EXHIBIT C – Attached to Auction and Sales Contract No. CMI-Q

EXHIBIT C – Attached to Auction and Sales Contract No.
CMI-Q-2014-050
CONTRACT FOR SALE OF EQUIPMENT
Contract No. ______________
THIS CONTRACT FOR SALE OF EQUIPMENT (“Contract”) is entered into and made
effective as of ___________________ (“Effective Date”) by and between CHEVRON MINING INC.
(“Seller”), a Missouri corporation, with its principal offices at 116 Inverness Drive East, Suite 207,
Englewood, CO 80112 and ___________________ (“Buyer”), ______________________, as shown on
Invoice No.
from Associated Auction Services, LLC d/b/a Cat Auction Services (“Seller’s
Broker”) as listed in Section 1 below. Defined terms shall have the meaning set forth in Section 15
below.
IN CONSIDERATION of the mutual covenants and conditions set forth herein, Seller and
Buyer agree as follows:
1.
Sale and Purchase – Seller hereby sells, and Buyer hereby purchases the following described
equipment (“Equipment”) located at Seller’s Questa Mine located 3.5 miles east of Questa, Taos
County, New Mexico on Highway 469:
As indicated on Associated Auction Services, LLC d/b/a Cat Auction Services
Invoice#_____________
Address of Buyer: ________________________________________________________________.
2.
Purchase Price of Equipment - Buyer shall pay Associated Auction Services, LLC d/b/a Cat
Auction Services, by certified check, cashier’s check, or wire transfer, a total
US$_________________________________ as the purchase price (“Purchase Price”) for the
Equipment. Buyer shall pay Associated Auction Services, LLC d/b/a Cat Auction Services, the full
purchase price of Equipment prior to the removal of the Equipment. Buyer shall be responsible for
and shall pay any sales or gross receipts tax applicable to the sale unless a valid Non-Taxable
Transaction Certificate is provided to Seller by Buyer.
3.
Taxes.
3.1.
Seller shall pay all Taxes which may be levied or assessed or otherwise applicable upon
the possession, manufacture, sale, and transportation of Equipment prior to its delivery to
Buyer; and if Buyer is required by law to pay any of those Taxes, Seller shall promptly
reimburse Buyer for them.
3.2.
Buyer shall reimburse Seller for, in addition to the contract price, (1) any Taxes now in
effect or hereafter levied, and (2) any Taxes which may be hereafter levied, assessed, or
imposed on or with respect to the possession, removal, purchase, transportation, receipt
or delivery of Equipment at and after delivery to Buyer. To the extent state law imposes
tax on Seller on such reimbursements, and Seller pays such tax, then Buyer shall
reimburse Seller for such tax. Seller shall have the right to invoice tax and any tax on tax,
as described in the preceding sentence, at the same time at a combined effective tax rate.
Buyer shall furnish Seller with satisfactory tax exemption certificates where exemption is
claimed.
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3.3.
When one Party makes payments to be reimbursed by the other Party, the paying Party
shall use its best efforts to verify the correctness of the charges and to pay only the
minimum amount due. All Taxes shall include any related interest and penalties. There
shall be no reimbursement for penalties or interest which is incurred as the result of the
paying Party’s negligence.
3.4.
Each Party is responsible for payment of its federal, state, and local income taxes and
state franchise, license, and similar taxes required for the maintenance of business
existence.
3.5.
Each Party is responsible for obtaining the proper licenses in the states where the
transactions under this Contract take place. Should any Taxes, including penalty or
interest occur because of one Party’s failure to obtain such licenses, the Party who fails to
obtain the required licenses agrees to bear all the costs associated with this failure and
shall indemnify the other Party from the additional costs.
3.6.
EACH PARTY AGREES TO INDEMNIFY AND HOLD THE OTHER PARTY
HARMLESS FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION,
PROCEEDINGS, JUDGMENTS, INTEREST, PENALTIES, FEES OR OTHER
LIABILITIES BROUGHT BY OR AWARDED TO THIRD PARTIES ARISING OUT
OF OR CONNECTED WITH TAXES TO BE PAID BY SUCH PARTY PURSUANT
TO THIS SECTION.
