Exhibit 10.27
AGREEMENT FOR PURCHASE AND SALE OF WASTE ROCK
FROM THE XXXXXXX CAMP MINE
THIS AGREEMENT FOR PURCHASE AND SALE is made and entered into this 25th day
of February, 2004, by and between Nord Resources Corporation, a Delaware
corporation ("Seller"), whose address is 3048 N. Seven Dash Road, P0 Box 384,
Dragoon, Arizona, 85609 and JC Rock, LLC ("Purchaser"), whose address is 0000 X.
Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx, 00000.
WHEREAS, the Seller owns the Xxxxxxx Camp Mine which consists of a variety
of unpatented lode claims, patented lode claims and patented fee simple lands in
the Xxxxxxx Camp Mining District, Cochise County, Arizona, approximately 60
miles east of Tucson (the "Property").
WHEREAS, Seller wishes to sell, and Purchaser wishes to buy, certain waste
rock material at the Property ("Waste Rock"). For the purposes of this
Agreement, Waste Rock is defined as rock materials located on the Property not
containing copper mineralization in economic quantities and in a mined state.
The Waste Rock may be located in various stockpiles in several areas on the
Property.
NOW, THEREFORE, in consideration of the recitals and mutual covenants
herein contained, and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto confirm and
agree as follows:
1. Purchaser shall have the right to remove Waste Rock from the Property.
Purchaser shall remove Waste Rock only from the waste piles at the Property that
are designated by the Seller.
2. The term of this Agreement shall be for twelve (12) months, beginning
March 1, 2004, and ending on February 28, 2005
3. Purchaser shall purchase a minimum of 7,000 tons of Waste Rock each
month.
4. a. The purchase price for the Waste Rock shall be TWO AND 00/100 DOLLARS
($2.00) per ton. Purchaser shall pay for Waste Rock in arrears and on the
fifteenth (15th) business day of each month (the "Payment Date"). Purchaser
shall pay to Seller interest at the rate of one and one-half percent (1.5%) per
month on any payment not received by Seller after the first business day of the
month following the Payment Date. On each Payment Date, Purchaser shall provide
to Seller written receipts, weight tickets and other documentation as requested
by Seller for all Waste Rock removed from the Property the previous month. On
the fifth (5th) business day of each month, Purchaser shall provide Seller with
a statement of the quantity of Waste Rock removed from the Property during the
previous month. Seller shall have the right upon seventy-two (72) hours notice
to review the books and records of the Purchaser regarding the Waste Rock
removed from the Property and/or to verify the information furnished by
Purchaser pursuant to this paragraph. When requested by Seller, Purchaser shall
deliver, in a timely manner and in writing, such further information as Seller
shall reasonably request relating to Purchaser's removal of Waste Rock.
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b. If Seller sells or otherwise disposes of the Property or if the Property
is otherwise conveyed to another party, the terms and conditions of this
Agreement shall inure and be binding upon Seller's respective heirs, successors,
and assigns.
5. All Waste Rock is sold AS-IS, WHERE-IS, without warranty, and without
any express or implied representations or promises of any kind. Purchaser
assumes all responsibility and cost for collecting, producing and hauling all
Waste Rock.
6. The Purchaser acknowledges that mining operations are conducted on the
Property and the Purchaser agrees to conduct all of its operations to minimize
interference with the mining operations of the Seller.
7. The Purchaser shall conduct all of its operations on the Property in a
good and workmanlike manner and accordance with accepted custom and practice. In
addition, the Purchaser shall conduct its operations in accordance with all
applicable laws, shall be responsible obtaining all environmental and other
permits necessary for the excavation and removal of the Waste Rock, and shall
perform all reclamation and rehabilitation required by such permits or by law.
