Exhibit 10.9
AGREEMENT OF SALE AND PURCHASE
This Agreement of Sale and Purchase ("Agreement") is entered into on
9/22/, 1995, between Xxxxxxx Xxxxx M.D., Trustee of the Xxxxxxx Xxxxx Medical
Corporate Defined Benefit Pension Plan (hereinafter referred to as "Seller")
and Golden Queen Mining Co., Inc., a California Corporation, (hereinafter
referred to as "Buyer").
Recitals
A. Seller is the owner of certain real property consisting of approximately
158 acres situated in Xxxx County, California ("Seller's Property").
The North Half of the South Half of Section 1, Township 10 North, Range
13 West, San Bernardino Meridian, in the Unincorporated area, County of
Xxxx, State of California, According to the official Plat thereof. APN
000 000 00-00. Subject to proper survey and subdivision description.
B. Seller and Buyer agree that Seller shall have Seller's Property surveyed
and subdivided both to be at Buyer's expense prior to the close of
escrow to comply with paragraph (c) below.
C. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller only the portion of the Seller's Property which lies easterly of
Mojave-Tropico Road, Mojave, CA approximately 40 acres ("Property") as
depicted on Exhibit A attached hereto and incorporated herein by
reference, and on the terms and conditions provided in this Agreement.
Operative Provisions
In consideration of the mutual covenants and conditions contained
herein, Seller and Buyer agree as follows:
1. SALE AND PURCHASE. Seller shall sell to Buyer and Buyer shall purchase
from Seller the Property, on the terms and conditions set forth herein.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Property
shall be $375,000.00.
3. PAYMENT OF PURCHASE PRICE. A deposit of $37,500.00 will be made by
Buyer to Seller outside of Escrow by certified funds, and shall be
returned to Buyer only as set forth in Section 7 below. Prior to the
close of escrow an additional cash payment of $150,000.00 shall be
deposited into escrow. Balance of $187,500.00 to be carried by "Seller"
for a period of one (1) year from the close of escrow or until the start
of mining production whichever comes first at an interest rate of 12%
per annum evidenced by a Note with 6% late charge in the event payment
is not received within 5 days of due date and attorneys' fees provision
secured by a Deed of Trust on the subject Property with due on sale
clause in the event of transfer bother to be prepared by escrow holder
as per Schedule of Payments in Exhibit B.
4. REPRESENTATIONS OF SELLER. In addition to all other representations and
warranties under the Agreement, Seller represents and warrants that it
is the owner of the Property and that is free and clear of any liens of
any nature; the Property is not subject to any lease or contracts which
will be in effect after the close of escrow; that, to the best of its
knowledge, no suit, action or other proceeding is pending or threatened
before any court or governmental entity and no cause of action exists
that relates to the Property; that it has received no notice of
violation of any local, state or federal law, regulation, rule,
ordinance or order or of any permit, license, consent or authorization;
and that, to the best of its knowledge, no condition exists on the
Property which would result in any action under the Comprehensive
Environmental Response, Compensation and Liability Act (Superfund) 42
U.S.C. 9601-9657, as amended, nor any other federal, state or local
environmental or other law, regulation, rule, ordinance or order, and
the Property is not contaminated with any hazardous materials. All
representations and warranties of Seller contained herein shall survive
the close of escrow.
5. ESCROW. An escrow shall be opened to consummate the sale and purchase
of the Property pursuant to this Agreement at the office of Chicago
Title Company of Bakersfield, California within twenty (20) days from
the date hereof. Such escrow shall close on or before August 30, 1996.
6. CONDITIONS OF ESCROW. The close of such escrow and Buyer's obligation
to purchase the Property are conditioned on:
a) The conveyance to Buyer of good and marketable title to the
Property, as evidenced by a standard form title insurance policy,
in the full amount of the purchase price, issued by Chicago Title
Company subject only to such liens, encumbrances, clouds or
conditions as may be approved by Buyer and with such endorsements
as may be requested by Buyer. Failure to disapprove in writing
within 10 days the Preliminary Title Report shall be deemed Buyer's
approval.
b) Delivery of possession of the Property to Buyer immediately on
close of escrow, free and clear of all uses and occupancies except
those known by Buyer or created after the opining of escrow.
Seller does not warrant or represent to Buyer any fitness for
purpose or use of the Property and Buyer is advised to investigate
any and all future use that Buyer intends.
