OCEAN PARTNERS PURCHASE CONTRACT NO. OPUK.SP 90731
OCEAN
PARTNERS
PURCHASE CONTRACT NO. OPUK.SP 90731
CONTRACT Dated February 1, 2021 Between
MK METAL TRADING MEXICO SA DE CV
Av. Ejercito Nacional Mexicano
Xx. 000, Xxxxx X Xxxx 0 Xxxxxxx X00, Xxx. Xxxxxxx, Xxxxxx Xxxx,
11520 Mexico
Hereinafter called "Buyer" and
Mineras de DynaResource SA de CV;
Calle Alamo Number 000 Xxx. Xxxxxxx
Mazatlan, Sinaloa Mexico CP 82123
00 (000) 000-0000
Hereinafter called "Seller"
Contract of exclusive Concentrate supply between MK METAL TRADING MEXICO, S.A. DE C.V. (hereinafter called "Buyer") represented by Mr. Xxxx Xxxxxxxxx Xxxxxxxx Xxxxx and Xxx. Xxx Xxxxx Xxxxxx Xxxxxx; and Mineras de DynaResource SA de CV (hereinafter called "Seller"), represented by Lie. Xxxxxx Xxxxx Xxxxxx, in witness whereof both parties agree the following declarations and clauses:
STATEMENTS
f)The Concentrate sold to the Buyer is free from any lien or limitation of ownership, or any other limitation either by virtue of any legal order, contractual and/or non-contractual obligations and is not subject of a litigation, claim, demand or complaint.
CLAUSES
The contract commences on February 1, 2021 and shall remain in force until completion of the parties obligations herein.
Subject to the terms of this Contract, the Seller agrees to use its best efforts to produce and sell to Buyer, and Xxxxx agrees to buy 100% of the gold concentrate production, for the period February 1, 2021 until December 31, 2022, subject to a minimum delivery which is projected by Seller to be 18,000 wmt of concentrates (plus or minus 25%), as set out in Clause 3 and in accordance with the terms and conditions of this Contract. The parties intend that the Buyer shall buy such quantities of the Concentrate as are set out in the Part A of Schedule 1 to this Contract, subject to the paragraph below.
The parties hereto accept and acknowledge that the shipment quantities set out in Part A of schedule 1 to this Contract are approximations and that the actual quantity of Concentrate in each shipment may vary therefrom. To the extent that the quantity of Concentrate in any shipment exceeds, or is exceeded by, the quantity set out in Part A of Schedule 1 to this Contract (the "Target Quantity" for that shipment) by 25% more or less of the Target Quantity, the Seller shall be deemed to have satisfied its obligations under this Contract in full.
The Concentrate to be delivered under this Contract shall be Mexican Gold concentrate from San Xxxx xx Xxxxxx, Sinaloa the below typical specification (hereinafter referred to as the "Concentrate"):
The contract commences on February 1, 2021 and shall remain in force until completion of the parties obligations herein.
Subject to the terms of this Contract, the Seller agrees to use its best efforts to produce and sell to Buyer, and Xxxxx agrees to buy 100% of the gold concentrate production, for the period February 1, 2021 until December 31, 2022, subject to a minimum delivery which is projected by Seller to be 18,000 wmt of concentrates (plus or minus 25%), as set out in Clause 3 and in accordance with the terms and conditions of this Contract. The parties intend that the Buyer shall buy such quantities of the Concentrate as are set out in the Part A of Schedule 1 to this Contract, subject to the paragraph below.
The parties hereto accept and acknowledge that the shipment quantities set out in Part A of schedule 1 to this Contract are approximations and that the actual quantity of Concentrate in each shipment may vary therefrom. To the extent that the quantity of Concentrate in any shipment exceeds, or is exceeded by, the quantity set out in Part A of Schedule 1 to this Contract (the "Target Quantity" for that shipment) by 25% more or less of the Target Quantity, the Seller shall be deemed to have satisfied its obligations under this Contract in full.
The Concentrate to be delivered under this Contract shall be Mexican Gold concentrate from San Xxxx xx Xxxxxx, Sinaloa the below typical specification (hereinafter referred to as the "Concentrate"):
Elements/Compunds |
UNIT |
MIN. |
MAX. |
Xxxxxx (Cu) |
% |
0 |
5 |
Silver (Aa) |
Grams/dmt |
50 |
500 |
Gold (Au) |
Grams/dmt |
40 |
500 |
Bismuth (Bi) |
% |
0.00 |
0.05 |
Arsenic (As) |
% |
0.00 |
0.25 |
Antimonv (Sb) |
% |
0.00 |
0.10 |
Chlorine (Cl) |
PPM/dmt |
0 |
500 |
Fluorine (F) |
PPM/dmt |
0 |
1500 |
Selenium (Se) |
PPM/dmt |
0 |
100 |
Silica (SiO2) |
% |
1 |
5 |
Zinc (Zn) |
% |
3 |
20 |
Sulphur (S) |
% |
35 |
45 |
Iron (Fe) |
% |
35 |
45 |
Lead (Pb) |
% |
0 |
4 |
A full concentrate analysis to be completed prior to the signing of the Contract.
