SECURITY AGREEMENT
|
Exhibit
10.11
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THIS SECURITY AGREEMENT (the
“Agreement”), is entered into and made
effective as of February 6, 2008, by and between HYPERDYNAMICS CORPORATION, a
Delaware corporation with its principal place of business located in Sugar Land
Texas (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 between 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 Three Million Dollars ($3,000,000)
of senior notes (the “Notes”), which shall,
in certain instances, be convertible into shares (the “Conversion Shares”)of
the Company’s common stock, par value $0.001 per share (“Common Stock”); and
(ii) warrants (the “Warrants”) to be
exercisable to acquire additional shares of Common Stock (the “Warrants Shares”)
initially in that number of shares of Common Stock set forth in the Securities
Purchase Agreement;
WHEREAS, each of the
Guarantors 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, the Grantors shall
receive a direct benefit from the Secured Party entering into the Securities
Purchase Agreement and the Transaction Documents and purchasing the Notes and
Warrants; 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 certain personal property of each
Guarantor 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;
WHEREAS, a security interest
in personal property of the Company is not being created hereby;
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:
Signature
page to Closing Statement
VI. 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 Notes 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 Notes, 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 an Event of Default
under and as defined in the Notes.
VII. ARTICLE
2.
PLEDGED
PROPERTY
A.
Section
2.1. Grant of Security
Interest.
(a) (a) As
collateral security for all of the Obligations (as defined in Section 2.2 hereof),
each Guarantor 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 Guarantor, 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 Guarantor obtains an interest, or the power to transfer rights, and as
more particularly described on Exhibit A attached
hereto (collectively, the Pledged Property). The Pledged Property shall
specifically exclude any and all of the Grantor’s interests in SCS Corporation
and SCS Guinea SARL and nothing herein shall be deemed to encumber any assets of
either SCS Corporation or SCS Guinea SARL or any other interest, direct or
indirect, that the Company may have or acquire in connection with
Guinea.
Signature
page to Closing Statement
(b) (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.
(c) 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”):
(d) (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 Notes, 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
(e) (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 Notes.
VIII. ARTICLE
3.
ATTORNEY-IN-FACT;
PERFORMANCE
A. 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, xxx 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.
Signature
page to Closing Statement
B. 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.
IX. ARTICLE
4.
REPRESENTATIONS AND
WARRANTIES
A. 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.
B. Section
4.2.
Ownership of Pledged
Property.
The
Guarantor 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.
Signature
page to Closing Statement
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.
X. ARTICLE
5.
DEFAULT;
REMEDIES
A. 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.
Signature
page to Closing Statement
(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 Notes 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.
Signature
page to Closing Statement
(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.
B. 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.
XI. ARTICLE
6.
GRANTOR AFFIRMATIVE
COVENANTS
So long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing:
A. Section
6.1. Existence, Properties,
Etc.
(a) (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 Obligations; or (c) the
Pledged Property.
Signature
page to Closing Statement
B. Section
6.2. Financial Statements and
Reports.
Each
Grantor shall furnish to the Secured Party within a reasonable time such
financial data as the Secured Party may reasonably request.
C. Section
6.3. Accounts and
Reports.
Each
Grantor shall maintain a standard system of accounting in accordance with
generally accepted accounting principles consistently applied (“GAAP”) and
provide, at its sole expense, to the Secured Party the following:
(a) (a) as
soon as available, a copy of any notice or other communication alleging any
nonpayment or other material breach or default, or any foreclosure or other
action respecting any material portion of its assets and properties, received
respecting any of the indebtedness of the Grantor in excess of $500,000 (other
than the Obligations), or any demand or other request for payment under any
guaranty, assumption, purchase agreement or similar agreement or arrangement
respecting the indebtedness or obligations of others in excess of $500,000;
and
(b) (b) within
fifteen (15) days after the making of each submission or filing, a copy of
any report, financial statement, notice or other document, whether periodic or
otherwise, submitted to the shareholders of the Grantor, or submitted to or
filed by the Grantor with any governmental authority involving or affecting (i)
the Grantor that could reasonably be expected to have a Material Adverse Effect;
(ii) the Obligations; (iii) any part of the Pledged Property; or
(iv) any of the transactions contemplated in this Agreement or the Loan
Instruments (except, in each case, to the extent any such submission, filing,
report, financial statement, notice or other document is posted on XXXXX
Online).
