EXHIBIT 10.13(c)
SECURITY AGREEMENT AND PROMISSORY NOTE
This Agreement made and entered into on 10/9/02 by and between: K-223002
Debtor: APOLLO GOLD, INC. Company: Caterpillar Financial Services
000 XXXX XXXXXXXXX XXX #000 Xxxxxxxxxxx
XXXXXXX, XX 00000-0000 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
1. Grant of Security Interest. Debtor hereby grants to Company a first
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priority, continuing security interest in the property described below, and all
substitutions, additions and accessions thereto: SEE EXHIBIT "A" (herein
called the "Equipment"), and all accounts, chattel paper, deposit accounts,
security agreements, instruments, contract rights, policies and certificates of
insurance, documents and general intangibles (including all monies and credits
now due or to become due to Debtor from, and all claims against, manufacturers,
purchasers or other parties) with respect to thereto, and, whether or not
installed thereon, all exchanges, parts, returns, and attachments therefor,
whether any of the foregoing is now owned or hereafter acquired, and all
proceeds and products of any of the foregoing including, but not limited to,
proceeds in the form of chattel paper. All of the above shall hereinafter be
called the "Collateral" and are defined pursuant to the provisions of the
Uniform Commercial Code.
Debtor agrees not to remove any Equipment from Montana Tunnels Mine at Jefferson
County Montana without the prior written consent of Company. Debtor shall
immediately notify Company of any condition or event that may change the proper
location for the filing of any financing statement or other public notices or
recordings for the purposes of perfecting security interests in the Collateral,
including any change in Debtor's name or business organization or the location
of Debtor's place of business.
2. Obligations. The security interest hereby granted is to secure the
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prompt and unconditional payment and performance when due of all of the
following (herein called the "Indebtedness"): (a) any and all indebtedness
owing by Debtor to Company pursuant to a certain promissory note dated 10/9/02
in the amount of $2,000,000.00 and any and all amendments, modifications,
restructures, restatements, renewals, and extensions of said indebtedness (the
"Promissory Note") and (b) all duties, obligations, and liabilities of Debtor to
Company hereunder and under the Promissory Note and all related agreements.
Debtor agrees that the security interest herein granted to Company shall extend
to all of the Collateral for so long as any portion of the indebtedness secured
hereby remains unpaid or undischarged, whether such property comprising a part
of the Collateral is acquired by Debtor prior to, contemporaneously with, or
subsequent to the date of this Agreement.
3. (A) Promise to Pay. For Value Received, Debtor (jointly and severally,
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if more than one) promises to pay to the order of Company, in immediately
available funds at the address of the Company set forth above or at such other
place as Company or the holder hereof shall designate in writing, the principal
amount of $2,000,000.00 with interest on the outstanding principal from and
including the date hereof at the per annum rate equal to that set forth below,
until paid in full.
(B) Payment Schedule. Monthly payments of principal and interest in
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arrears, each in an mount equal to $89,545.17 shall be made commencing 10/9/02
and continuing on the like day of each month thereafter through and including
11/9/02 for a total of 24 payments. All payments received shall be applied
first to accrued interest and other nonprincipal amounts then owing under this
Agreement and then to the principal balance outstanding. The acceptance of any
payment which is less than payment in full of all amounts due and owing at such
time shall not constitute waiver of Company's or the holder's right to receive
payment in full of all amounts due and owing at such time or any prior or
subsequent time.
(C) Interest. Interest shall be computed at the per annum rate equal
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to 7.00%. All interest payable hereunder shall be calculated on the basis of
the actual number of days elapsed in a year of three hundred sixty (360) days.
(D) Time. Time is of the essence hereof. If any payment or portion of
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a payment or other sum due hereunder is not paid within 10 days from the date
such payment is due, there shall be immediately due and payable from Debtor to
Company a late fee equal to the lesser of 5.00% of the amount of the overdue
payment or portion of a payment or other sum or the highest amount allowed by
law.
(E) Prepayment. Debtor may prepay the Indebtedness evidenced by
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Section 3 in full on any payment due date by giving Company at least thirty (30)
days advance written notice and paying the then unpaid principal balance of this
Agreement, all accrued interest and all other amounts payable hereunder and a
prepayment charge of $275.00. If Debtor fails to make a prepayment as notified
to Company, Debtor shall pay a charge of $0.00 for failure to do so. Debtor
agrees that the above prepayment charge shall be due and payable whether
prepayment is voluntary or the result of prepayment created by acceleration of
this Agreement by Company in the event of default as provided herein.
(F) Savings. If at any time implementation of any provision of this
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Agreement shall raise or be deemed to raise the interest rate per annum
contracted for, charged in or collectible under this Agreement above the lawful
maximum interest rate per annum in effect from time to time in the applicable
jurisdiction, then such interest rate per annum shall be limited to such lawful
maximum interest rate; provided, however, that if the applicable state law is
amended or the law of the United States of America pre-empts the applicable
state law, so that it becomes lawful for the Company to receive a greater
interest rate per annum than is presently allowed, Debtor agrees that, on the
effective date of such amendment or pre-emption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest rate per annum
allowed by the higher of the amended state law or the law of the United States
of America. If from any circumstance, Company shall ever receive as interest or
otherwise an amount which will exceed the applicable lawful maximum rate, such
amount which would be excessive shall be deemed a mistake and shall be either
refunded or applied to the reduction of any principal owing under this
Agreement, as Company may elect.
(G) Waivers. Debtor hereby waives presentment for payment, demand for
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payment, protest, notice of protest, notice of nonpayment, notice of dishonor,
notice of acceleration and notice of intent to accelerate hereunder, and all
other notices in connection with this Agreement,
filing of suit and diligence in collecting any sums due hereunder or otherwise
under the Indebtedness or in enforcing this Agreement.
