MEXORO GENERAL SECURITY AGREEMENT
EXHIBIT
10.3
MEXORO
GENERAL SECURITY AGREEMENT
SECURITY AGREEMENT (this “Agreement”), dated as
of March 25, 2009, between MEXORO MINERALS LTD. (“Borrower”), a
Colorado corporation, and each lender identified on the signature pages hereto
(each, including its successors and assigns, a “Lender” and collectively the
“Lenders”). The Lender and Borrower are concurrently entering into a
financing transaction pursuant to which Borrower will issue to Lender its
Secured Convertible Debenture, dated as of even date herewith, (as amended,
modified or supplemented from time to time in accordance with its terms, the
(“Debenture”)
pursuant to which the Lender will make a loan to the Borrower in the Principal
Amount (as such term is defined in the Debenture) pursuant to, and subject to
the terms and conditions thereof.
Execution and delivery of this
Agreement is a condition precedent to the making of the Loan.
The obligation of the Lender to make
the Loan is conditioned, among other things, on the execution and delivery by
the Borrower of the Debenture and this Agreement to secure the Obligations (as
such term is defined below), such Obligations to include, without limitation,
the due and punctual payment and performance of (a) the principal of and
interest and fees due under the Debenture, when and as due, whether at maturity,
by acceleration, or otherwise, (b) all obligations of the Borrower at any time
and from time to time under this Agreement and (c) all other obligations at any
time and from time to time under the Debenture or this Agreement (the
“Obligations”).
Accordingly, the Borrower and the
Lender hereby agree as follows:
1. Definitions of
Terms. All capitalized terms used herein, but not defined
herein, shall have the meanings set forth in the Debenture. As used
herein, the following terms shall have the following meanings:
(a) “Account” shall mean
all present and future rights of the Borrower to payment of a monetary
obligation, whether or not earned by performance, which is not evidenced by
chattel paper or an instrument, (i) for services rendered or to be rendered, or
(ii) for a secondary obligation incurred or to be incurred.
(b) “Chattel Paper”,
“Documents” and
“Instruments”
shall have the meanings set forth in the Colorado Uniform Commercial
Code.
(c) “Equipment” shall mean
all of the equipment of the Borrower, including, without limitation, all
machinery, data processing and computer equipment (whether owned or licensed and
including embedded software), vehicles, tools, furniture, fixtures, all
attachments, accessions and property now or hereafter affixed thereto or used in
connection therewith, and substitutions and replacements thereof, wherever
located. Without limitation to the generality of the foregoing, such
term shall also include all “Equipment” as defined in the Uniform Commercial
code.
(d)
General Intangibles”
shall mean all of any Borrower’s present and future general intangibles of every
kind and description, including, without limitation, mineral
concessions, option properties, contract rights, payment intangibles,
trade names and trademarks and the goodwill of the business symbolized thereby,
deposit accounts, letters of credit, and federal, state and local tax refund
claims of all kinds.
(e) “UCC” shall mean the
Uniform Commercial Code of the State of Colorado and or any other applicable law
of any state or states which have jurisdiction with respect to all, or any
portion of, the Collateral subject to this Agreement, or this Agreement, from
time to time. It is the intent of the parties that defined terms in
the UCC should be construed in their broadest sense so that the term
“Collateral” (as defined herein below) will be construed in its broadest
sense. Accordingly if there are, from time to time, changes to
defined terms in the UCC that broaden the definitions, they are incorporated
herein and if existing definitions in the UCC are broader than the amended
definitions, the existing ones shall be controlling.
(f) “Proceeds” shall mean
any consideration received from the sale, lease, exchange or other disposition
of any asset or property which constitutes Collateral, any other value received
as a consequence of the possession of any Collateral and any payment received
from any insurer or other person or entity as a result of the loss,
nonconformity, or interference with the use of, defects or infringements of
rights, or damage to any asset or property that constitutes
Collateral.