D. Section
6.4. Maintenance of Books and
Records; Inspection.
Each
Grantor shall maintain its books, accounts and records in accordance with GAAP,
and permit the Secured Party, its officers and employees and any professionals
designated by the Secured Party in writing, at any time during normal business
hours and upon reasonable notice to visit and inspect any of its properties
(including but not limited to the collateral security described in the
Transaction Documents and/or the Loan Instruments), corporate books and
financial records, and to discuss its accounts, affairs and finances with any
employee, officer or director thereof (it being agreed that, unless an Event of
Default shall have occurred and be continuing, there shall be no more than two
(2) such visits and inspections in any Fiscal Year).
E. Section
6.5. Maintenance and
Insurance.
(a) (a) Each
Grantor shall maintain or cause to be maintained, at its own expense, all of its
material assets and properties in good working order and condition, ordinary
wear and tear excepted, making all necessary repairs thereto and renewals and
replacements thereof.
(b) (b) Each
Grantor shall maintain or cause to be maintained, at its own expense, insurance
in form, substance and amounts (including deductibles), which the Grantor deems
reasonably necessary to the Company’s business, (i) adequate to insure all
assets and properties of the Grantor of a character usually insured by persons
engaged in the same or similar business against loss or damage resulting from
fire or other risks included in an extended coverage policy; (ii) against
public liability and other tort claims that may be incurred by the Grantor;
(iii) as may be required by the Transaction Documents and/or applicable law
and (iv) as may be reasonably requested by Secured Party, all with financially
sound and reputable insurers.
Signature
page to Closing Statement
F. Section
6.6. Contracts and Other
Collateral.
Each
Grantor shall perform all of its obligations under or with respect to each
instrument, receivable, contract and other intangible included in the Pledged
Property to which the Grantor is now or hereafter will be party on a timely
basis and in the manner therein required, including, without limitation, this
Agreement, except to the extent the failure to so perform such obligations would
not reasonably be expected to have a Material Adverse Effect.
G. Section
6.7. Defense of Collateral,
Etc.
Each
Grantor shall defend and enforce its right, title and interest in and to any
part of: (a) the Pledged Property; and (b) if not included
within the Pledged Property, those assets and properties whose loss would
reasonably be expected to have a Material Adverse Effect, each against all
manner of claims and demands on a timely basis to the full extent permitted by
applicable law (other than any such claims and demands by holders of Permitted
Liens).
H. Section
6.8. Taxes and
Assessments.
Each
Grantor shall (a) file all material tax returns and appropriate schedules
thereto that are required to be filed under applicable law, prior to the date of
delinquency (taking into account any extensions of the original due date),
(b) pay and discharge all material taxes, assessments and governmental
charges or levies imposed upon the Grantor, upon its income and profits or upon
any properties belonging to it, prior to the date on which penalties attach
thereto, and (c) pay all material taxes, assessments and governmental
charges or levies that, if unpaid, might become a lien or charge upon any of its
properties; provided,
however, that the Grantor in good faith may contest any such tax,
assessment, governmental charge or levy described in the foregoing clauses (b)
and (c) so long as appropriate reserves are maintained with respect thereto if
and to the extent required by GAAP.
I. Section
6.9. Compliance with Law and
Other Agreements.
Each
Grantor shall maintain its business operations and property owned or used in
connection therewith in compliance with (a) all applicable federal, state
and local laws, regulations and ordinances governing such business operations
and the use and ownership of such property, and (b) all agreements,
licenses, franchises, indentures and mortgages to which the Grantor is a party
or by which the Grantor or any of its properties is bound, except where the
failure to so comply would not reasonably be expected to have a Material Adverse
Effect.
J. Section
6.10.
Notice of
Default.
The
Grantors will immediately notify the Secured Party of any event causing a
substantial loss or diminution in the value of all or any material part of the
Pledged Property and the amount or an estimate of the amount of such loss or
diminution. The Grantors shall promptly notify the Secured Party of any
condition or event which constitutes, or would constitute with the passage of
time or giving of notice or both, an Event of Default, and promptly inform the
Secured Party of any events or changes in the financial condition of any Grantor
occurring since the date of the last financial statement of such Grantor
delivered to the Secured Party, which individually or cumulatively when viewed
in light of prior financial statements, which might reasonably be expected to
have a Material Adverse Effect on the business operations or financial condition
of the Grantor.