4. Representations and Warranties. Debtor represents and warrants to
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Company as follows: (a) the execution, delivery and performance of this
Agreement and of the Promissory Note and other agreements and documents
evidencing the Indebtedness secured hereby are duly authorized by Debtor, and
are not in conflict with any provision of law, the articles of incorporation or
the by-laws of Debtor, or any other indenture, agreement or undertaking by which
Debtor is bound; (b) this Agreement, the Promissory Note and other agreements or
documents evidencing the Indebtedness secured hereby constitute valid
obligations of Debtor, legally binding upon it and enforceable in accordance
with their terms; (c) all property forming part of the Collateral is now or, at
the time it becomes part of the Collateral shall be, owned by Debtor by good and
marketable title, and shall at all times be and remain free from all liens,
claims, security interests and encumbrances, except for the security interest
granted hereby and any other security interest(s) agreed to in writing by
Company, and Debtor shall defend the Collateral against all claims and demands
of all persons claiming an interest therein; (d) all financial statements and
data and any other information or documentation related to the business or
financial condition of Debtor which have been or may hereafter be furnished to
Company to induce it to advance funds or extend credit to Debtor shall fairly
represent the operations and financial condition of Debtor, as of the date
stated therein, and shall be accurate and correct in all material respects; (e)
Debtor is and shall remain a Corporation registered in the state of WA
("Business Location"); (f) Debtor will not change its form of business
organization or Business Location without prior written notice to Company; and
(g) no representation, warranty, or statement by Debtor contained herein, in the
Promissory Note or any other agreement or document evidencing the Indebtedness
secured hereby, or any certificate or other document furnished or to be
furnished by Debtor in connection with the transaction contemplated hereby,
contains or at the time of delivery shall contain any untrue statement of
material fact, or omits, or shall omit at the time of delivery, to state a
material fact required to make such certificate or other document not
misleading. The representations and warranties specified above are in addition
to and not in lieu of any representations and warranties set forth in the
Promissory Note or any other agreement or document evidencing the Indebtedness
secured hereby.
5. Financing Statement, etc. Debtor shall take any and all steps Company
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may from time to time require to establish and maintain Company's valid,
perfected security interest in the Collateral, including to execute or obtain
the execution of , in form and substance satisfactory to Company, such notices,
subordinations, releases or waivers, UCC assignments, UCC financing statements,
and other documents that Company may deem necessary to perfect, extend, or
clarify Company's rights in the Collateral securing or intended to secure
Debtor's obligations to Company hereunder. Debtor hereby irrevocably appoints
Company as Debtor's Attorney-in-Fact for the signing and filing of such
documents and authorizes Company to delegate these limited powers. Debtor
agrees to pay all costs, including attorney's fees, incurred in connection with
such filings and otherwise preserving and protecting Company's interest in the
Collateral.
6. Use and Disposition of Collateral; First and Prior Lien. The Collateral
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shall remain in Debtor's control and possession at all times. Debtor agrees
that it will not in any way misuse, conceal, pledge, mortgage, encumber or sell,
lease, assign, transfer or otherwise dispose of the
Collateral. Debtor further agrees that it will keep the Collateral free of, and
shall defend the Collateral from and against, all liens, claims, security
interests and encumbrances, except for the security interest granted hereunder
and any other security interest(s) agreed to in writing by Company. Debtor, at
its sole expense, shall maintain the Equipment in good repair and operating
condition. The Equipment is and shall remain personal property at all times
notwithstanding the manner in which it is attached or affixed to realty. All
proceeds including, but not limited to, proceeds in the form of chattel paper
received by Debtor forming part of the Collateral shall be received under an
express trust for the benefit of Company, shall not be commingled with other
monies, assets or accounts of Debtor, and shall be immediately paid to Company
(unless otherwise permitted in writing by Company).
7. Inspection of Collateral; Taxes and Charges. Company may inspect the
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Collateral, and inspect and copy all records pertaining to same, at any time and
wherever located, and Debtor shall fully cooperate with Company to identify and
provide evidence of the location, possession, and condition of, and the
ownership of, and any other interest in, the Collateral, as requested by
Company. Debtor shall also complete and return audit forms submitted by Company
from time to time within five (5) days of receipt thereof. Debtor shall be
solely responsible for and shall promptly pay when due all taxes and other
charges of every nature which may be levied or assessed against the Collateral,
its use or operation, or which arise out of are connected with this Agreement or
the Promissory Note or any other agreement or document evidencing the
Indebtedness secured hereby, by any governmental agency.
8. Insurance. Debtor shall bear the risk of loss, damage or destruction to
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the Collateral. Debtor shall, at its expense, insure the Equipment against all
risks for its full insurable value. All such insurance shall be with such
insurance companies and under such policies and in such form as are satisfactory
to Company. Such insurance shall be primary, without right of contribution from
any insurance carried by Company and shall provide that it may not be canceled
or altered so as to affect the interest of Company without at least thirty (30)
days prior written notice to Company. All insurance covering loss or damage to
Equipment shall name Company (or its designee) as sole loss payee. At the
request of Company, Debtor shall furnish Company with satisfactory evidence of
such insurance. Debtor shall promptly notify Company of any loss or damage to
the Equipment and of any claim relating thereto. Debtor shall not make
adjustments relating to the Equipment with insurers without Company's prior
written consent. Debtor hereby irrevocably appoints Company Debtor's
attorney-in-fact to endorse all drafts or checks payable to Debtor, and to file
claims and to take all other actions necessary to collect any proceeds of such
insurance. Any amounts collected from insurance shall, if received by Debtor,
be immediately paid to Company and shall be applied by Company to the
Indebtedness secured hereby.
9. Substitute Performance. If Debtor shall fail to maintain the required
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insurance, pay taxes or other charges, properly maintain or repair the
Equipment, or perform any other duty or obligation required hereunder, Company
may at any time thereafter (but shall not be required to) perform any such duty
or obligation to the extent determined by Company and make expenditures for any
or all such purposes in order to maintain and preserve the Equipment. The
amount so expended, together with interest thereon at the lessor of eighteen
percent (18%) per
annum or the highest lawful contract rate of interest, shall be immediately due
and payable by Debtor to Company and shall be secured by the security interest
herein granted.
