(ENGLISH VERSION)
AMENDMENT AGREEMENT ENTERED INTO BY AND BETWEEN, ON ONE PART, XX. XXXXXX
XXXXXXXX ESPARZO (HEREINAFTER THE "TITLEHOLDER"), ON HIS OWN BEHALF AND ON
BEHALF OF HIS WIFE, XXX. XXXXXXX XXXX XXXXXXX XX XXXXXXXX; AND, ON THE OTHER
PART, INTERNATIONAL CAPRI RESOURCES, S.A. DE C.V. (HEREINAFTER "ICRM"), HEREBY
REPRESENTED BY XX. XXXX XXXXXXX XXXXXXX-XXXXXX XXXXXXX-XXXX, IN ACCORDANCE WITH
THE FOLLOWING DECLARATIONS AND CLAUSES.
DECLARATIONS
I. Both parties, the TITLEHOLDER on his own behalf and ICRM through its
representative, declare:
1. That on November 30, 1998, the TITLEHOLDER entered into with the
company named Polo y Xxx Minerales, S.A. de C.V., Contracts of Mining
Exploration and of Promise of Assignment of Rights (hereinafter the
"CONTRACTS"), with respect to the rights deriving from the mining
concessions covering the lots "EL VOLADO", title 197967 and "XX
XXXXXX", title 156895 (jointly identified as the "LOTS" in such
CONTRACTS and in this document), which identification data are as
follows:
a) "EL VOLADO", mining exploration concession, title 197967,
issued on September 30, 1993, located in the Municipality of
Zacualpan, State of Mexico, with a surface of 3.7899 hectares,
recorded in the Public Registry of Mining, under number 27,
page 14 of volume 276 of the General Book of Concessions; and
b) "XX XXXXXX", mining exploitation concession, title 156895,
issued on May 12, 1972, located in the Municipality of
Zacualpan, State of Mexico, with a surface of 111.7074
hectares, recorded in the Public Registry of Mining, under
number 49, page 13 of volume 199 of the General Book of
Concessions.
That the CONTRACTS cited in this declaration were recorded in the
Public Registry of Mining on January 29, 1999, under number 84, page 56
back side to 57 front side of volume 9 of the Book of Mining Acts,
Contracts and Agreements kept by such Public Registry of Mining
2. That on December 11, 1998, Polo y Xxx Minerales, S.A. de C.V. entered
into with the company International Capri Resources, S.A. de C.V.
(ICRM), a Contract of Assignment of all the rights and obligations
deriving from the CONTRACTS in favor and under the responsibility of
Polo y Xxx Minerales, S.A. de C.V., having ICRM fully subrogated in the
fulfillment of such obligations and in the enjoyment of such rights;
therefore, for purposes of precision it is hereby clarified that, from
the above cited assignment of rights, all references made in the
CONTRACTS, to the BENEFICIARY, are understood as made to ICRM itself.
That the Contract of Assignment of Rights referred to in this
declaration, was recorded in the Public Registry of Mining on May 7,
1999, under number 143, volume 9 of the Book of Mining Acts, Contracts
and Agreements kept by such Public Registry of Mining.
3. That as of the date of this Agreement, the TITLEHOLDER and ICRM have
complied with the obligations acquired by them under the CONTRACTS and
they have no claims thereof, therefore, they mutually release
themselves of all responsibilities derived from the fulfillment of the
CONTRACTS as of this date, the TITLEHOLDER stating that he has
received, at his entire satisfaction, each and all of the payments
referred to in subparagraphs a) through f) of section 4.2 of Clause
Second of the CONTRACTS; and, the TITLEHOLDER also stating that, he has
evidenced ICRM that he has been registered before the competent tax
authorities as an entrepreneur.
4. That based on the results of exploration works performed by ICRM as of
this date, and as a result of the conversations between the TITLEHOLDER
and ICRM, both parties wish to enter into this Agreement, in order to:
(i) extend the duration of the CONTRACTS; (ii) modify the schedule of
payments referred to in section 4.2 of Clause Second of such CONTRACTS;
and, (iii) adjust some other provisions contained in such CONTRACTS.
5. That the TITLEHOLDER as well as ICRM's representative, state that they
have sufficient authority to enter into this Agreement, since the
authority conferred to them by Xxx. Xxxxxxx Xxxx Xxxxxxx xx Xxxxxxxx
and ICRM, respectively, are still in full force and effect and have not
been revoked, limited or modified in any manner whatsoever.
Having made the above declarations, the parties agree on the following:
CLAUSES
FIRST. The parties agree to modify section 1. of Clause First of the
CONTRACTS, for it to be hereinafter drafted as follows:
"1. Term. The duration of this Contract of Exploration is for the
term comprised between the date of execution and ratification before
a Notary, of the CONTRACTS and March 31, 2000"
For purposes of more clarity, the parties agree that the provisions
stipulated by them under sections 1.1 and 1.2 of said Clause First,
fully prevail.
