EXHIBIT 4.6
SUPPLEMENTAL SECURITY AGREEMENT
THIS AGREEMENT is entered into this 31st day of January, 1994
by and between XXXXX FAMILY TRUST (hereafter called "Lender"),
and RESERVE INDUSTRIES CORPORATION, a New Mexico corporation
hereafter ("Borrower").
WHEREAS, Borrower has an existing loan of Six Hundred Ninety
Five Thousand Dollars ($695,000); and
WHEREAS, Borrower, to date, has not paid any interest on the
loan and the collateral value of the stock in Industrial Mineral
Products (Phil.), a Philippine company, which was part of the
collateral provided under the Loan Agreement and Security
Agreement dated as of the 31st day of October 1991, has
diminished due to the expiration that Company's contract with
PASAR; and
WHEREAS, because of the diminished value of the collateral and
in order to provide the Lender with additional security for the
loan, Borrower has agreed to grant to Lender a first and prior
lien on and security interest in certain additional assets of
Borrower; and
WHEREAS, this Supplemental Security Agreement is not intended
to replace the original Security Agreement dated as of October
31, 1991 but instead is intended to be additional security under
the Loan and Security Agreements dated as of October 31, 1991,
all as defined herein.
NOW, THEREFORE, in consideration of the undertakings of each to
the other contained in this Agreement, the parties agree as
follows:
1. Additional Collateral. The Additional Collateral of this
Security Agreement - Supplement shall consist of the stock of
Reserve Minerals Corporation, a Delaware corporation.
2. Grant of Security Interest. As Additional Collateral
security for the repayment of the Loan pursuant to the terms of
the Loan Agreement, Borrower hereby pledges, grants, and assigns
to Lender a first security interest in and lien on the
Additional Collateral.
3. Representations and Warranties. Borrower represents and
warrants to Lender that:
(a) Organization of Borrower. Borrower is a corporation duly
organized, validly existing and in good standing under the laws
of the State of New Mexico.
(b) Corporate Authorization. Borrower has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder. This Agreement is a legal, valid and
binding obligation of Borrower, enforceable in accordance with
its terms. No other corporate proceedings on the part of
Borrower are necessary to authorize this Agreement.
(c) Conflicts. Neither the execution or delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor compliance with the terms and provisions hereof will
conflict with or result in a breach of any of the terms,
conditions or provisions of any law, regulation, order, writ,
injunction or decree of any court or governmental
instrumentality or of any agreement of or by which Borrower is
bound or to which it is subject, or constitute a default
thereunder or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon the
collateral pursuant to the terms of any such agreement.
4. Rights of Lender Upon Default. Upon default by Borrower
under the Loan Agreement, Lender may exercise and shall have any
and all of the following rights and remedies (subject to any
priority of Senior Lenders under applicable law):
(a) To the extent permitted by applicable law, to take
possession of the Additional Collateral with or without the aid
of judicial process;
(b) To require Borrower to assemble the Additional Collateral
and make it available to Lender at a place designated by Lender
which is reasonably convenient to both parties;
(c) To foreclose the lien and security interest created herein
by any available and proper judicial process;
(d) To enter Borrower's premises for the purpose of taking
possession, removing or there causing to be sold any Additional
Collateral;
(e) To sell, lease or otherwise dispose of Additional
Collateral, either at public or private sale in its then
condition, or following any commercially reasonable preparation
or processing and upon such terms as it, in its sole discretion,
may deem advisable. The requirement of reasonable notice shall
be met, if notice is mailed, postage prepaid to Borrower, at
least ten (10) days before the time of sale or disposition of
the Additional Collateral;
(f) To apply according to law the proceeds of any sale, lease or
other disposition of the Additional Collateral;
(g) To exercise any and all rights and remedies accorded to
Lender by the Uniform Commercial Code; and
(h) To the extent permitted by applicable law, Borrower shall
remain liable for any deficiency resulting from the sale or
other disposition of the Additional Collateral and shall pay
such deficiency forthwith upon demand.
5. Fees, Costs and Expenses. Any and all fees, costs and
expenses, of whatever kind of nature, including the reasonable
attorneys' fees and legal expenses incurred by Lender
inconnection with the filing or recording of any documents
(including all taxes in connection therewith) in public offices,
the payment or discharge of any taxes, counsel fees, maintenance
fees or encumbrances, or otherwise protecting, maintaining or
preserving the Additional Collateral, or in defending or
prosecuting any actions or proceedings arising out of or related
to the Additional Collateral, shall be borne and paid by
Borrower on demand by Lender and until so paid shall be added to
the Loan and shall bear interest at two percent (2%) in excess
of the interest rate charged to Borrower under the Loan
Agreement.
