SURFACE IMPACT AGREEMENT
EXHIBIT
4.27
This
Surface Impact Agreement (this “Agreement”) is made
and entered into between X X Ranches, a Wyoming Corporation, (“Owner”) whose address
is 000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx, 00000, and 448018 Exploration Inc., a
Nevada Corporation, (“Operator”) with
offices at Suite 0000-0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx, X0X 0X0.
RECITALS
A. State Uranium Mining
Lease. Operator owns Uranium Mining Lease Number 0-40774 (the
“State Mining
Lease”) issued by the State of Wyoming, acting by and through its Board
of Land Commissioners (the “Board”) covering the
following lands located in Albany County, Wyoming:
T25N/R75W
Section
36: All
6th
P.M.
comprising
640 acres, more or less (the “State
Lands”).
B. Owner
has obtained from the Board those certain State of Wyoming Grazing Lease 1-7184,
authorizing Owner to conduct grazing operations on the Premises (the “Grazing
Lease”).
C. Pursuant
to the Board’s regulations, Owner and Operator desire to enter into this
Agreement concerning Operator’s mining exploration, development and production
operations on the State Lands pursuant to Operator’s rights under the State
Mining Lease.
D. Owner
owns adjacent fee surface and fee minerals and holds certain rights in the
surface estate of certain adjacent federal lands (hereinafter the “Federal Grazing
Lands”) and Operator owns unpatented mining claims under the Federal
Grazing Lands and a portion of Owner’s fee surface. Owner and
Operator have entered into a Uranium Lease and Surface and Damage Agreement
(“Lease and Surface
Agreement”) of even date herewith providing for the lease of certain of
Owner’s mineral interests and access and other considerations for the fee
surface and Federal Grazing Lands (collectively the “Leased
Interests”).
E. Operator
desires to utilize portions of the State Lands to access the State Mining Lease
and to access the lands described in the Lease and Surface Agreement and certain
other lands in the vicinity of such lands (hereinafter, “Area Lands”), and
Owner desires to grant such right to Operator under the terms and conditions set
forth herein.
F. Owner
and Operator desire to set forth their agreements and understandings regarding
use of the State Lands and compensation for certain impacts, damages and
inconveniences to Owner resulting from such use.
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AGREEMENT
In
consideration of the terms, conditions, covenants, consideration and agreement
contained herein, it is agreed as follows:
1.
Term - This
Agreement is for an initial term of five (5) years from and after the date
hereof, with two (2) optional extensions of five (5) years each available, for a
total of fifteen (15) years maximum term. On or before the sixth (6)
anniversary date thereof, Operator may extend this Agreement for five (5) years
by paying to Owner payments in the same amounts as described in Paragraph
4.
Upon the
expiration of the initial & first five (5) year term extension, Operator
shall have the right to extend the Agreement for an additional five (5) year
term, by paying to Owner rentals in the same amount as the original payments
hereunder, adjusted for inflation as outlined in Paragraph 4.
This Agreement will thereafter continue
for as long after the initial or secondary term as any mining, development or
processing or restoration is being conducted under the State Mining Lease or the
Lease and Surface Agreement on a continuous basis. Such operations
shall be deemed conducted on a continuous basis unless and until, after the end
of the initial or secondary term, a period of three hundred sixty-five (365)
consecutive days elapses in which no such operations are conducted, excluding
periods of force majeure.
2. Agreement Benefit Other
Property. Operator’s rights under this Agreement may be
exercised by Operator in connection with mineral rights in Area Lands, the
Leased Interests, the Federal Grazing Lands and State Lands which are acquired
by or leased to Operator from third parties, or which are otherwise controlled
by Operator. This Agreement shall also confer upon Operator and any
person conducting the exploitation of a mineral estate in Area Lands with, for
or on behalf of Operator, the right to use any portion of the State Lands and
the right to access across the State Lands in connection with the exploitation
of the mineral estate in Area Lands.
