Exhibit 10.34


 


PURCHASE AND TERMINATION
AGREEMENT


 


 


THIS AGREEMENT  dated
for reference the 19th day of December, 2007


 


AMONG:                                KLAUS GENSSLER, businessman of 26 Farnham Park Drive,
Houston, Texas, U.S.A., 77024, GENSSLER
INVESTMENT PARTNERSHIP, LLP, a Florida Limited Liability
Partnership, having an office at 2602 Juniper Court, Palm City, Florida,
U.S.A., 34990, DOUGLAS D. FOOTE,
businessman of 2653 Stout Street, Denver, Colorado, U.S.A., 80205 and SYNERGEX GROUP LIMITED PARTNERSHIP, a
Delaware Limited Partnership, having an office at 19 Cobb Island Drive,
Greenwich, Connecticut, U.S.A., 06830


 


(hereinafter collectively referred to as
the “SM Group”)


 


AND:                                      GRANDCRU RESOURCES CORPORATION, a body corporate duly incorporated and
existing under the laws of the Province of British Columbia, Canada and having
an office at Suite 1780-400 Burrard Street, Vancouver, British Columbia,
Canada, V6C 3A6


 


(“Grandcru”)


 


AND:                                      MINERA PAREDONES AMARILLOS, S.A. DE C.V., a body
corporate duly incorporated and existing under the laws of the United Mexican
States and having an office at Suite 5,
7961 Shaffer Parkway, Littleton, Colorado, U.S.A., 80127.


 


(“MPA”)


 


AND:                                      VISTA GOLD CORP., a body corporate duly incorporated and
existing under the laws of the Yukon Territory, Canada and having an office at Suite 5,
7961 Shaffer Parkway, Littleton, Colorado, U.S.A., 80127


 


(“Vista” and together with the SM Group,
Grandcru and MPA, the “Parties”)


 


WHEREAS:


 


A.            Grandcru and Vista have entered into
a letter agreement dated December 19, 2007 (the “Purchase Agreement”), pursuant to which,
among other things, Grandcru has agreed to terminate and relinquish all of its
title to and interests in the mining concessions set out in Appendix A attached
hereto (the “San Miguel Concessions”),
upon the terms and conditions set forth in the Purchase Agreement;


 


B.            The SM Group and Minera GRC, S.A. de
C.V. (“Minera GRC”) entered into
an option agreement dated for reference the 24th day of February 2004
(the “Option Agreement”);


 

















 


C.            The SM Group and Grandcru entered
into an agreement of guarantee dated for reference the 24th day of February 2004
(the “Agreement of Guarantee”)
pursuant to which Grandcru irrevocably and unconditionally guaranteed to the SM
Group the full and timely performance by Minera GRC of each and every
obligation of Minera GRC under the Option Agreement;


 


D.            the Agreement of Guarantee and the
Option Agreement contemplate that Minera GRC is a body corporate incorporated
under the laws of the United Mexican States and is a subsidiary of Grandcru,
nonetheless, Minera GRC, to the best of the knowledge of Grandcru, has never
been incorporated under the laws of the United Mexican States and is not a
subsidiary of Grandcru and as a result, Grandcru is obligated under the
Agreement of Guarantee to perform Minera GRC’s obligations under the Option
Agreement; and


 


E.             in connection with the Purchase
Agreement, Grandcru and the SM Group wish to terminate the Option Agreement and
the Agreement of Guarantee and Vista wishes to purchase, through its Mexican
subsidiary MPA, and the SM Group wish to sell, through Minera Reina Isabel,
S.A. de C.V. (“MRI”), a Mexican
company, to Vista, through its Mexican subsidiary, MPA, the San Miguel
Concessions subject to the terms and conditions contained in this agreement.


 


NOW, THEREFORE in consideration of the mutual covenants and premises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto covenant and
agree as follows:


 


1.                          Representations and Warranties of the SM Group.


 


1.1                                  The SM Group
represents and warrants to Vista and MPA that to the best of its knowledge,
information and belief, without making any other inquiries or otherwise
undertaking any investigation:


 


(a)                                  no person other
than MRI and the SM Group has any interest in any of the mining concessions
comprised in the San Miguel Concessions (as set forth in Appendix A attached
hereto) or production therefrom derived by, through or under the SM Group or
Compañía Minera Mariposa, S.A. de C.V.; and


 


(b)                                 there has been no
material violation of the applicable mining, labour, environmental and taxation
laws in the course of operations on the San Miguel Concessions, other than the
failure to pay certain taxes or concession fees, or both.


