SHARE TRANSFER AGREEMENT
This
Agreement (the “Agreement”), by and between Compania Minera del Xxxxxxxx X.X.,
an Ecuadorian corporation (“MDP” also the “Transferor”), Trilliant Exploration
Corporation , a Nevada corporation (“Buyer” also the “Transferee”), and Compania
Muluncaygold Corp. S.A. (“Muluncaygold”) dated and effective March 30, 2009 (the
“Effective Date”), supersedes in its entirety the terms of that certain
Agreement entered into on October 15, 2008 by and between MDP and the Buyer
(Muluncaygold, Buyer and MDP each a “Party” and collectively the
“Parties”).
Recitals
WHEREAS, MDP controls certain
equipment, fixtures, improvements and mining rights located in Muluncay Ecuador,
which equipment, fixtures, improvements and mining rights are owned by
Muluncaygold; and
WHEREAS, Muluncaygold is a
wholly owned subsidiary of MDP; and
WHEREAS, on October 15, 2008,
MDP and the Buyer entered into a certain Asset Purchase Agreement whereby MDP
agreed to sell its interest in Muluncaygold to the Buyer; and
WHEREAS, the Parties desire to
enter into a new Agreement for the transfer of 100% interest in Muluncaygold to
the Buyer as set forth herein upon the earliest date allowable by Ecuadorean
law.
NOW THEREFORE, in
consideration of the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereby agree as follows:
1. Agreement. This
Agreement supersedes in its entirety the terms, conditions and obligations of
the Buyer and MDP as set forth in that certain Purchase Agreement between the
Parties and entered into on October 15, 2008; the Parties agree that said
Purchase Agreement shall be of no force or effect whatsoever.
2. Purchase
and Sale Terms.
2.1 Share Transfer and Control of Assets.
Subject to all of the terms and conditions of this Agreement and for the
consideration described in this Agreement, MDP shall immediately transfer to the
Buyer 100% of the capital stock of Muluncaygold along with control of the assets
as set forth in “Exhibit A” to this Agreement.
2.2 Share Transfer Price. The
total Share Transfer price for the Shares and the controlling assets shall
consist of Three Million Six Hundred Thousand Dollars ($3,600,000)(the “Share
Purchase Price”). The Share Purchase Price shall be paid to MDP in
installments (the “Installments”) and in accordance with a promissory note (the
“Note”), in the general form as set forth in “Exhibit B” to this Agreement,
which shall be delivered to MDP upon execution of this
Agreement.
2.3 Investment. Buyer/Transferee agrees
to transfer to COMPANIA MULUNCAYGOLD CORP, S.A. a total of One
Million Eight Hundred Thousand U.S. Dollars ($1,800,000) as follows: an initial
payment of Eight Hundred Thousand U.S. Dollars ($800,000) within ninety (90)
days of the Effective Date; and the balance of One Million U.S. Dollars within
one hundred eighty (180) days of the Effective Date.
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2.4 Payment of
Encumbrances. MDP shall continue to be responsible for, and to
pay until fully discharged any and all claims, indebtedness, judgments, liens or
security interests secured by any instruments encumbering title to any of the
Assets, including but not limited to any deeds of trust, financing statements,
mortgages or security agreements secured by any lien or security interest in the
Assets which exist as of the Effective Date (collectively the
“Encumbrances”). Muluncaygold shall transfer to MDP the amount
necessary to make payments on such Encumbrances as such payments become due and
payable, and MDP shall promptly make such payments upon receipt of funds from
Muluncaygold. Muluncaygold may, in its sole discretion and to the
extent permitted by law, make such payments directly to the holders of the
Encumbrances. Nothing contained in this Section 2.4 of this Agreement shall
require any payment from Muluncaygold to MDP unless such payment is immediately
applied to the Encumbrances. MDP agrees to transfer legal title to
all Assets into the name of Muluncaygold, its successors or assigns within
thirty (30) calendar days of MDP’s ability to legally transfer such
title.
