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Agreement |
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Execution Version |
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| Security agreement |
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Solitario Exploration & Royalty Corp.
RMB Australia Holdings Limited
RMB Resources Inc. |
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| xxxxx.xxxxxx@xxxxxxxxx.xxx |
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Contents
Table of contents
| 1 |
Definitions and interpretations |
6 |
| |
1.1 |
Definitions |
6 |
| |
1.2 |
Interpretation |
6 |
| |
1.3 |
Inconsistency with Pledge Agreement |
7 |
| 2 |
Grant of security interest |
7 |
| 3 |
Authorization to file financing statements |
8 |
| 4 |
Other actions |
9 |
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4.1 |
Promissory notes and tangible chattel paper |
9 |
| |
4.2 |
Deposit accounts |
9 |
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4.3 |
Investment property |
10 |
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4.4 |
Collateral in the possession of a bailee |
10 |
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4.5 |
Electronic chattel paper and transferable records |
10 |
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4.6 |
Letter-of-credit rights |
11 |
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4.7 |
Commercial tort claims |
11 |
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4.8 |
Other Actions as to any and all Collateral |
11 |
| 5 |
Relation to other security documents |
12 |
| 6 |
Representations and warranties concerning Debtoris legal status |
12 |
| 7 |
Covenants concerning Debtoris legal status |
12 |
| 8 |
Representations and warranties concerning Collateral, etc. |
12 |
| 9 |
Covenants concerning Collateral, etc. |
13 |
| 10 |
Insurance |
14 |
| 11 |
Collateral protection expenses; preservation of Collateral |
14 |
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11.1 |
Expenses incurred by Secured Party |
14 |
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11.2 |
Secured Party's Obligations and duties |
14 |
| 12 |
Securities and deposits |
14 |
| 13 |
Notification to account debtors and other persons obligated on Xxxxxxxxxx |
00 |
| 00 |
Power of attorney |
15 |
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14.1 |
Appointment of powers and Secured Party |
15 |
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14.2 |
Ratification by Debtor |
16 |
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14.3 |
No duty on Secured Party |
16 |
| 15 |
Rights and remedies |
16 |
| 16 |
Standards for exercising rights and remedies |
17 |
| 17 |
No waiver by Secured Party, etc. |
18 |
| 18 |
Suretyship waivers by Debtor |
18 |
| 19 |
Marshalling |
18 |
| 20 |
Proceeds of dispositions |
19 |
| 21 |
Indemnity and expenses |
19 |
| 22 |
Continuing security interest |
19 |
| 23 |
Overdue amounts |
20 |
| 24 |
Governing law, consent to jurisdiction |
20 |
| 25 |
Waiver of jury trial |
21 |
| 26 |
Notices |
21 |
| 27 |
Miscellaneous |
21 |
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Exhibit A |
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Exhibit B |
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Exhibit C |
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The agreement
Security agreement
Date ►
August 10, 2012
| Between the parties |
|
| Debtor |
Solitario Exploration & Royalty Corp.
a corporation existing under the laws of Colorado, United States
of America of 0000 Xxxxxxx Xx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America
(Debtor) |
| Secured Party |
RMB Australia Holdings Limited
ACN 003 201 214 of Xxxxx 00, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx
(RMBAH,
a Secured Party, and collectively with RMBR,
the Secured Party) |
| Secured Party |
RMB Resources Inc.
00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10005, United
States of America
(RMBR,
a Secured Party, and collectively with RMBAH,
the Secured Party) |
| Background |
1
The Debtor has entered into a Facility Agreement (Facility Agreement)
with the Secured Party pursuant to which the Secured Party has agreed to make loans to
the Debtor in accordance with the terms of the Facility Agreement.
2
The parties have entered into the Facility Agreement for the purpose of partially funding pre-development work and exploration
programs relating to the Mt Xxxxxxxx Gold Project located in White Pine County, Nevada (the Project) as well as for agreed
general corporate purposes.
3
It is a condition precedent to the Secured Party making any loans to the Debtor under the Facility Agreement that the Debtor
execute and deliver to the Secured Party a security agreement in substantially the form hereof.
4
The Debtor wishes to grant a security interest in favor of the Secured Party as herein provided. |
| The parties agree |
in consideration of the promises contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: |
Operative part
| 1 | Definitions and interpretations |
| (a) | All capitalized terms used herein without definitions shall have the meaning given to them in the Facility Agreement. |
| (b) | All terms defined in the Uniform Commercial Code of Colorado (Colorado Revised Statutes 4-9-101 et seq., the Code) and
used herein shall have the same meanings in this Agreement as specified in the Code. However, if a term is defined in Article 9
of the Code differently than in another Article of the Code, the term shall have the meaning specified in Article 9. |
| (c) | The term Default, as used herein, has the meaning ascribed to the term ‘Event of Default’ in the Facility
Agreement. |
| (d) | The term Obligations, as used herein, means all of the indebtedness, obligations and liabilities of the Debtor to the
Secured Party, individually or collectively, whether direct or indirect, joint or several, absolute or contingent, due or to become
due, now existing or hereafter arising under or in respect of the Facility Agreement, or any other instruments or agreements executed
and delivered pursuant thereto or in connection therewith, or this Agreement, and shall specifically include (1) the Secured Moneys;
and (2) all future advances made by the Secured Party pursuant to the Transaction Documents for taxes, levies, insurance and repairs
to or maintenance of the Collateral. |
| (e) | The term Person, as used herein, means (1) an individual; and (2) a partnership, corporation (including a business trust),
joint stock company, limited liability corporation or company, limited liability partnership, trust, unincorporated association,
joint venture or other entity formed under the laws of any particular state for the purpose of conducting business, or any trustee,
receiver, custodian or similar official and/or a government or any political subdivision or agency thereof. |
| (f) | The term Transaction Document, as used herein, means (1) this Agreement; (2) the Facility Agreement; (3) the
Promissory Note; (4) each Transaction Document as defined in the Facility Agreement; (5) any document which the Debtor and the
Secured Party agree, now or in the future, is a Transaction Document for the purposes of this Agreement; and (6) any other agreement,
instrument, or other document entered into, given or executed under any of the foregoing, in each case as amended, restated or
otherwise modified from time to time. |
| (a) | Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular and to the singular
include the plural, the part includes the whole, the term ‘including’ is not limiting, and the term ‘or’
has, except where otherwise indicated, the inclusive meaning represented by the phrase ‘and/or.’ The words ‘hereof,’
‘herein,’ ‘hereby,’ ‘hereunder,’ and other similar terms in this Agreement refer to this Agreement
as a whole and not exclusively to any particular provision of this Agreement. Article, Section, subsection, exhibit, and schedule
references are to this Agreement unless otherwise specified. All of the exhibits or schedules attached to this Agreement shall
be deemed incorporated herein by reference. Any reference to any of the following documents includes any and all alterations, amendments,
restatements, extensions, modifications, renewals, or supplements thereto or thereof, as applicable: this Agreement, the Facility
Agreement, or any of the other Transaction Documents. |
| (b) | Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against the Secured Party or
the Debtor, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by both of the
parties and their respective counsel and shall be construed and interpreted according to the ordinary meaning of the words used
so as to fairly accomplish the purposes and intentions of the parties hereto. |
| (c) | In the event of any direct conflict between the express terms and provisions of this Agreement and of the Facility Agreement,
the terms and provisions of the Facility Agreement shall control. |
| (d) | Without limiting section 1.2(c) or the terms of this Agreement, the parties acknowledge that the ability of the Debtor to Encumber the Collateral
and Dispose of the Collateral, and the events upon which the Secured Party may enforce this Agreement and foreclose with respect
to the Collateral, are governed by the express terms of the Facility Agreement and nothing in this Agreement restricts the Debtor’s
ability to do anything expressly permitted by the terms of the Facility Agreement. |
| 1.3 | Inconsistency with Pledge Agreement |
In the event of any inconsistency between a provision
of this Agreement and a provision of the Pledge Agreement (as it relates to the ‘Collateral’, as that expression is
defined in the Pledge Agreement), the provision of the Pledge Agreement prevails to the extent of the inconsistency.