The Seller warrants that the Concentrate shall be suitable for ocean transportation in accordance with the IMO Bulk Cargo Code and that it owns or shall own or has or shall have the unrestricted right to sell the Concentrate to the Buyer with good and marketable title thereto. The Seller has delivered trial lots to Buyer (185 WMT more or less for each trial lot); during January, 2021, which lots contain concentrate material indicative of the concentrates anticipated to be delivered by Seller during the term of this Agreement.
If quality falls outside of specifications, Buyer and Seller will mutually agree any adjustments to treatment charges and penalties.
The radioactivity in material shall be in permissible limits set by IAEA (International Atomic Energy Agency). The Seller shall use all reasonable endeavours to ensure the Concentrate shall be free from any deleterious elements materially harmful to the normal gold smelting and refining processes. lf for any reason, any of the typical known assays changes significantly, Seller will advise Buyer in good time prior to the shipping allocations being made and Buyer and Seller will discuss in good faith in order to overcome any problem that may be created by the change in quality. Where the actual assay analysis of the Concentrate delivered reveals that this is not the case, the Buyer must promptly notify the Seller of such fact and the parties shall meet to discuss and agree a suitable resolution.
If quality falls outside of these specifications, Buyer and Seller will mutually agree any adjustments to treatment charges and penalties.
Subject to the other terms of this Contract, the Concentrate shall be shipped in bulk in standard or heavy duty plastic lined containers at Seller's option in accordance with the shipment schedule set out in Part A of Schedule 1 to this Contract.
Notwithstanding the shipment timings set out in Part A of Schedule 1 to this Contract, all shipments are subject to availability of suitable vessels for freight transport.
The Concentrate shall be delivered in good condition with homogeneous coloration with no lumps and clean from any type of contamination and garbage.
The Seller has delivered trial lots to Buyer in January 2021; as material indicative of the materials anticipated to be delivered by Seller during the term of this Agreement.
If quality falls outside of these specifications, Buyer and Seller will mutually agree any adjustments to treatment charges and penalties.
Subject to the other terms of this Contract, the Seller shall arrange for delivery of the Concentrate OAP, Xxxxx's warehouse (lncoterms 2020) to the loading port set out in Part B of Schedule 1 of this Contract.
The prices referred to in this Contract shall only be inclusive of delivery OAP, as set out in Part B of Schedule 1 of this Contract.
The price, per dry metric ton of Concentrate, for each shipment of Concentrate shall be calculated on the basis of the value of the applicable Metal Payments in respect of that shipment of Concentrate less the applicable Deductions, if any, as set out in Schedule 2 to this Contract, in respect of that shipment of Concentrate (the "Final Price").
7.1 Quotational Period
For lots delivered in the first half of a calendar month, Quotational Period ("QP") shall be the second
half of the month of delivery. For lots delivered in the second half of a calendar month, QP shall be the first half of the next month. The date of delivery shall be evidenced by the arrival date of the last truck in each Monthly Quota at the Buyer's warehouse as evidenced by the Buyer's Warehouse's records.
7.3 Estimated Provisional Price
The "Estimated Price" for a shipment shall be calculated by the Buyer by reference to the final weight certificate for such shipment, estimated assays based on the typical analysis referred to in Clause 3 above and the applicable metals price referred to in Schedule 2 to this Contract but averaged LME price for the 5 (five) trading days prior to the date of provisional invoice (the "Standard Calculation").
Currency:
All invoices or credit notes shall be in U.S. Dollars and Cents, and all payments shall be made by the relevant party in U.S. Dollars and Cents. Each party accepts their own risk in relation to currency exchange rate fluctuations, save where payments are made in a currency other than U.S. Dollars and Cents without prior written agreement from the other party (in which case the party attempting to make such payment shall bear all currency exchange rate fluctuation risk).
Payment Beneficiary
For all payments that are due to the Buyer under this contract, the beneficiary name shall always be the Buyer, MK METAL TRADING MEXICO SA DE CV.