2.5 Other Debt. Each
Party releases each of the other parties from any Debts between the
Parties which exist immediately prior to the Effective Date as
follows:
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(a)
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Upon
transfer of 100% of the capital stock of Muluncaygoldcorp, Buyer hereby
unconditionally releases MDP from all payments due and payable on that
certain note for a total principal amount of $1,195,000 between MDP
(referred to in the note as the “Borrower”) and the Buyer (referred to in
the note as the “Holder”), which was issued pursuant to that certain Loan
Agreement between MDP and the Buyer and dated October 15, 2008, together
with all interest payable
thereon.
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(b)
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MDP
hereby unconditionally releases Buyer and Muluncaygold from any and all
debts owing to MDP immediately prior to the Effective
Date.
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(c)
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Muluncaygold
and Buyer hereby unconditionally accept and assume any and all debts owed
by Muluncaygold (except such debts specified in Section 2.5(b) herein) and
releases MDP from such debts immediately upon transfer to Buyer of 100% of
the capital stock of
Muluncaygold..
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(d)
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Nothing
contained in Section 2.5 (a) – (c) herein shall release Muluncay and MDP
of their respective obligations to make payments on the Encumbrances as
set forth in Section 2.4
herein.
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2.6 Buyer’s
obligation to pay the Purchase Price shall be secured by Buyer’s grant of a lien
and security interest in the Assets represented by the Deed of Trust executed
and delivered by Buyer.
2.7 Assumption of Assets and Performance
of Permits. To the extent allowable under all applicable laws and
regulations, MDP shall assign to Muluncaygold, its successors and assigns any
and all Assets as soon as legally practicable.
2.8 Closing. The Closing shall be
held on March 30, 2009 (the “Closing Date”) at the offices of Xxxxxx &
Xxxxxxxxx, PLLC.
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3. Representations and Warranties of
MDP. MDP represents and warrants to Buyer the
following:
3.1 Organization and Authorization.
MDP is a corporation duly organized and validly existing and in good
standing under the laws of the Ecuador. MDP has the full power and authority to
enter into this Agreement and to consummate the transactions contemplated under
this Agreement. The making and performance of this Agreement and the agreements
and other instruments required to be executed by MDP have been, or at the
Closing will have been, duly authorized by all necessary corporate actions and
will be duly executed by a person authorized by MDP to do so. MDP shall deliver
to Buyer duly approved and executed resolutions of the directors and
shareholders approving MDP’s execution and delivery of this Agreement and the
performance of its obligations under this Agreement.
3.2 No Breach of Laws or Contracts.
The consummation by MDP of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute a default under any applicable law or regulation, its articles of
organization or operating agreement, or under any other agreement or instrument
to which MDP is a party, by which it is bound, or which affects the
Assets.
3.3 Binding Obligations. When
executed and delivered, this Agreement and all instruments executed and
delivered by MDP pursuant to this Agreement will constitute legal and binding
obligations of MDP and will be valid and enforceable in accordance with their
respective terms.
3.4 Compliance with Laws. MDP has
not received notice from any governmental agency, of any physical or
environmental condition existing on the Land or any access to the Land or
created by MDP or of any action or failure to act by MDP which is a material
violation of any applicable law, regulation or ordinance. To MDP’s knowledge,
there are currently no off-site improvement requirements that any governmental
authority has imposed or threatened to impose on the Land.
3.5 No Litigation. There is no
suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending or, to the knowledge of MDP without inquiry,
threatened against, or affecting the Assets or the ability of MDP to perform its
covenants and obligations under this Agreement.
3.6 Patriot Act. MDP is not on the
Specially Designated National & Blocked Persons List of the Office of
Foreign Assets Control of the United States Treasury Department and is not
otherwise blocked or banned by any foreign assets office rule or any other law
or regulation, including the USA Patriot Act or Executive Order
13224.
3.7 Condition
of and Title to the Assets.
3.7.1 Title to the Land.
Except as acknowledged in a writing signed by the Buyer, MDP represents
and warrants that MDP’s title to the Land is good and marketable and on the
Closing shall be free and clear of any lien, claim or encumbrance, except the
following (the “Permitted Exceptions”):
(a) Liens
for taxes and mortgages acknowledged by Buyer on the Assets not yet due and
payable or which are being contested in good faith.
