EXHIBIT 10.29
EXPLORATION, EXPLOITATION AND UNILATERAL PROMISE TO SELL AGREEMENT (THE
"AGREEMENT") EXECUTED ON THE ONE PART BY XX. XXXXXXX XXXXXXXX XXXXXXXXX
(HEREINAFTER CALLED "THE CONCESSIONAIRE"), JOINTLY WITH HIS WIFE MRS. MA. DE LA
XXX XXXXXX XXXXX AND ON THE OTHER PART BY SIERRA MADRE RESOURCES, S. A. DE C. V.
(HEREINAFTER CALLED "THE COMPANY"), REPRESENTED BY MR. XXXXXX XXXXXX XXXXXXX, IN
ACCORDANCE WITH THE FOLLOWING STATEMENTS AND CLAUSES
S T A T E M E N T S
I. THE CONCESSIONAIRE STATES:
a) To be Mexican citizen, of legal age, married with Mrs. Ma. de la Xxx
Xxxxxx Xxxxx under the separation of goods regime, who jointly with
him sign in acceptance this agreement, and to be legally qualified to
be the owner of mining concessions and to execute this Agreement;
b) That he is the legal titleholder of the rights derived from the
exploration mining LOT existing over the lot ("THE LOT") "EL ARCO",
Title 218512, with a surface of 463 hectares, located in the
Municipality of Xxxxxxxx Papasquiaro, Durango State, within the
circumscription of the Mining Agency of Durango, Durango State;
c) That concession existing over THE LOT is in good standing, and of full
force and effect, and he has complied with all the obligations imposed
upon him by the Mining Law, its Regulations and all other applicable
legal dispositions, and he has neither done or omitted to do any act,
matter or thing that would render THE LOT liable to be surrendered,
canceled or forfeited.
d) That the above mentioned concession and the rights derived from said
mining LOT are free from any material encumbrances, claims, royalties,
limitation of dominion or interests of others of whatsoever nature or
kind;
e) That except as disclose to THE COMPANY, there are no proceedings
concerning THE LOT, or which might jeopardize this Agreement, pending
or threatened in any court or tribunal;
f) That he has an unfettered right to deal with the concession in the
manner provided for in this Agreement and that, except as disclosed to
THE COMPANY, there are no outstanding obligations or liabilities,
contingent or otherwise, relating to environmental, mining or other
applicable law associated with THE LOT or arising from past
exploration, development or mining activities carried out thereon;
g) That all information and data concerning THE LOT within his knowledge
has beendisclosed, provided or otherwise made available to THE
COMPANY; and
h) That he is willing to grant THE COMPANY the right to explore and
exploit THE LOT and a unilateral promise to SELL the rights derived
from the existing mining LOT or from those that would be issued over
THE LOT, in accordance with the terms and conditions stipulated in
this Agreement.
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II. THE COMPANY STATES:
a) To be a mining corporation legally incorporated according to the laws
of the Mexican Republic, legally qualified to execute agreements and
to be owner of mining concessions;
b) That its attorney Mr. Xxxxxx Xxxxxx-Xxxxxxx is xxxxx empowered to
represent it and to execute this Agreement; and
c) That it is willing to be granted with the right to explore and exploit
THE LOT and with the option to purchase the rights derived from the
existing mining LOT or from those that would be issued over THE LOT,
on the terms and conditions stipulated in this Agreement.
In accordance with the former statements, the parties grant the following
C L A U S E S
ONE. RIGHT TO EXPLORE AND EXPLOIT THE LOT. THE CONCESSIONAIRE hereby grants THE
COMPANY, subject to the terms and conditions of this Agreement, the exclusive
right to explore and exploit THE LOT during the term of the existing exploration
mining LOT and the term of the exploitation LOT, if one is applied for, and of
any renewals thereof. THE COMPANY shall be entitled to execute, during all said
terms, all exploration and exploitation works permitted to be executed by THE
CONCESSIONAIRE at the Mining Law, its Regulations and the title of mining LOT.
TWO. RIGHT TO TERMINATE THIS AGREEMENT IN ADVANCE. The term of this Agreement
will be compulsory for THE CONCESSIONAIRE and optional for THE COMPANY, who
consequently will be able to terminate it at any time by means of a simple
written notice to be sent 30 days in advance to THE CONCESSIONAIRE to inform him
of the date of termination.
Nevertheless, THE CONCESSIONAIRE will also have the right to terminate this
Agreement at any time, in accordance with provisions of Clauses Twelve and
Thirteen, in case THE COMPANY does not comply with the obligations it undertakes
in this Agreement.
