ex10_2.htm


    Exhibit
      10.2

     

    

      COLLATERAL
        ASSIGNMENT
        OF

      ESCROW
        AGREEMENT AND ESCROW FUNDS

      


      


      


      
        	
                DATE:

              	
                October
                  9, 2008 

              


      

      


      
        	
                DEBTOR:

              	
                America
                  West Resources,
                  Inc., a Nevada corporation 

              


      

      


      
        	
                LENDERS:

              	
                Denly
                  ACI Partners,
                  Ltd., a Texas limited partnership (the "Partnership"),
                  and Dennis C. von
                  Waaden,
                  Co-Trustee ofThe
                  von Waaden 2004 Revocable Trust and Sally A. von Waaden, Co-Trustee
                  ofThe von
                  Waaden
                  2004 Revocable Trust (the "Trust")
                  

              


      

      


      
        	
                NOTE:

              	
                Those
                  two certain Secured Promissory Notes dated October 7, 2008, in
                  the
                  aggregate amounts of $2,800,000.00 made payable to the order of
                  Lenders
                  ($1,866,666.66 to the Partnership and $933,333.33 to the Trust)
                  from
                  Debtor, as the same may be renewed, extended, modified or rearranged
                  from
                  time to time. 

              


      

      


      LOAN
        AGREEMENT:  The Loan
        Agreement dated October 9, 2008, executed by Debtor and Lenders, as the same
        may
        be amended, modified, restated or replaced from time to time.

      


      COLLATERAL:  All
        of Debtor=s
        right, title, interest, claim and demand (but not Debtor=s
        duties or obligations) in and to the following described contracts and all
        payments (direct or indirect, whether in cash or otherwise), distributions,
        and
        rights to payment of every kind under and by virtue of (i) that certain Escrow
        and Account Control Agreement dated as of October 9, 2008, by and among the
        Debtor; and Wells Fargo Bank,
        National Association (as Escrow Agent), as now or hereafter amended or
        modified (the “Escrow
        Agreement”), and (ii) all accounts and general intangibles consisting of,
        relating to or otherwise arising out of the Escrow Agreement and Debtor’s right,
        title, interest, or claim (but not Debtor’s duties or obligations) in and to the
        Escrow Property (as defined therein) and all payments, distributions, and
        rights
        to payment of every kind, under and by virtue of the Escrow
        Agreement.

      


      PROCEEDS:  Any
        and all proceeds of the Collateral, as the term “proceeds” is defined in the
        Chapter 9 of the Texas Business and Commerce Code as now or hereafter adopted
        or
        amended (the "Texas
        UCC"), including without limitation all accounts, general intangibles,
        instruments, documents, moneys, insurance, chattel paper, income and other
        property, benefits or rights of whatever kind or nature arising from,
        attributable to, or accruing from any and all sales, leases, or other
        dispositions of any or all of the Collateral.

      


      1.           
        Agreement.
        Subject to the terms and conditions of this Assignment, in consideration
        of the
        sum of Ten and No/100 Dollars ($10.00) and other good and valuable
        consideration, the receipt and sufficiency of which Debtor acknowledges,
        Debtor
        hereby grants, assigns, transfers, and conveys, to Lenders, their successors
        and
        assigns, and grants to Lenders, their successors and assigns as security
        for the
        Obligations (as defined below) the Escrow Agreement and all other Collateral,
        and Debtor hereby grants to Lenders, as security for the Obligations, a security
        interest in and to the Collateral and Proceeds and all powers, benefits,
        right,
        title, and interest accruing and to accrue, and all revenues, moneys, fees,
        commissions, profits, payments, and other sums payable and to be payable
        to
        Debtor and to which Debtor is or may hereafter become entitled to by virtue
        of
        the Collateral.

      


      2.           
        Secured
        Obligations.  This security interest is granted to Lenders to
        secure the following (the “Obligations”):

      


      (a)           
        Payment of the principal sum, interest and indebtedness evidenced by the
        Notes;

      


      (b)           
        Payment of all other sums with interest thereon becoming due and payable
        to
        Lenders under the provisions of this Assignment or the Notes; and

      


      (c)           
        Performance and discharge of each and every obligation, covenant and agreement
        of Debtor contained in this Assignment, the Notes, the Loan Agreement, as
        amended from time to time, and any and all other Loan Documents (as that
        term is
        defined in the Loan Agreement).