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3.7.2 Encroachments. To MDP’s
knowledge, the improvements on the Land lie entirely within the boundaries of
the Land and no structure of any kind encroaches on or over the
Land.
3.7.3 Condemnation. To MDP’s
knowledge, no portion of any of the Land or improvements on the Land is the
subject of, or affected by, any condemnation or eminent domain
proceeding.
3.7.4 Unrecorded Conveyances.
To MDP’s knowledge, there are no unrecorded liens, encumbrances,
restrictions or royalties against the Land.
3.7.5 Title to the Mining Rights.
MDP represents that MDP’s title to the Mining Rights subject to the
Mining Rights Lease is good and marketable and on the Closing shall be free and
clear of any lien, claim or encumbrance except (the “Permitted Exceptions”)
aforementioned in 3.7.1.
3.7.6 Taxes. MDP represents
that all taxes, including without limitation, advalorem, property (both real and
personal), production, severance, reclamation, and similar taxes and assessments
based upon or measured by ownership of property or production of minerals or the
receipt of proceeds there from which have become due and payable have been
properly paid. Buyer will not be liable for any taxes which accrue or are
assessed before the Closing. To MDP’s knowledge, there are no pending or
threatened special assessments affecting the Assets except (the “Permitted
Exceptions”) aforementioned in 3.7.1.
4. Representations
and Warranties of Buyer.
Buyer agrees, represents and warrants to MDP the
following:
4.1 No Breach of Law or Contracts.
The consummation by Buyer of the transactions contemplated by this
Agreement will not result in a breach of any term or provision of, or constitute
a default under any applicable law, regulation or ordinance or any other
agreement or instrument to which Buyer is a party or by which it is
bound.
4.2 Binding Obligations. When
executed and delivered this Agreement and all instruments executed by Buyer
pursuant to this Agreement, will constitute legal and binding obligations of
Buyer and will be valid and enforceable in accordance with their respective
terms.
4.3 No Litigation. There is no
suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending or, to the knowledge of Buyer without
inquiry, threatened against, or affecting the Assets or the ability of Buyer to
perform its covenants and obligations under this Agreement.
4.4 Brokers. Buyer has incurred no
liability, contingent or otherwise, for broker's or finder's fees relating to
the transactions contemplated by this Agreement.
4.5 Patriot Act. Buyer is not on
the Specially Designated National & Blocked Persons List of the Office of
Foreign Assets Control of the United States Treasury Department and is not
otherwise blocked or banned by any foreign assets office rule or any other law
or regulation, including the USA Patriot Act or Executive Order
13224.
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4.6 Organization and Authorization.
Buyer is a corporation duly organized and validly existing and in good
standing under the laws of the State of Nevada. Buyer has the full power and
authority to enter into this Agreement and to consummate the transactions
contemplated under this Agreement. The making and performance of this Agreement
and the agreements and other instruments required to be executed by Buyer have
been, or at the Closing will have been, duly authorized by all necessary
corporate actions and will be duly executed by a person authorized by Buyer to
do so.
5. Representations and Warranties of
Muluncaygold. Muluncaygold agrees, represents and warrants to MDP the
following:
5.1 No Breach of Law or Contracts.
The consummation by Muluncaygold of the transactions contemplated by this
Agreement will not result in a breach of any term or provision of, or constitute
a default under any applicable law, regulation or ordinance or any other
agreement or instrument to which Muluncaygold is a party or by which it is
bound.
5.2 Binding Obligations. When
executed and delivered this Agreement and all instruments executed by
Muluncaygold pursuant to this Agreement, will constitute legal and binding
obligations of Muluncaygold and will be valid and enforceable in accordance with
their respective terms.
5.3 No Litigation. There is no
suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending or, to the knowledge of Muluncaygold without
inquiry, threatened against, or affecting the Assets or the ability of
Muluncaygold to perform its covenants and obligations under this
Agreement.
