ANEXO "C" VERSION EN INGLES
Exhibit 4-ddd
ANEXO "C"
VERSION EN INGLES
THIS LAND TEMPORARY OCCUPATION AGREEMENT is executed on this the 27th day of April, 2009 between:
XXXXXXXXX XXXXX XXXXXX, acting in his own rights, a citizen of Mexico, of age, married, employment, having its domicile at Sorjuana Ines de la Xxxx Xx. 00, Xxxxxxxxx, Xxxxxx, (hereinafter referred to as the "Property Owner"),
OF THE FIRST PART;
AND:
MINERA PERICONES, S.A. DE C. V., a corporation duly incorporated pursuant to the Business Corporations Act (México), having its main corporate offices situated at La Salle, No.3230 Fraccionamiento Lomas La Salle C.P. 31214, Chihuahua, Chihuahua, herein represented by LIC. XXXX XXXXXXX XXXXX XXXXXX, acting as its legal representative of the Company, (hereinafter referred to as the "Company"),
OF THE SECOND PART.
This Agreement is executed pursuant to the laws of the United Mexican States and, in particular, in accordance with the applicable provisions of the Agrarian Act, the Mining Act and its Regulations, the Commercial Code and the Civil Code of the State of México.
WARRANTIES AND REPRESENTATIONS UNDER OATH
I.
The Property owner hereby warrants and represents to the Company as follows:
A.
It the rightful owner and in possession of 16-12- 91.00 hectares of parcel of land no. 189 Z1 P1/1 situated in the community of Acamuchitlan, Municipality of Tejupilco, State of Mexico, México (the "Parcel of Land") with the following metes and bounds; Northeastern 132.41 mts to highway Xxxxxxxxxx City-Tejupilco in broken line; southeastern 307.58 mts to highway Xxxxxxxxxx City-Tejupilco in broken line; southwestern 599.81 mts to parcel 36 in broken line; Northwest 388.58 mts to parcel 22 in broken line; 269.71 mts to parcel 188 in broken line, certified under parcel certificate no. 000000008567 issued by Mr. Xxxxxxx Xxx Xxxxxxx and registered at the Agrarian Registry office under folio no 15FDC0008567; a copy of the said certificate is attached as Schedule B hereto.
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B.
The Parcel of Land is, as of the date hereof, free and clear of (a) any charge encumbrance or limitation or ownership whatsoever, (b) any judicial controversy, legal action or claim of any nature; and (c) free and clear of any agreement or juridical act which may impede, affect or prohibit the execution of this Agreement or the compliance with the obligations hereunder.
C.
The Property Owner acknowledges Minerals (as hereinafter defined) contained in, on or unto the mining concessions situated in the Municipality of Tejupilco, State of Mexico, as described in Schedule "A" hereto, (the "Mining Concessions") are the property of the Company pursuant to applicable mining legislation.
II.
The Company, through its legal representative, warrants and represents to the Property Owner as follows:
A.
The Company is a limited liability corporation duly incorporated and validly subsisting pursuant to the Business Corporations Act (Mexico).
B.
The Company possesses the legal capacity required by law to acquire as owner mining concessions located within the territory of Mexico, in accordance with S. 11 of the Mining Act.
C.
The powers and authority granted to the Company's representative acting in its name hereunder are sufficient for the execution of this Agreement and said powers and Authority have not, as of this date, been revoked or amended in any manner whatsoever.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual warranties and representations herein contained, the parties agree as follows:
1.
Occupation. The Property Owner hereby grants the Company, and the Company hereby acquires, the rights to use, enjoy and occupy a total land area of 16-12-91.00 hectares of the Parcel of Land (the "Land in Occupation") to carry out the Mining Activities (as defined here-below).
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1.1
The Company shall have the right, during the term of this Agreement and on written notice to the Property Owner, to extend, reduce or modify the extension of the Land in Occupation, so that the Company may carry out Mining Activities in any area of the Parcel of Land. On said notice, the Company shall deliver to the Property Owner a map describing the geographical location of the extension, reduction or modification to the Land in Occupation and any adjustment to the Annual Rent to be paid pursuant to Clause 4 hereof.
