Effective as from September 18th, 2008 by and between TEMASEK INVESTMENTS INC. as Optionor and AMAZON GOLDSANDS LTD. as Optionee MINERAL RIGHT OPTION AGREEMENT
Effective
as from September 18th,
2008
by
and
between
TEMASEK
INVESTMENTS INC.
as
Optionor
and
as
Optionee
_________________________________
__________________________________
THIS
MINERAL RIGHT OPTION AGREEMENT (hereinafter the “Agreement”) made effective as
of the 18th day of September, 2008 (hereinafter the “Effective Date”) is
executed by and between:
TEMASEK INVESTMENTS INC., a
company duly incorporated and organized under the laws of Panama with address
for delivery and notice located at Suite 1-A, #5, Calle Xxxxxxx X. Xxxxxxx, El
Cangrejo, Panama City, Panama (hereinafter the "Optionor" or “TEMASEK”) of the
first part; and
AMAZON GOLDSANDS LTD., a
company organized under the laws of Nevada, United States of America, with
address for delivery and notice located at 000 Xxxxx Xxxxxxxx Xxxxxx, 0xx xxxxx,
Xxxx, Xxxxxx, Xxxxxx Xxxxxx of America (hereinafter the “Optionee” or “AMAZON”),
of the second part.
Optionor
and Optionee collectively referred to as the Parties, and individually and
indistinctively referred to as the Party.
WHEREAS
(i) Both
Parties are mining exploration and development companies with experience in the
identification and development of mining projects, particularly in the region of
South America.
(ii) AMAZON
is interested in acquiring the ownership and title of certain claim
applications, claims, and assorted mining rights, including all obligations
arisen therefrom, with respect to certain areas located in Peru as detailed in
Annex I hereto
(hereinafter the “Mineral Rights”) that are of the property and title of Río
Xxxxxxxx Minerales S.A.C., a company duly incorporated and organized under the
laws of Peru (hereinafter “RIO XXXXXXXX”).
(iii) TEMASEK
is the indirect beneficial owner of 100% interest in the Mineral Rights through
the direct and indirect control of different wholly owned subsidiaries, as
detailed below.
(iii) The
ownership of TEMASEK in the Mineral Rights is evidenced through (a) the direct
ownership of 1 share of the shareholding of RIO XXXXXXXX, and (b) the direct
ownership of 100% of the outstanding shareholding in Xxxxxxxxx Holdings Inc., a
company duly incorporated and organized under the laws of Panama, with address
for delivery and notice located at Suite 1-A, #5, Calle Xxxxxxx X. Xxxxxxx, El
Cangrejo, Panama City, Panama (hereinafter “XXXXXXXXX”), being XXXXXXXXX the
registered owner of 999 shares in RIO XXXXXXXX. XXXXXXXXX and TEMASEK are the
registered owners of 100% of the outstanding shareholding in RIO XXXXXXXX
represented in 1,000 shares.
Page 2 of
16
(iv) The
Optionor has agreed to grant four exclusive options (hereinafter, collectively
referred to as the “Options”, and each individually and indistinctively referred
to as the “Option”) to the Optionee, and the Optionee has agreed to receive the
Options, each such Options entitling the Optionor to acquire a twenty-five
percent (25%) undivided interest in and to the Mineral Rights in the manner
hereto below described, for an aggregate interest of a one hundred percent
(100%) undivided interest if all four Options are exercised, as detailed
herein.