(g) “Receivable” shall
mean all of the following property of the Borrower: (a) all Accounts; (b) all
interest, fees, late charges, penalties, collection fees and other amounts due
or to become due or otherwise payable in connection with any Account; (c) all
payment intangibles; (d) letters of credit, indemnities, guarantees, security or
other deposits and proceeds thereof issued and payable to the Borrower or
otherwise in favor of or delivered to the Borrower in connection with any
Account; or (e) all other accounts, contract rights, chattel paper, instruments,
notes, general intangibles and other forms of obligations owing to the Borrower,
whether from the rendition of services or otherwise associated with any
Accounts, or general intangibles of the Borrower (including, without limitation,
choses in action, causes of action, tax refunds, tax refund claims, any funds
which may become payable to the Borrower in connection with the termination of
any employee benefit plan and any other amounts payable to the Borrower from any
employee benefit plan, rights and claims against insurance carriers, rights to
indemnification, business interruption insurance and proceeds thereof, casualty
or any similar types of insurance and any proceeds thereof and proceeds of
insurance covering the lives of employees on which the Borrower is a
beneficiary).
(h) “Records” shall
mean all of the Borrower’s files, present and future books of account of every
kind or nature, invoices, ledger cards, statements, correspondence, memoranda,
and other data relating to the Collateral or any account debtor, together with
the tapes, disks, diskettes and other data and software storage media and
devices, file cabinets or containers in or on which the foregoing are stored
(including any rights of the Borrower with respect to the foregoing maintained
with or by any other person).
(i) “Securities” shall
mean all common or preferred equities owned by the Borrower in any subsidiary
company, affiliated company or any other entity wherever situated, whether in
the United States of America or any other country including Mexico.
2. Grant and Perfection of
Security Interest. (a) As security for the payment or performance, as the
case may be, of the Obligations, the Borrower hereby creates and grants to the
Lender, its successors and its assigns, a continuing security interest in, lien
upon, and right of setoff against, and hereby assigns to the Lender, all
personal property and fixtures and interests of the Borrower, whether now owned
or hereafter acquired or existing and wherever located (together with all other
collateral security for the Obligations at any time granted to or held or
acquired by the Lender), collectively the “Collateral”,
including, without limitation, all of the Borrower’s right, title and interest
in the following:
(i) all
Receivables;
(ii) all
General Intangibles;
(iii) all
goods, including, without limitation, Equipment;
(iv) Chattel
Paper, including, without limitation, all tangible and electronic chattel
paper;
(v) all
Instruments, including, without limitation, all promissory notes;
(vi) all
Documents;
(vii) all
deposit accounts;
(viii) all
letters of credit, banker’s acceptances and similar instruments and including
all letter-of-credit rights;
(ix) all
supporting obligations and all present and future liens, security interests,
rights, remedies, title and interest in, to and in respect of any Collateral,
including (A) rights and remedies under or relating to guaranties, contracts of
suretyship, letters of credit and credit and other insurance related to the
Collateral, and (B) deposits by and property of account debtors or other persons
securing the obligations of account debtors;
(x) all
(A) investment property (including but not limited to the securities of any
subsidiary now organized or hereinafter organized of the
Borrower, whether certificated or uncertificated, securities
accounts, security entitlements, commodity contracts or commodity accounts) and
(B) monies, credit balances, deposits and other property of the Borrower now or
hereafter held or received from or for the account of the Borrower, whether for
safekeeping, pledge, custody, transmission, collection or
otherwise;
(xi) all
commercial tort claims;
(xii) all
Records; and
(xiii) all
products and Proceeds of the foregoing, in any form, including insurance
proceeds and all claims against third parties for loss or damage to or
destruction of or other involuntary conversion of any kind or nature of any or
all of the other Collateral.
Attached
hereto and marked Schedule 1 is a list of the Collateral in existence as of the
date hereof.
(b) The
Borrower irrevocably and unconditionally authorizes the Lender (or its agent) to
file at any time and from time to time such financing statements with respect to
the Collateral naming the Lender as the secured party and the Borrower as
debtor, as the Lender may require, and including any other information with
respect to the Borrower or otherwise required by Article 9 of the Uniform
Commercial Code of such jurisdiction as the Lender may determine in good faith,
together with any amendment and continuations with respect thereto, which
authorization shall apply to all financing statements filed on, prior to or
after the date hereof. The Lender hereby ratifies and approves all
financing statements naming the Lender as secured party and the Borrower as
debtor with respect to the Collateral (and any amendments with respect to such
financing statements) filed by or on behalf of the Lender prior to the date
hereof and ratifies and confirms the authorization of the Lender to file such
financing statements (and amendments, if any). The Borrower hereby
authorizes the Lender to adopt on behalf of the Borrower any symbol required for
authenticating any electronic filing. In the event that the
description of the collateral in any financing statement naming the Lender as
the secured party and the Borrower as debtor includes assets and properties of
the Borrower that do not at any time constitute Collateral, whether hereunder,
under any of the other Financing Agreements or otherwise, the filing of such
financing statement shall nonetheless be deemed authorized by the Borrower to
the extent of the Collateral included in such description and it shall not
render the financing statement ineffective as to any of the Collateral or
otherwise affect the financing statement as it applies to any of the Collateral,
provided, that,
in such event, upon the Borrower’s written request and at the Borrower’s
expense, the Lender shall file such amendments to its financing statements to
change the assets described therein so as to constitute the
Collateral. In no event shall the Borrower at any time file, or
permit or cause to be filed, any correction statement or termination statement
with respect to any financing statement (or amendment or continuation with
respect thereto) naming the Lender as secured party and the Borrower as debtor
so long as this Agreement has not been terminated or all of the Obligations have
not been paid and satisfied in full in immediately available funds.