7. FAILURE OF CONDITIONS. Should any of the conditions specified in
paragraph 6 of this Agreement fail to occur by close of escrow as herein
provided, Buyer shall have the power, exercisable by the giving of
written notice by Buyer to the escrow holder and to Seller, to cancel
such escrow, terminate this Agreement, and obtain a refund of the
deposit less fees and costs and damage to Property incurred during
escrow. Seller shall also receive monetary compensation for any damage
caused by Buyer to the Property or by its failure to remove stored
minerals, etc. from the Property. The exercise of such power by Buyer
shall not constitute a waiver by either party of any other rights which
either party may have against the other due to the breach of the
Agreement.
8. LIQUIDATED DAMAGES. In the event that Buyer deems the property to be
not suitable for any reason, or fails to close escrow timely (except for
the conditions set forth in paragraph 6), or Buyer is unable to change
the zoning of the subdivided property, Seller shall keep the $37,500.00
deposit without recourse by Buyer.
9. PRORATIONS. There shall be prorated between Seller and Buyer on the
basis of thirty (30) day months as of 12:00 midnight Pacific Standard
Time on the date of close of escrow as herein provided:
a) Real property taxes levied or assessed against the Property as
shown on the latest available tax bills.
BONDS AND ASSESSMENTS. Seller is not aware of any bonds or improvement
assessments at this time other than the normal property taxes (currently
not exceeding $2,000.00 per year). Buyer should verify before signing
the agreement. Buyer shall be responsible for all bonds and or
improvement assessments at the time of close of the escrow.
10. EXPENSES OF ESCROW. The expenses of the escrow herein provided shall be
paid in the following manner:
a) The full cost of securing the title insurance policy referred to in
subparagraph 6.(a) hereof shall be paid by Buyer.
b) The cost of preparing, executing and acknowledging any deed or
other instruments required to convey title to Buyer in the manner
referred to in subparagraph 6.(a) hereof shall be paid by Buyer.
c) The cost of recording a grant deed required to convey title to the
Property to Buyer as described in subparagraph 6.(a) hereof shall
be paid by Buyer.
d) Any tax imposed on the conveyance of title to the Property to Buyer
under the Documentary Transfer Tax Act shall be paid by Buyer.
e) Any escrow fee charged by the escrow holder shall be paid 50% by
the Buyer and 50% by the Seller.
11. PRODUCTION ROYALTIES. A production royalty for all minerals mined,
removed, and sold from the Property equal to five percent (5%) of the
Net Smelter Returns shall be calculated up to, but not to exceed twenty
(20) years. In no case shall the total royalty payments to Seller exceed
One Million Dollars ($1,000,000.00). The term "Net Smelter Returns"
shall be defined to be the gross amount received from the sale of
valuable minerals less all taxes levied, incurred or imposed on the
sale, severance or production of such minerals and less costs of
transportation (to the smelter and/or refinery or point of sale),
smelting and refining charges and costs of sale. Production royalty only
applies to minerals mined and removed from the Property and not from
minerals mined and removed from nearby or adjacent properties stored
upon Property.
12. COMMINGLING. Any minerals produced from the Property may be mixed or
commingled with any other minerals or materials from other properties if
they have first been weighed and assayed or if other procedures
consistent with good mining industry practices are used by Golden Queen
to determine the quantity and grade of minerals, valuable ores and
substances produced for the Property with prior written disclosure to
Seller.
13. EXPLORATION. Sellers grant to Buyers the right to enter upon the
Property for the purpose to drill up to a maximum of six (6) exploratory
drill holes prior to the close of escrow. Buyer is to pay all costs and
to repair any and all damage caused thereby in the event Buyer does not
purchase the Property.
14. INSURANCE. Buyer shall at its sole cost and expense cause to be issued
and maintained during the escrow period the following insurance
coverage's:
a) Workers Compensation Insurance: Buyer shall maintain worker's
compensation insurance coverage in accordance with the provisions
of California Law.
b) Automobile and Comprehensive General Liability Insurance: Buyer
shall cause to be maintained during the escrow period, automobile
liability and comprehensive general liability coverage with broad
form endorsements with a minimum limit of liability of not less
that One Million Dollars ($1,000,000.00). Seller shall be named as
an additional insured on all insurance policies provided for by
this mining Lease in accordance with the provisions of California
Law.
c) Certificates of Insurance: Buyer shall promptly furnish to Seller
certificates of insurance for all types of insurance applicable
under this Agreement of Sale and Purchase, which certificates shall
provide that the insurance described therein may not be canceled
restrictively modified or terminated except upon not less that
thirty (30) days written notice delivered to Seller.
