EXHIBIT 4.11
AURAMET
AURAMET TRADING, LLC
0 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: jsullivan @xxxxxxx.xxx
COPPER, SILVER AND GOLD
PURCHASE AGREEMENT
This COPPER, SILVER AND GOLD PURCHASE AGREEMENT (the "Agreement") dated as
of October 8, 2004 between XXXXXX RESOURCES INC., a corporation organized and
existing under the laws of Quebec, having an address at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxx, Xxxxxx X0X 0X0 (hereinafter referred to as "Xxxxxx"),
XXXXXXXX RESOURCES, INC., a corporation organized and existing under the laws of
Quebec, having an address at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx,
Xxxxxx X0X 0X0 (hereinafter referred to as "Xxxxxxxx") and AURAMET TRADING, LLC,
a Delaware limited liability company, having an address at 0 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxx, Xxx Xxxxxx, 00000 (hereinafter referred to as "Auramet").
WHEREAS, Xxxxxx owns and operates the Xxx Xxxx Mine in Quebec (the "Mine"),
which produces a copper, silver and gold concentrate (the "Concentrates");
WHEREAS, Xxxxxxxx is the 100% owner of Xxxxxx;
WHEREAS, Xxxxxx previously entered into a Refining Contract dated as of May
9, 2002 (the "Noranda Agreement"), with Noranda, Inc. (a company organized and
existing under the laws of Ontario), 000 Xxx Xxxxxx, Xxxxx 0000, XXX Xxxxx,
Xxxxxxx, XX, Xxxxxx M5j 2T3 (hereinafter referred to as "Noranda"), a copy of
which is attached hereto as Exhibit A and incorporated herein by reference;
WHEREAS, pursuant to the terms of the Noranda Agreement, Xxxxxx has agreed to
sell and Noranda has agreed to receive, refine and purchase the Concentrates
upon the terms and conditions set forth in the Noranda Agreement.
WHEREAS, Xxxxxx desires to obtain payment for the copper, silver and gold
contained in the Concentrates as the Concentrates are produced and shipped and
has requested that Auramet purchase such Concentrates pending their further sale
to Noranda under the Noranda Agreement, and Auramet is willing to so purchase
such Concentrates, up to the sum of Eight Million United States Dollars
($8,000,000) minus any sums that have been advanced under that certain Copper,
Silver and Gold Purchase Agreement (the "CCR Agreement") by and between Auramet
and Copper Rand Corporation Inc. of even date herwith the ("Facility Limit") on
the terms and conditions set forth herein;
NOW THEREFORE, Xxxxxx and Auramet, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby agree as
follows:
Definitions:
"Assignment Agreement" shall mean that certain Assignment Agreement from
Xxxxxx to Auramet dated as of October 8, 2004, acknowledged and agreed to by
Noranda, relating to the Noranda Agreement, substantially in the form of Exhibit
B hereto.
"Dollars" and "U.S. $" means the lawful currency of the United States of
America.
"Financing Period" shall mean the period between the Value Date (as defined
in Section 2(a)) and the Outturn Date.
"Interest" shall mean LIBOR for the relevant Financing Period plus a spread
of 2.50% per annum.
"LIBOR" shall mean the London Interbank Offer Rate for a duration closest
to the duration of the relevant Financing Period, as agreed between Auramet and
Xxxxxx.
"Outturn Date" shall mean the date on which Noranda credits Auramet's
segregated metal account with the refined metal purchased by Auramet hereunder.
All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Noranda Agreement.
1. PURCHASE FACILITY
Auramet shall make available to Xxxxxx a Purchase Facility (the "Purchase
Facility") of up to U.S. $8,000,000 (Eight Million Dollars) against delivery of
Concentrates under this Agreement, provided that all conditions precedent set
forth in Section 6 of this Agreement have been satisfied. Disbursement of the
Purchase Facility (each such disbursement being referred to herein as a
"Payment") shall be effected in installments corresponding to the shipment of
the Concentrates, each Payment to be made within two (2) Business Days after
satisfaction of such conditions precedent applicable to each such shipment as
set forth in Section 12.
