AGREEMENT OF SALE
Exhibit 10.1
AGREEMENT
OF SALE,
made as
of February 15, 2007, between Triton Petroleum Group, Inc., a Nevada
corporation, having an address at 00 Xxxxxxxx Xxx Xxxx, Xxxxxxxx, XX 00000
(“Seller”), and Hyperion Holdings LLC, a cor-poration, having an address at
_____________________________, (“Purchaser”).
W
I T N E S S E T H:
WHEREAS,
Purchaser desires to acquire, and Seller desires to sell, the shares of stock
of
APPC Oil Company, Inc., upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE,
in
consideration of the covenants and agreements hereafter set forth, and other
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1.
Agreement
to Sell.
Seller
agrees to sell, transfer and deli-ver to Purchaser, and Purchaser agrees to
purchase, upon the terms and conditions hereinafter set forth, the 1,000 shares
of the capital stock of APPC Oil Company, Inc., a corporation organized under
the laws of New York (the “Corporation”), said shares con-stituting all of the
authorized and issued shares of the Corpora-tion (the “Shares”). This sale shall
include all the assets of the Corporation, including all property, product
and
other assets, as well as all liabilities of the Corporation. Purchase shall
operate the Corporation upon the execution of this Agreement, prior to the
actual transfer of ownership to Purchaser.
2.
Purchase
Price.
The
purchase price to be paid by Purchaser is Five Hundred Thousand Dollars
($500,000.00), payable as fol-lows:
(a)
Five
Hundred Thousand Dollars ($500,000.00) at the closing by the execution and
delivery of a Promissory Note by Purchaser to Seller in said amount,
substan-tially in the form of Exhibit A hereto (the “Promissory Note”), secured
by a Stock Pledge Agreement substan-tially in the form of Exhibit B hereto
(the
“Stock Pledge Agreement”), and further secured by a Security Agreement
substantially in the form of Exhibit C hereto and UCC Financing Statements
creating a security inter-est in the assets of the Corporation (the “Security
Agreement”).
3.
The
Closing.
The
“closing” means the settlement of the obli-gations of Seller and Purchaser to
each other under this agree-ment, including the payment of the purchase price
to
Seller as provided in Article 1 hereof and the delivery of the closing documents
provided for in Article 4 hereof. The closing shall be held at the offices
of
Xxxxxxx X. Xxxxx, Esq., 0 Xxxx Xxxxx, Xxxx Xxxxx, Xxx Xxxx 00000, at 10 A.M.
on
February __, 2007 (the “closing date”). The Closing shall be subject to the
payment of $500,000 to Cornell Capital Partners, LP.
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4.
Closing
Documents.
At the
closing Seller shall execute and deliver to Purchaser:
(a)
the
certificate or certificates for the Shares, duly endorsed so as to effectively
transfer ownership of the Shares to Purchaser, together with all appropriate
federal and state transfer tax stamps affixed (subject to the obligation of
Purchaser to deposit the Shares with Seller in accordance with the provisions
of
the Stock Pledge Agreement)
(b)
letters of resignation from each director and officer of the Corporation,
effective as of the closing hereunder
(c)
the
Certificate of Incorporation or other organi-zational documents of the
Corporation, and the Bylaws, minute book, stock certificate book, and seal
of
the Corporation; any bills, vouchers, records showing the ownership of the
furniture, furnishings, equipment, other property used in the operation of
the
Corporation; and all other books of account, records and contracts of the
Corporation
(d)
such
other instruments as may be necessary or proper to transfer to Purchaser all
other ownership in-terests in the Corporation to be transferred under this
agreement
At
the
closing Purchaser shall execute and deliver to Seller:
(a)
the
Promissory Note, Stock Pledge Agreement, Secu-rity Agreement and UCC Financing
Statements provided for in Article 2 hereof
5.
The
Security Agreement.
The
Security Agreement shall create a security interest in the goods, chattels
and
all other personal property included in this sale and all other personal
property acquired after the closing by Purchaser and used in connection with
the
business, together with all proceeds thereof and all in-creases, substitutions,
replacements and additions thereto.
Purchaser
agrees to perfect the security interest of the Security Agreement by executing
and delivering to Seller appropriate Fin-ancing Statements and extensions and
renewals thereof, in accor-dance with the provisions of the Uniform Commercial
Code, and all other instruments or documents as may be reasonably requested
by
Seller. All filing fees in connection therewith shall be paid by Purchaser.
6.
Representations
and Warranties of Seller.
Seller
represents and warrants to Purchaser as follows:
(a)
Seller is a corporation duly organized and validly existing under the laws
of
Nevada, and is duly quali-fied to do business in New York. Seller has full
power
and authority to carry out and perform its undertakings and obligations as
provided herein. The execution and delivery by Seller of this agreement and
the
consumma-tion of the transactions contemplated herein have been duly authorized
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by
the
Board of Directors of Seller and will not conflict with or breach any provision
of the Certificate of Incorporation or Bylaws of Seller.
(b)
No
action, approval, consent or authorization of any governmental authority is
necessary for Seller to consummate the transactions contemplated hereby.
(c)
The
Corporation is a corporation duly organized on _________, under the laws of
Illinois, and the Corporation is validly existing and has not been dissolved.