| 2 | Grant of security interest |
| (a) | To secure the payment and performance in full of all of the Obligations, the Debtor hereby grants to the Secured Party a
security interest in and so pledges and assigns to the Secured Party the following properties, assets and rights of the
Debtor, wherever located, whether now owned or hereafter acquired or arising, any and all additions and accessions thereto
and all substitutions and replacements therefore, and all proceeds and products thereof (all of the same being hereinafter
called the Collateral): all personal and fixture property of any kind or nature including without limitation all goods
(including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts,
deposit accounts, chattel paper (whether tangible or electronic), letter-of-credit rights (whether or not the letter of
credit is evidenced by a writing), commercial tort claims (whether pending now or arising in the future), securities and all
other investment property, supporting obligations, any other contract rights or rights to the payment of money, insurance
claims and proceeds, all general intangibles (including all payment intangibles), and all as-extracted collateral. The
Secured Party acknowledges that the attachment of its security interest in any future or additional commercial tort claim as
original collateral is subject to the Debtor's compliance with Section 4.7 . The Collateral includes those items specifically identified on Exhibit A attached hereto and by this reference
incorporated herein; provided, however, that the identification of specific Collateral on Exhibit A shall not be construed
to exclude any property, right or interest not specifically identified on Exhibit A, including those hereafter acquired, from inclusion
in the Collateral encumbered hereby. The Collateral excludes all property which is Excluded Property, for so long as that property
qualifies as Excluded Property in accordance with sections 2(b) and 2(c) hereof. |
| (b) | Subject to section 2(c) , in this Agreement, the expression ‘Excluded Property’ means the following: |
| (1) | Framework Agreement for the Exploration and Potential Development of Mining Properties dated March 23, 2007 by and among Minera
Bongara S.A., Minera Solitario Peru S.A.C. and Solitario Resources Corp., S.A., and any joint venture agreement or similar arrangement
entered into under that agreement; |
| (2) | Framework Agreement for the Exploration and Potential Development of Mining Properties dated April 4, 2008 by and among Minera
Chambara S.A.C., Minera Solitario Peru S.A.C., Solitario Resources Corp., S.A. and Votorantim-Metais Cajamarquilla S.A., and any
joint venture agreement or similar arrangement entered into under that agreement; and |
| (3) | Alliance Agreement dated 18 January, 2005 by and among Newmont Overseas Exploration Limited and Solitario Resources Corporation,
and any other related agreements entered into under, and for the purpose of giving effect to, that agreement. |
| (1) | an item of Excluded Property consists of rights under any agreement or other property interest which cannot be encumbered by
this Agreement as a result of the requirement of any consent of a party to that agreement or owner of such property interest other
than the Debtor and the consent of the relevant parties to that agreement or owner(s) of such property interests to those rights
or property interests being encumbered by this Agreement is obtained or ceases to be required, then the relevant rights are taken
to cease to be Excluded Property and are taken to be part of the Collateral with immediate effect from the time the relevant consent
is given; or |
| (2) | any rights under any agreement or other property interest are included in the definition of Excluded Property but do not require
the consent of a party to that agreement or owner of such property interest in order to be encumbered by this Agreement, then the
relevant rights are taken to cease to be Excluded Property and are taken to be part of the Collateral with immediate effect (as
applicable). |
| (d) | When section 2(c) applies and property becomes part of the Collateral in accordance with that section, the Debtor will make,
sign and execute all documents and perform all acts and do all things reasonably required by the Secured Party to perfect its security
with respect to that property. |
| 3 | Authorization to file financing statements |
The Debtor hereby irrevocably authorizes the
Secured Party at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial
financing statements and amendments thereto that:
| (a) | indicate the Collateral: |
| (1) | as all assets of the Debtor or words of similar effect, regardless of whether any particular
asset comprised in the Collateral falls within the scope of Article 9 of the Code or the Uniform Commercial Code of any other such
jurisdiction; or |
| (2) | as being of an equal or lesser scope or with greater detail; and |
| (b) | provide any other information required by Part 5 of Article 9 of the Code, or the Uniform Commercial Code of any other such
jurisdiction, for the sufficiency or filing office acceptance of any financing statement or amendment, including: |
| (1) | whether the Debtor is an organization, the type of organization and any organizational
identification number issued to the Debtor; and |
| (2) | in the case of a financing statement filed as a fixture filing or indicating Collateral
as as-extracted collateral, a sufficient description of real property to which the Collateral relates. The Debtor agrees to furnish
any such information to the Secured Party promptly upon the Secured Party's request. The Debtor also ratifies its authorization
for the Secured Party to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments
thereto if filed prior to the date hereof. |
To further the attachment, perfection and first priority
(such priority subject only to any Permitted Encumbrance created voluntarily by the Debtor or arising involuntarily by operation
of law which in either case by its terms or by operation of law ranks in priority senior to this Agreement) of, and the ability
of the Secured Party to enforce, the Secured Party's security interest in the Collateral, and without
limitation on the Debtor's other obligations in this Agreement, the Debtor agrees, in each case at the Debtor's expense, to take
the following actions with respect to the following Collateral.