      


      3.           
        Debtor’s
        Representations and Warranties.  Debtor represents and warrants
        to Lenders and covenants as follows:

      


      (a)           
        The execution, delivery and performance of this Assignment does not require
        the
        consent or approval of any governmental body or other regulatory authority
        and
        are not in contravention of, or in conflict with, any law or regulation or
        any
        term or provision of the Escrow Agreement. This Assignment is a valid, binding
        and legally enforceable obligation of Debtor in accordance with its terms
        except
        only as enforceability may be affected or limited by creditors’ rights,
        legislation and court decisions of general application.

      


      (b)           
        The execution and delivery of this Assignment is not, and the performance
        of
        this Assignment will not be, in contravention of, or in conflict with, any
        agreement, indenture or undertaking to which Debtor is a party or by which
        Debtor or any of its property is or may be bound or affected, and do not
        and
        will not cause any security interest, lien or other encumbrance to be created
        or
        imposed or accelerated upon or in connection with any such
        property.

      


      (c)           
        Except for Lenders’ security interest therein (which Debtor has authority to
        grant):  (i) Debtor has not previously assigned, transferred,
        conveyed, sold, pledged or hypothecated any part of the Collateral; (ii)
        Debtor
        is, and as to any Collateral acquired after the date hereof, Debtor shall
        and
        will be the owner of all the Collateral, free from any liens, security
        interests, encumbrances or other right, title or interest of any other person,
        firm or corporation; and (iii) Debtor shall defend the Collateral against
        all
        claims and demands of all persons at any time claiming the same or interest
        therein adverse to Lenders.

      


      (d)           
        No setoff or counterclaim to any money due or to become due to Debtor by
        virtue
        of the Collateral exists as of the date of this Assignment, and Debtor has
        not
        made any agreement pursuant to which any deduction or discount may be claimed
        on
        the Collateral, except as embodied in the express terms of the Escrow Agreement;
        and

      


      (e)           
        There is no financing statement (or other evidence of lien or security interest)
        now on file in any public office covering any of the Collateral in which
        Debtor
        is named or signs as Debtor, and so long as any amount remains unpaid on
        the
        Obligations, Debtor will not execute and there will not be on file in any
        public
        office any such financing statement or statements (or other evidence of lien
        or
        security interest) except the Financing Statement filed or to be filed in
        respect of and for the security interest to Lenders granted or provided for
        in
        this Assignment or any other security agreement or security agreements by
        and
        between Debtor and Lenders.

      


      (f)           
        The Escrow Agreement is presently in full force and effect and binding upon
        all
        the parties thereto. No defaults or breaches have occurred in the Escrow
        Agreement, including but not limited to such defaults or breaches which would
        result in the reduction or termination of Debtor’s interest or rights to
        payments and proceeds under the Escrow Agreement.

      


      4.           
        Debtor’s
        Agreements.  Debtor agrees as follows:

      


      (a)           
        To do, make, procure, execute and deliver all acts, things, writings and
        assurances as Lenders may at any time reasonably request, to protect, assure
        or
        enforce its interests, rights and remedies pursuant to this
        Assignment.

      


      (b)           
        At any time while a Default exists or after the occurrence of an Event of
        Default (as those terms are defined in , upon Lenders’ request, to notify the
        Escrow Agent in writing of the fact of this Assignment and direct such parties
        to make payment direct to Lenders of any monies, accounts and general
        intangibles included in the Collateral; provided that the foregoing shall
        in no
        manner impair Lenders’ right to notify such obligors as elsewhere herein
        provided.

      


      (d)           
        At any time while a Default exists or after the occurrence of any Event of
        Default, to apply all proceeds of the Collateral, including without limitation
        the Proceeds received by Lenders, on the Obligations, in any order of preference
        which Lenders, in their discretion, choose, whether or not the Obligations
        shall
        have by their terms matured, such application to be made at such intervals
        as
        Lenders may determine.

      


      (e)           
        To authorize, and Debtor does hereby authorize, Lenders to contact directly
        any
        party to the Escrow Agreement to verify information furnished by
        Debtor.

      


      (f)           
        To at all times perform or cause to be performed each and every obligation
        and
        duty imposed upon Debtor by the Escrow Agreement and applicable law, and
        to not
        do any act or not omit to do any act which would constitute a breach of,
        default
        under or noncompliance with the Escrow Agreement and applicable
        law.