Furthermore, the Purchaser shall give all necessary notices and shall comply and
ensure that all its subcontractors and suppliers comply with all applicable
federal, state, and local laws, ordinances, governmental rules and regulations
relative to its operations under this Agreement. The Purchaser shall be liable
for any fines or assessments levied against it by any federal, state, or local
governmental agency for violation of safety, health, environmental, or other
laws, rules or regulations by its employees, agents or subcontractors.
8. The Purchaser, at his own expense at all times, shall take all necessary
precautions to protect persons and property from damage, loss or injury
resulting from the Purchaser, his employees or other agents in the performance
of their activities. If any accident occurs, person is injured, or property
damaged resulting from their activities, the Purchaser shall immediately notify
the Seller thereof. In addition, the Purchaser shall adhere to the basic safety
policy of the Seller, and comply with all specific safety requirements,
promulgated by any governmental authority, including without limitation, the
requirements of the Mine Safety & Health Act of 1977. The Purchaser shall
indemnify and hold harmless the Seller from and against all liability, loss,
damage, cost, claims, awards, judgments, fines, expenses including litigation
expenses, reasonable attorneys' fees, claims or liabilities for harm to person
or properties, expenses incurred pursuant to or attendant to any hearing or
meeting and any other applicable cost which may be incurred by the Seller
resulting from the Purchaser's failure to fulfill the covenants set forth in
this paragraph.
9. Purchaser hereby agrees to indemnify and hold the Seller harmless from
any and all liability, claims, suits, damage loss, judgment or expense,
including attorneys' fees, which may be incurred by the Seller by reason of
Purchaser's performance of its activities. THIS AGREEMENT OF INDEMNITY EXPRESSLY
INDEMNIFIES THE SELLER AGAINST ALL LIABILITY, CLAIMS, SUIT, DAMAGE, LOSS,
JUDGMENT, OR EXPENSE, INCLUDING ATTORNEYS' FEES, WHICH THE SELLER MIGHT INCUR
BECAUSE OF THE SELLER'S NEGLIGENT FAILURE TO DISCOVER OR REMEDY A DANGEROUS
CONDITION CREATED BY THE PURCHASER.
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10. The Purchaser shall obtain and submit to the Seller before any work is
performed under this Agreement, certificates from the Purchaser's insurance
carriers. Such insurance shall be written by an insurance carrier licensed to
business in the state where the Property is located, meeting the requirements
stated below in form satisfactory to Seller, for each of the following types of
insurance in amounts herein specified:
a. Workers' Compensation and Occupation Diseases, including Employers
Liability subject to a limit of not less than FIVE HUNDRED THOUSAND AND NO/i 00
DOLLARS ($500,000).
b. Commercial general liability to cover the indemnity agreement, although
the existence of insurance shall not be construed as limiting of the Purchaser
under this contract. Limits of liability shall not be less than TWO MILLION AND
NO/i 00 DOLLARS ($2,000,000) combined single limits each occurrence. The
commercial general liability insurance shall not exclude injury to or
destruction of property arising out of or caused by work which blasting, or the
grading of land, excavation, borrowing, hauling, backfilling, tunneling,
drilling, pile driving, cofferdam or caisson work, or underpinning.
Commercial general liability insurance shall include the Seller as
additional insured and must provide Premises-operation, Elevator, Independent
Purchasers, Broad Form Property Damage, Blanket (Broad Form) Contractual
Liability, products and Completed Operations coverage's (which shall be
maintained in force a period of two years after completion of the project or for
such longer period of time as is described in the Contract Documents) and must
be endorsed as Primary, Non-Contributory to any insurance of the additional
insureds. Any "XCU" (explosion, collapse, or underground) or smaller exclusions
written in any policy must be deleted when applicable to operations performed by
the Purchaser. A waiver of subrogation in favor of the Seller shall also be
included.
c. Automobile liability for bodily injury and property damage claims
arising out of the ownership, maintenance or use of owned, hired and not-owned
vehicles in the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000).
d. UMBRELLA OR EXCESS LIABILITY INSURANCE in the amount of ONE MILLION AND
NO/l00 DOLLARS ($1,000,000.00) shall provide that if the underlying aggregate is
exhausted, the excess coverage shall drop down as primary insurance, and shall
provide for Notice of Modification or Cancellation.