6. Lender's Rights are Cumulative. All of Lender's rights and
remedies with respect to the Additional Collateral, whether
established hereby or by the Initial Loan Agreement, by any
other agreements or by law shall be cumulative and may be
exercised singularly or concurrently.
7. Integration. This Agreement, together with the Loan
Agreement and the Security Agreement between the parties hereto
and dated as of October 31, 1991 herewith, constitutes the
entire understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements,
negotiations, understandings and discussions with respect hereto.
8. Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid
and unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
9. Further Assurances. Borrower shall execute recordable
financing statements covering its interests in the Additional
Collateral to be filed where ever reasonably required by Lender,
and shall further do, make, procure, execute and deliver all
acts, things, writings, and assurances as Lender may at any time
reasonably require to protect, assure, or enforce its interests,
rights and remedies under this Agreement.
10. Governing Law. This Agreement shall be construed and
interpreted according to the laws of the State of New Mexico,
not including, however, rules relating to choice or conflicts of
law.
11. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be
hand delivered or sent by certified mail (return receipt
requested) or by reputable overnight courier, or sent by telex,
telegram, facsimile or cable, delivered to the respective
addresses set forth below or, as to each party, at such other
address as shall be designated by such party in a notice to the
party entitled to receive such notice. All such notices and
communications shall be effective when received addressed as set
forth below:
If to Borrower:
Reserve Industries Corporation
Xxxxx 000, 00 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to Lender:
Xxxxx Family Trust
000 Xxxxxxx Xxxxx X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxx Xxxxx
12. Waiver. The failure of either party hereto to enforce at
any time any provision of this Agreement or to exercise any
right which is herein provided shall in no way be construed to
be a waiver of such provision and not in any way to affect the
validity of this Agreement or any part hereof of the right of
such party to enforce thereafter such provisions and to exercise
such right. No waiver of any breach of this Agreement shall be
held to be a waiver of any other or subsequent breach. Nothing
shall constitute, or have the effect of, a waiver except an
instrument in writing signed by a duly authorized officer or
representative of the party against whom such waiver is sought
to be enforced which expressly, and not impliedly, waives a
right or rights under this Agreement.
13. Assignment. Borrower may not assign this Agreement or any
right or obligation hereunder without the prior written consent
of Lender. Lender may assign this Agreement or any right or
obligation hereunder to any affiliate of Lender.
14. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute
one and the same instrument.
15. Headings. The headings appearing in this Agreement are for
convenience of reference only and shall in no way affect the
interpretation of this Agreement or any part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed, in counterparts, as of the date first
above written.
WITNESS RESERVE INDUSTRIES CORPORATION
/s/ Xxxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxx
WITNESS XXXXX FAMILY TRUST
/s/ Xxxxxx Xxxxxx By /s/ Xxxx Xxx Xxxxx
CERTIFICATE OF ACKNOWLEDGMENT
State of New Mexico )
) ss
County of Bernalillo )
Before me, the undersigned, a Notary Public in and for the
county aforesaid, personally appeared Xxxxxxx X. Xxxxx the
Vice President for RESERVE INDUSTRIES CORPORATION and being
duly sworn says that he executed the foregoing instrument for
and in behalf of RESERVE INDUSTRIES CORPORATION and that he
acknowledged the due execution of the foregoing instrument for
the purposes therein expressed as the free act and deed of said
corporation.
Witness my hand and official seal the 28 day of March, 1994.
/s/ Xxxxx Xxxxxxx
Notary Public
My commission expires: 12/16/96
CERTIFICATE OF ACKNOWLEDGMENT
State of New Mexico )
) ss
County of Bernalillo )
Before me, the undersigned, a Notary Public in and for the
county aforesaid, personally appeared Xxxx Xxx Xxxxx the
Representative for XXXXX FAMILY TRUST and being duly sworn says
that he executed the foregoing instrument for and in behalf of
XXXXX FAMILY TRUST and that she acknowledged the due execution
of the foregoing instrument for the purposes therein expressed
as the free act and deed of said Trust.
Witness my hand and official seal the 28 day of March, 1994.
/s/ Xxxxx Xxxxxxx
Notary Public
My commission expires: 12/16/96
EXHIBIT 4.7
SECOND SUPPLEMENTAL SECURITY AGREEMENT
THIS AGREEMENT is entered into this 6th day of May, 1996 by
and between XXXXX FAMILY TRUST (hereafter called "Lender"), and
RESERVE INDUSTRIES CORPORATION, a New Mexico corporation
hereafter ("Borrower").