(d)
Seller is the owner of the Shares, and the Shares are all of the issued and
outstanding shares of stock of the Corporation. All of the Shares have a par
value of $0.01, are fully paid and non-assessable.
(e)
There
are no violations of any law or governmental rule or regulation pending against
Seller, the Shares or the Corporation.
(f)
There
are no judgments, liens, suits, actions or proceedings pending against Seller,
the Shares or the Corporation, other than that has been disclosed on the books
of the Corporation.
(g)
The
Corporation has not entered into, other than disclosed to Purchaser, and is
not
subject to, any: (i) contract with any labor union or guild; (ii) pension,
profit-sharing, retirement, bonus, insurance, or similar plan with respect
to
any employee of the busi-ness; or (iii) similar contract or agreement affecting
or relating to the Corporation.
7.
Representations
and Warranties of Purchaser.
Purchaser re-presents and warrants to Seller as follows:
(a)
Purchaser is a corporation duly organized and validly existing under the laws
of
Illinois, and is duly qualified to do business in New York. Purchaser has full
power and authority to carry out and perform its undertakings and obligations
as
provided herein. The execution and delivery by Purchaser of this agree-ment
and
the consummation of the transactions contem-plated herein have been duly
authorized by the Board of Directors of Purchaser and will not conflict with
or
breach any provision of the Certificate of Incorpora-tion or Bylaws of
Purchaser.
(b)
No
action, approval, consent or authorization of any governmental authority is
necessary for Purchaser to consummate the transactions contemplated hereby.
(c)
There
are no judgments, liens, suits, actions or proceedings pending or, to the best
of Purchaser's knowledge, threatened against Purchaser or its prop-erty, other
than currently listed on the books of the Corporation.
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(d)
Purchaser has had the opportunity to perform all necessary due diligence and
is
fully aware of the financial position of the Corporation. Purchaser waives
any
and all claims for the any failure to disclose any information with respect
to
the Corporation.
8.
No
Other Representations.
Purchaser acknowledges that neither Seller nor any representative or agent
of
Seller has made any representation or warranty (expressed or implied) regarding
the Corporation, or any matter or thing affecting or relating to this agreement,
except as specifically set forth in this agree-ment. Seller shall not be liable
or bound in any manner by any oral or written statement, representation,
warranty, agreement or information pertaining to the Corporation or this
agreement furnished by any broker, agent or other person, unless specifi-cally
set forth in this agreement.
9.
Conduct
of the Business.
Seller,
until the closing, shall:
(a)
conduct the business in the normal, useful and regular manner;
(b)
use
its best efforts to preserve the business and the goodwill of the customers
and
suppliers of the business and others having relations with Seller;
and
(c)
give
Purchaser and its duly designated representa-tives reasonable access to the
premises of the Corpora-tion and the books and records of the Corporation,
and
furnish to Purchaser such data and information pertain-ing to the Corporation
as
Purchaser from time to time reasonably may request.
Unless
and until the closing shall take place, Purchaser shall hold in confidence
all
information obtained in connection with this agreement, and, if for any reason
the closing shall not take place, Purchaser shall return to Seller all documents
received hereunder.
10.
Conditions
to Closing.
The
obligations of the parties to close hereunder are subject to the following
conditions:
(a)
All
of the terms, covenants and conditions to be complied with or performed by
the
other party under this agreement on or before the closing shall have been
complied with or performed in all material respects.
(b)
All
representations or warranties of the other party herein are true in all material
respects as of the closing date.
(c)
On
the closing date, there shall be no liens or encumbrances against the
Corporation, except as may be provided for herein.
If
Purchaser shall be entitled to decline to close the trans-actions contemplated
by this agreement, but Purchaser neverthe-less shall elect to close, Purchaser
shall be deemed to have waived all
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claims
of
any nature arising from the failure of Sell-er to comply with the conditions
or
other provisions of this agreement of which Purchaser shall have actual
knowledge at the closing.
11.
Brokerage.
The
parties hereto represent and warrant to each other that they have not dealt
with
any broker or finder in con-nection with this agreement or the transactions
contemplated hereby, and no broker or any other person is entitled to receive
any brokerage commission, finder's fee or similar compensation in connection
with this agreement or the transactions contemplated hereby. Each of the parties
shall indemnify and hold the other harmless from and against all liability,
claim, loss, damage or expense, including reasonable attorneys' fees, pertaining
to any broker, finder or other person with whom such party has dealt.
12.
Attorneys'
Fees.
In the
event of litigation involving this agreement, the prevailing party shall be
entitled to an award of attorneys' fees and costs at the trial and appellate
levels.
13.
Notices.
All
notices, demands and other communications re-quired or permitted to be given
hereunder shall be in writing and shall be deemed to have been properly given
if
delivered by hand or by Federal Express courier or by registered or certified
mail, return receipt requested, with postage prepaid, to Seller or Pur-chaser,
as the case may be, at their addresses first above writ-ten, or at such other
addresses as they may designate by notice given hereunder.
14.
Survival.
The
representations, warranties and covenant contained herein shall survive the
delivery of the Xxxx of Sale and shall continue in full force and effect after
the closing, except to the extent waived in writing.