The certificates shall contain provisions for thirty (30) days prior notice
of any important change in or cancellation of insurance to the insured and to
the certificate holder.
Purchaser's Insurance Certificate shall indicate the coverage is afforded
for the Indemnification Clause. The Certificate of insurance shall reflect that
the policies of insurance have been endorsed to include the Seller as an
additional insured as regards the Seller's liability in connection with the
performance of the contract, and construction orders. The Purchaser agrees to
furnish the Seller with the same evidence of insurance as described above for
each subcontractor employed by the Purchaser. Should the purchaser fail to
submit certificates
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required, the Seller may tack such steps as deemed necessary to provide proper
protection and charge all costs incurred to the Purchaser.
11. The occurrence of any of the following events or conditions shall
constitute and "Event of Default" under this Agreement:
a. Any failure to pay any amounts under this Agreement when the same shall
become due and payable and such failure continues beyond fifteen (15) days after
written notice thereof to Purchaser;
b. Any failure or neglect to perform or observe any of the covenants,
conditions or provisions of the Agreement (other than a failure or neglect
described in paragraph a., above) and such failure or neglect continues
unremedied for a period of thirty (30) days after written notice thereof to
Purchaser.
12. Upon the occurrence of any Event of Default and at any time while such
Event of Default is continuing, Seller may do one or more of the following:
a. Proceed to protect and enforce its rights and remedies under this
Agreement;
b. Avail itself of any other relief to which Seller may be legally or
equitably entitled, or
c. Terminate this Agreement.
13. All notices required or permitted to be given hereunder shall be in
writing and may be given in person or by United States mail, by delivery service
or by electronic transmission. Any notice directed to a party to this Agreement
shall become effective upon the earliest of the following: (I) actual receipt by
that party; (ii) delivery to the designated address of that party, addressed to
that party; of (iii) if given by certified or registered United States mail,
twenty-four (24) hours after deposit with the united States Postal Service,
postage prepaid, addressed to that party at its designated address. The
designated address of a party shall be the address of that party shown at the
beginning of this Agreement or such other address as that party, from time to
time, may specify by notice to the other parties.
14. This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs and successors, Purchaser
shall not assign its rights under this Agreement to any third party. Any
subsequent owner of the Property shall succeed to all rights of Seller
hereunder.
15. If any action is brought by either party with respect to its rights
under this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and court costs as determined by the court.
16. No waiver of any of the provisions of this Agreement shall constitute a
waiver of any other provision, whether or not similar, nor shall any waiver be a
continuing waiver. Except as expressly provided in this Agreement, no waiver
shall be binding unless executed in writing by the party making the waiver.
Either party may waive any provision of this Agreement intended
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for its benefit; provided, however, such waiver shall in no way excuse the other
party from the performance of any of its other obligations under this Agreement.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona.
18. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in this Agreement. All prior and
contemporaneous agreements, representations and understandings of the parties,
oral or written, are superseded by this Agreement. No modification or amendment
of this Agreement shall be binding unless in writing and executed by each of the
parties.
IN WITNESS WHEREOF, the parties hereto have entered into the Agreement
effective as of the date first above written.
NORD RESOURCES CORPORATION JC ROCK, LLC, an Arizona limited
liability company
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------- By: /s/ Xxxxx X. Xxxxxx
Name Xxxxx Xxxxxxxxx ------------------------------------
Title Asst Secretary Name Xxxxx X. Xxxxxx
Title Member
0000 Xxxxx Xxxxx Xxxx Xxxx
XX Xxx 000 6860 X. Xxxxxxx Highway
Dragoon, Arizona 85609 Xxxxxx, Xxxxxxx 00000