5.4 Brokers. Muluncaygold has
incurred no liability, contingent or otherwise, for broker's or finder's fees
relating to the transactions contemplated by this
Agreement
5.5 Patriot Act. Muluncaygold is
not on the Specially Designated National & Blocked Persons List of the
Office of Foreign Assets Control of the United States Treasury Department and is
not otherwise blocked or banned by any foreign assets office rule or any other
law or regulation, including the USA Patriot Act or Executive Order
13224.
5.6 Organization and Authorization.
Muluncaygold is a corporation duly organized and validly existing and in
good standing under the laws of Ecuador. Muluncaygold has the full
power and authority to enter into this Agreement and to consummate the
transactions contemplated under this Agreement. The making and performance of
this Agreement and the agreements and other instruments required to be executed
by Muluncaygold have been, or at the Closing will have been, duly authorized by
all necessary corporate actions and will be duly executed by a person authorized
by Muluncaygold to do so.
6. Covenants
and Obligations.
6.1 Covenants of
MDP. MDP covenants and agrees with Buyer as follows:
6.1.1 Maintenance of Property. Until
the Closing, MDP shall cause the Assets to be maintained and operated in a good
and workmanlike manner, shall not partition the Assets, shall maintain insurance
now in force with respect to the Assets, shall pay or cause to be paid all costs
and expenses incurred in connection with this Agreement, shall keep the
Underlying Agreements in full force and effect, and shall perform and comply
with all of the conditions and covenants contained in same and all other
agreements relating to the Assets.
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6.1.2 Copies of Agreements. MDP has
disclosed to Buyer the existence of and has furnished Buyer with copies of all
agreements and contracts relating to the Assets, to the extent that MDP is aware
of the existence of such agreements and contracts.
6.1.3 Notification of Buyer of Suits,
Litigation, Material Adverse Change, Etc. Until the Closing, MDP
promptly shall notify Buyer of any suit, action, or other proceeding, actual or
threatened, before any court, governmental agency or arbitrator and any cause of
action or any other adverse change which relates to the Assets or which might
result in impairment or loss of MDP's title to any portion of the Assets or the
value of the Assets or which might hinder or impede the operation of the Assets
or which seeks to restrain or prohibit or to obtain substantial damages from MDP
in respect of, or which is related to or arises out of, this Agreement or the
consummation of all or any part of the transactions contemplated under this
Agreement of which MDP becomes aware.
6.1.4 Maintenance of Representations and
Warranties. MDP shall use its reasonable best efforts to cause all of the
representations and warranties of MDP contained in this Agreement to be true and
correct on and as of the Closing, and MDP shall use its reasonable best efforts
to cause the conditions precedent to the obligations of MDP to be satisfied on
or before the Closing. If any material change in condition or circumstances
renders any of MDP’s representations or warranties contained in this Agreement
inaccurate in any material respect between the Effective Date and the Closing
Date, MDP shall promptly give written notice to Buyer of such change. Buyer
shall have a period of five (5) days after receipt of MDP’s notice to accept
such representation or warranty as changed or to terminate this Agreement by
delivering written notice to MDP. If Buyer elects to terminate this Agreement,
MDP and Buyer shall instruct the Escrow Agent to promptly release and return the
initial money deposit to Buyer, and, if Buyer makes such election after the
initial money deposit has been paid to MDP, MDP shall promptly repay the initial
money deposit to Buyer. On such termination, neither party shall have any
further rights or obligations under this Agreement. Alternatively, Buyer may
waive the effect of any such changed representation or warranty and proceed to
complete the Closing.
6.1.5 Agreement Not to Market the Assets.
Until the Closing and thereafter if the Closing occurs, MDP shall not
assign, transfer, encumber or in any way dispose of any interest in or to the
Assets to any other person or entity, or negotiate with any other person or
entity with respect to the transfer or grant of any interest or option
whatsoever in the Assets, except that MDP may continue to sell aggregate, sand
and gravel from the Assets in the ordinary course of MDP’s business. These
obligations of MDP shall terminate before the Closing if and at such time as
this Agreement is terminated as provided in Section 8.
6.1.6 Permits and Underlying Agreements.
MDP shall maintain the Permits and Underlying Agreements in full force
and effect and shall comply with its obligations to transfer the Permits and
Underlying Agreements.