3. Termination of Rights. Unless
sooner terminated due to a default by Operator, the rights granted by Owner to
Operator hereunder shall terminate when Operator has ceased uranium mining
operations on the Leased Interests, or from the Federal Grazing Lands, State
Lands or any lands pooled therewith for a period of time exceeding 12
months. Uranium mining operations shall include the process of
reclamation under state or federal law.
4. Impact and Inconvenience
Payments.
Pursuant to the Board’s regulations, the Board and Owner are to share the
payments made by Operator under this Agreement. Operator shall pay to
the Board and Owner their respective shares, as provided in the Board’s then
applicable Grazing and Agricultural Leasing Regulations, of the following
payments:
a. Five (5) Year Access
Payments: Upon execution of this agreement, Operator shall pay
to Owner the sum of Five Dollars ($5) multiplied by five years, and multiplied
by the number of acres described in Recital A for full
payment in advance for the first five year term.
If this
Agreement is renewed pursuant to Paragraph 1, then on or before the date of
such
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extension,
shall pay to Owner payments in the same amount as the original payments
hereunder for each extension term.
b. Surface Impact Payments:
Operator shall pay Owner an annual payment of Two Hundred Dollars ($200)
per acre for all new surface disturbance caused by Operator on the State Lands
from Operator’s activities. Such annual payment shall continue for
all surface disturbance not reclaimed until such disturbed lands are reclaimed
pursuant to applicable federal or state reclamation standards.
c. Compensation for
Inconvenience. Owner and Operator acknowledge that the
exploration and development of Owner’s State Mining Lease on the State Lands may
from time to time cause inconvenience and disruptions of Owner’s ranching
operations on the State Lands. Owner and Operator acknowledge and
agree that the economic impact to Owner for such inconvenience and disruption is
difficult to measure. Owner and Operator agree that it is reasonable
that any economic impacts caused by any inconvenience or disruption may be in
relation to actual development of Operator’s State Mining Lease for the State
Lands. To compensate Owner for such economic impacts, Operator shall
make payments to Owner as stated in this Paragraph 4c. While the
parties acknowledge that this payment is payment in the nature of liquidated
damages, and not a royalty payment, the amount of such payment shall be computed
as follows:
If
solutions mined by Lessee from the State Mining Lease are processed by or for
Operator for the recovery of uranium, Owner reserves a royalty based upon the
Sales Price (as defined below) for the contained U308 or uranium in any other
form recovered in a milling or processing facility from minerals mined or
removed from the State Mining Lease set forth in Recital A to this Agreement.
Owner will receive One Percent (1%) of the Sales Price of the uranium in the
form of yellowcake (U308) recovered from solutions removed from the premises by
Lessee. The amount of yellowcake recovered from solutions mined and
removed from the State Mining Lease shall be determined on the basis of assays
of samples of such solutions, volume of such solutions, and the average recovery
percentage of the mill during the month in which the solution is
processed. The “Sales Price” for the
yellowcake shall be determined by the actual sales price received by Lessee in
an arms-length transaction from the smelter or other purchaser.
Payments
under this Xxxxxxxxx 0x xxxxx xx made by Operator’s check mailed or delivered
within twenty-five (25) days after the end of the month in which Operator
receives payment of the purchase price for yellowcake or concentrates of other
subject minerals sold by it and for which royalty is payable
hereunder.
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Each
payment shall be accompanied by a statement showing weights and values of
yellowcake or concentrates of other subject minerals sold or deemed to be
sold during the period for which payment is
made.
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d. Payment
Adjustments. Every three years, commencing with the third
anniversary of this agreement, all of the payments in this Agreement shall be
adjusted based on the Consumer Price Index. The adjustment shall be
made by multiplying the payment by a fraction the numerator of which is the
Consumer Price Index for the month
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and year
in which the adjustment is to be made and the denominator of which is the
Consumer Price Index for the month and year of this
agreement. “Consumer Price Index” shall mean the Consumer Price Index
for All Urban Consumers (commonly known as CPI-U) for the U.S. City Average for
All Items, 1982-1984=100, as published by the United States Department of
Labor. If the Consumer Price Index is no longer published, Owner
shall in good faith select a successor, comparable index to be used for making
these calculations. However, at no time shall the payments be less
than those agreed to in this Agreement and payments shall never be increased
more than 12% from the base amount provided for in this
Agreement. This Paragraph 4d shall not apply to the payments
set forth in Paragraph 4c.