SECOND. The parties agree to modify section 1. of Clause Second of the
CONTRACTS, in order for it to be hereinafter drafted as follows:
"1. Duration. The term within which the BENEFICIARY may exercise, at
any time, the right to assign to the BENEFICIARY or its designee, the
rights derived from any or both titles of mining concession covering,
or that in the future shall cover, the LOTS, as well as the referred
rights that the TITLEHOLDER may have to access the LOTS, shall be the
term comprised between the date of execution and ratification before a
Notary, of the CONTRACTS and March 31, 2000."
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For purposes of more clarity, the parties agree that the provisions
stipulated by them under sections 1.1 and 1.2 of said Clause Second,
fully prevail.
THIRD. The parties agree to modify subparagraphs g), h) and i) of
section 4.2 of Clause Second of the CONTRACTS, for them to be hereinafter
drafted as follows, and likewise, they have agreed to add a subparagraph j) to
the above cited section 4.2, in order to be in the following terms:
"4.2 Schedule of Payments. The amounts referred to in section 4.
of the CONTRACTS, shall be as follows:
. . .
g) On the day on which this Amendment Agreement to the CONTRACTS be
executed and ratified before a Notary Public, the total amount of
$6,000.00 USCy. (six thousand dollars 00/100).
h) On January 31, 2000, provided the CONTRACTS are still in force, the
total amount of $9,320.00 USCy. (nine thousand three hundred and twenty
dollars 00/100).
i) On March 31, 2000, provided the CONTRACTS are still in force, the
total amount of $14,280.00 USCy. (fourteen thousand two hundred and
eighty dollars 00/100). Upon delivery of this last payment, it shall be
understood that the BENEFICIARY has fully exercised the right to
acquire the LOTS.
j) Should the option to acquire the LOTS be exercised prior to March
31, 2000, the BENEFICIARY shall pay to the TITLEHOLDER, such amounts
referred to in the above subparagraphs which have not been paid, with
respect to the dates which have not been met, in order that the total
consideration corresponding to the promise and to the assignment of all
the rights deriving from the mining concessions at that time covering
the LOTS, be the total amount of $101,600.00 USCy. (one hundred one
thousand and six hundred dollars 00/100), plus the corresponding Value
Added Tax (VAT)."
FOURTH. Given that indicated in the final part of declaration I.3 of
this document, the parties agree to modify paragraphs third and fourth of Clause
Sixth of the CONTRACTS in order that they be hereinafter as follows:
"SIXTH. Expenses, Fees and Taxes.
. . .
Likewise, the TITLEHOLDER commits himself to comply with all
obligations imposed to him by the tax laws in force, since he has
stated to the BENEFICIARY that he is recorded in the Federal Taxpayers'
Registry, under number EUEH-340308-MU7, as an entrepreneur.
Given that indicated in the above paragraphs, it is hereby understood,
that except as otherwise provided by the applicable tax provisions, for
each payment made to
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the TITLEHOLDER, no withholding of Income Tax shall be made, the
parties obligating themselves to comply with all tax obligations
imposed or to be imposed to them, by the tax laws in force
. . . "
FIFTH. Given the assignment of rights and obligations subject matter
of the contract referred to in declaration I.2 of this document, the parties
agree to modify Clause Seventh of the CONTRACTS, in order that, for purposes of
more precision, it be drafted as follows:
"SEVENTH. Guaranty for Compliance. The TITLEHOLDER, Xx.
Xxxxxx Xxxxxxxx Xxxxxxx, obligates himself pursuant to articles 2554
paragraph fourth, 2587 and 2596 paragraph first, of the Civil Code for
the Federal District in Common Matters and for all the Republic in
Federal Matters, to grant before a Notary Public, a special and
irrevocable power of attorney, to guarantee the fulfillment of the
obligations assumed by the TITLEHOLDER under this document, in the
following terms:
Xx. Xxxxxx Xxxxxxxx Xxxxxxx, on his own behalf, grants in favor of
Messrs. Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxx-Xxxxxx
Xxxxxxx-Xxxx, Xxxxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx-Xxxxx and
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxx, a special and irrevocable power of
attorney, for them to exercise same, jointly or individually, in order
that in the name and on behalf of the grantors:
They comply with, if so required by International Capri Resources, S.A.
de C.V. or its designee, the obligations assumed by Xx. Xxxxxx Xxxxxxxx
Xxxxxxx with respect to International Capri Resources, S.A. de C.V.