2. PAYMENT CALCULATION
The amount of each Payment with respect to Concentrates shipped shall be
calculated in accordance with the following procedure:
On any day when Xxxxxx requests a Payment (the "Trade Date"), Auramet and
Xxxxxx shall confirm the following:
a. the date on which the trade shall be effective and the Payment shall
be made (the "Value Date");
b. the Outturn Dates applicable to the copper, silver and gold for which
the Payment is to be made;
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c. the mid-point of the applicable Quotational Periods under the Noranda
Agreement;
d. the applicable market based copper, gold or silver price; and
e. the applicable Interest.
Xxxxxx shall submit to Auramet a Payment Request with respect to each
Payment in substantially the form of Exhibit C attached hereto (the "Payment
Request").
(i) The Payment Request shall take items a-d above, as confirmed
pursuant to the foregoing, to produce a forward price per pound of
copper, and per ounce of gold and silver said to be contained in the
Concentrates as to which Payment is sought (the "Forward Price");
(ii) The Forward Price shall be applied to the net payable (after
deductions taken by Noranda pursuant to and in accordance with the
Noranda Agreement) quantity of copper, gold and silver said to be
contained in the Concentrates as to which Payment is sought, and the
estimated treatment charges, refining charges and penalties to be
imposed by Noranda and the Base Copper Price Participation
(collectively, the "Noranda Charges") shall be deducted therefrom,
thereby producing a net price for such Concentrates (the "Net Price");
(iii) The Net Price for the copper and silver shall be multiplied
by 90%, and the gold by 100%, up to the total Facility Limit of this
Purchase Facility (the "Payment Ratio"); and
(iv) The estimated Interest applicable to the Financing Period
for such Payment shall be deducted from the result of the foregoing to
produce the amount of the disbursement to be made to Xxxxxx.
Notwithstanding the Quotational Periods set forth in the Noranda Agreement,
for purposes of this Agreement pricing shall be determined as set forth herein.
Xxxxxx and Auramet agree that (i) with respect to all Concentrates priced by
Auramet pursuant to this Payment Facility, Auramet shall bear all market price
fluctuation risk associated with such Concentrates; (ii) with respect to all
Concentrates unpriced pursuant to this Payment Facility, Xxxxxx shall bear all
market price fluctuation risk associated with such Concentrates; and (iii)
Xxxxxx shall be under no obligation to request pricing and corresponding payment
advances hereunder.
3. SETTLEMENT; SECURITY
Auramet will provide Seller with a Monthly Outturn Report which shall
include the details of all pricings, outturns, payments, and adjustments. This
shall be an perpetual electronic file which will be used by Seller and Buyer to
monitor movements in the over/under account.
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Notwithstanding the foregoing, (i) on each Outturn Date, Xxxxxx and Auramet
shall adjust the amount then due and owing to Auramet to reflect the correct
Interest based on the actual Reimbursement Date; and (ii) on the date of each
provisional final and final payment made by Noranda, Auramet and Xxxxxx shall
adjust their corresponding trades with respect to the subject Concentrates to
establish the amount due to or owed by Auramet based upon the final pricing of
such Concentrates under the Noranda Agreement, and the parties shall promptly
settle such amount. An example of such settlement is attached hereto as Exhibit
D.
Notwithstanding the foregoing, Xxxxxx and Auramet agree that no payment
shall be made by Auramet hereunder after December 31, 2005 (the "Termination
Date") and that all amounts that remain outstanding hereunder on April 15, 2006,
shall be immediately reimbursed by Xxxxxx to Auramet (the "Final Repayment
Date"). Auramet may on thirty (30) calendar days prior notice to Xxxxxx, extend
the Termination Date and Final Repayment Date for two (2) successive periods of
one year.
