10.03
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made as of the 10th day of April,
1997, between ALTA GOLD CO., a Nevada corporation ("Debtor"),BHF-
BANK AKTIENGESELLSCHAFT, NEW YORK BRANCH ("BHF"), and XXXXXX
METALS, INC., a Delaware corporation ("Xxxxxx" and together with
BHF, each a "Secured Party" and collectively the "Secured
Parties"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the
"Loan Agreement" (as defined below).
W I T N E S S E T H T H A T:
WHEREAS, Debtor seeks to induce each Secured Party to extend
or continue to extend credit to Debtor from time to time; and
WHEREAS, Debtor has agreed to enter into this Security
Agreement in order to induce each Secured Party, INTER ALIA, to
extend credit to Debtor;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. THE SECURITY INTERESTS. (a) In order to secure
the due and punctual payment and performance of (i) all
obligations of Debtor contained herein; (ii) all indebtedness,
liabilities and obligations of Debtor to each Secured Party under
a certain Loan Agreement of even date herewith among Debtor and
each Secured Party (hereinafter referred to as the "Loan
Agreement") and under those certain Secured Promissory Notes of
even date herewith of Debtor issued in favor of Secured Parties
pursuant to the Loan Agreement (the "Notes"); and (iii) all
indebtedness, liabilities and obligations of Debtor to each
Secured Party of every kind and description, whether direct,
indirect or contingent, whether now existing or hereafter arising
or incurred, whether due or to become due, whether otherwise
secured or unsecured and howsoever evidenced, incurred or
arising, including, without limitation, all indebtedness,
liabilities and obligations evidenced or arising pursuant to any
promissory note, loan agreement, equipment lease, conditional
sales agreement, refining agreement, trading agreement, financing
agreement, purchase contract, guaranty, forward contract, option
agreement, foreign exchange contract, or any other agreement or
instrument which may at any time be executed or issued for
Debtor's account or to which Debtor is now or hereafter may
become a party (all of the foregoing are hereinafter collectively
called the "Obligations"), Debtor hereby grants to each Secured
Party a continuing security interest in the following described
fixtures and personal property, whether now existing or hereafter
arising (hereinafter collectively called the "Collateral"):
All fixtures and all tangible and intangible
personal property of Debtor of every kind and
description and wherever located, in each case whether
now owned or hereafter acquired by Debtor, or in which
Debtor may now have or hereafter acquire an interest,
including, without limitation:
(1) all equipment (as such term is defined
in the Uniform Commercial Code the "UCC"),
machinery and fixtures, including, without
limitation, all data processing and computer
equipment and all property and equipment listed on
EXHIBIT A hereto, in each case whether now owned
or hereafter acquired by Debtor, or in which
Debtor may now have or hereafter acquire an
interest but specifically excluding crushing
equipment and all mobile equipment, haultrucks and
other items shown on EXHIBIT B hereto and any
replacements thereof;
(2) all products, goods and inventory (as
such terms are defined in the UCC), including,
without limitation, all ore (in whatever form),
merchandise, raw materials, work in process,
parts, components, dies, molds, finished goods and
all product inventory returned to or repossessed
by Debtor, in each case whether now owned or
hereafter acquired by Debtor, or in which Debtor
may now have or hereafter acquire an interest;
(3) all instruments (as such term is defined
in the UCC), documents of title, general
intangibles, contract rights and policies and
certificates of insurance, in each case whether
now owned or hereafter acquired by Debtor, or in
which Debtor may now have or hereafter acquire an
interest;
(4) all accessions, additions and
improvements to, and all proceeds and products of,
all of the foregoing included collateral,
including proceeds of insurance, whether now owned
or hereafter acquired by Debtor, or in which
Debtor may now have or hereafter acquire an
interest; and
(5) all books, records, documents, computer
tapes and discs relating to all of the foregoing
included collateral, whether now owned or
hereafter acquired by Debtor, or in which Debtor
may now have or hereafter acquire an interest.
(b) All of Debtor's equipment, fixtures and product
inventory included in the foregoing are sometimes hereinafter
collectively called the "Tangible Collateral".
