Translated from Portuguese) MEMORANDUM OF UNDERSTANDING
Exhibit 10.36
(Translated
from Portuguese)
By this
present Agreement entered into by the parties:
AURORA
GOLD MINERACAO LTDA, a company registered with CNPJ under no.
07.763.340/0001-50, with its Office at Xx. xxx Xxxxxxxx, xx 000, Xx. 0, Xxx.
215-A, parte, CEP 22640-100, Barra da Tijuca, Rio de Janeiro, RJ, in this act
represented by its attorney Xxxx Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx, Brazilian,
single, lawyer, registered with the Brazilian Bar Association (RJ) under no.
80412 and registered at CPF under no. 000.000.000-00, hereinafter referred to as
AURORA;
XXXXX
XXXXX XX XXXXX, Brazilian, single, businessperson, bearer of ID card RG 1541442
SSP/PA, registered at CPF under no. 000.000.000-00, with address at Passagem
Clodison Xxxxxx, do Vale, no. 52, bairro N. Sa. do Xxxxxxxx Xxxxxxx, Itaituba,
Pará, CEP 68180-100, hereinafter referred to as LICENSEE, and all parties
collectively referred to as CONTRACTING PARTIES.
OBJECT:
Hereinafter referred to as “Garimpo Comandante Arara”, located in the
Municipality of Itaituba, Pará, made up of Applications for Mining Permissions
DNPM no. 853.785/93 to 853.839/93, held in the name of Xxxxx Xxxxxx xx Xxxxx
Xxxxxx, hereby present as Consenting Intervenor.
D.
WHEREAS the CONTRACTING PARTIES wish to enter into and celebrate an Agreement
for the Assignment and Transfer of Mineral Rights and Researches, and for such
purpose AURORA shall assist in obtaining research permits and, in order to
preserve the negotiation, the parties agree to execute this temporary Memorandum
of Understanding instrument, hereinafter referred to as MOU, and having as its
object the establishment of the right and obligations of the CONTRACTING PARTIES
among themselves and any third party, until a definitive Agreement is
celebrated.
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Therefore,
the CONTRACTING PARTIES have decided to enter into and celebrate this Memorandum
of Understanding which shall be subject to the following terms and
conditions:
1.1 - In
view of that specified in item B of this MOU, AURORA undertakes hereby to pay
the LICENSEE the sum of R$ 100.000,00 (one hundred thousand reals), as a deposit
to have the sole and exclusive right to duly and in detail appraise the GARIMPO,
of which R$ 20.000,00 (twenty thousand reals) are paid on the date of the
signing of this instrument, and therefore the LICENSEE hereby grants full,
general and irrevocable acquittance; R$ 40.000.00 (forty thousand reals) shall
be paid on 15.11.2006 and the remaining R$ 40.000,00 (forty thousand) shall be
paid on 15.12.2006.
1.2 - The
payments called for in this MOU shall be made through a bank deposit in the
account of Xxxxx Xxxxx xx Xxxxx, account with Banco Bradesco, account nº
023252-1, at Branch 0759-5, which the LICENSEE indicates to AURORA.
1.3 - The
LICENSEE, as from the date of the execution hereof and within the period of 60
days, undertakes not to assign, transfer, encumber or lien the mineral rights
relating to the GARIMPO, who according to the terms and conditions set forth in
this instrument agrees to make available to AURORA, with exclusivity, to inspect
and examine all and any data it might have access to in regard to GARIMPO.
During this period, AURORA shall make site visits, examine the data and decide
to exercise its option to acquire the GARIMPO. In case AURORA decides to
exercise its option to acquire the GARIMPO, it shall notify the LICENSEE of its
decision at least five days prior to the expiration of the abovementioned
period.
2.1 - In
accordance with item 1.3 of this MOU, having AURORA notified the LICENSEE of its
interest to acquire the GARIMPO, the parties shall celebrate an “Agreement for
the Assignment and Transfer of Mineral Rights and Other Covenants”, which shall
establish the terms and conditions of assignment based on this MOU, and if the
respective research permits have already been granted, apply to the DNPM an
endorsement for the transfer of the mineral rights to AURORA, or another party
it may indicate, according to Annex B, all in accordance with the price
conditions established as follows:
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Payment
|
Date
|
a.
R$ 40.000,00*
|
15.01.2007
|
b.
R$ 25.000,00**
|
15.03.2007
|
c.
US$ 60,000**
|
15.07.2008
|
d.
US$ 70,000**
|
15.07.2009
|
e.