In order to guarantee and secure compliance with each one of the
obligations of Xxxxxx contained herein, Xxxxxx hereby agrees as follows:
x. Xxxxxx hereby agrees not to create or execute contracts with the
obligation to sell, impose liens, alienate, promise to sell, pledge,
grant an option, celebrate acts or execute contracts of any nature
related to the Concentrates produced and/or purchased by Xxxxxx and
covered by this Agreement;
b. The contracts entered into with respect to the Forward Prices
determined in Section 2 above shall be subject to the terms set forth
in that certain Trading Agreement, dated as of October 8, 2004 among
Xxxxxx and Auramet (the "Trading Agreement"); and
c. In addition to, and not in derogation of, the Trading Agreement,
Xxxxxx hereby pledges, assigns and grants a security interest in, over
and to all futures, forwards, contracts, options, puts, calls and
currency trades of any kind entered into by and between Xxxxxx and
Auramet.
4. SHORTFALLS
Notwithstanding any of the foregoing, in the event, for any reason, that
there is a shortfall at Outturn, such that the Buyer's Metal Account is not
credited with the Estimated Quantity, or there is less metal for sale to Noranda
than Buyer purchased from Seller, Seller shall immediately, through pool
transfer, market transaction, or other manner acceptable to Buyer, transfer to
Buyer's Metal Account the subject PM shortfall.
In the event that there is a surplus at Outturn, such that Buyer's Metal
Account is credited with more than the Estimated Quantity, then Seller may elect
to immediately sell the surplus amount at Buyer's then current spot market
price, or maintain the surplus balance of ounces in its account with Buyer until
sold on a date specified by Seller in the future.
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For practical purposes, with respect to the gold purchased hereunder,
Seller and Buyer may mutually agree to keep an ongoing over/under account which
is to be settled whenever the over/under market value of gold exceeds $100,000
U.S Dollars.
5. TAXES
All sums payable by Xxxxxx hereunder, whether reimbursement of the
Payments, interest, commission or otherwise, shall be paid in full, without
set-off, deduction or counterclaim and free and clear of and without any
deduction of or withholding for or on account of any taxes or any restrictions
or conditions of any nature, unless Xxxxxx is required by the law to make such
deduction or withholding. If Xxxxxx is required by law to make any such
deduction or withholding, then Xxxxxx shall ensure that such deduction or
withholding will not exceed the minimum legal liability therefore and shall
simultaneously pay to Auramet such additional amount as will result in the
receipt by Auramet of a net amount equal to the full amount which would
otherwise have been receivable hereunder had no such deduction or withholding
been required. If Xxxxxx shall make such deduction or withholding, Xxxxxx shall
within 30 calendar days thereafter forward to Auramet an official receipt or
other official documentation evidencing the payment of the deduction or
withholding.
6. CONDITIONS PRECEDENT
Prior to the disbursement of the first Payment, Xxxxxx shall submit to
Auramet the following documents:
a. This Agreement duly signed and executed.
b. The Noranda Agreement duly signed and executed.
c. The Assignment Agreement, duly signed and executed.
d. The Guaranty of Xxxxxxxx, guaranteeing all obligations of Xxxxxx to
Auramet substantially in the form of Exhibit E hereto (the
"Guaranty").
e. A Certificate from the Corporate Secretary of Xxxxxx, certifying (i)
Xxxxxx'x corporate charter, (ii) a Board of Directors resolution
authorizing the transactions contemplated hereby, and (iii) the
authority of Xxxxxx'x authorized representatives to sign and commit on
behalf of Xxxxxx.
f. A Certificate of Insurance from Noranda with respect to the
Concentrates at all times while this Agreement is in effect
g. A copy of the Trading Agreement, duly signed and executed.
Prior to the disbursement of the first and each subsequent Payment, Xxxxxx
shall deliver to Auramet the following documents:
h. The Assay Reports issued based upon samples taken at Xxxxxx for the
subject Concentrates, substantially in the form attached hereto as
Exhibit F;
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i. The Recu de Material a Facon/Receipt of Custom Material and the
Rapport De La Preparation Des Concentres/Concentrate Preparation
Report, issued by Noranda and countersigned by an independent
representative retained for that purpose, in substantially in the form
of Exhibit G hereto
j. A duly executed Payment Request.
k. Such other documentation as Auramet shall reasonably require (none
contemplated at this time).
