LEASE AGREEMENT WITH PURCHASE OPTION MINERA LUMINA COPPER CHILE S.A. TO ANDINA OBRAS Y PROYECTOS S.A.C.
FREE TRANSLATION
EXHIBIT 23.27
15.045 -2005
LEASE AGREEMENT WITH PURCHASE OPTION
MINERA LUMINA COPPER CHILE S.A.
TO
ANDINA OBRAS Y PROYECTOS S.A.C.
In Santiago, on this 18 day of October 2005, before me, Xxxxxxx Xxxxxx Concha, Notary of the 27th Notary of Santiago with offices at Xxxxxx Xxxxx 0153, Borough of Providence, hereby appear: on one the hand, Xx. Xxxx Xxxxxx Xxxxxxx, North American, single, mining engineering, ID for foreigners No. 14.427.974 -3, on behalf, as shall be evidenced, of MINERA LUMINA COPPER CHILE S.A., a company whose line of business is that of its denomination, Tax Payer Number 99.531.960 -8, both domiciled for purposes hereof at Las Xxxxxx 3331, Vitacura, Xxxxxxxx, hereinafter also referred to as the “Lessor” and/or “LUMINA”; and, on the other hand, Xx. Xxxxxx Xxxxxxx Irarrázabal, Chilean, married, engineer, ID No. 4.606.458 -5, on behalf, as shall be evidenced, of ANDINA OBRAS Y PROYECTOS S.A.C., a company whose line of business is commercial activities and, among other exploitation of farms, Tax Payer Number 93.557.000 -K, both domiciled for purposes hereof at domiciled Asturias 67, Las Condes, Santiago, hereinafter also referred to as the “Lessee” and/or “ANDINA”; the appearing persons being of the statutory age, who evidence their identities through the aforementioned documents and hereby state:
1
FREE TRANSLATION
FIRST: Property.
LUMINA is the
exclusive owner of the Real Estate named Hijuela Carrizalillo Chico (hereinafter
the “Property”) located in the commune of Tierra Amarilla, Province of Copiapó,
Third Region of Chile, which include the areas of “Potrero Chico”, “El Potrero
Grande”, “El Xxxxxxx”, “El Tambo”, “Xx Xxxxxxx”, “Los Xxxxx”, “El Xxxxxx” and
“La Xxxx”. The boundaries of the referred Real Estate are: North, with “Hacienda
Jorquera”; South, with “Hacienda Manflas”; East, with “Puntilla Negra de
Quebrada Seca”, which separate it from “Hijuela Quebrada Seca”; and West, with
“Hijuela Los Hornos”.
LUMINA acquired the Property by purchase agreement subscribed with Xxxxxx Xxxxxxx Irarrázabal and Xxxx Xxxxxxx Xxxxxxx Irarrázabal Sociedad Agrícola, both acting by themselves and in their status of sole partners and representatives of Sociedad Agrícola San Sebastián Limitada, a company under process of partition evidenced by means of public deed executed on October 18,2005 before the Notary Public of Santiago Xx. Xxxxxxx Xxxxxx Xxxxxx, repertory number 15.044, and which registration under LUMINA’s name is in process before the Real Estate Registrar of Copiapó.
SECOND: Previous
Statement.
LUMINA states that together with the purchase of the
Property it acquired the ownership of certain superficial and underground water
rights, which yield is extracted from diverse xxxxx and collecting points
located within the Property. It is the intention of LUMINA to divide the
Property, as soon as possible, and for that reason, within a term of 360 days
counted from the date hereof, LUMINA will submit to ANDINA a division project,
in order to differentiate the land shares that are necessary for the location
and operation of the xxxxx from where the water corresponding to its water
rights is yielded. In order to do that, LUMINA will freely divide in
different land shares all the Property’s suitable lands in order: (a) to protect
5 well currently existing within
2
FREE TRANSLATION
the Property or to protect the xxxxx and their respective protection areas that will be relocated within the same Property; (b) to maintain the current or to construct new systems of pumping, collecting points, reservoirs, electrical systems and aqueducts necessary for the suitable benefit of LUMINA’s water rights; (c) to build roads having free access to the places where the xxxxx and its infrastructure will be definitively located; and (d) to take advantage of the superficial water rights that irrigate the Property, including the access to collection points and other infrastructure necessary for such advantage. Hereinafter, this group of land shares will be called “Excluded Lots” and the remaining land of the Property will be called “Global Andina Lots”.
