Contract
EXHIBIT
4.26
MINERAL
RIGHT PURCHASE
AND
SELLING AGREEMENT
XXXXX
XXXXXX XXXXXXX XX XXXXX, Brazilian national, separated, holder of
Brazilian ID card 3617073-2 – SSP-GO and CPF 000.000.000-00, resident at Rua
Barão do Rio Xxxxxx, 699 – Bloco 15A, Ap. 301 – Conj. São Judas Xxxxx XX, Bairro
Xxxxxx, Manaus, State of Amazonas, Zip Code 69.058-581, hereinafter referred to
as XXXXX
TEREZA and BRAZAURO
RECURSOS MINERAIS LTDA, a limited liability company, registered before
the Ministry of Finance under CNPJ 05.943.917/0001-43, with headquarters at Av.
Gov. Xxxx Xxxxxxx, 815, xxxxx 413 e 414, Belém, Pará, Zip Code 66.055-901,
hereinafter represented by its director, who undersigns this Agreement, and
referred to as BRAZAURO:
I WHEREAS
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A)
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XXXXX
TEREZA is the legitimate holder of the EXPLORATION
REQUEST
part of DNPM
process 850.442/2008,
located in the municipality of Itaituba, State of Pará. The above
mentioned process is being assessed by DNPM’s 0xx
Xxxxxxxx in Belém-PA for publication of the corresponding Exploration
License, whose process will remain object of this contract, and will be
hereinafter referred to as MINERAL
RIGHT;
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B)
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BRAZAURO
is a mining company whose main objectives are to explore, exploit and
manage mineral deposits for the economic use of their mineral assets and
by-products, and who is interested in acquiring the MINERAL
RIGHT;
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C)
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The MINERAL
RIGHT is free and clear of all liens, charges or limitations of
ownership whatsoever;
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D)
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XXXXX
XXXXXX is interested in the cession and transfer of the MINERAL
RIGHT to BRAZAURO;
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E)
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BRAZAURO
is interested in undertaking a mineral reserves assessment and exploration
program in the area covered by such MINERAL
RIGHT.
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F)
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BRAZAURO
may develop mineral exploration activities at its own discretion and
exclusivity during the term of this contract, and may assess, explore and
undertake economic feasibility studies of any mineral reserves to be found
in the area covered by the MINERAL
RIGHT.
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The Parties have
agreed to the following terms and conditions:
1.
FIRST CLAUSE - OBJECT
1.1 The object of this agreement is
the establishment of rules and conditions for the acquisition of the mineral
right referred to in paragraph A) of this agreement by BRAZAURO.
2.
SECOND CLAUSE - PRICE AND PAYMENT CONDITIONS
2.1 For the
acquisition of the above mentioned
MINERAL RIGHT, BRAZAURO
shall pay to XXXXX
TEREZA the total amount of R$700,000.00
(seven hundred thousand Brazilian reais) as follows:
2.1.1 R$20,000.00
(twenty thousand Brazilian reais) on signing of this
agreement.
2.1.2 R$15,000.00
(fifteen thousand Brazilian reais) within five working days from the
publication in the Brazilian Official Gazette (Diario
Oficial da União - DOU) of the exploration license related to the process
object of this
agreement, and upon signature of an AGREEMENT
FOR MINERAL RIGHT ASSIGNMENT to BRAZAURO.
In case the
publication referred to above is made before completion of the six-month period
from the date of signature of this agreement, the payment of the second
installment shall be made six months after the payment of the first installment
referred to in paragraph 2.1.1. above.
2.1.3 R$25,000.00
(twenty five thousand Brazilian reais) within six months after the
payment referred to in paragraph 2.1.2 has been made.
2.1.4 R$30.000.00
(thirty thousand Brazilian reais) within twelve months after the payment
referred to in paragraph 2.1.2 has been made.
2.1.5 R$40,000.00
(forty thousand Brazilian reais) within eighteen months after the payment
referred to in paragraph 2.1.2 has been made.
2.1.6 R$50,000.00
(fifty thousand Brazilian reais) within twenty four months after the
payment referred to in paragraph 2.1.2 has been made.
2.1.7 R$520,000.00
(five hundred and twenty thousand Brazilian reais) within thirty months
after the payment referred to in paragraph 2.1.2 has been made, provided that
DNPM has approved the MINERAL
RIGHT assignment to BRAZAURO.
2.2. In case of
termination of this agreement, the amounts payable will not be collected and no
payments made will be reimbursed.
2.3 The payments
referred to in Clause 2 above will be made by BRAZAURO
at the current
account number 0000000-9, branch
number 412 which XXXXX
XXXXXX holds at the Bradesco Bank in Rio Grande, State of Rio Grande do
Sul, and deposit slips will be considered payment receipts.