15.
Further
Assurances.
In
connection with the transactions contemplated by this agreement, the parties
agree to execute and deliver such further instruments, and to take such further
actions, as may be reasonably necessary or proper to effectuate and carry out
the transactions contemplated in this agreement.
16.
Entire
Agreement.
This
agreement contains all of the terms agreed upon between Seller and Purchaser
with respect to the subject matter hereof. This agreement has been entered
into
after full investigation. All prior oral or written statements, representations,
promises, understandings and agreements of Sell-er and Purchaser are merged
into
and superseded by this agree-ment, which alone fully and completely expresses
their agreement.
17.
Changes
Must Be In Writing.
No
delay or omission by either Seller or Purchaser in exercising any right shall
operate as a waiver of such right or any other right. This agreement may not
be
altered, amended, changed, modified, waived or terminated in any respect or
particular unless the same shall be in writing signed by the party to be bound.
No waiver by any party of any breach hereunder shall be deemed a waiver of
any
other or subse-quent breach.
18.
Captions
And Exhibits.
The
captions in this agreement are for convenience only and are not to be considered
in construing this agreement. The Exhibits annexed to this agreement are an
integral part of this agreement, and where there is any reference to this
agreement it shall be deemed to include said Exhibits.
5
19.
Governing
Law.
This
agreement shall be governed by and construed in accordance with the laws of
the
State of New York. If any provisions of this agreement shall be unenforceable
or
invalid, such unenforceability or invalidity shall not affect the remaining
provisions of this agreement.
20.
Binding
Effect.
This
agreement shall not be considered an offer or an acceptance of an offer by
Seller, and shall not be binding upon Seller until executed and delivered by
both Seller and Purchaser. Upon such execution and delivery, this agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted assigns.
This agreement may be executed in counterparts.
IN
WITNESS WHEREOF,
the
parties have executed this agreement as of the date first above
written.
| TRITON PETROLEUM GROUP, INC. | HYPERION HOLDINGS LLC | ||
| /s/ Xxxxx X. Xxxxxxx | /s/ Xxxx Xxxxxxx | ||
|
|
|
||
| Name:
Xxxxx X. Xxxxxxx Title: Interim President |
Name:
Xxxx Xxxxxxx |
6
EXHIBIT
A
PROMISSORY
NOTE
STATE
OF
NEW YORK, COUNTY OF , ss.
February
19, 2007
$500,000.00
FOR
VALUE RECEIVED,
, a
corporation, having an address at , (“Maker”), hereby covenants and promises to
pay to Triton Petroleum Group, Inc., a Nevada corporation, having an address
at
____________________________ (“Payee”), or order, at Payee's address first above
written or at such other address as Payee may designate in writing, Five Hundred
Thousand Dollars ($500,000.00), lawful money of the United States of America,
to-gether with interest thereon computed from the date hereof at the rate of
6
percent per annum, computed on an actual day/360 day basis (i.e., interest
for
each day during which any of the prin-cipal indebtedness is outstanding shall
be
computed at the afore-said rate divided by 360), which principal and interest
shall be payable in monthly installments, commencing on the first day of May,
2007, and continuing on the first day of each month thereafter, each such
installment being in an amount equal to the aggregate of (a) $____________,
to
be applied in reduction of principal, and (b) the amount of interest at the
aforesaid rate which has accrued to the date of such monthly installment, until
May 31, 2009, on which date all outstanding principal and accrued interest
shall
be due and payable.
Maker
covenants and agrees with Payee following:
1.
Maker
will pay the indebtedness evidenced by this Note as provided
herein.
2.
This
Note is secured by a Stock Pledge Agreement and Security Agreement of even
date
herewith (the “Stock Pledge Agreement and Security Agreement”). All of the
terms, covenants and conditions, contained in the Stock Pledge Agreement and
Security Agreement are expressly incorporated by reference herein and hereby
made a part hereof. In the event of any conflict bet-ween the provisions of
this
Note and the provisions of the Stock Pledge Agreement and Security Agreement,
the terms of the Stock Pledge Agreement and Security Agreement shall be
paramount and shall govern.
3.
In the
event any payment due hereunder shall not be paid on the date when due, such
payment shall bear interest at the lesser of six percent per annum or the
highest lawful rate permitted under applicable law, from the date when such
payment was due until paid. This paragraph shall not be deemed to extend or
otherwise modify or amend the date when such payments are due hereunder. The
obligations of Maker under this Note are subject to the
7
limitation
that payments of interest shall not be required to the extent that the charging
of or the receipt of any such payment by Payee would be contrary to the
provisions of law ap-plicable to Payee limiting the maximum rate of interest
which may be charged or collected by Payee.
4.
The
holder of this Note may declare the entire unpaid amount of principal and
interest under this Note to be immediately due and payable if Maker defaults
in
the due and punctual payment of any installment of principal or interest
hereunder.
5.
Maker
shall have the right to prepay the indebted-ness evidenced by this Note, in
whole or in part, without penal-ty, upon ten days prior written notice to Payee.
The installment payments provided for herein shall continue without change
after
any such prepayment.
6.
