FORM OF
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of January 5, 2006 (this "AGREEMENT"), is
entered into by and among MAVERICK OIL AND GAS, INC. a Nevada corporation (the
"DEBTOR"), and ________________________________, and _____________________
(together, the "SECURED PARTIES"), the Holders of those certain Secured
Convertible Debentures due January 5, 2009 (or other date as set forth therein)
in the original aggregate principal amount of $20,000,000 (the "DEBENTURES"),
issued by Debtor to the Secured Parties in connection with that certain
Securities Purchase Agreement entered into by and between the Debtor and the
Secured Parties on the date hereof (the "SECURITIES PURCHASE AGREEMENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Debentures, the Secured Parties have agreed to
extend certain loans described above to the Debtor as evidenced by the
Debentures; and
WHEREAS, in order to induce the Secured Parties to extend the loans
evidenced by the Debentures, the Debtor has agreed to execute and deliver to the
Secured Parties this Agreement and to grant the Secured Party a perfected first
priority security interest in all property of the Debtor to secure the prompt
payment, performance and discharge in full of all of the Debtor's obligations
under the Debentures.
NOW, THEREFORE, in consideration of the agreements herein contained and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth in this Section 1. Terms used but not
otherwise defined in this Agreement that are defined in Article 9 of the UCC
(such as "general intangibles" and "proceeds") shall have the respective
meanings given such terms in Article 9 of the UCC, and capitalized terms not
otherwise defined herein shall have the meaning given them in the Securities
Purchase Agreement described above.
(a) "Collateral" means the collateral in which the Secured Party is
granted a security interest by this Agreement and which shall include the
following, whether presently owned or existing or hereafter acquired or
coming into existence, and all additions and accessions thereto and all
substitutions and replacements thereof, and all proceeds, products and
accounts thereof, including, without limitation, all proceeds from the sale
or transfer of the Collateral and of insurance covering the same and of any
tort claims in connection therewith:
(i) All Goods of the Debtor, including, without limitations, all
machinery, equipment, computers, motor vehicles, trucks, tanks, boats,
ships, appliances, furniture, special and general tools, fixtures, test
and quality control devices and other equipment of every kind and
nature and wherever situated, together with all documents of title and
documents representing the same, all additions and accessions thereto,
replacements therefor, all parts therefor, and all substitutes for any
of the foregoing and all other items used and useful in connection with
the Debtor's businesses and all improvements thereto (collectively, the
"EQUIPMENT"); and
(ii) All Inventory of the Debtor; and
(iii) All of the Debtor's contract rights and general intangibles,
including, without limitation, all partnership interests, stock or
other securities, licenses, distribution and other agreements, computer
software (whether "off-the-shelf", licensed from any third party or
developed by Debtor) computer software development rights, leases,
franchises, customer lists, quality control procedures, grants and
rights, goodwill, trademarks, service marks, trade styles, trade names,
patents, patent applications, copyrights, deposit accounts and income
tax refunds (collectively, the "GENERAL INTANGIBLES"); and
(iv) All Receivables of the Debtor including all insurance proceeds,
and rights to refunds or indemnification whatsoever owing, together
with all instruments, all documents of title representing any of the
foregoing, all rights in any merchandising, goods, equipment, motor
vehicles and trucks which any of the same may represent, and all right,
title, security and guaranties with respect to each Receivable,
including any right of stoppage in transit; and
(v) All of the Debtor's documents, instruments and chattel paper,
files, records, books of account, business papers, computer programs
and the products and proceeds of all of the foregoing Collateral set
forth in clauses (i)-(iv) above.
(b) "Obligations" means all of the Debtor's obligations under the
Transaction Documents (as defined in the Securities Purchase Agreement), in
each case, whether now or hereafter existing, voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or unliquidated,
whether or not jointly owed with others, and whether or not from time to
time decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are paid, to
the extent all or any part of such payment is avoided or recovered directly
or indirectly from the Secured Party as a preference, fraudulent transfer
or otherwise as such obligations may be amended, supplemented, converted,
extended or modified from time to time.
