EXHIBIT 10.130
When recorded, return to:
Xxxxxxx Xxxx
Xxx Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
GRANT OF PRODUCTION PAYMENT
(Xxxxxxx Camp)
THIS AGREEMENT, effective as of the 8th day of June, 1999,
is between NORD COPPER CORPORATION, a Delaware corporation
("NORD"), whose address is 000 0xx Xxxxxx, X.X., Xxxxx 0000,
Xxxxxxxxxxx, Xxx Xxxxxx 00000; and ARIMETCO, INC., a Nevada
corporation ("ARIMETCO"), whose address is 0000 Xxxx Xxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxx 00000.
RECITALS
X. XXXX is the owner of (1) certain patented mining
claims located in Cochise County, Arizona (the "Patented Mining
Claims"), more particularly described in Part l of Exhibit "A"
attached hereto; (2) certain fee lands located in Cochise County,
Arizona (the "Fee Lands"), more particularly described in Part 2
of Exhibit "A" attached hereto; and (3) certain unpatented mining
claims located in Cochise County, Arizona (the "Unpatented Mining
Claims"), more particularly described in Part 3 of Exhibit "A"
attached hereto.
B. The Patented Mining Claims, Fee Lands, and Unpatented
Mining Claims are herein collectively referred to as the "Mining
Property."
IN CONSIDERATION of TEN AND NO/100 DOLLARS ($10.00) and
other valuable consideration, the receipt and sufficiency of
which are acknowledged, and further in consideration of the
mutual covenants and conditions contained in this Agreement, the
parties agree as follows:
1. Grant of Payment Out of Production.
x. XXXX grants to ARIMETCO a nonparticipating
payment out of production (the "Production Payment")
based upon the Average LME Cash Price for copper for
the calendar month in which copper produced from the
Mining Property is sold, as follows:
Average LME Price Production Payment
Less than $1.00 per pound None
Equal to or greater than $0.02 per pound sold
$1.00 per pound
until a total of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00)
is paid hereunder, at which time the Production Payment shall
automatically terminate.
b. "Average LME Cash Price" means the average
London Metals Exchange closing cash price, calculated
by dividing the sum of all such prices reported for the
month by the number of days for which such prices were
reported.
c. Upon the termination of the Production
Payment reserved herein ARIMETCO shall execute and
deliver to NORD a quit-claim deed, releasing, remixing,
and quitclaiming to NORD all of ARIMETCO's right,
title, and interest in and to the Mining Property,
together with all of Grantor's right, title, and
interest in and to the Production Payment herein
reserved.
2. Payment.
x. XXXX shall make all payments due ARIMETCO
under this Agreement by check made payable to ARIMETCO
and transmitted to ARIMETCO as provided in the
paragraph entitled "Notices" or, at ARIMETCO's option,
by wire transfer to an account designated by ARIMETCO.
b. All payments shall be made on or before the
25th day of the calendar month following the calendar
month in which payment is received for copper produced
from the Mining Property.
c. Payments shall be accompanied by a statement
indicating the amount of copper sold, the prices for
which it was sold, and computation of the amount of the
payment. ARIMETCO shall be entitled to an independent
audit of the matters covered by the statement. The
audit shall be at ARIMETCO's expense, unless the audit
reveals an underpayment of five percent (5%) or more.
3. Inspection. ARIMETCO or ARIMETCO's authorized
representative may, at any reasonable time, inspect and copy any
records pertinent and necessary for the purpose of substantiating
the compliance of NORD with the provisions of this Agreement.
4. Amendments, Relocations, and Patents. If NORD amends
or relocates any or all of the unpatented mining claims included
in the Mining Property, or locates placer claims on ground
theretofore covered by lode claims or vice versa, or locates mill
sites on ground theretofore covered by mining claims or vice
versa, and or locates any fractions existing on the date of this
Agreement or resulting from the location, amendment, or
relocation of mining claims or mill sites, or if NORD obtains a
patent for any or all of the unpatented mining claims and mill
sites included in the Mining Property, the rights of ARIMETCO
under this Agreement shall extend to all such locations, amended
locations, relocations, and patented mining claims and mill
sites.
5. Change in Federal Mining Law. If the United States
establishes a leasing system or other system of tenure for lands
or minerals now subject to location under the mining laws, and if
NORD acquires rights under the new system in exchange for or in
modification of its existing rights, the rights of ARIMETCO under
this Agreement shall extend to the lease or other rights granted
by the new system.