4.
Transfer – Buyer shall take title to and accept risk of loss of the Equipment, upon payment of the
Purchase Price as described in Section 2. Buyer shall arrange for the transportation of the Equipment
from the Questa Mine Site. The preparation, disassembly if required, and loading of the Equipment
from the Questa Mine Site shall be provided by Seller. Seller shall select the method of palletizing,
disassemble and/or crating at Seller’s sole discretion. Pallets and crates shall be provided by Seller..
Palletized, crated, and small lot Equipment shall be totally removed by Buyer within 60 days. All
mobile and mining Equipment sold shall be removed from the sale site by December 19, 2014. Items
remaining after that time are subject to removal and storage at the Buyer’s expense.
5.
Warranties – Seller warrants that it has good title to the Equipment and has the right to sell the
Equipment to Buyer. Seller shall deliver the Equipment to Buyer free from any security interest or
other lien or encumbrance. Except as provided in this Section 5, Seller has not made and makes
no warranty, express or implied, including without limitation any warranty of merchantability,
fitness for a particular purpose, or otherwise regarding the Equipment or any condition
thereof. The Equipment is sold and Buyer shall accept the Equipment in a “where is” and “as
is” condition.
6.
Limitation – Buyer shall not, under any circumstances, be entitled to recover incidental,
consequential or punitive damages in connection with any breach of this Contract by Seller.
7.
Public Announcements and Use of Names and Trademarks–
7.1.
Buyer will not issue any public announcement or statement concerning this Contract
without obtaining Seller’s prior written consent.
7.2.
Buyer is strictly prohibited from using Seller’s or its Affiliates’ names, logos or
hallmarks in advertisements, marketing materials, product endorsements, press releases,
or any other publications, documentation or announcements and from photographing or
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videotaping at Seller premises, in each case, without Seller’s prior express written
consent, which consent may be withheld at Seller’s sole discretion.
8.
9.
Contract Integration and Execution.
8.1.
Integration. This Contract constitutes the entire agreement between the Parties with
respect to the subject matter thereof, and supersedes all prior agreements and
understanding between the Parties. No alteration, modification or interpretation hereof
shall be binding unless in writing and signed by both Parties.
8.2.
Scanned and Facsimile Signatures. Any Party may deliver its signature to this Contract
by scanned attachment to an email or facsimile. The other Party that receives an
executed signature page from another party by scanned attachment to an email or
facsimile may rely upon said signature page as if it was a signed original.
Indemnification
9.1.
INTENT OF INDEMNITY PROVISIONS. The Parties agree to allocate between
them responsibility for all Claims as set out below.
9.2.
BUYER INDEMNITY. To the fullest extent permissible by applicable law, Buyer
agrees to indemnify, defend and hold Seller (including Seller’s Broker, which shall
be entitled to all benefits available to Seller under these indemnification provisions)
harmless from and against any and all Claims relating to any of the following:
9.3.
(A)
Injury to or death of the employees of Buyer or Buyer’s agents or contractors.
(B)
Loss of or damage to all property belonging to or leased by Buyer or Buyer’s
agents or contractors.
(C)
Ownership, title to, loss of or any other Claim otherwise related in any way to
Equipment purchased and received hereunder after the time at which title
transfers to Buyer.
(D)
Claims for death of or personal injury to Third Parties and damage to or loss
of such Third Parties' property, to the extent caused by Buyer
LIMITATION ON CLASSES OF DAMAGES. Seller and Buyer mutually waive
and release to the fullest extent permitted by applicable law, all of the following
Claims for damages arising out of this Contract, whether such Claims are made in
connection with an indemnity specified in this Section, a breach of any obligation
under this Contract or otherwise, except for Claims arising from the obligation of a
Party to indemnify the other Party for Claims by a Third Party:
(A)
Indirect or consequential loss;
(B)
Punitive or exemplary damages;
(C)
Lost profits.