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the covenants and agreements
hereinafter set forth the parties agree that:
REPRESENTATIONS,
WARRANTIES AND COVENANTS
1.1 The
Optionor represents, warrants and covenants (representation, warrants and
covenants that are extensive, when applicable, to the situation of its
subsidiaries XXXXXXXXX and RIO XXXXXXXX) to and with the Optionee
that:
a) it has been duly incorporated and
validly exists as a corporation in good standing under its laws of
origin;
b) it is qualified to do business in
those jurisdictions where it is necessary to fulfil its obligations under this
Agreement, and it has the full power and authority to enter into this Agreement
and any agreement or instrument referred to or contemplated by this
Agreement;
c) it has the requisite power,
authority and capacity to fulfil its obligations under this
Agreement;
d) the execution and delivery of this
Agreement and the agreements contemplated hereby have been duly authorized by
all necessary action on its part;
e) prior to the Effective Date, it has
obtained all authorizations, approvals, including regulatory approval, or
waivers that may be necessary or desirable in connection with the transactions
contemplated in this Agreement;
f) there are no other consents,
approvals or conditions precedent to the performance of this Agreement which
have not been obtained;
g) it is not in breach of any laws,
ordinances, statutes, regulations, by-laws, orders or decrees to which is
subject or which apply to it;
Page 3 of
16
h) the making of this Agreement and the
completion of the transactions contemplated hereby and the performance of and
compliance with the terms hereof does not and will not conflict with or result
in a breach of or violate any of the terms, conditions or provisions of any law,
judgment, order, injunction, decree, regulation or ruling of any court or
governmental authority, domestic or foreign, to which the Optionor is
subject;
i) it is now, and will also be
thereafter at the time of legal transfer of interests in the Mineral Rights when
any of the Options are exercised, the registered and beneficial owner of the
Mineral Rights free and clear of all liens, charges and claims of others and no
taxes, royalties or lease payments or like amounts are due in respect of any of
the mineral claims that comprised the Mineral Rights;
j) there is no adverse claim or
challenge against or to the ownership of or title to the interest it has on
XXXXXXXXX and RIO XXXXXXXX and on the Mineral Rights, nor to its knowledge is
there any basis therefore, and there are no outstanding agreements or options to
acquire or purchase any shares in XXXXXXXXX and RIO XXXXXXXX and on the Mineral
Rights or any portion thereof, and no person other than the Optionor pursuant to
the provisions hereof, has any interest whatsoever in XXXXXXXXX and RIO XXXXXXXX
and in the production from any of the mineral claims comprising the Mineral
Rights;
k) the Mineral Rights have been duly
and validly located and recorded in a good and minerlike manner pursuant to
applicable mining laws in Peru;
l) all permits and licenses covering
the Mineral Rights as they currently stand have been duly and validly issued
pursuant to applicable mining laws in Peru and are in good standing by the
proper doing and filing of assessment work and the payment of all fees, taxes
and rentals in accordance with the requirements of applicable mining laws in
Peru and the performance of all other actions necessary in that regard;
and
m) it requires no third party consent
of any kind to enter into this Agreement and grant the Options contemplated
hereby.
1.2 The
Optionee represents, warrants and covenants to and with the Optionor
that:
a) it has
been duly incorporated and validly exists as a corporation in good standing
under its laws of origin;
b)
neither the execution and delivery of this Agreement by the Optionee nor the
performance by the Optionee of its obligations hereunder conflicts with the
Optionee’s constating documents or any agreement to which it is
bound;
Page 4 of
16
c) the
execution, delivery and performance by the Optionee of this Agreement and any
other agreement or instrument to be executed and delivered by it hereunder and
the consummation by it of all the transactions contemplated hereby and thereby
have been duly authorised by all necessary corporate action on the part of the
Optionee; and
d)
excepting only as otherwise disclosed herein, the Optionee is not subject to, or
a party to, any charter or by-law restriction, any law, any claim, any
encumbrance or any other restriction of any kind or character which would
prevent the execution of its obligations as hereof or the consummation of the
transaction contemplated by this Agreement or any other agreement or instrument
to be executed and delivered by the Optionee hereunder.
The
representations and warranties contained hereof are provided for the exclusive
benefit of the other Party and a breach of any one or more thereof may be waived
by the non-breaching Party in whole or in part at any time without prejudice to
its rights in respect of any other breach of the same or any other
representation or warranty.
GRANT
AND EXERCISE OF OPTIONS
2.1 The
Optionor hereby grants to the Optionee the sole and exclusive right and option
to acquire a one hundred percent (100%) undivided interest in the Mineral
Rights, such 100% interest to be free and clear of all liens, charges,
encumbrances, security interests and adverse claims.