(c) In the
event that any goods, documents of title are at any time after the date hereof
in the custody, control or possession of another person, the Borrower shall
promptly notify the Lender thereof in writing. Promptly upon the
Lender’s request, the Borrower shall promptly obtain an acknowledgment from such
other person, in form and substance satisfactory to the Lender, that such other
person, inter alia,
acknowledges the security interest of the Lender in such collateral, agrees to
waive any and all claims such other person may, at any time, have against such
collateral, and agrees to permit the Lender access to, and the right to remain
on, the premises of such other person so as to exercise the Lender’s rights and
remedies and otherwise deal with such collateral and in the case of any person
who at any time has custody, control or possession of any Collateral, holds such
collateral for the benefit of the Lender and shall agrees to act upon the
instructions of the Lender, without the further consent of the
Borrower.
(d) The
Borrower agrees at all times to keep in all material respects accurate and
complete accounting records with respect to the Collateral, including, but not
limited to, a record of all payments and Proceeds received.
3.
Further
Assurances. The Borrower agrees to take any other actions
reasonably requested by the Lender to insure the attachment, perfection of, and
the ability of the Lender to enforce, the security interest of the Lender in any
and all of the Collateral, including, without limitation, (i) executing,
delivering and, where appropriate, filing financing statements and amendments
relating thereto under the UCC or other applicable law, including Mexico to the
extent, if any, that the Borrower’s signature thereon is required therefor, (ii)
causing the Lender’s name to be noted as secured party on any certificate of
title for a titled good if such notation is a condition to attachment,
perfection or priority of, or ability of the Lender to enforce, the security
interest of the Lender in such Collateral, (iii) complying with any provision of
any statute, regulation or treaty of the United States as to any Collateral if
compliance with such provision is a condition to attachment, perfection or
priority of, or ability of the Lender to enforce, the security interest of the
Lender in such Collateral, (iv) obtaining the consents and approvals of any
governmental and other third party consents and approvals, including, without
limitation, any consent of any other person obligated on Collateral, (v) paying
any fees and taxes required in connection with the execution and delivery of
this Agreement or the granting of the security interest of the Borrower, and
(vi) taking all actions required by any earlier versions of the UCC or by other
law, as applicable in any relevant jurisdiction.
4.
Inspection and
Verification. The Lender and such persons as the Lender may
designate shall have the right, at any reasonable time or times, and upon
reasonable notice (which may be telephonic), to inspect the Collateral owned by
the Borrower, all records related thereto (and to make extracts and copies from
such records), and the premises upon which any such Collateral is located, to
discuss the Borrower’s affairs with the officers of the Borrower and its
independent accountants and to verify under reasonable procedures the validity,
amount, quality, quantity, value, and condition of or any other matter relating
to, such Collateral, including, in the case of Receivables or Collateral in the
possession of a third person, contacting account debtors or a third person
possessing such Collateral for the purpose of making such a
verification. The provisions of this Section 4 shall not be deemed to
limit the Lender’s rights under the Debenture.
5. Taxes;
Encumbrances. At its option, the Lender may discharge past due
taxes, liens, security interests or other encumbrances at any time levied or
placed on the Collateral, and may pay for the maintenance and preservation of
the Collateral to the extent the Borrower fails to do so and the Borrower agrees
to reimburse the Lender on demand for any payment made or any expense incurred
by it pursuant to the foregoing authorization; provided, however, that nothing
in this Section 5 shall be interpreted as excusing the Borrower from the
performance by it of any covenants or other promises as set forth herein or in
the Debenture.