For all payments that are due to the Seller under this contract, the beneficiary name shall always be the Seller, Mineras de DynaResource SA de CV, or its Assignees;
Provisional Payment
The "Provisional Documents" are:
the Provisional Invoice (as defined below);
Holding Certificate issued by a warehouse acceptable to Buyer and/or Xxxxx's bankers and endorsed by Independent Representative;
Final Weight & Moisture certificate to be issued by an independent, internationally recognized surveyor;
Provisional Assay certificate.
Shipping Document to be provided upon vessel sailing:
Certificate of Origin;
full set (3 out of 3) of original shipped on-board Bills of Lading issued as per Buyer's instructions; Packing List issued by Seller;
Declaration from Seller confirming that shipment contains no solid wood material.
Supporting Documents:
MSDS Sheet to be provided immediately upon signing of the Contract and renewed every 18 months.
Provisional Payment:
The Seller will be entitled to charge and invoice (such invoice being the "Provisional Invoice") the Buyer for a provisional payment of 95% of the Estimated Price (Tax shall be calculated as per current Mexican IVA law - Ley de impuesto al Valor Agregado at a 0% rate as specified in article 2.A.), in respect of each shipment of Concentrate, once such Estimated Price has been calculated in accordance with Clause 7 above against presentation of Provisional Documents. Provisional payment to be made 2 Working Days after presentation and acceptance of the Provisional Documents, however Buyer, on a best-efforts basis, shall endeavour to make the provisional payment within 1 Working Day.
Final Payment:
As soon as reasonably practicable, in no event to exceed 3 business days following final weights and assays, and final pricing being determined in accordance with Clauses 7, 12 and 13 hereof in respect of a shipment of Concentrate, the Seller shall calculate the Final Price and prepare and forward to Buyer a final invoice (or credit note) in respect of that shipment based on the difference between the Final Price and the Provisional Payments.
Where an additional payment is due from the Buyer, the Buyer shall ensure it is made promptly upon presentation of the Seller's final invoice. Where payment is due from the Seller, the Seller ensure it is made promptly upon receipt of the Buyer's payment details.
The "Final Documents" are:
Credit Facility
The Buyer will advance the Seller a Credit Facility of $3.75M (the "Facility Amount"), where the Seller may access draws to cover working capital prior to a delivery under this Contract. So long as all principal and interest, if any has been repaid on the first drawdown and there are no material adverse changes, the Borrower may redraw up to the Facility Amount until the Final Maturity Date.
The maximum first draw will be $2.5M and will be drawn by Seller on the Date of this Agreement, February 1, 2021, and paid by Buyer on February 3, 2021. After repayment of the first draw, subsequent drawdowns shall be limited to the Facility Amount, as adjusted, until the Final Maturity Date.
Each draw (more than one draw may occur in the same month) needs to be repaid within maximum 45 days against deliveries or cash repayments, in order to avoid interest charges. All draws shall be repaid within a maximum of 120 days.
After 45 calendar days interest grace period for each draw, interest shall accrue at 3M LIBOR + 6.50% for each draw.
The Total Amount of the Credit Facility (as adjusted pursuant to Credit Line Increases) shall be made available to Seller during the 120-day repayment period.
Draws by Seller, equal to 100% of the available Credit Facility, may be made in 1 or more draws during each 120-day repayment period.
The Credit Facility, including all increases thereto as described below, shall mature on December 31, 2022 (the "Maturity Date"), however, subject to financial due diligence and agreement by the Buyer, Seller, at its option may extend the Maturity Date of the Facility until December 31, 2023 which will automatically extend the Contract and minimums by a further 12 months as per Schedule One.
For any overdue payments under the Credit Facility, interest shall occur at 3M LIBOR + 12.5% rather than 3M LIBOR + 6.5%
Increase/s) to Credit Facility.
In order to support the working capital and expansion plans of the Seller, the Buyer and Seller shall agree to the following increase(s) to the Credit Facility (Once the Credit Facility has been increased as described below; it shall not be subsequently reduced during the term of this Contract:
The method of payment for Xxxxxx's deliveries to the Buyer will be via electronic bank transfer to Sellers bank account.
Sellers bank account in US Dollars for th.e payment of the Concentrate:
Banco: Cuenta: XXXXX:
Beneficiario:
Xxxxx:
BANCO MERCANTIL DEL NORTE SA (BANORTE) 0535388192
072744005353881922
Mineras de DynaResource SA de CV XXXXXXXX
All Concentrate lost or damaged after risk has passed to the Buyer as per lncoterms 2020 in accordance with Clause 11, shall be treated as if they had been safely delivered to the Buyer for the purposes of determining whether the obligation of the Seller to deliver and sell, and the obligation of the Buyer to buy Concentrate in accordance with Clause 2 has been fulfilled.