(c) The security interests granted pursuant to this
Section 1 (the "Security Interests") are granted as security only
and shall not subject any Secured Party to, or transfer to any
Secured Party, or in any way affect or modify, any obligation or
liability of Debtor under any of the Collateral or any
transaction which gave rise thereto.
SECTION 2. FILING; FURTHER ASSURANCES. Debtor will, at its
expense, execute, deliver, file and record (in such manner and
form as any Secured Party may require), or permit any Secured
Party to file and record, any financing statements, any carbon,
photographic or other reproduction of a financing statement
or this Security Agreement ( which the parties hereto agree
shall be sufficient as a financing statement hereunder),
any specific assignments or other paper that may be
reasonably necessary or desirable, or that any Secured Party
may request, in order to create,
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confirm, preserve, perfect or validate any Security Interest or
to enable such Secured Party to exercise and enforce its rights
and remedies hereunder or under applicable law with respect to
any of the Collateral. Debtor hereby appoints each Secured Party
as Debtor's attorney-in-fact to execute in the name and on behalf
of Debtor such additional financing statements as such Secured
Party may at any time request or require in respect of the
Collateral.
SECTION 3. DEBTOR'S REPRESENTATIONS AND WARRANTIES. Debtor
hereby represents and warrants to each Secured Party as follows:
(a) Debtor is, or to the extent that certain of
the Collateral is to be acquired after the date hereof,
will be, the owner of the Collateral free from any
adverse lien, security interest or encumbrance other
than as listed on EXHIBIT C hereto.
(b) No financing statement covering the
Collateral is on file in any public office, other than
the financing statements filed pursuant to this
Security Agreement or as listed on said EXHIBIT C.
(c) All additional information, representations
and warranties contained in EXHIBIT D hereto and made a
part hereof, and any Schedules attached to said EXHIBIT
D, are true, accurate and complete in all material
respects on the date hereof.
SECTION 4. DEBTOR'S COVENANTS. Debtor hereby covenants and
agrees with each Secured Party that Debtor will:
(a) Defend the Collateral against all material
adverse claims and demands of all persons at any time
claiming any interest therein, other than permitted
liens listed on EXHIBIT C hereto.
(b) Provide each Secured Party, at least fifteen
(15) business days prior to occurrence, with written
notice of (i) any change in location of Debtor's chief
executive office or the office where Debtor maintains
its books and records, (ii) the movement or location of
Collateral to or at any address other than as set forth
in said EXHIBIT D and (iii) any event or occurrence
which would render any warranty or information
contained in EXHIBIT D hereto inaccurate or incomplete
in any material adverse respect.
(c) Immediately notify Secured Party of any event
causing a substantial loss or diminution in the value
of all or any material part of the Collateral and the
amount or an estimate of the amount of such loss or
diminution.
(d) Not sell or offer to sell or otherwise
assign, transfer or dispose of the Collateral or any
interest therein, without each Secured Party's prior
written consent (such consent not to be unreasonably
withheld) other than in the ordinary
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course of business or except for Collateral no longer
required for its business or Collateral that is
replaced by collateral of equivalent or greater value.
(e) Except as for permitted liens listed on
EXHIBIT C attached hereto, keep the Collateral free
from any material adverse lien, security interest or
encumbrance and in good order and repair, reasonable
wear and tear excepted, and not waste or destroy the
Collateral or any part thereof, except in the normal
course of business.
(f) Not use the Collateral in violation of
applicable law (except that, in the case of any
violation of health and safety laws or environmental
laws, the violation shall not be a default so long as
Debtor is diligently effecting a cure of the same) or
of any policy of insurance applicable thereto.
(g) Not change its corporate name, identity or
structure without each Secured Party's prior written
consent (such consent not to be unreasonably withheld).
(h) At any Secured Party's request, execute,
acknowledge and deliver such further documents and
instruments as such Secured Party may from time to time
reasonably request or require to confirm such Secured
Party's Security Interests in and to any patent,
trademark or servicemark, and any registrations or
applications for same.
(i) Promptly pay any and all taxes, assessments
and governmental charges upon the Collateral prior to
the date penalties are attached thereto, provided that
Debtor shall have the right to contest the same in good
faith.
