SECURITY AGREEMENT
Exhibit 99.2
This
Security Agreement (as amended, modified or otherwise supplemented from time to
time, this “Security
Agreement”), dated as of March 13, 2009, is executed by ZNOMICS, INC., a
Nevada corporation (together with its successors and assigns, "Company"), in favor of Collateral Agent (as herein
defined) on behalf of the lenders set forth on the signature pages hereof,
together with any additional lenders that become a party to this Security
Agreement from time to time by execution of a Joinder Agreement in substantially
the form of Exhibit
A (collectively, the “Lenders” and each a “Lender”).
RECITALS
A. Company
has issued secured promissory notes to Lenders in the amounts and on the dates
set forth on Schedule
1 hereto (such secured promissory notes shall be referred to as “Notes” and each a “Note”).
B. From
time to time the Lenders shall purchase additional secured promissory notes
after the date of this Security Agreement and such additional secured promissory
notes shall be deemed to be “Notes” under this Security Agreement.
C. From
time to time, Company may issue additional secured promissory notes to
additional parties and such additional parties may secure such additional
secured promissory note by executing a Joinder Agreement in substantially the
form of Exhibit
A, pursuant to which such additional secured promissory note shall be
deemed to be a “Note” under this Security Agreement or a “Subordinated Note”
under this Security Agreement.
D. In
order to induce each Lender to extend the credit evidenced by the Notes, Company
has agreed to enter into this Security Agreement and to grant Collateral Agent,
for the benefit of itself and the Lenders, the security interest in the
Collateral described below.
AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Company hereby agrees with Collateral Agent and the Lenders as
follows:
1. Definitions and
Interpretation. When used in this Security Agreement, the
following terms have the following respective meanings:
"Collateral" has the meaning
given to that term in Section 2
hereof.
"Obligations" means all loans,
advances, debts, liabilities and obligations, howsoever arising, owed by Company
to Collateral Agent and the Lenders of every kind and description (whether or
not evidenced by any note or instrument and whether or not for the payment of
money), now existing or hereafter arising under or pursuant to the terms of the
Notes (including Subordinated Notes), including, all interest, fees, charges,
expenses, attorneys' fees and costs and accountants' fees and costs chargeable
to and payable by Company hereunder and thereunder, in each case, whether direct
or indirect, absolute or contingent, due or to become due, and whether or not
arising after the commencement of a proceeding under Title 11 of the United
States Code (11 U.S.C. Section 101 et seq.), as amended from time to time
(including post-petition interest) and whether or not allowed or allowable as a
claim in any such proceeding.
“Permitted Liens” means (a)
liens for taxes not yet delinquent or liens for taxes being contested in good
faith and by appropriate proceedings for which adequate reserves have been
established; (b) liens in respect of property or assets imposed by law which
were incurred in the ordinary course of business, such as carriers’,
warehousemen’s, materialmen’s and mechanics’ liens and other similar liens
arising in the ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good faith and by
appropriate proceedings; (c) liens incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other types of social security, and other Liens to secure the
performance of tenders, statutory obligations, contract bids, government
contracts, performance and return of money bonds and other similar obligations,
incurred in the ordinary course of business, whether pursuant to statutory
requirements, common law or consensual arrangements; (d) liens in favor of the
Collateral Agent and the Lenders pursuant to this Security Agreement; (e) liens upon any
equipment acquired or held by Company to secure the purchase price of such
equipment or indebtedness incurred solely for the purpose of financing the
acquisition of such equipment, so long as such lien extends only to the
equipment financed, and any accessions, replacements, substitutions and proceeds
(including insurance proceeds) thereof or thereto; (f) liens in favor of
customs and revenue authorities arising as a matter of law to secure payments of
customs duties in connection with the importation of goods, (h) liens which
constitute rights of setoff of a customary nature or banker’s liens, whether
arising by law or by contract; (i) liens on insurance proceeds in favor of
insurance companies granted solely as security for financed premiums; and (j)
leases or subleases and licenses or sublicenses granted in the ordinary course
of Company’s business.
