EXHIBIT 4.7
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of October 19, 2004, is made by NORD
RESOURCES CORPORATION, a Delaware corporation ("NRC" together with each other
Person who becomes a party to this Agreement by execution of a joinder in the
form of Exhibit A attached hereto, are referred to herein individually as a
"GRANTOR" and, collectively, as "GRANTORS") in favor of Regiment Capital III,
L.P., a Delaware limited partnership ("LENDER").
WITNESSETH:
WHEREAS, Lender has agreed to make a loan in the aggregate principal
amount of $2,750,000 (as amended, supplemented, refinanced, renewed, refunded or
otherwise modified from time to time, the "LOAN") to NRC represented by that
certain promissory note, dated the date hereof, a copy of which is attached
hereto as Exhibit B (as amended, supplemented or otherwise modified from time to
time, the "NOTE"), pursuant to which Nord has agreed, among other things, to
make the full and punctual payment and performance when due of the obligations
and liabilities of NRC, whether direct or indirect, absolute or contingent, due
or to become due, or existing now or prior to the date hereof or hereafter
incurred, which may arise under, out of, or in connection the Note and any other
agreements relating to the Loan (collectively, the "OBLIGATIONS"); and
WHEREAS, it is a condition precedent to the obligation of Lender to
make the Loan that the Grantors shall have granted the security interests
contemplated by this Agreement in order to secure the payment and performance of
the Obligations;
NOW, THEREFORE, in consideration of the foregoing, and in order to
induce Lender to make the Loan and other financial accommodations available to
the Grantors under the Note, each Grantor hereby agrees with Lender as follows:
SECTION 1. Definitions
1.1 The following terms, as used herein, have the meanings set forth
below:
"AFFILIATE" of a Person means any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with such person.
"AGREEMENT" means this Security Agreement, as the same may be amended,
restated, modified or supplemented and in effect from time to time in accordance
with the terms hereof.
"CODE" has the meaning assigned to that term in Section 1.2 hereof.
"COLLATERAL" has the meaning assigned to that term in Section 2.
"COPYRIGHT SECURITY AGREEMENT" means, if any, each Copyright Security
Agreement executed and delivered by each Grantor to Lender, as the same may be
amended and in effect from time to time.
"COPYRIGHTS" means any copyrights, copyright registrations and
copyright applications, and all renewals, extensions and continuations of any of
the foregoing.
"DEPOSITORY ACCOUNT" has the meaning assigned to that term in Section
4.12 hereof.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" has the meaning assigned to that
term in Section 4.12 hereof.
"FEDERAL REGISTRATION COLLATERAL" means Collateral with respect to
which Liens may be registered, recorded or filed under, or notice thereof given
under, any federal statute or regulation.
"GOVERNMENTAL AUTHORITY" means any national or federal government, any
state, regional, local or other political subdivision thereof with jurisdiction
and any Person with jurisdiction exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"INTELLECTUAL PROPERTY" means, collectively, all Copyrights, Patents
and Trademarks.
"LOAN DOCUMENTS" means the Note, this Agreement, the Pledge and
Security Agreement and any other documents, instruments or agreements of
Grantors, referred to or contemplated herein or therein, as any of the forgoing
may be from time to time amended and in effect.
"ORGANIZATIONAL DOCUMENTS" means with respect to any Person, such
Person's certificate of incorporation, articles of incorporation, partnership
agreement, certificate of limited partnership, operating agreement, or other
organization documents, as the case may be.
"PATENT SECURITY AGREEMENT" means, if any, each Patent Security
Agreement executed and delivered by each Grantor to Lender, as the same may be
amended and in effect from time to time.
"PATENTS" means any patents, patent registrations and patent
applications and all renewals, extensions and continuations of any of the
foregoing.
"PERFECTION CERTIFICATE" means the Perfection Certificate of NRC
attached hereto as Exhibit C which contains material information with respect to
Grantors, their respective business and assets provided by or on behalf of NRC
to Lender in connection with the preparation of this Agreement and the other
Loan Documents.
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"PERSON" shall mean any individual, corporation, partnership, limited
liability company, trust, unincorporated association, business, or other legal
entity, and any government or any Governmental Authority.
"PLEDGE AND SECURITY AGREEMENT" means that certain Pledge and Security
Agreement, dated as of the date hereof, executed by NRC in favor of Lender, as
such agreement may be amended, supplemented or otherwise modified from time to
time.
"SECURITY INTERESTS" means the security interests granted or provided
for pursuant to Section 2 hereof and pursuant to any Copyright Security
Agreements, Patent Security Agreements and Trademark Security Agreements, as
well as all other security interests created, assigned or provided as additional
security for the Obligations pursuant to the provisions of this Agreement or any
of the other Loan Documents.
"TRADEMARK SECURITY AGREEMENT" means, if any, each Trademark Security
Agreement executed and delivered by each Grantor to Lender, as the same may be
amended and in effect from time to time.
"TRADEMARKS" means any trademarks, trademark registrations, and
trademark applications, all renewals, extensions and continuations of any of the
foregoing and all goodwill attributable to any of the foregoing.
1.2 Other Definition Provisions. References to "Sections" shall be to
Sections of this Agreement unless otherwise specifically provided. For purposes
hereof, "including" is not limiting and "or" is not exclusive. Except as
provided by the immediately following sentence, capitalized terms used herein
and not otherwise defined herein shall have the respective meanings provided for
in the Note. Terms not defined herein or in the Note shall have the meanings
ascribed to them, if any, under the Uniform Commercial Code of the Commonwealth
of Massachusetts, as the same may be amended from time to time during the term
hereof, or any successor legislation thereto (the "CODE"). Any of the terms
defined in Section 1.1 may, unless the context otherwise requires, be used in
the singular or the plural depending on the reference and all references to the
gender herein shall be non-exclusive. All references to statutes and related
regulations shall include any amendments of same and any successor statutes and
regulations.