      


      (g)           
        Not to execute any amendment or modification of the Escrow Agreement or
        otherwise change or alter any of the terms and provisions of the Escrow
        Agreement without Lenders’ prior written consent.

      


      (h)           
        To promptly notify Lenders of the occurrence of any event which constitutes
        a
        breach of, default under, or noncompliance with, or which with the passage
        of
        time, notice, or both, will constitute a breach of, default under, or
        noncompliance with any of the terms and provisions of the Escrow
        Agreement.

      


      (i)           
        To send, with reasonable promptness, to Lenders copies of any and all notices
        sent or received by Debtor under or pursuant to the Escrow Agreement or in
        connection with Debtor’s interest in and under the Escrow
        Agreement.

      


      (j)           
        Not to sell, assign, transfer, encumber, pledge, hypothecate or otherwise
        dispose of any or all of the Collateral or the Proceeds without Lenders=
        prior written consent.

      


      5.           
        Events
        of
        Default.  Debtor shall be in default under this Assignment upon
        the happening of any one or more of the Events of Default (as that term is
        defined in the Loan Agreement).

      


      
        	
                 

              	
                6.

              	
                Lenders=s
                  Rights and Remedies. 

              


      

      


      (a)           
        Debtor hereby irrevocably appoints each Lender as Debtor’s true and lawful agent
        and attorney-in-fact, with full power of substitution, in Lenders' own names
        or
        in the name of Debtor, for Lenders’ sole use and benefit, but at Debtor’s cost
        and expense, to exercise, upon the occurrence of an Event of Default, all
        or any
        of the following powers and rights with respect to the Collateral (without
        any
        obligation on the part of Lenders to exercise any of the following powers
        and
        rights): (1) to demand, receive, collect, sue and give acquittance for, settle,
        compromise, compound, prosecute or defend any action or proceeding with respect
        to the Collateral; (2) in the respective Lender’s name, or in Debtor’s name, to
        endorse, collect, deposit and receipt for any checks, drafts or other means
        of
        payment thereof received from any source; (3) without limiting the foregoing,
        to
        receive, collect, and demand payment of all sums due and payable to Debtor
        on
        and under the Collateral, including without limitation all Proceeds, and
        to
        apply any and all such sums received and collected against the Obligations;
        (4)
        to notify any party to the Escrow Agreement with respect to any Proceeds
        to make
        payments thereon directly to Lenders; (5) to extend the time of payment of
        any
        or all of the Proceeds and to grant waivers and make any allowance or adjustment
        with reference to the Collateral; and (6) to exercise, enforce, enjoy, carry
        out, receive, and/or perform any and all rights, powers, duties, benefits,
        obligations and remedies of Debtor with respect to and arising under the
        Collateral; provided, however, Lenders=
        exercise of or Lenders’ failure to exercise any such authority shall in no
        manner affect Debtor’s liability hereunder or under the Obligations, and
        provided, further, that Lenders shall be under no obligation or duty to exercise
        any of the powers hereby conferred upon them and shall be without liability
        for
        any act or failure to act in connection with the collection of, or the
        preservation of any rights under, any of the Collateral.  The agency
        and authority hereby granted and created is an agency coupled with an
        interest.  Lenders shall not be bound to take any steps necessary to
        preserve rights in any of the Collateral against prior parties.

      


      (b)           
        Upon the occurrence of an Event of Default and at any time thereafter:
        (1) Lenders shall have the rights and remedies provided in the Loan
        Agreement, (2) Lenders shall have the rights and remedies provides in the
        Texas
        UCC, and (3) Lenders may notify any party to the Escrow Agreement that Lenders
        are to receive, collect, and be paid any and all Escrow Property.

      


      (c)           
        All recitals in any instrument of assignment or any other instrument executed
        by
        Lenders incident to the sale, transfer, assignment or other disposition or
        utilization of the Collateral or any part thereof hereunder shall be full
        proof
        of the matters stated therein and no other proof shall be requisite to establish
        full legal propriety of the sale or other action taken by Lenders or of any
        fact, condition or thing incident thereto, and all prerequisites of such
        sale or
        other action shall be presumed conclusively to have been performed or to
        have
        occurred.

      


      (d)           
        Notwithstanding a foreclosure sale, transfer, assignment or other disposition
        of
        or upon any of the Collateral hereunder or exercise of any other remedy by
        Lenders in connection with an Event of Default, Debtor shall thereby not
        be
        subrogated to any of Lenders’ rights against the Collateral or any other
        security for the Obligations, nor shall Debtor be deemed to be the owner
        of any
        interest in any of the Obligations, nor shall Debtor exercise any rights
        or
        remedies with respect to the Collateral or any other security for the
        Obligations or any of them until all Obligations have been paid to Lenders
        and
        fully performed and discharged.