 


1.2                                 The SM Group
represents and warrants to Vista and MPA that it has the full right and
authority to enter into this agreement and to cause MRI to transfer to Vista or
MPA all of SM Group’s right, title and working interest in and to the San
Miguel Concessions in accordance with the provisions contained herein.


 


2.                             Representation and Warranty and Indemnity of the San
Miguel Group and of Grandcru. 
Grandcru and the SM Group represent and warrant to Vista and to MPA that
the San Miguel Concessions are free and clear from the net smelter return
royalty agreed to on October 25, 1996 in favor of Compañía Minera
Mariposa, S.A. de C.V. (the “1996 NSR Royalty”)
and each of Grandcru and the SM Group, jointly and severally, hold Vista and
MPA free and harmless from any and all claims that could be initiated against
Vista, MPA and their successors and assigns, by any party that may claim to be
holder of the 1996 NSR Royalty and to indemnify,
Vista, MPA and their affiliates, successors and assigns, and their directors, officers, employees, agents
and attorneys from and against all costs, expenses, damages or 


 


2

















 


liabilities, including attorneys’ fees and other costs of litigation
(either threatened or pending) arising out of any claim in any way related or
connected to an attempt to enforce the 1996 NSR Royalty.


 


3.                             Purchase and Sale.  The SM Group hereby agrees to sell, through
MRI, and Vista hereby agrees to purchase, through its Mexican subsidiary, MPA,
on the Closing Date (as defined in the Purchase Agreement) (the “Effective Date”), all of the rights, title
and interest of the SM Group and MRI in and to the San Miguel Concessions and
all interest in minerals or mineral tenures, or any rights or options to acquire
any such interest(s) in consideration for: (i) US$75,000 payable in
cash to the SM Group on the Effective Date, and (ii) the grant to the SM
Group of a net smelter return royalty (the “NSR”)
with respect to the production of minerals from the San Miguel Concessions, as
described in Appendix B attached hereto. 
For greater certainty, a breach of, failure of or inaccuracy in any one
or more of the declarations, representations or warranties in the Contract of
Assignment entered into, or to be entered into, between MRI and MPA will not
effect the valid and binding nature of this Agreement (including the NSR).


 


4.                             Net Smelter Return Royalty Buy-Down.


 


4.1           The
SM Group hereby grants to Vista and MPA the right to buy up to a 100% interest
in the NSR by making a one time payment to the SM Group at any time.  The amount of the payment required to
purchase the entire NSR shall be US$1,000,000. 
If a lesser percentage of the NSR is to be purchased, the US$1,000,000
payment shall be pro rated accordingly. 
For example, if one half of the NSR is intended to be purchased, the
required purchase price shall be one half of US$1,000,000.


 


4.2           On
exercise of the buy-down granted in subsection 4.1, the Parties shall execute
all such documentation as may be reasonably required to complete the same.


 


5.                             Costs and Fees.  Each Party shall be responsible for payment
of its own expenses, including legal and accounting fees, in connection with
the execution of this Agreement and the transactions contemplated hereby,
whether or not such transactions are completed.


 


6.                             Termination of the Option Agreement and the Agreement
of Guaranty:  Each of
Grandcru, on its own behalf and on behalf of Minera GRC, and the SM Group
acknowledge and agree that effective as of the Effective Date, the Option
Agreement and the Agreement of Guarantee are terminated, without any further
act or formality, and the Option Agreement and the Agreement of Guarantee are
of no further force or effect as of such date.


 


7.                             Assignment: 
Vista may not transfer or assign its interest in the San Miguel
Concessions, unless it has obtained the prior written consent of the SM Group,
which consent will not be unreasonably withheld.


 


8.                             Further Assurances:  Each of the Parties shall at all times
hereafter execute and deliver, at the request of another Party, all such
further documents and instruments and shall do and perform all such further
acts as may be reasonably required by that other Party to give full effect to
the intent and meaning of this Agreement.


 


9.                             Binding Effect:  This Agreement shall enure to the benefit of
and be binding upon the Parties hereto and their respective successors and
permitted assigns.


 


10.                           Time of Essence:  Time shall be of the essence of this
Agreement.


 


3

















 


11.                           Governing Law:  This Agreement shall be governed by, and
construed in accordance with, the laws of the Province of British Columbia and
the federal laws of Canada applicable therein.