WHEREAS, Borrower has an existing loan of Six Hundred Ninety
Five Thousand Dollars ($695,000); and
WHEREAS, the loan was to be fully paid by January 25, 1996; and
WHEREAS, Borrower, to date, has not paid interest on the loan
since January 1, 1993 and also has not paid the principal
amounts due on the note; and
WHEREAS, because of the lack of performance on the note and its
obligations and in order to provide the Lender with additional
security for the loan, Borrower has agreed to grant to Lender a
first and prior lien on and security interest in certain
additional assets of Borrower; and
WHEREAS, this Second Supplemental Security Agreement is not
intended to replace the original Security Agreement dated as of
October 31, 1991 and the Supplemental Security Agreement dated
as of January 31, 1994 but instead is intended to be additional
security under the Loan and Security Agreements dated as of
October 31, 1991, and the Supplemental Security Agreement dated
as of January 31, 1994 all as defined herein.
NOW, THEREFORE, in consideration of the undertakings of each to
the other contained in this Agreement, the parties agree as
follows:
1. Additional Collateral. The Additional Collateral of this
Security Agreement - Supplement shall consist of the stock of
Reserve Xxxxxxxxxxx Corporation, a New Mexico corporation and
Reserve Xxxxxxxxxxx Ventures Corporation, a New Mexico
corporation.
2. Grant of Security Interest. As Additional Collateral
security for the repayment of the Loan pursuant to the terms of
the Loan Agreement, Borrower hereby pledges, grants, and assigns
to Lender a first security interest in and lien on the
Additional Collateral.
3. Representations and Warranties. Borrower represents and
warrants to Lender that:
(a) Organization of Borrower. Borrower is a corporation duly
organized, validly existing and in good standing under the laws
of the State of New Mexico.
(b) Corporate Authorization. Borrower has the corporate power
and authority to enter into this Agreement and to carry out its
obligations hereunder. This Agreement is a legal, valid and
binding obligation of Borrower, enforceable in accordance with
its terms. No other corporate proceedings on the part of
Borrower are necessary to authorize this Agreement.
(c) Conflicts. Neither the execution or delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor compliance with the terms and provisions hereof will
conflict with or result in a breach of any of the terms,
conditions or provisions of any law, regulation, order, writ,
injunction or decree of any court or governmental
instrumentality or of any agreement of or by which Borrower is
bound or to which it is subject, or constitute a default
thereunder or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon the
collateral pursuant to the terms of any such agreement.
4. Rights of Lender Upon Default. Upon default by Borrower
under the Loan Agreement, Lender may exercise and shall have any
and all of the following rights and remedies (subject to any
priority of Senior Lenders under applicable law):
(a) To the extent permitted by applicable law, to take
possession of the Additional Collateral with or without the aid
of judicial process;
(b) To require Borrower to assemble the Additional Collateral
and make it available to Lender at a place designated by Lender
which is reasonably convenient to both parties;
(c) To foreclose the lien and security interest created herein
by any available and proper judicial process;
(d) To enter Borrower's premises for the purpose of taking
possession, removing or there causing to be sold any Additional
Collateral;
(e) To sell, lease or otherwise dispose of Additional
Collateral, either at public or private sale in its then
condition, or following any commercially reasonable preparation
or processing and upon such terms as it, in its sole discretion,
may deem advisable. The requirement of reasonable notice shall
be met, if notice is mailed, postage prepaid to Borrower, at
least ten (10) days before the time of sale or disposition of
the Additional Collateral;
(f) To apply according to law the proceeds of any sale, lease or
other disposition of the Additional Collateral;
(g) To exercise any and all rights and remedies accorded to
Lender by the Uniform Commercial Code; and
(h) To the extent permitted by applicable law, Borrower shall
remain liable for any deficiency resulting from the sale or
other disposition of the Additional Collateral and shall pay
such deficiency forthwith upon demand.
5. Fees, Costs and Expenses. Any and all fees, costs and
expenses, of whatever kind of nature, including the reasonable
attorneys' fees and legal expenses incurred by Lender
inconnection with the filing or recording of any documents
(including all taxes in connection therewith) in public offices,
the payment or discharge of any taxes, counsel fees, maintenance
fees or encumbrances, or otherwise protecting, maintaining or
preserving the Additional Collateral, or in defending or
prosecuting any actions or proceedings arising out of or related
to the Additional Collateral, shall be borne and paid by
Borrower on demand by Lender and until so paid shall be added to
the Loan and shall bear interest at two percent (2%) in excess
of the interest rate charged to Borrower under the Loan
Agreement.
