This Agreement (the “Agreement”), by
and between Compania Minera del Pacifico S.A., 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”).
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.
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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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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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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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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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 Befumo &
Schaeffer, PLLC.
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.
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.
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
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