      


      (e)           
        Debtor waives demand, notice, protest, and all demands and notices of any
        action
        taken by Lenders under this Assignment except as is specifically elsewhere
        provided herein or in the Loan Documents and except as to notices which are
        required (and which may not be waived under the provisions of the Texas UCC),
        and any indulgence by Lenders, substitution for, exchange of, or release
        of the
        Collateral is hereby assented to and consented to.

      


      (f)           
        Lenders shall not be responsible in any way for any depreciation or diminution
        in the value or price of the Collateral, nor shall Lenders have any duty
        or
        responsibility whatsoever to enforce collection of the Collateral by legal
        proceedings or otherwise, the sole duty of Lenders being to receive collections,
        remittances and payments on the Collateral if and when tendered to Lenders,
        and
        at Lenders’ option to apply the amount or amounts so received, after deduction
        of any collection costs incurred, as payment upon the Obligations of Lenders’
selection and designation.

      


      7.           
        Indemnity.  THE
        INDEMNITY PROVISIONS CONTAINED IN THE LOAN AGREEMENT SHALL GOVERN THIS
        ASSIGNMENT. The indemnification provided for in this Section shall
        survive the termination of this Assignment and shall extend and continue
        to
        benefit each individual or entity who is or has at any time been an Indemnitee
        (as that term is defined in the Loan Agreement).

      


      8.           
        General.  Debtor
        and Lenders agree as follows:

      


      (a)           
        This Assignment and the security interests granted and created by this
        Assignment shall not be affected by, affect, or impair any other security
        or
        liens now or hereafter taken for or securing the Obligations or any part
        thereof, and no security hereafter taken for the Obligations or any part
        thereof
        shall in any manner be affected by, affect, or impair the security interests
        granted and created by this Assignment. Any extensions may be made of the
        Notes
        or any other Obligations or any part thereof without affecting the priority
        of
        the security interest created by this Assignment or its validity with reference
        to any third party. Debtor agrees that all such present and future security
        shall be cumulative security and that Lenders may enforce its rights against
        any
        such security, as Lenders may elect, without waiving the other. The holder
        of
        the Indebtedness shall not be limited by any election of remedies if he chooses
        to foreclose this security interest created by this Assignment by
        suit.

      


      (b)           
        Termination.  It
        is contemplated by the parties hereto that from time to time there may be
        no
        outstanding indebtedness under the Notes, but notwithstanding such occurrences,
        this Assignment shall remain valid and shall be in full force and effect
        as to
        subsequent or previous outstanding Obligations.  Upon (i) the
        satisfaction in full of the Notes and all other Obligations, (ii) the
        termination or expiration of any commitment of Lenders to extend credit to
        Debtor, (iii) written request for the termination hereof delivered by Debtor
        to
        Lenders, and (iv) written release or termination delivered by Lenders to
        Debtor,
        this Assignment and the security interests created hereby shall
        terminate.  Upon termination of this Assignment and Debtor’s written
        request, Lenders will, at Debtor’s sole cost and expense, return to Debtor such
        of the Collateral as shall not have been sold or otherwise disposed of or
        applied pursuant to the terms hereof and execute and deliver to Debtor such
        documents as Debtor shall reasonably request to evidence such
        termination.

      


      (c)           
        Lenders are not, by the entering into this Assignment or accepting the
        assignment of and security interest in the Collateral and Proceeds, assuming
        or
        agreeing to assume any obligation or liabilities on the part of Debtor under
        the
        Escrow Agreement, nor shall any subsequent foreclosure on the part of Lenders
        of
        the security interest created hereby constitute, or be construed to be, an
        assumption by Lenders of any obligation or liabilities on the part of Debtor
        under the Escrow Agreement, whether now existing or hereafter
        arising.

      


      (e)           
        Lenders’ remedies hereunder are cumulative, and the exercise of any one or more
        of the remedies provided for herein shall not be construed as a waiver of
        any of
        Lenders=
        other remedies.

      


      (f)           
        No indulgence by Lenders, or waiver of compliance with any provision hereof,
        shall be construed as a waiver of Lenders’ right to subsequently require strict
        performance hereof by Debtor.