SECTION 2. Grant of Security Interests.
To secure the payment and performance of the Obligations, each Grantor
hereby grants to Lender, a lien on, security interest in and right of set-off
against any and all right, title and interest in and to any and all property and
interests in property of such Grantor, whether now owned or existing or
hereafter created, acquired or arising, including all of the following
properties and interests in properties, whether now owned or hereafter created,
acquired or arising (all being collectively referred to herein as the
"COLLATERAL"):
(a) Accounts;
(b) As-Extracted Collateral;
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(c) Chattel Paper;
(d) Commercial Tort Claims, including those Commercial Tort Claims in
which such Grantor has any interest specified on the Perfection Certificate;
(e) Deposit Accounts, all cash, and other property deposited therein
or otherwise credited thereto from time to time and other monies and property in
the possession or under the control of Lender or any Affiliate, representative,
agent or correspondent of Lender;
(f) Documents;
(g) General Intangibles, including any and all Intellectual Property;
(h) Goods, including any and all Inventory, any and all Equipment and
any and all Fixtures;
(i) Instruments;
(j) Investment Property;
(k) Letter-of-Credit Rights;
(l) Securities Accounts;
(m) Supporting Obligations;
(n) any and all other personal property and interests in property
whether or not subject to the Code;
(o) any and all books and records, in whatever form or medium, that at
any time evidence or contain information relating to any of the foregoing
properties or interests in properties or are otherwise necessary or helpful in
the collection thereof or realization thereon;
(p) all Accessions and additions to, and substitutions and
replacements of, any and all of the foregoing; and
(q) all Proceeds and products of the foregoing, and all insurance
pertaining to the foregoing and proceeds thereof.
SECTION 3. Representations and Warranties.
Each Grantor represents and warrants to Lender as follows:
3.1 Binding Obligation; Perfection. This Agreement constitutes a valid
and binding obligation of each Grantor, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
or similar laws relating to the enforcement of creditors' rights generally and
by general equitable principles. Lender has a valid and perfected first priority
security interest in the Collateral, securing the payment of the Obligations,
and such Security Interests are entitled to all of the rights, priorities and
benefits
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afforded by the Code or other applicable law as enacted in any relevant
jurisdiction which relates to perfected security interests.
3.2 Organizational Information. The Perfection Certificate sets forth
(i) the full, correct and current name of each Grantor, as its appears in such
Grantor's Organizational Documents, (ii) any names of each Grantor other than
such Grantor's current name, as set forth on such Grantor's Organizational
Documents during the five (5) year period preceding the date hereof, (iii) each
Grantor's type of organization, (iv) each Grantor's jurisdiction of organization
and (v) each Grantor's organizational identification number (except where such
Grantor's jurisdiction of organization does not assign organizational numbers).
3.3 Collateral Locations. As of the date hereof, the Perfection
Certificate (i) sets forth all addresses at which any Collateral is located,
indicating for each whether such location is owned or leased by each Grantor, or
owned or operated by a third-party such as a warehouseman, consignee or
processor, (ii) indicates which of the foregoing addresses serves as each
Grantor's chief executive office and (iii) sets forth the legal description of
all real properties maintained by each Grantor, leased or owned, on which any
Fixtures are located, together with the name and address of the record owner of
each such property.
3.4 Existing Liens. Except for Permitted Liens, each Grantor owns the
Collateral, and will own all after-acquired Collateral, free and clear of any
Lien. No effective financing statement or other form of lien notice covering all
or any part of the Collateral is on file in any recording office, except for
those (i) in favor of Lender or (ii) disclosed on the Lien Schedule to the
Perfection Certificate.
3.5 Governmental Authorizations; Consents; Federal Registration
Collateral. No authorization, approval or other action by, and no notice to or
filing with, any domestic or foreign governmental authority or regulatory body
or consent of any other Person is required for (i) the grant by any Grantor of
the Security Interests granted hereby or for the execution, delivery or
performance of this Agreement by any Grantor; or (ii) the exercise by Lender of
its rights and remedies hereunder (except as may have been accomplished by or at
the direction of a Grantor or Lender). Except as set forth on the Perfection
Certificate, as of the date hereof, none of the Collateral is Federal
Registration Collateral. Except for (a) the filing of Code financing statements
with the Secretary of State of each Grantor's jurisdiction of organization, (b)
the filing of any necessary registrations, recordations or notices, as
applicable, in respect of any Federal Registration Collateral, and (c) execution
and delivery of Deposit Account Control Agreements in respect of Deposit
Accounts, no authorization, approval or other action by, and no notice to or
filing with, any domestic or foreign governmental authority or regulatory body
or consent of any other Person is required for the perfection of the Security
Interests granted hereby and pursuant to any other Loan Documents.
3.6 Accounts. Each existing Account constitutes, and each hereafter
arising Account will constitute, the legally valid and binding obligation of the
applicable Account Debtor. The amount represented by each Grantor to Lender as
owing by each Account Debtor as of the date hereof, and the amount set forth on
any invoice pertaining to any Account, is, or will be, the correct amount
actually and unconditionally owing, except for normal cash discounts and
allowances where applicable or de minimis deviations or rounding adjustments not
materially
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affecting the value of any such Account. No Account Debtor has, or will have,
any defense, set-off, claim or counterclaim against any Grantor that can be
asserted against Lender, whether in any proceeding to enforce Lender's rights in
the Collateral or otherwise except defenses, setoffs, claims or counterclaims
that are not, in the aggregate, material to the value of the Accounts. None of
the Accounts are, nor will any hereafter-arising Account be, evidenced by a
promissory note or other Instrument other than a check or any writing (other
than a promissory note or Instrument) maintained by the Grantor in its ordinary
course of business to evidence an open Account.