“Required Lenders” shall mean
Lenders holding a majority of the outstanding principal amount of the
Obligations under the Senior Notes, provided, however, if there are no longer
any outstanding Obligations under the Senior Notes, then “Required Lenders”
shall mean Lenders holding a majority of the outstanding Obligations under the
Subordinated Notes.
“Senior Note” shall mean a Note
that is not a Subordinated Note.
“Subordinated Note” shall mean
a secured promissory note that is subordinated in right of payment from the
proceeds of any Collateral pursuant to the terms of Section 7 of this Security
Agreement; provided, however, unless otherwise explicitly specified in this
Security Agreement, the term “Note” or “Notes” shall be deemed to include any
“Subordinated Note”.
"UCC" means the Uniform
Commercial Code as in effect in the State of Oregon from time to
time.
All capitalized terms not otherwise
defined herein shall have the respective meanings given in the Notes. Unless
otherwise defined herein, all terms defined in the UCC have the respective
meanings given to those terms in the UCC.
2. Grant of Security
Interest.
(a) Security
Interest. As security for the Obligations, Company hereby
pledges to Collateral Agent and grants to Collateral Agent a security interest
in all right, title and interests of Company in and to the property described in
Attachment 1
hereto, whether now existing or hereafter from time to time acquired
(collectively, the “Collateral”). Notwithstanding
the foregoing, the security interest granted herein shall not extend to and the
term “Collateral” shall not include any equipment or other property financed by
a third party, provided that such third party’s liens are liens of the type
described in subsection (e) of the definition of Permitted Liens; provided
further that such equipment or other property shall be deemed “Collateral”
hereunder if such third party’s lien is released or otherwise
terminated.
3. General Representations and
Warranties. Company represents and warrants to Collateral
Agent and the Lenders that (a) Company is the owner of the Collateral (or,
in the case of after-acquired Collateral, at the time Company acquires rights in
the Collateral, will be the owner thereof) and that no other Person has (or, in
the case of after-acquired Collateral, at the time Company acquires rights
therein, will have) any right, title, claim or interest (by way of Lien or
otherwise) in, against or to the Collateral, other than Permitted Liens;
(b) upon the filing of UCC-1 financing statements in the appropriate filing
offices, Collateral Agent has (or in the case of after-acquired Collateral, at
the time Company acquires rights therein, will have) a perfected security
interest in the Collateral to the extent that a security interest in the
Collateral can be perfected by such filing, except for Permitted
Liens.
4. Covenants Relating to
Collateral. Company hereby agrees (a) to perform all acts
that may be necessary to maintain, preserve, protect and perfect the Collateral,
the Lien granted to Collateral Agent therein and the perfection and priority of
such Lien, except for Permitted Liens; (b) not to use or permit any
Collateral to be used (i) in violation in any material respect of any
applicable law, rule or regulation, or (ii) in violation of any policy of
insurance covering the Collateral; (c) to pay promptly when due all
material taxes and other governmental charges, all Liens and all other charges
now or hereafter imposed upon or affecting any Collateral; (d) without
prior written notice to Collateral Agent, not to change Company’s state of
incorporation, (f) to procure, execute and deliver from time to time any
endorsements, assignments, financing statements and other writings reasonably
deemed necessary or appropriate by Collateral Agent to perfect, maintain and
protect its Lien hereunder and the priority thereof; (g) not to sell or
otherwise dispose of or transfer any Collateral; provided that Company may (i)
grant Permitted Liens, (ii) sell inventory, (iii) dispose of worn-out or
obsolete equipment, (iv) grant licenses and similar arrangements for the use of
the property of Company in the ordinary course of business and (v) sell,
transfer or exclusively license its Zenemark ® Library, including all
intellectual property rights related to such Zenemark ® Library, provided that
Company shall use the net proceeds of such sale, transfer or exclusive license
to prepay the Senior Notes on a pari passu basis, provided that if
any surplus remains after paying such Notes in full, then such surplus shall be
used to prepay any Subordinated Notes on a pari passu basis. In the
event of a sale of the Zenemark ® Library, including all intellectual property
rights related to such Zenemark ® Library, as described in this Section 4(g)(v),
(i) the security interest granted in such Collateral shall be automatically
released and (ii) Collateral Agent, on behalf of the Lenders, is hereby
authorized to enter into any agreements or instruments necessary to evidence
such release.