 


12.                           Counterparts:  This Agreement may be executed by the parties
and transmitted by facsimile or other electronic means, and if so executed and
transmitted, this Agreement will be for all purposes as effective as if the
parties had delivered an executed original Agreement.  This Agreement may be executed in any number
of counterparts, all of which together shall constitute one and the same
document.


 


IN WITNESS WHEREOF this
Agreement has been executed on the day and year first above written.


 


	
   

  	
   

  	
  GENSSLER
  INVESTMENT PARTNERSHIP 

  LLP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
    /s/ Klaus Genssler

  	
   

  	
  By: 

  	
  /s/ Rolf Genssler

  
	
  KLAUS GENSSLER

  	
   

  	
   

  	
  General Partner

  



 


 


	
   

  	
   

  	
  SYNERGEX
  GROUP LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Douglas D. Foote

  	
   

  	
  By:

  	
  /s/ Gerald Munera

  
	
  DOUGLAS D. FOOTE

  	
   

  	
   

  	
  General Partner

  



 


 


	
  GRANDCRU RESOURCES 

  CORPORATION

  	
   

  	
  MINERA PAREDONES AMARILLOS, S.A. DE 

  C.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Brian Leeners

  	
   

  	
  By:

  	
  /s/ Howard M. Harlan

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
  Howard Harlan, Legal Representative

  



 


 


	
  VISTA GOLD CORP.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Howard M. Harlan

  	
   

  	
   

  
	
   

  	
  Howard Harlan, Vice President, Business 

  Development

  	
   

  	
   

  



 


4

















 


APPENDIX
A


 


SAN MIGUEL CONCESSIONS


 


	
  Claim Name

  	
   

  	
  Title Number

  	
   

  	
  Surface Area

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Norma

  	
   

  	
  177858

  	
   

  	
  150.0000 hectares

  
	
  San
  Manuel

  	
   

  	
  188187

  	
   

  	
  55.7681 hectares

  
	
  El
  Padre Santo

  	
   

  	
  196148

  	
   

  	
  50.0000 hectares

  
	
  Santo
  Niño

  	
   

  	
  211513

  	
   

  	
  44.0549 hectares

  
	
  El
  Faisan

  	
   

  	
  211471

  	
   

  	
  2.6113 hectares

  
	
  Patricia

  	
   

  	
  212775

  	
   

  	
  26.2182 hectares

  
	
  Martha
  I

  	
   

  	
  213234

  	
   

  	
  46.6801 hectares

  
	
  San
  Pedro

  	
   

  	
  212753

  	
   

  	
  9.0000 hectares

  
	
  San
  Pablo

  	
   

  	
  212752

  	
   

  	
  11.1980 hectares

  
	
  Nueva
  Esperanza

  	
   

  	
  184912

  	
   

  	
  33.0000 hectares

  
	
  San
  Miguel

  	
   

  	
  185761

  	
   

  	
  11.7455 hectares

  



 


A-1

















 


APPENDIX B


 


NSR


 


 


MPA shall pay to
the SM Group a NSR equal to two per cent (2%) of the Net Value of all ores,
minerals, metals, and materials mined and removed from the San Miguel Concessions
and sold or deemed to have been sold by or for MPA or MPA’s designee.  The NSR shall be paid to the members of the
SM Group in the following proportions: 
Synergex Group Limited Partnership 45.25%, Genssler Investment
Partnership LLP 22.625%, Klaus Genssler 22.625% and Douglas D. Foote 9.5%.  Vista guarantees the timely and full payment
by MPA of the NSR to the SM Group.  The
obligation to pay NSR shall accrue upon the outturn of refined metals meeting
the requirements of the specified published price to the account of MPA or MPA’s
designee (or to a third party account for the benefit of MPA or MPA’s designee)
or the sooner sale of unrefined metals, dore, concentrates, ores or other
mineral products or materials as hereinafter provided.


 


a.             As used herein. Net Value means the
Gross Value (as defined below) of such ores, minerals, metals or materials,
less:


 


1.             all costs, charges and expenses
paid or incurred by MPA or MPA’s designee with respect to products of such
ores, minerals or materials for treatment in the smelting and refining
processes (including handling, processing, and provisional settlement fees,
representation costs, penalties, and other processor deductions);


 


2.             all costs, charges and expenses
paid or incurred by MPA or MPA’s designee for transportation (including
freight, insurance, security, transaction taxes, handling, port, demurrage,
delay, and forwarding expenses incurred by reason of or in the course of such
transportation) of ores, minerals, concentrates or other products or materials
from the San Miguel Concessions to the place of smelting and refinery treatment
and then to the place of sale; and


 


3.             sales, use, severance, net proceeds
of mine, and ad valorem taxes and any other tax on or measured by mineral
production from the San Miguel Concessions or the value of such production
(other than income taxes).