Once ANDINA has accepted the division project, the parties will sign and notarized it before the Notary that approves this deed. Lessee will only be entitled to disapprove the referred project if it has a justified reason to do that. The division project could be modified by LUMINA at any time if more land shares are technically necessary to yield the water corresponding to its water rights.
Therefore, the parties recognize that it is the intention of LUMINA to subscribe with ANDINA this lease and purchase option contract on the Global Andina Lots that will result from the division of the Property with the exception of the Excluded Lots.
Once legally executed the division of the Property in the Global Andina Lots and Excluded Lots, will be only and exclusively object of this lease and purchase option contract the Global Andina Lots.
THIRD: Lease.
LUMINA, acting
duly represented as mentioned herein, hereby lease to ANDINA, for whom
its appearing representative accepts, the Global Andina Lots of the
3
FREE TRANSLATION
Property, except for the Excluded Lots mentioned in clause two above, in the terms and conditions contained herein.
FOURTH: Lease’s Object.
This contract
has as purpose that the Global Andina Lots of the Property will be destined to
do agricultural and forestry activities, and it is stated that the rights of
use, join and dispose of the Excluded Lots will be kept by LUMINA as
owner of the Property. The Lease agreement will be subject to all legal and
regulatory provisions and subject to the restrictions and limitations set forth
herein in LUMINA’s benefit.
The Lessee, within the term of 45 days counted from the date hereof, will submit for the approval of Lessor a provisional division sketch of the Property. Then, no later than 150 days counted from the date hereof, both parties will show and exchange their projects of work that will be developed in their respective lots, with the intention to reconcile them. Once parties have agreed, they will draw up a preliminary division project of the Property which will fulfill the requirements stated in previous clause second. The referred agreed preliminary division project will be notarized before the Notary that approves this deed no later than 180 days counted from the date hereof.
FIFTH: Property’s Delivery.
The
delivery of the Global Andina Lots of the Property according to the preliminary
division sketch referred in the previous clause will be done in term of 45 days
counted from the date hereof and from that date, even if the legal division of
the Property referred to in clause two above is not done, ANDINA will be
entitle to initiate the Global Andina Lots of the Property occupation and the
constructions necessaries for the development of its agricultural and forestry
projects if that does not affect the yield of LUMINA’s water rights
referred to in previous clause second and its right of way to enter and use
them. The parties will do their best effort to support each other projects.
4
FREE TRANSLATION
SIXTH: Lease’s Rent.
The Lessee shall
pay as rent for the Global Andina Lots of the Property the amount of US$4.000. -
annually, in its equivalent to Chilean pesos exchanged according to clause 13.7
below, amount payable in arrears within the ten first working days of November
of every year counted as of hereof at the Lessor’s offices or in the place to be
indicated in writing by Lessor, either in cash or cheque, on working days from
Monday to Friday, from nine to fourteen hours.
SEVENTH: Lessee’s Liabilities.
7.1
Completion of Applicable Law. Lessee shall be exclusively liable for
fulfilling and to encourage the fulfillment of all legal provisions in
connection with the activities to be executed within the Global Andina Lots of
the Property, specially the fulfillment of the environmental and other
applicable provisions to the agricultural and forestry activities when
applicable. For purposes hereof, Lessee shall obtain at its own cost and risk,
all pertinent authorizations and permits required in order to develop its
activities within the Global Andina Lots of the Property.
7.2 Duly Use of the Property. While the terms of this lease are in force and before the execution of its option, Lessee shall use the Global Andina Lots of the Property for the purposes strictly indicated herein.
