EXHIBIT 10.13
INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT)
PURCHASER(S) SELLER:
FLORIDA CANYON MINING, INC. CATERPILLAR FINANCIAL SERVICES
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
County: PERSHING
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Subject to the terms and conditions set forth below and on the reverse side
hereof, Seller hereby sells the equipment described below (the "Unit" or
"Units") to Purchaser, and Purchaser (if more than one, jointly and severally),
having been offered both a cash sale price and a time sale price, hereby buys
the Unit from Seller on a time sale basis.
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NEW (IF USED) DELIVERED
OR FIRST MODEL DESCRIPTION OF UNIT(S) SERIAL # CASH SALE
USED UNITS PRICE
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See Attachment A.
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FIRST DESCRIPTION OF ADDITIONAL SECURITY Sub-Total . . . .$ 5,974,855.25
USED (MAKE, MODEL AND SERIAL NUMBER) Sales Tax . . . .$ 30,085.87
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1. Total Cash
Sale Price . . . $ 6,004,941.12
Cash Down-Pay
Net Trade-In Allow 0.00
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FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 2. Total Down
USED (MAKE, MODEL AND SERIAL NUMBER) Payment . . . . .$ 0.00
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3. Unpaid Balance
of Cash Price
(1+2) . . . . . .$ 6,004,941.12
4. Official Fees
(Specify) . . . .$ 1,000.00
DOCUMENTATION
FEE 1,000.00
5. Physical Damage
Insurance . . . .$
6. Principal Balance
------------------------------------------ (Amount Financed)
(1 + 4 + 5) . . .$ 6,005,941.12
Trade-in Value 7. Finance Charge
Less Owing to (____s/s____) (Time Price Differential)
Net Trade-In Allowance 0.00 . . . . . . . .$ 987,297.92
8. Time Balance
(Total of Payments)
(6 + 7) . . . . .$ 6,993,210.04
Location of Units: I-80, EXIT 138 9. Time Sale Balance
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ PERSHING (Delivered Payment
Price) (2 + 8). .$ 6,993,279.04
10.Amount Percentage
Rate . . . . . . . 7.5%
▇▇.▇▇▇▇ FINANCE CHARGE
begins to accrue JANUARY 1, 2002
Purchaser hereby sells and conveys to Seller the above described Trade-in
Equipment and warrants it to be free and clear of all claims, liens, security
interests and encumbrances except to the extent shown above.
1. PAYMENT: Purchaser shall pay to Seller, at ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ or such other location Seller designates in writing, the
Time Balance (Item 8 above) as follows [check (a) or (b)]:
___ (a) In 48 equal monthly installments of 50.00 each, with the first
installment due on February 1, 2002, and the balance of the installments due on
the like day of each month thereafter, (except no payments shall be due during
the month(s) of (___n/a____), until the entire indebtedness has been paid; or
_X__ (b) In accordance with the Payment Schedule attached to this Contract.
(Provisions of section 1 contained on reverse.)
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF THIS
CONTRACT.
LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO
OTHERS IS NOT INCLUDED IN THIS CONTRACT.
NOTICE TO PURCHASER: (1) DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT
CONTAINS ANY BLANK SPACES; (2) YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTRACT
YOU SIGN; (3) UNDER THE LAW YOU MAY HAVE THE RIGHT TO PAY OFF IN ADVANCE THE
FULL AMOUNT DUE AND TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE.
PURCHASER ACKNOWLEDGES RECEIPT OF A FULLY COMPLETED COPY OF THIS CONTRACT
EXECUTED BY PURCHASER. THIS CONTRACT IS NOT BINDING UPON SELLER UNTIL EXECUTED
BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
PURCHASER(S) AND SELLER HAVE DULY EXECUTED THIS CONTRACT AS OF __________,20___.