3.7 Inventory. All Inventory is, and will be, of good and merchantable
quality, free from any material defects. Such Inventory is not, and will not be,
subject to any licensing, patent, trademark, trade name or copyright agreement
with any Person that restricts any Grantor's or Lender's ability to manufacture
and/or sell the Inventory. The completion and manufacturing process of such
Inventory by a Person other than such Grantor would be permitted under any
contract to which such Grantor is a party or to which the Inventory is subject.
No Grantor sells any Inventory to any customer on approval or on any other basis
that entitles the customer to return, or which may obligate such Grantor to
repurchase, such Inventory. No Grantor has any Inventory that has been, or will
be, produced in violation of any provision of the Fair Labor Standards Act of
1938, or in violation of any other law.
3.8 Intellectual Property. As of the date hereof, the Copyrights,
Patents and Trademarks listed on the respective schedules to each of the
Copyright Security Agreement, Patent Security Agreement and Trademark Security
Agreement constitute all of the federally registered Intellectual Property owned
by each Grantor. All Intellectual Property owned by each Grantor is valid,
subsisting and enforceable and all filings necessary to maintain the
effectiveness of such registrations have been made. Each Grantor is the sole and
exclusive owner of the entire and unencumbered right, title and interest in and
to all Intellectual Property purported to be owned by such Grantor, free and
clear of any Liens, including without limitation licenses and covenants by such
Grantor not to xxx third persons. No Grantor has any notice of any suits or
actions commenced or threatened with reference to any Intellectual Property. The
execution, delivery and performance of this Agreement by each Grantor will not
violate or cause a default under any Intellectual Property or any agreement in
connection therewith.
3.9 Certain Collateral Disclosures. Except in each case as set forth
on the Perfection Certificate, as of the date hereof, no Grantor has any
ownership interest in any Chattel Paper, Letter-of-Credit Rights, Commercial
Tort Claims, Documents, or Equipment covered by any certificate of title.
3.10 Control Arrangements. Except for Control arising by operation of
law in favor of banks and securities intermediaries having custody over Deposit
Accounts and Securities Accounts set forth on the Perfection Certificate, no
Person has Control of any Deposit Accounts, Electronic Chattel Paper, Investment
Property or Letter-of-Credit Rights in which any Grantor has any interest.
3.11 Accurate Information. All information heretofore, herein or
hereafter supplied to Lender by or on behalf of any Grantor with respect to the
Collateral is and will be accurate and complete in all material respects.
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3.12 Survival of Representations and Warranties. All representations
and warranties of the Grantors contained in this Agreement are made as of the
date of this Agreement (except for those representations or warranties that
relate specifically to a future time period, if any), and shall survive the
execution and delivery of this Agreement.
SECTION 4. Covenants and Further Assurances. Without the Lender's prior written
consent in advance, which consent the Lender may grant or not grant in its sole
discretion, no Grantor shall undertake, or fail to undertake, as the case may
be, any of the following:
4.1 Name or Entity Changes. No Grantor shall change its name, type of
organization or jurisdiction of organization.
4.2 Accounts. Except as otherwise provided in this Section 4.2, each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor with respect to Accounts and apply such amounts as
are so collected to the outstanding balances thereof. In connection with such
collections, each Grantor may take (and, at Lender's direction during the
continuance of any Default, shall take) such action as such Grantor or Lender
may deem necessary or advisable to enforce collection of the Accounts. Lender
shall have the right at any time after the occurrence and during the continuance
of a Default to: (i) notify the Account Debtor under any Accounts (or any other
Person obligated thereon) of the Lien granted upon such Accounts in favor of
Lender and to direct such Account Debtors and other Persons to make payment of
all amounts due or to become due or otherwise render performance directly to
Lender or its designee; (ii) exercise the rights of each Grantor with respect to
the obligation of the Account Debtor to make payment or otherwise render
performance to such Grantor and with respect to any property that secures the
obligations of the Account Debtor or any other Person obligated on the
Collateral; and (iii) adjust, settle or compromise the amount or payment of such
Accounts. After the occurrence and during the continuance of a Default all
amounts and Proceeds received by each Grantor with respect to the Accounts shall
be received in trust for the benefit of Lender, shall be segregated from other
funds of such Grantor and shall be forthwith paid over to Lender in the same
form as so received (with any necessary endorsement) to be held in any
Depository Account pursuant to Section 4.12 or applied to the payment of the
Note. No Grantor shall adjust, settle or compromise the amount or payment of any
Account, or release wholly or partly any Account Debtor, or allow any credit or
discount thereon (other than credits, adjustments and discounts in the ordinary
course of business and in amounts which are not material to such Grantor)
without the prior consent of Lender.
4.3 Intellectual Property.
(a) Each Grantor shall concurrently herewith deliver to Lender each
Copyright Security Agreement, Patent Security Agreement and Trademark Security
Agreement and all other documents, instruments and other items as may be
necessary for Lender to file such agreements with the U.S. Copyright Office and
the U.S. Patent and Trademark Office, as applicable.
(b) In the event a Grantor acquires or becomes entitled to any new or
additional Federal Registration Collateral consisting of Intellectual Property,
or rights thereto, such Grantor shall give to Lender prompt written notice
thereof, and shall amend (and hereby so
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authorizes Lender to amend) the schedules to the respective security agreements
or enter into new or additional security agreements to include any such new or
additional Intellectual Property.