15. INDEMNITY. Buyer agrees to indemnify and hold harmless Seller, its
agents, employees, heirs and assigns from any and all claim, losses,
expenses, fees, attorneys' fees, costs and judgments that arises from
Buyers' activities impacting the Property during the escrow period.
16. NOTICES. Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given to Seller
or Buyer by the other party hereto, shall be in writing and shall be
deemed duly served and given when personally delivered (including
overnight professional delivery service such as Federal Express or UPS)
or in lieu of such personal service, after delivery upon being deposited
in the United States mail certified return receipt requested, postage
prepaid, addressed to Seller or Buyer at the addresses shown below.
Either party may change its address for notice set forth in this
paragraph by giving written notice of such change to the other party in
the manner provided herein.
Seller: Xxxxxxx Xxxxx, M.D.
Trustee of the Xxxxxxx Xxxxx Medical Corp.
Defined Benefit Pension Plan
0000 Xxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Buyer: Golden Queen Mining Co., Inc.
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
17. ATTORNEYS' FEES. In the event of any controversy, claim, or dispute
between Seller or Buyer, arising out of or relating to this Agreement or
the breach thereof, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees and costs.
18. SEVERABILITY. In the event that any provision contained with this
Agreement is rendered by a court of competent jurisdiction to be void,
invalid or unenforceable, Seller and Buyer agree that such invalidity or
unenforceability shall have no effect whatsoever on the balance of the
Agreement.
19. HEIRS, SUCCESSORS AND ASSIGNS. All terms of this Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by the
respective heirs, successors and assigns of Seller and Buyer.
20. COUNTERPARTS. This Agreement may be executed and delivered in any
number of counterparts, each of which, when executed and delivered, will
be an original, but all of which together constitute on and the same
agreement.
21. SUBDIVISION. All surveying and subdivision cost shall be paid by Buyer.
22. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
Seller and Buyer respecting the Property, and any agreement of
representation respecting the Property or the duties of either Seller or
Buyer in relation thereto not expressly set forth in the Agreement is
null and void.
SELLER BUYER
GOLDEN QUEEN MINING CO., INC.
s/ Xxxxxxx Xxxxx M.D. 9/22/95 By: s/ Xxxx X. Xxxxx 9/22/95
-------------------------------- --------------------------------
Trustee of the Date Project Manager Date
Xxxxxxx Xxxxx Medical Corporate
Defined Benefit Pension Plan
TaxPayer I.D.# 00-0000000
EXHIBIT A
Assessor's Map No. 345-05 showing location of property.
EXHIBIT B - GUPTA PROPERTY
Loan Amortized at 12%
Payment Payment Principal
Date Number Amount Principal Interest Balance
-----------------------------------------------------------------------
Opening Balance 187,500.00
9/30/96 1 16,659.15 14,784.15 1,875.00 172,715.85
10/31/96 2 16,659.15 14,931.99 1,727.16 157,783.86
11/30/96 3 16,659.15 15,081.31 1,577.84 142,702.55
12/31/96 4 16,659.15 15,232.12 1,427.03 127,470.43
1/31/97 5 16,659.15 15,384.45 1,274.70 112,085.98
2/28/97 6 16,659.15 15,538.29 1,120.86 96,547.69
3/31/97 7 16,659.15 15,693.67 965.48 80,854.02
4/30/97 8 16,659.15 15,850.61 808.54 65,003.41
5/31/97 9 16,659.15 16,009.12 650.03 48,994.29
6/30/97 10 16,659.15 16,169.21 489.94 32,825.08
7/31/97 11 16,659.15 16,330.90 328.25 16,494.18
8/31/97 12 16,659.12 16,494.18 164.94 0.00
GRAND TOTAL 199,909.77 187,500.00 12,409.77 0.00
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx xx XXXXXXXXXX
Xxxxxx xx XXX XXXXXXX
Xx Sept. 22, 1995 before me, XXXXXX MAY TARN, NOTARY PUBLIC personally
appeared XXXXXXX XXXXX, M.D. and XXXX X. XXXXX, proved to me on the basis of
satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
s/ Xxxxxx May Tarn
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SIGNATURE OF NOTARY