6. Assignment of Security
Interest. If at any time the Borrower shall take and perfect a
security interest in any property of an account debtor or any other person to
secure payment and performance of a Receivable, any contract right, or payment
intangible the Borrower shall promptly assign such security interest to the
Lender. Such assignment need not be filed of public record unless
necessary to continue the perfected status of the security interest against
creditors of and transferees from the account debtor or other person granting
the security interest.
7. Records. The
Borrower shall keep or cause to be kept records with respect to the Collateral,
which are complete and accurate in all material respects. In
addition, the Borrower will provide the Lender with such further schedules
and/or information with respect thereto as the Lender may reasonably
require.
8.
Priority. The
Lender’s security interest in the Collateral is and shall remain sa first
priority security interest with respect to the concessions collectively known as
“Cieneguita” and described in detail in the Company’s current report on Form 8-K
dated March 24, 2009. However, such security interest shall remain subordinated
on all remaining Collateral only to the extent of a $127,500 security interest
held by Paramount Gold and Silver Corp. which is required be released upon that
payment of that amount on or before April 30, 2009.
9.
Protection of
Security. The Borrower shall, at its own cost and expense,
take any and all actions reasonably necessary to defend title to the Collateral
owned by it against all persons and to defend the security interest of the
Lender in such Collateral, and the priority thereof, against any Lien of any
nature whatsoever except for Liens which may be permitted by the
Debenture.
10. Continuing Obligations of
the Borrower. The Borrower shall remain liable to observe and
perform all the conditions and obligations to be observed and performed by it
under each contract, agreement, interest or obligation relating to the
Collateral, all in accordance with the terms and conditions thereof, and shall
indemnify and hold harmless the Lender from any and all such
liabilities.
11. Remedies Upon
Default. Upon the occurrence and during the continuance of an
Event of Default, it is agreed that the Lender shall have the right to take any
or all of the following actions at the same or different times: with
or without legal process and with or without previous notice or demand for
performance, to take possession of the Collateral and without liability for
trespass (except for actual damage caused by the Lender’s gross negligence or
willful misconduct) to enter any premises where such Collateral may be located
for the purpose of taking possession of or removing such Collateral and,
generally, to exercise any and all rights afforded to a secured party under, and
subject to its obligations contained in, the Uniform Commercial Code as in
effect in any state or other applicable law. Without limiting the generality of
the foregoing, the Borrower agrees that the Lender shall have the right to sell
or otherwise dispose of all or any part of the Collateral, at public or private
sale. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of the Borrower, and
the Borrower hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which the Borrower now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
Without limiting the foregoing, upon
the occurrence and during the continuance of an Event of Default, the Lender
may, in its discretion, enforce the rights of the Borrower against any account
debtor or other obligor in respect of any of the Receivables. Without
limiting the generality of the foregoing, at any time or times that an Event of
Default exists or has occurred and is continuing, the Lender may, in its
discretion, at such time (i) notify any or all account debtors or other obligors
in respect thereof that the Receivables have been assigned to the Lender and
that the Lender has a security interest therein and the Lender may direct any or
all account debtors and other obligors to make payment of the Receivables
directly to the Lender, (ii) extend the time of payment of, compromise or
settle, and upon any terms or conditions, any and all Receivables and thereby
discharge or release the account debtor or any secondary obligors or other
obligors in respect thereof without affecting any of the Obligations, (iii)
demand, collect or enforce payment of any Receivable or such other obligations,
but without any duty to do so, and the Lender shall not be liable to Borrower
(or any Affiliate of Borrower) for any failure to collect or enforce the payment
thereof nor for the negligence of its agents or attorneys with respect thereto
and (iv) take whatever other action the Lender may deem necessary or desirable
for the protection of its interests. At any time that an Event of
Default exists or has occurred and is continuing, at the Lender’s request, any
notice or demand for payment sent to any account debtor shall state that the
Receivables and such other obligations have been assigned to the Lender and are
payable directly and only to the Lender and the Borrower shall deliver to the
Lender such originals of documents evidencing the sale and delivery of goods or
the performance of services giving rise to any Receivables as the Lender may
require.
The Lender shall give the Borrower five
(5) days’ written notice (which the Borrower agrees is reasonable notice) of the
Lender’s intention to make any sale of Collateral. Such notice, in the case of a
public sale, shall state the time and place for such sale and, in the case of a
sale at a broker’s board or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or portion thereof, will first be offered for sale at such board or exchange.