| 4.1 | Promissory notes and tangible chattel paper |
If the Debtor shall at any time hold or acquire any
promissory notes or tangible chattel paper, the Debtor shall forthwith endorse, assign and
deliver the originals of the same to the Secured Party, accompanied by such instruments of transfer or assignment duly executed
in blank as the Secured Party may from time to time specify.
| (a) | For each deposit account that the Debtor at any time opens or maintains, following the occurrence of a Default and while it
is continuing, the Debtor shall, at the Secured Party's request and option, pursuant to an agreement in form and substance satisfactory
to the Secured Party, either: |
| (1) | use commercially reasonable efforts to cause the depositary bank to comply at any time with instructions from the Secured Party
to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further
consent of the Debtor; or |
| (2) | arrange for the Secured Party to become the customer of the depositary bank with respect to the deposit account, with the Debtor
being permitted, only with the consent of the Secured Party, to exercise rights to withdraw
funds from such deposit account. |
| (b) | The provisions of this Section 4.2 shall not apply to: |
| (1) | any deposit account for which the Debtor, the depositary bank and the Secured Party have entered into a cash collateral agreement
specially negotiated among the Debtor, the depositary bank and the Secured Party for the specific purpose set forth therein; |
| (2) | a deposit account for which the Secured Party is the depositary bank and is in automatic control; and |
| (3) | deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to
or for the benefit of the Debtor's salaried employees. |
| (a) | Subject to the terms and conditions of Section 4.3(d) hereof, if the Debtor shall at any time hold or acquire any certificated securities, the Debtor shall forthwith
endorse, assign and deliver the same to the Secured Party, accompanied by such instruments of transfer or assignment duly executed
in blank as the Secured Party may from time to time specify. |
| (b) | If any securities now or hereafter acquired by the Debtor are uncertificated and are issued to the Debtor or its nominee directly
by the issuer thereof, the Debtor shall immediately notify the Secured Party thereof and, at the Secured Party's request and option,
pursuant to an agreement in form and substance satisfactory to the Secured Party but subject to the terms and conditions of Section
4.3(d) hereof, either: |
| (1) | cause the issuer to agree to comply with instructions from the Secured Party as to such securities, without further consent
of the Debtor or such nominee; or |
| (2) | arrange for the Secured Party to become the registered owner of the securities. |
| (c) | If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by the Debtor
are held by the Debtor or its nominee through a securities intermediary or commodity intermediary, the Debtor shall immediately
notify the Secured Party thereof and, at the Secured Party's request and option, pursuant to an agreement in form and substance
satisfactory to the Secured Party, either: |
| (1) | cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply with entitlement orders
or other instructions from the Secured Party to such securities intermediary as to such securities or other investment property,
or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Secured Party to
such commodity intermediary, in each case without further consent of the Debtor or such nominee; or |
| (2) | in the case of financial assets or other investment property held through a securities intermediary, arrange for the Secured
Party to become the entitlement holder with respect to such investment property, with the Debtor being permitted, only with the
consent of the Secured Party, to exercise rights to withdraw or otherwise deal with such investment property. The provisions of
this paragraph shall not apply to any financial assets credited to a securities account for which the Secured Party is the securities
intermediary. |
| (d) | The foregoing notwithstanding, nothing in this Agreement shall impair, prohibit, limit or restrict Debtor’s right to
freely Dispose of or Encumber Marketable Securities or other Collateral if such Disposal is a Permitted Disposal or if such Encumbrance
is a Permitted Encumbrance, nor obligate the Debtor to certificate any of its Ownership Interest in MHLLC. |
| 4.4 | Collateral in the possession of a bailee |
If any Collateral
is at any time in the possession of a bailee, the Debtor shall promptly notify the Secured Party thereof and, at the Secured
Party's request and option, shall promptly obtain an acknowledgement from the bailee, in form and substance satisfactory to the
Secured Party, that the bailee holds such Collateral for the benefit of the Secured Party, and that such bailee agrees to comply,
without further consent of the Debtor, with instructions from the Secured Party as to such Collateral.
| 4.5 | Electronic chattel paper and transferable records |
| (a) | If the Debtor at any time holds or acquires an interest in any electronic chattel paper or any ‘transferable record’
(as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in Section
16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction) the Debtor shall promptly notify the Secured
Party thereof and, at the request and option of the Secured Party, shall take such action as the Secured Party may reasonably request
to vest in the Secured Party control, under Section 9-105 of the Code, of such electronic chattel paper or control under Section
201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case maybe, Section 16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such transferable record. |
| (b) | The Secured Party agrees with the Debtor that the Secured Party will arrange, pursuant to procedures satisfactory to the Secured
Party and so long as such procedures will not result in the Secured Party's loss of control, for the Debtor to make alterations
to the electronic chattel paper or transferable record permitted under Section 9-105 of the Code or, as the case may be, Section
201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions
Act for a party in control to make without loss of control, unless a Default has occurred and is continuing or would occur after
taking into account any action by the Debtor with respect to such electronic chattel paper or transferable record. |
| 4.6 | Letter-of-credit rights |
If the Debtor
is at any time a beneficiary under a letter of credit, the Debtor shall promptly notify
the Secured Party thereof and, at the request and option of the Secured Party, the Debtor shall, pursuant to an agreement in form
and substance satisfactory to the Secured Party, either:
| (a) | arrange for the issuer and any confirmer or other nominated person of such letter of credit to consent to an assignment to
the Secured Party of the proceeds of the letter of credit; or |
| (b) | arrange for the Secured Party to become the transferee beneficiary of the letter of credit, |
with the Secured Party agreeing,
in each case, that the proceeds of the letter of credit are to be applied as provided in the Facility Agreement.
| 4.7 | Commercial tort claims |
If the Debtor shall at any time hold or acquire a commercial
tort claim, the Debtor shall immediately notify the Secured Party in a writing signed by the Debtor of the particulars thereof
and grant to the Secured Party in such writing a security interest therein and in
the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to
the Secured Party.