(j) Have and maintain insurance at all times with
respect to the Tangible Collateral against risks of
fire (including so-called extended coverage) and theft,
and such other risks as any Secured Party may
reasonably require in writing, containing such terms,
in such form, in such amounts, for such periods, and
written by such companies as may be reasonably
satisfactory to such Secured Party, such insurance to
name each Secured Party as "additional insured" and
"mortgagee" thereunder and to be payable to each
Secured Party and Debtor as their respective interests
may appear pursuant to Loss Payable Endorsements in
form acceptable to Secured Parties. All policies of
insurance shall provide for thirty (30) days' prior
written notice to each Secured Party of cancellation or
material amendment of the policies, and Debtor shall
furnish each Secured Party with certificates or other
evidence satisfactory to each Secured Party of
compliance with the foregoing insurance provisions.
Debtor shall notify each Secured Party of any material
change in the insurance maintained with respect to the
Tangible Collateral and shall furnish each Secured
Party satisfactory evidence of any such change.
Without limiting any other remedies available to any
Secured Party, in the event Debtor shall default in the
performance of its obligations under this paragraph
(j), any Secured Party, at its option, may effect
such insurance coverage with an insurer
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acceptable to such Secured Party and add the premium(s)
paid therefor to the Obligations secured hereby, and
the amount of such premium(s) shall be payable by
Debtor on demand with interest thereon at the highest
rate payable under the agreements evidencing the
Obligations.
SECTION 5. RECORDS RELATING TO COLLATERAL. Debtor will
keep its records concerning the Collateral at its offices in
Henderson, Nevada and/or the locations shown on EXHIBIT D hereto
or at such other place or places of business as each Secured
Party may approve in writing (such approval not to be
unreasonably withheld). Debtor will hold and preserve such
records and will permit each Secured Party's representatives at
any time during normal business hours to examine and inspect the
Collateral and to make abstracts from such records, and will
furnish to each Secured Party such information and reports
regarding the Collateral as each Secured Party may from time to
time reasonably request, but, unless an Event of Default has
occurred, each Secured Party shall maintain the confidentiality
thereof.
SECTION 6. GENERAL AUTHORITY. Debtor hereby irrevocably,
during the term of this Agreement, appoints each Secured Party
Debtor's true and lawful attorney, with full power of
substitution, in the name of Debtor, any Secured Party or
otherwise, for the sole use and benefit of each Secured Party,
but at Debtor's expense, to the extent permitted by law to
exercise, at any time and from time to time after any Event of
Default has occurred and is continuing, all or any of the
following powers with respect to all or any of the Collateral
(which power shall be in addition and supplemental to any powers,
rights and remedies of each Secured Party described herein or
otherwise available to any Secured Party under applicable law):
(i) to demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due
upon or by virtue thereof,
(ii) to receive, take, endorse, assign and
deliver any and all checks, notes, drafts, documents
and other negotiable and non-negotiable instruments and
chattel paper taken or received by any Secured Party in
connection therewith,
(iii) to settle, compromise, compound, prosecute
or defend any action or proceeding with respect
thereto,
(iv) to sell, transfer, assign or otherwise deal
in or with the same or the proceeds or avails thereof
as fully and effectually as if each Secured Party were
the absolute owner thereof,
(v) to extend the time of payment of any or all
thereof and to make any allowance and other adjustments
with reference thereto, and
(vi) to discharge any taxes, liens, security
interests or other encumbrances at any time placed
thereon.
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The powers conferred on each Secured Party under this Section 6
are solely to protect, realize upon and enforce each Secured
Party's Security Interests and rights and remedies in respect to
the Collateral and shall not impose any duty upon any Secured
Party to exercise such power.