Signature
page to Closing Statement
K. Section
6.11.
Notice of
Litigation.
Each
Grantor shall give notice, in writing, to the Secured Party of (a) any
actions, suits or proceedings wherein the amount at issue is in excess of
$250,000, instituted by any persons against the Grantor, or affecting any of the
assets of the Company, and (b) any dispute, not resolved within fifteen
(15) days of the commencement thereof, between the Grantor on the one hand and
any governmental or regulatory body on the other hand, which might reasonably be
expected to have a Material Adverse Effect on the business operations or
financial condition of the Grantor.
Section
6.12. Reserved.
Section
6.13. Future
Subsidiaries.
If any
Grantor shall hereafter create or acquire any subsidiary, simultaneously with
the creation or acquisition of such subsidiary, such Grantor shall cause such
subsidiary to become a party to this Agreement as an additional “Grantor”
hereunder, and to duly execute and deliver a guaranty of the Obligations in
favor of the Secured Party in form and substance reasonably acceptable to the
Secured Party, and to duly execute and/or deliver such opinions of counsel and
other documents, in form and substance reasonably acceptable to the Secured
Party, as the Secured Party shall reasonably request with respect
thereto.
Section
6.14. Changes to
Identity.
Each
Grantor will (a) give the Secured Party at least 30 days’ prior written notice
of any change in such Grantor’s name, identity or organizational structure, (b)
maintain its jurisdiction of incorporation, organization or formation as set
forth on its respective signature page attached hereto, (c) immediately notify
the Secured Party upon obtaining an organizational identification number, if on
the date hereof such Grantor did not have such identification
number.
Section
6.15. Establishment of Deposit
Account, Dominion Account Agreements;
Control.
As soon
as practicable, and no later than ten (10) days from the date hereof, each
Guarantor, the Secured Party, and each applicable bank or other depository
institution shall enter into a deposit account agreement (“Deposit Account
Agreement”) in the form of Exhibit B with respect to each of the
Guarantors’ Deposit Accounts, including, without limitation, all savings,
passbook, money market or other depository accounts, and all certificates of
deposit, maintained by each Company with any bank, savings and loan association,
credit union or other depository institution maintained or used by each
Guarantor providing dominion and control over such accounts to the Secured Party
such that upon notice by the Secured Party to such bank or other depository
institution of the occurrence of an Event of Default all actions under such
account shall be taken solely at the Secured Party’s direction. Each
Guarantor’s current Deposit Accounts are set forth on Schedule 6.14 attached
hereto.
Signature
page to Closing Statement
Each
Guarantor shall cause all cash, all collections and proceeds from accounts
receivable, all receipts from credit card payments, and all proceeds from the
sale of any Pledged Property to be deposited only into its Deposit Accounts in
the ordinary course of business and consistent with past practices.
With
respect to each Deposit Account, from and after the occurrence of an Event of
Default, the Secured Party shall have the right, at any time and from time to
time, to exercise its rights under such Deposit Account Agreement, including,
for the avoidance of any doubt, the exclusive right to give instructions to the
financial institution at which such Deposit Account is maintained as to the
disposition of funds or other property on deposit therein or credited
thereto. The Secured Party hereby covenants and agrees that it will
not send any such notice to a financial institution at which any such Deposit
Account is maintained directing the disposition of funds or other property
therein unless and until the occurrence of an Event of Default.
In
connection with the foregoing, each Guarantor hereby authorizes and directs each
bank or other depository institution which maintains any Deposit Account to pay
or deliver to the Secured Party upon the Secured Party’s written demand thereof
made at any time after the occurrence of an Event of Default has occurred all
balances in each Deposit Account with such depository for application to the
Obligations then outstanding.