d. Timing of Payments. Operator
shall pay to Owner the annual Surface Impact Payments due in accordance with
Paragraph 4b. in arrears on the January 31 of each year for the amount acreage
remaining unreclaimed pursuant to Paragraph 4b. Should any portion of
such payments apply to a period of less than 12 months, said payment will be
prorated based on 1/12 of the regular annual payment multiplied by the number of
months comprising said partial year.
5. Reclamation and
Rehabilitation. Except for facilities and roads still used for
exploration, production and development operations, as soon as reasonably
practicable, and in any event within twelve (12) months after a facility is
determined by Operator to no longer be needed, and weather permitting, Operator
shall reclaim all disturbed areas on the State Grazing Lands in accordance with
applicable state or federal standards.
6. Consent of Owner of Surface
Rights. Owner acknowledges that, under applicable laws
affecting the exploitation of or acquisition of an interest in the mineral
estate in a property, the consent or approval of Owner may be required and that
this Agreement shall constitute Owner’s consent or approval as may be
required. So long as Operator is not in default hereunder, Owner
further acknowledges that the payments and covenants to be made and performed by
Operator, as set out herein, are sufficient consideration for the consent to be
given by Owner.
7. Grazing Lease Termination or
Forfeiture. Should any Grazing Lease terminate or be
forfeited, Owner shall refund to Operator all amounts paid attributable to that
portion of the State Lands attributable to periods after the date of termination
or forfeiture. In the event any Grazing Lease is terminated or
forfeited, then this Agreement shall terminate, provided however, that if a
subsequent grazing lease for the same lands is issued to Owner, or any of
Owner’s affiliates, subsidiaries, parent company, owners, shareholders, members,
heirs, assigns, transferees, officers, managers, employees or agents, then this
Agreement shall not terminate but shall continue as to such new grazing lease as
if such Grazing Lease had never terminated or been forfeited.
8. Board
Regulations. The Board’s regulations, as they now exist or as
they may be amended during the term of this Agreement, are incorporated by this
reference. To the extent this Agreement conflicts with the Board’s
regulations, the Board’s regulations shall be controlling.
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9. Payments. The
payments herein provided are acknowledged as sufficient and in full satisfaction
for damages caused or created by the reasonable and customary entry,
rights-of-way and operation and use of the roads and mine sites, but do not
include damage to livestock, buildings or improvements or injuries to persons or
to any damage or destruction caused to Owner's xxxxx or water
supply.
10. No Warranty. Owner
makes no warranty of title or otherwise in entering into this
agreement.
11. Enforcement
Costs. If a court of competent jurisdiction finds that
Operator has defaulted under this Agreement, Operator shall pay all costs and
expenses, including a reasonable attorney's fee, incurred by Owner in enforcing
this Agreement.
12. Time. Time is of
the essence in this agreement.
13. Compliance with
Law. Operator shall conduct operations and activities in
accordance with applicable local, state and federal laws, rules and
regulations.
14.
Release. To
the maximum extent permitted by law, Operator releases and waives and discharges
Owner, and, if applicable, Owner's officers, directors, employees, agents,
successors and assigns from any and all liabilities for personal injury, death,
property damage or otherwise arising out of Operator's operations under this
Agreement or use of the State Lands. To the maximum extent permitted
by law, owner releases and waives and discharges Operator, and, if applicable,
Operator’s officers, directors, employees, agents, successors and assigns from
any and all liabilities for personal injury, death, property damage or otherwise
arising out of Owner’s gross negligence or willful misconduct. Owner
will not be liable for any damages caused by Owner’s livestock to Operator’s
facilities.