Total Loss:
In case of total loss of, or damage to Concentrate after risk has been transferred to the Buyer as per lncoterms 2020 in accordance with Clause 11, payment shall be made as if the shipment had been safely delivered.
The amount payable shall be calculated based on the Holding Certificate weights, if available, or Seller's provisional weights if the Holding Certificate weights are not available, and Seller's provisional moisture and provisional assays of the Concentrate and otherwise in accordance with the terms of this Contract. Recovery on Insurance to be made by the Buyer in such event.
Partial Loss:
In case of partial loss of, or damage to Concentrate after risk has been transferred to the Buyer as per lncoterms 2020 in accordance with Clause 11, payment shall be made as if the shipment had been safely delivered.
The amount payable shall be calculated based on the Holding Certificate weights, if available, or Seller's provisional weights if the Holding Certificate weights are not available, and the final moisture and final assays on that part of the Concentrate which has been safely delivered in good condition and otherwise in accordance with the terms of this Contract. Recovery on Insurance to be made by the Buyer in such event.
Does not apply.
Title to the Concentrate for each shipment or any part thereof, shall pass from Seller to Buyer;
Risk to the Concentrate shall pass from Seller to Buyer at Delivery, as per lncoterms 2020.
Final weighing, sampling, sample preparation and determination of moisture of the Concentrate shall be carried out upon the arrival of the concentrates at Buyer's Warehouse in Manzanilla, Mexico under common practices for this type of concentrate and will be performed by an independent international surveyor conjointly appointed by Xxxxx and Seller (the "Independent Representative") both parties agree to nominate Xxxxxx X. Xxxxxx sharing by equal the cost of such operations.
The weight determined by light & heavy trucks by truck-scale shall govern for final settlement, and the resulting net dry weight less a franchise of 0.40% shall apply for final settlement purposes.
The final weighing, sampling, sample preparation and moisture determination shall be
carried out for each delivered lot, in accordance with accepted industry standards according to ISO standards.
The results of the entire weighing, sampling, sample preparation and moisture determination operation shall be mutually agreed between the representatives of all parties concerned.
Each sample shall be prepared in the internationally acceptable manner with a minimum sample weight of 250 (two hundred and fifty) grams.
The composite sample for each lot shall be divided into 6 equal portions: 2 for Seller, 2 for Buyer, and 2 to be properly packed, sealed, labelled and retained by the Independent surveyor respectively as reserve samples for analysis by umpires if required under Clause 13. More samples maybe freely requested by the Buyer. All samples shall be sealed and signed jointly by both Xxxxx's and Seller's representative.
Assay results for Zinc, Lead, Arsenic, Antimony and Bismuth shall be reported as a percentage of the net dry weight to two decimal places, in the case of Fluorine as parts per million per DMT, no decimals, and in the case of Gold and Silver in grams per DMT, two decimal places required.
Assaying for all elements, shall be made independently by:
Xxxxxx X Xxxxxx International Ltd. The Xxxx Xxxxxx Laboratory Kings Business Park
Prescot, Knowsley, L34 1 PJ UK
The contents found by the independent laboratory performing the analysis shall be final and binding for settlement purposes between Seller and Buyer.
Any applicable taxes, tariffs and duties, whether present or imposed on the Concentrate or contained metal or on commercial documents relating thereto arising in the jurisdiction in which the port(s) of discharge is/are located shall be borne solely by the Buyer and the Buyer shall fully indemnify the Seller accordingly at all times. Seller shall endeavor to provide to Buyer on promptly basis the documents reasonably requested by Xxxxx in order to comply with Buyer's obligations related to the import taxes, tariffs, duties and licenses associated with the Concentrates.
Seller will cooperate with Buyer to obtain, any export license or other official authorization and carry out all customs formalities necessary for the export of the Concentrates. Where applicable, Buyer shall obtain, at its own risk and expense, any import license or other official authorization and carry out all customs formalities for the import of the Concentrates. Seller shall endeavor to provide to Buyer promptly the necessary documents reasonably requested by Xxxxx in order to obtain any of the aforementioned licenses, authorizations or custom formalities.