| 4.8 | Other actions as to any and all Collateral |
The Debtor further agrees, at the request
and option of the Secured Party, to take any and all other actions the Secured Party may determine to be necessary or useful for
the attachment, perfection and first priority (such priority subject only to any Permitted Encumbrance created voluntarily
by the Debtor or arising involuntarily by operation of law which in either case by its terms or by operation of law ranks in priority
senior to this Agreement) of, and the ability of the Secured Party to enforce, the Secured
Party's security interest in any and all of the Collateral, including without limitation:
| (a) | executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Code, to
the extent, if any, that the Debtor's signature thereon is required therefore; |
| (b) | causing the Secured Party's name to be noted as secured party on any certificate of title for a titled good if such notation
is a condition to attachment, perfection or priority of, or ability of the Secured Party to enforce, the Secured Party's security
interest in such Collateral; |
| (c) | complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with
such provision is a condition to attachment, perfection or priority of, or ability of the Secured Party to enforce, the Secured
Party's security interest in such Collateral; |
| (d) | obtaining governmental and other third party waivers, consents and approvals in form and substance satisfactory to Secured
Party, including, without limitation, any consent of any licensor, lessor or other person obligated on Collateral; |
| (e) | obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Secured Party; and |
| (f) | taking all actions under any earlier versions of the Code or under any other law, as reasonably determined by the Secured Party
to be applicable in the Code or the Uniform Commercial Code of any other jurisdiction, including any foreign jurisdiction. |
| 5 | Relation to other security documents |
The provisions of this Agreement supplement the
provisions of any real estate mortgage granted by the Debtor to the Secured Party which secures the payment or performance of any
of the Obligations. Nothing contained in any such real estate mortgage shall derogate
from any of the rights or remedies of the Secured Party hereunder. In addition to the provisions of this Agreement being
so read and construed with any such mortgage, the provisions of this Agreement shall be read
and construed with the other Security Documents referred to below in the manner so
indicated.
| 6 | Representations and warranties concerning Debtor’s legal status |
The Debtor has previously
or concurrently herewith delivered to the Secured Party a certificate signed by the Debtor and entitled “Perfection Certificate”
(the Perfection Certificate). The Debtor represents and warrants to the Secured Party as follows:
| (a) | the Debtor's exact legal name is that indicated on the Perfection Certificate and on the signature page hereof; |
| (b) | the Debtor is an organization of the type, and is organized in the jurisdiction set forth in, the Perfection Certificate; |
| (c) | the Perfection Certificate accurately sets forth the Debtor's organizational identification number or accurately states that
the Debtor has none; |
| (d) | the Perfection Certificate accurately sets forth the Debtor's place of business or, if more than one, its chief executive office,
as well as the Debtor's mailing address, if different; |
| (e) | all other information set forth on the Perfection Certificate pertaining to the Debtor is accurate and complete; and |
| (f) | that there has been no change in any information provided in the Perfection Certificate since the date on which it was executed
by the Debtor. |
| 7 | Covenants concerning Debtor’s legal status |
The Debtor covenants with the Secured Party
as follows:
| (a) | the Debtor will not, without the prior written consent of Secured Party (not to be unreasonably withheld), change its name,
its place of business or, if more than one, chief executive office, or its mailing address or organizational identification number
if it has one; |
| (b) | if the Debtor does not have an organizational identification number and later obtains one, the Debtor shall forthwith notify
the Secured Party of such organizational identification number; and |
| (c) | the Debtor will not, without the prior written consent of Secured Party change its type of organization, jurisdiction of organization
or other legal structure. |
| 8 | Representations and warranties concerning Collateral, etc |
The Debtor further represents
and warrants to the Secured Party as follows:
| (a) | the Debtor is the owner of or has other rights in or power to transfer the Collateral, free from any right or claim of any
person or any adverse lien, security interest or other encumbrance, except for the security interest created by this Agreement
and Permitted Encumbrances; |
| (b) | none of the account debtors or other persons obligated on any of the Collateral is a governmental authority covered by the
Federal Assignment of Claims Act or like federal, state or local statute or rule in respect of such Collateral; |
| (c) | the Debtor holds no commercial tort claim except as indicated on the Perfection Certificate; |
| (d) | the Debtor has at all times operated its business in compliance with all applicable provisions of the Federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances; |
| (e) | all other information set forth on the Perfection Certificate pertaining to the Collateral is accurate and complete; and |
| (f) | that there has been no change in any information provided in the Perfection Certificate since the date on which it was executed
by the Debtor. |
| 9 | Covenants concerning Collateral, etc |
The Debtor further covenants with the Secured Party
as follows:
| (a) | the Collateral, to the extent not delivered to the Secured Party pursuant to Section 4 , will be kept at those locations listed on the Perfection Certificate and the Debtor will not remove the
Collateral from such locations, without providing at least 30 days prior written notice to the Secured Party; |
| (b) | except for the security interest herein granted and Permitted Encumbrances, if any, the Debtor shall be the owner of or have
other rights in the Collateral free from any right or claim of any other person, lien, security interest or other encumbrance,
and the Debtor shall defend the same against all claims and demands of all persons at any time claiming the same or any interests
therein adverse to the Secured Party; |
| (c) | the Debtor shall not pledge, mortgage or create, or suffer to exist any right of any person in or claim by any person to the
Collateral, or any security interest, lien or encumbrance in the Collateral in favor of any person, other than the Secured Party,
except for Permitted Encumbrances; |
| (d) | the Debtor will keep the Collateral in good order and repair and will not use the same in violation of law or any policy of
insurance thereon; |
| (e) | as provided in the Facility Agreement, the Debtor will permit the Secured Party, or its designee, to inspect the Collateral
at any reasonable time, wherever located; |
| (f) | the Debtor will pay promptly when due all taxes, assessments, governmental charges and levies upon the Collateral or incurred
in connection with the use or operation of such Collateral or incurred in connection with this Agreement, except where the tax,
assessment, governmental charge or levy has not been paid because (and for so long as) clause 9.13 of the Facility Agreement applies; |
| (g) | the Debtor will continue to operate its business in compliance with all applicable provisions of the Federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances; and |
| (h) | the Debtor will not Dispose, or offer to Dispose, of the Collateral or any interest therein except for a Disposal (which is
not a Disposal of a Project Asset) of Collateral which is a Permitted Disposal. |
The Debtor will obtain and maintain with financially
sound and reputable insurers insurance of such types, in such amounts, and on such terms,
as shall be required by the Facility Agreement.
| 11 | Collateral protection expenses; preservation of Collateral |
| 11.1 | Expenses incurred by Secured Party |
In the Secured Party's discretion, if the Debtor
fails to do so, the Secured Party may discharge taxes and other encumbrances at any time levied or placed on any of the Collateral,
maintain any of the Collateral, make repairs thereto, pay any necessary filing fees
or insurance premiums and incur any expense in protecting, preserving or enforcing the Secured Party’s rights and remedies
under or in respect of any of the Obligations or any of the Collateral. The Debtor agrees to reimburse the Secured Party on demand
for all expenditures so made, including attorneys’ fees and disbursements. The Secured Party shall have no obligation to
the Debtor to make any such expenditures, nor shall the making thereof be construed as the waiver or cure of any Default.