10. Default. Debtor shall be in default hereunder and under the Promissory
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Note and all other agreements and documents evidencing the Indebtedness secured
hereby upon the occurrence of any of the following events: (a) Debtor fails to
pay any sum when due under any of the Indebtedness secured hereby or to timely
when required perform any duty or obligation under any of the Indebtedness
secured hereby and such default shall continue unremedied for 10 days
thereafter; (b) Debtor fails to observe or perform any of the provisions of this
Agreement, the Promissory Note or any other agreement or document relating to
all or any part of the Collateral or the Indebtedness; (c) any representation,
warranty, financial statement or other information made or furnished by Debtor
to Company is untrue in any material respect as of the date made or furnished;
(d) any default shall occur under any other agreement between Debtor and Company
or Debtor and any subsidiary or affiliate of Company; (e) the making of any
levy, seizure or attachment upon the Collateral; (f) should Debtor or any
guarantor default under any other security agreement directly or indirectly
securing repayment of the Indebtedness or under any material promissory note,
loan, extension of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person; (g) should any
guarantor, surety, or other party liable on whatever basis for the Indebtedness
default under the agreement of guaranty, surety, or other agreement evidencing
the liability, as the case may be; (h) the Collateral or any part thereof
becomes lost, stolen or materially damaged (i) Debtor becomes unable, or admits
in writing its inability to pay its debts as they mature, or becomes the subject
of proceedings in bankruptcy or insolvency, or makes a general assignment for
the benefit of creditors, or enters into an arrangement with a group of
creditors, or enters into any action for the purposes of accomplishing any of
the preceding; (j) Debtor, or any partner of Debtor, winds up, liquidates,
ceases to do business, dissolves, reorganizes, merges, consolidates or sells,
assigns, transfers, leases or otherwise disposes of all or substantially all of
its assets, or becomes the subject of any proceeding for any of the foregoing
purposes, if Debtor or the partner of Debtor is other than an individual; (k)
the death or judicial determination of incompetency of a Debtor who is a natural
person or of any partner of Debtor which is a partnership; or (l) should Debtor
have a material adverse change with respect to its financial condition which
results, in Company's opinion, in an impairment of the prospect of repayment of
any of the Indebtedness or of Debtor's performance of its obligations hereunder.
11. Rights and Remedies. Upon the occurrence of any default hereunder and
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at any time thereafter, Company may, at its option, do any one or more of the
following: (a) declare any or all of the Indebtedness accrued hereby (including
additional interest accrued on past due payments and any prepayment premium)
immediately due and payable without notice or demand; (b) recover any additional
damages and expenses sustained by Company by reason of breach of any provision
of this Agreement by Debtor; (c) enforce the security interest granted
hereunder; (d) accelerate the maturity and insist upon immediate payment in full
of each and every other loan, extension of credit, debt, liability and/or
obligation of every nature and kind that Debtor may then owe to Company,
whether direct or indirect or by way of assignment, and whether absolute or
contingent, liquidated or unliquidated, voluntary or involuntary, determined or
undetermined, secured or unsecured, whether Debtor is obligated alone or with
others on a joint, several or solitary basis, as a principal obligor or
otherwise, all without further
notice, demand or putting in default, unless Company shall otherwise elect; (e)
without notice, liability or legal process enter upon the premises where any of
the Collateral may be and take possession thereof; and (f) require Debtor to
assemble the Collateral and make it available to Company at a place designated
by Company which is reasonably convenient to Company and Debtor. Company shall
have all rights given to a secured party by law and all of Company's rights and
remedies shall be cumulative and nonexclusive, to the extent permitted by
applicable law. Company may, at its option, undertake commercially reasonable
efforts to sell or dispose of all or any part of the Collateral, and the
proceeds of any such sale and disposition shall be applied as follows: first, to
reimburse Company for all reasonable expenses of retaking, holding, preparing
for sale or disposition, and selling or disposing of the Collateral, including
all taxes and reasonable attorney's fees; and, second, to the extent not
previously paid by Debtor, to pay all Indebtedness secured hereby. Company shall
have the right, in its sole discretion, to determine the order in which its
rights in or remedies against any Collateral or other property now or hereafter
securing the Indebtedness are to be exercised, which part of Collateral or such
other property is to be proceeded against, and the order of application of
proceeds of Collateral or such other property as against any particular portion
of the Indebtedness. Any surplus shall be paid to the person entitled thereto.
Debtor shall remain liable for and promptly pay any deficiency to Company.
Company shall have the right to enter and remain upon the premises of Debtor or
any other place or places where any part of the Collateral may be kept, for such
time as Company may deem necessary, and (a) remove, maintain, sell, collect,
and/or liquidate the Collateral; (b) use the premises of Debtor, together with
materials and supplies located thereon, to maintain the condition of the
Collateral and to prepare the Collateral for sale or liquidation, and (c)
require Debtor to assemble the Collateral and make it available to Company or
the agents or designees of Company at Debtor's premises or such other place as
Company may reasonably designate.