(c) "UCC" means the Uniform Commercial Code and or any other applicable
law of any jurisdiction (including, without limitation, the state of Nevada
and New York) as to any Collateral located therein.
2. GRANT OF PERFECTED FIRST PRIORITY SECURITY INTEREST. As an inducement
for the Secured Party to extend the loans as evidenced by the Debentures and to
secure the complete and timely payment, performance and discharge in full, as
the case may be, of all of the Obligations, the Debtor hereby unconditionally
and irrevocably pledges, grants and hypothecates to the Secured Party a
continuing and perfected first priority security interest in and to, a lien upon
and a right of set-off against all of their respective right, title and interest
of whatsoever kind and nature in and to, the Collateral (the "SECURITY
INTEREST").
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3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE DEBTOR. The
Debtor represents and warrants to, and covenants and agrees with, the Secured
Party as follows:
(a) The Debtor has the requisite corporate power and authority to enter
into this Agreement and otherwise to carry out its obligations hereunder.
The execution, delivery and performance by the Debtor of this Agreement and
the filings contemplated therein have been duly authorized by all necessary
action on the part of the Debtor and no further action is required by the
Debtor.
(b) The Debtor represents and warrants that they have no place of
business or offices where their respective books of account and records are
kept (other than temporarily at the offices of its attorneys or
accountants) or places where Collateral is stored or located, except as set
forth on Schedule A attached hereto.
(c) The Debtor is the sole owner of the Collateral (except for
non-exclusive licenses granted by the Debtor in the ordinary course of
business), free and clear of any liens, security interests, encumbrances,
rights or claims, and are fully authorized to grant the Security Interest
in and to pledge the Collateral. There is not on file in any governmental
or regulatory authority, agency or recording office an effective financing
statement, security agreement, license or transfer or any notice of any of
the foregoing (other than those that will be filed in favor of the Secured
Party pursuant to this Agreement) covering or affecting any of the
Collateral. So long as this Agreement shall be in effect, Debtor shall not
execute and shall not knowingly permit to be on file in any such office or
agency any such financing statement or other document or instrument (except
to the extent filed or recorded in favor of the Secured Party pursuant to
the terms of this Agreement).
(d) No part of the Collateral has been judged invalid or unenforceable.
No written claim has been received that any Collateral or Debtor's use of
any Collateral violates the rights of any third party. There has been no
adverse decision to Debtor's claim of ownership rights in or exclusive
rights to use the Collateral in any jurisdiction or to Debtor's right to
keep and maintain such Collateral in full force and effect, and there is no
proceeding involving said rights pending or, to the best knowledge of the
Debtor, threatened before any court, judicial body, administrative or
regulatory agency, arbitrator or other governmental authority.
(e) The Debtor shall at all times maintain its books of account and
records relating to the Collateral at its principal place of business and
its Collateral at the locations set forth on Schedule A attached hereto and
may not relocate such books of account and records or tangible Collateral
unless it delivers to the Secured Party at least 30 days prior to such
relocation (i) written notice of such relocation and the new location
thereof (which must be within the United States) and (ii) evidence that
appropriate financing statements under the UCC and other necessary
documents have been filed and recorded and other steps have been taken to
perfect the Security Interest to create in favor of the Secured Party a
valid, perfected and continuing perfected first priority lien in the
Collateral.
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(f) This Agreement creates in favor of the Secured Party a valid
security interest in the Collateral securing the payment and performance of
the Obligations and, upon making the filings described in the immediately
following sentence, a perfected first priority security interest in such
Collateral.
(g) The Debtor hereby authorizes the Secured Party to file one or more
financing statements under the UCC, with respect to the Security Interest
with the proper filing and recording agencies in any jurisdiction deemed
proper by them.