Neither party to this Contract shall be liable for any delay in performing or failure to perform its obligations (except for delay or failure to pay money when due) due to events including but not limited to any war, warlike operation or act, revolution, act of God, pandemic, flood, storm, earthquake,
fire, explosion, strike, lockout, stoppage of work, combination of workmen, interference of Trade Unions, act of government or government appointed agents or local, foreign, national or international or other public authority, any court order or judgement, decree, embargo, confiscation, sabotage, tidal wave, law, act, order, proclamation, regulation, ordinance, carrier failure or delay, inability to obtain raw materials, plant equipment or materials required for maintenance, replacement or repair, fire, obstruction or blockage of port or wharf, lack of railway or seaborne freight facilities or delays en route whether due to mechanical fault or to action of the elements, or, in the event of any other disabling causes whatsoever beyond the reasonable control of the parties concerned, including but not restricted to, permanent or temporary mine closure for economic or others reasons, (any such cause being hereinafter called "Force Majeure") preventing or hindering a party from performing its obligations in the Contract (including if a Force Majeure event prevents performance by the producing mine, or receipt or treatment by the consuming smelter). Failure to deliver or to accept delivery in whole or in part because of the occurrence of an event of Force Majeure shall not constitute a default hereunder or subject either party to liability for any resulting loss or damage.
Upon the occurrence of any event of Force Majeure, the party affected by the event of Force Majeure shall within 5 (five) Business Days of the occurrence notify the other party hereto in writing of such event and shall specify in reasonable detail the facts constituting such event of Force Majeure. Where such notice is not given within the time required, Force Majeure shall not justify the non-fulfilment of any obligations under this Contract.
Both parties agree to use their respective reasonable efforts to cure any event of Force Majeure to the extent that it is reasonably possible to do so, it being understood that the settlement of strikes, lockouts, and any other industrial disputes shall be within the sole discretion of the party asserting Force Majeure.
Failure to deliver or accept delivery of the Material which is excused by or results of an event of Force Majeure shall extend the term of this Contract for a period equal to the period of such failure. If such a failure caused by an event of Force Majeure shall continue for more than 90 (ninety) calendar days, then the party not having declared Force Majeure shall have the right by written notice to cancel the affected quantity of the Concentrate with immediate effect.
This clause shall not apply to any obligations to pay, indemnify or provide security or to any Concentrate for which vessel, truck or railway wagon space has been booked, pricing has been established, the Quotational period has commenced and/or payment has been made unless Buyer and Seller have expressly consented in writing. In these cases, parties shall find a reasonable solution for both sides in a fair and equitable manner.
In the event of Force Majeure, the Seller shall allocate its available supplies of such material, if any, among any or all of its existing customers in a fair and equitable manner. In addition, where the Seller is the affected party, it shall offer to supply, from another source, goods of similar quality in substitution for the material subject to the Force Majeure event to satisfy that amount which would have otherwise been sold and purchased hereunder at a price which may be more or less than the price hereunder.
Within 30 (thirty) days of the cessation of the Force Majeure event, the Parties shall reach agreement as to Seller's obligation to deliver and the Buyer's obligation to accept material of that quantity of material that could not be delivered and accepted hereunder because of the Force Majeure event, provided always that any such shortfall quantity has not been replaced by material pursuant to the terms above.
The metal price quotations specified under this Contract are the quotations currently in general use for the pricing of the relevant metals listed in Schedule 2 to this Contract and which may be found within concentrate akin to the Concentrate.
In the event that any of these price quotations ceases to exist, ceases to be published, publishes an erroneous price quotation and does not later correct it, or should no longer be internationally recognized as the basis for the settlement of contracts for concentrate of the same kind as the Concentrate, then upon the request of either party the Buyer and the Seller shall promptly consult together with a view to agreeing on a new pricing basis and on the date for bringing such basis into effect, with the basic objective of securing the continuity of fair pricing under the Contract.
Until such time as the new pricing basis is agreed between the parties, the Seller shall be entitled, on provision of written notice to the Buyer, and formal written acceptance by Xxxxx, to invoice the Buyer provisionally (and the Buyer shall pay such provisional sums in accordance with Clause 8 above) on the basis of the applicable price applied to the last shipment of Concentrate sold by the Seller to the Buyer under this Contract prior to the date of such notice being given.
GOVERNING LAW:
This Contract, including the arbitration Clause, shall be governed by, interpreted and construed in accordance with the substantive laws of England and Wales excluding the United Nations Convention on contracts for the International Sales of Goods of April 11, 1980 (CISG).
ARBITRATION:
Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (LCIA), which Rules are deemed to be incorporated by reference into this Clause. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitration shall be English. The number of arbitrators shall be three (one arbitrator to be appointed by each party, and the third to be chosen by the two party-appointed arbitrators). The parties waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority.
This Contract and all its provisions shall be binding upon and endure to the benefit of the successors and assigns of the respective parties hereto.
Other than this assignment by Xxxxx for financing purposes, and the assignment by Seller for operating purposes, neither party shall assign or novate this Contract or their rights or obligations hereunder without the written consent of the other party, which consent shall not be unreasonably withheld.