2.2 The
Parties agreed that the Optionee may exercise the Options in four separate
twenty-five percent (25%) increments, as described below, each such increment
being its own Option.
(a) 25%
Option
The
Optionee may exercise the initial twenty-five percent (25%) option to acquire a
25% interest in the Mineral Rights in accordance with the terms set out below
(hereinafter, the “25% Option”).
In order
to exercise the 25% Option the Optionee shall:
(i) pay,
on signing of this Agreement, a non-refundable amount of $ 250,000 (United
States Dollars Two Hundred and Fifty Thousand) to the order and the direction of
the Optionor; and
(ii)
issue, within 5 business days as from the Effective Date, 2,500,000 Optionee
Shares to the order and the direction of the Optionor, or whoever persons the
Optionor indicates; and
Page 5 of
16
(iii)
pay, within 90 days as from the Effective Date, further $ 250,000 (United States
Dollars Two Hundred and Fifty Thousand) to the order and the direction of the
Optionor.
For the
purposes of this Agreement the Optionee is deemed to have fully exercised the
25% Option only once all three obligations described above in points (i), (ii)
and (iii) have been completed.
Upon
exercise of the 25% Option by the Optionee, the Optionor will immediately
proceed to transfer to Optionee, or to the person the Optionee indicates, 25% of
all the outstanding shareholding in XXXXXXXXX.
(b) 50%
Option
Subject
to the prior and due and complete exercise by the Optionee of the 25% Option in
accordance with the paragraph before, the Optionee may exercise the second
twenty-five percent (25%) option to acquire an additional 25% interest in the
Mineral Rights, in accordance with the terms set out below (hereinafter, the
“50% Option”).
In order
to exercise the 50% Option the Optionee, within 6 months as from the Effective
Date, shall:
(i) have
exercised and completed the 25% Option; and
(ii) pay
$ 750,000 (United States Dollars Seven Hundred and Fifty Thousand) to the order
and the direction of the Optionor; and
(iii)
issue 3,500,000 Optionee Shares to the order and the direction of the Optionor,
or whoever persons the Optionor indicates.
For the
purposes of this Agreement the Optionee is deemed to have fully exercised the
50% Option only once all three obligations described above in points (i), (ii)
and (iii) have been completed.
Upon
exercise of the 50% Option by the Optionee, the Optionor will immediately
proceed to transfer to Optionee, or to the person the Optionee indicates, an
additional 25% of all the outstanding shareholding in XXXXXXXXX.
(c) 75%
Option
Subject
to the prior and due and complete exercise by the Optionee of the 50% Option in
accordance with the paragraph before, the Optionee may exercise the third
twenty-five percent (25%) option to acquire an additional 25% interest in the
Mineral Rights, in accordance with the terms set out below (hereinafter, the
“75% Option”).
Page 6 of
16
In order
to exercise the 75% Option the Optionee, within 12 months as from the Effective
Date, shall:
(i) have
exercised and completed the 50% Option; and
(ii) pay
$ 1,250,000 (United States Dollars One Million Two Hundred and Fifty Thousand)
to the order and the direction of the Optionor; and
(iii)
issue 4,500,000 Optionee Shares to the order and the direction of the Optionor,
or whoever persons the Optionor indicates.
For the
purposes of this Agreement the Optionee is deemed to have fully exercised the
75% Option only once all three obligations described above in points (i), (ii)
and (iii) have been completed.
Upon
exercise of the 75% Option by the Optionee, the Optionor will immediately
proceed to transfer to Optionee, or to the person the Optionee indicates, an
additional 25% of all the outstanding shareholding in XXXXXXXXX.
(d) 100%
Option
Subject
to the prior and due and complete exercise by the Optionee of the 75% Option in
accordance with the paragraph before, the Optionee may exercise the fourth and
final twenty-five percent (25%) option to acquire an additional 25% interest in
the Mineral Rights, in accordance with the terms set out below (hereinafter, the
“100% Option”).
