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(ENGLISH VERSION)
AMENDMENT AGREEMENT ENTERED INTO BY AND BETWEEN, ON ONE PART, MR. XXXXX XXXXX
XXXXXX, ON HIS OWN BEHALF AND ON BEHALF OF XX. XXXXX XXXXXX DAMIAN (HEREINAFTER,
THE "TITLEHOLDERS"), AS WELL AS ON BEHALF OF MRS. ALBERTA XXXXXXX XXXXX XXXXX,
THE LATTER ON BEHALF OF XXX. XXXXXXXX XXXXX XXXXX XX XXXXX, IN ORDER THAT THE
MARRIAGE CONSENT OF THE LATTER BE HEREIN GRANTED; 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, through their respective representatives, declare:
1. That on November 19, 1998, the TITLEHOLDERS 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
exploitation concession covering the lot "LOS COMPADRES", title 172622
(identified as the "LOT" in such CONTRACTS and in this document), which
identification data are as follows:
a) "LOS COMPADRES", mining exploitation concession, title 172622,
issued on March 30, 1984, located in the Municipality of
Tetipac, Guerrero, with a surface of 30.0003 hectares,
recorded in the Public Registry of Mining, under number 262,
page 66 of volume 231 of the General Book of Concessions.
That the CONTRACTS cited in this declaration were recorded in the
Public Registry of Mining on May 7, 1999, under number 127, volume 10
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 TITLEHOLDERS 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 TITLEHOLDERS stating that they have
received, at their entire satisfaction, each and all of the payments
referred to in subparagraphs a) through h) of section 4.2 of Clause
Second of the CONTRACTS; and, Mr. Xxxxx Xxxxx Xxxxxx stating, as common
representative of the TITLEHOLDERS, that following the execution of the
CONTRACTS, he evidenced ICRM that he has been registered before the
competent tax authorities under the regime of short taxpayer 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
TITLEHOLDERS 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 TITLEHOLDERS' representative as well as ICRM's representative,
state that they have sufficient authority to enter into this Agreement,
since the authority conferred to them is still in full force and effect
and has 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 the title of mining concession covering, or
that in the future shall cover, the LOT, as well as the referred rights
that the TITLEHOLDERS may have to access the LOT, shall be 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 Second,
fully prevail.
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THIRD. The parties agree to modify subparagraphs i), j), k), and l)
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 m) 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:
. . .
i) On the day on which this Amendment Agreement to the CONTRACTS
be executed and ratified before a Notary Public, the total amount of
$1,500.00 USCy. (one thousand and five hundred dollars 00/100).
j) On December 31, 1999, provided the CONTRACTS are still in
force, the total amount of $1,000.00 USCy. (one thousand dollars.
00/100).
k) On January 31, 2000, provided the CONTRACTS are still in
force, the total amount of $2,500.00 USCy. (two thousand and five
hundred dollars 00/100).
l) On February 28, 2000, provided the CONTRACTS are still in
force, the total amount of $4,500.00 USCy. (four thousand and five
hundred dollars 00/100). Upon delivery of this last payment, it shall
be understood that the BENEFICIARY has fully exercised the right to
acquire the LOT.
m) Should the option to acquire the LOT be exercised prior to
March 31, 2000, the BENEFICIARY shall pay to the TITLEHOLDERS, 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 LOT, be the total amount of $25,000.00 USCy.
(twenty five thousand 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 TITLEHOLDERS through their common representative, Mr.
Xxxxx Xxxxx Xxxxxx, commit themselves to comply with all obligations
imposed to them by the tax laws in force, since they have stated to the
BENEFICIARY that they are recorded in the Federal Taxpayers' Registry,
Mr. Xxxxx Xxxxx Xxxxxx under number GOGF-270729-AT3, under the regime
of Short Taxpayer as entrepreneur and Xx. Xxxxx Xxxxxx Damian, under
number FODZ-390623.
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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 the TITLEHOLDERS through their common
representative, Mr. Xxxxx Xxxxx Xxxxxx, 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 law 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 TITLEHOLDERS, Messrs.
Xxxxx Xxxxx Xxxxxx and Xxxxx Xxxxxx Xxxxxx, through the former,
obligate themselves 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
TITLEHOLDERS under this document, in the following terms:
Mr. Xxxxx Xxxxx Xxxxxx, acting on his own behalf and in the name and on
behalf of Xx. Xxxxx Xxxxxx Damian, 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 Messrs. Xxxxx
Xxxxx Xxxxxx and Xxxxx Xxxxxx Xxxxxx 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 grantors as promisors (in such contracts identified
as the "TITLEHOLDERS"), 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 LOT:
a) "LOS COMPADRES", mining exploitation concession, title 172622,
issued on March 30, 1984, located in the Municipality of
Tetipac, Guerrero, with a surface of 30.0003 hectares,
recorded in the Public Registry of Mining, under number 262,
page 66 of volume 231 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 LOT, be ratified, that
given such assignment of the LOT, the total amount agreed upon for the
promise and for
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the assignment of the LOT has been delivered to the TITLEHOLDERS
through their common representative, Mr. Xxxxx Xxxxx Xxxxxx, or,
evidence that such amount has been deposited in favor the TITLEHOLDERS'
common representative.
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 Messrs. Xxxxx Xxxxx Xxxxxx and Xxxxx
Xxxxxx Xxxxxx, 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 LOT, which would only
proceed with the written authorization issued by the TITLEHOLDERS'
common representative, Xxxxx Xxxxx Xxxxxx, 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 LOT 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 grantors
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 TITLEHOLDERS 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. The parties agree to modify last paragraph of Clause Tenth of
the CONTRACTS, in order that it be hereinafter drafted as follows:
"TENTH. Communications . . .
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. . .
The payments stipulated in the CONTRACTS may be made through the
delivery of a nominative check in favor of Mr. Xxxxx Xxxxx Xxxxxx, as
common representative of the TITLEHOLDERS, or through the deposit in
the account number 57002490726 opened in the name of Mr. Xxxxx Xxxxx
Xxxxxx, common representative of the TITLEHOLDERS, with banco Santander
Mexicano, branch Ixtapan de la Xxx, State of Mexico; and, in any case,
the common representative of the TITLEHOLDERS must deliver to the
BENEFICIARY, the corresponding invoice for each payment received by the
former and, which invoice must meet all the tax requirements, as
provided for by the laws in the corresponding area."
SEVENTH. Likewise, the parties hereby agree that, all such terms and
conditions agreed upon in the CONTRACTS and that have been not expressly
modified under this Agreement, shall continue in full force and effect,
therefore, TITLEHOLDERS 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.
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 TITLEHOLDERS ICRM
INTERNATIONAL CAPRI RESOURCES,
/s/ Xxxxx Xxxxx Xxxxxx X.X. DE C.V.
---------------------- /s/ Xxxx Xxxxxxx-Xxxxxx Xxxxxxx-Xxxx
Xxxxx Xxxxx Xxxxxx ------------------------------------
On his own behalf and on behalf of Xx. Xxxxx Xxxxxx Damian Xxxx Xxxxxxx-Xxxxxx Xxxxxxx-Xxxx
and of Xxx. Xxxxxxxx Xxxxx Xxxxx xx Xxxxx