US$ 500,000**
|
15.07.2010
|
* The
payment of this instalment shall be made provided the LICENSEE confirms, through
certificate issued by the DNPM that the mineral rights all have priority and the
processes are duly registered without any vice which may impair
them.
** The
payment of the instalment(s) in questions shall be made provided survey
authorization for the mineral rights in question has been obtained and the
assignment of the mineral rights endorsed to AURORA. In case of delay, that is,
the conditions are not met by 15.03.07, the payment (b) shall be postponed, with
the rest to be made at the time intervals defined above and provided such
payment conditions are met.
2.1.1 In
addition to the price herein established, AURORA shall pay to the LICENSEE a
monthly participation in the mining results which might be obtained in any of
the mineral rights in the GARIMPO, in a value equivalent to 1.5% (one and half
percent) of the monthly net results of the primary gold production, as defined
below in item 2.1.2.
2.1.2 The
participation in the mining results shall be paid by the 10th (tenth) business
day of the month subsequent to the production month, and the payment shall be
made through a bank deposit as indicated above or as stipulated by the
LICENSEE.
2.1.3 For
the purposes specified above, the production net result shall correspond to the
value of the gross revenue AURORA obtains from the sale of the gold produced and
originating from the GARIMPO, being deducted the values corresponding to (i)
transportation cost from the mine to the refinery; (ii) refining cost; (iii) any
and all direct taxes of any nature incurred with the sale of the gold; and (iv)
“financial compensation" as provided for in Law 7790 of December 28,
1989.
2.1.4
AURORA is entitled to the right to redeem the payment obligation on the
participation in the mining results, item 2.1.1, upon payment of the equivalent
in local currency to US$ 1,000,000 (one million US dollars).
2.2 The
LICENSEE hereby shall, under the terms of this instrument and in the best form
of the law, permit AURORA to execute in the GARIMPO for an initial period of 2
(two) months as from the date of this MOU, and an additional 42 (forty-two)
months in case the GARIMPO is acquired, assessment work and geological survey
which it deems necessary to ascertain the existence of possible primary deposits
which may be economically explored. It should be noted that during the
geological assessment of the GARIMPO, the LICENSEE may develop works therein
provided that work in the said mining site does not interfere with AURORA’s
research activities.
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2.3
Regarding the ownership, the LICENSEE declares to be the legitimate and sole
owner of the areas comprising the GARIMPO, and therefore, the mining results,
right to rental or any indemnifications are included in the prices established
in clause 2.1 above. In case of absence of authorizations or eventual problems
with access or title to the surface areas, these shall be resolved by the
LICENSEE, and in the absence of a solution, AURORA is authorized to resolve such
matters and shall deduct all and any cost incurred from the values due to the
LICENSEE.
2.4 For
such purpose, the LICENSEE agrees to the best of its ability to provide AURORA
with technical, legal and operational support, as well as undertake to endeavour
its best efforts to obtain the registration of the above assignment within the
shortest period possible and assist in any way possible for the success of the
surveys and for reaching the objectives hereby proposed, with AURORA being
responsible for the financial expenses incurred to obtain such
results.
2.5
AURORA may, after the registration of the assignment and transfer of rights,
transfer to any third parties the mineral rights granted to it under this
Agreement, provided there is an inclusion of a clause in this
regard.
2.6 At
any time, AURORA shall be entitled to terminate this MOU and withdraw from the
GARIMPO, by means of a notice, fax, cable or advice to the LICENSEE to this
effect, being henceforth free of any and all payment commitments yet to be due.
If AURORA decides to exercise its option to terminate the Agreement, it shall
deliver to the LICENSEE in due course a detailed technical report which shall
include all and any information gathered to date.
2.7 Each
of the CONTRACTING PARTIES herein shall be liable for any and all environmental
damages resulting from their activities carried out in the GARIMPO. In this
regard, the LICENSEE is responsible for the environmental damages caused to the
GARIMPO up to the signing of this agreement. In case of non-compliance of such
obligations, AURORA is authorized to provide for eventual recovery work,
deducting the expenses incurred from the amounts payable according to above item
2.1.
2.8 At
any time during the period of this MOU, AURORA may exercise the right referred
to in clause 1.3 above by means of an express notification to the LICENSEE in
this regard from which the transfer of the mineral rights shall be effected and
the definitive agreement signed within 5 (five) days, and for this purpose the
LICENSEE and the Consenting Intervenor hereby xxxxx xxxxxx to the representative
of AURORA to enable him to submit the respective transfer to the DNPM, according
to annex C.