6.2 Covenants of Buyer. Buyer
covenants and agrees with MDP as follows:
6.2.1 Maintenance and Confidentiality of
Data. Before the Closing, Buyer shall exercise due diligence in
safeguarding and maintaining all Data and keeping the Data confidential, except
for such disclosure as reasonably deemed necessary by Buyer for purposes of
obtaining financing and such disclosures as counsel for either party may advise
is legally required or an announcement which is required to be made to all
governmental or regulatory agency, in which cases MDP shall be given reasonable
advance notice and the right to review and comment on same. If the Closing does
not occur, Buyer’s obligation to maintain the confidentiality Data shall survive
termination of this Agreement.
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6.2.2 Maintenance of Representations and
Warranties. Buyer shall use its reasonable best efforts to cause all of
the representations and warranties of Buyer contained in this Agreement to be
true and correct as of the Closing; provided, however, that nothing contained in
this Section shall create an obligation of Buyer to MDP to pay money or
undertake any additional legal obligation.
6.2.2
Covenants of Muluncaygold. Muluncaygold covenants and agrees with
MDP and the Buyer as follows:
6.2.3 Maintenance and Confidentiality of
Data. Before the Closing, Muluncaygold shall exercise due diligence in
safeguarding and maintaining all Data and keeping the Data confidential, except
for such disclosure as reasonably deemed necessary by Muluncaygold for purposes
of obtaining financing and such disclosures as counsel for either party may
advise is legally required or an announcement which is required to be made to
all governmental or regulatory agency, in which cases MDP shall be given
reasonable advance notice and the right to review and comment on same. If the
Closing does not occur, Muluncaygold’s obligation to maintain the
confidentiality Data shall survive termination of this
Agreement.
6.2.4 Maintenance of Representations and
Warranties. Muluncaygold shall use its reasonable best efforts to cause
all of the representations and warranties of Muluncaygold contained in this
Agreement to be true and correct as of the Closing; provided, however, that
nothing contained in this Section shall create an obligation of Muluncaygold to
MDP to pay money or undertake any additional legal
obligation.
6.4
Closing Obligations. At the Closing,
MDP and Buyer shall have the following respective
obligations:
6.4.1 MDP's
Obligations. At the Closing, MDP shall, to the fullest extent permitted
under the laws of Ecuador, and consistent with the Permitted Exceptions
aforementioned in 3.7.1:
6.4.1.1 Cause
any liens and monetary encumbrances against the Assets to be discharged or
transferred to Buyer.
6.4.1.2 Execute
and deliver to Buyer a Deed conveying to Buyer all of MDP's right, title and
interest in and to the Land, the appurtenances to the Land (excluding the Mining
Rights) and the improvements on the Land as soon as practicable under Ecuador
law,
6.4.1.3 Execute
a Mining Rights Deed or such other instrument as necessary to transfer the
Assets to the Buyer as soon as practicable under Ecuador law,
6.4.1.4 Immediately
transfer to Buyer 100% of the outstanding stock of
Muluncaygold
6.4.1.5 Execute
and deliver such declarations of value as are required for recording of the
Deed, Assignment and Assumption and the Mining Rights Deed.
6.4.1.6 Deliver
to Buyer possession of the Assets, including all keys to any and all
improvements on the Land. Title to and the risk of loss of the Assets shall pass
to Buyer on the delivery and recording, as applicable, of the instruments which
MDP is obligated to execute and deliver in accordance with this
Agreement.
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6.4.1.7 Deliver
the resolutions of MDP’s directors and shareholders approving MDP’s execution
and delivery of this Agreement and MDP’s performance of its obligations under
this Agreement.
6.4.1.10 Take any other
action consistent with the terms of this Agreement that may be reasonably
requested by Buyer for the purpose of closing the transactions contemplated
under this Agreement.
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6.4.2
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Buyer's Obligations. At
the Closing, Buyer shall:
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6.4.2.1 Take
any action consistent with the terms of this Agreement that may be reasonably
necessary for the purpose of closing the transactions contemplated under this
Agreement.