Until the
date on which the Mortgages (as defined in the Securities Purchase Agreement)
have been filed and the Title Opinions (as defined in the Securities Purchase
Agreement) have been provided to the Secured Party, each in accordance with
Section 4(k) of the Securities Purchase Agreement, (i) each Guarantor shall have
valid and effective Deposit Account Agreements in place at all times with
respect to all of its Deposit Accounts and (ii) no Deposit Account shall be
established, used or maintained by the Company unless it first enters into a
Deposit Account Agreement.
Section
6.16 Perfection of Security
Interests.
(a) Financing
Statements. The Grantors hereby irrevocably authorize
the Secured Party, at the sole cost and expense of the Grantors, at any time and
from time to time to file in any filing office in any jurisdiction any initial
financing statements and amendments thereto that (a) indicate the Pledged
Property (i) as all assets of Guarantors or words of similar effect, regardless
of whether any particular asset comprised in the Pledged Property falls within
the scope of Article 9 of the Code of such jurisdiction, or (ii) as being of an
equal or lesser scope or with greater detail, and (b) contain any other
information required by Part 5 of Article 9 of the Code for the sufficiency or
filing office acceptance of any financing statement or amendment, including (i)
whether such Guarantor is an organization, the type of organization and any
organization identification number issued to such Guarantor, and (ii) in the
case of a financing statement filed as a fixture filing, a sufficient
description of real property to which the Pledged Property
relates. Grantors agree to furnish any such information to the
Secured Party promptly upon request. Grantors also ratify their
authorization for the Secured Party to have filed in any jurisdiction any
initial financing statements or amendments thereto if filed prior to the date
hereof. The Guarantors acknowledge that they are not authorized to file any
financing statement or amendment or termination statement with respect to any
financing statement without the prior written consent of the Secured Party and
agree that they will not do so without the prior written consent of the Secured
Party. The Grantors acknowledge and agree that this Agreement
constitutes an authenticated record.
Signature
page to Closing Statement
(b) Possession. The
Grantors (i) shall have possession of the Pledged Property, except where
expressly otherwise provided in this Agreement or where the Secured Party
chooses to perfect its security interest by possession in addition to the filing
of a financing statement; and (ii) will, where Pledged Property is in the
possession of a third party, join with the Secured Party in notifying the third
party of the Secured Party’s security interest and obtaining an acknowledgment
from the third party that it is holding the Pledged Property for the benefit of
the Secured Party.
(c) Control. In
addition to the provisions set forth in Section 6.15 above, the Grantors will
cooperate with the Secured Party in obtaining control with respect to the
Pledged Property consisting of (i) Investment Property, (ii) Letters of Credit
and Letter-of-Credit Rights and (iii) electronic Chattel Paper.
(d) Chattel
Paper. Marking of Chattel Paper. The Guarantors will not create any
Chattel Paper without placing a legend on the Chattel Paper acceptable to the
Secured Party indicating that the Secured Party has a security interest in the
Chattel Paper.
Section
6.17 Notice of Commercial Tort
Claims. If any Guarantor shall at any time acquire a Commercial Tort
Claim, such Guarantor shall immediately notify the Secured Party in a writing
signed by such Guarantor which shall (a) provide brief details of said claim and
(b) grant to the Secured Party a security interest in said claim and in the
proceeds thereof, all upon the terms of this Agreement, in such form and
substance satisfactory to the Secured Party.
XII. ARTICLE
7.
GRANTOR NEGATIVE
COVENANTS
So long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing each Grantor covenants and agrees that it
shall not:
Section
7.1. Transfers. Directly
or indirectly, offer to sell, sell, transfer, hypothecate or otherwise
encumber (“Transfer”) all or a
portion of the Pledged Property unless (i) the Pledged Property to be
Transferred consists solely of the Oil, Gas Lease, dated October 13, 2004,
between Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx and Trendsetter Production
Company and the cash due upon consummation of such Transfer (the “Cash Proceeds”) is
promptly delivered to the Secured Party and applied against the balance due on
the Notes; (ii) the Cash Proceeds are greater than or equal to the balance due
on such Notes and such Cash Proceeds are promptly delivered to the Secured Party
and applied against the balance due on the Notes; provided, however that the
Grantor is not required to deliver to the Secured Party any Cash Proceeds that
are in excess of the balance due on the Notes or (iii) the following conditions
are met:
Signature
page to Closing Statement
(a) Prior
to entering into a definitive contract to Transfer any of the Pledged Property
or a working interest therein, the Grantors shall provide a written and signed
valuation (the “Grantor Valuation”)
of the Transfer to the Secured Party. The Grantor Valuation shall be
performed by a person who by reason of education, training and experience is
able to determine the value of the Pledged Property (an “Independent
Expert”). Upon receipt of the Grantor Valuation, the Secured
Party shall have thirty (30) days to either accept or reject the Grantor
Valuation. If the Secured Party does not accept or reject the Grantor
Valuation within thirty (30) days of the receipt thereof, the Secured Party will
be deemed to have accepted the Grantor Valuation as the value of the Transfer
(the “Transfer
Value”).