| 11.2 | Secured Party's Obligations and duties |
Anything herein to the contrary notwithstanding,
the Debtor shall remain obligated and liable under each contract or agreement comprising the Collateral to be observed or performed
by the Debtor thereunder. The Secured Party shall not have any obligation or liability under any such contract or agreement by
reason of or arising out of this Agreement or the receipt by the Secured Party of any payment relating to any of the Collateral,
nor shall the Secured Party be obligated in any manner to perform any of the obligations of the Debtor under or pursuant to any
such contract or agreement, to make inquiry as to the nature or sufficiency of any
payment received by the Secured Party in respect of the Collateral or as to the sufficiency of any performance by any party under
any such contract or agreement, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have been assigned to the Secured Party or to which
the Secured Party may be entitled at any time or times. The Secured Party's sole duty with
respect to the custody, safe keeping and physical preservation of the Collateral in its possession,
under Section 9-207 of the Code or otherwise, shall be to deal with such Collateral in the
same manner as the Secured Party deals with similar property for its own account.
| 12 | Securities and deposits |
The Secured Party may at any time following and during
the continuance of a Default, at its option, transfer to itself or any nominee any securities
constituting Collateral, receive any income thereon and hold such income as additional
Collateral or apply it to the Obligations. Whether or not any Obligations are due,
the Secured Party may, following and during the continuance of a Default, demand, xxx for, collect, or make any settlement
or compromise which it deems desirable with respect to the Collateral. Regardless of the adequacy of Collateral or any other security
for the Obligations, any deposits or other sums at any time credited by or due from
the Secured Party to the Debtor may at any time be applied to or set off against any of the Obligations then due and owing.
| 13 | Notification to account debtors and other persons obligated on Collateral |
If a Default
shall have occurred and be continuing, the Debtor shall, at the request and option of the Secured
Party, notify account debtors and other persons obligated on any of the Collateral of the security interest of the Secured Party
in any account, chattel paper, general intangible, instrument or other Collateral and that payment thereof is to be made directly
to the Secured Party or to any financial institution designated by the Secured Party
as the Secured Party's agent therefor, and the Secured Party may itself, if a Default shall have occurred and be continuing, without
notice to or demand upon the Debtor, so notify account debtors and other persons obligated on Collateral. After the making of such
a request or the giving of any such notification, the Debtor shall hold any proceeds of collection of accounts, chattel paper,
general intangibles, instruments and other Collateral received by the Debtor as trustee
for the Secured Party without commingling the same with other funds of the Debtor
and shall turn the same over to the Secured Party in the identical form received, together
with any necessary endorsements or assignments. The Secured Party shall apply the
proceeds of collection of accounts, chattel paper, general intangibles, instruments
and other Collateral received by the Secured Party to the Obligations, such proceeds to
be immediately credited after final payment in cash or other immediately available funds of the items giving rise to them.
| 14.1 | Appointment of powers and Secured Party |
The Debtor hereby irrevocably constitutes
and appoints the Secured Party and any officer or agent thereof, with full power of substitution, as its true and lawful attorneys-in-fact
with full irrevocable power and authority in the place and stead of the Debtor or in
the Secured Party's own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be necessary or useful
to accomplish the purposes of this Agreement and, without limiting the generality of the foregoing, hereby gives said attorneys
the power and right, on behalf of the Debtor, without notice to or assent by the Debtor, to do the following:
| (a) | upon the occurrence and during the continuance of a Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise dispose of or deal with any of the Collateral in such manner as is consistent with the Code and as fully and completely
as though the Secured Party were the absolute owner thereof for all purposes, and to do, at the Debtor's expense, at any time,
or from time to time, all acts and things which the Secured Party deems necessary or useful to protect, preserve or realize upon
the Collateral and the Secured Party's security interest therein, in order to effect the intent of this Agreement, all at least
as fully and effectively as the Debtor might do, including, without limitation; |
| (1) | the filing and prosecuting of registration and transfer applications with the appropriate federal, state, local or other agencies
or authorities with respect to trademarks, copyrights and patentable inventions and processes; |
| (2) | upon written notice to the Debtor, the exercise of voting rights with respect to voting
securities, which rights may be exercised, if the Secured Party so elects, with a view to causing the liquidation of assets of
the issuer of any such securities; and |
| (3) | the execution, delivery and recording, in connection with any sale or other disposition
of any Collateral, of the endorsements, assignments or other instruments of conveyance or transfer with respect to such
Collateral; and |
| (b) | to the extent that the Debtor's authorization given in Section 3 is not sufficient, to file such financing statements with respect hereto, with or without the Debtor's signature,
or a photocopy of this Agreement in substitution for a financing statement, as the Secured Party may deem appropriate and to execute
in the Debtor's name such financing statements and amendments thereto and continuation statements which may require the Debtor's
signature. |
| 14.2 | Ratification by Debtor |
To the extent permitted by law, the Debtor hereby ratifies
all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and is irrevocable.
| 14.3 | No duty on Secured Party |
The powers conferred on the Secured Party hereunder
are solely to protect its interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. The Secured Party shall be accountable only for the amounts that it actually receives as a result of
the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to the
Debtor for any act or failure to act, except for the Secured Party's own gross negligence or willful misconduct.