7.3 Improvements. LUMINA hereby authorizes the Lessee to do, at its own cost and burden, all the works within the Global Andina Lots of the Property, with the exception of the Excluded Lots, works that will be necessary or convenient for the development of the agricultural and forestry activities of the Lessee, having always due compliance to the pertinent legal norms. Lessee shall have no right to any reimbursement or indemnification for the improvements, additions and/or maintenance it executed, nor for the elements it replaces or incorporates to the Global
5
FREE TRANSLATION
Andina Lots of the Property. Improvements, additions and works of any nature introduced by Lessee in the Global Andina Lots of the Property shall belong to LUMINA since their incorporation, and with no right to Lessee to claim a reimbursement for its value. The latter with the exception of those improvements, additions and works that at the end of the lease would be able to be taken or separated by Lessee without detriment to the Global Andina Lots of the Property, The parties also agree that every improvement and works made within the Global Andina Lots of the Property will stay in benefit and exclusive dominium of Lessee if the latter execute the purchase option referred to in clause eleventh below, without any extra payment or indemnity for Lumina, with the exception of the improvements or works made by Lessee within the Excluded Lots.
7.4 Costs. Lessee shall be only and exclusively liable, at its own cost and risk, for all expenses, costs, payments, disbursements, indemnifications, including those derived from damages concerning the environment and for the pertinent legal term, and for all other expenses and liabilities of any type or sort directly or indirectly connected with Lessee’s activities, actions or omissions related to the Property and its environment, and the other goods it uses or places within the Property. Lessee shall clean up and withdraw from the Global Andina Lots of the Property all the equipment, and other goods as applicable, previously incorporated or transported to the Global Andina Lots of the Property by Lessee.
7.5 Damages caused by Lessee. The Lessee agrees to indemnify and hold the Lessor, its affiliates, officers, directors, employees, agents and attorneys harmless from any damage, liability, obligation, loss, cost or expense, of any nature, including, without limitation, reasonable attorneys' fees and disbursements, in which LUMINA may incur, suffer or borne, as a result of or arising from: (a) the breach or the failure of any obligation and/or covenants assumed by the Lessee, in accordance to the terms of this
6
FREE TRANSLATION
agreement; and (b) any claims or proceeding started or requested in connection with the Lessee’s activities in the Property, according to the term of this agreement.
Likewise, LUMINA shall be entitled to collect from Lessee all and any amount, including eventual legal fees or eventual sums, that LUMINA should pay as damages or indemnification and derived from any breach of this agreement or the terms stated in this clause incurred by the Lessee.
7.6. Damages caused by Lessor. The Lessor agrees to indemnify and hold the Lessee, its affiliates, officers, directors, employees, agents and attorneys harmless from any damage, liability, obligation, loss, cost or expense, of any nature, including, without limitation, reasonable attorneys' fees and disbursements, in which Lessee may incur, suffer or borne, as a result of or arising from: (a) the breach or the failure of any obligation and/or covenants assumed by the Lessee, in accordance to the terms of this agreement; and (b) any claims or proceeding started or requested in connection with the Lessee’s activities in the Property object to this lease or in the Excluded Lots and according to the term of this agreement.
Likewise, Lessee shall be entitled to collect from Lessor all and any amount, including eventual legal fees or eventual sums, that Lessee should pay as damages or indemnification and derived from any breach of this agreement or the terms stated in this clause incurred by the Lessee.
7.7 Risks. All the destruction risks, lost and damages, whether total or partial, of LUMINA’s asset located within the Property, caused or derived from Lessee’s actions or negligence, or its workers or from third parties, shall be assumed and supported by Lessee.
7
FREE TRANSLATION
Likewise, all destruction risks, lost and damages, whether total or partial, of Lessee’s assets located within the leased Property, caused or derived from LUMINA’s actions or negligence, or its workers or from third parties, shall be assumed and supported by LUMINA.
EIGHTH: Indivisibility.
For all legal
purposes, the parties’ liabilities are indivisible.
NINTH: Lease Term.
This agreement shall
last for a term of 25 years counted as hereof and so it will be in force until
November 1st, 2030 or until ANDINA does not execute the option
referred to in clause eleventh bellow, notwithstanding to what is stated in
clause 11.2 herein.
TENTH: ANDINA’s Rights.
During the term
this contract is in force ANDINA may acquire from third parties
underground and superficial water rights with the purpose of developing
agricultural and forestry activities. In the case that it acquires such water
rights, ANDINA will offer to sell 50% of such rights to LUMINA in
the same price that those rights were acquired by ANDINA, including in
the price the proportional costs incurred on the evaluation and study of the
rights, as well as all the legal, notaries and conservatories cost that
ANDINA would incur in the acquisition of such rights.