In order
to exercise the 100% Option the Optionee, within 18 months as from the Effective
Date, shall:
(i) have
exercised and completed the 75% Option; and
(ii) pay
$ 2,500,000 (United States Dollars Two Million Five Hundred Thousand) to the
order and the direction of the Optionor; and
(iii)
issue 5,500,000 Optionee Shares to the order and the direction of the Optionor,
or whoever persons the Optionor indicates.
For the
purposes of this Agreement the Optionee is deemed to have fully exercised the
100% Option only once all three obligations described above in points (i), (ii)
and (iii) have been completed.
Upon
exercise of the 100% Option by the Optionee, the Optionor will immediately
proceed to transfer to Optionee, or to the person the Optionee indicates, the
final and remaining 25% of all the outstanding shareholding in XXXXXXXXX.
Additionally, upon
Page 7 of
16
exercise
of the 100% Option, the Optionor shall become holder of the one (1) share that
currently holds in RIO XXXXXXXX as nominee and on trust for the exclusive and
sole benefit and interest of the Optionee. The Optionor hereby undertakes to the
Optionee at all times to exercise all rights in respect of the share that holds
in RIO XXXXXXXX strictly in accordance with the Optionee
instructions.
On
completion of the 100% Option the Optionee shall be the owner of one hundred
percent (100%) undivided interest in the Mineral Rights through the direct
ownership of 100% of the outstanding shareholding of XXXXXXXXX and indirect
ownership of 100% of the outstanding shareholding of RIO XXXXXXXX.
NET
RETURNS ROYALTY
3.1 Upon
completion by Optionee of the 100% Option, the Optionee shall recognize to the
Optionor a 2.5% Net Returns Royalty, where Net Returns Royalty has the meaning
set out in Annex
II (hereinafter the “NET RETURN ROYALTY”). The NET RETURN ROYALTY will be
calculated and paid to the Optionor or to its appointed nominees in accordance
with the Annex
II.
3.2 As
from 90 days from the exercise and completion of the 100% Option, the Optionee
shall have the right to acquire 1% of NET RETURN ROYALTY from the Optionor for
the total amount of $ 2,000,000 (United States Dollars Two
Million).
JOINT
VENTURE DEVELOPMENT
4.1 Following
the due and complete acquisition by the Optionee of 50% interest in the Mineral
Rights under this Agreement and with the Optionee failing to acquire the 100%
interest in the Mineral Rights, for any reason whatsoever, the Optionor and the
Optionee will thereby be deemed to form a Joint Venture for the purpose of
carrying out further development work and production on the Mineral Rights and
will, in good faith, negotiate and execute a Joint Venture Agreement, under
which the Optionee will be the operator of the mining project to develop. The
interest of the Parties in the Mineral Rights shall be the interest of the
Parties under the Joint Venture Agreement (hereinafter the “Joint Venture
Development”).
4.2 Under
the Joint Venture Development, the Optionee shall have the whole responsibility
for developing a feasible mining project and all necessary facilities for the
extraction, crushing, processing and beneficiation of commercially valuable
minerals, including all necessary facilities for compliance with the applicable
laws, including environmental laws governing mining activity in Peru
(hereinafter the “Feasible Project”). All necessary costs and investment
required for the developing of a Feasible Project shall be supported exclusively
by the Optionee. Optionor shall have a carried free interest in the Mineral
Rights.
Page 8 of
16
4.3 If
under the Joint Venture Development, a Feasible Project is not developed within
3 years as from the Effective Date, the Optionee shall pay to the Optionor and
advance minimum mining royalty per year of $ 500,000 (United States Dollars Five
Hundred Thousand), that will be deducted from the NET RETURN ROYALTY
(hereinafter the “Advance Minimum Royalty”).