(b) Within
thirty (30) days of objecting to a Grantor Valuation the Secured Party must
provide the Grantor with evidence of a different valuation (the “Secured Party
Valuation”) performed by a different Independent Expert. If
the Secured Party Valuation exceeds the Grantor Valuation by ten percent (10%)
or more, the Grantor shall pay all expenses associated with the Secured Party
Valuation. The Grantor shall cooperate with the Secured Party’s
valuation expert’s commercially reasonable requests for information about the
Pledged Property; provided,
that in no case will the Grantors be required to provide information that
is otherwise available to the public. The Transfer value shall then
be established as the average of the Grantor Valuation and the Secured Party
Valuation. If the Secured Party does not deliver the Secured Party
Valuation to the Grantor within thirty (30) days of objecting to the Grantor
Valuation, the Secured Party will be deemed to have accepted the Grantor
Valuation the Transfer Value.
(c) Once
the Transfer Value is established, the Grantor may Transfer all or a portion of
the Pledged Property provided that the Cash Proceeds are
eighty percent (80%) or more of the Transfer Value.
(a) (d) Unless
waived in writing by the Secured Party, the Grantor shall promptly deliver any
Cash Proceeds to the Secured Party and the Secured Party shall apply such Gross
Proceeds against the balance due on the Notes. The Grantor is not
required to deliver to the Secured Party any Cash Proceeds that are in excess of
the balance due on the Notes.
Section
7.2. Liens and
Encumbrances. Directly or indirectly make, create, incur,
assume or permit to exist any Lien in, to or against any part of the Pledged
Property other than Permitted Liens.
Section
7.3. Restriction on Redemption
and Cash Dividends
Directly
or indirectly, redeem, repurchase or declare or pay any cash dividend or
distribution on its capital stock without the prior express written consent of
the Secured Party.
Section
7.4. Incurrence of
Indebtedness.
Directly
or indirectly, incur or guarantee, assume or suffer to exist any indebtedness,
other than the indebtedness evidenced by the Notes and other Permitted
Indebtedness. “Permitted
Indebtedness” means: (i) indebtedness evidenced by Notes; (ii)
indebtedness described on the Disclosure Schedule to the Securities Purchase
Agreement; (iii) indebtedness incurred solely for the purpose of financing the
acquisition or lease of any equipment by the Company, including capital lease
obligations with no recourse other than to such equipment; (iv) indebtedness (A)
the repayment of which has been subordinated to the payment of the Notes on
terms and conditions acceptable to the Secured Party, including with regard to
interest payments and repayment of principal, (B) which does not mature or
otherwise require or permit redemption or repayment prior to or on the 91st day
after the maturity date of any Notes then outstanding; and (C) which is not
secured by any assets of the Company; (v) indebtedness solely between the
Grantor and/or one of its domestic subsidiaries, on the one hand, and the
Grantor and/or one of its domestic subsidiaries, on the other which indebtedness
is not secured by any assets of the Grantor or any of its subsidiaries, provided
that (x) in each case a majority of the equity of any such domestic subsidiary
is directly or indirectly owned by the Grantor, such domestic subsidiary is
controlled by the Grantor and such domestic subsidiary has executed a security
agreement in the form of this Agreement and (y) any such loan shall be evidenced
by an intercompany note that is pledged by the Grantor or its subsidiary, as
applicable, as collateral pursuant to this Agreement; (vi) reimbursement
obligations in respect of letters of credit issued for the account of the
Grantor or any of its subsidiaries for the purpose of securing performance
obligations of the Grantor or its subsidiaries incurred in the ordinary course
of business so long as the aggregate face amount of all such letters of credit
does not exceed $500,000 at any one time; and (vii) renewals, extensions and
refinancing of any indebtedness described in clauses (i) or (iii) of this
subsection.
