EXHIBIT 10.9
AGREEMENT
Agreement dated this 30th day of October, 1997, by and between Tyro
Inc., a Nevada corporation, also known as Tyro Precious Metals Processing Center
("Tyro"), Xxxx Xxxxxxx ("Xxxxxxx"), Individually, and Xxxxxx X. Ericsson
(Ericsson), Individually (collectively referred to as "Debtors"), and Can-Cal
Resources Ltd. ("Can-Cal").
WHEREAS, by letter of agreement dated September 11, 1996 and amendments
thereto, by and between Tyro, A. R. Trust, acting on behalf of Can-Cal, entered
into an agreement to process precious metals and perform other services; and
WHEREAS, disputes have risen by and between the parties with respect to
the propriety of expenditures of monies advanced by Can-Cal through A. R. Trust
to the escrow account of Ericsson to Tyro; and
WHEREAS, the parties desire to resolve their differences amicably and
provide for the repayment of a portion of funds advanced by Can-Cal through A.
R. Trust to Tyro; and
WHEREAS, the parties wish to, upon completion of payments required by
this Agreement, release each other from any other and further obligations to
each other.
NOW, THEREFORE, it is agreed as follows:
PAYMENTS TO CAN-CAL
1.Tyro, Xxxxxxx, Individually, and Ericsson, Individually, (Collectively
"Debtors") each hereby jointly and severally covenant and promise to pay to
Can-Cal the sum of $65,000 as follows:
Date Due Amount
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November 10, 1997 $10,000
December 10, 1997 $10,000
January 10, 1998 $10,000
February 10, 1998 $10,000
March 10, 1998 $10,000
April 10, 1998 $10,000
May 10, 1998 $ 5,000
There shall be a ten (10) day grace period before a default is declared by
Can-Cal, with the exception of the payment due on November 10,1997 which must be
made on that date. All payments
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shall bear interest at six percent (6%) per annum with the exception of the
first payment of $10,000 due on November 10,1997 which shall be paid without any
interest.
Debtors each agree that they are primarily liable for the payment of all
monies as set forth herein and that, in the event of the occurrence of an event
of default, they will pay to Can-Cal all costs including reasonable attorney's
fees incurred in enforcing this Agreement, their lien and security interests, or
the rights and remedies herein provided.
COLLATERAL
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2. Debtors hereby agree to secure and collateralize the obligation of
$65,000 to Can-Cal by pledging to Can-Cal the collateral listed on Exhibit A
hereto. Debtors will forthwith execute appropriate financing statements and all
other documents as Can-Cal may reasonably require in order to make all required
filings as evidence of the pledge of the collateral to Can-Cal.
DEBTORS' REPRESENTATIONS AND WARRANTIES
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3. Debtors hereby represent and warrant:
a. that they own each item of collateral set forth on Exhibit A free
and clear of all liens, security interests, encumbrances or claims by third
parties and that by pledging the collateral to Can-Cal they are not violating
any agreement, covenant, promise or undertaking.
b. that the collateral will be kept and stored at Tyro's facilities
near Bullhead City, Arizona and will not be removed therefrom without the
express prior written consent of Can- Cal; and
c. Debtors will defend the collateral against claims or demands made
by all persons claiming either the collateral or any interest in it.
d. Debtors will promptly pay when due all taxes, assessments, liens
and encumbrances levied against the collateral or upon the use of the collateral
or upon operations in which the collateral is used, or those levied against the
obligation secured by this Agreement. If the collateral is attached to real
property owned by Debtors or under any contract which obligates Debtors to pay
taxes on the real property, Debtors agree to pay taxes, assessments and
encumbrances upon the real property on which the collateral is located.
USE OF COLLATERAL
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4. Until the occurrence of any event of default, Debtors may have
possession of the collateral. Debtors may use the collateral in any lawful
manner which is not inconsistent with this Agreement, any policy of insurance
upon the collateral or the laws and regulations of the State of Arizona. Debtors
will maintain and keep the collateral in good order and repair and agree not to
use
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the collateral in any manner which results in waste, unreasonable deterioration
or depreciation. Can- Cal's representatives may enter upon the Debtors' property
and inspect the collateral at any reasonable time.