Maker,
and all guarantors, endorsers and sureties of this Note, hereby waive
presentment for payment, demand, pro-test, notice of protest, notice of
nonpayment, notice of intention to accelerate maturity, notice of acceleration
of maturity, and notice of dishonor of this Note. Maker and all guarantors,
endorsers and sureties consent that the holder of this Note at any time may
extend the time of payment of all or any part of the indebtedness secured
hereby, or may grant any other indulgences.
7.
Any
notice or demand required or permitted to be made or given hereunder shall
be
deemed sufficiently given or made if given by personal service or by Federal
Express courier or by certified or registered mail, return receipt requested,
addressed, if to Maker, at Maker's address first above written, or if to Payee,
at Payee's address first above written. Either party may change its address
by
like notice to the other party.
8.
This
Note may not be changed or terminated orally, but only an agreement in writing
signed by the party against whom enforcement of any change, modification,
termination, waiver, or discharge is sought. This Note shall be construed and
enforced in accordance with the laws of New York.
IN
WITNESS WHEREOF
Maker
has executed this Note as of the date first above written.
By
________________________
President
8
EXHIBIT
B
STOCK
PLEDGE AGREEMENT
AGREEMENT,
dated
as of February 19, 2007, between Hyperion Holdings LLC, a corporation, having
an
address at __________________________, (“Pledgor”), and Triton Petroleum Group,
Inc., a Nevada corporation, having an address at 00 Xxxxxxxx Xxx Xxxx, Xxxxxxxx,
XX 00000 (“Pledgee”).
W
I T N E S S E T H:
WHEREAS,
concurrently herewith Pledgee is lending to Pledgor the sum of $500,000.00,
as
evidenced by a Promissory Note of even date herewith (the “Note”);
and
WHEREAS,
in
order to induce Pledgee to make said loan, Pledgor has agreed to pledge to
Pledgee, as security for the loan, the 1,000 shares of stock of APPC Oil
Company, Inc. (the “Shares”), a corporation organized under the laws of New
York;
NOW
THEREFORE,
in
consideration of Ten Dollars, and other valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, the parties hereto agree as
fol-lows:
1.
Pledge
Of The Shares.
Pledgor
hereby pledges the Shares to Pledgee to secure the full and prompt payment
all
prin-cipal and interest due or to become due under the aforesaid Note.
2.
Pledgor's
Representations And Warranties.
Pledgor
hereby represents and warrants to Pledgee that:
(a)
There
are no restrictions upon the transfer of any of the Shares, other than may
appear on the face of the certificates, and Pledgor has the right to transfer
the Shares free of any encumbrance without the consent of any person or entity.
Neither the execution nor the delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof, will violate any law or regulation, or any order or decree of any court
of gov-ernmental authority, or will conflict with, or result in the breach
of,
or constitute a default under, any indenture, mortgage, deed or trust, agreement
or other instrument to which Pledgor is a party or by which Pledgor may be
bound, or result in the creation or imposition of any lien, claim or encumbrance
upon any property of Pledgor.
9
(b)
Pledgor has the power to execute, deliver and perform the provisions of this
Agreement and all instru-ments and documents delivered or to be delivered
pursu-ant hereto, and has taken or caused to be taken all necessary or
appropriate actions to authorize the execu-tion, delivery and performance of
this Agreement and all such instruments and documents.
(c)
Pledgor is the legal and equitable owner of the Shares, free and clear of all
security interests, liens, claims and encumbrances of every kind and nature.
3.
Protection
Of The Shares.
Pledgor
shall defend the title to the Shares against all claims and demands whatsoever.
Pledgor shall keep the Shares free and clear of all liens, charges,
encumbrances, taxes and assessments, and shall pay all taxes, assessments and
fees relating to the Shares. Upon request by Pledgee, Pledgor shall furnish
further assurances of title, execute any further instruments and do any other
acts necessary to effectuate the purposes and provisions of this Agreement.
Pledgor shall not sell, exchange, assign, transfer or otherwise dispose of
the
Shares, and shall not pledge, encumber, hypothe-cate, mortgage, create a lien
on
or security interest in the Shares, without the prior written consent of Pledgee
in each in-stance.
During
the term of this Agreement, and so long as there has not occurred an Event
of
Default, Pledgor shall have the right to vote the Shares on all corporate
questions, and Pledgee shall execute due and timely proxies in favor of Pledgor
to that end.
In
the
event that during the term of this Agreement any dividend, reclassification,
readjustment or other change is declared or made in the capital structure of
the
Corporation, all new, substituted and additional Shares or other securities
issued by reason of any such change immediately shall be assigned and delivered
by Pledgor to Pledgee and shall be held by Pledgee pur-suant to this Agreement.
In
the
event that during the term of this Agreement any warrants or other rights or
options shall be issued in connection with the Shares, such warrants, rights
and
options immediately shall be assigned and delivered by Pledgor to Pledgee and
shall be held by Pledgee pursuant to this Agreement.
4.
Default.