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9.4.
9.5
EXCLUSION FOR SOLE NEGLIGENCE OR WILLFUL MISCONDUCT.
(A)
The release and indemnity obligations set out in this Contract apply
regardless of the active, passive, contributory or concurrent negligence of any
Person indemnified and regardless of whether liability of any kind, including
liability without fault and breach of duty (statutory or otherwise), is imposed
or sought to be imposed on any Person indemnified, except as provided for in
Section 9.4(B).
(B)
The release and indemnity obligations set out in this Contract do not apply
where the death, injury, damage or loss in relation to which a Claim is made
is the result of the sole negligence or willful misconduct of the Person seeking
indemnification.
(C)
Any Dispute regarding the application of the exclusions provided in
Section 9.4(B) will be resolved in accordance with Section 12, except that
Section 12.6 is modified so that the non-prevailing Party pays all arbitration
fees and costs as well as all the prevailing Party’s costs of conducting the
arbitration on that issue, including the costs of legal representation,
depositions, witnesses and the time of management and other personnel
engaged in relation to that issue.
DEFENSE OF CLAIMS. Whenever Buyer indemnifies Indemnitees against claims,
Buyer shall defend and hold Indemnitees harmless against those claims and against
all reasonable costs, expenses and fees of any kind (including attorneys’ fees)
incurred by Indemnitees in defending those claims.
10.
Conflicts – Except as otherwise expressly provided herein, neither Buyer nor any director, employee
or agent of Buyer nor its subcontractors or vendors, shall give or receive from any director, employee
or agent of Seller or any affiliate, any gift or entertainment of significant value or any commission,
fee, or rebate in connection with this Contract. In addition, neither Buyer nor any director, employee
or agent of Buyer, its subcontractors or vendors shall enter into any business arrangement with any
director, employee or agent of Seller or its affiliates without prior written notification to Seller. Any
representative authorized by Seller may audit any and all records of Buyer and any subcontractor or
vendor for the sole purposes of determining compliance with this Section.
11.
Prohibited Parties and Transactions. Seller is a United States company with a policy requiring it
to comply with all applicable laws, including economic sanctions and trade restrictions imposed by
the United States government. Seller has undertaken to provide its parent organization with any
information relevant to its potential involvement with any party that may be the target of such
sanctions and restrictions. Accordingly, Buyer shall provide Seller with prompt advance notice of the
names and addresses of any member of Buyer Group which may be any of the categories set forth
below.
11.1.
The target of, or owned or subject to control by any country, institution, organization,
entity or Person that is the target of, economic sanctions and trade restrictions imposed by
the United States government.
11.2.
Debarred or otherwise excluded or declared ineligible to participate in U.S. government
contracts or contracts, grants or other programs financed in whole or in part by the U.S.
government.
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11.3.
Listed by the U.S. Departments of Commerce or State as an entity with which U.S.
Persons may not engage in export or re-export related transactions.
12. Governing Law and Resolution of Disputes.
12.1.
Governing Law. This Contract is governed by and interpreted under the laws of the State
of New Mexico, without regard to its choice of law rules.
12.2.
Resolution of Disputes. The Parties shall exclusively and finally resolve any Dispute
between them using direct negotiations, mediation and arbitration as set out in this
Section.
12.3.
Direct Negotiations. If a Dispute arises, a Party shall initiate the resolution process by
giving notice setting out in writing and in detail the issues in Dispute and the value of the
Claim to the other Party. A meeting between the Parties, attended by individuals with
decision-making authority, must take place within thirty days from the date the notice
was sent in an attempt to resolve the Dispute through direct negotiations.
12.4.
Mediation. If the Dispute cannot be settled by direct negotiations within thirty days of
initiation of the resolution process, either Party may initiate mediation by giving notice to
the other Party. The place of mediation shall be Denver, Colorado.
12.5.