5. Covenants Relating to
Additional Notes. Company may incur additional indebtedness
that is secured pursuant to the terms of this Security Agreement, provided that
(a) such additional indebtedness is on terms and conditions substantially
similar to the terms of the Notes listed on Schedule 1 hereto and
(b) the aggregate principal amount of the Senior Notes does not exceed
$300,000.
6. Authorized Action by
Collateral Agent. Company hereby irrevocably appoints
Collateral Agent as its attorney-in-fact (which appointment is coupled with an
interest) and agrees that Collateral Agent may perform (but Collateral Agent
shall not be obligated to and shall incur no liability to Company or any third
party for failure so to do) any act which Company is obligated by this Security
Agreement to perform, and to exercise such rights and powers as Company might
exercise with respect to the Collateral, including the right to (a) collect
by legal proceedings or otherwise and endorse, receive and receipt for all
dividends, interest, payments, proceeds and other sums and property now or
hereafter payable on or on account of the Collateral; (b) enter into any
extension, deposit, or other agreement pertaining to, or deposit, surrender,
accept, hold or apply other property in exchange for the Collateral;
(c) make any compromise or settlement, and take any action it deems
advisable, with respect to the Collateral; (d) insure, process and preserve
the Collateral; and (e) file UCC financing statements and execute other
documents, instruments and agreements required hereunder; provided, however, that
Collateral Agent shall not exercise any such powers granted pursuant to
subsections (a) through (d) prior to the occurrence of an Event of Default and
shall only exercise such powers during the continuance of an Event of
Default.
7. Default and
Remedies.
(a) Default. Company
shall be deemed in default under this Security Agreement upon the occurrence and
during the continuance of an Event of Default (as defined in the
Notes).
(b) Remedies. Upon
the occurrence and during the continuance of any such Event of Default,
Collateral Agent shall have the rights of a secured creditor under the UCC, all
rights granted by this Security Agreement and by law, including the right
to: (a) require Company to assemble the Collateral and make it
available to Collateral Agent and the Lenders at a place to be designated by
Collateral Agent and the Lenders; and (b) prior to the disposition of the
Collateral, store, process, repair or recondition it or otherwise prepare it for
disposition in any manner and to the extent Collateral Agent and the Lenders
deem appropriate. Collateral Agent and Lenders shall only exercise
remedies under this Security Agreement with the written consent of Required
Lenders. Company hereby agrees that ten (10) days' notice of any
intended sale or disposition of any Collateral is reasonable. In
furtherance of Collateral Agent's rights hereunder, Company hereby grants to
Collateral Agent an irrevocable, non-exclusive license, exercisable without
royalty or other payment by Collateral Agent, and only in connection with the
exercise of remedies hereunder, to use, license or sublicense any patent,
trademark, trade name, copyright or other intellectual property in which Company
now or hereafter has any right, title or interest together with the right of
access to all media in which any of the foregoing may be recorded or
stored.
(c) Application of Collateral
Proceeds. The proceeds and/or avails of the Collateral, or any
part thereof, and the proceeds and the avails of any remedy hereunder (as well
as any other amounts of any kind held by Collateral Agent at the time of, or
received by Collateral Agent after, the occurrence of an Event of Default) shall
be paid to and applied as follows:
(i) First, to the payment
of reasonable costs and expenses, including all amounts expended to preserve the
value of the Collateral, of foreclosure or suit, if any, and of such sale and
the exercise of any other rights or remedies, and of all proper fees, expenses,
liability and advances, including reasonable legal expenses and attorneys’ fees,
incurred or made hereunder by Collateral Agent;
(ii) Second, to the
payment to each Lender of the amount then owing or unpaid on such Lender’s
Obligations under the Senior Notes, and in case such proceeds shall be
insufficient to pay in full the whole amount so due, owing or unpaid upon such
Obligations, then its pro rata share of the amount remaining to be distributed
(to be applied first to accrued interest and second to outstanding principal)
with respect to such Obligations;
(iii) Third, to the payment
to each Lender of the amount then owing or unpaid on such Lender’s Obligations
under the Subordinated Notes, and in case such proceeds shall be insufficient to
pay in full the whole amount so due, owing or unpaid upon such Obligations, then
its pro rata share of the amount remaining to be distributed (to be applied
first to accrued interest and second to outstanding principal)with respect to
such Obligations;
(iv) Fourth, to the
payment of the surplus, if any, to Company, its successors and assigns, or to
whomsoever may be lawfully entitled to receive the same.