The
occurrence of any one or more of the following events (hereinafter referred
to
as “Events of Default”) shall constitute a default hereunder, whether such
occurrence is voluntary or involuntary or comes about or is effected by
opera-tion of law or pursuant to or in compliance with any judgment, decree
or
order of any court or any order, rule or regulation of any administrative or
governmental authority:
(a)
If
Pledgor shall default in the payment of any principal or interest due under
the
Note; or
(b)
If
Pledgor shall fail to pay, perform or observe any covenant, agreement, term
or
provision of this Agreement; or
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(c)
If
any representation, warranty or other statement of fact herein or in any
writing, certificate, report or statement at any time furnished to Pledgee
pursuant to or in connection with this Agreement or the Note shall be false
or
misleading in any material respect; or
(d)
If
Pledgor shall: admit in writing its inability to pay its debts generally as
they
become due; file a petition for relief under the bankruptcy laws or a petition
to take advantage of any insolvency act; make an assignment for the benefit
of
creditors; commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or the whole or any substantial part of
its
property; file a petition or answer seeking reorganization or arrangement or
similar relief under the Federal Bankruptcy Laws or any other applicable law
or
statute of the United States or any State; or if Pledgor shall be adjudged
a
bankrupt or insolvent, or a court of competent jurisdiction shall enter any
order, judgment or decree appointing a re-ceiver, trustee, liquidator or
conservator of Pledgor or of the whole or any substantial part of the property
of Pledgor or approves a petition filed against Pledgor seeking reorganization
or similar relief under the Fed-eral Bankruptcy Laws or any other applicable
law
or statute of the United States or any State; or if, under the provisions of
any
other law for the relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of Pledgor or the whole or any substantial
part
of its property; or if there is commenced against Pledgor any proceeding for
any
of the foregoing relief; or if Pledgor by any act indicates its consent to,
approval of, or acquiescence in any such proceeding; or
(e)
If
any creditor of Pledgor for any reason whatso-ever hereafter shall accelerate
payment in whole or in part of any outstanding obligation owed to it by Pledgor
under any agreement or arrangement, or if any judgment against the Pledgor
or
any execution against any of its property for any amount remains unpaid,
un-stayed or undismissed for a period in excess of ten days; or
(f)
If
Pledgor or any guarantor or surety of the Note shall die or cease to exist;
or
(g)
If
all or any part of the Shares shall be sold, transferred or assigned, or shall
be further encumber-ed, hypothecated, mortgaged, or made subject to any other
lien or security interest, without the prior written consent of Pledgee.
5.
Rights
And Remedies.
Upon
the occurrence of an Event of Default, the Note shall immediately become due
and
payable in full without notice or demand, upon five (5) days notice to cure.
Pledgee shall have all rights and remedies provided by the Uniform Commercial
Code in effect in the State of New York on the date hereof. In addition to,
or
in conjunction with, or substitution for such rights and remedies, Pledgee
may
at any time after the occurrence of an Event of Default hereunder:
(a)
sell
or otherwise dispose of all or any part of the Shares, in Pledgor's name or
in
its own name, or in the name of such party as Pledgee may designate, either at
11
public
or
private sale (at which Pledgee shall have the right to purchase), for cash
or
for credit, and in such manner and upon such other terms as Pledgee, in its
sole
discretion, may deem advisable; and ten days' written notice of such public
sale
date or dates after which private sale may occur, or such lesser period of
time
in the case of an emergency, shall constitute rea-sonable notice hereunder;
(b)
execute and deliver documents of title as attorney-in-fact for and in the name
of Pledgor;
(c)
apply
for an injunction to restrain a breach or threatened breach of this Agreement
by
Pledgor.
If,
after
an Event of Default, Pledgee shall foreclose upon the security interest in
the
Shares, Pledgor shall pay to Pledgee, as compensation for the attorneys' fees
of
Pledgee, an amount equal to 33 percent of the then outstanding indebtedness
under the Note.
Pledgor
shall be liable for, and shall reimburse to Pledgee, all expenses, including
reasonable attorneys' fees, incurred or paid in connection with establishing,
perfecting, maintaining, protecting or enforcing any of Pledgee's rights and
remedies hereunder.
6.
Cumulative
Rights.
All
rights, remedies and powers granted to Pledgee herein, or in any instrument
or
document re-lated hereto, or provided or implied by law or in equity shall
be
cumulative and may be exercised singly or concurrently on any one or more
occasions.
7.
Release
Of The Shares.
Upon
payment in full of the Note and any other sums due Pledgee hereunder, Pledgee
shall de-liver to Pledgor the Shares and any other collateral held here-under.
8.
Notices.
All
notices, requests, demands or other communications provided for herein shall
be
in writing and shall be deemed to have been properly given if sent by registered
or certified mail, return receipt requested, addressed to the parties at their
respective addresses herein above set forth, or at such other addresses as
the
parties may designate in writing. Pledgor immediately shall notify Pledgee
of
any change in the address of Pledgor or discontinuance of the place of business
or residence of Pledgor.
9.
Modification
And Waiver.
