
“Obligations”):
(a) (i) the payment by the Company,
as and when due and payable (by scheduled maturity, acceleration,
demand or otherwise), of all amounts from time to time owing by it
in respect of the Convertible Debentures, the other Transaction
Documents, or any other amounts owing by it to the Secured Party,
whether or not now in existence or hereinafter incurred, or
(ii) in the case of any Guarantor, the payment by such
Guarantor, as and when due and payable of all “Guaranteed
Obligations” under (and as defined in) the Guaranty;
and
(b) the due performance and observance by
the each Grantor of all of its other obligations from time to time
existing in respect of any of the Transaction Documents, including
without limitation, with respect to any conversion or redemption
rights of the Secured Party under the Convertible
Debentures.
ARTICLE 3.
ATTORNEY-IN-FACT;
PERFORMANCE
Section 3.1.
Secured Party Appointed
Attorney-In-Fact .
The
Grantors hereby appoint the Secured Party as its attorney-in-fact,
with full authority in the place and stead of the Grantor and in
the name of the Grantor or otherwise, exercisable after and during
the continuance of an Event of Default, from time to time in the
Secured Party’s discretion to take any action and to execute
any instrument which the Secured Party may reasonably deem
necessary to accomplish the purposes of this Agreement, including,
without limitation, to (a) receive and collect all instruments
made payable to the Grantor representing any payments in respect of
the Pledged Property or any part thereof and to give full discharge
for the same; (b) demand, collect, receipt for, settle,
compromise, adjust, sue for, foreclose, or realize on the Pledged
Property as and when the Secured Party may determine, and
(c) to facilitate collection, the Secured Party may notify
account debtors and obligors on any Pledged Property to make
payments directly to the Secured Party. The foregoing power
of attorney is a power coupled with an interest and shall be
irrevocable until all Obligations are paid and performed in
full. The Grantors agree that the powers conferred on the
Secured Party hereunder are solely to protect the Secured
Party’s interests in the Pledged Property and shall not
impose any duty upon the Secured Party to exercise any such
powers.
Section 3.2.
Secured Party
May Perform .
If
a Grantor fails to perform any agreement contained herein, the
Secured Party, at its option, may itself perform, or cause
performance of, such agreement, and the expenses of the Secured
Party incurred in connection therewith shall be included in the
Obligations secured hereby and payable by such Grantor under
Section 8.3.
ARTICLE 4.
REPRESENTATIONS AND
WARRANTIES
Section 4.1.
Authorization;
Enforceability .
Each of the parties hereto represents and
warrants that it has taken all action necessary to authorize the
execution, delivery and performance of this Agreement and the
transactions contemplated hereby; and upon execution and delivery,
this Agreement shall constitute a valid and binding obligation of
the respective party, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting
creditors’ rights or by the principles governing the
availability of equitable remedies.
Section 4.2.
Ownership of Pledged
Property .
Each Grantor represents and warrants that it is
the legal and beneficial owner of the Pledged Property free and
clear of any lien, security interest, option or other charge or
encumbrance (each, a “Lien”) except for the security
interest created by this Agreement and other Permitted Liens.
For purposes of this Agreement, “Permitted Liens”
means: (1) the security interest created by this Agreement,
(2) existing Liens which have been disclosed by the Company to
the Secured Party on Schedule 4.2 attached hereto;
(3) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due, as to which the grace period, if
any, related thereto has not yet expired, or being contested in
good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP;
(4) Liens of carriers, materialmen, warehousemen, mechanics
and landlords and other similar Liens which secure amounts which
are not yet overdue or which are being contested in good faith by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP; (5) licenses,
sublicenses, leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the
Company; (6) Liens securing capitalized lease obligations and
purchase money indebtedness incurred solely for the purpose of
financing an acquisition or lease; (7) easements,
rights-of-way, restrictions, encroachments, municipal zoning
ordinances and other similar charges or encumbrances, and minor
title deficiencies, in each case not securing debt and not
materially interfering with the conduct of the business of the
Company and not materially detracting from the value of the
property subject thereto; (8) Liens arising out of the
existence of judgments or awards which judgments or awards do not
constitute an Event of Default; (9) Liens incurred in the
ordinary course of business in connection with workers compensation
claims, unemployment insurance, pension liabilities and social
security benefits and Liens securing the performance of bids,
tenders, leases and contracts in the ordinary course of business,
statutory obligations, surety bonds, performance bonds and other
obligations of
a
like nature (other than appeal bonds) incurred in the ordinary
course of business (exclusive of obligations in respect of the
payment for borrowed money); (10) Liens in favor of a banking
institution arising by operation of law encumbering deposits
(including the right of set-off) and contractual set-off rights
held by such banking institution and which are within the general
parameters customary in the banking industry and only burdening
deposit accounts or other funds maintained with a creditor
depository institution; (11) usual and customary set-off rights in
leases and other contracts; and (12) escrows in connection with
acquisitions and dispositions.
