EXHIBIT 10.128 UNCONDITIONAL GUARANTEE OF PAYMENT
TO: ARIMETCO, INC.
1. FOR VALUABLE CONSIDERATION, the undersigned
(hereinafter called "Guarantor"), whose address is set forth
after Guarantor's signature below, jointly and severally, and
unconditionally, guarantees and promises to pay to ARIMETCO,
INC., a Nevada corporation (hereinafter called "Lender"), or
order, upon demand, in lawful money of the United States, (i)
that note dated of even date herewith, made by NORD COPPER
CORPORATION, a Delaware corporation (hereinafter called
"Borrower"), in favor of Lender in the face amount of ONE MILLION
FIVE HUNDRED FIFTY THOUSAND AND NO 100/HUNDREDS DOLLARS
($1,550,000.00) (the "Note"), principal and interest and all
other sums payable thereunder, or at the election of Lender any
one or more installments thereof, in the event that Borrower
fails to punctually pay any one or more installments of the Note
(principal and/or interest), or any other sum payable thereunder
at the time and in the manner provided therein; and (ii) all
other indebtedness of Borrower to Lender arising under or in
connection with the Note, any loan agreement between Borrower and
Xxxxxx executed and delivered in connection with the Note and any
deed of trust or other security document or instrument given in
connection therewith, including without limitation, the
Environmental Indemnification Agreement of even date herewith by
and between Lender and Xxxxxxxx and the Grant of Production
Payment of even date herewith by and between Xxxxxx and Borrower
(the indebtedness evidenced by the Note together with all other
indebtedness specified above is hereinafter collectively called
the "Indebtedness").
2. The obligations of Guarantor hereunder are joint and
several if Guarantor is more than one person or entity, are
separate and independent of the obligations of Borrower and of
any other guarantor, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether
Borrower or any other guarantor is joined in any action or
actions. The obligations of Guarantor hereunder shall survive
and continue in full force and effect until payment in full of
the Indebtedness is actually received by Xxxxxx and the period of
time has expired during which any payment made by Borrower or
Guarantor to Lender may be determined to be a Preferential
Payment (defined below), notwithstanding any release or
termination of Borrower's or any other guarantor's liability by
express or implied agreement with Lender or by operation of law
and notwithstanding that the Indebtedness or any part thereof is
deemed to have been paid or discharged by operation of law or by
some act or agreement of Lender. For purposes of this Guarantee,
the Indebtedness shall be deemed to be paid only to the extent
that Lender actually receives immediately available funds and to
the extent of any credit bid by Xxxxxx at any foreclosure or
trustee's sale of any security for the Indebtedness.
3. Guarantor agrees that to the extent Borrower or
Guarantor makes any payment to Lender in connection with the
Indebtedness, and all or any part of such payment is subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid by Lender or paid over to a trustee,
receiver or any other entity, whether under any bankruptcy act or
otherwise (any such payment is hereinafter referred to as a
"Preferential Payment"), then this Guarantee shall continue to be
effective or shall be reinstated, as the case may be, and, to the
extent of such payment or repayment by Lender, the Indebtedness
or part thereof intended to be satisfied by such Preferential
Payment shall be revived and continued in full force and effect
as if said Preferential Payment had not been made.
4. Guarantor is providing this Guarantee at the instance
and request of Borrower to induce Lender to extend or continue
financial accommodations to Borrower. Guarantor hereby
represents and warrants that Guarantor is and will continue to be
fully informed about all aspects of the financial condition and
business affairs of Borrower that Guarantor deems relevant to the
obligations of Guarantor hereunder and hereby waives and fully
discharges Lender from any and all obligations to communicate to
Guarantor any information whatsoever regarding Borrower or
Borrower's financial condition or business affairs.
5. Guarantor authorizes Lender, without notice or demand
and without affecting Guarantor's liability hereunder, from time
to time, to: (a) renew, modify, compromise, extend, accelerate
or otherwise change the time for payment of, or otherwise change
the terms of the Indebtedness or any part thereof, including
increasing or decreasing the rate of interest thereon; (b)
release, substitute or add any one or more endorsers, Guarantor
or other guarantors; (c) take and hold security for the payment
of this Guarantee or the Indebtedness, and enforce, exchange,
substitute, subordinate, waive or release any such security; (d)
proceed against such security and direct the order or manner of
sale of such security as Lender in its discretion may determine;
and (e) apply any and all payments from Borrower, Guarantor or
any other guarantor, or recoveries from such security, in such
order or manner as Lender in its discretion may determine.