This clause will not be applicable if ANDINA buys forested land or land able to be forested and that land includes water for its own irrigation. In addition, this clause will not be applicable in the case LUMINA return the water rights referred above as a consequence of the partial resolution of the purchase agreement celebrated between Sociedad Agrícola San Sebastián Limitada and LUMINA.
8
FREE TRANSLATION
In addition, ANDINA will be able to build in the Global Andina Lots of the Property reservoirs of water and water deposits with the purpose of irrigation and to supply water to its land. If that case, ANDINA commits itself to grant LUMINA a first option of purchase from ANDINA any daily and/or middle term surplus of available irrigation water, in a tariff more favorable than the market one. ANDINA and LUMINA, in that case will negotiate the terms and conditions of a water purchase or water supply agreement.
ELEVENTH: Purchase Option.
11.1. In
this act, LUMINA grants to ANDINA, who accepts, an unconditional
and irrevocable option to purchase and acquire the Global Andina Lots of the
Property from LUMINA or from any authorized assignee or transferee in
title of LUMINA with the exception of the Excluded Lots indicated in
clause two above. The option will be executed over the Global Andina Lots of the
Property, free and clear of any liens and encumbrances except for those
contemplated in the purchase agreement referred to in clause one above that may
be valid at the time the option is executed. The option can be executed by
ANDINA, its assignees, transferees or affiliates, being them corporate
entities or people, at any moment after the first anniversary of this agreement
and while this contract is in force with an unique and total payment of
US$100.000. - (one hundred thousand dollars of United States of America) after
deducting from that amount all the rental payments already made by ANDINA,
according to this lease agreement.
If while this lease contract is in force, LUMINA takes the decision to resolve or stop paying the price of the purchase agreement referred to in clause one above, from which would result the resolution of such agreement, it would previously communicate that decision in written to ANDINA with 60 days of anticipation, so it will have the possibility to evaluate the immediate execution of the option indicated in previous clause eleven. ANDINA must show its intention to execute the option by
9
FREE TRANSLATION
a written notice given before the term of 30 days counted from the LUMINA’s notice and if that is the case the parties must execute the transference during the following 30 days. Once elapsed such term, whether or not the transference was made, LUMINA will be free to notify, to whom is applicable, its intention to resolve or stop paying the price of the purchase agreement referred to in clause one above.
11.2. Likewise, if LUMINA takes the decision to resolve the purchase agreement referred to in clause one above, ANDINA or its successor or assignees shall inform in written Xx. Xxxx Xxxxxxx Xxxxxxx Irarrázaval in the same way and terms referred in previous section 11.1. In that event, this lease agreement shall have a term of 5 years counted from the date hereof. In addition, ANDINA, its successors and assignees shall provide Xx. Xxxx Xxxxxxx Xxxxxxx Irarrázaval copies of the maps corresponding to the division project of the Property, referred to in previous clause second and fourth, within a term of 5 days.
Xx. Xxxx Xxxxxxx Xxxxxxx Irarrázaval, lawyer, married, domiciled at Glamis Nº 3241, depto 000, Xxx Xxxxxx, Xxxxxxxx, XX. Nº 6.062.332 -5, appears in this act and state that he consents with this lease agreement.
TWELFTH: Arbitration.
Any difficulty or
controversy that may arise between the contracting parties regarding the
application, interpretation, duration, validity or execution of this agreement
or any other controversy regarding it, will be subject to arbitration, in
accordance with the current Arbitration Procedural Regulations of the
Arbitration and Mediation Center of Santiago. The parties grant irrevocable
special power to Xxxxxxxx'x Chamber of Commerce, so that, upon written request
from any of them, designate an arbitrating arbitrator from the members of the
arbitration body of Arbitration and Mediation Center of Santiago, submitting it
in this case to the procedure established by the Regulation of said Center,
which evidenced through public deed dated December 10,
10
FREE TRANSLATION
1992, executed in the Public Notary for Santiago of Mr. Xxxxxx Xxxxxxxxx Xxxxxx and to its subsequent amendments, that the parties declare to know and accept. Against the arbitrator's resolutions no appeals will be filed, for which reason the parties expressly waive them, including those of complaint and cassation.