Section 4.3
Location of Pledged
Property .
The
Pledged Property is or will be kept at the address(es) of each
Grantor set forth on the signature pages hereof, or such other
locations as the Grantors have given the Secured Party written
notice prior to the date hereof, and, unless otherwise provided
herein, the Grantors will not remove any Pledged Property from such
locations without the prior written consent of the Secured Party
which consent shall not be unreasonably withheld.
Section 4.4
Location, State of
Incorporation and Name of Grantors .
Each Grantor’s principal place of
business, state of organization, organization identification
number, and exact legal name is as set forth on each such
Grantor’s signature page to this Agreement.
Section 4.5
Priority of Security
Interest .
The
security interest granted to the Secured Party hereunder shall be a
first priority security interest subject to no other Liens.
Except for the Permitted Liens, no financing statement covering any
of the Pledged Property or any proceeds thereof is on file in any
public office.
ARTICLE 5.
DEFAULT;
REMEDIES
Section 5.1
Method of Realizing
Upon the Pledged Property: Other Remedies .
If
any Event of Default shall have occurred and be
continuing:
(a)
The Secured Party may
exercise in respect of the Pledged Property, in addition to any
other rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a secured party
upon default under the Code (whether or not the Code applies to the
affected Pledged Property), and also may (i) take absolute
control of the Pledged Property, including, without limitation,
transfer into the Secured Party’s name or into the name of
its nominee or nominees (to the extent the Secured Party has not
theretofore done so) and thereafter receive, for the benefit of the
Secured Party, all payments made thereon, give all consents,
waivers and ratifications in respect thereof and otherwise act with
respect thereto as though it were the outright owner
thereof,
(ii) require each Grantor to assemble all
or part of the Pledged Property as directed by the Secured Party
and make it available to the Secured Party at a place or places to
be designated by the Secured Party that is reasonably convenient to
both parties, and the Secured Party may enter into and occupy any
premises owned or leased by a Grantor where the Pledged Property or
any part thereof is located or assembled for a reasonable period in
order to effectuate the Secured Party’s rights and remedies
hereunder or under law, without obligation to the Grantor in
respect of such occupation, and (iii) without notice except as
specified below and without any obligation to prepare or process
the Pledged Property for sale, (A) sell the Pledged Property
or any part thereof in one or more parcels at public or private
sale, at any of the Secured Party’s offices or elsewhere, for
cash, on credit or for future delivery, and at such price or prices
and upon such other terms as the Secured Party may deem
commercially reasonable and/or (B) lease, license or dispose
of the Pledged Property or any part thereof upon such terms as the
Secured Party may deem commercially reasonable. Each Grantor
agrees that, to the extent notice of sale or any other disposition
of the Pledged Property shall be required by law, at least ten
(10) days’ notice to the Grantor of the time and place
of any public sale or the time after which any private sale or
other disposition of the Pledged Property is to be made shall
constitute reasonable notification. The Secured Party shall
not be obligated to make any sale or other disposition of any
Pledged Property regardless of notice of sale having been
given. The Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned. Each Grantor
hereby waives any claims against the Secured Party arising by
reason of the fact that the price at which the Pledged Property may
have been sold at a private sale was less than the price which
might have been obtained at a public sale or was less than the
aggregate amount of the Obligations, even if the Secured Party
accepts the first offer received and does not offer such Pledged
Property to more than one offeree, and waives all rights that the
Grantor may have to require that all or any part of such Pledged
Property be marshaled upon any sale (public or private)
thereof. Each Grantor hereby acknowledges that (i) any
such sale of the Pledged Property by the Secured Party may be made
without warranty, (ii) the Secured Party may specifically
disclaim any warranties of title, possession, quiet enjoyment or
the like, and (iii) such actions set forth in
clauses (i) and (ii) above shall not adversely
affect the commercial reasonableness of any such sale of Pledged
Property.