6.4.2.2 Buyer
shall pay: (a) the fees for filing and recording of the Grant, Bargain and Sale
Deed, Assignment and Assumption and the Mining Rights Deed and the Deed of
Trust; (b) the premiums for the endorsements to the title insurance policy; (c)
one-half of the real property transfer taxes; (d) one-half of the escrow fees;
and (e) the filing fees for the Report of Conveyance and Abstract of Title to be
filed in the DENAMI Mining Division of Ecuador.
6.4.3 Muluncaygold’s Obligations. At
the Closing, Muluncaygold shall take any action consistent with the terms of
this Agreement that may be reasonably necessary for the purpose of closing the
transactions contemplated under this Agreement.
7. Obligations
After Closing.
7.1 Recording Fees. Except as
otherwise provided in and except as otherwise paid in accordance with Section
6.4, each of MDP, Muluncaygold and Buyer shall pay its share of all documentary,
filing and recording fees required in connection with the filing and recording
of any conveyances and assignments delivered by MDP to Buyer at the Closing in
accordance with standard Nevada real estate practices.
7.2 Further Assurances. After the
Closing, MDP, Muluncaygold and Buyer shall execute, acknowledge and deliver or
cause to be executed, acknowledged and delivered such instruments and take such
other action as may be necessary or advisable to carry out their respective
obligations under this Agreement and under any document, certificate or other
instrument delivered pursuant to this Agreement.
7.3 Indemnification by Buyer. If
the Closing is held pursuant to Section 6, Buyer and Muluncaygold shall assume
and have responsibility and liability for the Assets from and after the Closing
Date. Except as provided in Section 7.4. Buyer and Muluncaygold shall defend,
indemnify and hold harmless MDP and its agents or affiliates, directors,
employees, managers, members and officers from and against any and all claims,
liabilities and costs (including reasonable attorneys' fees), relating to or
arising from or in connection with any breach by Buyer or Muluncaygold of any
representation, warranty or covenant of Buyer or Muluncaygold respectively
contained in this Agreement or in any agreement or other document executed by
Buyer in connection with this Agreement or relating to or arising from Buyer’s
ownership, possession or use of the Assets from and after the Closing
Date.
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7.4 Indemnification by MDP. After
the Closing, MDP agrees to indemnify, defend and hold harmless Buyer, and its
respective agents or affiliates, directors, employees, managers, members and
officers from and against any and all losses, claims, damages, liabilities,
costs and expenses (including reasonable attorneys' fees and other expenses of
investigating any claims and defending against or prosecuting any action) to
which they or any of them may become subject due to, or which arise from any of
the following (collectively the “Indemnity Claims”):
7.4.1 Any
breach of MDP’s covenants, agreements, warranties or representations contained
in this Agreement or in any assignment or other documents executed by MDP in
connection with this Agreement.
7.4.2 Any
failure of MDP to pay liabilities assumed or incurred by MDP, including payments
on the Encumbrances pursuant to this Agreement;
7.4.3 The
operations of MDP or the acts or omissions of its employees or agents before the
Closing Date; and
7.4.4 All
obligations arising from or relating to MDP’s ownership, possession or use of
the Assets on or before the Closing Date; provided, however, that except as
otherwise provided in this Agreement, MDP shall have no indemnification
obligations to Buyer for obligations arising from or relating to Buyer’s or
Muluncaygold’s ownership, possession or use of the Assets after the Closing
Date.
8. Termination
of Agreement.
8.1 Termination by MDP. This
Agreement and the transactions contemplated under this Agreement may be
terminated by MDP if before the Closing Buyer materially breaches any
representation or warranty made by Buyer or any obligation undertaken by Buyer
and Buyer fails to cure or to commence to cure such breach within five (5) days
after receiving written notice from MDP
of such breach.
8.2 Termination by Buyer. This
Agreement and the transactions contemplated under this Agreement may be
terminated by Buyer if before the Closing MDP or Muluncaygold materially
breaches any representation or warranty or any obligation and MDP or
Muluncaygold fails to cure or to commence to cure such breach within five (5)
days after receiving written notice from Buyer of such
breach.
