CHATTEL SECURITY AGREEMENT
DEBTOR: AZCO MINING, INC., a Delaware corporation
SECURED PARTY: XXXXX X. XXXX
DATE: August 27, 2001
AGREEMENT made and entered into the date hereinafter given by and between
AZCO MINING, INC., a Delaware corporation, with its principal place of business
located at 0000 X. Xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 (herein referred to
as the "Debtor"); and XXXXX X. XXXX, residing at 0000 X. 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 (herein referred to as the "Secured Party").
RECITALS:
WHEREAS, the Debtor is indebted to the Secured Party by reason of a
promissory note dated August 27, 2001, in the original principal amount of Two
Hundred Thousand Dollars ($200,000.00), (herein referred to as the "Note"); and
WHEREAS, that the indebtedness represented by the Note is to be secured by
this Chattel Security Agreement.
NOW, THEREFORE, in consideration of the Note and the mutual promises
contained herein, the parties agree as follows:
1. SECURITY INTEREST. As and for security for the payment of the Note
and any other loan or extension of credit now existing or made hereafter
between the Debtor and the Secured party, the Debtor hereby grants to the
Secured Party a continuing security interest in and to all the Debtor's
right, title and interest in the following described property located at
0000 Xxxxx Xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 both presently existing
and hereafter acquired or arising in the following property.
All plant equipment, fixtures, inventory, raw materials, inventory of work
in progress, inventory of finished goods, located at 0000 Xxxxx Xx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000.
2. WARRANTIES.
A. Title. The Debtor warrants that as of August 27, 2001, at the
time this security interest is created, the Debtor was the owner of,
the plant equipment, fixtures, inventory, raw materials, inventory of
work in progress, inventory of finished goods, located at 0000 Xxxxx
Xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 and that Debtor has full power
and authority to convey, transfer and pledge the security interest in
the equipment to the Secured Party.
B. Perfection. The Secured Party will cause financing statements
to be filed and recorded, and amended and continued when necessary, to
insure that the Secured Party's security interest in the Collateral is
perfected at all times.
C. Sale of Collateral. Other than in the ordinary course of
business, the Collateral will not be sold or transferred or be
subjected to any subsequent interest of a third party created or
suffered by the Debtor, whether voluntarily or involuntarily, unless
the Secured Party consents in writing in advance to such transfer or
subsequent interest, such consent will not be unreasonably withheld.
Secured Party's consent will be based upon the fair market value of
remaining amount of Collateral which Secured Party would hold to
secure the then unpaid balance of indebtedness. In no event shall the
fair market value of the Collateral fall below the balance due under
the obligation. Notwithstanding the above, the Debtor may sell the
property which is the subject of the security interest providing the
Debtor receives fair market value for the collateral and remits said
proceeds to the Secured Party.
D. Further Assurances. The Debtor will sign and execute any and
all documents, including financing statements, and pay all connected
costs necessary to protect the security interest under this Agreement
against the rights or interests of third parties.
3. COVENANTS. The Debtor covenants and agrees that until payment in
full and satisfaction of the Note:
A. The Debtor shall not, without prior written notice to and
consent of the Secured Party, change the nature and character of the
Debtor's business or enter into any agreement for the merger or
consolidation of the Debtor.
B. The Debtor shall comply with all statutes and governmental
regulations the failure to comply with which would have a material
adverse effect upon the Debtor, its business or its properties. The
Debtor shall pay promptly when due all taxes, assessments, government
charges, claims for labor, supplies, rent and other obligations which,
if unpaid, will become a lien against the Debtor's property, except
for liabilities which are contested in good faith.
C. The Debtor acknowledges that the Secured Party, in extending
credit to the Debtor, is relying on the unique management ability of
current management and acknowledges that current management of the
Debtor are a material consideration to the Secured Party in agreeing
to extend this credit to the Debtor. The Debtor covenants and agrees
that without the prior written consent of the Secured Party, the
Debtor shall not change management.
D. The Debtor shall not enter into any merger or consolidation or
acquire all or substantially all of the assets of any person, firm,
joint venture or corporation, without the prior written consent of the
Secured Party.
E. The Debtor shall not, without the prior written consent of the
Secured Party, sell, lease, assign, transfer or otherwise dispose of
any assets (other than obsolete or worn-out property not used or
usable in the business) whether now owned or hereafter acquired,
except in the ordinary course of its business as presently conducted
and for a full and adequate consideration.
4. AUTHORITY OF SECURED PARTY. If the Debtor fails to act as required by
this Agreement or any of the other documents in connection with their
acquisition of the Collateral, the Secured Party is authorized, after giving
five (5) days written notice to Debtor, to take any and all action necessary on
behalf of the Debtor to protect the Secured Party's interest in the Collateral.
Debtor may participate with Secured Party in taking such action, providing
Debtor makes such request to Secured Party in writing.