| (a) | If a Default shall have occurred and be continuing, the Secured Party, without any other notice to or demand upon the Debtor,
shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights
and remedies of a secured party under the Code and any additional rights and remedies which
may be provided to a secured party in any jurisdiction in which Collateral is located, including, without limitation, the
right to take possession of the Collateral, and for that purpose the Secured Party may, so far as the Debtor can give authority
therefor, enter upon any premises on which the Collateral may be situated and remove the same therefrom. The Secured Party may
in its discretion require the Debtor to assemble all or any part of the Collateral at such location or locations (within the jurisdictions)
of the Debtor's principal office(s) or at such other locations as the Secured Party may reasonably designate. Unless the Collateral
is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Secured Party
shall give to the Debtor at least 10 Business Days prior written notice of the time and place of any public sale of Collateral
or of the time after which any private sale or any other intended disposition is to be made. The Debtor hereby acknowledges that
10 Business Days prior written notice of such sale or sales shall be reasonable notice. In addition, the Debtor waives any and
all rights that it may have to a judicial hearing in advance of the enforcement of any of the Secured Party's rights and remedies
hereunder, including, without limitation, its right following a Default to take immediate
possession of the Collateral and to exercise its rights and remedies with respect thereto. |
| (b) | Debtor hereby acknowledges that the sale by Secured Party of any Collateral constituting securities pursuant to the terms hereof
shall be in compliance with the Securities Act of 1933 as now in effect or as hereafter amended, or any similar statute hereafter
adopted with similar purpose or effect (Securities Act), as well as applicable ‘Blue Sky’ or other state securities
laws, may require strict limitations as to the manner in which Secured Party or any subsequent transferee of such Collateral may
dispose thereof. Debtor acknowledges and agrees that in order to protect Secured Party’s interest it may be necessary to
sell such Collateral at a price less than the maximum price attainable if a sale were delayed or were made in another manner, such
as a public offering under the Securities Act. Debtor has no objection to sale in such a manner and agrees that Secured Party shall
have no obligation to obtain the maximum possible price for such Collateral. Without limiting the generality of the foregoing,
Debtor agrees that, upon the occurrence and during the continuation of a Default, Secured Party may, subject to applicable law,
from time to time attempt to sell all or any part of such Collateral by a private placement, restricting the bidders and prospective
purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In so doing,
Secured Party may solicit offers to buy such Collateral or any part thereof for cash, from a limited number of investors reasonably
believed by Secured Party to be institutional investors or other accredited investors who might be interested in purchasing such
Collateral. If Secured Party shall solicit such offers, then the acceptance by Secured Party of one of the offers shall be deemed
to be a commercially reasonable method of disposition of such Collateral. |
| 16 | Standards for exercising rights and remedies |
To the extent that applicable law imposes
duties on the Secured Party to exercise remedies in a commercially reasonable manner, the
Debtor acknowledges and agrees that it is not commercially unreasonable for the Secured Party:
| (a) | to fail to incur expenses reasonably deemed significant by the Secured Party to prepare Collateral for disposition or otherwise
to fail to complete raw material or work in process into finished goods or other finished products for disposition; |
| (b) | to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other
law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or
disposed of; |
| (c) | to fail to exercise collection remedies against account debtors or other persons obligated on Collateral or to fail to remove
liens or encumbrances on or any adverse claims against Collateral; |
| (d) | to exercise collection remedies against account debtors and other persons obligated on Collateral directly or through the use
of collection agencies and other collection specialists; |
| (e) | subject to the applicable requirements of the Securities Act, to advertise dispositions of Collateral through publications
or media of general circulation, whether or not the Collateral is of a specialized nature; |
| (f) | to contact other persons, whether or not in the same business as the Debtor, for expressions of interest in acquiring all or
any portion of the Collateral; |
| (g) | to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of
a specialized nature; |
| (h) | subject to the applicable requirements of the Securities Act, to dispose of Collateral by utilizing internet sites that provide
for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match
buyers and sellers of assets; |
| (i) | to dispose of assets in wholesale rather than retail markets; |
| (j) | to disclaim disposition warranties; |
| (k) | to purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of
Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of Collateral; |
| (l) | to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants
and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral; or |
| (m) | do any other thing which is permitted by the terms of the Facility Agreement. |
The Debtor acknowledges
that the purpose of this Section 16 is to provide non-exhaustive indications of what actions or omissions by the Secured Party
would fulfill the Secured Party's duties under the Code or the laws of Colorado, or the law of any other relevant jurisdiction,
in the Secured Party's exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall
not be deemed to fail to fulfill such duties solely on account of not being indicated in this Section 16. Without limitation upon
the foregoing, nothing contained in this Section 16 shall be construed to grant any rights to the Debtor or to impose any duties
on the Secured Party that would not have been granted or imposed by this Agreement or by applicable law in the absence of this
Section 16.
| 17 | No waiver by Secured Party, etc |
The Secured Party shall not be deemed to have waived
any of its rights or remedies in respect of the Obligations or the Collateral unless such waiver shall be in writing and signed
by the Secured Party. No delay or omission on the part of the Secured Party in exercising any right or remedy shall operate as
a waiver of such right or remedy or any other right or remedy. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion. All rights and remedies of the Secured Party with respect to the Obligations
or the Collateral, whether evidenced hereby or by any other instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the Secured Party deems expedient.
| 18 | Suretyship waivers by Debtor |
The Debtor waives demand, notice, protest, notice
of acceptance of this Agreement, notice of loans made, credit extended, Collateral received
or delivered or other action taken in reliance hereon and all other demands and notices of any description. With respect
to both the Obligations and the Collateral, the Debtor assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange or release
of or failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement,
compromising or adjusting of any thereof, all in such manner and at such time or times as the Secured Party may deem advisable.
The Secured Party shall have no duty as to the collection or protection of the Collateral
or any income therefrom, the preservation of rights against prior parties, or the
preservation of any rights pertaining thereto beyond the safe custody thereof as set forth in Section 11.2. The Debtor
further waives any and all other suretyship defenses.
The Secured Party shall not be required to marshal
any present or future collateral security (including but not limited to the Collateral) for,
or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or other assurances
of payment in any particular order, and all of its rights and remedies hereunder and in respect
of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and
remedies, however existing or arising. To the extent that it lawfully may, the Debtor hereby
agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement
of the Secured Party's rights and remedies under this Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of the Obligations is
outstanding or by which any of
the Obligations is secured or payment thereof is otherwise assured, and, to the extent
that it lawfully may, the Debtor hereby irrevocably waives the benefits of all such laws.
| 20 | Proceeds of dispositions |
The Debtor shall pay to the Secured Party on demand
any and all expenses, including reasonable attorneys' fees and disbursements, incurred or paid by the Secured Party in protecting,
preserving or enforcing the Secured Party's rights and remedies under or in respect of any of the Obligations or any of the Collateral.
After deducting all of said expenses, the residue of any proceeds of collection or sale or other disposition of the Collateral
shall, to the extent actually received in cash, be applied to the payment of the Obligations in such order or preference as the
Secured Party may determine, proper allowance and provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3)
of the Code, any excess shall be returned to the Debtor. In the absence of final payment and satisfaction in full of all of the
Obligations, the Debtor shall remain liable for any deficiency.