Debtor hereby acknowledges that sales for cash or on credit to a wholesaler,
retailer or user, and with or without the Collateral being present, are all
commercially reasonable dispositions of the Collateral. Debtor agrees to pay all
reasonable attorney's fees and all costs and expenses incurred by Company in
enforcing this Agreement or the Promissory Note or other Indebtedness secured
hereby upon the occurrence of any default hereunder or thereunder or in
connection with any bankruptcy or other insolvency proceeding commenced by or
against Debtor. Company shall have the right, immediately and without further
action by it, to set off against to Indebtedness secured hereby all money owed
by Company or any affiliate or subsidiary of Company in any capacity (including,
without limitation, Caterpillar, Inc.) to Debtor, whether or not due, and
Company shall be deemed to have exercised such right of setoff and to have a
charge against any such money immediately upon the occurrence of a default
hereunder or under the Indebtedness secured hereby even though such charge is
made or entered on the books of Company or an affiliate or subsidiary of
Company, as the case may be, subsequent thereto. To the extent permitted by
law, Debtor hereby releases any claim it may have against Company which may
result from or arise out of the possession or repossession of the Collateral by
Company, and further waives the benefit of all valuation and appraisal laws with
respect to the Collateral. If Company shall seek to take possession of, or
repossess, the Collateral or any part thereof by judicial action, Debtor hereby
waives any requirement of notice or for Company to provide bond, surety or other
security in relation thereto, whether required by statute, court rule or
otherwise, to the extent permitted by law. The remedies specified in this
Section 10 are in addition to and not
in lieu of any remedies specified in the Promissory Note or any other agreements
or documents evidencing Indebtedness secured hereby.
12. Waiver and Indemnity. Debtor understands and agrees that its obligations
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hereunder and under the Indebtedness secured hereby shall not be affected by any
defect in, damage to or loss of possession or use of any of the Collateral,
however caused, by the attachment of any lien or other claim to any of the
Collateral, by any interference with Debtor's use of any of the Collateral, or
for any other cause, whether similar or dissimilar to the foregoing, any present
or future law to the contrary notwithstanding. DEBTOR HEREBY AGREES TO RELEASE,
DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND ASSIGNS FROM AND AGAINST ANY CLAIMS OF DEBTOR OR THIRD PARTIES,
INCLUDING CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, PERSONAL
INJURY, PROPERTY DAMAGE, STRICT LIABILITY OR NEGLIGENCE, FOR ANY LOSS, DAMAGE OR
INJURY CAUSED BY OR RELATING TO THE DESIGN, MANUFACTURE, SELECTION, DELIVERY,
CONDITION, OPERATION, USE, OWNERSHIP, MAINTENANCE OR REPAIR OF ANY COLLATERAL.
FURTHER, DEBTOR AGREES TO BE RESPONSIBLE FOR ALL COSTS AND EXPENSES, INCLUDING
REASONABLE AITORNEY'S FEES, INCURRED BY COMPANY OR ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND ASSIGNS IN DEFENDING SUCH CLAIMS OR IN ENFORCING THIS
PROVISION. UNDER NO CONDITION OR CAUSE OF ACTION SHALL COMPANY BE LIABLE FOR
ANY LOSS OF ACTUAL OR ANTICIPATED BUSINESS OR PROFITS OR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES.
13. Integration; Amendment; Waiver. This Agreement constitutes the entire
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agreement between the parties concerning Company's security interest in the
Collateral and the portion of the Indebtedness evidenced hereby and may not be
altered or amended except by a writing signed by all parties hereto. Waiver of
any default hereunder shall not constitute waiver of any subsequent default.
Any waiver or consent by Company of or to any default by Debtor hereunder must
be in writing specifically set forth. In addition, any failure or delay on the
part of Company to exercise any of the rights and remedies granted to Company
shall not have the effect of waiving any of Company's rights and remedies. Any
partial exercise of any rights and/or remedies granted to Company shall
furthermore not be construed as a waiver of any other rights and remedies, it
being Debtor's intent and agreement that Company's rights and remedies shall be
cumulative in nature. To the extent permitted by law, Debtor waives all rights
to plead any statute of limitations as a defense to any action on this
Agreement. DEBTOR WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM OF ANY KIND, ARISING OUT OF OR RELATED TO THIS
AGREEMENT, AND ACKNOWLEDGES THAT THE FOREGOING WAIVER IS A MATERIAL INDUCEMENT
TO COMPANY IN ENTERING INTO THIS AGREEMENT AND CREATING IN FAVOR OF DEBTOR THE
INDEBTEDNESS SECURED HEREBY AND THAT COMPANY IS RELYING UPON THE FOREGOING
WAIVER. DEBTOR WARRANTS THAT IT HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY
TRIAL RIGHTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
14. Assignment. Any or all of the rights of Company under this Agreement and
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in the Collateral may be assigned by Company at any time. No assignment of this
Agreement or of any right or obligation hereunder may be made by Debtor without
the prior written consent of Company. This Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of Debtor and inure to
the benefit of Company, its successors and assigns.
15. Construction; Severability. This Agreement shall be construed no
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more strictly against one party than the other, regardless of which party
drafted the Agreement. Any provision found to be invalid under any applicable
law shall be inapplicable and deemed omitted, but the remaining provisions
hereof shall be given effect in accordance with the manifest intent hereof.
Notwithstanding any termination of this Agreement, all terms and conditions
hereof shall continue to apply after such termination until all Indebtedness
secured hereby has been finally performed and paid in full. If the Agreement is
signed by more than one Debtor, the singular "Debtor" as used herein shall
include the plural and the obligations of all those signing as Debtor shall be
joint and several.
16. Headings. The headings appearing in each section hereof are for
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convenience or reference only and are not to be considered or construed as a
substantive part of this Agreement.
17. Counterparts. This Agreement may be separately executed by Debtor and
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Company in any number of counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which, when so executed
and delivered, shall be deemed to be an original and all of which, taken
together, shall constitute but one and the same instrument.
18. Applicable Law. This agreement shall be governed by and construed under
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the laws of the State of Tennessee, without giving effect to the
conflict-of-laws principles thereof, and Debtor hereby consents to the
jurisdiction of any state or federal court located within the State of
Tennessee.
In Witness Whereof, Debtor and Company have duly executed this Agreement as of
the day and year first above written.
