EXHIBIT 10.2
(Settlement and Release Agreement)
2
SETTLEMENT AND RELEASE
THIS SETTLEMENT AND RELEASE AGREEMENT (hereinafter referred to as the
"Agreement") is made as of the 25th day of September, 2001, by and between
American Consolidated Mining Co. ("ACMC") and Xxxxxxx Mining Company
("Xxxxxxx").
RECITALS
WHEREAS, ACMC executed a revolving loan agreement in favor of Xxxxxxx
in the principal amount not to exceed $250,000, dated May 6, 1998 (the "Loan
Agreement") which loans are memorialized by promissory notes (the "Notes"). The
Loan Agreement and Notes are sometimes collectively and individually referred to
hereinafter as the "Loan Documents";
WHEREAS, ACMC is does not have the financial resources to repay the
amounts owing under the Loan Documents; and
WHEREAS, ACMC and Xxxxxxx desire to enter into a full settlement and
release of the amounts owed under the Loan Documents upon the terms and
condition set forth herein.
AGREEMENT
1. Payment of Consideration. On the Closing Date (as defined below)
ACMC shall assign, convey, transfer and set over to Xxxxxxx and Xxxxxxx agrees
to accept and acquire from ACMC the assets identified in Appendix A hereto (the
"Assets").
2. Release. In consideration for the Assets, on the Closing Date and
without any further action by the parties hereto, Xxxxxxx releases and forever
discharges ACMC agents, servants, employees, directors, attorneys, accountants,
successors and assigns, and any and all persons, firms and corporations from any
and all claims, fees, expenses, demands, damages, actions, causes of action or
suits of whatever kind or nature which now exist or which may hereafter accrue,
because of, for, arising out of or in any way connected with any transaction,
arrangement or conduct that directly or indirectly involved or was in any way
related to the Loan Documents.
3. Conditions to Closing. The obligations of ACMC to be performed
hereunder shall be subject to, at or prior to the Closing Date, the approval of
this Agreement and the transaction contemplated hereby by the shareholders of
ACMC. In the event such approval is not obtained on or before May 6, 2002, 2001,
then this Agreement shall become null, void and of no further force or effect.
4. Closing Date. The closing of this Agreement (the "Closing Date")
shall take place with five (5) days after of the approval of this Agreement and
the transaction contemplated hereby by the shareholders of ACMC.
5. No Warranty. The Assets are being transferred and sold "as is" and
Xxxxxxx assumes responsibility for determining the suitability of the Assets for
its use. ACMC shall in no event be responsible for losses of any kind resulting
from the use of the Assets. ACMC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
ARISING OUT OF OR RELATING TO THE ASSETS OR ANY USE THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY WHATSOEVER AS TO THE FITNESS FOR A PARTICULAR USE OR
THE MERCHANTABILITY OF THE ASSETS.
6. Effect of Headings. The subject headings of the sections and
subsections of this Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of their provisions.
7. Entire Agreement; Modification; Waiver. This Agreement, together
with all documents delivered under it and any understandings referencing the
agreement and acknowledged by both parties, constitutes the entire agreement
between the parties pertaining to the subject matter contained in this Agreement
and those documents and supersedes all prior and contemporaneous agreements,
representations, and understandings of the parties.
8. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. One or more
counterparts of this Agreement may be delivered via facsimile, with the
intention that they shall have the same effect as an original counterpart
hereof.
9. Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of, and be binding on, the successors, assigns, heirs, executors,
and administrators of the parties to this Agreement. No assignment, however, of
the rights and obligations of any party may be made by ACMC or Xxxxxxx, except
with the other parties' written consent.
10. Further Acts. Upon the request of Xxxxxxx, ACMC shall duly execute,
acknowledge, and deliver all such further acts, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably required to
convey to and vest in Xxxxxxx and protect its right, title and interest in and
enjoyment of the Assets and as may be appropriate otherwise to carry out the
transactions contemplated by this Agreement.
11. Amendment. Neither this Agreement nor any term of this Agreement
may be amended, waived, discharged, or terminated orally or by any act or
failure to act, but only by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge, or termination is
sought.
12. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Utah.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
"ACMC" "Xxxxxxx"
American Consolidated Mining Co. Xxxxxxx Mining Company
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxxx
------------------------------ --------------------------
Its: President Its: President
APPENDIX A
(THE ASSETS)
Patented Mining Claims Xxx xx Xxxxxx Xxxxxx
Xxxxx # 00
Xxxxxxxx # 00
I.O.U. U.O. ME # 54
Paymaster #2 # 55
Fillmore # 3550
Xxxxxx # 00
Maintainoma # 4393
New Baltimore # 4389
Furniture and Equipment
Copy Machine
Printer
Desk Chair
Miscellaneous Furniture
Flat Bed Truck
Trailer
Cable Dozer
Compressor
Xxxxxxx Drill Rig
Backhoe
Assay Furnace
Gold Hill Lots