(c) Each Grantor shall: (i) diligently prosecute any Intellectual
Property application at any time pending; (ii) make application for registration
or issuance of all new or additional Intellectual Property as reasonably deemed
appropriate by such Grantor; (iii) preserve and maintain all rights in the
Intellectual Property; and (iv) use commercially reasonable efforts to obtain
any consents, waivers or agreements necessary to enable Lender to exercise its
remedies with respect any and all Intellectual Property.
(d) No Grantor shall abandon any material right to file an
Intellectual Property application nor shall any Grantor abandon any material
pending Intellectual Property application or registered Intellectual Property.
(e) No Grantor shall sell or assign its interest in, or grant any
license under, any Intellectual Property or enter into any other agreement with
respect to any Intellectual Property, and each Grantor further agrees that it
shall not take any action or permit any action to be taken by others subject to
its control, including licensees, or fail to take any action which would affect
the validity or enforcement of the rights granted to Lender under this
Agreement; provided, however, that any Grantor shall have the right at any time
to license or permit the use of any Intellectual Property to any subsidiary or
parent company of such Grantor, subject to Lender having a valid, perfected
first priority security interest with respect to any and all property and
interests in property of such subsidiary or parent.
(f) Each Grantor agrees (i) to maintain the quality of any and all
products in connection with which the Trademarks are used, consistent with
commercially reasonable business practices, and (ii) to provide Lender, upon
Lender's request from time to time, with a certificate of an officer of such
Grantor certifying such Grantor's compliance with the foregoing. Upon the
occurrence of a Default, each Grantor agrees that Lender, or a conservator
appointed by Lender, shall have the right to establish such additional product
quality controls as Lender, or said conservator, in its reasonable judgment, may
deem necessary to assure maintenance of the quality of products sold by such
Grantor under the Trademarks.
(g) Each Grantor hereby assigns, transfers and conveys to Lender all
Intellectual Property owned or used by such Grantor to the extent necessary to
enable Lender, effective upon the occurrence of any Default, to realize on the
Collateral and any successor or assign to enjoy the benefits of the Collateral.
This right and assignment shall inure to the benefit of Lender and its
successors, assigns and transferees, whether by voluntary conveyance, operation
of law, assignment, transfer, foreclosure, deed in lieu of foreclosure or
otherwise. Such right and assignment is granted free of charge, without
requirement that any monetary payment whatsoever including, without limitation,
any royalty or license fee, be made to any Grantor or any other Person by Lender
or any other Person.
4.4 Bailees. Other than for the repair or maintenance of Equipment of
a Grantor in the ordinary course of its business, but in no event to exceed
$25,000 at any one time for any Grantor, no Collateral shall at any time be in
the possession or control of any warehouse,
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consignee, bailee or any Grantor's agents or processors without prior written
notice to Lender and the receipt by Lender, if Lender has so requested, of
warehouse receipts or bailee lien waivers (as applicable) satisfactory to Lender
prior to the commencement of such possession or control. Each Grantor shall,
upon the request of Lender, notify any such warehouse, consignee, bailee, agent
or processor of the Security Interests, shall instruct such Person to hold all
such Collateral for Lender's account subject to Lender's instructions and shall
obtain an acknowledgement from such Person that such Person holds the Collateral
for Lender's benefit.
4.5 Chattel Paper and Instruments. Each Grantor shall deliver to
Lender all Tangible Chattel Paper and all Instruments duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance reasonably satisfactory to Lender. Each Grantor shall provide
Lender with Control of all Electronic Chattel Paper by having Lender identified
as the assignee of the Records pertaining to the single authoritative copy
thereof and otherwise complying with the applicable elements of Control set
forth in the Code. Each Grantor also shall deliver to Lender all security
agreements securing any Chattel Paper and securing any Instruments. Each Grantor
will xxxx conspicuously all Chattel Paper and all Instruments with a legend, in
form and substance reasonably satisfactory to Lender, indicating that such
Chattel Paper and such Instruments are subject to the Security Interests.
4.6 Letters of Credit. Each Grantor shall deliver to Lender all
Letters of Credit duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance reasonably satisfactory to
Lender. Each Grantor also shall deliver to Lender all security agreements
securing any Letters of Credit. Each Grantor shall take any and all actions as
may be necessary or desirable, or that Lender may reasonably request, from time
to time, to cause Lender to obtain exclusive Control of any Letter-of-Credit
Rights owned by such Grantor in a manner acceptable to Lender.
4.7 Equipment. Each Grantor shall cause all Equipment to be maintained
and preserved in the same condition, repair and in working order as when new,
ordinary wear and tear excepted, and shall promptly make or cause to be made all
repairs, replacements and other improvements in connection therewith that are
necessary or desirable to such end. Upon request of Lender, each Grantor shall
promptly deliver to Lender any and all certificates of title, applications for
title or similar evidence of ownership of all Equipment and shall cause Lender
to be named as lienholder on any such certificate of title or other evidence of
ownership. Each Grantor shall promptly inform Lender of any deletions from the
Equipment and shall not permit any such items to become Fixtures to real estate
other than real estate subject to mortgages or deeds of trust in favor of
Lender.
4.8 Investment Property. Each Grantor shall take any and all actions
as may be necessary or desirable, or that Lender may request from time to time,
to (i) cause Lender to obtain exclusive Control of any Investment Property owned
by such Grantor in a manner acceptable to Lender and (ii) obtain from any
issuers of Investment Property and such other Persons, for the benefit of
Lender, written confirmation of Lender's Control over such Investment Property
upon terms and conditions acceptable to Lender.
4.9 General Intangibles. Each Grantor shall use commercially
reasonable efforts to obtain any consents, waivers or agreements necessary to
enable Lender to exercise
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remedies hereunder and under the other Loan Documents with respect to any of
such Grantor's rights under any General Intangibles, including such Grantor's
rights as a licensee of Software.