      


      (i)           
        THIS ASSIGNMENT HAS BEEN MADE IN, AND THE SECURITY INTEREST GRANTED HEREBY
        IS
        GRANTED IN, AND BOTH SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF TEXAS
        IN ALL
        RESPECTS, INCLUDING WITHOUT LIMITATION, MATTERS OF CONSTRUCTION, VALIDITY,
        ENFORCEMENT AND PERFORMANCE. This Assignment may not be modified, altered
        or
        amended except in writing duly signed by Lenders and by Debtor. Except as
        the
        context may otherwise require, any term used herein and defined in the Texas
        UCC
        shall have the meaning given therein. If any provision of this Assignment
        is
        rendered or declared illegal or unenforceable by reason of any existing or
        subsequently enacted statute, rule or regulation, or by order of or judgment
        of
        a court, any and all other terms and provisions of this Assignment shall
        remain
        in full force and effect as stated and set forth herein.

      


      (j)           
        All notices, demands, requests and other communications required or permitted
        hereunder shall be given in accordance with the applicable provisions of
        the
        Loan Agreement.

      


      (k)           
        This Assignment may be executed in any number of counterparts as may be
        convenient or necessary, and it shall not be necessary that the signatures
        of
        all parties hereto or thereto be contained on any one counterpart hereof
        or
        thereof. Additionally, (a) the signature pages taken from separate individually
        executed counterparts of this Assignment may be combined to form multiple
        fully
        executed counterparts and (b) a facsimile transmission shall be deemed to
        be an
        original signature. All executed counterparts of this Assignment shall be
        deemed
        to be originals, but all such counterparts taken together or collectively,
        as
        the case may be, shall constitute one and the same agreement.

      


      (l)           
        This Assignment constitutes the entire agreement and understanding between
        the
        parties and supersedes all prior agreements and understandings, if any, between
        them concerning the subject matter hereof, and there are no covenants,
        agreements, promises, terms, provisions, conditions, undertakings or
        understandings, either oral or written, between them concerning the subject
        matter of this Assignment, except those which are expressly set forth in
        this
        Assignment.

      


      (m)           
        This Assignment is one of the Loan Documents, as that term is defined in
        the
        Loan Agreement.

      


      


      


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            983328v2

          

          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      COUNTERPART
        SIGNATURE PAGE FOR ATTACHMENT TO COLLATERAL ASSIGNMENT OF ESCROW AGREEMENT
        AND
        ESCROW FUNDS AMONG DENLY ACI
        PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND DENNIS C. VON WAADEN,
        AND SALLY A.
        VON WAADEN, AS CO-TRUSTEES OFTHE VON WAADEN 2004
        REVOCABLE
        TRUST (collectively, THE "LENDERS"),
        AND AMERICA WEST RESOURCES,
        INC.,
        A NEVADA CORPORATION (THE "DEBTOR").

       

      


      EXECUTED
        as of the date first stated above.

      


      Debtor:

      


      America
        West Resources,
        Inc.,

      a
        Nevada corporation

      


      


      By:                                                                
        

      Dan
        R. Baker,

      Chief
        Executive
        Officer


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      COUNTERPART
        SIGNATURE PAGE FOR ATTACHMENT TO COLLATERAL ASSIGNMENT OF ESCROW AGREEMENT
        AND
        ESCROW FUNDS AMONG DENLY ACI
        PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND DENNIS C. VON WAADEN,
        AND SALLY A.
        VON WAADEN, AS CO-TRUSTEES OFTHE VON WAADEN 2004
        REVOCABLE
        TRUST (collectively, THE "LENDERS"),
        AND AMERICA WEST RESOURCES,
        INC.,
        A NEVADA CORPORATION (THE "DEBTOR").

       

      


      EXECUTED
        as of the date first stated above.

      


      


      Lenders:

      


      Denly
        ACI Partners, Ltd.,

      a
        Texas limited
        partnership

      


      By:           
        Denly ACI Mgt., LLC,

      a
        Texas limited liability
        company,

      its
        sole General Partner

      


      By:

      Dennis
        C. von Waaden,
        Manager

      


      By:

      Sally
        A. von Waaden,
        Manager

      


      


      


      Dennis
        C. von Waaden, Co-Trustee of
        the

      von
        Waaden 2004 Revocable
        Trust

      


      


      Sally
        A. von Waaden, Co-Trustee of
        the

      von
        Waaden 2004 Revocable
        Trust