(b)
Any cash held by the
Secured Party as Pledged Property and all cash proceeds received by
the Secured Party in respect of any sale of or collection from, or
other realization upon, all or any part of the Pledged Property
shall be applied (after payment of any amounts payable to the
Secured Party pursuant to Section 8.3 hereof) by the Secured
Party against, all or any part of the Obligations in such order as
the Secured Party shall elect, consistent with the provisions of
the Securities Purchase Agreement. Any surplus of such cash
or cash proceeds held by the Secured Party and remaining after the
indefeasible payment in full in cash of all of the Obligations
shall be paid over to whomsoever shall be lawfully entitled to
receive the same or as a court of competent jurisdiction shall
direct.
(c)
In the event that the
proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Secured Party is
legally entitled, each
Grantor shall be liable for the deficiency,
together with interest thereon at the rate specified in the
Convertible Debentures for interest on overdue principal thereof or
such other rate as shall be fixed by applicable law, together with
the costs of collection and the reasonable fees, costs, expenses
and other client charges of any attorneys employed by the Secured
Party to collect such deficiency.
(d)
Each Grantor hereby
acknowledges that if the Secured Party complies with any applicable
state, provincial, or federal law requirements in connection with a
disposition of the Pledged Property, such compliance will not
adversely affect the commercial reasonableness of any sale or other
disposition of the Pledged Property.
(e)
The Secured Party shall
not be required to marshal any present or future collateral
security (including, but not limited to, this Agreement and the
Pledged Property) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security
or other assurances of payment in any particular order, and all of
the Secured Party’s rights hereunder and in respect of such
collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or
arising. To the extent that the Grantor lawfully may, each
Grantor hereby agrees that it will not invoke any law relating to
the marshaling of collateral which might cause delay in or impede
the enforcement of the Secured Party’s rights under this
Agreement 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.
Section 5.2
Duties Regarding
Pledged Property .
The
Secured Party shall have no duty as to the collection or protection
of the Pledged Property or any income thereon or as to the
preservation of any rights pertaining thereto, beyond the safe
custody and reasonable care of any of the Pledged Property actually
in the Secured Party’s possession.
ARTICLE 6.
AFFIRMATIVE
COVENANTS
So
long as any of the Obligations shall remain outstanding, unless the
Secured Party shall otherwise consent in writing:
Section 6.1.
Existence, Properties,
Etc.
(a)
Each Grantor shall do, or
cause to be done, all things, or proceed with due diligence with
any actions or courses of action, that may be reasonably necessary
(i) to maintain Grantor’s due organization, valid
existence and good standing under the laws of its state of
incorporation, and (ii) to preserve and keep in full force and
effect all qualifications, licenses and registrations in those
jurisdictions in which the failure to do so could have a Material
Adverse Effect (as defined below); and (b) each Grantor shall
not do, or cause to be done, any act impairing the Grantor’s
corporate
power or authority (i) to carry on the
Grantor’s business as now conducted, and (ii) to execute
or deliver this Agreement or any other document delivered in
connection herewith, including, without limitation, any UCC-1
Financing Statements required by the Secured Party (which
other loan instruments collectively shall be referred to as the
“ Loan Instruments ”) to which it is or
will be a party, or perform any of its obligations hereunder or
thereunder. For purpose of this Agreement, the term “
Material Adverse Effect ” shall mean any material and
adverse affect as determined by Secured Party in its reasonable
discretion, whether individually or in the aggregate, upon
(a) the Grantor’s assets, business, operations,
properties or condition, financial or otherwise; (b) the
Grantor’s ability to make payment as and when due of all or
any part of the Obligat
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