PURCHASER(S): SELLER:
FLORIDA CANYON MINING, INC. CATERPILLAR FINANCIAL SERVICES CORPORATION
BY: /S/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ BY:
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NAME (PRINT) ▇▇▇ ▇▇▇▇▇▇▇▇▇ NAME (PRINT)
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TITLE OPERATIONS CONTROLLER TITLE
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ATTACHMENT A TO INSTALLMENT SALE CONTRACT
Dated as of ________________________
between FLORIDA CANYON MINING, INC. (Purchaser(s))
and Caterpillar Financial Services Corporation (Seller)
EQUIPMENT DESCRIPTION SCHEDULE
DELIVERED
CASH SALE
MODEL DESCRIPTION OF UNITS SERIAL # PRICE
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(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00489 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00490 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00491 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00492 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00493 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00494 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00495 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00496 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00497 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00498 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00499 328,857.20
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00500 328,857.20
(1) D10N USED Caterpillar TRACK-TYPE TRUCK 3SK00994 228,423.20
(1) 16H USED Caterpillar MOTOR GRADER 6ZJ00044 138,621.80
(1) D9R USED Caterpillar TRACK-TYPE TRUCK 7TL00509 182,990.00
(1) D9R USED Caterpillar TRACK-TYPE TRUCK 7TL00510 182,990.00
(1) 1T28F USED Caterpillar INT. TOOLCARRIER 3CK01741 46,761.55
(1) 834B USED Caterpillar WHEEL TRACTOR 92Z00622 173,926.05
(1) 922D USED Caterpillar WHEEL LOADER 7MJ00456 309.906.52
(1) 994 USED Caterpillar WHEEL LOADER 9YF00147 302,090.18
(1) 990F USED Caterpillar WHEEL LOADER 7HK00066 201,344.75
(1) 690D USED Caterpillar WHEEL DOZER 05A10987 261,514.80
Does not include Tax 5,974,855.25
*plus applicable sales tax
FLORIDA CANYON MINING, INC. CATERPILLAR FINANCIAL SERVICES
CORPORATION
(Purchaser(s)) (Seller)
Signature /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Signature _______________________
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Name (PRINT) ▇▇▇ ▇▇▇▇▇▇▇▇▇ Name (PRINT)_____________________
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Title: Operations Controller Title:___________________________
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Date January 9, 2002 Date_____________________________
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ATTACHMENT TO INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT)
Dated as of __________________________-
between
FLORIDA CANYON MINING, INC. ("PURCHASER")
and
CATERPILLAR FINANCIAL SERVICES CORPORATION ("SELLER")
PAYMENT SCHEDULE
Payment dates Payment Numbers Payment Amounts Due
2/1/02 1 - 1 $ 0.00
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3/1/02 - 1/1/06 2 - 48 $ 148,792.32
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FLORIDA CANYON MINING, INC. CATERPILLAR FINANCIAL SERVICES
CORPORATION
(Purchaser(s)) (Seller)
Signature /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Signature _______________________
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Name (PRINT) ▇▇▇ ▇▇▇▇▇▇▇▇▇ Name (PRINT)_____________________
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Title: Operations Controller Title:___________________________
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Date January 9, 2002 Date_____________________________
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January 8, 2002
Caterpillar Financial Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
You are irrevocably instructed to disburse the proceeds of your loan to us as
evidenced by our Installment Sales Contract dated January 1, 2002, as follows:
Payee: CFSC - CONTRACT # 32813-000 $329,857.20
Payee: CFSC - CONTRACT # 32813-001 $328,857.20
Payee: CFSC - CONTRACT # 32813-002 $328,857.20
Payee: CFSC - CONTRACT # 32813-003 $328,857.20
Payee: CFSC - CONTRACT # 32813-004 $328,857.20
Payee: CFSC - CONTRACT # 32813-005 $328,857.20
Payee: CFSC - CONTRACT # 32813-006 $328,857.20
Payee: CFSC - CONTRACT # 32813-007 $328,857.20
Payee: CFSC - CONTRACT # 32813-008 $328,857.20
Payee: CFSC - CONTRACT # 32813-009 $328,857.20
Payee: CFSC - CONTRACT # 32813-010 $328,857.20
Payee: CFSC - CONTRACT # 32813-011 $328,857.20
Payee: CFSC - CONTRACT # 32813-012 $138,621.80
Payee: CFSC - CONTRACT # 32813-013 $228,423.20
Payee: CFSC - CONTRACT # 32813-014 $182,990.00
Payee: CFSC - CONTRACT # 32813-015 $182,990.00
Payee: CFSC - CONTRACT # 32813-016 $46,761.55
Payee: CFSC - CONTRACT # 32813-017 $173,926.05
Payee: CFSC - CONTRACT # 32813-018 $309,906.52
Payee: CFSC - CONTRACT # 32813-019 $302,090.18
Payee: CFSC - CONTRACT # 32813-022 $214,432.16
Payee: CFSC - CONTRACT # 32813-023 $278,513.26
TOTAL LOAN AMOUNT $6,005,941.12
FLORIDA CANYON MINING, INC.