8.2 Termination by Muluncaygold.
This Agreement and the transactions contemplated under this Agreement may
be terminated by Muluncaygold if before the Closing either of the other Parties
materially breaches any representation or warranty or any
obligation such breach is not cured within five (5) days after
receiving written notice from Muluncaygold of such breach.
9. Miscellaneous.
9.1 Exhibits. The exhibits
referred to in this Agreement are incorporated into this Agreement by reference
and constitute a part of this Agreement.
9.2 Expenses. Except as otherwise
specifically provided in this Agreement, all fees, costs, and expenses incurred
by MDP, Muluncaygold or Buyer in negotiating this Agreement or in consummating
the transactions contemplated by this Agreement shall be paid by the party
incurring same, including, without limitation, legal and accounting fees, costs
and expenses.
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9.3 Notices. All notices required
or authorized to be given under this Agreement shall be in written form. Any
notices may be sent by registered or certified delivery, postage prepaid, return
receipt requested, addressed to the proper party at the addresses described in
this Section. Any notice may be personally delivered to the party or sent by
telex, telegraph, telecopy or other electronic delivery method, and shall be
effective when actually received by the addressee party. For purposes of this
Agreement, the addresses of the parties are:
If to
MDP: Minera Del Xxxxxxxx
XX
Circunvalación Norte #511 y 00xxx.
Xxxxx
Xxxxxxx,
Xx Xxx, Xxxxxxx
If to
Buyer: Trilliant
Exploration Corporation
XX Xxx
000
Xxxxxxxx,
XX 00000
and copy
to: Xxxxxx & Xxxxxxxxx, PLLC
0000
Xxxxxxxxxxxx Xxx, XX
Xxxxx
000
Xxxxxxxxxx,
XX 00000
If to
: Muluncaygold:
Compania
Muluncaygold Corp. S.A
Circunvalación Norte #511 y 00xxx.
Xxxxx
Xxxxxxx,
Xx Xxx, Xxxxxxx
Either
party may, by written notice so delivered to the other, change the address or
individual to which delivery shall thereafter be made.
9.4 Amendments. This Agreement may
not be amended or any rights waived except by an instrument in writing signed by
the party to be charged with such amendment or waiver and delivered by such
party to the party claiming the benefit of such amendment or
waiver.
9.5 Assignment. Neither party may
assign or transfer its interest in this Agreement without the prior written
consent of the other party.
9.6 Headings. The headings of the
sections of this Agreement are for guidance and convenience of reference only
and shall not limit or otherwise affect any of the terms or provisions of this
Agreement.
9.7 Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts or
federal courts sitting in New York. The parties to this Agreement hereby
irrevocably waive any objection to jurisdiction and venue of any action
instituted hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon FORUM NON CONVENIENS.
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9.8 Entire Agreement.
This Agreement (including
the Exhibits) constitutes the entire understanding among the parties with
respect to the subject matter, superseding all prior negotiations, prior
discussions and prior agreements, including but not limited to the October 15,
2008 Asset Purchase Agreement between Buyer and MDP. Each party has been represented by independent
counsel of its choice and has participated in the negotiation and drafting of this Agreement. No
provision or term of this Agreement shall be construed in favor of or against
any party based on such party’s participation in the negotiation or drafting of
such provision or term.
9.10 Scope of Representations and
Warranties. All agreements, covenants, representations and warranties of
the parties are contained in this Agreement, in the Exhibits and the documents
referred to in this Agreement. No other agreements, covenants, representations
and warranties have been made by any party and all prior agreements, covenants,
representations and warranties are merged in this Agreement.
9.11 Parties in Interest. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
and their respective successors and permitted assigns.
9.12 Counterparts. This Agreement
may be executed in one or more counterparts, all of which shall be considered
one and the same agreement, and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party.
Each
of the parties has caused this Agreement to be executed by its duly authorized
representatives identified below effective as of the date first written
above.