THREE. GRANTING OF AN INITIAL OPTION. Upon execution of this Agreement, THE
CONCESSIONAIRE grants to THE COMPANY an Initial Option (the "Option") to conduct
a search regarding the legal status of THE LOT and decide if it wishes to
proceed with this Agreement and with the exploration and exploitation of THE
LOT. For this Option, THE COMPANY pays THE CONCESSIONAIRE the sum of US$1,000.
The term of this Option shall commence on the date of this Agreement and shall
expire on the 90th day following the execution of this Agreement (the "Due
Diligence" period). During its Due Diligence inspection of THE LOT, THE COMPANY
will absorb the cash costs associated with such inspection and Due Diligence
work.
Should THE COMPANY not complete its Due Diligence investigation within the
said 90 day period and, subsequent to the same, not notify THE CONCESSIONAIRE of
its intention to exercise the Option and proceed with the Agreement, (or
complete the investigation and notify THE CONCESSIONAIRE of its intention not to
exercise the Option and proceed with the Agreement), then said Option shall
expire at 12:00 midnight on the 90th day following the signing of this Agreement
and THE COMPANY shall forfeit the US$1,000.
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Should THE COMPANY notify THE CONCESSIONAIRE within said 90-day period that it
intends to exercise the Option and proceed with the Agreement, THE COMPANY will
pay THE CONCESSIONAIRE an additional US$1,000.
FOUR. MINIMUM ADVANCE ROYALTY PAYMENTS. Following the Company exercising its
Option rights in Clause Three to proceed with the Agreement, the concessionaire
shall be entitled to receive the following schedule of Minimum Advance Royalty
Payments:
o Six months after the Option is exercised US$2,000
o Twelve months after the Option is exercised US$2,000
o Eighteen months after the Option is exercised US$2,500
o Twenty-four months after the Option is exercised US$2,500
o Thirty months after the Option is exercised US$3,000
o Thirty-six months after the Option is exercised US$3,000
o Forty-two months after the Option is exercised US$3,500
o Forty-eight months after the Option is exercised US$3,500
o Fifty-four months after the Options is exercised and
on each six month interval, thereafter US$4,000
All Minimum Advance Royalty Payments shall be deductible by THE COMPANY against
any future Production Royalty Payments due THE CONCESSIONAIRE, on an unlimited
carry-forward basis.
FIVE. PRODUCTION ROYALTY. THE COMPANY shall pay THE CONCESSIONAIRE a net smelter
return royalty (hereinafter "Production Royalty") on net smelter returns or
invoices for first hand sales of minerals paid to THE COMPANY from minerals, ore
or other valuable products obtained and sold from THE LOT, that will be
calculated as follow:
a. THE COMPANY shall be entitled to recover all of its Development
Capital Expenditures ("DCE") before any Production Royalty Payments
are made to THE CONCESSIONAIRE. DCE are defined as any project-related
development expenditures, pursuant to a third party feasibility study,
incurred by THE COMPANY prior to achieving a commercial level of
production, as defined in the feasibility study.
b. While THE COMPANY is recouping its DCE from the project's net
operating cash flow, Minimum Advance Royalty Payments to THE
CONCESSIONAIRE shall be paid at the rate of 200% of the applicable
amount reflected in the schedule of Minimum Advance Royalty Payments,
pursuant to Clause Four.
c. Once production commences from THE LOT and THE COMPANY has recovered
all of its DCE from of the project's net operating cash flow, THE
CONCESSIONAIRE shall be entitled to receive a quarterly Production
Royalty Payment, which shall be calculated based on the attached
Production Royalty Sliding Scale - Exhibit A and shall be payable by
not later than the 45th day following the end of each quarterly
period.
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d. The applicable Production Royalty Payment percentage for each
quarterly period, as per Exhibit A, shall be multiplied by the actual
sales recorded by THE COMPANY for the quarter, less any shipping and
third party refining charges (net smelter return).
THE COMPANY shall make the Production Royalty Payments to THE CONCESSIONAIRE by
wire transfer to a bank account against receipt of the corresponding invoice or
invoices (IVA added and mentioned separately), on a quarterly basis within forty
five (45) days following the close of each quarter during which THE COMPANY
would have received final payments for the sale of minerals, ore or other
valuable products.