In addition, Xxxxxx shall request the assays prepared on Noranda's behalf as
soon as practical following the taking of samples with respect to the
Concentrates at Noranda and shall direct that copies of the same be sent to
Auramet simultaneously with their delivery to Xxxxxx.. Auramet may, at any time,
request that independent assays be performed and may nominate any such assayer
to perform such assays, the cost of any such assays to be borne by Xxxxxx if
such assays are ordered based on some reasonable concern raised by Auramet, and
in the absence of such concern, such costs shall be allocated as shall be agreed
by the parties at the time. In addition to the foregoing documentary
requirements, it shall be a condition precedent to any Payment hereunder that
there shall have occurred no Event of Default, or condition which with notice or
the passage of time or both would become an Event of Default and all
representations and warranties set forth herein shall be true and correct.
7. REPRESENTATIONS AND WARRANTIES
Xxxxxx represents and warrants as follows:
x. Xxxxxx has full power, authority and legal right to execute and
deliver this Agreement, the Trading Agreement, the Assignment
Agreement and the Noranda Agreement and to perform its obligations
hereunder and thereunder, and to receive the Payment, and this
Agreement, the Trading Agreement, the Assignment Agreement and the
Noranda Agreement constitute Xxxxxx'x valid and binding obligations
enforceable against Xxxxxx in accordance with their terms. Xxxxxx has
obtained all corporate approvals and authorizations necessary in
connection with its execution, delivery and performance of this
Agreement, the Trading Agreement, the Assignment Agreement and the
Noranda Agreement;
x. Xxxxxx has obtained all necessary governmental, local authority or
agency approvals, quotas, licenses, permits, and authorizations to
fully enable it to enter into this Agreement, the Trading Agreement,
the Assignment Agreement and the Noranda Agreement and to make
repayment in cash dollars if necessary under the terms and conditions
of this Agreement;
x. Xxxxxx'x execution and delivery of this Agreement, the Trading
Agreement, the Assignment Agreement and the Noranda Agreement and
Xxxxxx'x performance of its obligations hereunder and thereunder, do
not and will not violate Xxxxxx'x governing corporate instruments nor
any indenture, agreement, loan agreement, note, restriction,
obligation or liability by which Xxxxxx or Xxxxxxxx is bound or to
which it or any of its assets are subject;
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d. There are no pending or threatened actions or proceedings before any
court or administrative agency, which may materially and adversely
affect Xxxxxx'x financial ability to fulfill its obligations under
this Agreement, the Trading Agreement, the Assignment Agreement and
the Noranda Agreement;
x. Xxxxxx is a corporate body duly constituted and validity existing as
an independent legal entity under the laws of Quebec and is fully
qualified and empowered to own its assets and carry on its operations
and activities as now conducted;
f. Neither Xxxxxx nor its assets enjoys, under the laws of Quebec or any
other legal system or jurisdiction, any right of immunity from suit,
judgment set-off, execution on a judgment, attachment or other legal
process in respect of any of Xxxxxx'x obligations under this
Agreement, the Trading Agreement, the Assignment Agreement and Noranda
Agreement;
g. All of the obligations of Xxxxxx under this Agreement, the Trading
Agreement, the Assignment Agreement and the Noranda Agreement are
direct, unconditional and general obligations of Xxxxxx and rank and
will rank at least pari passu in all respect with other present of
future obligations and liabilities (including contingent obligations
and liabilities) of Xxxxxx;
x. Xxxxxx'x execution and delivery of this Agreement, the Trading
Agreement, the Assignment Agreement and the Noranda Agreement and
Xxxxxx'x performance obligations hereunder and thereunder do not and
will not contravene any provision of any law, decree, regulation,
rule, directive or similar enactment or any structural adjustment
program by which Xxxxxx or any of its assets is bound or cause any
limit on any of the powers of Xxxxxx (whether imposed by law, decree,
regulation, agreement or otherwise) or on the right or ability of its
officers to exercise such powers or any other limits affecting Meston
to exceeded;
i. No Event of Default as specified in Section 9 below has occurred and
is continuing;
j. No information, exhibit documents or report furnished in writing by
Xxxxxx or Auramet or provided by Auramet and approved by Xxxxxx in
connection with negotiation of this Agreement, the Trading Agreement,
the Assignment Agreement or the Noranda Agreement contained any
mis-statement of fact as at the date of such exhibit, document or
report or as at the date when such information was given, or omitted
to state a fact as at such date which in any such case would be of
material interest to a person deciding whether to enter into or
otherwise participate in this Agreement, the Trading Agreement, the
Assignment Agreement or the Noranda Agreement;
k. There are no encumbrances of any nature affecting the Concentrates to
be delivered hereunder and under the Noranda Agreement;
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l. All sums owing by Xxxxxx under the Noranda Agreement have been paid in
full in accordance with the terms of the Noranda Agreement; the
Noranda Agreement is in full force and effect and there are no
disputes or claims thereunder by either side, nor has any suspension
of performance or force majeure been declared by either party thereto;
x. Xxxxxx has no subsidiaries, other than Xxxxxx Investments, Inc., a
Cayman Islands corporation.