("Debtor") ("Company")
APOLLO GOLD, INC. CATERPILLAR FINANCIAL SERVICES CORPORATION
Signature: /s/ XX Xxxxxxx Signature: /s/ Xxxx Xxxxxxxxxx
Name (PRINT): XX Xxxxxxx Name (PRINT): Xxxx Xxxxxxxxxx
Title: Chief Financial Officer Title: Documentation Manager
Address: 0000 XXX Xxxxxxxxx,
Xxxxx 000
Xxxxxx, XX 00000
EXHIBIT "A" FOR PROMISSORY NOTE AND SECURITY AGREEMENT
Between APOLLO GOLD, INC.
And Caterpillar Financial Services Corporation
Dated 10/9/02
DESCRIPTION OF UNIT(S) MODEL SERIAL#
ONE CATERPILLAR 950B WHEEL LOADER S/N 31R00553
ONE CATERPILLAR D8N TRACK TYPE TRACTOR S/N 9TC04370
ONE CATERPILLAR D9N TRACK TYPE TRACTOR S/N 1JD02912
ONE CATERPILLAR D9N TRACK TYPE TRACTOR S/N 1JD02933
ONE CATERPILLAR 16G MOTOR GRADER S/N 93U03254
ONE CATERPILLAR 16G MOTOR GRADER S/N 93U03521
ONE CATERPILLAR 992C WHEEL LOADER S/N 49Z01809
ONE CATERPILLAR 992D WHEEL LOADER S/N 7MJ00166
ONE CATERPILLAR 992C WHEEL LOADER S/N 49Z01936
ONE CATERPILLAR 992C WHEEL LOADER S/N 49Z01935
ONE CATERPILLAR 325BL EXCAVATOR S/N 2JR02869
ONE CATERPILLAR 5230FS FRONT SHOVEL EXCAVATOR S/N 7LL00024
ONE CATERPILLAR 777C OFF HIGHWAY TRUCK S/N 4XOJ0233
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000 XXX XXXXXXX XXXXX X/X 0XX0000
XXX CATERPILLAR 000 XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 5230FS FRONT SHOVEL EXCAVATOR S/N 7LL00055
ONE CATERPILLAR 5230FS FRONT SHOVEL EXCAVATOR S/N 7LL00061
ONE CATERPILLAR 000 XXX XXXXXXX XXXXX X/X 0XX00000
ONE CATERPILLAR 000X XXX XXXXXXX XXXXX X/X 0XX00000
XXXXXX GOLD, INC. CATERPILLAR FINANCIAL SERVICES CORPORATION
Signature: /s/ Signature: /s/
---------------------- --------------------
Print: XX Xxxxxxx Print: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer Title: Documentation Manager
AMORTIZATION SCHEDULE
VARIABLE RATE
(MULTIPLE ASSETS)
Prepared Sept-19-2002 15:43 by . . . . . . . . . . . . . . Xxxxxxx Xxxxxx
QIP number . . . . . . . . . . . . . . . . . . . . . . . . QIP-EFC-12227
365 day calculations . . . . . . . . . . . . . . . . . . . 360 / 360
Customer . . . . . . . . . . . . . . . . . . . . . . . . . Apollo Gold, Inc.
Model. . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple Assets
NUMBER
OF
PAYMENTS STARTING INTEREST INTEREST ENDING
DATE MADE BALANCE LOAN PAYMENT 7.00001% RATE PRINCIPAL BALANCE
Sep-19-02 0 0.00 2,000,000.00 0.00 0.00 7.00 0.00 2,000,000.00
Oct-19-02 1 2,000,000.00 0.00 89,545.17 11,666.68 7.00 77,878.49 1,922,121.51
Nov-19-02 2 1,922,121.51 0.00 89,545.17 11,212.38 7.00 78,332.79 1,843,788.72
Dec-19-02 3 1,843,788.72 0.00 89,545.17 10,755.45 7.00 78,789.72 1,764,999.00
------------ ------------ ---------- ------------
2,000,000.00 268,635.51 33,634.51 235,001.00
Jan-19-03 4 1,764,999.00 0.00 89,545.17 10,295.84 7.00 79,249.33 1,685,749.67
Feb-19-03 5 1,685,749.67 0.00 89,545.17 9,833.48 7.00 79,711.69 1,606,037.98
Mar-19-03 6 1,606,037.98 0.00 89,545.17 9,368.58 7.00 80,176.59 1,525,861.39
Apr-19-03 7 1,525,861.39 0.00 89,545.17 8,900.86 7.00 80,644.31 1,445,217.08
May 19-03 8 1,445,217.08 0.00 89,545.17 8,430.43 7.00 81,114.74 1,364,102.34
Jun-19-03 9 1,364,102.34 0.00 89,545.17 7,957.25 7.00 81,587.92 1,282,514.42
Jul-19-03 10 1,282,514.42 0.00 89,545.17 7,481.33 7.00 82,063.84 1,200,450.58
Aug-19-03 11 1,200,450.58 0.00 89,545.17 7,002.66 7.00 82,542.51 1,117,908.07
Sep-19-03 12 1,117,908.07 0.00 89,545.17 6,521.13 7.00 83,024.04 1,034,884.03
Oct-19-03 13 1,034,884.03 0.00 89,545.17 6,036.86 7.00 83,508.31 951,375.72
Nov-19-03 14 951,375.72 0.00 89,545.17 5,549.63 7.00 83,995.54 867,380.18
Dec-19-03 15 867,380.18 0.00 89,545.17 5,059.69 7.00 84,485.48 782,894.70
------------ ------------ ---------- ------------
0.00 1,074,542.04 92,437.74 982,104.30
Jan-19-04 16 782,894.70 0.00 89,545.17 4,566.90 7.00 84,978.27 697,916.43
Feb-19-04 17 697,916.43 0.00 89,545.17 4,071.16 7.00 85,474.01 612,442.42
Mar-19-04 18 612,442.42 0.00 89,545.17 3,572.54 7.00 85,972.63 526,469.79
Apr-19-04 19 526,469.79 0.00 89,545.17 3,071.07 7.00 86,474.10 439,995.69
May-19-04 20 439,995.69 0.00 89,545.17 2,566.63 7.00 86,978.54 353,017.15
Jun-19-04 21 353,017.15 0.00 89,545.17 2,059.20 7.00 87,485.97 265,531.18
Jul-19-04 22 265,531.18 0.00 89,545.17 1,548.95 7.00 87,996.22 177,534.96
Aug-19-04 23 177,534.96 0.00 89,545.17 1,035.66 7.00 88,509.51 89,025.45
Sep-19-04 24 89,025.45 0.00 89,545.17 519.72 7.00 89,025.45 0.00
------------ ------------ ---------- ------------
0.00 805,906.53 23,011.83 782,894.70
TOTAL 2,000,000.00 2,149,084.08 149,084.08 2,000,000.00
------------ ------------ ---------- ------------
Ending balance not equal to early buy out amount.