6. Lender's Rights are Cumulative. All of Lender's rights and
remedies with respect to the Additional Collateral, whether
established hereby or by the Initial Loan Agreement, by any
other agreements or by law shall be cumulative and may be
exercised singularly or concurrently.
7. Integration. This Agreement, together with the Loan
Agreement and the Security Agreement between the parties hereto
and dated as of October 31, 1991and the Supplemental Security
Agreement dated as of January 31, 1994 herewith, constitutes the
entire understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements,
negotiations, understandings and discussions with respect hereto.
8. Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid
and unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
9. Further Assurances. Borrower shall execute recordable
financing statements covering its interests in the Additional
Collateral to be filed where ever reasonably required by Lender,
and shall further do, make, procure, execute and deliver all
acts, things, writings, and assurances as Lender may at any time
reasonably require to protect, assure, or enforce its interests,
rights and remedies under this Agreement.
10. Governing Law. This Agreement shall be construed and
interpreted according to the laws of the State of New Mexico,
not including, however, rules relating to choice or conflicts of
law.
11. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be
hand delivered or sent by certified mail (return receipt
requested) or by reputable overnight courier, or sent by telex,
telegram, facsimile or cable, delivered to the respective
addresses set forth below or, as to each party, at such other
address as shall be designated by such party in a notice to the
party entitled to receive such notice. All such notices and
communications shall be effective when received addressed as set
forth below:
If to Borrower:
Reserve Industries Corporation
Xxxxx 000, 00 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to Lender:
Xxxxx Family Trust
000 Xxxxxxx Xxxxx X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxx Xxxxx
12. Waiver. The failure of either party hereto to enforce at
any time any provision of this Agreement or to exercise any
right which is herein provided shall in no way be construed to
be a waiver of such provision and not in any way to affect the
validity of this Agreement or any part hereof of the right of
such party to enforce thereafter such provisions and to exercise
such right. No waiver of any breach of this Agreement shall be
held to be a waiver of any other or subsequent breach. Nothing
shall constitute, or have the effect of, a waiver except an
instrument in writing signed by a duly authorized officer or
representative of the party against whom such waiver is sought
to be enforced which expressly, and not impliedly, waives a
right or rights under this Agreement.
13. Assignment. Borrower may not assign this Agreement or any
right or obligation hereunder without the prior written consent
of Lender. Lender may assign this Agreement or any right or
obligation hereunder to any affiliate of Lender.
14. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute
one and the same instrument.
15. Headings. The headings appearing in this Agreement are for
convenience of reference only and shall in no way affect the
interpretation of this Agreement or any part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed, in counterparts, as of the date first
above written.
WITNESS RESERVE INDUSTRIES CORPORATION
/s/ Xxxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxx
WITNESS XXXXX FAMILY TRUST
/s/ Xxxxxx Xxxxxx By /s/ Xxxx Xxx Xxxxx
CERTIFICATE OF ACKNOWLEDGMENT
State of New Mexico )
) ss
County of Bernalillo )
Before me, the undersigned, a Notary Public in and for the
county aforesaid, personally appeared Xxxxxxx X. Xxxxx the
Vice President for RESERVE INDUSTRIES CORPORATION and being
duly sworn says that he executed the foregoing instrument for
and in behalf of RESERVE INDUSTRIES CORPORATION and that he
acknowledged the due execution of the foregoing instrument for
the purposes therein expressed as the free act and deed of said
corporation.
Witness my hand and official seal the 30 day of May, 1996.
/s/ Xxxxx Xxxxxxx
Notary Public
My commission expires: 12/16/96
CERTIFICATE OF ACKNOWLEDGMENT
State of New Mexico )
) ss
County of Bernalillo )
Before me, the undersigned, a Notary Public in and for the
county aforesaid, personally appeared Xxxx Xxx Xxxxx the
Representative for XXXXX FAMILY TRUST and being duly sworn says
that he executed the foregoing instrument for and in behalf of
XXXXX FAMILY TRUST and that she acknowledged the due execution
of the foregoing instrument for the purposes therein expressed
as the free act and deed of said Trust.
Witness my hand and official seal the 30 day of May, 1996.
/s/ Xxxxx Xxxxxxx
Notary Public
My commission expires: 12/16/96