SECTION 7. EVENTS OF DEFAULT. Debtor shall be in default
under this Security Agreement upon the occurrence of any one or
more of the following events (each such event is herein referred
to as an "Event of Default"):
(a) failure of Debtor to pay (i) any amount of
principal or interest under any Note or (ii) any other
Obligations, when the same shall become due and
payable, whether at the due date thereof or at a date
fixed for prepayment or by acceleration or otherwise;
(b) occurrence of any Event of Default under the
Loan Agreement;
(c) failure of Debtor to timely perform, comply
with or observe any other term, covenant, agreement or
provision in this Security Agreement and such failure
shall continue unremedied for a period of twenty (20)
days after notice thereof to Debtor by any Secured
Party or such longer period (but in any event not
longer than thirty (30) days) as may be required to
complete performance of such obligation (but only if
such performance is diligently commenced during such
twenty (20) day period and diligently continued during
such longer period, and provided that the delay
occasioned by such longer period would not, in the
reasonable judgment of any Secured Party, have a
material adverse affect on the financial condition,
operations or business taken as a whole of Debtor);
(c) any representation or warranty made by or on
behalf of Debtor pursuant to this Agreement, any Note,
the Loan Agreement or any other agreement, document,
instrument or certificate executed by Debtor in favor
of any Secured Party shall be untrue or misleading in
any material respect as of the date such representation
or warranty was made or is deemed to have been made; or
(d) Debtor shall (i) discontinue or abandon
operation of its business, except for normal shutdown
periods, (ii) apply for or consent to or suffer the
appointment of a receiver, trustee, custodian or
liquidator of it or any of its property, (iii) admit in
writing its inability to pay its debts as they mature,
(iv) make a general assignment for the benefit of
creditors, (v) file, or have filed against it, a
petition for relief under Title 11 of the United States
Code, (vi) file, or have filed against it, a petition
in bankruptcy, or a petition or an answer seeking
reorganization or an arrangement with creditors or to
take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the
material allegations of a petition filed against it in
any proceeding under any such law, or if corporate
action shall be taken for the purpose of effecting
any of the foregoing, (vii) become
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insolvent, (viii) fail to generally pay its debts as
they mature or (ix) have liabilities which exceed the
fair value of its assets.
SECTION 8. REMEDIES UPON EVENT OF DEFAULT. (a) If any
Event of Default shall have occurred, any Secured Party may
exercise all the rights and remedies of a secured party under the
UCC (whether or not the UCC is in effect in the jurisdiction
where such rights and remedies are exercised) and, in addition,
any Secured Party may, without being required to give any notice,
except as herein provided or as may be required by mandatory
provisions of law, (i) apply the cash, if any, then held by it as
Collateral in the manner specified in Section 10 hereof, and (ii)
if there shall be no such cash or if such cash shall be
insufficient to pay all the Obligations in full, sell the
Collateral, or any part thereof, at public or private sale for
cash, upon credit or for future delivery, and at such price or
prices as such Secured Party may deem satisfactory.
(b) Any Secured Party may require Debtor to assemble
all or any part of the Collateral and make it available to such
Secured Party at a place to be designated by such Secured Party
which is reasonably convenient. Any holder of an Obligation may
be the purchaser of any or all of the Collateral so sold at any
public sale (and, if the Collateral is of a type customarily sold
in a recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private
sale) and thereafter hold the same absolutely, free from any
right or claim of whatsoever kind. Upon any such sale such
Secured Party shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each
purchaser at any such sale shall hold the Collateral so sold
absolutely, free from any claim or right of whatsoever kind,
including any equity or right of redemption of Debtor.
(c) Unless the Collateral to be sold is perishable or
threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the applicable Secured
Party shall give Debtor at least thirty (30) days' prior written
notice of its intention to make any such public or private sale.
Each Secured Party and Debtor agree that such notice constitutes
"reasonable notification" within the meaning of Section 9-504(3)
of the UCC. Such notice, in case of a public sale, shall state
the time and place fixed for such sale. Such notice, in case of
a private sale or disposition, shall state the time after which
any private sale or other intended disposition is to be made.
(d) Any such public sale shall be held at such time or
times within ordinary business hours and at public or private
place or places as the applicable Secured Party may fix in the
notice of such sale. At any public or private sale, the
Collateral may be sold in one lot as an entirety or in separate
parcels, as the applicable Secured Party may determine. No
Secured Party shall be obligated to make such sale pursuant to
any such notice. The applicable Secured Party 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 the sale, and such sale may be made at
any time or place to which the same may be adjourned. In case of
any sale of all or any part of the Collateral on credit or for
future delivery, the Collateral so sold may be retained by any
Secured Party until the selling price is paid by the purchaser
thereof, but such Secured Party shall not incur any liability in
case of the failure of such purchaser to take up and
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pay for the Collateral so sold and, in case of any such failure,
such Collateral may again be sold upon like notice.