2.
Mining Activities. The Company may, during the term this Agreement is in full force and effect, carry out the following activities on the Land in Occupation (the "Mining Activities"): any and all works and activities carried out to (a) identify mineral deposits and to quantify mineral reserves to determine the economic feasibility of their recovery; (b) prepare and develop the area comprising the mineral deposit to recover and extract minerals described in s.4 of the Mining Act ("Minerals") and (c) refine, treat, sell and market Minerals, including, without limitation:
(a)
the access and establishment of easements,
(b)
the use, change and rehabilitation of roads, paths or ways existing on the Land in Occupation in order to transport personnel, machinery, tools, Minerals or any other goods,
(c)
the construction of any building or structure, the execution of any exploration work such as, geological reconnaissance, sampling of rocks, soil, sediments and minerals, metallurgical testing, geological and geophysical mapping, trenching and other supporting exploration work, drilling and underground developments of any nature, construction of tunnels and other underground work,
(d)
the use of water and the acquisition of water rights concessions, including the installation of water pipelines, electricity cables and the construction of any structure or building intended for the conduction of water or electricity,
(e)
the construction, extension, setting up or dismantling of campsites, dorms, warehouses, shops, offices and facilities to carry out the activities of the Company,
(f)
the construction of drilling pads and drilling of any kind; surveys of any area within the Land in Occupation,
(g)
the evaluation of the economic feasibility to mine Minerals,
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(h)
mine construction on any portion of the Land in Occupation,
(i)
the mining, removal, treatment, recovery, extraction and refining of Minerals,
(j)
the sale and marketing of Minerals, and
(k)
the execution of any additional activity deemed by the Company to be necessary, appropriate or incidental to the above.
2.1.
The Property Owner may continue with his agricultural activities within the area of the Land in Occupation, as long as the execution of such activities do not interfere in any manner whatsoever with the execution of the Mining Activities by the Company.
3.
Term. This Agreement shall be in full force and effect for a term of Twenty-five (25) years commencing on the date of signing and notary public ratification by the parties (the "Term of the Agreement"). The Term of the Agreement shall be compulsory to the Property Owner and discretionary to the Company. The Company may relinquish its rights hereunder and terminate this Agreement at any time on Thirty (30) day prior written notice to the Property Owner.
4.
Rent. The Company shall pay to the Property Owner, during the term of this Agreement, an annual rent of $500.00 (Five Hundred Mexican Pesos) per each hectare comprising the Land in Occupation (the "Annual Rent"). The Annual Rent shall be paid in advance within the first ten (10) business days of each twelve month period. In accordance with article 58, paragraph 3, of the Mining Act Regulations, the Annual Rent shall be adjusted by the annual consumer’s price index applicable to the year preceding the date of payment.
4.1
The first Annual Rent shall be paid on the date of signing and notary public ratification of Agreement, for the period of twelve (12) months following such signing.
5.
Obligations of the Company. The Company, its employees and independent contractors shall comply with all provisions imposed by mining, labour and environmental protection laws applicable to the execution of the Mining Activities on the Land in Occupation.
5.1.
The Company shall bear the responsibility for any sanction, penalty or judgment assessed or awarded by a competent authority in relation to any act carried out on the Land in Occupation in violation of, or in contravention with, applicable mining, labour or environmental protection laws.
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5.2
The Company shall indemnify and hold the Property Owner harmless from and against any loss, liability, claim, accusation, demand or penalty assessed or awarded against the Property Owner in respect to any act carried out by the Company, its employees and contractors on the Land in Occupation in violation of or in contravention with, mining, labour or environmental protection laws, following the date of signing of this Agreement.
5.3.
The Company shall bear the responsibility to apply for and obtain from the competent authorities all permits, authorizations, concessions or favourable resolutions (and to issue a notice when required by law) to authorize the Company to:
(a)
carry out the Mining Activities on the Land in Occupation,
(b)
consume or use water, regardless of its source, or to discharge residual waters, as deemed required,
(c)
use, consume, purchase or store explosives, in accordance with the Federal Explosives and Firearms Act.
5.4.