15. Notice. Notice may
be given to either party to this agreement by depositing the same in the United
States mail postage prepaid, duly addressed to the other party at the address
set out below the party's signature on this agreement, or via electronic mail or
facsimile. Such notice shall be deemed delivered when deposited in the United
States mail, or when sent via electronic mail or facsimile. Operator
shall promptly notify Owner in writing of the name address and telephone number
of any person or entity to whom Operator assigns all or any portion of its
rights under any uranium lease which affects the State Lands.
16. Recording. This
agreement may not be recorded without the written consent of Owner and
Operator. However, the parties shall record a memorandum of this
agreement to give record notice of the existence of this agreement.
17. Construction of Agreement.
This agreement shall be construed under the laws of the State
of Wyoming.
18. Binding Effect.
This agreement is binding upon the successors and assigns of
the parties.
19. Assignability.
This Agreement may be assigned in whole or in part by either
party.
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20. Default. If
Operator defaults under this agreement, Owner shall give Operator written notice
of the default. If Operator fails to correct a monetary default
within 30 days after the delivery of the notice of default, Owner may, in
addition to any other rights and remedies available to Owner, terminate this
agreement. If the default is one that cannot reasonably be cured
within 30 days, then Owner may not terminate this Agreement so long as Operator
is undertaking to cure such default with reasonable diligence at the end of the
30 day cure period.
21. Termination by
Operator. Operator shall have the right to terminate this
Agreement at any time by giving Owner written notice of such intention, and this
Agreement shall terminate effective thirty (30) days after the date of such
notice. In the event Operator shall terminate this Agreement, upon
such termination all right and interest of Operator under this Agreement shall
terminate, and, subject to reclamation obligations hereunder and under
applicable law, Operator shall not be required to perform any further
obligations hereunder with respect thereto, and Operator shall have no liability
to Owner by way of damages of any kind or otherwise, except with respect
to payments due to Owner which have accrued prior to the effective date of
such termination. Operator waives all claims to any payments under
this Agreement that have been pre-paid to Owner at the time of
termination.
22. Force
Majeure. Except for the obligation to make payments when due
hereunder, the obligations of Operator under this Agreement shall be suspended,
and it shall not be deemed in default or liable for damages or other remedies
while Operator is prevented from complying therewith by acts of God, the
elements, riots, acts or failures to act on the part of federal or state
agencies; inability to timely obtain necessary permits, licenses or approvals
from governmental agencies on terms reasonably acceptable to Operator; inability
to secure materials or to obtain access to the State Lands or Leased Minerals;
actions taken by environmental groups or other non-governmental organizations;
strikes; lockouts; damage to, destruction or unavoidable shutdown of, necessary
facilities; or any other force majeure type events (whether or not similar to
those above-mentioned) beyond Operator’s reasonable control, whether or not
foreseeable; provided, however, that, settlement of strikes or lockouts shall be
entirely within Operator’s discretion; and provided, further, that Operator
shall promptly notify the Owner and shall exercise diligence in an effort to
remove or overcome the cause of such inability to comply. The Term of
this Agreement shall be extended for period(s) of time equal to that of the
duration of any events of force majeure, but not more than three (3) years;
provided, however, that the entire term of this Agreement shall not exceed
99 years.
23. Confidentiality.
a. For
the entire Term of this Agreement, Owner agrees to treat all data, reports,
records and other information relating to this Agreement, as confidential, and
such information shall not be disclosed to any other person or entity, without
the prior written consent of Operator, which such consent Operator may withhold
in its sole discretion. In the event that Owner is required by any
law, rule, regulation, or order to disclose to the public any of such
information, it shall immediately notify Operator of such requirement and the
terms thereof, together with a copy of such release as may be contemplated,
prior to such disclosure. Operator shall then have not less than
three business days to review and comment upon such disclosure and to request,
prior to disclosure, confidential treatment of any of the information of such
terms as it shall, in its
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sole
discretion, determine. Owner shall use its best efforts to comply
with such request prior to making the required disclosure.
b. Following
expiration or termination of this Agreement, Owner may not disclose to third
parties any information provided to Owner hereunder unless such disclosure shall
be accompanied by a disclaimer of any representation or warranty as to the
accuracy, reliability or completeness of such information for any
purpose.
c. Owner
acknowledges that, based upon information and data from previous work on other
property which Operator controls in the vicinity of the State Lands, Operator
may have developed its own theories and interpretations regarding the State
Lands and the potential for mineral development of the State Lands that are
regarded by Operator as confidential and/or proprietary to Operator and which
have not been disclosed to Owner. Owner agrees that in entering into
this Agreement, it is not relying on Operator, and except as provided in under
the Lease and Surface Agreement, Operator has no obligation, to disclose any
such information, data, theories or interpretations.