Signature
page to Closing Statement
Section
7.5. Places of
Business.
Change
the location of its chief place of business, chief executive office or any place
of business disclosed to the Secured Party, unless such change in location is to
a different location within the United States and the Grantor provides notice to
the Secured Party of new location within 10 days’ of such change in
location.
ARTICLE
7.A
SECURED PARTY
COVENANT
Upon a
Transfer of Pledged Property in accordance with Section 7.1 hereof, the Secured
Party shall file a release of lien with respect to the Pledged Property subject
to such Transfer.
XIII. ARTICLE
8.
MISCELLANEOUS
A. Section
8.1. Notices.
All
notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be considered as duly given
on: (a) the date of delivery, if delivered in person or by
nationally recognized overnight delivery service or
(b) five (5) days after mailing if mailed from within the
continental United States by certified mail, return receipt requested to the
party entitled to receive the same:
Signature
page to Closing Statement
|
If
to the Secured Party:
|
YA
Global Investments, L.P.
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|
000
Xxxxxx Xxxxxx-Xxxxx 0000
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|
|
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
|
Attention: Xxxx
Xxxxxx
|
|
|
Portfolio Manager
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
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|
|
With
a copy to:
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Xxxxx
Xxxxxxxx, Esq.
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|
000
Xxxxxx Xxxxxx, Xxxxx 0000
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|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
If
to the Company:
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Hyperdynamics
Corporation
|
|
One
Xxxxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
|
|
|
Xxxxx
Xxxx, Xxxxx 00000
|
|
|
Attention:
Xxxx X. Xxxxx
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
With
a copy to:
|
Xxxx
Xxxxxxx, Esq.
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|
000
Xxxxx Xxxx #00
|
|
|
Xxxxxxx,
XX 00000
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|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
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|
|
If
to any other Grantor
|
To
the address listed on the respective signature pages attached
hereto
|
Any party
may change its address by giving notice to the other party stating its new
address. Commencing on the tenth (10th) day
after the giving of such notice, such newly designated address shall be such
party’s address for the purpose of all notices or other communications required
or permitted to be given pursuant to this Agreement.
B. Section
8.2. Severability.
If any
provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
C. Section
8.3. Expenses.
In the
event of an Event of Default, the Company will pay to the Secured Party the
amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel, which the Secured Party may incur
in connection with: (i) the custody or preservation of, or the
sale, collection from, or other realization upon, any of the Pledged Property;
(ii) the exercise or enforcement of any of the rights of the Secured Party
hereunder or (iii) the failure by the Grantor to perform or observe any of
the provisions hereof.
Signature
page to Closing Statement
D. Section
8.4. Waivers, Amendments,
Etc.
The
Secured Party’s delay or failure at any time or times hereafter to require
strict performance by Grantor of any undertakings, agreements or covenants shall
not waive, affect, or diminish any right of the Secured Party under this
Agreement to demand strict compliance and performance herewith. Any
waiver by the Secured Party of any Event of Default shall not waive or affect
any other Event of Default, whether such Event of Default is prior or subsequent
thereto and whether of the same or a different type. None of the
undertakings, agreements and covenants of the Grantor contained in this
Agreement, and no Event of Default, shall be deemed to have been waived by the
Secured Party, nor may this Agreement be amended, changed or modified, unless
such waiver, amendment, change or modification is evidenced by an instrument in
writing specifying such waiver, amendment, change or modification and signed by
the Secured Party in the case of any such waiver, and signed by the Secured
Party and the Grantor in the case of any such amendment, change or
modification. Further, no such document, instrument, and/or agreement
purported to be executed on behalf of the Secured Party shall be binding upon
the Secured Party unless executed by a duly authorized representative of the
Secured Party.
E. Section
8.5. Continuing Security
Interest.