2.3.1 Any
alteration to the above mentioned bank information shall be made in writing by
XXXXX
TEREZA to BRAZAURO,
and BRAZAURO
will not be deemed accountable for any delay or misplacement of payment
resulting from the failure to inform such change.
2.3.2 Should the
due date for any payment fall on a non-working day, then it will be due on the
first working day following the original due date.
THIRD
CLAUSE – DECLARATIONS AND WARRANTIES OF XXXXX XXXXXX
3.1
XXXXX TEREZA hereby declares and warrants that she is the only and
exclusive holder of the MINERAL
RIGHT object of this agreement and that such MINERAL
RIGHT is free and clear of any liens, charges or liabilities whatsoever,
and that they are equally free of any irregularity.
3.2
XXXXX XXXXXX hereby declares and warrants on her behalf and on behalf of
her successors that she will provide whatever assistance required for the formal
transfer of the MINERAL
RIGHT object of this agreement, as well as for the granting of the
corresponding Mineral Exploration Licenses by DNPM.
3.3 XXXXX
TEREZA declares and warrants that she will keep confidential all
information received as a result of this agreement, which will become classified
and belonging to BRAZAURO
upon signing of this agreement, and that she will not disclose information in
part or in total to third parties.
3.4 XXXXX
XXXXXX declares and warrants that she will be responsible for all
obligations and liabilities of any nature, which were originated prior to the
date of signature of this agreement, including those related to non-compliance
with the mineral and environmental legislation.
3.5 By
the date of payment of the last installment herein agreed to,
XXXXX TEREZA shall hand over to BRAZAURO
the areas object of this agreement, the MINERAL
RIGHT free of any small-scale prospecting mining activities, and of third
parties who are not bound by this agreement.
FOURTH
CLAUSE – DECLARATIONS AND WARRANTIES OF BOTH
PARTIES
4.1.
BRAZAURO and
XXXXX XXXXXX hereby declare and warrant that this Agreement is signed in
an irrevocably and irretractable manner for all legal purposes, and that they
will comply with whatever clauses and conditions herein established, including
those related to their successors, except for the provisions regarding
termination.
4.2 BRAZAURO
and XXXXX
TEREZA hereby declare and warrant that this Agreement and its annexes
result from a thorough understanding between the parties.
4.3 BRAZAURO
and XXXXX
XXXXXX hereby declare and warrant that they attribute binding power over
their conduct to the terms of this Agreement in accordance with the provisions
of Article 585, Sub-heading II and the provisions of article 639 both of the
Brazilian Civil Procedure Code.
4.4 BRAZAURO
and XXXXX
TEREZA hereby declare and warrant that whenever required they shall take
action, provide information and additional documentation, formalize any
agreement required to the sound implementation and undertaking of the terms and
conditions set forth in this Agreement.
FIFTH
CLAUSE – DECLARATIONS AND WARRANTIES OF BRAZAURO
5.1 BRAZAURO
hereby declares and warrants that it will be responsible for the payment of any
liabilities corresponding to the Exploration Licenses until a decision is made
regarding the acquisition of this MINERAL
RIGHT.
5.2 The
responsibility of BRAZAURO
shall be null and void should it formally desist from the acquisition of the
MINERAL
RIGHT object of this Agreement in compliance with the provisions of
Clause 2.2 above.
5.3 BRAZAURO
commits itself to pay the annual fees per hectare corresponding to the last year
of validity of the MINERAL
RIGHT object of this agreement, and in the years to come in case of
extension of the Exploration License, as long as this agreement is not
terminated per the terms and conditions set forth in Clause Tenth
below.
SIXTH
CLAUSE – DURATION
6.1 This agreement
is valid from the date of signature until all conditions herein agreed upon have
been fulfilled or until BRAZAURO
terminates this Agreement.
SEVENTH
CLAUSE – CONFIDENTIALITY
7.1 Unless
otherwise required by law, the parties commit themselves to keep strictly
confidential the terms and conditions of this agreement, and to not disclose
information in any way for whatever objective other than the objective herein
stated. Nevertheless, BRAZAURO
may, if deemed necessary and at its own discretion, disclose the results of the
exploration work in the Toronto-Canada Stock Exchange and in its
website.
7.2 The parties
hereby bind themselves and their employees, representatives, and service
providers to strict observance of said confidentiality and of any geological,
economic or business related information that may be disclosed to
them.
EIGHTH
CLAUSE – ASSIGNMENT OF CONTRACT TO THIRD PARTIES
8.1 BRAZAURO
may transfer at its sole discretion, at any time, in part or in total, the
rights and obligations set forth in this agreement to third parties, provided
that XXXXX
XXXXXX receives prior notice of such transfer.