24. No Implied
Covenants. Owner understands, and expressly acknowledges and
agrees, that no implied covenants or conditions whatsoever shall be read into
this Agreement, and Owner hereby acknowledges and confirms that the payments
which it may receive under this Agreement are sufficient consideration for all
of the rights granted to Operator under this Agreement.
25. Sole Agreement;
Waiver. This Agreement contains all of the representations and
agreements between the parties with respect to the matters contained herein and
the subject matter hereof, and supersedes all of the terms and conditions of the
letter agreement dated November 16, 2007 by and between Owner and
Operator. No modification or waiver of the terms and conditions
hereof shall be binding upon either party unless in writing, dated subsequent to
the date of execution of this Agreement, and executed by an authorized
representative of such party. No waiver by any party of a breach of
any of the provisions of the Agreement shall be construed as a waiver of any
subsequent breach, whether of the same or a different character.
26. Further
Assurances. At the request of Operator and without further
consideration, the Owner shall execute and deliver any further instruments
and/or documents and take such other action as may be reasonably required by
Operator to vest or confirm in Operator its interest in this Agreement or to
otherwise carry out the transactions contemplated in this
Agreement. In this connection, the parties hereto recognize that
federal, state or local laws, regulations or ordinances authorities may require,
as a condition to approval and issuance of exploration, mining, water,
reclamation or other required permits or licenses to Operator, the consent of
Owner. Upon tender of a request by Operator, Owner hereby agrees, to
promptly furnish its consent to exploration, mining or reclamation plans
submitted to Owner with the request. Owner hereby acknowledges that
the payments and covenants to be made and performed by Operator as set out
herein, are sufficient consideration for the consent to be given by
Owner.
27. Counterparts. This
Agreement may be executed in several counterparts, any one of which may contain
the execution of the Owner or Operator, which together shall constitute
a
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single
original document.
Dated
this 5th day of
February, 2008.
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Owner:
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Operator:
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X X
Ranches Inc.
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000000
Exploration, Inc.
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By:
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“Xxxxxx
X. Xxxxxxx”
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By:
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“X.
Xxxxxxx Xxxxxx”
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Xxxxxx
X. Xxxxxxx, President
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X.
Xxxxxxx Xxxxxx, President
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000
Xxxxxxx Xxxx
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Xxxxx
0000 – 0000 X. Xxxxxx Xxxxxx
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Xxxxxxx,
Xxxxxxx, 00000
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Xxxxxxxxx
XX X0X 0X0
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Facsimile:_______________
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Facsimile: 000-000-0000
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E-mail:_________________
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E-mail: xxxxxxx@xxxxxx-xxxxxx.xxx
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ACKNOWLEDGMENTS
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STATE
OF WYOMING
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)
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ss.
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COUNTY
OF ALBANY
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)
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The
foregoing instrument was acknowledged before me this 5th day of February, 2008,
by Xxxxxx X. Xxxxxx, as President of X X Ranches Inc.
WITNESS my
hand and official seal.
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“Xxxxxx
Xxxxx”
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Notary
Public
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My Commission
Expires: May 17, 0000
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XXXXXXXX
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XXXXX XX
XXXXXXX XXXXXXXX
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)
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COUNTRY
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)
ss.
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COUNTY OF
CANADA
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)
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The
foregoing instrument was acknowledged before me this 1st day of February, 2008,
by X. Xxxxxxx Xxxxxx, as President of 448018 Exploration, Inc.
WITNESS my
hand and official seal.
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“Xxxx
Xxxxx”
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Notary
Public
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My Commission
Expires: N/A
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