It is agreed that any and all notices required or permitted to be given to either party under the terms of this Contract shall be notified in person or by facsimile or e-mail followed by special courier, if needed, addressed to the party to be notified at the following respective addresses, or any other addresses regarding which the respective
parties have been informed prior to the sending of such notices, namely:
BUYER:
MK METAL TRADING MEXICO SA DE CV
Av. Ejercito Nacional Mexicano
Xx. 000, Xxxxx X Xxxx 0 Xxxxxxx X00, Xxx. Xxxxxxx, Xxxxxx Xxxx,
11520 Mexico
Attn: xx_xxxxxxx@xxxxxxxxx.xxx
SELLER:
Mineras de DynaResource SA de CV.
Calle Alamo Number 000 Xxx. Xxxxxxx
Mazatlan, Sinaloa Mexico CP 82123
00 (000) 000-0000
X.X. XXXXXXXX xxx@XxxxXxxxxxxx.xxx
If a notice or other communication has been properly sent or delivered in accordance with this Clause, it shall be deemed to have been received as follows:
For the purposes of this Clause all times are to be read as local time in the place of deemed receipt; and if deemed receipt under this Clause is not within business hours (meaning 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to have been received when business next starts in the place of receipt.
To prove delivery, it is sufficient to prove that if sent by email no error message was received from the intended recipient that such email has not been successfully delivered, and if sent by facsimile, delivery confirmation or successful transmission confirmation was received.
The provisions of this Clause 20 shall not apply to the service of any process in any legal action or proceedings.
In no event shall either Party be liable for any indirect or consequential damages (including loss of profits) resulting from its performance or non-performance of its obligations hereunder.
This Clause 21 shall survive termination of this Contract for any reason.
Either party may elect to terminate this Contract in the event that the other party fails to pay any amount payable hereunder as and when due and such default has continued unremedied for a period of 15 (fifteen) calendar days after written notice thereof is given by the party to whom the sums are due save for if such party has failed to make payment due to quality or other associated claims under this Contract.
Upon any default by Buyer which remains uncured for 2 business days:
This Contract shall terminate at the option of either party if the other party materially defaults in the performance or observance of any material obligations hereunder and fails to remedy the default within 15 (fifteen) calendar days after receiving written demand therefor. This Contract shall terminate at the option of either party if the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership, or liquidation is instituted against the other party and is not dismissed within 15 (fifteen) calendar days following commencement thereof. The Seller may only terminate the Contract if all advances under the Credit Line have been repaid.
All accrued sums, rights and obligations arising hereunder that are still outstanding at the time of termination of this Contract shall survive such termination and shall not be affected thereby. Termination of this Contract shall not affect any shipments of Concentrate ordered by the Buyer prior to such termination which shall continue and be paid for as if this Contract were continuing, without liability to the Buyer. Where such cancellation occurs and the Buyer has paid a Provisional Payment to the Seller, the Seller shall reimburse the same within fourteen (14) calendar days of such cancellation.
No notice shall be required if the breach is in relation to Clause 26, Compliance, in which case termination shall take place on notice of the breach being issued to Seller, or Buyer, as the Case may be.
On termination of this Contract (however arising) the following clauses shall survive and continue in full force and effect: 3, 6, 8, 9, 11 to 14 (inclusive) and 18 to 29 (inclusive).
This Contract may only be varied by agreement in writing signed by duly authorized representatives of the Buyer and Seller.
A waiver (which may be given subject to conditions) of any right or remedy provided under this Contract or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
Unless specifically provided otherwise, rights arising under this Contract are cumulative and do not exclude rights provided by law.
This Contract and any documents or schedules referred to in it constitute the whole Contract between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this Contract.
Each party acknowledges that, in entering into this Contract and the documents and schedules referred to in it, it does not rely on any statement, representation, assurance or warranty ("Representation") of any person (whether a party to this Contract or not) other than as expressly set out in this Contract or those documents or schedules. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Contract,
save that nothing in this Clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
If any provision of this Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision, to the extent required, shall be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
A person who is not a party to this Contract shall not have any rights whatsoever under or in connection with it.
25 CONFIDENTIALITY
Each party shall at all times during this Contract and thereafter keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, business plans, trade secrets, commercial terms, the detail of this Contract itself and all other information and matters which are of a confidential nature and have been disclosed to that party by the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning the other party's business or its products which the receiving party may obtain.
Either party may disclose such information to its personnel who need to know such information for the purposes of carrying out their obligations under this Contract, subject to procuring their compliance with these obligations, and as may be required by law, court order or any governmental or regulatory authority. Neither party shall use any such information for any purpose other than to perform its obligations under this Contract.