This
Agreement shall create a continuing security interest in the Pledged Property
and shall: (i) remain in full force and effect so long as any of the
Obligations shall remain outstanding; (ii) be binding upon each Grantor and
its successors and assigns; and (iii) inure to the benefit of the Secured
Party and its successors and assigns. Upon the payment or
satisfaction in full of the Obligations, this Agreement and the security
interest created hereby shall terminate, and, in connection therewith, each
Grantor shall be entitled to the return, at its expense, of such of the Pledged
Property as shall not have been sold in accordance with Section 5.2 hereof
or otherwise applied pursuant to the terms hereof and the Secured Party shall
deliver to the Grantor such documents as the Grantor shall reasonably request to
evidence such termination.
F. Section
8.6.
Independent
Representation.
Each
party hereto acknowledges and agrees that it has received or has had the
opportunity to receive independent legal counsel of its own choice and that it
has been sufficiently apprised of its rights and responsibilities with regard to
the substance of this Agreement.
G. Section
8.7. Applicable
Law: Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New Jersey without regard to the principles of conflict of
laws. The parties further agree that any action between them shall be
heard in Xxxxxx County, New Jersey, and expressly consent to the jurisdiction
and venue of the Superior Court of New Jersey, sitting in Xxxxxx County and the
United States District Court for the District of New Jersey sitting in Newark,
New Jersey for the adjudication of any civil action asserted pursuant to this
Paragraph, provided, however, that nothing
herein shall prevent the Secured Party from enforcing its rights and remedies
(including, without limitation, by filing a civil action) with respect to the
Pledged Property and/or the Grantors in any other jurisdiction in which the
Pledged Property and/or the Grantors may be located.
Signature
page to Closing Statement
H. Section
8.8.
Waiver of Jury
Trial.
AS A
FURTHER INDUCEMENT FOR THE SECURED PARTY TO ENTER INTO THIS AGREEMENT AND TO
MAKE THE FINANCIAL ACCOMMODATIONS TO THE COMPANY, THE COMPANY HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS
AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS
TRANSACTION.
Section
8.9 Right of Set
Off.
The
Grantors each hereby grant to the Secured Party, a lien, security interest and
right of setoff as security for all liabilities and obligations to the Secured
Party, whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Secured Party or any of its affiliates, or any
entity under the control of the Secured Party, or in transit to any of them. At
any time, without demand or notice, the Secured Party may set off the same or
any part thereof and apply the same to any liability or obligation of the
Grantors even though unmatured and regardless of the adequacy of any other
collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE
THE SECURED PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE GRANTORS,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
I. Section
8.10 Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties and supersedes any
prior agreement or understanding among them with respect to the subject matter
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Signature
page to Closing Statement
IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
COMPANY:
|
|
|
HYPERDYNAMICS
CORPORATION
|
|
|
By:
/s/ Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
|
|
Title: President
and CEO
|
|
|
Jurisdiction
of Incorporation, Organization or Formation:
|
|
|
Organizational
ID:
|
Signature
page to Closing Statement
IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
GUARANTOR:
|
|
|
TRENDSETTER
PRODUCTION
|
|
|
By:
/s/ Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
|
|
Title: President
and CEO
|
|
|
Address
For Notices:
|
|
|
Jurisdiction
of Incorporation, Organization or Formation:
|
|
|
Organizational
ID:
|
Signature
page to Closing Statement
IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
GUARANTOR:
|
|
|
HYD
RESOURCES CORPORATION
|
|
|
By:
/s/ Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
|
|
Title: President
and CEO
|
|
|
Address
For Notices:
|
|
|
Jurisdiction
of Incorporation, Organization or Formation:
|
|
|
Organizational
ID:
|
Signature
page to Closing Statement
IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
SECURED
PARTY:
|
|
|
YA
GLOBAL INVESTMENTS, L.P.