4.10 Commercial Tort Claims. Each Grantor shall promptly advise Lender
upon such Grantor becoming aware that it has any interest in Commercial Tort
Claims. With respect to any Commercial Tort Claim in which any Grantor has any
interest, such Grantor shall execute and deliver such documents as may be
necessary or desirable, or that Lender may request, to create, perfect and
protect Lender's security interest in such Commercial Tort Claim.
4.11 Taxes and Claims. Each Grantor shall pay when due all property
and other taxes, assessments and governmental charges imposed upon, and all
claims against, the Collateral (including claims for labor, materials and
supplies); provided that no such tax, assessment or charge need be paid to the
extent the same is contested in good faith and by appropriate proceedings
promptly instituted and diligently conducted and the same may be contested
without risk of loss or forfeiture or material impairment of the Collateral or
the use thereof.
4.12 Bank Accounts; Collection of Accounts and Payments. Upon request
by Lender, each Grantor agrees to enter into a deposit account control agreement
("DEPOSIT ACCOUNT CONTROL AGREEMENT"), in a form specified by Lender, with each
financial institution with which such Grantor maintains from time to time any
Deposit Account. No Grantor shall establish any Deposit Account with any
financial institution unless prior thereto Lender and such Grantor shall have
entered into a Deposit Account and Control Agreement with such financial
institution, or unless Lender shall have waived such requirement. Each Deposit
Account Control Agreement shall provide, among other things, that the financial
institution maintaining the Deposit Account will waive certain rights of setoff
and will, from and after receipt by such financial institution of written notice
from Lender that a Default has occurred and is continuing, transfer all amounts
held by such financial institution on behalf of such Grantor, as Lender may
direct.
Upon request by Lender, each Grantor agrees to establish lock-box and
blocked accounts (collectively, "BLOCKED ACCOUNTS") in such Grantor's name with
such banks as are acceptable to Lender ("COLLECTING BANKS"), subject to
irrevocable instructions in a form specified by Lender, to which Account Debtors
shall directly remit all payments on Accounts and in which such Grantor will
immediately deposit all cash payments for Inventory or other cash payments
constituting proceeds of Collateral in the identical form in which such payment
was made, whether by cash or check. In addition, Lender may establish one or
more depository accounts at each Collecting Bank or at a centrally located bank
in the name of Lender or a Grantor as customer (collectively, the "DEPOSITORY
ACCOUNT"). Each Grantor shall cause each Collecting Bank, pursuant to an
agreement in form and substance reasonably satisfactory to Lender, to cause all
amounts held or deposited in the Blocked Accounts held by such Collecting Bank
to be transferred to the Depository Account on a daily basis.
Subject to the foregoing, each Grantor hereby agrees that all payments
received by Lender whether by cash, check, wire transfer or any other
instrument, made to such Blocked Accounts or otherwise received by Lender and
whether on the Accounts or as proceeds of other Collateral or otherwise will be
the sole and exclusive property of Lender. Each Grantor, and any
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of its Affiliates, employees, agents, Lender and other Persons acting for or in
concert with such Grantor shall, acting as trustee for Lender, receive, as the
sole and exclusive property of Lender, any moneys, checks, notes, drafts or
other payments relating to and/or constituting proceeds of Accounts or other
Collateral which come into the possession or under the control of such Grantor
or any Affiliates or employees, agents, or other Persons acting for or in
concert with such Grantor, and immediately upon receipt thereof, such Grantor or
such Persons shall deposit the same or cause the same to be deposited in kind,
in a Blocked Account.
4.13 Collateral Generally.
(a) Each Grantor hereby authorizes Lender to file one or more
financing or continuation statements, and amendments thereto (or similar
documents required by any laws of any applicable jurisdiction), relating to all
or any part of the Collateral without the signature of such Grantor (to the
extent such signature is required under the laws of any applicable
jurisdiction), which financing statements may describe the Collateral as "all
assets" or "all personal property" or words of like import.
(b) Each Grantor will furnish to Lender, from time to time upon
request, statements and schedules further identifying, updating, and describing
the Collateral and such other information, reports and evidence concerning the
Collateral as Lender may reasonably request, all in reasonable detail.
(c) No Grantor shall use or permit any Collateral to be used
unlawfully or in violation of any provision of applicable law, or any policy of
insurance covering any of the Collateral.
(d) Subject to the next sentence, each Grantor shall keep the
Collateral (other than Collateral in the possession of Lender, cash on deposit
in permitted Deposit Accounts and investments in permitted Securities Accounts)
at the locations maintained by such Grantor and set forth on the Perfection
Certificate. Each Grantor shall give Lender not less than thirty (30) days prior
written notice of any change in such Grantor's chief executive office and
principal place of business or of any new location of business or any new
location for any of the Collateral. With respect to any new location (which in
any event, other than as set forth on Appendix I to the Note or as otherwise
consented to by Lender in writing in advance at its sole discretion, shall be
within the continental United States), each Grantor shall execute and deliver
such instruments, documents and notices and take such actions as may be
necessary or desirable, or that Lender may request, to create, perfect and
protect the Security Interests.
(e) Each Grantor shall keep full and accurate books and records
relating to the Collateral and shall stamp or otherwise xxxx such books and
records in such manner as Lender may reasonably request indicating that the
Collateral is subject to the Security Interests.
(f) Except as otherwise permitted herein or by the Note, no Grantor
shall (i) sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, any of the Collateral, except that the
Grantors may sell Inventory to buyers in the ordinary course of business and may
license General Intangibles to licensees in the ordinary course of business; or
(ii) create or suffer to exist any Lien upon or with respect to any of the
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Collateral to secure indebtedness of such Grantor or any other Person except for
the Security Interests.