(e) Any Secured Party, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or suits
at law or in equity to foreclose the Security Interests and sell
the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction.
(f) All rights and remedies contained herein shall be
separate and cumulative and in addition to all other rights and
remedies available to a secured party under applicable law, and
the exercise of one shall not in any way limit or prejudice the
exercise of any other such rights or remedies.
SECTION 9. RIGHT OF ANY SECURED PARTY TO USE AND OPERATE
TANGIBLE COLLATERAL, ETC. Upon the occurrence of an Event of
Default, to the extent permitted by law, any Secured Party shall
have the right and power to take possession of all or any part of
the Tangible Collateral, and to exclude Debtor and all persons
claiming under Debtor wholly or partly therefrom, and thereafter
to hold, store, and/or use, operate, manage and control the same.
Upon any such taking of possession, such Secured Party may, from
time to time, at Debtor's expense, make all such repairs,
replacements, alterations, additions and improvements to and of
the Tangible Collateral as such Secured Party may deem proper.
In such case, such Secured Party shall have the right to manage
and control the Tangible Collateral and to exercise all rights
and powers of Debtor in respect thereto as such Secured Party
shall deem best, including the right to enter into any and all
such agreements with respect to the leasing and/or operation of
the Tangible Collateral or any part thereof as such Secured Party
may deem fit; and such Secured Party shall be entitled to collect
and receive all rents, issues, profits, fees, revenues and other
income of the same and every part thereof. Such rents, issues,
profits, fees, revenues and other income shall be applied to pay
the expenses of holding and operating the Tangible Collateral and
of conducting the business thereof, and of all maintenance,
repairs, replacements, alterations, additions and improvements,
and to make all payments which such Secured Party may be required
or may elect to make, if any, for taxes, assessments, insurance
and other charges upon the Tangible Collateral or any part
thereof, and all other payments which such Secured Party may be
required or authorized to make under any provision of this
Security Agreement (including legal costs and attorney's fees).
The remainder of such rents, issues, profits, fees, revenues and
other income shall be applied to the payment of the Obligations
in such order or priority as such Secured Party shall determine
(subject to the provisions of Section 10 hereof) and, unless
otherwise provided by law or by a court of competent
jurisdiction, any surplus shall be paid over to Debtor.
SECTION 10. APPLICATION OF COLLATERAL AND PROCEEDS. The
proceeds of any sale of, or other realization upon, all or any
part of the Collateral shall be applied in the following order of
priorities:
(a) first, to pay the expenses of such sale or
other realization, including reasonable commission to
such Secured Party's agent, and all expenses,
liabilities and advances incurred or made by such
Secured Party in connection therewith, and
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any other unreimbursed expenses for which such Secured
Party is to be reimbursed pursuant to Section 11
hereof;
(b) second, to the payment of the Obligations in
such order and manner as each Secured Party, in their
sole discretion, shall determine; and
(c) finally, unless applicable law otherwise
provides, to pay to Debtor, or its successors or
assigns, or as a court of competent jurisdiction may
direct, any surplus then remaining from such proceeds.
SECTION 11. EXPENSES; EACH SECURED PARTY'S LIEN. Debtor
will forthwith upon demand pay to each Secured Party:
(a) the amount of any taxes (except income taxes)
which any Secured Party may at any time be required to
pay by reason of the Security Interests (including any
applicable transfer taxes and taxes payable in
connection with the filing of financing statements to
perfect the Security Interests) or to free any of the
Collateral from any lien thereon, and
(b) the amount of any and all reasonable out-of-
pocket expenses, including reasonable attorneys' fees
and the reasonable fees and disbursements of any agents
not regularly in its employ, which any Secured Party
may incur in connection with (i) the preparation and
administration of this Security Agreement, (ii) the
collection, sale or other disposition of any of the
Collateral, (iii) the exercise by any Secured Party of
any of the powers, rights or remedies conferred upon it
hereunder, or (iv) any default on Debtor's part
hereunder.