No
modification or waiver of any provision of this Agreement, and no consent by
Pledgee to any breach thereof by Pledgor, shall be effective unless such
modification or waiver shall be in writing and signed by Pledgee, and the same
shall then be effective only for the period and on the conditions and for the
specific instances and purposes specified in such writing. No course of dealing
between Pledgor and Pledgee in exercising any rights or remedies hereunder
shall
operate as a waiver or preclude the exercise of any other rights or remedies
hereunder. All such rights and remedies shall continue unimpaired,
notwithstanding any delay, extension of time, renewal, compromise or other
indulgence granted with re-spect to the Note. Pledgor hereby waives all notice
of any such delay, extension of time, renewal, compromise or indulgence, and
consents to be bound thereby as fully and effectually as
12
if
Pledgor expressly had agreed thereto in advance. The aforesaid Note may be
negotiated by Pledgee, without releasing Pledgor.
10.
Applicable
Law.
This
Agreement shall be construed in accordance with and shall be governed by the
laws of the State of New York. The invalidity or unenforceability of any
provision of this Agreement shall not effect the validity or enforceability
of
any other provision of this Agreement. Pledgor covenants and agrees to execute
and deliver to Pledgee on demand such addition-al assurances, writings and
instruments as may be required by Pledgee for purposes of effectuating the
intent of this Agree-ment. The captions in this Agreement are for convenience
only, and shall not be considered in construing this Agreement.
11.
Benefit.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and assigns.
Pledgee may assign this Agreement, and if assigned, the assignee shall be
entitled, upon notifying Pledgor, to the payment and performance of the Note
and
agreements of Pledgor hereunder and to all of the rights and remedies of Pledgee
hereunder, and Pledgor will assert no claims or defenses Pledgor may have
against Pledgee against the assignee. The gender and number used in this
Agreement are used for reference term only and shall apply with the same effect
whether the parties are masculine, feminine, neuter, singular or plural.
IN
WITNESS WHEREOF,
the
parties hereto have duly exe-cuted this Agreement as of the date first above
written.
Hyperion
Holdings LLC
By
________________________
President
TRITON
PETROLEUM GROUP, INC.
By
________________________
Xxxxx
X.
Xxxxxxx, Interim President
13
EXHIBIT
C
SECURITY
AGREEMENT
AGREEMENT,
dated
as of February 19, 2007, between Hyperion Holdings LLC, a corporation, having
an
address at _________________, (“Debtor”), and Triton Petroleum Group, Inc., a
Nevada corporation, having an address at 00 Xxxxxxxx Xxx Xxxx, Xxxxxxxx, XX
00000 (“Secured Party”).
W
I T N E S S E T H:
WHEREAS,
concurrently herewith Secured Party is lending to Debtor the sum of $500,000.00,
as evidenced by a Promissory Note of even date herewith (the “Note”);
and
WHEREAS,
in
order to induce Secured Party to make said loan, Debtor has agreed to pledge
to
Secured Party certain prop-erty as security for the loan;
NOW
THEREFORE,
in
consideration of Ten Dollars, and other valuable consideration, the receipt
and
sufficiency of which hereby are acknowledged, the parties hereto agree as
fol-lows:
1.
Definitions.
The
following terms as used in this Agreement shall have the meanings set forth
below:
“Collateral”
shall mean all of the property set forth in Exhibit A attached hereto and made
a
part hereof, and all property of the same class or character ac-quired by Debtor
subsequent to the date hereof, and all proceeds thereof, and all substitutions,
replacements and accessions thereto.
“Obligations”
shall mean all principal and interest due or to become due under the aforesaid
Note, and any other indebtedness or liability of Debtor to Secured Party, direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising.
2.
Creation
of the Security Interest.
Debtor
hereby grants to Secured Party a security interest in all of the right, title
and interest of Debtor in and to the Collateral to secure the full and prompt
payment and performance of all of the Obliga-tions.
14
3.
Debtor's
Obligations to Pay.
Debtor
shall pay and perform all of the Obligations of Debtor to Secured Party as
the
same may become due according to their terms. Debtor shall be liable for, and
shall reimburse to Secured Party, all expenses, including reasonable attorneys'
fees, incurred or paid in connec-tion with establishing, perfecting,
maintaining, protecting or enforcing any of Secured Party's rights and remedies
hereunder.
4.
Protection
of the Collateral.
Debtor
shall defend the title to the Collateral against all claims and demands
what-soever. Debtor shall keep the Collateral free and clear of all liens,
charges, encumbrances, taxes and assessments, and shall pay all taxes,
assessments and fees relating to the Collateral. Upon request by Secured Party,
Debtor shall furnish further assurances of title, execute any further
instruments and do any other acts necessary to effectuate the purposes and
provisions of this Agreement. Debtor shall not sell, exchange, assign, trans-fer
or otherwise dispose of the Collateral, without the prior written consent of
Secured Party in each instance. The risk of loss of the Collateral at all times
shall be borne by Debtor. Debtor shall keep the Collateral in good repair and
condition and shall not misuse, abuse or waste the Collateral or allow the
Col-lateral to deteriorate except for normal wear and tear.
The
Collateral shall be kept at Debtor's place of business set forth above, except
for temporary removal in connec-tion with its ordinary use or unless Debtor
shall have obtained the prior written consent of Secured Party for its removal
to another location. Secured Party shall have the right to enter upon Debtor's
premises at any reasonable time, and from time to time, to inspect the
Collateral.
5.
Filing
and Recording.