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3.1 The
terms of this Agreement as well as all and any technical and financial
information referring to the GARIMPO constitute confidential information of the
CONTRACTING PARTIES and shall not be disclosed, divulged or made known to any
third party or published without previous written consent of the non-disclosing
party. Exception to the confidentiality obligation will be the case in which any
of the CONTRACTING PARTIES needs to disclose said information as a result of it
being linked to the stock market and disclosure is required by law.
4.1 Any
notice and communication related to the GARIMPO shall be given in writing and
shall be deemed to be effectively given upon personal delivery, or by registered
letter or upon receipt of transmission by fax or cable, provided there is an
acknowledgement of receipt.
5.1 Each
of the PARTIES herein represents and warrants to each other that:
a. They
have the power, capacity and authority to enter into and perform the Agreement
and all transactions contemplated herein;
b. There
are no provisions in their By-laws, statutes or agreements of which they are a
party or object which may prevent the celebration and execution of this
Agreement;
c. The
celebration of the Agreement shall not result in a default under any agreement
or instrument to which the PARTIES are a party, as well as shall not infringe
any applicable laws, regulations, suits, decree or rule which they might obey or
any arrangement, waiver, or agreement of which it is a party;
5.2 The
LICENSEE hereby declares and guarantees that:
a. The
Applications for Mining Permission have assured priority.
b. There
are no pending liabilities, warranties, pledge, or any other obligations which
might significantly in any way interfere with the mineral rights object of the
Agreement, and said rights are free and clear of any claims, liens or
encumbrances;
c. In
respect of item 2.1 with regard to the mineral rights herein referred to, there
are no contractual obligations in respect to royalties, finder’s fee and/or any
other contribution to any landowners, occupiers or third parties;
d. There
are no pending environmental liabilities.
5.2.1 In
case it is shown that the mineral rights are not priority in their totality or
in case some irregularity is found in the instruction of the processes, proven
by means of the certificate referred to in item 2.1, the LICENSEE undertakes to
reimburse to AURORA the amounts which already have been paid as a result of this
agreement, in which case this agreement is then rescinded.
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5
5.2.2 In
case AURORA is impeded from proceeding to the transformation of the mineral
rights into survey permits and from transferring them to AURORA, either due to
impediment caused by the Consenting Intervenor or by any other reason which is
not caused solely and exclusively by AURORA, the LICENSEE undertakes to
reimburse AURORA all amounts which already have been paid as a result of this
agreement, in which case this agreement is then rescinded.
6.1 This
MOU represents and comprises all the understanding and commitments agreed
amongst the CONTRACTING PARTIES, and replaces or overlaps any and all previous
agreements and negotiations, verbal or written, with regard to the issues herein
addressed.
6.2 By
this MOU the signatories, their successors and any assignees are obliged to
comply with the terms and conditions set forth herein.
6.3 This
MOU shall not be amended, in its parts or as a whole, except when previously
agreed upon by the CONTRACTING PARTIES, and provided that such changes are done
upon a written consent, executed and signed by the representative of each
party.
6.4 No
tolerance by any of the CONTRACTING PARTIES with regard to any future defaults
in the compliance of this instrument shall constitute an amendment or novation
of the conditions agreed upon herein.
6.5 This
MOU and its annexes, which after being signed by the CONTRACTING PARTIES and the
witnesses will make an integral part of this instrument, represent the whole
agreement entered into by the Parties, and shall govern and regulate their
activities, according to the terms and conditions set forth hereto.
6.6 The
terms set forth in this agreement are valid and binding and shall regulate and
govern the business amongst the CONTRACTING PARTIES, until a definitive
Agreement is executed which is expected to occur by 31.12.2006.
6.7 The
CONTRACTING PARTIES declare and warrant that they grant an extrajudicial,
executive power to this MOU, with full force, according to the terms established
in item II, article 621 of the Code of Civil Procedure, with the reading given
in Act 8953/94.
7.1 This
agreement shall be governed by the laws of Brazil.
7.2 The
Parties hereby agree that any and all dispute arising from this agreement shall
be resolved at the Main Court of Rio de Janeiro, with exclusion of any other,
prevailing over any other.
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However,
the parties are entitled to resolve any dispute by means of arbitration at the
court of the capital of Rio de Janeiro.
Rio de
Janeiro, November 01, 2006
(Signature)
|
AURORA
GOLD MINERAÇÃO LTDA.
|
(Signature)
|
XXXXX
XXXXX XX XXXXX
|
Consenting
Intervenor:
|
(Signature)
|
Xxxxx
Xxxxxx xx Xxxxx Xxxxxx
|
Witnesses:
|
1)
(Signature)
|
2)
(Signature)
|
Notary
Public stamp and seal, signed 10NOV2006, authenticating the signature of Xxxxx
Xxxxx xx Xxxxx and Xxxxx Xxxxxx xx Xxxxx Xxxxxx.