5. DEFAULT. The occurrence of one or more of the following events shall
constitute an event of default:
A. Breach of Warranty. Any representation or warranty made by the
Debtor in writing to the Secured Party shall prove to have been incorrect
in any material respect; or
B. Default in Payment. The Debtor shall default in the payment, when
due of any principal or interest on the Note or any other sum payable by
the Debtor to the Secured Party under the Note; or
C. Default in Performance. The Debtor shall default for thirty (30)
days in the performance of any other obligation to the Secured Party; or
D. Failure to Pay Other Indebtedness. Any indebtedness for money
borrowed, for which the Debtor is liable, as principal obligors, guarantors
or otherwise, is not paid at its stated maturity, subject to Debtor's right
to cure said obligation upon the terms of said obligation; or is declared
or otherwise become due and payable prior to its stated maturity; or
E. Insolvency. The Debtor shall (1) apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or of all or a
substantial part of its assets, (2) be unable or admits in writing its
inability to pay its debts as they fall due, (3) make a general assignment
for the benefit of its creditors, (4) be adjudicated a bankrupt or
insolvent, or (5) file a voluntary petition in bankruptcy or a petition or
an answer seeking reorganization or an arrangement with creditors or to
take advantage of any insolvency law or an answer admitting the material
allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding, or any corporate action shall be
taken by it for the purpose of effecting any of the foregoing; or
F. Receivership. An order, judgment or decree shall be entered,
without the application, approval or consent of the Debtor or any of its
subsidiaries by any court of competent jurisdiction, approving a petition
seeking reorganization of the Debtor or any such subsidiary or appointing a
receiver, trustee or liquidator of the Debtor or any such subsidiary or of
all or a substantial part of any of their respective assets and such order,
judgment or decree shall continue unstayed and in effect for any period of
more than thirty (30) consecutive days.
6. REMEDIES. Upon the Debtor's failure to cure any event of default
hereunder or any event of default under the Note within thirty (30) days after
mailing or written notice of default by the Secured Party, at the option of
Secured Party and without any notice or demand, the Secured Party shall have all
the following rights and remedies in addition to those rights and remedies for
default provided by the Arizona Uniform Commercial Code, as well as any other
applicable law:
A. Power of Attorney. The Debtor hereby grants the Secured Party power
of attorney to endorse checks, notes, drafts, money orders and other
negotiable instruments constituting payment with respect to the Collateral.
B. Expenses and Application of Proceeds. The Debtor shall reimburse
the Secured Party for any expenses incurred by the Secured Party in
protecting or enforcing its rights under this Agreement, including without
limitation, reasonable attorneys' fees and legal expenses and all expenses
of taking possession, holding, preparing for disposition and disposing of
the Collateral. After deduction of such expenses, the Secured Party may
apply the proceeds of disposition to the obligations in such order and
amounts as it elects.
C. Waiver. The Secured Party may permit the Debtor to remedy any
default without waiving the default so remedied, and the Secured Party may
waive any default without waiving any other subsequent or prior default by
the Debtor.
D. Non Exclusivity of Remedies. No remedy herein conferred upon or
reserved to the Secured Party is intended to exclusive of any other remedy
or remedies, including those of any obligation owed to Secured Party, and
each and every remedy shall be cumulative and in addition to every other
remedy given hereunder, or now or hereafter existing at law or in equity.
7. NO LIABILITY OF SECURED PARTY. The Secured Party has no duty to protect
or insure the Collateral.
8. MISCELLANEOUS PROVISIONS.
A. Amendment. This Agreement may be amended only by an instrument in
writing executed by the party against whom enforcement of the amendment is
sought.
B. Notice. All notices, requests, demands, and other communications
hereunder must be in writing and shall be hand-delivered or sent by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to Debtor: AZCO Mining, Inc.
c/o Xxxxxxxx X. Xxxxx
0000 X. Xx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
X. X. Xxxx
If to Secured Party 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx Xxxxxx, Esq.
XXXXX & XXXXXX, P.L.C.
0000 X. Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Unless otherwise provided in this Agreement, notice by mail shall be
effective on the earlier of the fifth business day after mailing or the date of
receipt by either the party to be notified or its counsel designated above. Any
party may change its address for notices by giving written notice to the other
party in accordance with this subsection.
C. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Arizona.
D. Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
E. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
F. Severability. The provisions of this Agreement are independent of and
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reasons any other
provision may be invalid or unenforceable either in whole or in part. If a court
of competent jurisdiction determined that any provision of this Agreement is
invalid or unenforceable as written, such court may interpret, construe, rewrite
or revise such provision to the fullest extent allowed by law, so as to make it
enforceable and consistent with the intent of the parties.
G. Binding Effect. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
H. Assignability. No party my assign nor delegate their rights or
obligations under this Agreement without the written consent of the other
parties.
I. Attorneys' Fees. In the event of any action or proceeding to compel
compliance with, or for a breach of, the provisions of this Agreement, the court
or body before which the action or proceeding is held or tried shall award to
the prevailing party all damages, costs, and expenses of such action, including,
but not limited to, reasonable attorneys' fees.
J. Specific Performance. The Debtor acknowledges that the refusal by it to
consummate the transactions contemplated hereby will cause irrevocable harm to
the Secured Party, for which there may not be adequate remedy at law. The
Secured Party shall be entitled, in addition to all other remedies it may have
at law or in equity, to specific performance of this Agreement by the Debtor.
DATED this _____ day of August, 2001.
SECURED PARTY: DEBTOR:
XXXXX X. XXXX AZCO MINING, INC.
By:
Xxxxx X. Xxxx Xxxxxxxx X. Xxxxx, President