SIX PURCHASE BUY-OUT PRICE. THE COMPANY shall own THE LOT free of making any
further payments, of any kind, to THE CONCESSIONAIRE once THE COMPANY has paid
THE CONCESSIONAIRE a total sum of US$3.5 million (the "Payments"). For this
purpose, the Payments to THE CONCESSIONAIRE shall include the $US1,000 payment
to grant the Option, the US$1,000 payment to exercise the Option, all Minimum
Advance Royalty Payments and all Production Royalty Payments.
SEVEN. COMMINGLING. THE COMPANY shall have the right to commingle minerals,
ores, concentrates or other valuable products obtained from THE LOT with
minerals, ores, concentrates or other products produced from other properties
provided that, prior to such commingling, THE COMPANY shall adopt and employ
reasonable practices and procedures for weighing, determination of moisture
content, sampling and assaying, as well as utilizing reasonable accurate
recovery factors in order to determine the amounts of products derived from, or
attributed to minerals, ores, concentrates or other valuable products obtained
from THE LOT. THE COMPANY shall maintain accounts and records of the results of
such sampling, weighing and analysis as pertaining to ores mined, concentrates
or other valuable products obtained from THE LOT, and shall notify THE
CONCESSIONAIRE at any time that such commingling is taking place, and shall
provide to THE CONCESSIONAIRE, on request, complete copies of all the records
maintained as required hereby, and an accounting of the results thereof.
EIGHT. FEES, DUTIES TAXES AND EXPENSES. All fees, duties, taxes and expenses
incurred on the granting and execution of this Agreement and of the respective
purchase agreement will be paid by THE COMPANY, except for those taxes imposed
on the income obtained by THE CONCESSIONAIRE, which will be paid by him. In
particular, THE COMPANY will be responsible for paying the mining taxes on THE
LOT for the first semester of 2004, which are payable on January 1, 2004.
Therefore, to receive the payments provided herein, THE CONCESSIONAIRE shall
have to deliver to THE COMPANY invoices or receipts with all legal and tax
requirements.
NINE. LABOR RESPONSIBILITY. Since there will not exist any labor relation
between the workers and contractors of the respective parties to this Agreement,
each party expressly agrees that, with respect to its workers and contractors,
it or its contractors, as to their workers, will assume all labor
responsibility, and therefore, each party agrees to indemnify the other party
from any reclamation, claim, accusation or complaint which may be filed against
the other party by first party's workers or employees, or those of its
contractors, or by the labor or administrative authorities.
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TEN. CONFIDENTIALITY. Each party (in this Clause referred to as the "Disclosing
Party") undertakes and agrees:
(1.) Not to use in any way any Confidential Information of any other party
without the prior approval of that other party;
(2.) Not to disclose to any person or assist or make it possible for any
person to observe any Confidential Information of any other party,
without the prior approval of that other party or otherwise in
accordance with the provisions of this Clause; and
(3.) Not to allow or assist or make it possible for any person (other than
any of the parties) to observe any Confidential Information, without
the prior approval of each other party.
Nothing in this Clause prohibits the disclosure of Confidential Information by
any Disclosing Party:
(i.) To any corporation or other entity affiliated with the
Disclosing Party;
(ii.) If and to the extent required pursuant to any necessarily
applicable legislation or other the legal requirement or
pursuant to the rules or regulations of any recognized stock
exchange which are applicable to the Disclosing Party or any
entity affiliated with the Disclosing Party, PROVIDED HOWEVER
that the Disclosing Party will use its best endeavor to provide
a copy of any such disclosure or announcement to the other
party prior to making or releasing same;
(iii.)If and to the extent that it may be necessary or desirable to
disclose the information to any government or governmental
authority or agency in connection with applications for any
government consents which are necessary to carry out this
Agreement;
(iv.) To a recognized financial institution (and its professional
advisers) or other fiduciary in connection with any loan or
other financial accommodation sought to be arranged by the
Disclosing Party for purposes of this Agreement;
(v.) To professional advisers (including legal advisers) and
consultants of the Disclosing Party whose duties in relation to
the Disclosing Party or under this Agreement necessarily
require the disclosure;
(vi.) To employees, officers, representatives, and agents of the
Disclosing Party whose duties in relation to the Disclosing
Party or under this Agreement necessarily require the
disclosure; or
(vii.) Pursuant to a binding order of any court of competent
jurisdiction or other competent authority;
The provisions of this Clause shall survive and continue to bind the parties
following termination of this Agreement. The undertakings and agreements
contained in this Agreement shall be in addition to and shall in no way derogate
from the obligations of the parties in respect of secret and confidential
information at law, in equity or under any statute or trade or profession custom
or use.