(g) Beyond the safe custody thereof, each Grantor agrees that Lender
shall have no duties concerning the custody and preservation of any Collateral
in its possession (or in the possession of any agent or bailee) or with respect
to any income thereon or the preservation of rights against prior parties or any
other rights pertaining thereto. Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which it accords its own property. Lender shall not be liable or responsible for
any loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any warehouseman, carrier,
forwarding agency, consignee or other agent or bailee selected by Lender in good
faith.
(h) No Grantor shall do anything to impair the rights of Lender in the
Collateral. Each Grantor shall at all times maintain insurance with respect to
the Collateral in compliance with the requirements of the Note. Each Grantor
assumes all liability and responsibility in connection with the Collateral
acquired by it, and the liability of such Grantor to pay the Obligations shall
in no way be affected or diminished by reason of the fact that such Collateral
may be lost, stolen, damaged, or for any reason whatsoever unavailable to such
Grantor.
(i) Lender agrees that upon payment in full of all Obligations and the
termination of the Loan Agreements, the Security Interests shall terminate and
all rights to the Collateral shall revert to the applicable Grantor. Lender
further agrees that upon such termination of the Security Interests or release
of any Collateral, Lender shall, at the expense of each Grantor, execute and
deliver to each Grantor such documents as such Grantor shall reasonably request
to evidence the termination of the Security Interests or the release of such
Collateral, as the case may be.
4.14 Federal Compliance.
(a) Each Grantor shall promptly notify Lender in writing upon
acquiring any interest in Federal Registration Collateral. Each Grantor shall
take such steps as may be necessary or desirable, or that Lender may request, in
order to perfect any Security Interests in Federal Registration Collateral.
(b) Each Grantor shall promptly notify Lender in writing of any
Collateral which constitutes a claim against the United States government or any
instrumentality or agency thereof, the assignment of which claim is restricted
by federal law. Upon the request of Lender, each Grantor shall take such steps
as may be necessary or desirable, or that Lender may request, to comply with any
applicable federal assignment of claims laws and other comparable laws.
(c) No Grantor shall produce any Inventory in violation of any
provision of the Fair Labor Standards Act of 1938, or in violation of any other
law.
4.15 Grantors Remain Liable. Anything herein to the contrary
notwithstanding: (i) each Grantor shall remain liable under the contracts and
agreements included in the Collateral
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to the extent set forth therein and shall perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed; (ii) the exercise by Lender of any of the rights hereunder shall not
release any Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral; (iii) Lender shall not have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall Lender be obligated to perform
any of the obligations or duties of any Grantor thereunder or to take any action
to collect or enforce any claim for payment assigned hereunder; and (iv) Lender
shall not have any liability in contract or tort for any of Grantor's acts or
omissions.
4.16 Other Documents and Actions. Each Grantor shall, from time to
time, at its expense, promptly execute and deliver all further instruments,
documents and notices and take all further action that may be necessary or
desirable, or that Lender may request, in order to create, perfect and protect
any Security Interests, or to enable Lender to exercise and enforce its rights
and remedies hereunder or under any other Loan Document with respect to any
Collateral. Without limiting the generality of the foregoing, each Grantor
shall: (i) at any reasonable time, upon demand by Lender, exhibit the Collateral
to allow inspection of the Collateral by Lender or Persons designated by Lender
and to examine and make copies of the records of such Grantor related thereto,
and to discuss the Collateral and the records of such Grantor with respect
thereto with, and to be advised as to the same by, such Grantor's officers and
employees and, after the occurrence and during the continuance of a Default,
with any other Person which is or may be obligated with respect to any
Collateral; and (ii) upon Lender's request, appear in and defend any action or
proceeding that may affect such Grantor's title to or Lender's security interest
in the Collateral.
SECTION 5. Remedial Provisions.
(a) Upon the occurrence and during the continuance of a Default,
Lender or its attorneys shall have the right without notice or demand or legal
process (unless the same shall be required by applicable law), personally, or by
an agent, (i) to enter upon, occupy and use any premises owned or leased by each
Grantor or where the Collateral is located (or is believed to be located) until
the Obligations are paid in full without any obligation to pay rent to such
Grantor, to render the Collateral useable or saleable and to remove the
Collateral or any part thereof to the premises of Lender for such time as Lender
may desire in order to effectively collect or liquidate the Collateral and use
in connection with such removal any and all services, supplies and other
facilities of such Grantor; (ii) to take possession of each Grantor's original
books and records, to obtain access to each Grantor's data processing equipment,
computer hardware and Software relating to the Collateral and to use all of the
foregoing and the information contained therein in any manner Lender deems
appropriate; and (iii) to notify postal authorities to change the address for
delivery of each Grantor's mail to an address designated by Lender and to
receive, open and dispose of all mail addressed to each Grantor. If any of
Grantor's books and records are prepared or maintained by an accounting service,
contractor or other third party agent, such Grantor hereby irrevocably
authorizes such service, contractor or other agent, upon notice by Lender to
such Person that a Default has occurred and is continuing, to deliver to Lender
or its designees such books and records, and to follow Lender's instructions
with respect to further services to be rendered.