Notary
Public stamp and seal, signed 17NOV2006, authenticating the signature of Xxxx
Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx.
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7
Annex
A
Copy of
the assignment of rights between Xxxxx Xxxxxx and Xxxxx Xxxxx
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Annex
B
TO THE
DIRECTOR OF THE NATIONAL DEPARTMENT OF MINERAL PRODUCTION (DNPM)
DNPM no.
853.785/93
XXXXX
XXXXXX XX XXXXX XXXXXX, Brazilian, bearer of ID card no. 2708157 SSP/PA,
registered at CPF under no. 000.000.000-00, through her attorney,
hereinafter referred to as ASSIGNOR, and AURORA GOLD MINERACAO LTDA, a company
registered with its Office at Xx. xxx Xxxxxxxx, xx 000, Xx. 0, Xxx. 215-A,
parte, CEP 22640-100, Barra da Tijuca, Rio de Janeiro, RJ, in this act
represented by its attorney Xxxx Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx, Brazilian,
single, lawyer, registered with the Brazilian Bar Association (RJ) under no.
80412 and registered at CPF under no. 000.000.000-00, hereinafter referred to as
ASSIGNEE, hereby inform and request the following:
On
________, the ASSIGNOR, applicant of the above-mentioned mineral rights,
executed with the ASSIGNEE an “Agreement of Assignment of Mineral Rights”,
transferring to the latter the aforesaid mineral rights, in accordance with the
document submitted to this DNPM as per annex I. Therefore, the parties hereby
present resolve to apply for the filing and registry of the requests for
assignment and registration of the transfer.
We
remain,
Requesting
your approval,
Belém,
______________
(Signature)
|
XXXXX
XXXXXX XX XXXXX XXXXXX
|
Pp
Xxxxx Xxxxx xx Xxxxx
|
(Signature)
|
AURORA
GOLD MINERAÇÃO LTDA.
|
Notary
Public stamp and seal, signed 10NOV2006, authenticating the signature of Xxxxx
Xxxxx xx Xxxxx.
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PRIVATE
AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF MINERAL RIGHTS AS
FOLLOWS:
By this
private agreement and as prescribed by law, the parties: Xxxxx Xxxxxx xx Xxxxx
Xxxxxx, Brazilian, bearer of ID card no. 2708157 SSP/PA, registered at CPF under
no. 000.000.000-00, hereinafter referred to as ASSIGNOR, and AURORA GOLD
MINERACAO LTDA, a company registered with its Office at Xx. xxx Xxxxxxxx, xx
000, Xx. 0, Xxx. 215-A, parte, CEP 22640-100, Barra da Tijuca, Rio de Janeiro,
RJ, in this act represented by its attorney Xxxx Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx,
Brazilian, single, lawyer, registered with the Brazilian Bar Association (RJ)
under no. 80412 and registered at CPF under no. 000.000.000-00, hereinafter
referred to as ASSIGNEE.
1. By
this present private agreement entered into, and as prescribed by law, the
ASSIGNOR assigns and transfer to the ASSIGNEE the Mineral Rights, as they are in
fact assigned and transferred, in a definitive manner.
2. It is
up to the ASSIGNEE to verify with the DNPM the correctness, validity and legal
status of the Mineral Rights now being assigned, and it is agreed that this
present instrument will automatically loose any legal effect with regard to any
of the Mineral Rights which for any reason is denied or declined by the DNPM,
and as such nothing shall be alleged against the ASSIGNOR, and the parties shall
mutually endeavour their best efforts to obtain the registration of the
assignment now being agreed upon.
3. It is
the responsibility of the ASSIGNEE, independently of the registration of the
Mineral Rights referred to herein, to pay all and any taxes or
expenses.
4. The
ASSIGNOR hereby grants the ASSIGNEE, with regard to the Mineral Rights, full
representation powers with the DNPM - National Department of Mineral Production,
the Ministry of Mines and Energy, the State Secretary for Environment of the
State of Pará, and IBAMA - The Brazilian Institute of Environmental and
Renewable Natural Resources, with full powers to request and apply for the
registration of the assignment, provide declarations and clarifications, to
sign, present or withdraw any document, to meet requirements, make payments,
receive the corresponding receipts, to ratify or rectify, or to compromise as
well as to practice any and all acts necessary for the good compliance of the
powers herein granted.