(h) The execution, delivery and performance of this Agreement by the
Debtor does not conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing Debtor's
debt or otherwise) or other understanding to which Debtor is a party or by
which any property or asset of the Debtor is bound or affected. No consent
(including, without limitation, from stockholders or creditors of the
Debtor) is required for the Debtor to enter into and perform its
obligations hereunder.
(i) The Debtor shall at all times maintain the liens and Security
Interest provided for hereunder as valid and perfected first priority liens
and security interests in the Collateral in favor of the Secured Party
until this Agreement and the Security Interest hereunder shall be
terminated pursuant to Section 11 hereof. The Debtor hereby agrees to
defend the same against any and all persons. The Debtor shall safeguard and
protect all Collateral for the account of the Secured Party. At the request
of the Secured Party, the Debtor will sign and deliver to the Secured Party
at any time or from time to time one or more financing statements pursuant
to the UCC in form reasonably satisfactory to the Secured Party and will
pay the cost of filing the same in all public offices wherever filing is,
or is deemed by the Secured Party to be, necessary or desirable to effect
the rights and obligations provided for herein. Without limiting the
generality of the foregoing, the Debtor shall pay all fees, taxes and other
amounts necessary to maintain the Collateral and the Security Interest
hereunder, and the Debtor shall obtain and furnish to the Secured Party
from time to time, upon demand, such releases and/or subordinations of
claims and liens which may be required to maintain the priority of the
Security Interest hereunder.
(j) The Debtor will not transfer, pledge, hypothecate, encumber,
license (except for non-exclusive licenses granted by a Debtor in its
ordinary course of business and sales of inventory), sell or otherwise
dispose of any of the Collateral without the prior written consent of the
Secured Party.
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(k) The Debtor shall keep and preserve its Equipment, Inventory and
other tangible Collateral in good condition, repair and order and shall not
operate or locate any such Collateral (or cause to be operated or located)
in any area excluded from insurance coverage.
(l) The Debtor shall, within ten (10) days of obtaining knowledge
thereof, advise the Secured Party promptly, in sufficient detail, of any
substantial change in the Collateral, and of the occurrence of any event
which would have a material adverse effect on the value of the Collateral
or on the Secured Party's security interest therein.
(m) The Debtor shall promptly execute and deliver to the Secured Party
such further deeds, mortgages, assignments, security agreements, financing
statements or other instruments, documents, certificates and assurances and
take such further action as the Secured Party may from time to time request
and may in its sole discretion deem necessary to perfect, protect or
enforce its security interest in the Collateral including, without
limitation, if applicable, the execution and delivery of a separate
security agreement with respect to each Debtor's intellectual property
("INTELLECTUAL PROPERTY SECURITY AGREEMENT") in which the Secured Party has
been granted a security interest hereunder, substantially in a form
acceptable to the Secured Party, which Intellectual Property Security
Agreement, other than as stated therein, shall be subject to all of the
terms and conditions hereof.
(n) The Debtor shall permit the Secured Party and its representatives
and agents to inspect the Collateral at any time, and to make copies of
records pertaining to the Collateral as may be requested by the Secured
Party from time to time.
(o) The Debtor shall take all steps reasonably necessary to diligently
pursue and seek to preserve, enforce and collect any rights, claims, causes
of action and accounts receivable in respect of the Collateral.
(p) The Debtor shall promptly notify the Secured Party in sufficient
detail upon becoming aware of any attachment, garnishment, execution or
other legal process levied against any Collateral and of any other
information received by the Debtor that may materially affect the value of
the Collateral, the Security Interest or the rights and remedies of the
Secured Party hereunder.
(q) All information heretofore, herein or hereafter supplied to the
Secured Party by or on behalf of the Debtor with respect to the Collateral
is accurate and complete in all material respects as of the date furnished.
(r) The Debtor shall at all times preserve and keep in full force and
effect their respective valid existence and good standing and any rights
and franchises material to its business.