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(b) If a Default shall have occurred and be continuing, Lender may
exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of Lender on default under the Code (whether or not the Code applies to
the affected Collateral) and also may: (i) require each Grantor to, and each
Grantor hereby agrees that it will, at its expense and upon request of Lender
forthwith, assemble all or part of the Collateral as reasonably directed by
Lender and make it available to Lender at any place or places designated by
Lender which is reasonably convenient to Lender in which event such Grantor
shall at its own expense (A) forthwith cause the same to be moved to the place
or places so designated by Lender, (B) store and keep any Collateral so
delivered to Lender at such place or places pending further action by Lender,
and (C) while Collateral shall be so stored and kept, provide such guards and
maintenance services as shall be necessary to protect the same and to preserve
and maintain the Collateral in good condition; (ii) withdraw all cash in any
Deposit Account and apply such monies in payment of the Obligations; and (iii)
without notice except as specified below, sell, lease, license or otherwise
dispose of the Collateral or any part thereof by one or more contracts, in one
or more parcels at public or private sale, and without the necessity of
gathering at the place of sale of the property to be sold, at any of Lender's
offices or elsewhere, at such time or times, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as Lender may
deem commercially reasonable.
(c) Each Grantor agrees that, to the extent notice of sale shall be
required by law, a reasonable authenticated notification of disposition shall be
a notification given at least ten (10) days prior to any such sale and such
notice shall (i) describe Lender and such Grantor, (ii) describe the Collateral
that is the subject of the intended disposition, (iii) state the method of
intended disposition, (iv) state that such Grantor is entitled to an accounting
of the Obligations and state the charge, if any, for an accounting, and (v)
state the time and place of any public disposition or the time after which any
private sale is to be made. At any sale of the Collateral, if permitted by law,
Lender may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for the purchase, lease, license or other
disposition of the Collateral or any portion thereof for the account of Lender.
Lender shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. Lender may disclaim any warranties that might
arise in connection with the sale, lease, license or other disposition of the
Collateral and have no obligation to provide any warranties at such time. Lender
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. To the extent permitted
by law, each Grantor hereby specifically waives all rights of redemption, stay
or appraisal, which it has or may have under any law now existing or hereafter
enacted.
(d) If a Default has occurred and is continuing, each Grantor hereby
irrevocably authorizes and empowers Lender, without limiting any other
authorizations or empowerments contained in any of the other Loan Documents, to
assert, either directly or on behalf of such Grantor, any claims such Grantor
may have, from time to time, against any other party to any of the agreements to
which such Grantor is a party or to otherwise exercise any right or remedy of
such Grantor under any such agreements (including, without limitation, the right
to enforce directly against any party to any such agreement all of such
Grantor's rights thereunder, to make all demands and give all notices and to
make all requests required or permitted to be made by such Grantor thereunder).
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(e) If a Default has occurred and is continuing, the proceeds of any
collection, enforcement, sale or other disposition of, or other realization
upon, all or any part of the Collateral and any cash held in any Deposit Account
shall be applied in accordance with the applicable provisions of the Note.
(f) Each Grantor acknowledges and agrees that a breach of any of the
covenants contained in Sections 4, 5 and 6 hereof will cause irreparable injury
to Lender and that Lender has no adequate remedy at law in respect of such
breaches and therefore agrees, without limiting the right of Lender to seek and
obtain specific performance of other obligations of such Grantor contained in
this Agreement, that the covenants of such Grantor contained in the Sections
referred to in this Section shall be specifically enforceable against such
Grantor.
(g) No failure or delay on the part of Lender in the exercise of any
power, right or privilege hereunder shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or any other right, power or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 6. Attorney-in-Fact.
Each Grantor hereby irrevocably appoints Lender, its nominee, and any
other Person whom Lender may designate, as such Grantor's attorney-in-fact, with
full power during the existence of any Default to sign such Grantor's name on
verifications of Accounts and other Collateral; to send requests for
verification of Collateral to such Grantor's customers, Account Debtors and
other obligors; to endorse such Grantor's name on any checks, notes,
acceptances, money orders, drafts, and any other forms of payment or security
that may come into Lender's possession or on any assignments, stock powers, or
other instruments of transfer relating to the Collateral or any part thereof; to
sign such Grantor's name on any invoice or xxxx of lading relating to any
Collateral, on claims to enforce collection of any Collateral, on notices to and
drafts against customers and Account Debtors and other obligors, on schedules
and assignments of Collateral, on notices of assignment and on public records;
to notify the post office authorities to change the address for delivery of such
Grantor's mail to an address designated by Lender; to receive, open and dispose
of all mail addressed to such Grantor; and to do all things necessary to carry
out the terms and provisions of this Agreement. Each Grantor hereby ratifies and
approves all acts of any such attorney and agrees that neither Lender nor any
such attorney will be liable for any acts or omissions nor for any error of
judgment or mistake of fact or law other than, and to the extent of, such
Person's gross negligence or willful misconduct. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the Obligations
have been fully paid and satisfied and the Security Interests shall have
terminated in accordance with the terms hereof.
SECTION 7. Expenses.
Without limiting any Grantor's obligations under the Note or the other
Loan Documents, each Grantor hereby agrees to promptly pay all fees, costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with (i) protecting, storing,
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warehousing, appraising, insuring, handling, maintaining and shipping the
Collateral, (ii) creating, perfecting, maintaining and enforcing Lender's Liens
and (iii) collecting, enforcing, retaking, holding, preparing for disposition,
processing and disposing of the Collateral, in each case in accordance with this
Agreement.
If a Grantor fails to promptly pay any portion of the above costs,
fees and expenses when due or to perform any other obligation of such Grantor
under this Agreement, Lender may, at its option, but shall not be required to,
pay or perform the same and charge such Grantor's account for all fees, costs
and expenses incurred therefor, and such Grantor agrees to reimburse Lender
therefor on demand. All sums so paid or incurred by Lender for any of the
foregoing, any and all other sums for which each Grantor may become liable
hereunder and all fees, costs and expenses (including attorneys' fees, legal
expenses and court costs) incurred by Lender in enforcing or protecting the
Security Interests or any of their rights or remedies under this Agreement shall
be payable on demand, shall constitute Obligations, shall bear interest until
paid at the highest rate provided in the Note and shall be secured by the
Collateral.