NINTH
CLAUSE – COMMUNICATION
9.1 All notices,
communication, or documents which shall be exchanged between the Parties must be
in written form and delivered personally or by letter (AR receipt) at the
addresses informed below. The Parties are responsible for informing any change
in their addresses:
XXXXX XXXXXX
XXXXXXX XX XXXXX
Address: Av. Barão
do Rio Xxxxxx, 699 – Bloco 15ª Ap. 301
Conj. São Judas
Xxxxx XX, Bairro Xxxxxx
69.058-581 - Manaus
– AM
BRAZAURO RESOURCES
DO BRASIL LTDA.
Address: Av. Gov.
Xxxx Xxxxxxx, 815, xxxxx 000 x 000
00,000-000 - Xxxxx
- XX
TENTH
CLAUSE – TERMINATION
10.1 BRAZAURO
detains the exclusive right to unilaterally terminate this Agreement at its own
discretion provided written notice is given to XXXXX
TEREZA.
10.2 The Parties
herein agree that upon termination of this Agreement, BRAZAURO
will no longer be liable to pay any installment that have not fallen due
provided that XXXXX
XXXXXX or her legal successors are notified by BRAZAURO
(personally or by letter) at least thirty days before the due date of the next
installment. BRAZAURO
shall be freed from the obligation to pay any form of compensation to XXXXX
XXXXXX, and shall have no right to the reimbursement of installments duly
paid prior to the termination of this Agreement.
10.3 Should BRAZAURO
make use of its right to terminate this Agreement in accordance with the
provisions herein established, BRAZAURO
must hand over to XXXXX
TEREZA all data and results from the exploration work associated with the
MINERAL
RIGHT within ninety days from the date of termination.
10.4 Should BRAZAURO
decide to terminate this Agreement, BRAZAURO
shall be legally bound to transfer the MINERAL
RIGHT object of this contract back to XXXXX
XXXXXX by signing a new Agreement for the Mineral Right Transfer on the
date of termination.
10.5 XXXXX
TEREZA will not have the right to terminate this contract except in the
case of defaulting on payment by BRAZAURO,
which declares itself to be incapable of solving.
ELEVENTH
CLAUSE – CONCURRENCE OF THE DNPM
11.1 It is hereby
agreed and understood between the Parties that for the fulfillment of the terms
set forth in this Agreement, and the respective payment of the final installment
established in Clause 2 above, namely R$520,000.00
(five hundred and twenty thousand Brazilian reais), final legal approval
must have been formally granted for the definitive concession of the MINERAL
RIGHT to BRAZAURO,
and said approval must have been published in the Official Gazette (DOU). The
Parties further agree that:
11.1.1 Both Parties
commit themselves to making every effort before the DNPM to ensure the regular
administration and approval of the process for the concession of the MINERAL
RIGHT object of this Agreement.
11.1.2 The Parties
further commit themselves to make due efforts before the DNPM to ensure that the
definitive concession of the MINERAL
RIGHT is approved in such a way to become effectively transferred to
BRAZAURO.
TWELVETH
CLAUSE – PARTIAL INVALIDITY
12.1 The eventual
nullity, invalidity or unfeasibility of any or more provisions set out in this
Agreement shall not affect the validity and enforceability of the other terms,
which shall remain in force. The Parties hereby declare their willingness to
negotiate consensual adjustments to ensure the validity and feasibility of such
terms or provisions.
THIRTEENTH
CLAUSE – ACTS OF GOD OR FORCE MAJEURE
13.1 Should BRAZAURO
or its contractors be prevented from getting access to the areas to which the
MINERAL
RIGHT are associated due to acts of God or force majeure,
then the fulfillment of the obligations taken under the terms of this Agreement
shall be suspended.
FOURTHEENTH
CLAUSE – COURTS
14.1 The Parties
agree to designate the Courts of Itaituba, State of Pará, for the purpose of
deciding any issue resulting from this Agreement. In witness whereof the
authorized representatives of the parties hereto have signed three copies of
this Agreement as of the date below.
Manaus - AM, August
31, 2009
XXXXX
XXXXXX XXXXXXX XX XXXXX BRAZAURO
RECURSOS MINERAIS LTDA.
Witnesses:
Xxxxxxx xx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxxx xx Xxxxxx
Address: Rua Barão
do Rio Xxxxxx, 699 Address: Xxx Xxxxxxx
Condurú
Identity Card #
4681937 Identity
Card # 5015547
CPF:
000.000.000-00 CPF:
000.000.000-00