|
|
|
By: Yorkville
Advisors, LLC
|
|
|
Its: Investment
Manager
|
|
|
By:
/s/ Xxxx Xxxxxx
|
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Portfolio
Manager
|
Signature
page to Closing Statement
EXHIBIT
A
DEFINITION OF PLEDGED
PROPERTY
For the
purpose of securing prompt and complete payment and performance by the Grantors
of all of the Obligations, the Guarantors each unconditionally and irrevocably
hereby grant to the Secured Party a continuing security interest in and to, and
lien upon, the following Pledged Property of each Guarantor (all capitalized
terms used herein shall have the respective meanings ascribed thereto in the
Code):
All
personal property of each Guarantor, 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:
1. Goods;
2. Inventory,
including, without limitation, all goods, merchandise and other personal
property now owned or hereafter acquired by the Guarantor which are held for
sale or lease, or are furnished or to be furnished under any contract of service
or are raw materials, work-in-process, supplies or materials used or consumed in
the Guarantor’s business, and all products thereof, and all substitutions,
replacements, additions or accessions therefor and thereto; and any cash or
non-cash Proceeds of all of the foregoing;
3. Equipment,
including, without limitation, all machinery, equipment, furniture, parts, tools
and dies, of every kind and description, of the Guarantor (including automotive
equipment and motor vehicles), now owned or hereafter acquired by the Guarantor,
and used or acquired for use in the business of the Guarantor, together with all
accessions thereto and all substitutions and replacements thereof and parts
therefor and all cash or non-cash Proceeds of the foregoing;
4. Fixtures,
including, without limitation, all goods which are so related to particular real
estate that an interest in them arises under real estate law and all accessions
thereto, replacements thereof and substitutions therefor, including, but not
limited to, plumbing, heating and lighting apparatus, mantels, floor coverings,
furniture, furnishings, draperies, screens, storm windows and doors, awnings,
shrubbery, plants, boilers, tanks, machinery, stoves, gas and electric ranges,
wall cabinets, appliances, furnaces, dynamos, motors, elevators and elevator
machinery, radiators, blinds and all laundry, refrigerating, gas, electric,
ventilating, air-refrigerating, air-conditioning, incinerating and sprinkling
and other fire prevention or extinguishing equipment of whatsoever kind and
nature and any replacements, accessions and additions thereto, Proceeds thereof
and substitutions therefor;
5. Instruments
(including promissory notes);
6. Documents;
7. Accounts,
including, without limitation, all Contract Rights and accounts receivable,
health-care-insurance receivables, and license fees; any other obligations or
indebtedness owed to the Guarantor from whatever source arising; all rights of
Guarantor to receive any payments in money or kind; all guarantees of Accounts
and security therefor; all cash or non-cash Proceeds of all of the foregoing;
all of the right, title and interest of Guarantor in and with respect to the
goods, services or other property which gave rise to or which secure any of the
accounts and insurance policies and proceeds relating thereto, and all of the
rights of the Guarantor as an unpaid seller of goods or services, including,
without limitation the rights of stoppage in transit, replevin, reclamation and
resale and all of the foregoing, whether now existing or hereafter created or
acquired;
Signature
page to Closing Statement
8. Contracts
and Contract Rights, including, to the extent not included in the definition of
Accounts, all rights to payment or performance under a contract not yet earned
by performance and not evidenced by an Instrument or Chattel Paper;
9. Chattel
Paper (whether tangible or electronic);
10. Deposit
Accounts (and in and to any deposits or other sums at any time credited to each
such Deposit Account);
11. Money,
cash and cash equivalents;
12. Letters
of Credit and Letter-of-Credit Rights (whether or not the Letter of Credit is
evidenced by a writing);
13. Commercial
Tort Claims;
14. Securities
Accounts, Security Entitlements, Securities, Financial Assets and all other
Investment Property, including, without limitation, all ownership or membership
interests in any subsidiaries or affiliates (whether or not controlled by the
Guarantor), excluding any and all of the Guarantor’s interests in SCS
Corporation and SCS Guinea SARL;
15. General
Intangibles, including, without limitation, all payment intangibles, tax refunds
and other claims of the Guarantor against any governmental authority, and all
choses in action, insurance proceeds, goodwill, patents, copyrights, trademarks,
tradenames, customer lists, formulae, trade secrets, licenses, permits,
franchises, designs, computer software, research and literary rights now owned
or hereafter acquired;
16. Farm
Products;
17. All
books and records (including all ledger sheets, files, computer programs, tapes
and related data processing software) evidencing an interest in or relating to
any of the foregoing;
18. To
the extent not already included above, all supporting obligations, and any and
all cash and non-cash Proceeds, products, accessions, and/or replacements of any
of the foregoing, including proceeds of insurance covering any or all of the
foregoing.
Signature
page to Closing Statement