The Debtor agrees:
| (a) | to indemnify and hold harmless Secured Party and each of its directors, officers, employees, agents and affiliates from and
against any and all claims, damages, demands, losses, obligations, judgments and liabilities (including, without limitation, attorneys’
fees and expenses) in any way arising out of or in connection with this Agreement or the Obligations, except to the extent the
same shall arise as a result of the negligence or wilful misconduct of the party seeking to be indemnified; and |
| (b) | to pay and reimburse Secured Party upon demand for all reasonable costs and expenses (including, without limitation, attorneys’
fees and expenses) that Secured Party may incur in connection with: |
| (1) | the custody, use or preservation of, or the sale of, collection from or other realization upon, any of the Collateral, including
the reasonable expenses of re-taking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the
Collateral; |
| (2) | the exercise or enforcement of any rights or remedies granted hereunder, under the Facility Agreement, or under any of the
other Transaction Documents or otherwise available to it (whether at law, in equity or otherwise); and |
| (3) | the failure by Debtor to perform or observe any of the provisions hereof. |
The provisions of this Section 21shall survive the
execution and delivery of this Agreement, the repayment of any of the Obligations, the termination of the commitments of Secured
Party under the Facility Agreement, and the termination of this Agreement or any other credit document.
| 22 | Continuing security interest |
| (a) | This Agreement shall create a continuing security interest in the Collateral and shall: |
| (1) | remain in full force and effect until the indefeasible payment in full of the Obligations, including the cash collateralization,
expiration, or cancellation of all Obligations, if any, consisting of letters of credit, and the full and final termination of
any commitment to extend any financial accommodation under the Facility Agreement and the other Transaction Documents; |
| (2) | be binding upon the Debtor and its successors and assigns; and |
| (3) | inure to the benefit of the Secured Party and its successors, transferees, and assigns. |
| (b) | Subject to Section 22(c) , at the written request of the Debtor, the Secured Party must discharge and terminate the security interest
created under this Agreement if the Obligations have been indefeasibly paid in full and no Obligations are owing, whether actually,
contingently or prospectively. |
| (c) | The Secured Party is not obliged to discharge and terminate the security interest created under this Agreement under Section
22(b) if the Secured Party is of the opinion (acting in good faith) that it is reasonably foreseeable that any Obligations
could be owing in the future. |
| (d) | If the Secured Party is obliged to discharge and terminate the security interest created under this Agreement in accordance
with Section 22(b) and 22(c) then: |
| (1) | the Secured Party must, at the Debtor’s expense, execute and deliver to the Debtor such documents as the Debtor shall
reasonably request to evidence such discharge and termination; and |
| (2) | such documents shall be prepared by the Debtor and shall be in form and substance reasonably satisfactory to the Secured Party. |
| (e) | Despite this Section 22 and any discharge or termination of the security interest created under this Agreement, nothing in this Agreement
or any discharge or termination affects any indemnity or other obligation under this Agreement or under any other Transaction Document
that is expressed to survive termination. |
Until paid, all amounts due and payable by the Debtor
hereunder shall be a debt secured by the Collateral and shall bear, whether before or after
judgment, interest at the rate of interest set forth in the Facility Agreement.
| 24 | Governing law, consent to jurisdiction |
This agreement
shall be governed by, and construed in accordance with the laws of the State of COLORADO without reference to conflicts of law
principles. The Debtor agrees that any action or claim arising out of, or any dispute in
connection with, this Agreement, any rights, remedies, obligations, or duties hereunder,
or the performance or enforcement hereof or thereof, may be brought in the courts of the
State of COLORADO or any federal court sitting therein and consents to the non-exclusive jurisdiction of such court and to service
of process in any such suit being made upon the Debtor by mail at the address specified
for notices in the Facility Agreement. The Debtor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.
The Debtor
waives its rights to a jury trial with respect to any action or claim arising out of any dispute in connection with this agreement,
Any rights, remedies, obligations, or duties hereunder, or the performance or enforcement hereof or thereof. Except
as prohibited by law, the Debtor waives any right which it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages.
The Debtor:
| (a) | certifies that neither the Secured Party nor any representative, agent or attorney of the Secured Party has represented, expressly
or otherwise, that the Secured Party would not, in the event of litigation, seek to enforce the foregoing waivers or other waivers
contained in this Agreement; and |
| (b) | acknowledges that, in entering into the Facility Agreement and the other Transaction Documents to which the Secured Party is
a party, the Secured Party is relying upon, among other things, the waivers and certifications contained in this Section 25. |
Except as otherwise expressly provided herein, any
notice, order, instruction, request or other communication required or permitted to be given under this Agreement shall be in writing
and deemed to have been properly given when delivered in person, or when sent by facsimile transmission or other electronic means,
or upon receipt of notice sent by overnight mail or certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth below. Any party may change its address for notices in the manner set
forth above.
Solitario Exploration & Royalty Corp.
0000 Xxxxxxx Xx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America
Attn: Xxxxx X. Xxxxxxxx
Fax: x0 000 000 0000
E-mail: xxxxxxxxx@xxxxxx.xxx |
|
|
RMB Australia Holdings Limited
Xxxxx 00
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx New South Wales 2000
Australia
Attn: Xxxxxxx Xxx
Fax: x00 0 0000 0000
E-mail: xxxx.xxx@xxx.xxx.xx |
RMB Resources Inc.
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
United States of America
Attn: Xxxxxx Xxxxxxx
Fax: x0 000 000 0000
E-mail: xxxxxx.xxxxxxx@xxxxxxxxxxxx.xxx |
The headings of each Section of this Agreement are
for convenience only and shall not define or limit the provisions thereof. This Agreement and all rights and obligations
hereunder
shall be binding upon the Debtor and its respective successors and assigns, and shall inure to the benefit of the Secured Party
and its successors and assigns. If any term of this Agreement shall be held to be invalid, illegal or unenforceable, the validity
of all other terms hereof shall in no way be affected thereby, and this Agreement shall be construed and be enforceable as if such
invalid, illegal or unenforceable term had not been included herein. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall constitute one and the same Agreement dated as of the
first date shown above. The Debtor acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the
Debtor has caused this Agreement to be duly executed as of the date first above written.
| |
Debtor |
| |
Signed for
Solitario Exploration & Royalty Corp.
by its authorized signatories |
| sign here ► |
/s/ Xxxxxxxxxxx X. Herald |
|
| |
Xxxxxxxxxxx X. Herald, CEO |
|
| sign here ► |
/s/ Xxxxx X. Xxxxxxxx |
|
| |
Xxxxx X. Xxxxxxxx, CFO |
|
| |
Accepted
| |
Secured Party |
| |
Signed for
RMB Australia Holdings Limited
by its attorney |
| sign here ► |
/s/ Xxxxxxxxxxx Xxxxxx |
|
| |
Attorney |
|
| print name |
Xxxxxxxxxxx Xxxxxx |
|
| |
in the presence of |
|
| sign here ► |
Xxxxxx X. Xxxxxxxx |
|
| |
Witness |
|
| print name |
Xxxxxx X Xxxxxxxx |
|
| |
| |
Secured Party |
| |
Signed for
RMB Resources Inc.
by its authorized signatory |
| sign here ► |
/s/ Xxxxxx Xxxxxxx |
|
| |
Authorized Signatory |
|
| print name |
Xxxxxx Xxxxxxx |
|
| title |
Managing Director |
|
| |
Certificates of acknowledgement
State of Colorado )
) ss.