SECTION 12. TERMINATION OF SECURITY INTERESTS; RELEASE OF
COLLATERAL. Upon the repayment and performance in full of all
obligations of Debtor contained in this Security Agreement and
all indebtedness, liabilities and obligations of Debtor to each
Secured Party under the Loan Agreement and each Note, the
Security Interests shall terminate and all rights to the
Collateral shall revert to Debtor. Upon any such termination of
the Security Interests or release of Collateral, each Secured
Party will, at Debtor's expense to the extent permitted by law,
execute and deliver to Debtor such documents as Debtor shall
reasonably request to evidence the termination of the Security
Interests or the release of such Collateral, as the case may be.
SECTION 13. NOTICES. All notices, communications and
demands hereunder shall be in writing and sent by certified or
registered mail, return receipt requested, or by overnight
delivery service, with all charges prepaid, to the applicable
party or parties at the addresses set forth below, or by
facsimile transmission (including, without limitation, computer
generated facsimile), promptly confirmed in writing sent by first
class mail, to the FAX numbers and addresses set forth below:
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(i) If to Debtor, to it at:
Alta Gold Co.
000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 00
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President
FAX No.: (000) 000-0000
Telex No.:
ANSWERBACK:
(ii) If to any Secured Party, to each Secured Party at:
BHF-BANK Aktiengesellschaft
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
FAX No.: (000) 000-0000
Telex No.:
ANSWERBACK:
and Xxxxxx Metals, Inc.
0 Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
FAX No.: (000) 000-0000
Telex No.:
ANSWERBACK:
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties
complying as to delivery with the terms of this Section. All
such notices and correspondence shall be deemed given upon the
earliest to occur of (i) actual receipt, (ii) if sent by
certified or registered mail, three (3) business days after being
postmarked, (iii) if sent by overnight delivery service, when
received or when delivery is refused, or (iv) if sent by
facsimile or telex, when receipt of such transmission is
acknowledged.
SECTION 14. WAIVERS; NON-EXCLUSIVE REMEDIES. (a) Except
as otherwise specifically provided herein, Debtor hereby waives
demand, notice, protest, notice of acceptance of this Security
Agreement, notice of loans made, credit extended, collateral
received or delivered or other action taken in reliance hereon
(and all other demands and notice of any description). With
respect to both the Obligations and the Collateral, Debtor hereby
assents to any extension or postponement of the time of payment
or any other indulgence, to any substitution, exchange
or release of Collateral, to the addition or release of
any party or person primarily or secondarily
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liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such
manner and at such time or times as each Secured Party may deem
advisable.
(b) Except as otherwise provided by applicable law, no
Secured Party shall have any duty as to the collection or
protection of the Collateral or any income thereon, nor as to the
preservation of rights against prior parties, nor as to the
preservation of any rights pertaining thereto beyond the safe
custody of any Collateral in its possession. Except as otherwise
provided by applicable law, each Secured Party may exercise its
rights with respect to the Collateral without resorting or regard
to other collateral or sources of reimbursement for liability.
Except as otherwise provided by applicable law, no Secured Party
shall be required to marshal any present or future security for
(including, but not limited to, this Security Agreement and the
Collateral subject to the Security Interests created hereby), or
guaranties of, the Obligations or any of them, or to resort to
such security or guarantees in any particular order; and all of
its rights hereunder and in respect of such security and
guarantees shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it
lawfully may do so, Debtor hereby agrees that it will not invoke
any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of any Secured Party's
rights under this Security Agreement or under any other
instrument evidencing any of the Obligations or under which any
of the Obligations is outstanding or by which any of the
Obligations is secured or guaranteed, and to the extent that it
lawfully may do so, Debtor hereby irrevocably waives the benefits
of all such laws.
(c) No failure on the part of any Secured Party to
exercise, and no delay in exercising, and no course of dealing
with respect to, any right, power or remedy under this Security
Agreement shall operate as a waiver thereof; nor shall any single
or partial exercise by any Secured Party of any right, power or
remedy under this Security Agreement preclude any other right,
power or remedy. The remedies in this Security Agreement are
cumulative and are not exclusive of any other remedies provided
by law, including any rights of setoff in favor of any Secured
Party.