GUARANTY OF PAYMENT
THIS GUARANTY ("Guaranty") is made and entered into as of 10/9/02
-----------------
by and between each of the undersigned parties (hereinafter, referred to in
their individual capacity and collectively as "Guarantor") in favor of
Caterpillar Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000 (hereinafter referred to as "Caterpillar Financial"),
guaranteeing the Indebtedness (as hereinafter defined) of APOLLO GOLD, INC.
(hereinafter referred to as "Obligor").
WITNESSETH:
FOR VALUE RECEIVED, and/or as an inducement to Caterpillar Financial to now or
hereafter enter into, purchase or otherwise acquire the agreements, accounts
and/or other obligations evidencing and/or securing Obligor's Indebtedness and
in consideration of and for credit and financial accommodations now or hereafter
extended to or for the account of the Obligor (which includes Caterpillar
Financial's consent to an assignment and/or assumption of the Indebtedness),
which is in the best interest of Guarantor and which would not have been
extended but for this Guaranty, the Guarantor agrees as follows:
SECTION 1. GUARANTY OF OBLIGOR'S INDEBTEDNESS. Guarantor hereby absolutely,
-------------------------------------------------
irrevocably and unconditionally agrees to, and by those presents does hereby:
(a) guarantee the prompt and punctual payment, performance and satisfaction of
all present and future indebtedness and obligations of Obligor to Caterpillar
Financial which Obligor now owes Caterpillar Financial or which Obligor shall at
any time or from time to time hereafter owe Caterpillar Financial when the same
shall become due in connection with or arising out of that certain PROMISSORY
NOTE & SECURITY AGREEMENT by and between Obligor and Caterpillar Financial dated
10/9/02 , including any and all existing and future additional
-----------------
schedules, amendments and/or related agreements thereto (the "Contract"),
whether direct or contingent, due or to become due, joint or several, primary or
secondary, liquidated or unliquidated, secured or unsecured, original or renewed
or extended, or by open account or otherwise, and whether representing rentals,
principal, interest and/or late charges or other charges of an original balance,
an accelerated balance, a balance reduced by part payment or a deficiency after
sale of collateral or otherwise and (b) undertake and guarantee to pay on demand
and indemnify Caterpillar Financial against all liabilities, losses, costs,
attorney's fees, and expenses which may be suffered by Caterpillar Financial by
reason of Obligor's default or default of the Guarantor (with all of Obligor's
indebtedness and/or obligations as stated above (including all costs, fees and
expenses) being hereinafter individually and collectively referred to under this
Guaranty as Obligor's "Indebtedness", which Indebtedness shall be conclusively
presumed to have been created in reliance upon this Guaranty).
SECTION 2. JOINT, SEVERAL AND SOLIDARY LIABILITY. Guarantor further agrees
-----------------------------------------------------
that its obligations and liabilities for the prompt and punctual payment,
performance and satisfaction of Obligor's Indebtedness are independent of any
agreement or transaction with any third parties and shall be on a "joint and
several" and "solidary" basis along with Obligor to the same degree and extent
as if Guarantor had been and/or will be a co-borrower, co-principal obligor
and/or co-maker of Obligor's Indebtedness. In the event that there is more than
one guarantor under
this Guaranty, or in the event that there are other guarantors, endorsers,
sureties or any other party who may at any time become liable for all or any
portion of Obligor's Indebtedness (each, an "Other Obligor"), the provisions
hereof shall be read with all grammatical changes thereby rendered necessary and
each reference to the Guarantor shall include each and every one of those
parties liable for all or any portion of Obligor's Indebtedness and each
Guarantor's obligations and liabilities hereunder shall be on a "joint and
several" and "solidary" basis along with such Other Obligors.
SECTION 3. DURATION; CANCELLATION OF GUARANTY. This Guaranty and
-----------------------------------------------------
Guarantor's obligations and liabilities hereunder shall remain in full force and
effect until such time as Obligor's Indebtedness shall be fully and finally
paid, performed and/or satisfied, until such time as this Guaranty may be
cancelled by Caterpillar Financial under a written cancellation instrument in
favor of Guarantor or otherwise as stated herein.
SECTION 4. DEFAULT BY OBLIGOR. Immediately upon Obligor's default under any
---------------------------------
of its Indebtedness in favor of Caterpillar Financial, Caterpillar Financial may
make demand upon Guarantor and Guarantor unconditionally and absolutely agrees
to pay the full then unpaid amount of all of Obligor's Indebtedness (whether at
stated maturity, by required prepayment, declaration, acceleration or otherwise)
and/or perform any covenant or agreement hereunder guaranteed. Such payment or
payments shall be made immediately following demand by Caterpillar Financial at
Caterpillar Financial's offices indicated above.