In the
event that a Lender receives payments or distributions in excess of its pro rata
share, then such Lender shall hold in trust all such excess payments or
distributions for the benefit of the other Lenders and shall pay such amounts
held in trust to such other Lenders upon demand by such Lenders.
8. Collateral
Agent.
(a) Appointment. The
Lenders hereby appoint Triangle Holdings VI LLC as collateral agent for the
Lenders under this Security Agreement (in such capacity, the “Collateral Agent”) to serve
from the date hereof until the termination of the Security
Agreement.
(b) Powers and Duties of
Collateral Agent, Indemnity by Lenders.
(i) Each
Lender hereby irrevocably authorizes the Collateral Agent to take such action
and to exercise such powers hereunder as provided herein or as requested in
writing by the Required
Lenders in accordance with the terms hereof, together with such powers as are
reasonably incidental thereto. Collateral Agent may execute any of
its duties hereunder by or through agents or employees and shall be entitled to
request and act in reliance upon the advise of counsel concerning all matters
pertaining to its duties hereunder and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance therewith.
(ii) Neither
the Collateral Agent nor any of its directors, officers or employees shall be
liable or responsible to any Lender or to Company for any action taken or
omitted to be taken by Collateral Agent or any other such person hereunder or
under any related agreement, instrument or document, except in the case of gross
negligence or willful misconduct on the part of the Collateral Agent, nor shall
the Collateral Agent or any of its directors, officers or employees be liable or
responsible for (i) the validity, effectiveness, sufficiency,
enforceability or enforcement of the Notes, this Security Agreement or any
instrument or document delivered hereunder or relating hereto; (ii) the
title of Company to any of the Collateral or the freedom of any of the
Collateral from any prior or other liens or security interests; (iii) the
determination, verification or enforcement of Company’s compliance with any of
the terms and conditions of this Security Agreement; (iv) the failure by
Company to deliver any instrument or document required to be
delivered pursuant to the terms hereof; or (v) the receipt, disbursement,
waiver, extension or other handling of payments or proceeds made or received
with respect to the collateral, the servicing of the Collateral or the
enforcement or the collection of any amounts owing with respect to the
Collateral.
(iii) In the
case of this Security Agreement and the transactions contemplated hereby and any
related document relating to any of the Collateral, each of the Lenders agrees
to pay to the Collateral Agent, on demand, its pro rata share of all fees and
all expenses incurred in connection with the enforcement of this Security
Agreement, the Notes or any related agreement to the extent that such fees or
expenses have not been paid by Company. In the case of this Security
Agreement and each instrument and document relating to any of the Collateral,
each of the Lenders and the Company hereby agrees to hold the Collateral Agent
harmless, and to indemnify the Collateral Agent from and against any and all
loss, damage, expense or liability which may be incurred by the Collateral Agent
under this Security Agreement and the transactions contemplated hereby and any
related agreement or other instrument or document, as the case may be, unless
such liability shall be caused by the willful misconduct or gross negligence of
the Collateral Agent.
(iv) In the
event that the Collateral Agent’s Obligations are paid in full, (i) if there is
more than one Lender with outstanding Obligations, then such Lender’s shall
appoint a successor Collateral Agent or (ii) if there is only one Lender with
outstanding Obligations, then such remaining Lender shall be deemed to be the
Collateral Agent hereunder.
9. Miscellaneous.
(a) Notices. Except
as otherwise provided herein, all notices, requests, demands, consents,
instructions or other communications to or upon Company or Collateral Agent
under this Security Agreement shall be in writing and faxed, mailed or delivered
to each party to the facsimile number or its address set forth below (or to such
other facsimile number or address as the recipient of any notice shall have
notified the other in writing). All such notices and communications
shall be effective (a) when sent by Federal Express or other overnight service
of recognized standing, on the business day following the deposit with such
service; (b) when mailed, by registered or certified mail, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when faxed,
upon confirmation of receipt.