The representations and warranties contained in this Section 7 are given by
Xxxxxx as at the date hereof and throughout the period during which this
Agreement is in force, and are specifically made and reaffirmed without any
additional act or document by issuance of a Payment Request by Xxxxxx and by the
acceptance by Xxxxxx of each Payment thereunder.
8. COVENANTS AND UNDERTAKINGS
Xxxxxx covenants and undertakes that:
a. It will duly and promptly perform and observe all of its obligations
under this Agreement, the Trading Agreement, the Assignment Agreement
and the Noranda Agreement, including, but without limitation, all its
obligations in relation to the delivery of Concentrates hereunder and
under the Noranda Agreement.
b. It shall promptly notify Auramet of the occurrence of any event that:
(i) constitutes, or that after notice, lapse of time or both
would constitute, an event of default as stipulated herein, or
(ii) would reasonably be expected to have a material adverse
impact on Xxxxxx'x financial position or the result of its operation
or its general business operations.
c. It will furnish to Auramet:
(i) as soon as practicably available, all assays issued with
respect to the Concentrates;
(ii) as soon as practicably available, all Receiving Reports in
form and content acceptable to Auramet, for all Concentrates;
(iii) prompt notification of the shipment of the Concentrates;
and
d. Unless otherwise agreed in writing by Xxxxxx and Auramet, it will not
sell or deliver the Concentrates to any party other than Auramet for
further sale and delivery to Noranda; nor will it create or permit to
subsist any encumbrance over or affecting the Concentrates to be
delivered pursuant hereto or to the Noranda Agreement or create or
permit to subsist any encumbrance over or affecting the whole or any
of its undertaking, revenue, charges or other assets, present or
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future, which encumbrance may affect the obligations of Xxxxxx under
this Agreement, the Assignment Agreement or the Noranda Agreement, or
the ability of Auramet to enforce its rights hereunder or thereunder,
or pursuant to any court order or judgment in respect hereof, against
Xxxxxx.
x. Xxxxxx will at all times obtain or effect and maintain in effect and
comply with all the terms and conditions of all legislative,
governmental and other authorizations, approvals, licenses, permits,
registrations and consents necessary or appropriate for execution or
delivery of this Agreement, the Assignment Agreement and the Noranda
Agreement, or the utilization of the Payment Facility, or to render
this Agreement, the Assignment Agreement and the Noranda Agreement
legal, valid, binding and admissible in evidence.
x. Xxxxxx will comply with the requirements of all laws, decrees,
regulations, orders and rules of any administrative or governmental
authority or organization applicable to its activities and operations
and will do all things necessary to preserve and keep in full force
and effect all material franchises, concessions, licenses or permits
to which it is presently entitled.
x. Xxxxxx will not alter, amend, modify, rescind or waive any provision
of the Noranda Agreement or the Assignment Agreement without Auramet's
prior written consent.