ELEVEN. ADDITIONAL OBLIGATIONS OF THE CONCESSIONAIRE. In addition to the
obligations assumed by THE CONCESSIONAIRE in the preceding clauses, during the
term this Agreement will be in force, he will also have the following
obligations:
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a) During the Due Diligence period, to maintain valid and in force the
rights derived from the existing mining LOT or from those that would
be issued over THE LOT and, likewise, to maintain it free and clear
from any lien, encumbrance or limitation of dominion, fulfilling all
obligations imposed to him by the Mining Law, its Regulations and all
applicable legal provisions; ninth
b) During the Due Diligence period, to provide THE COMPANY, free of
charges and expenses, in the City of Durango, Durango, Mexico, with
all of his data and information regarding THE LOT. THE CONCESSIONAIRE
will also make himself available at THE LOT, for the purpose of
examining THE LOT or for any other reason deemed necessary or
advisable by THE COMPANY. THE CONCESSIONAIRE reasonably believes that
his data and information is accurate but does not make any
representations or warranties concerning the accuracy or completeness
of such data and information. Any reliance placed upon any data or
information furnished to THE COMPANY in good faith by THE
CONCESSIONAIRE, whether in written documents or verbally, shall be at
the sole risk of THE COMPANY.
c) During the Due Diligence period, permit THE COMPANY to carry out all
kind of exploration or evaluation works and metallurgical tests in THE
LOT as it may consider necessary, as well as to provide it with all
the information he may have on THE LOT;
TWELVE. ADDITIONAL OBLIGATIONS OF THE COMPANY. In addition to the obligations
assumed by THE COMPANY in the preceding clauses, during the term this Agreement
will be in force, it will also have the following obligations:
a) To carry out the exploration and exploitation at THE LOT, in its sole
discretion in terms of the nature of the activities and the levels of
expenditures, in the best possible manner, according to the most
appropriate and rational mining practices and in accordance with all
legal dispositions, executing enough exploration works in order to
fulfill with the provisions of the law;
b) To fulfill punctually with the obligations to prepare and file the
exploration assessment works and to pay the duties on mining LOT;
c) To maintain THE LOT in good shape and exploration and exploitation
conditions, complying with all legal obligations, especially those
contained at the Mining Law, its Regulations, as well as by the
Environmental Laws;
d) To punctually pay to THE CONCESSIONAIRE all considerations provided
herein in this Agreement; and
e) Permit THE CONCESSIONAIRE, or his agents, to inspect THE LOT and the
works that will be carried out on them upon providing THE COMPANY with
advance notice of the visit and without interfering in the good
performance of the exploration or exploitation works.
If, at any time during the term of this Agreement, THE COMPANY would not comply
with the obligations assumed by it in this Agreement, and especially with those
mentioned in this Clause, THE CONCESSIONAIRE will have the right to terminate
this Agreement under the terms of Clause Thirteen, herein below, independently
of his right to ask an indemnification for damages.
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THIRTEEN. UNFULFILLMENT. The unfulfillment by any of the parties of the
obligations they assume in this Agreement, will grant the other party the right
to ask the immediate fulfillment of the non-fulfilled obligations. For said
purpose, it will have to inform the party in writing of the default to fulfill
said obligations and if, after a sixty days period from the date of delivering
said petition, the unfulfillment still exist and no reasonable effort to remedy
it has been made, then the affected party will have the right, at its option, to
ask in court the fulfillment of the unfulfilled obligations or to terminate this
Agreement, being entitled in both cases to ask for indemnification for damages.
FOURTEEN. INDEMNIFICATION. THE CONCESSIONAIRE agrees to indemnify and hold THE
COMPANY harmless from and against any liabilities, claims, losses, damages,
costs and expenses of any kind (including, without limitation, the reasonable
fees and disbursements of THE COMPANY'S counsel) that may be incurred by THE
COMPANY relating to or arising out of any breach of the representations and
warranties made by THE CONCESSIONAIRE in Clauses One and Eleven, hereof, which
cannot be cured or, if curable, has not been cured within 60 calendar days
following receipt by the breaching party of written notice of such breach.
THE COMPANY agrees to indemnify and hold THE CONCESSIONAIRE harmless from and
against any liabilities, claims, losses, damages, costs and expenses of any kind
(including, without limitation, the reasonable fees and disbursements of THE
CONCESSIONAIRE'S counsel) that may be incurred by THE CONCESSIONAIRE relating to
or arising out of any breach of the representations and warranties made by THE
COMPANY in Clauses Two and Twelve, hereof, which cannot be cured or, if curable,
has not been cured within 60 calendar days following receipt by the breaching
party of written notice of such breach.