 


b.             As used herein, Gross Value shall
have the following meanings for the following categories of metals, minerals,
minerals products and other materials produced from the San Miguel Concessions
and sold or deemed sold by MPA or MPA’s designee, calculated each calendar
month:


 


1.             If MPA or MPA’s designee causes
refined gold meeting or exceeding generally accepted commercial standards for
the sale of refined gold (it being understood that the specification for
refined gold published by the London Bullion Market Association presently meets
such standards) to be produced from ores mined from the San Miguel Concessions,
for purposes of determining the NSR the refined gold shall be deemed to have
been sold at the Monthly Average Gold Price (as defined below) for the calendar
month in which it was produced, and the Gross Value shall be determined by
multiplying Gold Production (as defined below) during the calendar month by the
Monthly Average Gold Price.  As used
herein, Gold Production means the quantity of refined gold outturned to MPA’s
or MPA’s designee’s pool account (or to a third party account for the benefit
of MPA or MPA’s designee) during the calendar month by an independent
third-party refinery for gold produced from the San Miguel Concessions on
either a provisional or final settlement basis. 
As used herein, Monthly Average Gold Price means the average London
Bullion Market Association P.M. Gold Fix, calculated by dividing the 


 


B-1

















 


sum of all such prices reported for the calendar month by the number of
days in the month for which such prices were reported.


 


2.             If MPA or MPA’s designee causes
refined silver meeting or exceeding generally accepted commercial standards for
the sale of refined silver (it being understood that the specification for
refined silver published by Handy & Harman presently meets such
standards) to be produced from ore mined from the San Miguel Concessions, for
purposes of determining the NSR the refined silver shall be deemed to have been
sold at the Monthly Average Silver Price (as defined below) for the calendar
month in which it was produced, and the Gross Value shall be determined by
multiplying Silver Production (as defined below) during the calendar month by
the Monthly Average Silver Price.  As
used herein, Silver Production means the quantity of refined silver out turned
to MPA’s or MPA’s designee’s pool account (or to a third party account for the
benefit of MPA or MPA’s designee) during the calendar month by an independent
third-party refinery for silver produced from the San Miguel Concessions on
either a provisional or final settlement basis. 
As used herein, Monthly Average Silver Price means the average London
Bullion Market Association daily Silver Fix, calculated by dividing the sum of
all such prices reported for the calendar month by the number of days in the
month for which such prices were reported.


 


3.             If MPA or MPA’s designee causes
refined or processed metals other than refined gold and silver to be produced
from ores mined from the San Miguel Concessions, for purposes of determining
the NSR the refined or processed metal shall be deemed to have been sold at the
Monthly Average Metal Price (as defined below) for such metal for the calendar
month in which it was produced, and the Gross Value shall be determined by
multiplying Other Metal Production (as defined below) of such metal during the
calendar month by the Monthly Average Metal Price for such metal. As used
herein, “Other Metal Production” means the quantity of a metal outturned to MPA’s
or MPA’s designee’s pool account (or to a third-party account for the benefit
of MPA or MPA’s designee) during the calendar month by an independent
third-party refinery for such metal produced from the San Miguel Concessions on
either a provisional or final settlement basis. 
As used herein, Monthly Average Metal Price means the average price of
such metal for immediate delivery in an established North American market or on
the London Metal Exchange, as selected by MPA or MPA’s designee, as published
in Metals Week or a similar publication, calculated by dividing the sum of all
such prices reported for such metal for the calendar month by the number of
days in the month for which such prices were reported.