(s) The Debtor will not change its name, corporate structure, or
identity, or add any new fictitious name unless it provides at least 30
days prior written notice to the Secured Party of such change and, at the
time of such written notification, such Debtor provides any financing
statements or fixture filings necessary to perfect and continue perfected
the perfected first priority Security Interest granted and evidenced by
this Agreement.
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(t) The Debtor may not consign any of its Inventory or sell any of its
Inventory on xxxx and hold, sale or return, sale on approval, or other
conditional terms of sale without the consent of the Secured Party which
shall not be unreasonably withheld.
(u) The Debtor may not relocate its chief executive office to a new
location without providing 30 days prior written notification thereof to
the Secured Party and so long as, at the time of such written notification,
the Debtor provides any financing statements or fixture filings necessary
to perfect and continue perfected the perfected first priority Security
Interest granted and evidenced by this Agreement.
4. Defaults. The following events shall be "EVENTS OF DEFAULT":
(a) The occurrence of an Event of Default (as defined in the Debenture)
under any Debenture;
(b) Any representation or warranty of Debtor in this Agreement shall
prove to have been incorrect in any material respect when made;
(c) The failure by Debtor to observe or perform any of its obligations
hereunder for five (5) days after delivery to Debtor of notice of such
failure by or on behalf of a Secured Party; or
(d) If any provision of this Agreement shall at any time for any reason
be declared to be null and void, or the validity or enforceability thereof
shall be contested by Debtor, or a proceeding shall be commenced by Debtor,
or by any governmental authority having jurisdiction over Debtor, seeking
to establish the invalidity or unenforceability thereof, or Debtor shall
deny that Debtor has any liability or obligation purported to be created
under this Agreement.
5. Duty To Hold In Trust. Upon the occurrence of any Event of Default and
at any time thereafter, the Debtor shall, upon receipt of any revenue, income or
other sums subject to the Security Interest, whether payable pursuant to the
Debentures or otherwise, or of any check, draft, note, trade acceptance or other
instrument evidencing an obligation to pay any such sum, hold the same in trust
for the Secured Parties and shall forthwith endorse and transfer any such sums
or instruments, or both, to the Secured Parties (pro rata in accordance with the
principal amount of Debentures held by each) for application to the satisfaction
of the Obligations.
6. Rights and Remedies Upon Default. Upon the occurrence of any Event of
Default and at any time thereafter, each Secured Party shall have the right to
exercise all of the remedies conferred hereunder and under the Debentures, and
each Secured Party shall have all the rights and remedies of a secured party
under the UCC. Without limitation, each Secured Party shall have the following
rights and powers:
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(a) The Majority Secured Party shall have the right to take possession
of the Collateral and, for that purpose, enter, with the aid and assistance
of any person, any premises where the Collateral, or any part thereof, is
or may be placed and remove the same, and the Debtor shall assemble the
Collateral and make it available to the Majority Secured Party at places
which the Majority Secured Party shall reasonably select, whether at the
Debtor's premises or elsewhere, and make available to the Majority Secured
Party, without rent, all of the Debtor's respective premises and facilities
for the purpose of the Majority Secured Party taking possession of,
removing or putting the Collateral in saleable or disposable form.
(b) The Majority Secured Party shall have the right to operate the
business of the Debtor using the Collateral and shall have the right to
assign, sell, lease or otherwise dispose of and deliver all or any part of
the Collateral, at public or private sale or otherwise, either with or
without special conditions or stipulations, for cash or on credit or for
future delivery, in such parcel or parcels and at such time or times and at
such place or places, and upon such terms and conditions as the Majority
Secured Party may deem commercially reasonable, all without (except as
shall be required by applicable statute and cannot be waived) advertisement
or demand upon or notice to the Debtor or right of redemption of a Debtor,
which are hereby expressly waived. Upon each such sale, lease, assignment
or other transfer of Collateral, the Majority Secured Party may, unless
prohibited by applicable law which cannot be waived, purchase all or any
part of the Collateral being sold, free from and discharged of all trusts,
claims, right of redemption and equities of the Debtor, which are hereby
waived and released. For purposes of this Agreement, "MAJORITY SECURITY
PARTY" shall mean the Secured Party or Security Parties that hold in the
aggregate a Debenture or Debentures representing a majority in aggregate
principal amount of all Debentures.