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Lender may fix and state in
the notice (if any) of such sale. At any such sale, the Collateral,
or portion thereof, to be sold may be sold in one lot as an entirety or in
separate parcels, as the Lender may (in its sole and absolute discretion,
exercised in a commercially reasonable manner) determine. The Lender
shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral
shall have been given. The Lender may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is
made on credit or for future delivery, the Collateral so sold may be retained by
the Lender until the sale price is paid by the purchaser or purchasers thereof,
but the Lender shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like
notice. At any public sale made pursuant to this Section 11, the
Lender may bid for or purchase, free (to the extent permitted by law) from any
right of redemption, stay or appraisal on the part of the Borrower (all said
rights being also hereby waived and released to the extent permitted by law),
with respect to the Collateral or any part thereof offered for sale and the
Lender or any such Lender may make payment on account thereof by using any claim
then due and payable to the Lender from the Borrower as a credit against the
purchase price, and the Lender may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to the
Borrower therefor. For purposes hereof, a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Lender shall be free to carry out such sale and purchase pursuant
to such agreement, and the Borrower shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after the Lender shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Lender may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral portion thereof pursuant to a judgment or decree of a court or courts
having competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver.
1
12. Application of
Proceeds. The proceeds of any collection or sale of
Collateral, as well as any Collateral consisting of cash, shall be applied by
the Lender as follows:
FIRST, to the payment of all reasonable
costs and expenses incurred by the Lender in connection with such collection or
sale or otherwise in connection with this Agreement or any of the Obligations,
including, but not limited to, all court costs and the reasonable fees and
expenses of its agents and legal counsel, the repayment of all advances made by
the Lender hereunder on behalf of the Borrower and any other reasonable costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder;
SECOND, to principal and then interest
on the Loan and all other fees, costs, charges and other Obligations arising
under the Debenture; and
THIRD, to the Borrower, its successors
and assigns, or as a court of competent jurisdiction may otherwise
direct.
Upon any
sale of the Collateral by the Lender (including, without limitation, pursuant to
a power of sale granted by statute or under a judicial proceeding), the receipt
of the Lender or of the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Lender or such officer or be answerable in any
way for the misapplication thereof.
13. Additional Covenants as to
the Collateral.
(a) The
Borrower shall keep the Collateral at their current locations and the Borrower
will not remove the Collateral from such locations without providing at least
thirty (30) days’ prior written notice to the Lender, whose consent may be
withheld.
(b) Without
providing at least thirty (30) days’ prior written notice to the Lender, the
Borrower will not change (i) its type of organization, jurisdiction of
organization or other legal structure.
(c) The
Borrower shall cause its Equipment to be maintained in the same condition,
repair and working order as when new, ordinary wear and tear excepted, and shall
forthwith, or in the case of any loss or damage to any such Equipment as quickly
as practicable after the occurrence thereof, make or cause to be made all
repairs, replacements and other improvements in connection therewith which are
necessary or desirable to such end. The Borrower shall promptly
furnish to the Lender a statement respecting any loss or damage to any of its
Equipment.
14. Security Interest
Absolute. All rights of the Lender hereunder, the security
interest created hereby, and all obligations of the Borrower hereunder, shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Debenture, any other agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or consent to any departure from the Debenture, or any other agreement or
instrument, (iii) any exchange, release or nonperfection of any other
Collateral, or any release or amendment or waiver of or consent to or departure
from any guarantee, for all or any of the Obligations, or (iv) any other
circumstance which might otherwise constitute a defense available to, or
discharge of, the Borrower or any other obligor in respect of the Obligations or
in respect of this Agreement.
15. No
Waiver. No failure on the part of the Lender to exercise, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Lender preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. The Lender shall not be deemed to have waived any rights hereunder or under
any other agreement or instrument unless such waiver shall be in writing and
signed by such parties.
16. Financing
Waiver. Notwithstanding and provisions herein to the contrary,
Lender agrees to waive its security interest in as to an
undivided 60% interest of Borrower in the property commonly known as
Cieneguita. Cieneguita is real property that might be acquired by the
Borrower at a future date, and shall serve as additional
Collateral.
17. Lender Appointed
Attorney-in-Fact. The Borrower hereby appoints the Lender the
attorney-in-fact of the Borrower solely for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Lender may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an
interest.