 


4.             If MPA or MPA’s designee sells raw
ores principally valuable for their precious metals content or concentrates of
precious metals or dore produced from ores mined from the San Miguel Concessions,
then the Gross Value shall be calculated as set forth above in Paragraphs b.l,
b.2, and b.3 except that the Gold Production, Silver Production or Other Metal
Production shall, in each case, be equal to the gold, silver and other metals
contained in such raw ores, concentrates or dore sold in the calendar month
multiplied by (i) the recovery rate contractually determined between MPA
or MPA’s designee and an independent third-party processor or (ii) if
there is not a specifically contracted recovery rate, then by an assumed
recovery rate equal to the average recovery rate for such metal during
beneficiation of such ores by an independent third-party processor for the
latest calendar quarter ended prior to such calendar month in which ores,
concentrates or dore from the San Miguel Concessions were beneficiated, and in
the event that such ores have not been so beneficiated during any such calendar
quarter, the recovery rate shall be the actual recovery rate experienced by the
independent third-party purchaser of such ores, concentrates or dore.


 


5.             In the event that MPA or MPA’s
designee sells other raw ores, concentrates, other products produced from ores,
or other materials mined or produced from the San Miguel Concessions, then the
Gross Value shall be equal to the amount of the proceeds actually received by
MPA or MPA’s designee during the calendar month from the sale of the same in an
arms-length transaction with an independent third party. If the sale
transaction is not an arms-length transaction with an 


 


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independent third party, then the Gross Value shall be equal to the
amount of the proceeds that would have been received in a bona fide arms-length
transaction with an independent third party.


 


c.             MPA or MPA’s designee shall have
the right to mix or commingle, at any location and either underground or at the
surface, any ores, metals, minerals, mineral products or other materials from
the San Miguel Concessions with any ores, metals, minerals, mineral products or
other materials from other lands, provided that MPA or MPA’s designee shall
determine the weight and volume of, and shall sample and analyze the sample of
all such ores, metals, minerals, mineral products and other materials before
the same are mixed or commingled.  Any
such determination of weight and volume, sampling and analysis shall be done in
accordance with practices and procedures generally accepted as sound throughout
the North American mining industry.  The
weight or volume (as appropriate) so determined and the analysis results shall
be used as the basis to calculate that portion of the refined gold, silver,
other metals, raw ores, concentrates, other products produced from ores, or
other materials from or constituting the portion of the mixed or commingled
materials which constitutes Gold Production, Silver Production, Other Metal
Production, or other raw ores, concentrates, other products produced from ores
or other materials on which a NSR is due under this Appendix B.  A sealed split of each sample and a copy of
the record of the weight and volume determination, analysis procedure and
analysis results shall be maintained by MPA or MPA’s designee for the period of
time provided in paragraph (h), below, for the SM Group to have audited the
accounts and records of MPA or MPA’s designee pertaining to the material
contained in the sample.  The SM Group
may itself inspect or cause to be inspected such determination and analysis
records and may require the sealed sample to be sent for analysis by an
independent laboratory selected by the independent auditor provided for in
paragraph (h).  The independent
laboratory results shall be determinative and the cost of analysis shall be
borne on the same basis as provided for audit costs in paragraph (h).


 


d.             Where outturn of refined metals is
made by an independent third-party refinery on a provisional basis, the Gross
Proceeds shall be based upon the amount of refined metal credited by such
provisional settlement, but shall be adjusted in subsequent statements to
account for the amount of refined metal established by final settlement by the
refinery.


 


e.             The SM Group acknowledges that the
purpose of paragraphs b.1, 2 and 3 above is to pay the SM Group a NSR on the
basis of the value of the refined gold, silver and other refined or processed
metals produced from ores mined from the San Miguel Concessions as established
by the London Bullion Market Association P.M. Gold Fix for gold, the
average London Bullion Market Association daily Silver Fix for silver, and the
North American or London Metal Exchange published price in Metals Week for any
other metal subject to royalty on a published price basis, regardless of the
price or proceeds actually received by MPA or MPA’s designee or any affiliate
for or in connection with such metal, or the manner in which a sale of refined
metal to a third party is made by MPA or any affiliate. The SM Group further
acknowledges that MPA or MPA’s designee or any affiliate shall have the right
to market and sell or refrain from selling refined gold and silver and other
refined or processed metal produced from the San Miguel Concessions in any
manner it may elect, and that MPA or MPA’s designee and its or their affiliates
shall have the right to engage in forward sales, futures trading or commodity
options trading, and other price hedging, price protection, and speculative
arrangements (“Trading Activities”) which may involve the possible delivery of
gold or silver or other metals produced from the San Miguel Concessions. The SM
Group specifically acknowledges and agrees that the NSR shall not apply to, and
the SM Group shall not be entitled to participate in, the proceeds generated by
MPA or MPA’s designee or its or their affiliates in Trading Activities or in
the actual marketing or sales of refined gold and silver and other metals. MPA
and MPA’s designee shall not be entitled to deduct from Gross Proceeds any
losses suffered by MPA or MPA’s designee or its or their affiliates in Trading
Activities in determining the Net Proceeds of any refined or processed metal
subject to the NSR.