Arbitration. If the Dispute is not resolved by mediation within thirty days from the date
of the notice requiring mediation, or if the Dispute is unresolved within sixty days from
the date of the notice requiring direct negotiations, then the Dispute shall be finally
settled by binding arbitration and either Party may initiate such arbitration by giving
notice to the other Party. The arbitration shall be conducted in accordance with the rules
of the American Arbitration Association. The place of arbitration shall be Denver,
Colorado. A single arbitrator shall serve for the purposes of any such dispute resolution
hereunder.
12.6.
Arbitration Fees. All arbitration fees and costs (with the exception of translation costs as
specified above) shall be borne equally regardless of which Party prevails. Each Party
shall bear its own costs of legal representation and witness expenses.
13. Brokerage Commissions. Other than Seller’s Broker, each Party represents to the other that no
broker, agent or finder has been involved in this transaction. If any claims for brokerage
commissions or finder's fees or like payment arise out of or in connection with the transaction
provided herein, and in the event any claim is made, all such claims shall be handled and paid by the
Party whose actions or alleged commitment form the basis of such claim. Each Party whose actions
or alleged commitment form the basis of a claim shall indemnify and hold harmless the other Party
from and against any and all claims or demands with respect to any brokerage fees or agent's
commissions or other compensation asserted by any person, firm, or corporation in connection with
this Contract or the transaction contemplated hereby.
14. Assignment. Buyer shall not assign any right granted it under this Contract, or at any time attempt to
delegate any duty to be performed by it hereunder without the express written consent of Seller,
which consent shall not be unreasonably withheld. Any assignment in contravention of this provision
shall be void. Subject to the foregoing, all rights and duties of each Party hereunder shall inure to the
benefit of and be binding upon its successors and assigns. On the assignee’s assumption of Buyer’s
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obligations, Buyer shall not be relieved of liability under this Contract unless Seller agrees thereto in
writing.
15. Defined Terms. As used in this Contract, these words or expressions have the following meanings:
“Affiliate” means any legal entity which controls, is controlled by, or is under common
control with, another legal entity. An entity is deemed to “control” another if it owns
directly or indirectly at least fifty percent of either of the following: (A) The shares
entitled to vote at a general election of directors of such other entity, or (B) The voting
interest in such other entity if such entity does not have either shares or directors.
“Buyer Group” means Buyer, Buyer’s Affiliates, and directors, officers, employees and
other personnel of all of them, and any Person acting on behalf of any of them in
connection with any subject matter of this Contract.
“Claim” means any claim, liability, loss, demand, damages, Lien, cause of action of any
kind, order, subpoena, obligation, costs, royalty, fees, assessments, duties, charges,
penalties, fines, judgment, interest and award (including recoverable legal counsel fees
and costs of litigation of the Person asserting the Claim), whether arising by law,
contract, tort, voluntary settlement or otherwise.
“Dispute” means any dispute, disagreement or controversy arising out of this Agreement
or the performance or non-performance of this Agreement, including a Claim under this
Agreement and any dispute, disagreement or controversy regarding the existence,
construction, validity, interpretation, enforceability or breach of this Agreement.
“Party” means Seller or Buyer and “Parties” mean both of them.
“Person” means an individual, corporation, company, state, statutory corporation,
government entity or any other legal entity.
“Seller’s Broker” is Associated Auction Services, LLC. d/b/a/ Cat Auction Services.
“Third Party” means any Person other than a Party and its employees.
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The Parties have executed this Contract in duplicate as evidenced by the following signatures of
authorized representatives of the Parties:
SELLER:
BUYER:___________________________________
CHEVRON MINING INC.
Signature:
Signature:
Name: Kevin F. Doherty
Name: __________________________________
Title: Chief Financial Officer
Title:
ADDRESS FOR NOTICES:
ADDRESS FOR NOTICES:
116 Inverness Drive East, Suite 207
Englewood, Colorado 80112
__________________________________________
__________________________________
__________________________________________
Attention: Kevin F. Doherty
Attention:_________________________________
Telephone: 1 (575) 586-7617
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