Debtor,
at its own cost and expense, shall execute and deliver to Secured Party any
financing statements, and shall procure for Secured Party any other docu-ments,
necessary or appropriate to protect the security interest granted to Secured
Party hereunder against the rights and inter-ests of third parties, and shall
cause the same to be duly re-corded and filed in all places necessary to perfect
the security interest of Secured Party in the Collateral. In the event that
any
recording or refiling thereof (or filing of any statements of continuation
or
assignment of any financing statement) is required to protect and preserve
such
security interest, Debtor, at its own cost and expense, shall cause the same
to
be re-recorded and/or refiled at the time and in the manner requested by Secured
Party. Debtor hereby authorizes Secured Party to file or refile any financing
statements or continuation statements with respect to the security interest
granted pursuant to this Agreement which at any time may be required or
appropriate, al-though the same may have been executed only by Secured Party,
and to execute such financing statement on behalf of Debtor. Debtor hereby
irrevocably designates Secured Party, its agents, repre-sentatives and
designees, as agent and attorney-in-fact for Debtor for the aforesaid purposes.
6.
Default.
The
occurrence of any one or more of the following events (hereinafter referred
to
as “Events of Default”) shall constitute a default hereunder, whether such
occurrence is voluntary or involuntary or comes about or is effected by
opera-tion of law or pursuant to or in compliance with any judgment, decree
or
order of
15
any
court
or any order, rule or regulation of any administrative or governmental
authority:
(a)
If
Debtor shall default in the payment of any principal or interest due under
the
Note; or
(b)
If
Debtor shall fail to pay, perform or observe any covenant, agreement, term
or
provision of this Agreement, or any other agreement or arrangement now or
hereafter entered into between the parties hereto or with respect to any
Obligation of Debtor to Secured Party; or
(c)
If
any representation, warranty or other statement of fact herein or in any
writing, certificate, report or statement at any time furnished to Secured
Party
pursuant to or in connection with this Agreement or the Note shall be false
or
misleading in any material respect; or
(d)
If
Debtor shall: admit in writing its inability to pay its debts generally as
they
become due; file a petition for relief under the bankruptcy laws or a petition
to take advantage of any insolvency act; make an assignment for the benefit
of
creditors; commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or the whole or any substantial part of
its
property; file a petition or answer seeking reorganization or arrangement or
similar relief under the federal Bankruptcy Laws or any other applicable law
or
statute of the United States or any state; or if Debtor shall be adjudged a
bankrupt or in-solvent, or a court of competent jurisdiction shall enter any
order, judgment or decree appointing a re-ceiver, trustee, liquidator or
conservator of Debtor or of the whole or any substantial part of the property
of
Debtor or approves a petition filed against Debtor seeking reorganization or
similar relief under the fed-eral Bankruptcy Laws or any other applicable law
or
statute of the United States or any state; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of Debtor or the whole or any substantial part
of its property; or if there is com-menced against Debtor any proceeding for
any
of the foregoing relief; or if Debtor by any act indicates its consent to,
approval of, or acquiescence in any such proceeding; or
(e)
If
any creditor of Debtor for any reason whatso-ever hereafter shall accelerate
payment in whole or in part of any outstanding obligation owed to it by Debtor
under any agreement or arrangement, or if any judgment against the Debtor or
any
execution against any of its property for any amount remains unpaid, unstayed
or
undismissed for a period in excess of ten days; or
16
(f)
If
Debtor or any guarantor or surety of any Obligation shall die or cease to exist;
or
(g)
If
there occur any reduction in the value of the Collateral or any act of Debtor
which imperils the prospect of the full performance or satisfaction of the
Obligations; or
(h)
If
all or any part of the Collateral shall be sold, transferred or assigned,
without the prior written consent of Secured Party.
7.
Rights
and Remedies.
Upon
the occurrence of an Event of Default, the Obligations shall immediately become
due and payable in full without notice or demand. Secured Party shall have
all
rights and remedies provided by the Uniform Commercial Code in effect in the
State of New York on the date hereof. In addition to, or in conjunction with,
or
substitution for such rights and remedies, Secured Party may at any time and
from and after the occurrence of an Event of Default hereunder:
(a)
with
or without notice to Debtor, foreclose the security interest created herein
by
any available judicial procedure, or take possession of the Collateral, or
any
portion thereof, with or without judicial process, and enter any premises where
the Collateral may be located for the purpose of taking possession of or
removing the same, or rendering the same unusable, or disposing of the
Collateral on such premises, and Debtor agrees not to resist or interfere
therewith;
(b)
require Debtor to prepare, assemble or collect the Collateral, at Debtor's
own
expense, and make the same available to Secured Party at such place as Secured
Party may designate, whether at Debtor's premises or elsewhere;
(c)
sell,
lease or otherwise dispose of all or any part of the Collateral, whether in
its
then condition or after further preparation, in Debtor's name or in its own
name, or in the name of such party as Secured Party may designate, either at
public or private sale (at which Secured Party shall have the right to
purchase), in lots or in bulk, for cash or for credit, with or without
representations or warranties, and upon such other terms as Secured Party,
in
its sole discretion, may deem advisable; and ten days' written notice of such
public sale date or dates after which private sale may occur, or such lesser
period of time in the case of an emergency, shall constitute reasonable notice
hereunder;
(d)
execute and deliver documents of title, certifi-xxxxx of origin, or other
evidence of payment, shipment or storage of any Collateral or proceeds on behalf
of and in the name of Debtor;
17
(e)
remedy any default by Debtor hereunder, without waiving such default, and any
monies expended in so doing shall be chargeable with interest to Debtor and
added to the Obligations secured hereby; and
(f)
apply
for an injunction to restrain a breach or threatened breach of this Agreement
by
Debtor.