18. Fees and
Expenses. The Borrower shall be obligated to, within ten (10)
days after demand, pay to the Lender the amount of any and all expenses,
including the reasonable fees and expenses of its counsel and of any experts or
agents which the Lender may incur in connection with (i) the administration of
this Agreement, including the cost and expenses of the Lender’s Collateral
examination as provided herein, (ii) the custody or preservation of, or the sale
of, collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Lender hereunder, or (iv)
the failure by the Borrower to perform or observe any of the provisions hereof.
In addition, the Borrower indemnifies and holds the Lender harmless from and
against any and all liability incurred by the Lender hereunder or in connection
herewith, unless such liability shall be due to the gross negligence or willful
misconduct of the Lender, as the case may be. Any such amounts
payable as provided hereunder or thereunder shall be additional Obligations
secured hereby.
19. Submission to
Jurisdiction. (a) Any legal action or proceeding with respect
to this Agreement may be brought in the State of New York at the sole discretion
of the Lender. By execution and delivery of this Agreement, the
Borrower hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts.
(b) The
Borrower hereby irrevocably waives, in connection with any such action or
proceeding, any objection, including, without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(c) The
Borrower hereby irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it, as the case may
be, at its address set forth in the Debenture.
(d) Nothing
herein shall affect the right of the Lender to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Borrower in any other jurisdiction which the Lender deems necessary or
appropriate in order to realize on the Collateral or to otherwise enforce its
rights against the Borrower or its property.
20. Entire Agreement; Waiver of
Jury Trial, etc. (a) This Agreement and the Debenture constitute the
entire contract between the parties hereto relative to the subject matter
hereof. Except as expressly provided herein, nothing in
this Agreement, expressed or implied, is intended to confer upon any party,
other than the parties hereto, any rights, remedies, obligations or liabilities
under or by reason of this Agreement the other Financing
Agreements.
(b) EXCEPT
AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE OTHER FINANCING
AGREEMENTS.
(c) Except
as prohibited by law, each party hereto hereby waives any right it may have to
claim or recover in any litigation arising hereunder, any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages.
(d) Each
party hereto (i) certifies that no representative, Lender or attorney of the
Lender has represented, expressly or otherwise, that the Lender would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that it has been induced to enter into this Agreement, by, among
other things, the mutual waivers and certifications herein.
21. Binding Agreement;
Assignments. This Agreement, and the terms, covenants and
conditions hereof, shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower
shall not be permitted to assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or any cash or property held by the Lender as
Collateral under this Agreement, except as contemplated by this Agreement or the
Debenture.
22. Applicable
Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York (other than the conflicts of laws
principles thereof) except to the extent that the validity or perfection of the
security interest hereunder, or remedies hereunder, in respect of any particular
collateral are governed by the laws of the State of New York with respect to any
mining concessions.
23. Notices. All
communications and notices hereunder shall be in writing and given as provided
in the Debenture.
24. Severability. In
the event any one or more of the provisions contained in this Agreement should
be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
25. Section
Headings. Section headings used herein are for convenience
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
26. Counterparts; Facsimile
Signatures. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute but one contract, and shall become effective when copies hereof
which, when taken together, bear the signatures of each of the parties hereto
shall be delivered to the Lender. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed signature page hereto.
27. Termination. This
Agreement shall terminate when (a) all the Obligations have been fully and
indefeasibly paid in immediately available funds and (b) the Debenture has been
terminated.
28. Debenture. The
Borrower acknowledges that this Agreement does not and shall not be construed as
requiring the Lender to accept the Debenture or make the Loan.
.
(Signature
Pages Follow)
2
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by
their respective authorized signatories as of the date first indicated
above.
|
MEXORO
MINERALS INC.
|
Address for Notice:
|
|
By:__/s/ Francisco
Quiroz________________
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
|
General
▇▇▇▇▇▇ 706
Col.
San ▇▇▇▇▇▇, Chihuahua, Chih.
Mexico,
C.P. 32103
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
3
[PURCHASER
SIGNATURE PAGES TO MEXORO MINERALS LTD. SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: ________________________________________________________
Signature of Authorized Signatory of
Purchaser: __________________________________
Name of
Authorized Signatory:
____________________________________________________
Title of
Authorized Signatory:
_____________________________________________________
Email
Address of
Purchaser:________________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
Subscription
Amount:
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
4
Schedule I
The
Collateral
All the
present and hereafter acquired property of Mexoro.