(d) Debtor, to the extent it may lawfully do so,
hereby consents to the jurisdiction of the courts of the State of
New York and the United States District Court for the Southern
District of New York for the purpose of any suit or proceeding
brought in connection with or with respect to this Security
Agreement.
SECTION 15. WAIVER OF JURY TRIAL. EACH OF DEBTOR AND
SECURED PARTY HEREBY EXPRESSLY WAIVES TRIAL BY JURY IN ANY ACTION
BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT.
SECTION 16. CHANGES IN WRITING. Neither this Security
Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally but only by a statement in
writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
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SECTION 17. NEW YORK LAW; MEANING OF TERMS. THIS SECURITY
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SAID STATE AND WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS, EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY
THE LAWS OF ANY STATE OTHER THAN NEW YORK ARE GOVERNED BY THE
LAWS OF SUCH STATE. Unless otherwise defined herein, or unless
the context otherwise requires, all terms used herein which are
defined in the UCC as in effect in the State of New York have the
meanings therein stated.
SECTION 18. SEPARABILITY. If any provision hereof is
invalid or unenforceable in any jurisdiction, the other
provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of each
Secured Party.
SECTION 19. SUCCESSORS AND ASSIGNS. This Security
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
including, without limitation, any subsequent holders of any Note
or any of the Obligations, each of whom shall, without further
act, become a party hereto by becoming a holder of any Note or
such Obligations.
SECTION 20. HEADINGS. The headings in this Security
Agreement are for the purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
SECTION 21. COUNTERPARTS. This Security Agreement may be
executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement.
SECTION 22. AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT.
The provisions contained herein shall, effective the date hereof,
be deemed to amend and restate the terms of a certain Security
Agreement dated as of May 31, 1996 between Debtor and Xxxxxx in
its entirety.
IN WITNESS WHEREOF, this Security Agreement has been
executed by the parties hereto all as of the day and year first
above written.
WITNESS: ALTA GOLD CO.
________________________ By_______________________________
Title____________________________
BHF-BANK AKTIENGESELLSCHAFT, NEW
YORK BRANCH
________________________ By_______________________________
Title____________________________
(signatures continued on page 13)
-12-
________________________ By_______________________________
Title____________________________
XXXXXX METALS, INC.
________________________ By_______________________________
Title____________________________
________________________ By_______________________________
Title____________________________
-13-
EXHIBIT A
LIST OF PROPERTY AND EQUIPMENT
SCHEDULE A
LIST OF PROPERTY AND EQUIPMENT
EQUIPMENT YEAR MANUFACTURER MODEL SERIAL #
Wheel Loader 1988 Caterpillar 988 Series B 50W9142
Wheel Loader 1988 Caterpillar 988 Series B 50W8918
Wheel Loader 1988 Caterpillar 988 Series B 50W8583
Dozer 1987 Komatsu D155A-1 29126
Dozer 1989 Komatsu D155A-1 29691
Haul Truck 1987 Wabco Dresser 00 Xxx XXX00000XXX00X
Haul Truck 1987 Wabco Dresser 00 Xxx XXX00000XXX00X
Haul Truck 1987 Wabco Dresser 00 Xxx XXX00000XXX00X
Haul Truck 1987 Wabco Dresser 00 Xxx XXX00000XXX00X
Haul Truck 1987 Wabco Dresser 50 Ton PCF23280BFA39S
Haul Truck 1987 Wabco Dresser 50 Ton PCF23281BFA39S
Haul Truck 1981 Wabco Dresser 50 Ton PCF21464BFA9CV
Haul Truck 1980 Wabco Dresser 00 Xxx XXX00000XXX0XX
Grader 1972 Caterpillar 14E 72G895
Grader 1983 Caterpillar 14G 96U6084
Crawler Mounted Drill Rig 1988 Reichdrill C-650-C 650CBB40048
Water Truck 1979 Terex 40 Ton/ 86030
10,000 Gallon
Crawler Mounted Drill Rig 1988 Xxxxxxxxx Xxxx DM30 2934
Generator Set 1989 Caterpillar 3412 6FA5578
Generator Set 1988 Caterpillar 3412 6FA04887
Underground Drill Rig 1990 Dateline --- 500-0009
CRUSHING PLANT #1
1989 Cedar Rapids jaw crusher, model #3648, mounted on a 3-axle
trailer; driven by a 200 hp/480v/1780 rpm electric motor, serial
#41263; with Erieg Magnetics hanging belt magnet, model #7335,
s/n #50847-2.