OBLIGATIONS
OF OPTIONOR DURING OPTION PERIOD
5.1 During
the 18 months as from the Effective Date, the Optionor will:
a)
maintain in good standing the Mineral Rights that are in good standing on the
date hereof by the performance of all actions (except for those economic
obligations arisen as from the Effective Date of this Agreement, which shall be
of the responsibility of the Optionee) which may be necessary under Peruvian law
in that regard and in order to keep such Mineral Rights free and clear of all
liens and other charges arising from the Optionee’s activities thereon except
those at the time contested in good faith by the Optionee;
b) maintain in good standing both
XXXXXXXXX and RIO XXXXXXXX, and the shareholding of both companies free and
clear of all liens;
c) restrain from issuing any additional
shares or cause to issue any additional shares either in XXXXXXXXX and/or RIO
XXXXXXXX;
d) restrain from transferring any of
its shares in XXXXXXXXX and/or in RIO XXXXXXXX to any other third party and/or
cause to transfer any shares in RIO XXXXXXXX to any other third party;
and
e) permit
the directors, officers, employees and designated consultants of the Optionee,
at their own risk, access to the Mineral Rights at all reasonable times, and
providing the Optionee agrees to indemnify the Optionor against and to save the
Optionor harmless from all costs, claims, liabilities and expenses that the
Optionor may incur or suffer as a result of any injury (including injury causing
death) to any director, officer, employee or designated consultant of the
Optionee while on the Mineral Rights.
OBLIGATIONS
OF OPTIONEE DURING OPTION PERIOD
6.1 During
the 18 months as from the Effective Date, the Optionee will:
a) do all
work on the Mineral Rights in a good and workmanlike fashion and in accordance
with all applicable laws, regulations, orders and ordinances of any governmental
authority; and
Page 9 of
16
b)
indemnify and save the Optionor harmless in respect of any and all costs,
claims, liabilities and expenses arising out of the Optionee’s activities
through XXXXXXXXX and RIO XXXXXXXX and/or on the Mineral Rights.
ARBITRATION
7.1 All
questions or matters in dispute with respect to the interpretation of this
Agreement will, insofar as lawfully possible, be submitted to arbitration
pursuant to the terms hereof using “final offer” arbitration
procedures.
7.2 It
will be a condition precedent to the right of any party to submit any matter to
arbitration pursuant to the provisions hereof, that any party intending to refer
any matter to arbitration will have given not less than 10 days’ prior written
notice of its intention so to do to the other party together with particulars of
the matter in dispute.
7.3 On
the expiration of such 10 days, the party who gave such notice may proceed to
commence procedure in furtherance of arbitration as provided in this
Section.
7.4 The
party desiring arbitration (the “First Party”) will nominate in writing three
proposed arbitrators, and will notify the other party (the “Second Party”) of
such nominees, and the other party will, within 10 calendar days after receiving
such notice, either choose one of the three or recommend three nominees of its
own. All nominees of either party must hold accreditation as either a lawyer,
accountant or mining engineer. If the First Party fails to choose one of the
Second Party’s nominees then all six names shall be placed into a hat and one
name shall be randomly chosen by the president of the First Party and that
person if he/she is prepared to act shall be the nominee. Except as specifically
otherwise provided in this Section the arbitration herein provided for will be
conducted in accordance with the UNCITRAL Arbitration Rules and the place of
arbitration shall be Reno, Nevada, United States of America. The parties shall
thereupon each be obligated to proffer to the Arbitrator within 21 calendar days
of his/her appointment a proposed written solution to the dispute and the
arbitrator shall within 10 calendar days of receiving such proposals choose one
of them without altering it except with the consent of both
parties.
7.5 The
expense of the arbitration will be paid as specified in the award.
7.6 The
parties agree that the award of the arbitrator will be final and binding upon
each of them.
DEFAULT
AND TERMINATION
8.1 If
at any time during the term of this Agreement either party fails to perform any
obligation hereunder or any representation or warranty given by it proves to be
untrue, then the other party may terminate this Agreement (without prejudice to
any other rights it may have) providing:
Page 10
of 16
|
|
(i)
|
it
first gives to the party allegedly in default a notice of default
containing particulars of the obligation which such has not performed, or
the warranty breached;
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(ii)
|
the
other party does not dispute the default, then if it is reasonably
possible to cure the default without irreparable harm to the
non-defaulting party, the defaulting party does not, within 30 calendar
days after delivery of such notice of default, cure such default by
appropriate payment or commence to correct such default and diligently
prosecute the matter until it is
corrected.