7. Applications of Proceeds. The proceeds of any such sale, lease or other
disposition of the Collateral hereunder shall be applied first, to the expenses
of retaking, holding, storing, processing and preparing for sale, selling, and
the like (including, without limitation, any taxes, fees and other costs
incurred in connection therewith) of the Collateral, to the reasonable
attorneys' fees and expenses incurred by the Majority Secured Party in enforcing
its rights hereunder and in connection with collecting, storing and disposing of
the Collateral, and then to satisfaction of the Obligations to each Secured
Party, and to the payment of any other amounts required by applicable law, after
which the Secured Parties shall pay to the Debtor any surplus proceeds. If, upon
the sale, license or other disposition of the Collateral, the proceeds thereof
are insufficient to pay all amounts to which the Secured Parties are legally
entitled, the Debtor will be liable for the deficiency, together with interest
thereon, at the rate of 15% per annum or the lesser amount permitted by
applicable law (the "DEFAULT RATE"), and the reasonable fees of any attorneys
employed by the Majority Secured Party to collect such deficiency. To the extent
permitted by applicable law, the Debtor waives all claims, damages and demands
against the Secured Parties arising out of the repossession, removal, retention
or sale of the Collateral, unless due to the gross negligence or willful
misconduct of the Secured Parties.
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8. Costs and Expenses. The Debtor agrees to pay all reasonable
out-of-pocket fees, costs and expenses incurred in connection with any filing
required hereunder, including without limitation, any financing statements
pursuant to the UCC, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by any Secured Party. The Debtor shall also pay all other
claims and charges which in the reasonable opinion of the Majority Secured Party
might prejudice, imperil or otherwise affect the Collateral or the Security
Interest therein. The Debtor will also, upon demand, pay to the Majority Secured
Party the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, which the
Majority Secured Party may incur in connection with (i) the enforcement of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, or (iii) the exercise or
enforcement of any of the rights of the Secured Parties under the Debentures.
Until so paid, any fees payable hereunder shall be added to the principal amount
of the Debentures and shall bear interest at the Default Rate.
9. Responsibility for Collateral. The Debtor assumes all liabilities and
responsibility in connection with all Collateral, and the Obligations in no way
be affected or diminished by reason of the loss, destruction, damage or theft of
any of the Collateral or its unavailability for any reason.
10. Security Interest Absolute. All rights of each Secured Party and all
Obligations of the Debtor hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Debentures or any agreement entered into in connection with the foregoing,
or any portion hereof or thereof; (b) any change in the time, manner or place of
payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Debentures or any other agreement entered into in connection with the
foregoing; (c) any exchange, release or nonperfection of any of the Collateral,
or any release or amendment or waiver of or consent to departure from any other
collateral for, or any guaranty, or any other security, for all or any of the
Obligations; (d) any action by the Majority Secured Party to obtain, adjust,
settle and cancel in its sole discretion any insurance claims or matters made or
arising in connection with the Collateral; or (e) any other circumstance which
might otherwise constitute any legal or equitable defense available to a Debtor,
or a discharge of all or any part of the Security Interest granted hereby. Until
the Obligations shall have been paid and performed in full, the rights of each
Secured Party shall continue even if the Obligations are barred for any reason,
including, without limitation, the running of the statute of limitations or
bankruptcy. The Debtor expressly waives presentment, protest, notice of protest,
demand, notice of nonpayment and demand for performance. In the event that at
any time any transfer of any Collateral or any payment received by any Secured
Party hereunder shall be deemed by final order of a court of competent
jurisdiction to have been a voidable preference or fraudulent conveyance under
the bankruptcy or insolvency laws of the United States, or shall be deemed to be
otherwise due to any party other than any Secured Party, then, in any such
event, the Debtor's obligations hereunder shall survive cancellation of this
Agreement, and shall not be discharged or satisfied by any prior payment thereof
and/or cancellation of this Agreement, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions hereof. The
Debtor waives all right to require a Secured Party to proceed against any other
person or to apply any Collateral which such Secured Party may hold at any time,
or to marshal assets, or to pursue any other remedy. The Debtor waives any
defense arising by reason of the application of the statute of limitations to
any obligation secured hereby.