MINERA DEL XXXXXXXX
X.X.
|
By:
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/s/ Xxxxxxx Xxxxxxx
/s/
|
Print
name: Xxxxxxx
Xxxxxxx Title: General Manager
TRILLIANT
EXPLORATION CORPORATION
|
By:
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/s/ Xxxxxxx X. Xxxxxxxxx
/s/
|
Print
Name: Xxxxxxx Xxxxxxxxx Title: President
COMPANIA
MULUNCAYGOLD CORP, S.A.
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By:
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/s/ Also Xxxxxxxxx
/s/
|
Print
Name: Xxxx Xxxxxxxxx Title: General Manager
11
EXHIBIT
A
The
following mines and properties, together with all contracts, mining equipment,
and operations comprise the “Assets”:
ASOCIACIÓN
DE MINEROS AUTÓNOMOS MULUNCAY area, Code 338, along with an ore reduction and
processing plant together with seven mines:
|
1.
|
XXXX
XXXX (BUENA XXXXXXXXX)
|
|
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2.
JACETH ETHAN (EL AGUACATE)
|
|
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3.
LA CHONTA Y LOS XXXXXX
|
|
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4.
NARANJITO
|
|
|
5.
SEÑOR DE LA DIVINA JUSTICIA
|
|
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6.
LAS XXXXX
|
|
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7.
LOS OSOS
|
Properties
Muluncay
Gold Camp Legal Description
That
MINERA DEL PACIFICO NOROESTE S.A. MINPANOREST Company, is the co-holder of the
ASOCIACIÓN DE MINEROS AUTÓNOMOS MULUNCAY area, Code 338, acquired in the
following way: By means of a Public Instruments of Assignment of Mining Rights
delivered before Notary Public Four of Canton Xxxxxxx, on March 19, 2007, the
spouses, Xxx. XXXXX XXXXXXXX JUMBO CACAY and Xx. XXXXXX XXXXXXX XXXXX XXXXXX,
assign their mining rights of the ASOCIACIÓN DE MINEROS AUTÓNOMOS MULUNCAY area,
Code No. 338, to MINERA DEL PACIFICO NOROESTE S.A. MINPANOREST, recorded in the
Registry of Mining Concessions with No. 6, in charge of the Land Registrar of
Canton Xxxxxx, on March 20, 2007. By means of a Public Instrument of Assignment
of Mining Rights granted before Notary Public Four of Canton Xxxxxxx, on April
13, 2007, the spouses, Xx. XXXXXXX XXXXXX XXXXXX XXXXXX and Xxx. XXXXX XXXXXXX
DE XXXXX XXXXXXX XXXXXXXXXXX, assign their mining rights of the ASOCIACIÓN DE
MINEROS AUTÓNOMOS MULUNCAY area, Code No. 338, to MINERA DEL PACIFICO NOROESTE
S.A. MINPANOREST, recorded in the Registry of Mining Concessions with No. 7, in
charge of the Land Xxxxxxxxx
00
of
Canton Xxxxxx, on April 13, 2007. By means of a Public Instrument of Assignment
of Mining Rights granted before Notary Public Four of Canton Xxxxxxx, on April
13, 2007, the spouses, Xxx. XXXXX XXXXXXXXX XXXXXXXX XXXXXX and Xx. XXXXX
XXXXXXX XXXXX XXXXXXX, assign their mining rights of the ASOCIACIÓN DE MINEROS
AUTÓNOMOS MULUNCAY area, Code No. 338, to MINERA DEL PACIFICO NOROESTE S.A.
MINPANOREST, recorded in the Registry of Mining Concessions with No. 8, in
charge of the Land Registrar of Canton Xxxxxx, on April 13, 2007. The mining
rights set forth in the Titles of Mining Concession of the ASOCIACIÓN DE MINEROS
AUTÓNOMOS MULUNCAY area, Code No. 338, in which the title holder is conferred
the right in rem and the exclusive rights pursuant to Art. 7, of the Ecuadorian
Mining Law, empowering MINERA DEL PACIFICO NOROESTE S.A. MINPANOREST to
prospect, explore, reduce, smelt, refine and sell all mineral ores found in the
said area, are in force to date. The mining title holders are in good standing
pursuant to the fee.
13