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NOTICES
9.1 All
notices and other communications in connection with this Agreement must be in
writing and given by (i) hand delivery (ii) through a major international
courier service, or (iii) facsimile transmissions, in each case addressed as
specified below or in any subsequent notice from the intended recipient to the
party sending the notice. Such notices and communications will be effective upon
delivery if delivered by hand, upon receipt if sent by international courier
service, or upon receipt if sent by facsimile transmission. Notices shall be
addressed as follows:
AMAZON
000 Xxxxx
Xxxxxxxx Xxxxxx, 0xx
xxxxx,
Xxxx,
Xxxxxx,
Xxxxxx
Xxxxxx of America
Fax:
(000) 000 0000
TEMASEK
Suite
1-A, #5, Calle Xxxxxxx X. Xxxxxxx,
El
Cangrejo, Panama City,
Panama
Fax:
(000) 000 0000
GOVERNING
LAW
10.1 This
assignment agreement and any dispute arising hereunder will be governed by the
laws of the state of Nevada, United States of America, without giving effect to
the conflict of laws provisions thereof.
Page 11
of 16
10.2 Each
of the Optionor and the Optionee hereby irrevocable submits to the exclusive
jurisdiction of the courts of the state of Nevada, United States of America, in
respect of any action or proceeding brought against it by the Optionor or the
Optionee, respectively, arising under this Agreement.
ENTIRE
AGREEMENT
11.1 This
Agreement represents the final agreement between the Parties with respect to the
subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the Parties.
EXECUTION
IN COUNTERPARTS
11.2 This
Agreement is executed in two (2) counterparts and by the Parties hereto in
separate counterparts, each of which when so executed will be deemed to be an
original and both of which when taken together will constitute one and the same
agreement.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as
of the date first above written.
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TEMASEK
INVESTMENTS INC.
|
|
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By: /s/ Xxxxxxxx
Xxxxxxx
Xxxxxxxx Xxxxxxx
|
By:
/s/ Xxxxxx Xxxx
Xxxxx
Xxxxxx
Xxxx Pointe
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Page 12
of 16
ANNEX
I
|
Name
|
Area
(ha)
|
Departament
|
Province
|
District
|
Observation
|
|
Bianka
1
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Bianka
2
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Bianka
3
|
900
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Bianka
4
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Bianka
6
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Bianka
7
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Dalma
1
|
1000
|
Amazonas
|
Condorcanqui
|
Xxxxx
|
Partially
overlap Zona de
Amortiguamiento
ANP
|
|
Dalma
2
|
1000
|
Amazonas
|
Condorcanqui
|
Xxxxx
|
Partially
overlap Zona de
Amortiguamiento
ANP
|
|
Dalma
3
|
1000
|
Amazonas
|
Condorcanqui
|
Xxxxx
|
Partially
overlap Zona de
Amortiguamiento
ANP
|
|
Dalma
4
|
800
|
Amazonas
|
Condorcanqui
|
Xxxxx
|
Partially
overlap Zona de
Amortiguamiento
ANP
|
|
Dalma
5
|
500
|
Amazonas
|
Condorcanqui
|
Xxxxx
|
Partially
overlap Xxxx xx
Xxxxxxxxxxxxxxx
XXX
|
|
Xxxxxxx
0
|
0000
|
Xxxxxx
|
Datem
del Marañon
|
Manseriche
|
|
|
Xxxxxxx
2
|
900
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Xxxxxxx
3
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Xxxxxxx
4
|
800
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Xxxxxxx
5
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
|
|
Xxxxxxx
6
|
1000
|
Loreto
|
Datem
del Marañon
|
Manseriche
|
Partially
overlap Xxxx xx
Xxxxxxxxxxxxxxx
XXX
|
|
Xxxxxxx
0
|
0000
|
Xxxxxx
|
Datem
del Marañon
|
Manseriche
|
Fully
overlap Zona de
Amortiguamiento
ANP
|
Page 13
of 16
Page 14
of 16
ANNEX
II
NET
RETURNS ROYALTY
Pursuant
to the Agreement to which this Exhibit is attached, Optionee (for the purposes
herein the “Payee”) will be entitled to a royalty equal to 2.5% of net returns
(the “Net Returns Royalty”) payable by Optionor (“Payor”) as set forth
below.