The Company shall restore and rehabilitate any loss or damage that may be caused to the soil or subsoil of the surface area of the Land in Occupation as a result of the execution and at the conclusion of the Mining Activities, as mandate by laws applicable to the protection of the environment.
5.5.
The Company shall, on termination of this Agreement and within a term of Two (2) years following the effective date of termination, remove from the Land in Occupation any and all movable property, including any equipment, machinery or device used during the execution or at the conclusion of the Mining Activities.
6.
Obligations of the Property Owner. The Property Owner hereby grants to the Company its consent and authorization so that as required by applicable law the Company may apply for and obtain from the Secretariat of Environmental Protection and Natural Resources, or from any other competent authority, any and all permits, authorizations or concessions required by the Company to carry out the Mining Activities on the Land in Occupation, including, without limitation:
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(a)
the application and approval for change of use of soil to mining activities,
(b)
the application and approval of an environmental impact study,
(c)
the application and approval of any permit required for drilling activities,
(d)
the application and approval of any permit required for use and consumption of National waters of whatever source or the discharge of residual water, if necessary,
(e)
the application and approval of any permit required for the use, consumption, purchase or storage of explosives, in accordance with the Federal Explosives and Firearms Act,
(f)
the application and approval to have all permits, authorizations and concessions set out above issued in the name of the Company, without the additional consent of the Property Owner and notwithstanding that the Company is not the owner of the affected surface rights.
6.1
The provisions set forth above constitute the consent, approval, permit and authorization of the Property Owner for the purposes named herein; no additional consent, approval, permit or authorization from the Property Owner shall be required.
7
Access. The parties acknowledge that execution of the Mining Activities is of a dangerous nature and, therefore, any person not related to the Company shall require a prior written consent from the Company to enter to and/or remain within the area comprising the Land in Occupation.
7.1
The Company, its directors, officers, employees, agents or contractors shall not be liable for any damage, expense, injury or harm incurred by or to any person not related to the Company while such person is on the Land in Occupation.
7.2.
The Property Owner shall carry out all acts necessary to provide and maintain full access by the Company, its representatives and contractors to the Land in Occupation as agreed upon hereunder, including the removal by any legal means of any person or object that in the opinion of the Company is or will be restricting, limiting or impeding the full performance of the Mining Activities on the Land in Occupation.
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8.
Option to Purchase. The Property Owner hereby grants to the Company, and the Company acquires from the Property Owner, during the term of this Agreement, the exclusive and irrevocable right, but not the obligation, to purchase all of any portion of the land area comprising the Land in Occupation (the “Option to Purchase”) on payment to the Property Owner of the purchase price independently determined by the Institiute for the Administration and Appraisal of National Assets (the “INDAABIN”).
8.1
On exercise of the Option to Purchase, the Company shall issue a written notice to the Property Owner, attaching an original of the appraisal issued by the INDAABIN and a map of the Land in Occupation showing the land area subject matter of the intended purchase (the "Notice to Purchase"). On receipt of the Notice to Purchase by the Property Owner, the parties shall forthwith sign a Sale and Purchase Agreement (the "Sale and Purchase Agreement") whereby the Property Owner shall transfer to the Company, free and clear of any liens or limitation of ownership whatsoever, the ownership rights to the land area of the Land in Occupation set out in the Notice to Purchase, on payment to the authorized Property Owner of the purchase price determined by the INDAABIN appraisal.
9.
Assignment. The Company, its successors and assigns, shall be authorized by the Property Owner, and shall have the right, to assign or transfer to an individual or Corporation, at their own discretion, the whole or a portion of the rights and/or obligations agreed upon hereunder. No additional consent from the Property Owner shall be required to exercise the rights herein set out.
10.
Relationship. The parties shall act towards each other in good faith and co-operation in all matters connected herewith, provided that:
(a)
such relationship shall not impose upon either of them any duties or liabilities whatsoever except in accordance with this Agreement,
(b)
this Agreement shall not be deemed to constitute or create a partnership between the parties, and
(c)
neither party shall have any authority to act for or to assume any obligation or responsibility on behalf, on account or in representation of the other party, except as provided herein.