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11. Term of Agreement. This Agreement and the Security Interest shall
terminate on the date on which all payments under the Debentures have been made
in full or have been satisfied and all other Obligations have been paid or
discharged. Upon such termination, each Secured Party, at the request and at the
expense of the Debtor, will join in executing any termination statement with
respect to any financing statement executed and filed pursuant to this
Agreement.
12. Power of Attorney; Further Assurances.
(a) The Debtor authorizes the Majority Secured Party, and does hereby
make, constitute and appoint the Majority Secured Party and its respective
officers, agents, successors or assigns with full power of substitution, as
the Debtor's true and lawful attorney-in-fact, with power, in the name of
the Majority Secured Party or the Debtor, to, after the occurrence and
during the continuance of an Event of Default, (i) endorse any note,
checks, drafts, money orders or other instruments of payment (including
payments payable under or in respect of any policy of insurance) in respect
of the Collateral that may come into possession of the Secured Party; (ii)
to sign and endorse any financing statement pursuant to the UCC or any
invoice, freight or express xxxx, xxxx of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications and notices in
connection with accounts, and other documents relating to the Collateral;
(iii) to pay or discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on or threatened against the
Collateral; (iv) to demand, collect, receipt for, compromise, settle and
xxx for monies due in respect of the Collateral; and (v) generally, to do,
at the option of the Majority Secured Party, and at the expense of the
Debtor, at any time, or from time to time, all acts and things which the
Majority Secured Party deem necessary to protect, preserve and realize upon
the Collateral and the Security Interest granted therein in order to effect
the intent of this Agreement and the Debentures all as fully and
effectually as the Debtor might or could do; and the Debtor hereby ratifies
all that said attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest and shall be
irrevocable for the term of this Agreement and thereafter as long as any of
the Obligations shall be outstanding.
(b) On a continuing basis, the Debtor will make, execute, acknowledge,
deliver, file and record, as the case may be, with the proper filing and
recording agencies in any jurisdiction, including, without limitation, the
jurisdictions indicated on Schedule B attached hereto, all such
instruments, and take all such action as may reasonably be deemed necessary
or advisable, or as reasonably requested by the Majority Secured Party, to
perfect the Security Interest granted hereunder and otherwise to carry out
the intent and purposes of this Agreement, or for assuring and confirming
to the Majority Secured Party the grant or perfection of a perfected first
priority security interest in all the Collateral under the UCC.
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(c) The Debtor hereby irrevocably appoints the Majority Secured Party
as the Debtor's attorney-in-fact, with full authority in the place and
instead of the Debtor and in the name of the Debtor, from time to time in
the Majority Secured Party's discretion, to take any action and to execute
any instrument which the Majority Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including the
filing, in its sole discretion, of one or more financing or continuation
statements and amendments thereto, relative to any of the Collateral
without the signature of the Debtor where permitted by law.
13. Notices. All notices, requests, demands and other communications
hereunder shall be subject to the notice provision of the Purchase Agreement.