Each Party recognizes and accepts that the Confidential Information is part of each parties' assets, therefore its contrary use will be considered as criminal offence described in relation of industrial secrets in the Penal Code of Federal District in Matters of Common Jurisdiction and for all Republic in Matters of Federal Jurisdiction. Revelation of industrial secrets such as preparation of formulas, dissemination of strategic information (clients, prices, new products, developments, formulas, etc.) can be comparable to the crimes of robbery as stated in Article 230 of Penal Code of Federal District and the revelation of secrets, illegal access to computing systems and equipment as stated in Articles 210, 211, 211 Bis and 211 Bis 1 of the Federal Penal Code and additional to those mentioned in the Chapter Ill title VII of the Industrial Property Law.
In case of any breach of this clause, the responsible party it will be held responsible for any damage and consequential loss caused as a misuse of the Confidential Information.
Both parties warrant, represent and undertake to the other party that they will comply with all applicable laws, rules and regulations including without limitation to sanctions, anti-corruption, anti money laundering and tax laws in performing this Contract.
Buyer, or Seller, may terminate this agreement upon provision of notice, if either Buyer or Seller has a good faith belief that the other party, its officers, directors or shareholders have violated, intends to violate, or has caused a violation of all applicable laws, rules and regulations including without limitation to sanctions, anti-corruption, anti-money laundering and tax laws.
Due to the trading activities that will be done under this contract between Seller and Buyer, Buyer will receive Seller's and its employee and representative personal data, such information will be used for the trading activities and for the fulfillment of the Buyer"s commercial and fiscal obligations.
As stated in the "Federal Law protecting personal data held by private individuals", Buyer acknowledges responsibility to protect Seller's or its employees or
representatives' personal information held by the Buyer to ensure that this is done in a legitimate, supervised and transparent way which guarantees privacy and people's right to self-determine their information.
This document implies consent to the Buyer to obtain, use, disclose or store by any means Seller's or its employees or representatives' personal information that has been provided to the Buyer, such information can be shared with third parties (authorities, suppliers, shareholders, etc.) for research, statistical or counseling purposes, corporate reports, etc. and will be exclusively used for the purpose before mentioned. All shared information must be protected in the same way and under the "Federal Law protecting personal data held by private individuals" rights.
Xxxxx agrees to take all the reasonable technical and security precautions and implement appropriate policies to prevent any violation of the security, integrity and confidentiality of Seller's or its employees or representatives' personal information held by Xxxxx. Buyer appoints its Human Resources Department as the responsible area to fulfill this obligation and shall be responsible for ensuring the security and confidentiality of such information when it is stored and transferred.
Seller, it's employees or representatives mentioned in this document, can limit the use or disclosure of their personal information held by Buyer by written notice. Also, at any time and by written notice directed to the Buyer's Human Resources Department at Xxxxx's notice address, Seller, it"s employees or representatives could exercise their right to access, modify or cancel any personal information. Any change or substitution to this Privacy Note will be notified to Seller by written notice delivered at Seller's notice address.
The Seller (either on its own or by its appointed only representative, as applicable) undertakes, and assumes all responsibilities, to comply with regulation of the Council on Classification, Labelling and Packaging of Substances and Mixtures (CLP) and all applicable laws, including (without limitation) obligations pertaining to classification, labeling, (extended) safety data sheets and notification requirements of the Material under this contract.
The Seller represents and warrants to the Buyer that the Material fully complies with the CLP requirements and all applicable laws, and undertakes to promptly provide the Buyer with documentation (including, without limitation, (extended) safety data sheets and chemical composition analysis) evidencing CLP compliance and to promptly inform the Buyer the identified use(s) for which the registration has been obtained.
The Seller shall indemnify and hold harmless the Buyer against any and all costs, expenses, losses and damages arising out of or in connection with any delay or failure on the part of the Seller to comply with the requirements of CLP, including (without limitation) its failure to notify the Buyer of any change in the identity of its only representative (if applicable).
Modern slavery is a crime and a violation of fundamental human rights. It takes various forms, such as slavery, servitude, forced and compulsory labor and human trafficking: all of which have in common the deprivation of a person's liberty by another in order to exploit them for personal or commercial gain. The Buyer and Seller agree to comply with the terms of the Modern Slavery Act 2015 and will not engage in any activity that would constitute an offence under it if such activity were carried out in the UK, US, or Mexico.
Any breach of this Clause by the Buyer or Seller shall be deemed a material breach of the Contract and shall entitle the Buyer or Seller to terminate the Contract in accordance with Clause 22.
IN WITNESS WHEREOF the parties hereto have execute this Contract as of the day and year first above written.