Signature /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name (PRINT) ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Operations Controller
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Date: January 9, 2002
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GUARANTY OF PAYMENT
THIS GUARANTY ("Guaranty") is made and entered into as of ____________________
by APOLLO GOLD, INC., (hereinafter, referred to as "Guarantor"), in favor of
Caterpillar Financial Services Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as "Caterpillar Financial"),
guaranteeing the Indebtedness (as hereinafter defined) of FLORIDA CANYON MINING,
INC. (hereinafter referred to as "Obligor").
WITNESSETH:
FOR VALUE RECEIVED, and/or as an inducement to Caterpillar Financial to now or
hereinafter 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,
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irrevocably and unconditionally agrees to, and by these 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 INSTALLMENT
SALE CONTRACT by and between Obligor and Caterpillar Financial dated JANUARY 1,
2002, 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
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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
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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 stated herein.
SECTION 4. DEFAULT BY OBLIGOR. Immediately upon Obligor's default under any of
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its Indebtedness in factor 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
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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 such 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 or Obligor's Indebtedness or any co-guarantor under this Guaranty; (d)
settle or compromise Obligor's Indebtedness with Obligor and/or 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
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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, or 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 increases 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 OF GUARANTOR. Guarantor waives, for the benefit of
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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 any 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 obligations 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 Obligor 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
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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 an 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, each 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. CONSTRUCTION. This writing is intended as a final expression of
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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 herein 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, legates, 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 insure 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 prior written consent of Caterpillar Financial.
SECTION 11. TERMINATION. This Guaranty is irrevocable and may be terminated
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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
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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
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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 legal, 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, INC. Address:___________________________
Signature /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ___________________________________
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Name (PRINT): ▇▇▇ ▇▇▇▇▇▇▇▇▇ Phone:_____________________________
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Title: CORPORATION SSN:_______________________________
EQUIPMENT:
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00489
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00490
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00491
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00492
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00493
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00494
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00495
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00496
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00497
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00498
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00499
(1) 785B USED Caterpillar OFF-HIGHWAY TRUCK 6HK00500
(1) D10N USED Caterpillar TRACK-TYPE TRUCK 3SK00994
(1) 16H USED Caterpillar MOTOR GRADER 6ZJ00044
(1) D9R USED Caterpillar TRACK-TYPE TRUCK 7TL00509
(1) D9R USED Caterpillar TRACK-TYPE TRUCK 7TL00510
(1) 1T28F USED Caterpillar INT. TOOLCARRIER 3CK01741
(1) 834B USED Caterpillar WHEEL ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(1) 922D USED Caterpillar WHEEL LOADER 7MJ00456
(1) 994 USED Caterpillar WHEEL LOADER 9YF00147
(1) 990F USED Caterpillar WHEEL LOADER 7HK00066
(1) 690D USED Caterpillar WHEEL DOZER 05A10987
RE: INSURANCE COVERAGE FOR PURCHASED EQUIPMENT
Per the Installment agreement between FLORIDA CANYON MINING, INC. ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Caterpillar Financial Services Corporation ("Caterpillar
Financial"), it is required that we be provided with insurance coverage in
accordance with that agreement as indicated below.
Physical Damage Coverage must show that Caterpillar Financial has been named
loss payee for the equipment's replacement value. The deductible must be shown.
Please notify your agent for the proper coverage, and list his name and location
below. Our representative will follow up for confirmation of this coverage.
INSURANCE AGENT: ▇▇▇▇▇ CONTACT PERSON: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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ADDRESS: ▇.▇. ▇▇▇ ▇▇▇▇▇▇ PHONE NUMBER:(▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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IF EQUIPMENT HAS BEEN DELIVERED, WHEN WAS IT DELIVERED? _____________________
PROCESSING OF THIS TRANSACTION WILL BE HELD PENDING RECEIPT OF THIS INFORMATION
PLEASE FORWARD CERTIFICATE TO: Caterpillar Financial Services Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