5. This
present instrument is irrevocable and the signatories, their heirs or
successors, are obliged to comply with the terms and conditions set forth
herein, and any previous document signed between the parties with the object
being the assignment and transfer of the Mineral Rights referred to herein shall
be null and void.
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6. The
Parties hereby agree that any and all dispute arising from this agreement shall
be resolved at the Main Court of the city of Rio de Janeiro, with the waiver of
any other, prevailing over any others.
Belém,
______________
(Signature)
|
(Signature)
|
XXXXX
XXXXXX XX XXXXX XXXXXX
|
XXXXXX
GOLD MINERAÇÃO LTDA
|
Pp
Xxxxx Xxxxx xx Xxxxx
|
|
Witnesses:
|
|
1)
(Signature)
|
2)
(Signature)
|
Xxxxxx
Xxxxxx
|
Bruna
Wandermurem
|
Notary
Public stamp and seal, signed 10NOV2006, authenticating the signature of Xxxxx
Xxxxx xx Xxxxx.
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Annex
C
SUB-ASSIGNMENT
OF POWER OF ATTORNEY
XXXXX
XXXXX XX XXXXX, Brazilian, single, businessperson, bearer of ID card no. 1541442
SSP/PA, registered at CPF under no. 000.000.000-00, with address at Passagem
Clodison Xxxxxx, do Vale, no. 52, bairro N. Sa. do Xxxxxxxx Xxxxxxx, Itaituba,
Pará, CEP 68180-100, attorney of Xxxxx Xxxxxx xx Xxxxx Xxxxxx, Brazilian, bearer
of ID card no. 2708157 SSP/PA, registered at CPF under no. 000.000.000-00,
sub-assigns the powers received in favour of Xxxx Xxxxxxxx Xxxxxxxxxx xx
Xxxxxxx, Brazilian, single, lawyer, registered with the Brazilian Bar
Association (RJ) under no. 80.412 and registered at the CPF under no.
000.000.000-00, granting him powers to represent her in the condition of
titleholder of certain mineral rights in areas located in the Municipality of
Itaituba, Para, comprised of Requests for Mining Permit DNPM no. 853.785/93 to
853. 839/93, with ample and general powers to check, obtain copies, receive,
transfer and/or assign, either with or without payment, withdraw, renounce, meet
requirements, apply for transformation into the system of survey authorization,
including act at the National Department of Mineral Production (DNPM), the
Ministry of Mines and Energy, the Brazilian Institute of Environmental and
Renewable Natural Resources, SECTAM, and in any other agency of the Public
Federal, State and Municipal Administration, Notary Public Offices in general,
with powers also to sub-assign this present Power of Attorney, which, therefore,
is signed in an irrevocable manner.
Belem,
November 01, 2006
|
(Signature)
|
XXXXX
XXXXX XX XXXXX
|
Notary
Public stamp and seal, signed 10NOV2006, authenticating the signature of Xxxxx
Xxxxx xx Xxxxx.
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12
POWER OF
ATTORNEY
XXXXX
XXXXXX XX XXXXX XXXXXX, Brazilian, bearer of ID card no. 2708157 SSP/PA,
registered at CPF under no. 000.000.000-00, hereby appoints as her attorney Xxxx
Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx, Brazilian, single, lawyer, registered with the
Brazilian Bar Association (RJ) under no. 80412 and registered at CPF under no.
000.000.000-00, granting him powers to represent her in the condition of
titleholder of certain mineral rights in areas located in the Municipality of
Itaituba, Para, comprised of Requests for Mining Permit DNPM no. 853.785/93 to
853. 839/93, with ample powers to take all necessary steps to receive, transfer
and assign, whether free or in payment, the Requests for Mining Permits and the
Survey Requests, who may apply whatever is necessary, including request for
transformations of the same requests into Mineral Research Licenses, as well as
visit, and contact the NATIONAL DEPARTMENT OF MINERAL PRODUCTION (DNPM), the
Ministry of Mines and Energy, the Brazilian Institute of Environmental and
Renewable Natural Resources, SECTAM, and any federal, state and municipal
agencies, Notary Public offices, with powers also to sub-assign this Power of
Attorney which, therefore, is signed in an irrevocable manner.
Belem,
November 01, 2006
|
(Signature)
|
XXXXX
XXXXXX XX XXXXX XXXXXX
|
Notary
Public stamp and seal, signed 10NOV2006, authenticating the signature of Xxxxx
Xxxxxx xx Xxxxx Xxxxxx.
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