 


B-3

















 


f.              NSR payments shall become due and
payable quarterly on the last day of the month next following the end of the
calendar quarter in which the same accrued. NSR payments shall be accompanied
by a statement showing in reasonable detail on a calendar month basis the
quantities and grades of the refined metals, dore, concentrates, other mineral
products, ores or other materials produced from the San Miguel Concessions and
sold or deemed sold by MPA or MPA’s designee in the preceding calendar quarter;
the date of outturn or sale; the monthly average price determined as provided
above for refined or processed metals on which NSR is due; the proceeds of sale
for other mineral products or other materials on which NSR is due under
paragraph b.5, above; deductions applied to derive Net Value from Gross Value;
and other pertinent information in sufficient detail to explain the calculation
of the NSR payment.


 


g.             Quarterly royalty statements shall
also list the quantity and quality of any gold or silver dore which has been
retained as inventory for more than sixty (60) days. The SM Group shall have
fifteen (15) days after receipt of the statement to either (1) request
that the dore be deemed sold as provided in paragraphs b.1, 2 and 3, above, as
of the fifteenth day after receipt of such statement utilizing the mine weights
and assays for such dore and utilizing a deemed charge for all deductions
specified in paragraph a. above, which shall be based upon the most recent
charges to MPA or MPA’s designee for such services by an unaffiliated third
party, or (2) elect to wait until the time that refined gold or silver or
other refined or processed metal from such dore is actually outturned to MPA or
MPA’s designee or such dore is sooner sold by MPA or MPA’s designee. The
failure of the SM Group to respond within such time shall be deemed to be an
election under (2) above.  No NSR
shall be due with respect to stockpiles of ores or concentrates unless and
until such ores or concentrates actually are sold.


 


h.             All NSR payments shall be
considered final and in full satisfaction of all obligations of MPA with
respect thereto, unless the SM Group gives MPA written notice describing and
setting forth a specific objection to the determination thereof within one
hundred twenty (120) days after receipt by the SM Group of the quarterly
royalty statement.  If the SM Group
objects to a particular quarterly statement as herein provided, the SM Group
shall, for a period of sixty (60) days after MPA’s receipt of notice, and at a
reasonable time, have the right to have accounts and records of MPA’s or MPA’s
designee or both relating to the calculation of the NSR in question audited by
a certified public accountant reasonably acceptable to the SM Group and to MPA,
and MPA shall cooperate in such audit in every way reasonably requested by the
auditor.  Any internationally recognized
major accounting firm proposed by the SM Group and not having performed work
for either party within the 18 months prior to such proposal shall be deemed
mutually acceptable.  If such audit
determines that there has been a deficiency or an excess in the payment made to
the SM Group, such deficiency or excess shall be resolved by adjusting the next
quarterly NSR payment due hereunder, or by prompt payment by the party owing
money in the event there are no further, or insufficient, future NSR
payments.  The SM Group shall pay all
costs of such audit unless a deficiency of five percent or more of the amount
due to the SM Group is determined to exist. 
MPA shall pay all costs of such audit if a deficiency of five percent or
more of the amount due to the SM Group is determined to exist.  All books and records used by MPA or MPA’s
designee to calculate Production Royalties due hereunder shall be kept in
accordance with United States or Canadian generally accepted accounting
principles consistently applied.  Failure
on the part of the SM Group to make claim on MPA for adjustment in such 120-day
period shall establish conclusively for all purposes the correctness of that
quarterly royalty statement.


 


i.              All NSR payments shall be made to
the SM Group in United States Dollars at the address for notices to the SM
Group.  Each payment shall be deemed made
if a check drawn on a U.S. bank or a U.S. funds bank draft issued by a Canadian
Chartered Bank or a U.S. funds bank draft issued by a principal Mexican
commercial bank in the amount payable is dispatched to each of the respective
members of the SM Group by recognized international courier service on or
before the date the payment 


 


B-4

















 


is to be made and such check or bank draft is honored in due course
when presented to the bank upon which it is drawn.


 


j.              All acts and omissions by MPA’s
designee in respect of the subject matter of this Appendix B shall be deemed to
be acts and omissions of MPA.


 


B-5