4
Exhibit 10.5
AMENDED AND RESTATED SECURED PROMISSORY NOTE
THIS AMENDED AND RESTATED PROMISSORY NOTE dated June 21,
1995, is executed by and between Gold Capital Corporation
("Debtor") whose address is 00 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 and Tonkin Springs Venture Limited
Partnership ("TSVLP"), and amends and restates that Secured
Promissory Note between the parties, dated December 31,
1993, as previously amended, in its entirety.
R E C I T A L S
WHEREAS, for value received, the Debtor and TSVLP previously
negotiated a Secured Promissory Note dated December 31, 1993
(the "Note") in the principal amount of $3,800,000, a copy
of which is attached hereto as Exhibit "A" and incorporated
by reference; and
WHEREAS, the parties executed an Amendment to Secured
Promissory Note (the "First Amendment") on July 13, 1994, a
copy of which is attached hereto as Exhibit "C" and
incorporated by reference; and
WHEREAS, the parties executed a Second Amended and Restated
Secured Promissory Note (the "Second Amendment") on October
18, 1994, a copy of which is attached hereto as Exhibit "D"
and incorporated by reference; and
WHEREAS, the parties executed an Amended and Restated
Secured Promissory Note (the "Third Amendment") on March 27,
1995, a copy of which is attached hereto as Exhibit "E" and
incorporated by reference; and
WHEREAS, the remaining unpaid principal balance due under
the Note as of the date of this Amended and Restated
Secured Promissory Note is $3,108,619.91; and
WHEREAS, Debtor and Royalstar Resources Ltd. ("Royalstar")
entered into a Private Placement agreement dated April 13,
1995, which included an option whereby Royalstar could
purchase an additional 2,200,000 shares of the common stock
of Debtor for U.S.$2.2 million, a copy of which is attached
hereto as Exhibit "F" and incorporated by reference. The
closing of the exercise of the purchase of the additional
2,200,000 shares by Royalstar is referred to hereinafter as
the "Second Closing". This Amended and Restated Secured
Promissory Note is a requirement of and conditioned upon the
successful completion of the Second Closing under the terms
and conditions set forth in the Private Placement agreement
dated April 13, 1995; and
WHEREAS, the parties wish to further amend the terms and
conditions of the Note and provide a schedule of payments
which shall reflect the remaining terms of the Note, as
herein agreed.
NOW THEREFORE, the remaining terms and conditions of the
Note executed on December 31, 1993 between the above
mentioned parties, as previously amended, is hereby amended
and restated in its entirety as follows:
This Amended and Restated Secured Promissory Note is made
pursuant to that certain Purchase and Sale Agreement dated
as of December 31, 1993 (the "Purchase Agreement") between
Debtor and TSVLP. Capitalized terms not defined herein
shall have the meaning assigned to them in the Purchase
Agreement or the Security Agreement attached hereto as
Exhibit B (the "Security Agreement").
This Amended and Restated Secured Promissory Note is without
recourse to the Debtor and in the event of default, TSVLP
may only rely upon the collateral for payment of the Amended
and Restated Secured Promissory Note and by the Security
Agreement, and may not proceed against the Debtor.
The Debtor shall make remaining principal payments to TSVLP
under this Amended and Restated Secured Promissory Note as
follows:
1. Immediately after the Second Closing with Royalstar,
Debtor shall make a payment of $1,000,000 to TSVLP, which
payment shall be applied to obligations of Debtor as
follows: first to any then outstanding accounts payable
balance by Debtor to TSVLP; and Secondly, applied to reduce
the principal balance owed under the Note.
2. Commencing effective June 1, 1995, and continuing until
Debtor has raised funding subsequent to the Second Closing
with Royalstar in the cumulative minimum aggregate amount of
US$4,000,000 from debt, equity or other forms of financing
and funding, the Debtor shall make monthly principal
payments in the amount of $50,000 which payments shall be
payable on the first day of each month during that time.
Said June 1, 1995 payment shall be due and payable on the
date of the Second Closing.
3. Commencing on the first day of the next month following
Debtor raising funding subsequent to the Second Closing with
Royalstar in the cumulative minimum aggregate amount of
US$4,000,000 from debt, equity or other forms of financing
and funding, the Debtor shall then make monthly principal
payments in the amount of $75,000 which payments shall be
payable on the first day of each month and shall continue
until the Note is paid in full.
4. In any event, the entire unpaid principal balance hereof
and all accrued interest hereunder shall be due and payable
on or before April 1, 1999.
5. In no event shall Debtor be liable for principal
payments in excess of the $3,800,000 described in the Note,
less principal amounts previously paid, together with any
additional interest described herein, or additional costs or
expenses of collection contained in this Amended and
Restated Secured Promissory Note.
Debtor shall have the right of prepayment of the outstanding
principal under this Amended and Restated Secured Promissory
Note at any time.
Interest on the unpaid balance of the Amended and Restated
Secured Promissory Note, and any accrued interest not
otherwise paid as required, shall equal 7.5% per annum.
Interest shall be due and payable annually on each
anniversary date of the Note (December 31) computed as the
sum of the daily interest rate applied against the
outstanding principal, until all principal and interest has
been paid in full.
Payments of both principal and interest are to be made at
the offices of TSVLP, 00 Xxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, in lawful money of the United States of
America.
In the event of default, TSVLP will give written notice to
Debtor with reasonable explanation of the default ("Notice
of Default"), and Debtor will then have a period of 10 days
from receipt of the Notice of Default to cure such events of
default.
Debtor shall pay to TSVLP, on demand, all costs and expenses
incurred to collect any indebtedness evidenced hereby
including, without limitation, reasonable attorneys' fees,
whether or not suit is actually commenced.
Except as otherwise provided in this Amended and Restated
Secured Promissory Note, Debtor waives presentation for
payment, protest, notice of protest and of dishonor and
hereby assents to any indulgence and any extension of time
for payment of any indebtedness evidenced hereby that has
been granted or permitted by TSVLP. Any failure to exercise
or any delay in exercising any right hereunder shall not be
construed as a waiver of such right or any right.
At the option of TSVLP, an action may be brought to enforce
this Amended and Restated Secured Promissory Note in the
District Court in and for the County of Washoe, State of
Nevada, in the United States District Court for the District
of Nevada, or in any court in which venue and jurisdiction
are proper. The undersigned consents to venue and
jurisdiction in the District Court in and for the County of
Washoe, State of Nevada, and to service of process under the
Nevada Revised Statutes in any action commenced to enforce
this Amended and Restated Secured Promissory Note.
This Amended and Restated Secured Promissory Note is secured
by the Security Agreement executed December 31, 1993, and
attached hereto as Exhibit B. Reference is made to the
Security Agreement for certain rights and remedies of the
parties hereto and the terms and conditions on which this
Amended and Restated Secured Promissory Note is secured
thereby.
GOLD CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx., President
TONKIN SPRINGS VENTURE LIMITED PARTNERSHIP
By:/s/ Xxxxxxx X.
Xxxx Xxxxxxx X. Xxxx, President
Tonkin Springs Gold Mining Company,
General Partner and Manager - TSVLP