11.
This Agreement shall cease to be in full force and effect by:
(a)
the dissolution and liquidation of the Company,
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(b)
the conclusion of the Term of the Agreement,
(c)
the acquisition by the Company of the ownership rights to the Land in Occupation; if the Company acquires a portion of such land, this Agreement shall continue in full force and effect for the remaining land area,
(d)
the delivery by the Company to the Property Owner of the notice of relinquishment of rights and early termination of Agreement set out in Clause 3 hereof,
(e)
the final judicial judgment of annulment, cancellation or termination of the rights attached to the Mining Concessions,
(f)
the written agreement of the parties.
12
Applicable Law and Tribunals. This Agreement shall be governed by the provisions of the Agrarian Act, the Mining Act and its Regulations, the Code of Commerce and the Civil Code of the State of Mexico. The parties hereto agree that the state and federal tribunals with competent jurisdiction in and for the City of Mexico, D.F. shall have the authority to resolve any dispute, suit or claim arising under this Agreement. The parties hereby renounce to the jurisdiction of any other tribunal or court to whose jurisdiction they might have a right to by virtue of their current or future domiciles.
13
Force Majeure. The obligation of the Company to pay the Annual Rent shall be suspended when the execution of the Mining Activities is prevented, delayed or interrupted by an act of force majeure. Payment of the obligation shall be suspended for the duration of the act of force majeure. In case of force majeure, the term for payment of the suspended obligation(s) shall be advanced by the number of days of existence of the force majeure.
13.1
The parties acknowledge as acts of force majeure, the following: any act of God or human act, such as earthquakes, volcanic eruptions, hurricanes, fires, floods, storms, accidents, droughts, avalanches, uprisings, rebellions, revolutions, wars, strikes, illegal confinement, acts of authority, restrictions or impediment to access the Land in Occupation and, in general, any other act not related to the will of the parties that prevents or delays the execution of the Mining Activities.
13.2
In the event of force majeure, the Company shall, as prompt as reasonably possible, deliver a notice to the Property Owner setting out the estimated period of suspension of payment of the Annual Rent. On disappearance of the force majeure, the Company shall notify the Property Owner accordingly and it shall, as prompt as reasonably possible, proceed with compliance of the suspended obligation(s).
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14
Notices. Any notice or notification given or required to be given between the parties as a result of the application of this Agreement, including any notification required under judicial proceedings, shall be given in writing and personally delivered to the other party, or delivered by any way that assures undoubtedly its reception or notification and it shall be addressed to the latest domiciles set out by the parties under this Agreement, which domiciles are, until further notice is given, the domiciles of the parties described in page 1 of this Agreement.
15.
Successors and Assigns. This Agreement is binding upon, and inures to the benefit of the Property Owner, the Company and their respective successors and assigns.
16.
Whole Agreement. This Agreement, its schedules and the documents delivered as set forth hereunder, constitute the entire understanding of the parties in respect to the subject matter hereof, and they cancel and supersede any other agreement, contract or letter of intent that they may have executed in respect to the said subject matter.
17
Language. This Agreement is approved in both the English and Spanish languages. The parties agree that in the event of discrepancy between the two versions, the Spanish version shall prevail. The parties acknowledge to having obtained sufficient independent legal advice and to having read and understood (through their respective appointed interpreters and legal counsel) the legal effects and validity of this Agreement in both the Spanish and English versions. The English version is attached as Schedule C hereto and made part hereof for all corresponding legal effects.
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In witness whereof, the parties hereto after having read and understood the legal effects and validity of the premises set forth above, have caused this Agreement to be executed on the date and place above written.
THE “PROPERTY OWNER”
"/s/ Xxxxxxxxx Xxxxx Xxxxxx"
XX. XXXXXXXXX XXXXX XXXXXX
IN HIS OWN RIGHTS
THE “COMPANY”
MINERA PERICONES, S.A. DE C.V.
"/s/ Xxxx Xxxxxxx Xxxxx Xxxxxx"
LIC. XXXX XXXXXXX XXXXX XXXXXX
ITS: LEGAL REPRESENTATIVE
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