SECTION 5. ADDITIONAL COVENANTS. Guarantor further agrees that Caterpillar
------------------------------------
Financial may, at its sole option, at any time, and from time to time, without
the consent of or notice to Guarantor, or to any other party, and without
incurring any responsibility to Guarantor or to any other party, and without
affecting, impairing or releasing the obligations of Guarantor under this
Guaranty: (a) discharge or release any party (including, but not limited to,
Obligor, secondary obligors of Obligor's indebtedness, or any co-guarantor under
this Guaranty) who is or may be liable to Caterpillar Financial for Obligor's
Indebtedness; (b) sell at public or private sale, exchange, release, impair,
surrender, substitute, realize upon or otherwise deal with, in any manner and in
any order and upon such terms and conditions as Caterpillar Financial deems best
at its uncontrolled discretion, any leased equipment and/or any collateral
listed in the Contract or now or hereafter otherwise directly or indirectly
securing repayment of Obligor's Indebtedness (all such leased equipment and/or
all such collateral shall hereinafter be referred to as the "Equipment"),
including without limitation, the purchase of all or any part of such collateral
for Caterpillar Financial's own account; (c) change the manner, place or terms
of payment and/or available credit (including without limitation increase or
decrease in the amount of such payments available credit or any interest rate
adjustments), or change or extend the time of payment of or renew, as often and
for such periods as Caterpillar Financial may determine, or alter Obligor's
Indebtedness or grant any other indulgence to Obligor and/or any secondary
obligors of Obligor's Indebtedness or any co-guarantor under this Guaranty; (d)
settle or compromise Obligor's Indebtedness with Obligor and/or any third party
or refuse any offer of performance with respect to, or substitutions for, the
Indebtedness; (e) take or accept any other security or guaranty for any or all
of Obligor's Indebtedness; and/or (f) enter into, deliver, modify, amend or
waive compliance with, any instrument, agreement or arrangement evidencing,
securing or otherwise affecting, all or any part of Obligor's Indebtedness.
SECTION 6. NO RELEASE OF GUARANTOR. Guarantor's obligations and liabilities
--------------------------------------
under this Guaranty shall not be released, impaired, reduced or otherwise
affected by, and shall continue in full force and effect, notwithstanding the
occurrence of any event, including without limitation any one or more of the
following events: (a) death, insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of authority (whether
corporate, partnership or trust) of Obligor (or any person acting on Obligor's
behalf) or any Other Obligor or any other defense based on or arising out of the
lack of validity or unenforceability of the Indebtedness or any agreement or
instrument relating thereto or any provisions thereof and/or Obligor's absence
or cessation of liability thereunder for any reason, including without
limitation, Caterpillar Financial's failure to preserve any right or remedy
against Obligor; (b) any change in Obligor's financial condition; (c) partial
payment or payments of any amount due and/or outstanding under Obligor's
Indebtedness; (d) any change in Obligor's management, ownership, identity or
business or organizational
structure; (e) any payment by Obligor or any other party to Caterpillar
Financial that is held to constitute a preferential transfer or a fraudulent
conveyance under any applicable law, or for any reason, Caterpillar Financial is
required to fund such payment or pay such amount to Obligor or to any other
person; (f) any sale, lease or transfer, whether or not commercially reasonable,
of all or any part of Obligor's assets and/or any assignment, transfer or
delegation of Obligor's Indebtedness to any third party (whereby this Guaranty
shall continue to extend to all sums due from or for the account of Obligor
and/or the new or substituted legal entity); (g) any failure to perfect any lien
or security interest securing the Indebtedness or preserve any right, priority
or remedy against any Equipment; (h) any interruption, change or cessation of
relations between Guarantor and Obligor; (i) any defect in, damage to,
destruction of or loss of or interference with possession or use of any
Equipment for any reason by Obligor or any other person; (j) any act or omission
by Caterpillar Financial which increase the scope of Guarantor's risk, including
without limitation, negligent administration of transactions with Obligor;
and/or (k) any other occurrence or circumstance whatsoever, whether similar or
dissimilar to the foregoing, which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or which might
otherwise limit recourse against Guarantor.
SECTION 7. WAIVERS BY GUARANTOR. Guarantor waives, for the benefit of
--------------------------------------
Caterpillar Financial (which waivers shall survive until this Guaranty is
released or terminated in writing by Caterpillar Financial): (a) notice of the
acceptance of this Guaranty; (b) notice of the existence, creation or incurrence
of new and/or additional debt owing from Obligor to Caterpillar Financial; (c)
presentment, protest and demand, and notice of protest, demand, nonpayment,
nonperformance and dishonor of any and all agreements, notes or other
obligations signed, accepted, endorsed or assigned to or by Caterpillar
Financial or agreed to between Obligor and Caterpillar Financial; (d) notice of
adverse change in Obligor's financial condition or any other fact which might
materially increase the risk of Guarantor; (e) any and all rights in and notices
or demands relating to any Equipment, including without limitation, all rights,
notices, advertisements or demands relating, whether directly or indirectly, to
the foreclosure, sale or other disposition of any or all such Equipment or the
manner of such sale or other disposition; (f) any claim, right or remedy which
Guarantor may now have or hereafter acquire against the Obligor that arises
hereunder and/or from the performance by an Other Obligor including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Caterpillar
Financial against the Obligor or any security which Caterpillar Financial now
has or hereafter acquires with respect to the Obligor, whether or not such
claim, right or remedy arises in equity, under contract (express or implied), by
statute, under common law or otherwise; (g) notice of any default by Obligor or
any other person obligated in any manner for all or any portion of Obligor's
Indebtedness and notice of any legal proceedings against such parties; (h) any
right of contribution from any Other Obligors; (i) notice and hearing as to any
prejudgment remedies; (j) any defense which is premised on an alleged lack of
consideration of the obligation undertaken by Guarantor, including without
limitation, any defense to the enforcement of this Guaranty based upon the
timing of execution of this Guaranty and/or that the Guaranty had been executed
after the execution date of any agreements evidencing the Indebtedness; (k) all
exemptions and homestead laws; (l) any other demands and notices required by
law; (m) all setoffs and counterclaims against Caterpillar Financial and/;or
Obligor; (n) any defense based on the claim that Guarantor's liabilities and
obligations exceed or are more burdensome than those of Obligor; (o) any defense
which the Guarantor may assert or be able to assert on the underlying
Indebtedness or which may be asserted by Guarantor, including but not limited to
(i) breach of warranty, (ii) fraud, (iii) statue of frauds, (iv) infancy, (v)
statute of limitations, (vi) lender liability, (vii) accord and satisfaction,
(viii) payment and/or (ix) usury.