Signed by:
For and on behalf of Seller:
Name in Print: Lie. Xxxxxx Xxxxx
Title: for Mineras de DynaResource
Date: February 1, 2021
Signed by:
For and on behalf of Buyer: MK METAL TRADING MEXICO SA DE CV
Name in Print: Title:
Date:
Xxxxxxx Xxxxxx
Trader
2-1-2021
Xxxxxx Xxxxxxxx
Admin
02 Feb 2021
SCHEDULE 1
PART A - Target Quantity and Shipment Schedule
Save for 5 monthly deliveries from February 2021 to June 2021 of 185 wmt per month +/- 10%, 100% of production from February 1, 2021 until December 31, 2022 subject to a minimum projected quantity of 18,000 wmt (+ or minus 25%) of concentrates delivered.
As part of the Credit Facility in Clause 8, Seller may at its option extend the contract until December 31, 2023 subject to a minimum of up to (depending on options selected) projected 27,000 wmt (+ or minus 25%) of concentrates delivered.
If at the end of the delivery period outlined above, the minimum tonnages have not been met, the contract will automatically extend until such point as the minimums have been met.
Trial lots of 185 WMT estimated 163.75 DMT, containing approx. 30-45grs/ton of Au, have been delivered by Seller to Buyer during January, 2021.
PART B - Delivery Port
The Concentrate is to be delivered OAP in bulk (lncoterms 2020) to Buyer's facilities in Manzanilla, Colima Mexico.
PART C - Right of First Refusal
Provided the Buyer will increase the Credit Facility Amount, as may be adjusted, by at least 1/3 of the value of the expected quarterly Zinc concentrate production , the Buyer shall receive a right of first refusal to buy 100% of the Seller's zinc concentrate production over the course of the agreement under separate contractual terms. If the parties can agree terms for the purchase of the zinc product, a corresponding increase to the Credit Facility Amount will also be mutually agreed concurrently and outlined under the separate contract.
SCHEDULE 2
Metal Payments
In respect of each dmt of Concentrate, the Buyer shall pay the following:
Silver:
Gold:
The Buyer shall pay the lower of (i) 93.5% of the silver content per dmt in the Concentrate as determined in accordance with this Contract, and (ii) the total number of units of such content less a deduction of fifty (50) grs per dmt, at a price equal to the daily US$ LBMA spot quotation price for silver, as published by "Fastmarkets MB" (or such as other information source or publication that may replace from time to time) averaged over the Quotational as per Clause 7.1 of this Contract.
The Buyer shall pay subject to a minimum deduction of two point zero (2.0) grs per dmt, at a price equal to the mean of the daily US$ LBMA morning and afternoon quotations for gold as published by "Fastmarkets MB" (or such other information source or publication that may replace from time to time), averaged over the Quotational Period as per Clause 7.1 of this Contract, the following amounts for Gold.
Deductions
< 35.00 grams
93.00%
93.50%
93.875%
94.25%
94.75%
95.00%
96.00%
The following deductions may be applied in respect of each dmt of Concentrate, where relevant. The Seller shall allow:
Penalties
Treatment Charge
A treatment charge of US$99.00 (ninety-nine) per dmt of Concentrate delivered as part of that shipment.
Freight Credit:
Seller shall allow Buyer a freight credit of USO$ 25/WMT
Silver Refining Charge
Seller shall allow Buyer a silver refining charge of US$0.50 per xxxx ounce (or pro rata for each fraction of an ounce) of the payable silver from that shipment of Concentrate in respect of which the above Metal Payment for silver applies.
Gold Refining Charge
Seller shall allow Buyer a gold refining charge of US$20.00 per xxxx ounce (or pro rata for each fraction of an ounce) of the payable gold from that shipment of Concentrate in respect of which the above Metal Payment for gold applies.
As:
Sb:
Pb:
Seller will allow Buyer a penalty of US$3.0 per each 0.1% the As content exceeds over 0.3%: Fractions pro rata.
Seller will allow Buyer a penalty of US$3.0 per each 0.1% the As content exceeds over 0.3%: Fractions pro rata.
Seller will allow Buyer a penalty of US$5.0 per each 1.0% the Pb content exceeds over 4.0%: Fractions pro rata.
Zn:
F:
Bi:
Seller will allow Buyer a penalty of US$5.0 per each 1.0% the Zn content exceeds over 12.0%: Fractions pro rata.
Seller will allow Xxxxx a penalty of US$3.0 per each 100ppm the F content exceeds over 750ppm: Fractions pro rata.
Seller will allow Buyer a penalty of US$3.0 per each 0.01% the Bi content exceeds over 0.10%: Fractions pro rata.