EVENTS QF DEFAULT
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5. Debtors are in default under this Agreement upon the happening of one
or more of the following events or conditions:
a. Default in the payment of monies when due;
b. If a warranty, representation or statement made or furnished by
Debtors to Can-Cal is false or proves to have been false in any material respect
when it was made;
c. Loss, theft, damage, destruction, sale or encumbrance of the
collateral or any part of it, or a levy, seizure or attachment of the collateral
or any part of it;
d. Debtors' failure to perform any covenant in this Agreement or the
taking of action by Debtors which is inconsistent with or in violation of this
Agreement; or which endangers the safety or integrity of the collateral or
Can-Cal's security interest;
e. Dissolution, termination of existence, insolvency of any Debtor,
appointment of a receiver for any part of any property belonging to Debtors
whether or not it is collateral under this Agreement, assignment for the benefit
of creditors, or the commencement of proceedings under a bankruptcy or
insolvency law by or against the Debtors.
ACCELERATION
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6. Upon the happening of an event of default, all amounts owed by
Debtors to Can-Cal, pursuant to this Agreement, shall become immediately due and
payable.
7. Upon the occurrence of any event of default hereunder, Can-Cal shall
have the right to take possession of the collateral and to sell or any part
thereof consistent with commercially reasonable standards at public or private
sale at Can-Cal's option at any time or times without advertisement or demand
upon or notice to any Debtor (all of which are hereby waived), except such
notice as is required by applicable statute and cannot be waived; with the right
on the part of Can- Cal or its nominee to become the purchaser thereof at any
such sale (unless prohibited by statute), free from any equity of redemption and
from all other claims, and after deducting all legal and other expenses for
maintaining or selling the collateral and all attorneys fees, legal or other
expenses for collection, sale and delivery, to apply the residue of the proceeds
of such sale or sales to pay all amounts owed by Debtors to Can-Cal.
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OTHER REMEDIES AVAILABLE TO CAN-CAL
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8. The amount to be paid by Debtors to Can-Cal pursuant to this
Agreement represents a compromise of claims asserted by Can-Cal against Debtors.
In the event the Debtors fail to make timely payment of the amounts due pursuant
to paragraph 1 herein, Can-Cal, in addition to its rights to obtain judgment for
any unpaid balance due, shall have the right to file a lawsuit against Debtors
seeking damages in addition to the amounts required to be paid hereunder.
DEBTORS' AUTHORITY
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9. Debtors have the authority to enter into this Agreement and any
person signing it on Debtors' behalf does so with the authority of the Debtors.
REPRESENTATIONS AND WARRANTIES OF CAN-CAL
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10. Can-Cal represents that it has, either directly or through A. R.
Trust advanced funds to Tyro by depositing them in the escrow account of
Ericsson and that no other party has any interest in the funds advanced by it.
Can-Cal further represents that it has the authority to enter into this
Agreement and any person signing it on Can-Cal's behalf does so with the
authority of Can-Cal.
ASSIGNMENT OF RIGHTS
--------------------
11. Debtors, and each of them, hereby assign to Can-Cal any and all
rights, claims, or causes of action they have or may have against Xxxx Xxxxxxx
for actions taken or failed to be taken, monies spent, monies received or any
other matter relating to services performed or failed to be performed, equipment
purchased or obtained in connection with services performed by Debtors for
Can-Cal.
RELEASES
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12. Upon receipt of all payments required by paragraph 1 of this
Agreement timely made by Debtors, Can-Cal irrevocably releases Debtors and each
of them from all actions, causes of action, suits, debts and all other matters
Can-Cal ever had or has by reason of any matter to the date of this Agreement.
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13. In consideration of the execution of this Agreement by Can-Cal,
Debtors and each of them hereby release Can-Cal from all actions, causes of
action, suits, debts and all other matters Debtors ever had or has by reason of
any matter to the date of this Agreement.
TYRO INC., A NEVADA CORPORATION
By: /s/ Xxxx Xxxxxxx, President
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Individually
/s/ Xxxxxx X. Ericsson
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Xxxxxx X. Ericsson, Individually
CAN-CAL RESOURCES LTD.
By: /s/ X. X. Xxxxx
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