100 Eljoy 66" cone crusher, model #1220, mounted on a 5th wheel
with three axles, serial #1E0589; driven by a 300 hp electric
induction motor, model #B300, s/n #6FKF4BD; with a 42" delivery
belt.
1990 Cedar Rapids 8' x 20' triple deck screen, serial #41998.
CRUSHING PLANT #2
1989 Cedar Rapids jaw crusher, model #3648; driven by a 250
hp/480v/1185 rpm electric motor, serial #41793; with Erieg
Magnetics hanging belt magnet, model #7335, serial #50847.
1986 Eljoy 54" cone crusher, model #1140; driven by a Caterpillar
diesel engine, model #3406, serial #90U1469.
1989 Cedar Rapids 16' x 16' deck screen, serial #41452.
-2-
EXHIBIT B
EXCLUDED PROPERTY AND EQUIPMENT
Equipment described in EXHIBIT C hereto as to which Xxxxxxx
Leasing Corporation, First National Bank of Xxx, Lyon Credit
Corp. or Concord Commercial has filed UCC financing statements
listed on such EXHIBIT C.
EXHIBIT C
PERMITTED LIENS
(A)Property described in the following financing statements on
file on date hereof:
COLLATERAL
FILING OFFICE SECURED PARTY FILE NO. FILE DATE DESCRIPTION
Nevada Secretary NERCO Exploration Company 91-10688 11/19/91 Escrow funds
of State
Cargill Leasing 95-08576 06/19/95 Equipment
Corporation (assigned to
Cargill Leasing
Receivables, LLC)
Cargill Leasing 95-12612 09/06/95 Equipment
Corporation (assigned to
Cargill Leasing
Receivables, LLC)
First National Bank of Xxx 96- 3/ /96 Mill and
equipment
Lyon Credit Corp. 96-06852 5/3/96 Equipment
Cargill Leasing 97-02722 2/18/97 Equipment
Receivables, LLC
Concord Commercial 96-09309 6/13/96 Equipment
Xxxxx County Xxxxxx Metals, Inc. Bk 960716 7/16/96 All assets
Recorder (assigned to BHF Bank, Inst 00621
etc.)
Xxxxxx Metals, Inc. Bk 950727 7/16/96 Equipment
Inst 00000
Xxxx Xxxxxx Xxxxxx Metals, Inc. 386760 6/12/96 All assets
Recorder (assigned to BHF Bank Bk 942
Akhiengelsellschaft) Pg 164
Elko County Xxxxxx Metals, Inc. 366877 4/20/95 All assets
Recorder
Washoe County Xxxxxx Metals, Inc. 1887690 9/24/95 All assets
Recorder
White Xxxx Xxxxxx Metals, Inc. Bk 235 4/21/95 All assets
County Recorder Pg 583
(B) Purchase money security interests in property acquired after
the date hereof.
(C) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due.
(D) Liens with respect to the Griffon Mine securing indebtedness
not to exceed Two Million Dollars ($2,000,000) in the
aggregate at any time and incurred in connection with
equipment financing.
-2-
EXHIBIT D
ADDITIONAL REPRESENTATIONS AND WARRANTIES
1. Debtor's exact name is: Alta Gold Co. Debtor has not
used any other name within the previous five (5) years.
2. Debtor's Federal Tax Identification Number is: #87-
0259249.
3. Debtor uses in its business and owns the following trade
names: None
4. Debtor's chief executive office is: 000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxx 00000.
5. Debtor's other places of business are:
000 Xxxxx Xxxxxx Xxxxxxx
XX00
Xxx 00000
Xxx, XX 00000
0000 Xxxx Xxxxxxxx Xxxxx Xx. 0
Xxxxxxx, XX 00000