If,
after
an Event of Default, Secured Party shall foreclose upon the security interest
in
the Collateral, Debtor shall pay to Secured Party, as compensation for the
attorneys' fees of Secured Party, an amount equal to 33 percent of the then
outstanding Obligations.
8.
Cumulative
Rights.
All
rights, remedies and powers granted to Secured Party herein, or in any
instrument or document related hereto, or provided or implied by law or in
equity shall be cumulative and may be exercised singly or concurrently on any
one or more occasions.
9.
Debtor's
Representations and Warranties.
Debtor
hereby represents and warrants to Secured Party that:
(a)
Debtor is not in default under any indenture, mortgage, deed of trust, agreement
or other instrument to which it is a party or by which it may be bound. Neither
the execution nor the delivery of this Agree-ment, nor the consummation of
the
transactions herein contemplated, nor compliance with the provisions hereof,
will violate any law or regulation, or any order or decree of any court of
governmental authority, or will conflict with, or result in the breach of,
or
constitute a default under, any indenture, mortgage, deed or trust, agreement
or
other instrument to which Debtor is a party or by which Debtor may be bound,
or
result in the creation or imposition of any lien, claim or encumbrance upon
any
property of Debtor.
(b)
Debtor has the power to execute, deliver and perform the provisions of this
Agreement and all instruments and documents delivered or to be delivered
pursuant hereto, and has taken or caused to be taken all necessary or
appropriate actions to authorize the execution, delivery and performance of
this
Agreement and all such instruments and documents.
(c)
Debtor is the legal and equitable owner of the Collateral, free and clear of
all
security interests, liens, claims and encumbrances of every kind and nature.
Except as may be set forth in Exhibit A annexed hereto, no financing statement
covering the Collateral or its proceeds is on file in any public office.
(d)
No
default exists, and no event which with notice or the passage of time, or both,
would constitute a default under the Collateral by any party
18
thereto,
and there are no offsets, claims or defenses against the obligations evidenced
by the Collateral, except as may be expressly set forth in Exhibit A annexed
hereto.
10.
Notices.
All
notices, requests, demands or other communications provided for herein shall
be
in writing and shall be deemed to have been properly given if sent by Federal
Express courier or by registered or certified mail, return receipt requested,
with postage prepaid, addressed to the parties at their respective addresses
herein above set forth, or at such other addresses as the parties may designate
in writing. Debtor immediately shall notify Secured Party of any change in
the
address of Debtor or discontinuance of the place of business or residence of
Debtor.
11.
Modification
and Waiver.
No
modification or waiver of any provision of this Agreement, and no consent by
Secured Party to any breach thereof by Debtor, shall be effective unless such
modification or waiver shall be in writing and signed by Secured Party, and
the
same shall then be effective only for the period and on the conditions and
for
the specific instances and purposes specified in such writing. No course of
dealing between Debtor and Secured Party in exercising any rights or remedies
hereunder shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder. All such rights and remedies shall continue unimpaired,
notwithstanding any delay, extension of time, renewal, compromise or other
indulgence granted with respect to any of the Obligations. Debtor hereby waives
all notice of any such delay, extension of time, renewal, compromise or
indulgence, and consents to be bound thereby as fully and effectually as if
Debtor expressly had agreed thereto in advance. The aforesaid Note may be
negotiated by Secured Party, without releasing Debtor or the Collateral.
12.
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and assigns.
Secured Party may assign this Agreement, and if assigned, the assignee shall
be
entitled, upon notifying Debtor, to the payment and performance of all of the
Obligations and agreements of Debtor hereunder and to all of the rights and
remedies of Secured Party hereunder, and Debtor will assert no claims or
defenses Debtor may have against Secured Party against the assignee. The gender
and number used in this Agreement are used for reference term only and shall
apply with the same effect whether the parties are masculine, feminine, neuter,
singular or plural.
13.
Miscellaneous.
This
Agreement shall be construed in accordance with and shall be governed by the
laws of the State of New York. The invalidity or unenforceability of any
provision of this Agreement shall not effect the validity or enforceability
of
any other provision of this Agreement. Debtor covenants and agrees to execute
and deliver to Secured Party on demand such ad-ditional assurances, writings
and
instruments as may be required by Secured Party for purposes of effectuating
the
intent of this Agreement. The captions in this Agreement are for convenience
only, and shall not be considered in construing this Agreement.
19
IN
WITNESS WHEREOF,
the
parties hereto have duly exe-cuted this Agreement as of the date first above
written.
Hyperion
Holdings LLC
By
________________________
President
TRITON
PETROLEUM GROUP, INC.
By
________________________
Xxxxx
X.
Xxxxxxx, Interim President