FIFTEEN. FORCE MAJEURE It will not be considered that the parties have incurred
an fulfillment when, due to force majeure, they will be unable to fulfill with
the obligations they assume under this Agreement.
It will be considered as force majeure, in an enunciative but not in a
limitative way: earthquakes, fires, floods, collapses, riots, rebellions, wars,
strikes, revolutions, acts of authority and, in general, any other fact or act
totally out of the will of the parties and of their control and which prevent
them to fulfill, totally or partially, with their obligations.
When any of the parties will be affected by force majeure, and therefore unable
to fulfill with its obligations, it shall so notify the other party, informing
about the estimated time said force majeure will prevent said party to fulfill
with its obligations.
If after six months from the date in which such force majeure have occurred, it
prevails and no reasonable efforts have been made to remedy such force majeure
when possible, then the other party will have the right to terminate this
Agreement.
SIXTEEN. TOTAL AGREEMENT OF THE PARTIES. This Agreement reflects the total
agreement between the parties with respect to its purpose, and therefore,
cancels and leaves without effects any other agreements, contracts or letters of
intent, executed previously between them with respect to the same purpose.
This Agreement will oblige under its terms and conditions to the heirs,
assignees or beneficiaries of the parties.
The parties agree to ratify their signatures in this Agreement before a Notary
Public and to register it with the Public Registry of Mining in accordance with
the provisions of the Mining Law and its Regulations.
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SEVENTEEN. NOTICES AND NOTIFICATIONS. All notices and notifications to be made
between the parties in accordance with this Agreement, shall be made, by one
part to the other, either verbally or written, being understood that when it be
desired that a notice or notification be on record, it shall be made before a
Notary Public.
For the purposes of this Agreement the parties hereby set the following
addresses:
THE CONCESSIONAIRE THE COMPANY
Sr. Ing. Xxxxxxx Xxxxxxxx Xxxxxxxxx SIERRA MADRE RESOURCES, S.A. de C.V.
Xxxxxxxxx N(0) 122 San Francisco N(0) 656 - 601
Fracc. Jardines de Durango, C.P. 34200 Col. Del Xxxxx, X.X. 03100,
Durango, Durango Mexico, D.F.
Tel. and Fax: (000) 000-0000 Tel.: (0) 000-0000
Fax: (0) 000-0000
Any change in the above mentioned addresses shall be notified by one party to
the other when it occurs.
EIGHTEEN. APPLICABLE LAWS AND COURTS. For everything not expressly stipulated in
this Agreement, the parties submit themselves to the applicable laws in Durango,
Durango State, especially to those of the Mining Law, its Regulations, the
Federal Duties Law, the Commerce Code and the Civil Code for the State of
Durango, and they agree to also to submit to the jurisdiction of the competent
courts in Durango, Durango, waiving to the jurisdiction of any other courts to
which they may be entitled by reason of their present or future domiciles.
This Agreement is signed by quadruplicate by THE CONCESSIONAIRE in Durango,
Durango State on the 6th Day of February, 2004 and by THE COMPANY in Mexico,
Federal District, the 20th day of February, 2004.
THE CONCESSIONAIRE THE COMPANY
SIERRA MADRE RESOURCES, S. A. DE C. V.
/s/ Xxxxxxx Xxxxxxxx Xxxxxxxxx Per: /s/ Xxxxxx Xxxxxx Jimenex
---------------------------------- --------------------------------
Xx. Xxxxxxx Xxxxxxxx Xxxxxxxxx Mr. Xxxxxx Xxxxxx Xxxxxxx.
/s/ Ma. de la Xxx Xxxxxx Nunex
----------------------------------
Mrs. Xx. xx xx Xxx Xxxxxx Xxxxx
0
EXHIBIT A
EL ARCO LOT
PRODUCTION ROYALTY SLIDING SCALE
________________________________________
AVERAGE QUARTERLY PRODUCTION ROYALTY
GOLD PRICE (A) PERCENTAGE
_______________________ _____________________
Less than $300 1.0%
$300 but less than $325 2.0%
$325 but less than $350 2.5%
$350 but less than $375 3.0%
$375 but less than $400 3.5%
$400 but less than $425 4.0%
$425 but less than $450 5.0%
$450 or greater 6.0%
(A) Average daily 2nd London Metal Exchange closing gold price for the quarter.
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