6. Guarantor waives and agrees not to assert: (a) any
right to require Lender to proceed against Borrower or any other
guarantor, to proceed against or exhaust any security for the
Indebtedness, to pursue any other remedy available to Lender, or
to pursue any remedy in any particular order or manner; (b) the
benefit of any statute of limitations affecting Guarantor's
liability hereunder or the enforcement hereof; (c) demand,
diligence, presentment for payment, protest and demand, and
notice of extension, dishonor, protest, demand, nonpayment and
acceptance of this Guarantee; (d) notice of the existence,
creation or incurring of new or additional indebtedness of
Borrower to Lender; (e) the benefits of any statutory provision
limiting the liability of a surety, including without limitation
the provisions of A.R.S. Sections 12-1641, et seq.; (f) any
defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever
(other than payment in full) of the liability of Borrower for the
Indebtedness; and (g) the benefits of any statutory provision
limiting the right of Lender to recover a deficiency judgment, or
to otherwise proceed against any person or entity obligated for
payment of the Indebtedness, after any foreclosure or trustee's
sale of any security for the Indebtedness, including without
limitation the benefits, if any, to Guarantor of A.R.S. Section
33-814. Guarantor hereby expressly consents to any impairment of
collateral, including, but not limited to, failure to perfect a
security interest and release collateral and any such impairment
or release shall not affect Guarantor's obligations hereunder.
Until payment in full of the Indebtedness, Guarantor shall have
no right of subrogation and hereby waives any right to enforce
any remedy which Lender now has, or may hereafter have, against
Borrower, and waives any benefit of, and any right to participate
in, any security now or hereafter held by Lender.
7. All existing and future indebtedness of Borrower to
Guarantor is hereby subordinated to the Indebtedness and such
indebtedness of Borrower to Guarantor, if Lender so requests,
shall be collected, enforced and received by Guarantor as trustee
for Lender and shall be paid over to Lender on account of the
Indebtedness, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this
Guarantee.
8. In addition to all liens upon, and rights of setoff
against, the monies, securities or other property of Guarantor
given to Lender by law, Lender shall have a lien and a right of
setoff against, and Guarantor hereby grants to Lender a security
interest in, all monies, securities and other property of
Guarantor now and hereafter in the possession of or on deposit
with Lender, whether held in a general or special account or
deposit, or for safekeeping or otherwise; every such lien and
right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have
been waived by any act or conduct on the part of Lender, by any
neglect to exercise such right of setoff or to enforce such lien,
or by any delay in so doing.
9. If Borrower is a corporation or partnership, it is not
necessary for Lender to inquire into the powers of Borrower or
the officers, directors, partners or agents acting or purporting
to act on its behalf, and any of the Indebtedness made or created
in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
10. Guarantor agrees to pay all reasonable attorneys' fees
and all other reasonable costs and expenses which may be incurred
by Xxxxxx in enforcing this Guarantee or in collecting all or any
part of the Indebtedness.
11. This Guarantee sets forth the entire agreement of
Guarantor and Lender with respect to the subject matter hereof
and supersedes all prior oral and written agreements and
representations by Lender to Guarantor. No modification or
waiver of any provision of this Guarantee or any right of Lender
hereunder and no release of Guarantor from any obligation
hereunder shall be effective unless in a writing executed by an
authorized officer of Xxxxxx. There are no conditions, oral or
otherwise, on the effectiveness of this Guarantee.
12. This Guarantee shall inure to the benefit of Lender and
its successors and assigns and shall be binding upon Guarantor
and its heirs, personal representatives, successors and assigns.
Lender may assign this Guarantee in whole or in part without
notice.
13. This Guarantee shall be governed by and construed
according to the laws of the State of Arizona.
IN WITNESS WHEREOF these presents are executed as of the 8th
day of June, 1999.
GUARANTOR:
NORD RESOUNCES CORPORATION, a Delaware corporation
By: /s/ Xxx X. Xxxxxx
Its VP-Finance
Address: 000 Xxxxx Xxxxxx, XX
Xxxxxxxxxxx, XX 00000
STATE OF ARIZONA )
) ss.
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this
_____ day of June, 1999, by _______________________________, the
____________________________ of NORD RESOURCES CORPORATION, and 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, 2003