Collateral
Agent:
Triangle Holdings VI LLC
0000 XX Xxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Company:
0000 XX Xxxxx Xxx., Xxxxx
000
Xxxxxxxx, XX 00000
Attention: Chief Financial
Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy
to: Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx,
XX 00000
Attention: Xxxxxx
Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
|
Lenders:
|
To
its address as specified on the signature pages to this Security Agreement
or as specified in the applicable Joinder
Agreement.
|
(b) Termination of Security
Interest. Upon the payment in full of all Obligations, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to Company. Upon such termination Collateral
Agent hereby authorizes Company to file any UCC termination statements necessary
to effect such termination and Collateral Agent will execute and deliver to
Company any additional documents or instruments as Company shall reasonably
request to evidence such termination.
(c) Nonwaiver. No
failure or delay on Collateral Agent's part in exercising any right hereunder
shall operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right.
(d) Amendments and
Waivers.
(i) Generally. This
Security Agreement may not be amended or modified, nor may any of its terms be
waived, except by written instruments signed by Company and Required Lenders
holding a majority of the outstanding principal amount of the Obligations,
provided, however, that (i) any amendments to Section 7 shall also require the
written consent of Collateral Agent, (ii) any amendments to Section 6(c) or to
any amendments that affects the Lenders holding Subordinated Notes in a manner
different than the other Lenders, shall require the consent of the Lenders
holding Subordinated Notes or (iii) except as otherwise specifically set forth
in this Security Agreement, any releases of Collateral from the security
interests granted hereunder shall require the consent of all
Lenders. Each waiver or consent under any provision hereof shall be
effective only in the specific instances for the purpose for which
given.
(ii) Joinder
Agreements. Notwithstanding anything contained in this
Security Agreement, without the written consent of Collateral Agent or the
Lenders, additional Lenders may become a party to this Security Agreement by
entering into a Joinder Agreement with Company in substantially the form of
Exhibit
A.
(e) Assignments. This
Security Agreement shall be binding upon and inure to the benefit of Collateral
Agent, the Lenders and Company and their respective successors and assigns;
provided, however, that Company
may not sell, assign or delegate rights and obligations hereunder without the
prior written consent of all Lenders.
(f) Cumulative Rights,
etc. The rights, powers and remedies of Collateral Agent under
this Security Agreement shall be in addition to all rights, powers and remedies
given to Collateral Agent by virtue of any applicable law, rule or regulation of
any governmental authority, or any other agreement, all of which rights, powers,
and remedies shall be cumulative and may be exercised successively or
concurrently without impairing Collateral Agent’s rights
hereunder. Company waives any right to require Collateral Agent to
proceed against any person or entity or to exhaust any Collateral or to pursue
any remedy in Collateral Agent's power.
(g) Partial
Invalidity. If at any time any provision of this Security
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Security Agreement nor the legality, validity
or enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.
(h) Entire
Agreement. This Security Agreement taken together with the
Notes and any Joinder Agreement constitute and contain the entire agreement of
Company, Lenders and Collateral Agent and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications
among the parties, whether written or oral, respecting the subject matter
hereof.
(i) Other Interpretive
Provisions. References in this Security Agreement to any
document, instrument or agreement (a) includes all exhibits, schedules and
other attachments thereto, (b) includes all documents, instruments or
agreements issued or executed in replacement thereof, and (c) means such
document, instrument or agreement, or replacement or predecessor thereto, as
amended, modified and supplemented from time to time and in effect at any given
time. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Security refer to this Security Agreement as a
whole and not to any particular provision of this Security
Agreement. The words "include" and "including" and words of similar
import when used in this Security Agreement shall not be construed to be
limiting or exclusive. References to the plural include the singular
and references to the singular include the plural.
(j) Governing
Law. This Security Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon without reference
to conflicts of law rules (except to the extent governed by the
UCC).
(k) Counterparts. This
Security Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall be deemed to constitute
one instrument.
[The
remainder of this page is intentionally left blank]
IN
WITNESS WHEREOF, Company has caused this Security Agreement to be executed as of
the day and year first above written.