9. EVENTS OF DEFAULT
An Event of Default will occur if:
a. Any metal is not outturned on the Outturn Date applicable thereto or
Xxxxxx or Xxxxxxxx fails to pay any other sum payable by it hereunder,
or deliver any amount of metal to be delivered hereunder, or under the
Trading Agreement, the Noranda Agreement, the Assignment Agreement or
the Guaranty or under any agreement with Auramet at the time, in the
currency and otherwise in the manner specified herein or therein;
b. Any formal action is taken to wind up, liquidate, place into
administration or dissolve Xxxxxx or Xxxxxxxx whether voluntarily or
by any third party;
c. Any representation, warranty, covenant or undertaking made by Xxxxxx
or Xxxxxxxx in this Agreement, the CCR Agreement, the Trading
Agreement, the Noranda Agreement, the Assignment Agreement or the
Guaranty shall prove to be at any time incorrect or misleading in any
material aspect;
x. Xxxxxx or Xxxxxxxx defaults in the performance of any term covenant or
obligation contained in this Agreement, the Trading Agreement, the
Noranda Agreement, the Assignment Agreement or the Guaranty or under
any other agreement with Auramet, including but note limited to the
Trading Agreement, and fails to remedy such default, if capable of
remedy in the opinion of Auramet, within 30 calendar days after
receipt of notice by Auramet.
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x. Xxxxxx or Xxxxxxxx becomes insolvent, bankrupt or ceases paying its
debts as they become due, or a trustee, receiver or liquidator is
appointed or bankruptcy or similar proceedings are instituted against
Xxxxxx or Xxxxxxxx under the laws of any jurisdiction;
f. An Event of Force Majeure as defined in the Noranda Agreement occurs
and such event lasts for longer than 60 days;
g. It becomes unlawful or impossible for Xxxxxx or Xxxxxxxx to perform
any of its remaining obligations in terms of the Noranda Agreement,
this Agreement, the Trading Agreement, the Assignment Agreement or the
Guaranty;
x. Xxxxxx or Xxxxxxxx suspends payment of its debts or proposes to or
enters into any composition or arrangement or the benefit of creditor
(or any of them) or begins negotiations or takes any steps with a view
to any steps with a view to any readjustment, rescheduling or deferral
of Xxxxxx'x or Xxxxxxxx'x indebtedness (or a material part thereof);
i. A deterioration occurs in the financial condition of Xxxxxx and
Xxxxxxxx, taken as a whole, which in the reasonable opinion of Auramet
is likely to have a material adverse effect on Xxxxxx to perform its
obligations under this Agreement and/or the Noranda Agreement or on
Xxxxxxxx and the Guaranty;
j. There is a change of ownership of Xxxxxx during the term of this
Agreement, for which Xxxxxx or Xxxxxxxx has not obtained Auramet's
prior written consent, which consent shall not be unreasonably
withheld;
k. Any order or declaration is made or judgment given by any court or
authority the effect of which is to enjoin or restrain the performance
or observance by Xxxxxx of the terms of this Agreement, the Noranda
Agreement or the Assignment Agreement or in any manner restrict the
right and power of Xxxxxx or Xxxxxxxx to enter into, exercise its
rights under and perform and observe the terms of this Agreement or
the Noranda Agreement or the Assignment Agreement or the Guaranty or
affect the legality, validity, enforceability or binding nature
thereof;
l. It becomes or proves to be unlawful or impossible for Xxxxxx or
Xxxxxxxx duly and promptly to perform or observe any of its
obligations or undertakings in this Agreement or the Noranda Agreement
or the Assignment Agreement or the Guaranty or for any other reason
whatsoever this Agreement or the Noranda Agreement or the Assignment
Agreement or the Guaranty ceases to be in full force or effect; or
m. if Xxxxxx and/or Xxxxxxxx suffers a material adverse change in its
financial and/or economic condition or status, which change may have a
material adverse effect on the enforceability of any terms of this
Agreement, the Trading Agreement, the Assignment Agreement, or the
Guaranty or the ability of Xxxxxx and/or Xxxxxxxx to fulfill their
obligations hereunder or thereunder as reasonably and fairly
determined by Auramet or its financial advisors.