City and County of [Denver ] )
Before me, the undersigned, a Notary Public, on this
10th Day of August 2012, personally appeared Xxxxxxxxxxx X. Herald and Xxxxx X. Xxxxxxxx to me known personally, and
who, being by me duly sworn, deposes and say that they are the Chief Executive Officer and Chief Financial Officer, respectively,
of Solitario Exploration & Royalty Corp., and that said instrument was signed and sealed on behalf of said corporation by authority
of its Members and that said instrument is the free act and deed of said corporation.
My commission expires: 06/04/2018
(SEAL) Xxxxxx X. Xxxxxxxx
Exhibit A
TO SECURITY
AGREEMENT
BETWEEN
SOLITARIO EXPLORATION & ROYALTY CORP.,
RMB AUSTRALIA HOLDINGS LIMITED AND
RMB RESOURCES INC.
The Collateral
All of the Debtor’s personal and fixture property
of any kind or nature whether now owned or hereafter acquired or arising, whether located at or upon the real property identified
on Exhibit B to the Security Agreement to which this Exhibit A is attached (the Agreement) or at any other location, including
without limitation all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes),
documents, accounts, deposit accounts, chattel paper (whether tangible or electronic), letter-of-credit rights (whether or not
the letter of credit is evidenced by a writing), commercial tort claims (whether pending now or arising in the future), securities
and all other investment property, supporting obligations, any other contract rights or rights to the payment of money, insurance
claims and proceeds, all general intangibles (including all payment intangibles), and all as-extracted collateral; together with
any and all additions and accessions thereto and all substitutions and replacements therefore, and all proceeds and products thereof
but specifically excluding the Excluded Property. Reference to specific Collateral in this Exhibit A shall not be construed
to exclude any property, right or interest to which the Secured Party is entitled to a security interest pursuant to the Agreement,
and the Collateral excludes the Excluded Property but includes the following:
| A. | All Debtor’s inventory, including without limitation all work-in-progress, materials and supplies inventories, all product
inventories, and all gold- and silver- containing ore, concentrates or other products in whatever form and of whatever content
or purity (including without limitation, ore, concentrate, dore and bullion), and wherever located, and including all products
and proceeds thereof; |
| B. | All Debtor’s as-extracted collateral, including without limitation all gold and silver, and all other minerals mined
and produced by Debtor from any property now or in the future owned by the Debtor, in whatever form and of whatever content or
purity (including without limitation, ore, concentrate, dore and bullion), including all proceeds and products thereof but excluding
the Excluded Property; |
| C. | All Debtor’s property, plant, machinery, and equipment, and all trade fixtures, tools, appliances, computers, computer
software, office equipment, furniture, and motor vehicles, including without limitation the physical plant machinery identified
on Exhibit B to this Agreement, Debtor’s equipment and assets identified on Exhibit C to this Agreement, including all
additions and accessions thereto and all substitutions therefore, and all products and proceeds thereof; |
| D. | All Debtor’s structures, pipelines, buildings, improvements, and all other fixtures located on any real property owned
by the Debtor, including all additions and accessions thereto and all substitutions therefore, and all products and proceeds thereof
but excluding the Excluded Property; |
| E. | All Debtor’s instruments (including promissory notes, bills of exchange, stocks, bonds and debentures), chattel paper
(whether tangible or electronic), documents, letters of credit (whether or not evidenced by a writing), letter of credit rights
and supporting obligations, and all proceeds thereof, including without limitation all of the issued and outstanding shares of
Debtor now or in the future held by the Debtor; |
| F. | All Debtor’s accounts, deposit accounts, contract rights, commercial tort claims (whether now in existence or arising
in the future), technical data and information (whether economic, geological, geophysical, metallurgical or other data and information)
and other general intangibles, including without limitation: |
Proceeds Account:
Account Holder: Solitario Exploration & Royalty
Corp.
Account Number: ********7337
Bank: Key Bank National Association
, ____
ABA Routing Number
| G. | All Debtor’s contract rights or rights to the payment of money, insurance claims and proceeds, including without limitation
all insurance policies in which Debtor is named as an insured party. |
Exhibit B
TO SECURITY
AGREEMENT
BETWEEN
SOLITARIO EXPLORATION & ROYALTY CORP.,
RMB AUSTRALIA HOLDINGS LIMITED AND
RMB RESOURCES INC.
NIL
Exhibit C
TO SECURITY
AGREEMENT
BETWEEN
SOLITARIO EXPLORATION & ROYALTY CORP.,
RMB AUSTRALIA HOLDINGS LIMITED AND
RMB RESOURCES INC.
| DESCRIPTION |
DATE |
ENDING BALANCE |
ADDITIONS |
DELETIONS |
ENDING BALANCE |
| |
|
12/31/11 |
|
|
06/30/12 |
| |
|
|
|
|
|
| OFFICE EQUIPMENT 1241 |
|
71,209.98 |
|
|
|
| TOSHIBA LAPTOP HOUSTON |
03/13/12 |
|
1,059.66 |
|
|
| DELL INSPIRON LAPTOP HOUSTON |
03/31/06 |
|
|
-1,946.59 |
|
| HP PHOTOSMART PRINTER |
03/13/08 |
|
|
-123.31 |
|
| QUICKBOOKS UPGRADE |
10/13/09 |
|
|
-889.10 |
|
| |
|
|
|
|
|
| |
|
71,209.98 |
1,059.66 |
-2,959.00 |
69,310.64 |
| OFFICE FURNITURE 1242 |
|
|
|
|
|
| |
|
|
|
|
|
| LEASEHOLD IMPROVEMENT 1244 |
|
0.00 |
|
|
|
| |
|
|
|
|
|
| |
|
0.00 |
0.00 |
0.00 |
0.00 |
| |
|
|
|
|
|
| NON-DEPRECIABLE ASSETS 1245 |
|
29,569.43 |
|
|
29,569.43 |
| |
|
|
|
|
|
| TOTAL ALL ASSETS |
|
100,779.41 |
1,059.66 |
-2,959.00 |
98,880.07 |