ZNOMICS,
INC., an Oregon corporation
By: /s/ Xxxxx X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Chief Financial
Officer
AGREED:
COLLATERAL
AGENT:
TRIANGLE
HOLDINGS VI LLC
By: /s/ Xxxxx X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Member
LENDER:
TRIANGLE
HOLDINGS VI LLC
By: /s/ Xxxxx X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Member
XXXX
XXXXXXXXX
SCHEDULE
1
Notes
Lenders
|
Date of Issuance of Note
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Principal Amount of Note
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Triangle
Holdings VI LLC
|
3/13/09
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$200,000
|
Xxxx
Xxxxxxxxx
|
3/13/09
|
$25,000
|
ATTACHMENT
1
TO
SECURITY AGREEMENT
All
right, title, interest, claims and demands of Company in and to the following
property:
(i) All
Accounts;
(ii) All
Chattel Paper;
(iii) All
Commercial Tort Claims;
(iv) All
Deposit Accounts and cash;
(v) All
Documents;
(vi) All
Equipment;
(vii) All
General Intangibles, including all intellectual property (including the Zenemark
library);
(viii) All
Goods;
(ix) All
Instruments;
(x) All
Inventory;
(xi) All
Investment Property;
(xii) All
Letter-of-Credit Rights
(xii) To the
extent not otherwise included, all Proceeds and products of any and all of the
foregoing, and all accessions to, substitutions and replacements for, and rents
and profits of each of the foregoing.
All capitalized terms used in this
Attachment 1
and not otherwise defined herein, shall have the respective meanings given to
such terms in the Uniform Commercial Code of the State of California as in
effect from time to time.
EXHIBIT
A
[See
attached Joinder Agreement]
JOINDER
AGREEMENT
THIS
JOINDER AGREEMENT (this “Agreement”), dated as of
__________, ____, is executed by ZNOMICS, INC., a Nevada corporation (“Company”) and [ADDITIONAL
LENDER] (the “Additional
Lender”).
RECITAL
Company
has issued a secured promissory note referenced on Schedule A hereto
(the “New Note”) to Additional Lender
and by entering into this Agreement such New Note shall be secured pursuant to
the terms of that certain Security Agreement, dated as of March 12, 2009 (as
amended, the “Security
Agreement”), by and among Company, Collateral Agent and the other Lenders
party to such Security Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
(a) Definitions
and Interpretation. Unless otherwise
defined herein, all capitalized terms used herein and defined in the Security
Agreement shall have the respective meanings given to those terms in the
Security Agreement. Additional Lender acknowledges receipt of a copy
of the Security Agreement.
(b) Agreement
to be Bound. Additional Lender
agrees that upon the due execution and delivery of this Agreement by Company and
such Additional Lender, it shall become an “Lender” under the Security Agreement
and shall be bound by all the provisions of the Security Agreement to the same
extent as if such Additional Lender had executed the Security
Agreement. [The New Note shall be deemed a “Senior Note” under the
Security Agreement and shall be secured pursuant to the terms of the Security
Agreement to the same extent as the other “Senior Notes” that are secured under
the Security Agreement.]1 [The New Note shall be deemed a
“Subordinated Note” under the Security Agreement and shall be secured pursuant
to the terms of the Security Agreement to the same extent as the other
“Subordinated Notes” that are secured under the Security Agreement.]2
(c) Governing
Law; Counterparts. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Oregon. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall be deemed to constitute one
instrument.
[The
remainder of this page is intentionally left blank.]
___________________________
1 Insert this sentence if the New Note is
intended to be secured on a pari passu basis with the existing Notes under the
Security Agreement.
2 Insert this sentence if the New Note is
intended to be subordinated to the existing Notes under the Security
Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date and year first written above.
[ADDITIONAL
LENDER - ENTITY]3
By:
Name:
Title:
[ADDITIONAL
LENDER – INDIVIDUAL]4
Address:
[_________________________________]
[_________________________________]
[_________________________________]
Attn:
Telephone:
Facsimile:
ACCEPTED:
ZNOMICS,
INC., an Oregon corporation
By:
Name:
Title:
4 Use this signature block for
individuals
Schedule A to the Joinder
Agreement
Additional Lender
|
Date
of Issuance of Additional
Note
|
Principal Amount of New
Note
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