under the Contracts of Mining Exploration and of Promise of Assignment
of Rights (hereinafter the "Contracts") entered into by the grantor as
promisor (in such contracts identified as the "TITLEHOLDER"),
consisting of the execution with International Capri Resources, S.A. de
C.V. (the "BENEFICIARY") or its designee, of the Definitive Contract(s)
of Assignment of Rights derived from the titles of mining concession
covering, or that in the future shall cover, the LOTS:
a) "EL VOLADO", mining exploration concession, title 197967,
issued on September 30, 1993, located in the Municipality of
Zacualpan, State of Mexico, with a surface of 3.7899 hectares,
recorded in the Public Registry of Mining, under number 27,
page 14 of volume 276 of the General Book of Concessions; and
b) "XX XXXXXX", mining exploitation concession, title 156895,
issued on May 12, 1972, located in the Municipality of
Zacualpan, State of Mexico, with a surface of 111.7074
hectares, recorded in the Public Registry of Mining, under
number 49, page 13 of volume 199 of the General Book of
Concessions.
This power of attorney is granted with the limitation that, in order to
exercise the authority to assign the rights referred to hereof, the
attorney(s)-in-fact exercising this power of attorney must evidence the
Notary Public before whom the signatures of the Contract or Contracts
of Assignment of the Rights derived from the LOTS, be ratified, that
given such assignment of the LOTS, the total amount agreed upon for the
promise and for the assignment of the LOTS has been delivered to the
TITLEHOLDER or, evidence that such amount has been deposited in favor
of the TITLEHOLDER.
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This power of attorney is further granted for, if so required by
International Capri Resources, S.A. de C.V. (the BENEFICIARY) or its
designee, the attorneys-in-fact to act in order to make valid all of
the rights granted to the mining concessionaires with respect to their
concessions, by the Mining Law, its Regulations and other applicable
provisions in the mining area, which in its case, would include the
fulfillment of the obligations of Xx. Xxxxxx Xxxxxxxx Xxxxxxx, among
which include but are not limited to file reports and proofs of
execution of the mining works referred to by the Mining Law and its
Regulations; to initiate proceedings for mining opposition; to file and
process administrative remedies in terms of the Mining Law, its
Regulations and other applicable provisions; to initiate constitutional
protection proceedings; and, other acts applicable pursuant to such
provisions, except for the withdrawal, subdivision, reduction or
unification of surface of the LOTS, which would only proceed with the
written authorization issued by the TITLEHOLDER and the BENEFICIARY's
representative, jointly.
Within the specialty of the power of attorney, the attorneys-in-fact
shall have all the authority corresponding to a general power of
attorney for lawsuits and collections, to administer property and for
acts of ownership, with the broadest authority as provided for by
article 2554 (two thousand five hundred and fifty four) of the Civil
Code for the Federal District in Common Matters and for all the
Republic in Federal Matters and the corresponding article of the Civil
Code for each Estate of the Mexican United States; with the limitation
that the attorneys-in-fact may exercise this power of attorney only in
matters related to the rights derived from the mining concessions
covering, and that in the future shall cover, the LOTS subject matter
of the cited Contracts.
Given that the power of attorney conferred in this instrument is
granted for the fulfillment of the obligations assumed by the grantor
under a bilateral contract, it is expressly stipulated that the power
of attorney is conferred as irrevocable, in terms of article 2596 (two
thousand five hundred and ninety six) of the Civil Code for the Federal
District in Common Matters and for all the Republic in Federal Matters
and, the corresponding article of the Civil Code for each State of the
Mexican Untied States.
This power of attorney shall be in force during the time in which the
obligations of the grantor under: (i) the aforementioned Contracts of
Mining Exploration and of Promise of Assignment of Rights; and, (ii)
the Amendment Agreement to such Contracts entered into by and between
the TITLEHOLDER and International Capri Resources, S.A. de C.V., are
still existing, copy of which Contracts are attached hereto to form an
integral part of this instrument."
SIXTH. Likewise, the parties hereby agree that, all such terms and
conditions agreed upon in the CONTRACTS and that have not been expressly
modified under this Agreement, shall continue in full force and effect,
therefore, the TITLEHOLDER and ICRM obligate themselves to fully observe them
and to comply with all the obligations assumed by them and deriving from the
CONTRACTS and from this Agreement.
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Having this document read by the parties, they ratify same in all its terms and
sign it for the record hereof, on July 7, 1999, in Mexico City, Federal
District.
THE TITLEHOLDER ICRM
INTERNATIONAL CAPRI RESOURCES,
/s/ Xxxxxx Xxxxxxxx Xxxxxxx X.X. DE C.V.
--------------------------- /s/ Xxxx Xxxxxxx-Xxxxxx Xxxxxxx-Xxxx
Xxxxxx Xxxxxxxx Xxxxxxx ------------------------------------
On his own behalf and on behalf of Xxx. Xxxxxxx Xxxx Xxxx Xxxxxxx-Xxxxxx Vergara-Xxxx
Xxxxxxx xx Xxxxxxxx