The arbitrator is specially empowered to settle any matter related with his competence and/or jurisdiction.
THIRTEENTH: Miscellaneous.
13.1
Confidentiality. Any information or data obtained in connection with the
performance of this agreement is confidential and none of the parties shall make
any public or private statement concerning the activities contemplated
thereunder without the prior written consent of the other party, consent shall
not be denied without justified reason.
13.2 Notices. All notices to be made or given by a party hereunder shall be in writing and delivered by mail or by facsimile to:
To Lessor:
Minera Lumina Copper Chile S.A.
Las Xxxxxx
3331, Vitacura, Santiago
Att.: Xxxx Xxxxxx Xxxxxxx
Fax: (00-0)
000-0000
To Lessee:
a) Andina Obras y Proyectos S.A.C.
Camino el
Olivieto Nº 3500 Santa Xxx, Talagante, Chile.
Att: Sr. Xxxxxxxxx Xxxxxxx
Ariztía.
Fax: 56-2-855 9033
With copy to:
b) Don Xxxxxx Xxxxxxx Irarrázabal
Xxxxx
Xxx Xxxxxx Xx 000, Xxx Xxxxxx, Xxxxxxxx, Xxxxx.
Fax: 56-2-217 27 83
11
FREE TRANSLATION
A party may change its address by notice to the other party.
All notices shall be given:
a) by personal delivery (including courier), which shall be deemed to have been delivered on the day on which it shall have been delivered to an adult located in the aforementioned domiciles.
b) by registered mail, charges prepaid.
c) by electronic communication, which shall be deemed to have been delivered upon the production by the dispatching facsimile machine of a transmission report showing the relevant number of pages comprising the relevant document to have been sent to the correct facsimile number and the result of the transmission as “OK” (or equivalent expression) unless the recipient notifies the sender within twenty-four (24) hours that the transmission was not legibly received.
All notices shall be effective and shall be deemed received:
a) if by personal delivery or by registered mail, on the date of delivery if delivered during normal business hours, and if not delivered during normal business hours, on the next business day following delivery; or
b) if by electronic communication, on the next business day following receipt of the electronic communication.
13.3 Binding agreement and assignment. This agreement is binding and compulsory upon the parties and will operate in benefit thereof. Both parties may assign to affiliates or related persons their rights over this contract.
12
FREE TRANSLATION
13.4 Applicable Law. This agreement is executed and governed by the laws of the Republic of Chile.
13.5 Domicile. For all purposes hereof, the parties hereto set their domicile in the city of Santiago.
13.6 No Third Party Beneficiary Rights. This agreement is for the benefit of the parties, and is not intended to create third party beneficiary rights in any other party or in any government, governmental organization or agency.
13.7 Exchange Rate. The amounts of money expressed in North American dollars herein will be paid in pesos, national money, in accordance with the “observed” exchange rate published in the Official Gazette by the Central Bank of Chile the previous day of the payment. An alternative exchange rate for the US Dollar shall be agreed by the parties in the event that the Central Bank of Chile stop certifying the so called “dólar observado”.
FOURTEENTH: Expenses.
Any notary fees
arising from this deed will be equitably borne by the parties hereto.
FIFTEENTH: Power of Attorney.
The
bearer of an authorized copy hereof is empowered to request any appropriate
registrations, sub-registrations, cancellations and annotations at the competent
Real Estate Registrar’s Office.
LEGAL CAPACITIES.
13
FREE TRANSLATION
The legal capacity of Xxxx Xxxxxx Xxxxxxx to act on behalf of MINERA LUMINA COPPER CHILE S.A. is stated on the public deed dated September 5, 2003 subscribed before the Public Notary of Santiago Xx. Xxxxxxx Xxxxxx Xxxxxx.
The legal capacity of Xxxxxx Xxxxxxx Irarrázabal to act on behalf of ANDINA OBRAS Y PROYECTOS S.A.C. is stated on the public deed dated July 10, 1998 subscribed before the Public Notary of Santiago, Xx. Xxxxxxx Xxxxxx Xxxxxx.
MINERA LUMINA COPPER CHILE S.A.
ANDINA OBRAS Y PROYECTOS S.A.C.
14