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Upon the occurrence of any of the Events of Default described in this
Section 9, Auramet shall have the following rights:
a. To terminate the performance of any or all of its obligations under
this Agreement to Xxxxxx and Xxxxxxxx;
b. To demand to receive immediate payment of all amounts outstanding
hereunder;
c. To demand payment from Xxxxxx of all recoverable losses and other
damages including reasonable legal fees and expenses incurred in the
exercise of the foregoing and any other remedies, but not in
duplication of Section 12;
d. To set-off against any and all accounts, credits or balances
maintained by them when the same shall be due and payable, including
any balances under the Noranda Agreement, whether at maturity upon
acceleration or otherwise;
e.
f. To further exercise any other rights, powers, privileges and remedies
available to it under this Agreement at law or in equity, any and all
of which may be exercised by Auramet at any time and from time to
time, whether or not Auramet shall have instituted any proceedings or
other action for the enforcement of its rights hereunder or any of the
documents in connection herewith; and/or
g. To claim against Xxxxxxxx as provided in the Guarantee.
No waiver by a party of any breach of the Agreement by the other party
shall be considered as a waiver of any subsequent breach of the same or any
provision of this Agreement.
10. NOTICES
Notices hereunder shall be deemed to have been given when sent by cable,
telex or telefax in each case addressed to any party as follows:
Auramet Trading, LLC To the address set forth in the preamble hereto with a
copy to:
Auramet Trading, LLC
Fax: (000) 000-0000 and via e-mail to
xxxxxxxxx@xxxxxxx.xxx
Xxxxxx Resources, inc. At the address set forth in the preamble hereto with a
copy to:
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Xxxxxxxx Resources, Inc.
Fax: (000) 000-0000 and via e-mail to
xxxxx@xxxxxxxxxxxxxxxxx.xxx
11. COST; INDEMNIFICATION
All and any costs (including, but without limitation, legal fees and
expenses and any value added tax), costs of collection, court fees, assayer
fees, travel expenses, stamp and other duties and taxes incidental to this
Agreement (other than taxes on Auramet's income generally), whether payable as a
result of any default or documentation, certificate, authorizations, permits,
quotas, permissions, registrations incurred by Auramet related to this Payment
Facility shall be paid by Xxxxxx. Xxxxxx shall indemnify and hold harmless
Auramet from and against all claims, demands, costs, expenses (including
reasonable attorney's fees) as may be incurred by Auramet as well as from and
against all liabilities, and losses arising from or related to this Agreement,
the Payment Facility and the delivery, acceptance and shipment of the
Concentrates, including, without limitation, any environmental, maritime, tax,
local, regional, national, political or civil dispute, or otherwise.
12. OTHER CONDITIONS
a. Auramet shall not assign or dispose of any or all its interest in this
Agreement or the Noranda Agreement without the prior approval of
Xxxxxx, provided that Auramet may assign the same for financing
purposes. Xxxxxx shall not be entitled to assign or dispose of any or
all of its interest in this Agreement or the Noranda Agreement.
b. All payments by Xxxxxx shall be made in Dollars free and clear of any
deduction or withholding tax on account of any tax imposed, levied,
collected, withheld or assessed by Canada, Quebec or any other
country/government.
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13. JURISDICTION
Xxxxxx hereby appoints Xxxxx Xxxxxxx, Chief Executive Officer of Xxxxxxxx
to receive, for it and on its behalf service of process in any proceedings in
the United States. Xxxxxx and Xxxxxxxx hereby consent to the jurisdiction of all
state and local courts of the State of New York and of the United States of
America for the Southern District of New York or, at the option of Auramet, any
court in which Auramet decides to initiate legal or equitable proceedings
concerning the Guaranty, the finance documents or any other matters related
thereto in which the court has subject matter jurisdiction over the matter and
controversy; and to the extent permitted by law, Xxxxxx and Xxxxxxxx hereby
waive judicial service of the summons and complaint or other process of the
papers issued therein and agree that service may be made by registered or
certified mail addressed to Xxxxxx and to Xxxxxxxx at their respective notice
address set forth herein.
Accepted for and on behalf of:
XXXXXX RESOURCES INC.
By: /s/ X.X. XXXXXXX
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Name: X.X. XXXXXXX
Title: PRESIDENT
By:
---------------------------------
Name:
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Title:
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AURAMET TRADING, LLC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: COO
GUARANTOR:
XXXXXXXX RESOURCES, INC.
By: /s/ X.X. Xxxxxxx
---------------------------------
Name: X.X. XXXXXXX
Title: PRES. & CEO
Date:
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