6. Notices. All notices and other communications to
either party shall be in writing and shall be sufficiently given
if (i) delivered in person; (ii) sent by electronic facsimile
communication, with confirmation sent by registered or certified
mail, return receipt requested; or (iii) sent by registered or
certified mail, return receipt requested. All notices shall be
effective and shall be deemed delivered (i) if by personal
delivery, on the date of delivery; (ii) if by electronic
facsimile communication, on the date of receipt of the
communication; and (iii) if by mail, on the date of mailing.
Until a change of address is communicated as indicated above, all
notices to NORD shall be addressed:
NORD COPPER CORPORATION
000 0xx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
FAX: 000-000-0000
Attn: Xxx Xxxxxx
and all notices to ARIMETCO shall be addressed:
ARIMETCO, INC.
0000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: Xxx Xxxxxx
7. Assignment.
a. The rights of either party under this
Agreement may be assigned in whole or in part, subject
to the provisions set forth below.
b. No change or division in the ownership of the
Production Payment provided for in this Agreement,
however accomplished, shall enlarge the obligations or
diminish the rights of NORD. ARIMETCO covenants that
any change in ownership shall be accomplished in such a
manner that NORD shall be required to make payments and
to give notices to but one person, firm, or
corporation, and upon breach of this covenant, NORD may
retain all monies otherwise due to ARIMETCO until the
breach has been cured. No change or division in
ownership shall be binding on NORD until thirty (30)
days after ARIMETCO has given NORD a certified copy of
the recorded instrument evidencing the change or
division.
8. Inurement. All covenants, conditions, limitations, and
provisions contained in this Agreement apply to and are binding
upon the parties to this Agreement, their heirs, representatives,
successors, and assigns.
9. Modification. No modification, variation, or amendment
of this Agreement shall be effective unless it is in writing and
is signed by all parties to this Agreement.
10. Waiver. No waiver of any provision of this Agreement,
or waiver of any breach of this Agreement, shall be effective
unless the waiver is in writing and is signed by the party
against whom the waiver is claimed. No waiver of any breach
shall be deemed to be a waiver of any other or subsequent breach.
11. Construction.
a. The paragraph headings are for convenience
only, and shall not be used in the construction of this
Agreement.
b. The invalidity of any provision of this
Agreement shall not affect the enforceability of any
other provision of this Agreement.
12. Governing Law. THE VALIDITY OF THIS AGREEMENT AND ALL
OTHER DOCUMENTS EXECUTED AND DELIVERED HEREWITH, THE
CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF,
AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO
ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA
(INCLUDING THE BANKRUPTCY CODE), IT BEING THE INTENT OF THE
PARTIES THAT FEDERAL LAW SHALL GOVERN THE RIGHTS AND DUTIES OF
THE PARTIES HERETO WITHOUT REGARD TO THE APPLICATION OF ANY
PROVISION OF STATE LAW. TO THE EXTENT THAT FEDERAL LAW WOULD
APPLY THE LAW OF ANY STATE AS THE FEDERAL RULE FOR THE PURPOSES
OF THIS AGREEMENT, THE PARTIES AGREE THAT THE LAWS OF THE STATE
OF ARIZONA SHALL BE USED TO SUPPLEMENT APPLICABLE FEDERAL LAW.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN THE BANKRUPTCY COURT. NORD AND ARIMETCO WAIVE,
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE
WITH THIS SECTION 12.
NORD AND ARIMETCO HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY
CLAIMS. NORD AND ARIMETCO REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
13. Covenant Running With Land. This Agreement and the
Production Payment shall constitute a covenant running with the
Mining Property. ARIMETCO may take such actions as it deems
necessary and appropriate to effectuate the covenant including
recording this Agreement against the Mining Property.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
NORD COPPER CORPORATION,
a Delaware corporation
By: /s/ Xxx X. Xxxxxx
Its: VP-Finance
ARIMETCO, INC.,
a Nevada corporation
By: /s/ X. X. Xxxxxx
Its: President
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing document was acknowledged before me this _____
day of __________, 1999, by ________________________, the
____________________ of NORD COPPER CORPORATION, a Delaware
corporation, on behalf of that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ Xxx Xxxxx
Notary Public
My commission expires:
February 22, 0000
XXXXX XX XXXXXXX )
) ss.
County of Pima
The foregoing document was acknowledged before me this _____
day of June, 1999, by H. Xxx Xxxxxx, the President of ARIMETCO,
INC., a Nevada corporation, on behalf of that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ Xxx Xxxxx
Notary Public
My commission expires:
February 22, 2003