SECTION 8. ENFORCEMENT OF GUARANTOR'S OBLIGATIONS AND LIABILITIES.
---------------------------------------------------------------------------
Guarantor agrees that, should Caterpillar Financial deem it necessary to file an
appropriate collection action to enforce Guarantor's obligations and liabilities
under this Guaranty, Caterpillar Financial may commence such a civil action
against Guarantor without the necessity of first (i) attempting to collect
Obligor's Indebtedness from Obligor or from any Other Obligor, whether through
filing of suit or otherwise, (ii) attempting to exercise any rights Caterpillar
Financial may have against any Equipment, whether through re-lease, the filing
of any appropriate foreclosure action or otherwise, (iii) including Obligor or
any Other Obligor as an additional party defendant in such a collection action
against Guarantor, or (iv) pursuing any other remedy in Caterpillar Financial's
power or to mitigate damages. If there is more than one guarantor under this
Guaranty, such Guarantor additionally agrees that Caterpillar Financial may file
an appropriate collection and/or enforcement action against any one or more of
them, without impairing the rights of Caterpillar Financial against any other
guarantor under this Guaranty.
SECTION 9. COUNTERACTION. This writing is intended as a final expression of
----------------------------
this Guaranty agreement and is a complete and exclusive statement of the terms
of that agreement, provided however, that the provisions of this Guaranty shall
be in addition to and cumulative of, and not in substitution, novation or
discharge of, any and all prior or contemporaneous written guaranties or other
written agreements by Guarantor (or any one or more of them), in favor of
Caterpillar Financial or assigned to Caterpillar Financial by others, all of
which shall be construed as complementing each other. Nothing hereto contained
shall prevent Caterpillar Financial from enforcing any and all such other
guaranties or agreements in accordance with their respective terms.
SECTION 10. SUCCESSORS AND ASSIGNS BOUND. Guarantor's obligations and
---------------------------------------------
liabilities under this Guaranty shall be binding upon Guarantor's successors,
heirs, legatees, devisees, administrators, executors and assigns. Caterpillar
Financial may assign this Guaranty and any
and all rights and interests included herein in Caterpillar Financial's sole
discretion without notice to Guarantor and the rights and remedies granted to
Caterpillar Financial under this Guaranty shall also inure to the benefit of
Caterpillar Financial's successors and assigns, as well as to any and all
subsequent holder or holders of any of Obligor's Indebtedness subject to this
Guaranty, without setoff, counterclaim, reduction, recoupment, abatement,
deduction or defense based on any claim Guarantor may have against Caterpillar
Financial, such successors and assigns or subsequent holders of Obligor's
Indebtedness. Guarantor shall not assign this Guaranty without the prior written
consent of Caterpillar Financial.
SECTION 11. TERMINATION. This Guaranty is irrevocable and may be terminated
-------------------------
only as to indebtedness created sixty (60) days after actual receipt by
Caterpillar Financial of written notice of termination hereof, provided however,
that all Indebtedness incurred, created or arising pursuant to a commitment of
Caterpillar Financial made prior to the effective date of such termination (the
"Termination Date") and any extensions, renewals or modifications of such
Indebtedness (including without limitation loan and/or other commitments) agreed
to or instituted by Caterpillar Financial prior to the Termination Date shall
not be effected by such termination and shall be deemed to have been incurred
prior to termination (irrespective of whether Indebtedness arising thereunder
occurs after the Termination Date) and shall be fully covered by this Guaranty.
Any termination of this Guaranty shall be ineffective unless upon the
Termination Date Guarantor deposits with Caterpillar Financial collateral in the
form of cash in an amount not less than the amount of the Indebtedness
outstanding on the Termination Date. Such cash shall be held by Caterpillar
Financial in a separate account and shall be returned to Guarantor upon the full
and indefeasible payment of all of the Indebtedness.
SECTION 12. GOVERNING LAW; WAIVER OF JURY. This Guaranty shall be construed
---------------------------------------------
liberally in favor of Caterpillar Financial and shall be governed and construed
in accordance with the substantive laws of the State of Tennessee without regard
to the conflicts of laws principals thereof. ANY ACTION, SUIT OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR THE RELATIONSHIP BETWEEN
GUARANTOR AND CATERPILLAR FINANCIAL, WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. AS SUCH, GUARANTOR HEREBY WAIVES ANY
RIGHT TO A JURY TRIAL IN ANY SUCH ACTION, SUIT OR PROCEEDING. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE
COURT.
SECTION 13. SEVERABILITY. If any provision of this Guaranty is held to be
--------------------------
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Guaranty shall be
construed and enforceable as if the illegal, invalid or unenforceable provision
had never comprised a part of it, and the remaining provisions of this Guaranty
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty in favor of Caterpillar
Financial on the day, month and year first written above.
GUARANTOR HAS READ AND FULLY UNDERSTANDS ALL OF THE PROVISIONS OF THIS GUARANTY.
(Complete Address, Phone, SSN if
Guarantor is an Individual)
Guarantor: APOLLO GOLD CORPORATION Address:
---------------------------------
Signature: /s/ XX Xxxxxxx
------------------------ -----------------------------------------
Name (PRINT): XX Xxxxxxx Phone:
--------------------- -----------------------------------
Title: Chief Financial Officer SSN:
---------------------------- -------------------------------------
Guarantor: MONTANA TUNNELS MINING, Address:
INC. ---------------------------------
Signature: /s/ XX Xxxxxxx
------------------------ -----------------------------------------
Name (PRINT): XX Xxxxxxx Phone:
--------------------- -----------------------------------
Title: Chief Financial Officer SSN:
---------------------------- -------------------------------------