Net
Returns Royalty
A. “Net Returns Royalty” means the
aggregate of:
|
|
1.
|
all
revenues from the sale or other disposition of ores, concentrates or
minerals produced from the mineral properties arisen as from the Mineral
Rights (the “Properties”); and
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|
|
2.
|
all
revenues from the operation, sale or other disposition of any facilities
the cost of which is included in the definition of “Operating Expenses”,
“Capital Expenses” or “Exploration Expenses”; less (without duplication)
Working Capital, Operating Expenses, Capital Expenses and Exploration
Expenses.
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B. “Working Capital” means the
amount reasonably necessary to provide for the operation of the mining operation
on the Properties and for the operation and maintenance of the Facilities for a
period of six months.
C. “Operating Expenses” means all
costs, expenses, obligations, liabilities and charges of whatsoever nature or
kind incurred or chargeable directly or indirectly in connection with Commercial
Production from the Properties and in connection with the maintenance and
operation of the Facilities, all in accordance with generally accepted
accounting principles, consistently applied, including, without limiting the
generality of the foregoing, all amounts payable in connection with mining,
handling, processing, refining, transporting and marketing of ore, concentrates,
metals, minerals and other products produced from the Property, all amounts
payable for the operation and maintenance of the Facilities including the
replacement of items which by their nature require periodic replacement, all
taxes (other than income taxes), royalties and other imposts and all amounts
payable or chargeable in respect of reasonable overhead and administrative
services.
D. “Capital Expenses” means all
expenses, obligations and liabilities of whatsoever kind (being of a capital
nature in accordance with generally accepted accounting principles) incurred or
chargeable, directly or indirectly, with respect to the development,
acquisition, redevelopment, modernization and expansion of the
Properties
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and the
Facilities, including, without limiting the generality of the foregoing,
interest thereon from the time so incurred or chargeable at a rate per annum
from time to time equal to prime rate established by the Bank of America, New
York Branch, New York, plus 2 percent per annum, but does not include Operating
Expenses nor Exploration Expenses.
E. “Exploration Expenses” means
all costs, expenses, obligations, liabilities and charges of whatsoever nature
or kind incurred or chargeable, directly or indirectly, in connection with the
exploration and development of the Properties including, without limiting the
generality of the foregoing, all costs reasonably attributable, in accordance
with generally accepted accounting principles, to the design, planning, testing,
financing, administration, marketing, engineering, legal, accounting,
transportation and other incidental functions associated with the exploration
and mining operation contemplated by this agreement and with the Facilities, but
does not include Operating Expenses nor Capital Expenses.
F. “Facilities” means all plant,
equipment, structures, roads, rail lines, storage and transport facilities,
housing and service structures, real property or interest therein, whether on
the Properties or not, acquired or constructed exclusively for the mining
operation on the Properties contemplated by this Agreement (all commonly
referred to as “infrastructure”).
G. “Commercial Production” means
the operation of the Properties or any portion thereof as a producing mine and
the production of mineral products therefrom (but does not include bulk
sampling, pilot plant or test operations).
Payment
Net Returns shall be calculated for
each calendar quarter in which Net Returns are realized, and payment as due
hereunder shall be made within 30 days following the end of each such calendar
quarter. Such payments shall be accompanied by a statement summarizing the
computation of Net Returns and copies of all relevant settlement sheets. Such
quarterly payments are provisional and subject to adjustment within 90 days
following the end of each calendar year. Within ninety days after the
end of each calendar year, Payor shall deliver to Payee an unaudited statement
of royalties paid to Payee during the year and the calculation thereof. All year
end statements shall be deemed true and correct six months after presentation,
unless within that period Payee delivers notice to Payor specifying with
particularity the grounds for each exception. Payee shall be
entitled, at Payees’s expense, to an annual independent audit of the statement
by a national firm of chartered accountants, only if Payee delivers a demand for
an audit to Payor within four months after presentation of the related year-end
statement.
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