SECTION 8. Notices
All notices, approvals, requests, demands and other communications
hereunder to be delivered to each Grantor and all notices, approvals, requests,
demands and other communications hereunder shall be given in accordance with the
notice provision of the Note.
SECTION 9. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns except that no
Grantor may assign its rights or obligations hereunder without the prior written
consent of Lender. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument
evidencing the Obligations or any portion thereof or interest therein shall in
any manner impair the Lien granted to Lender hereunder.
SECTION 10. Changes in Writing
No amendment, modification, termination or waiver of any provision of
this Agreement shall be effective unless, in the case of an amendment or
modification, the same shall be in writing signed by Lender and each Grantor,
and, in the case of a termination or waiver, the same shall be in writing signed
by the Lender.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH GRANTOR HEREBY CONSENTS TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
SUFFOLK, COMMONWEALTH OF MASSACHUSETTS AND IRREVOCABLY AGREES THAT ALL ACTIONS
OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED
IN SUCH
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COURTS. EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH GRANTOR
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE UPON SUCH GRANTOR BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH GRANTOR IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8 HEREOF AND SERVICE SO MADE SHALL BE COMPLETE TEN (10)
DAYS AFTER THE SAME HAS BEEN POSTED.
SECTION 12. WAIVER OF JURY TRIAL.
EACH OF THE GRANTORS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SECTION 13. Counterparts; Integration; Facsimile.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersede any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof. A facsimile of an original signature on any document or
instrument, including this Agreement, shall be deemed an original signature for
all purposes.
SECTION 14. Headings
Headings and captions used in this Agreement are included for
convenience of reference and shall not be given any substantive effect.
SECTION 15. Specific Performance; Remedies Cumulative.
The parties hereby agree with each other that, in the event of any
breach of this Agreement by any party where such breach may cause irreparable
harm to any other party, or where monetary damages may not be sufficient or may
not be adequately quantified, then the affected party or parties shall be
entitled to specific performance, injunctive relief or such other equitable
remedies as may be available to it, which remedies shall be cumulative and
non-exclusive, and in addition to such other remedies as such party may
otherwise have at law or in equity.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
GRANTOR:
NORD RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
LENDER:
REGIMENT CAPITAL III, L.P.
By: Regiment Capital Management, LLC.,
its General Partner
By: Regiment Capital Advisors, LLC,
its Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
EXHIBIT A
Form of Joinder to Security Agreement
JOINDER TO SECURITY AGREEMENT
The undersigned, _______________, a _____________ ______________, hereby
joins in the execution of that certain Security Agreement dated as of October
__, 2004 (as amended, restated, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT") made by Nord Resources Corporation, a Delaware
corporation ("NRC" and each other Person that has and will become a Grantor
thereunder after the date and pursuant to the terms thereof are referred to
herein individually as a "GRANTOR" and collectively as, the "GRANTORS"), in
favor of Regiment Capital III, L.P. ("LENDER"). By executing this Joinder to
Security Agreement, the undersigned hereby agrees that it is a Grantor under the
Security Agreement with the same force and effect as if originally named therein
as a Grantor. The undersigned agrees to be bound by all of the terms and
provisions of the Security Agreement, which are incorporated herein by reference
as though fully set forth herein verbatim. Each reference to a Grantor in the
Security Agreement shall be deemed to include the undersigned. Capitalized terms
used herein but otherwise not defined herein shall have the respective meanings
ascribed to such terms in Security Agreement.
The undersigned represents and warrants to Lender that:
(a) all of the Equipment, Inventory and Goods owned by such Grantor
are located at the places as specified on the Perfection Certificate attached
hereto;
(b) except as disclosed on the Perfection Certificate attached hereto,
none of such Collateral is in the possession of any bailee, warehousemen,
processor or consignee, is Federal Registration Collateral, nor is encumbered by
any Lien, except Permitted Liens;
(c) the chief place of business, chief executive office and the office
where the undersigned keeps its books and records are located at the respective
places specified on the Perfection Certificate attached hereto;
(d) the legal description of all real property, leased or owned,
maintained by the undersigned, are properly set forth on the Perfection
Certificate attached hereto;
(e) the Perfection Certificate attached hereto sets forth the full,
correct and current name of the undersigned, as its appears in the undersigned's
Organizational Documents, the undersigned's type of organization, the
undersigned's jurisdiction of organization and the undersigned's organizational
identification number (if applicable);
(f) the undersigned (including any Person acquired by the undersigned)
does not do business or has not done business during the past five years under
any trade name or fictitious business name, except as disclosed on the
Perfection Certificate attached hereto;
(g) all Copyrights, Patents and Trademarks owned by the undersigned
are listed in the Perfection Certificate attached hereto;
(h) except as set forth on the Perfection Certificate attached hereto,
no Person has Control of any Deposit Accounts, Electronic Chattel Paper,
Investment Property or Letter-of-Credit Rights in which the undersigned has any
interest; and
(i) except in each case as set forth on the Perfection Certificate
attached hereto, the undersigned has no ownership interest in any Chattel Paper,
Letter-of-Credit Rights, Commercial Tort Claims, Documents, or Equipment covered
by any certificate of title.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this Joinder to Security
Agreement this ___ day of _______________, _______.
[Grantor],
a
---------------- ---------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FEIN:
----------------------------------
PERFECTION CERTIFICATE
See Attached.
EXHIBIT B
Promissory Note
EXHIBIT C
Perfection Certificate - Nord Resources Corporation