14. Other Security. To the extent that the Obligations are now or hereafter
secured by property other than the Collateral or by the guarantee, endorsement
or property of any other person, firm, corporation or other entity, then the
Majority Secured Party shall have the right, in its sole discretion, to pursue,
relinquish, subordinate, modify or take any other action with respect thereto,
without in any way modifying or affecting any of the Secured Party's rights and
remedies hereunder.
15. Best Efforts for Licensed Collateral. Notwithstanding any other
provision contained herein or any of the Transaction Documents, upon the
occurrence of an Event of Default, the Debtor hereby agrees that with respect to
any part of the Collateral which may require the consent of any third party or
third parties in order for Debtor to transfer and/or convey its interest in and
to such Collateral to the Majority Secured Party, as may be required in
accordance herewith, Debtor agrees to and shall use its best efforts to obtain
such consents or approvals in as expedient manner as possible.
16. Miscellaneous.
(a) No course of dealing between the Debtor and any Secured Party, nor
any failure to exercise, nor any delay in exercising, on the part of any
Secured Party, any right, power or privilege hereunder or under the
Debenturez shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
(b) All of the rights and remedies of each Secured Party with respect
to the Collateral, whether established hereby or by the Debentures or by
any other agreements, instruments or documents or by law shall be
cumulative and may be exercised singly or concurrently.
(c) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and is intended to supersede all prior
negotiations, understandings and agreements with respect thereto. Except as
specifically set forth in this Agreement, no provision of this Agreement
may be modified or amended except by a written agreement specifically
referring to this Agreement and signed by the parties hereto.
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(d) In the event any provision of this Agreement is held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason, unless such
provision is narrowed by judicial construction, this Agreement shall, as to
such jurisdiction, be construed as if such invalid, prohibited or
unenforceable provision had been more narrowly drawn so as not to be
invalid, prohibited or unenforceable. If, notwithstanding the foregoing,
any provision of this Agreement is held to be invalid, prohibited or
unenforceable in any jurisdiction, such provision, as to such jurisdiction,
shall be ineffective to the extent of such invalidity, prohibition or
unenforceability without invalidating the remaining portion of such
provision or the other provisions of this Agreement and without affecting
the validity or enforceability of such provision or the other provisions of
this Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right under this
Agreement shall be considered valid unless in writing and signed by the
party giving such waiver, and no such waiver shall be deemed a waiver of
any subsequent breach or default or right, whether of the same or similar
nature or otherwise.
(f) This Agreement shall be binding upon and inure to the benefit of
each party hereto and its successors and assigns.
(g) Each party shall take such further action and execute and deliver
such further documents as may be necessary or appropriate in order to carry
out the provisions and purposes of this Agreement.
(h) All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York.
Each party agrees that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
and the Debentures (whether brought against a party hereto or its
respective affiliates, directors, officers, shareholders, employees or
agents) shall be commenced exclusively in the state and federal courts
sitting in New York, New York. Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in
New York, New York, New York, New York for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such proceeding is improper. Each
party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in
any manner permitted by law.
11
Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence a
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such proceeding shall be reimbursed by the other party for its
reasonable attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such proceeding.
(i) This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and, all of
which taken together shall constitute one and the same Agreement. In the
event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing
(or on whose behalf such signature is executed) the same with the same
force and effect as if such facsimile signature were the original thereof.
[signature page follows]
12
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed on the day and year first above written.
DEBTOR
MAVERICK OIL AND GAS, INC. Address for Notice and Delivery:
--------------------------------
0000 Xxx Xxxx Xxxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
By:
---------------------------------
Name:
Title:
SECURED PARTY
__________________________________
By:
---------------------------------
Name:
Title:
SECURED PARTY
___________________________
By:
---------------------------------
Name:
Title:
SCHEDULE A
Principal Place of Business of Debtor:
--------------------------------------
0000 Xxx Xxxx Xxxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Locations Where Collateral is Located or Stored:
-----------------------------------------------
0000 Xxx Xxxx Xxxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
SCHEDULE B
State of Nevada
