SHARE PURCHASE AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT
AND ASSUMPTION AGREEMENT
This
SHARE PURCHASE AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment”)
is
made and entered into as of 2 December 2005 (the “Effective
Date”),
by
and among Trend Mining Company, a Delaware corporation (“Assignor”);
Xx.
Xxxxx X. Xxxxxxx, Xxx. Xxxxx X. Xxxxxxx and Xx. Xxxxx X. Xxxxxxx III, each
an
individual (together, “The
Russells”);
Oro
Chile LLC, a Colorado limited liability company (“Oro
Chile”);
and
Pacific Rim Mining Corp., a company organized and existing under the laws of
the
Province of British Columbia, Canada (“Pacrim”).
WITNESSETH:
WHEREAS,
pursuant to that certain Share Purchase Agreement, dated September 20, 2005,
between Assignor and Pacrim, a copy of which is attached to this Assignment
as
Exhibit
A,
Assignor acquired from Pacrim one hundred percent (100%) of the issued and
outstanding ordinary and preference shares (collectively, the “DMC
Interests”)
in DMC
Cayman Inc., a Cayman Islands exempted company (“DMC”),
on
the terms and subject to the conditions set forth therein (together with all
documents executed or delivered in connection therewith, the “Assigned
Agreement”);
WHEREAS,
as of
September 20, 2005, Assignor agreed to transfer seventy percent (70%) of the
DMC
Interests (the “Initial
Transfer”)
to The
Russells and Oro Chile in order to obtain the funds (the “Initial
Investment”)
necessary to make the payments required to be made by Assignor under the
Assigned Agreement;
WHEREAS,
pursuant to the transactions contemplated by that certain letter agreement,
dated October 3, 2005, by and between Assignor, The Russells and Oro Chile
(the
“Letter
Agreement”),
pursuant to which Letter Agreement The Russells and
Oro
Chile, together, agreed
to
acquire the remaining thirty percent (30%) of the DMC Interests from Assignor
(the “Remaining
DMC Interests”),
on
the terms and subject to the conditions set forth in the Letter
Agreement;
WHEREAS,
under
the Letter Agreement, in addition to the Initial Transfer for the Initial
Investment, Assignor is obligated to transfer to The Russells and Oro Chile
(collectively, the “Assignee”)
the
Remaining DMC Interests, and to assign and delegate (as applicable) to Assignee,
jointly and severally, all of the rights, duties, obligations and liabilities
of
Assignor under and in connection with the Assigned Agreement; and Assignee,
jointly and severally, is obligated to purchase the Remaining DMC Interests,
and
to accept and assume, all of the rights, duties, obligations and liabilities
of
Assignor under and in connection with the Assigned Agreement, all on the terms
and subject to the conditions set forth in this Assignment; and
WHEREAS
the
foregoing assignment by the Assignor to the Assignee requires the consent of
Pacrim pursuant to the Assigned Agreement.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Assignment
and Assumption.
For and
in consideration of the transactions contemplated by the Letter
Agreement:
a. Assignment
by Assignor.
Assignor hereby assigns to Assignee, jointly and severally, all of its rights
and benefits under and in connection with the Assigned Agreement, and, further,
delegates to Assignee, jointly and severally, all of its duties, obligations
and
liabilities under and in connection with the Assigned Agreement;
and
b. Assumption
by Assignee.
Assignee, jointly and severally, hereby accepts
the assignment from Assignor of Assignor’s rights and benefits under and in
connection with the Assigned Agreement and assumes and agrees with Pacrim to
timely perform, jointly and severally, all of the duties, obligations and
liabilities of Assignor under and in connection with the Assigned
Agreement.
2. Consent
and Release by Pacrim; Performance.
Subject
to (a) the assumption set forth in Section 1(b), and (b) the payment by Assignor
and Assignee, jointly and severally, of all reasonable costs and expenses of
Pacrim (including, without limitation, those of Pacrim’s legal counsel) incurred
in connection the assignment contemplated hereby (including, without limitation,
the preparation and review of all applicable legal documentation), such payment
to be made no later than fifteen (15) business days after the delivery by Pacrim
to Assignor and Assignee of an invoice therefor, Pacrim hereby consents to
the
assignment to Assignee, jointly and severally, of all of Assignor’s rights and
benefits, and the delegation to Assignee, jointly and severally, of all
Assignor’s duties, obligations and liabilities, under and in connection with the
Assigned Agreement, and, further, releases Assignor from any and all duties,
obligations and liabilities under and in connection with the Assigned Agreement.
Pacrim hereby agrees that Assignee, jointly and severally, is the
successor-in-interest to Assignor under the Assigned Agreement and agrees to
perform, and to accept performance from Assignee, under the Assigned
Agreement.
3. Opinion.
Oro
Chile will issue and deliver to Pacrim and Assignor an opinion of counsel as
to
the valid formation and good standing of Oro Chile in the state of its
formation, the power and authority of Oro Chile to enter into this Assignment,
and the due and valid authorization and execution of this Assignment by Oro
Chile.
4. Indemnification.
a. Assignee,
jointly and severally, hereby agrees to defend, indemnify and hold Assignor,
its
affiliates, directors, officers, employees, agents, successors and assigns
harmless from and against any and all claims, demands, damages, liabilities,
losses, costs, expenses, assessments, settlement payments and judgments of
any
nature whatsoever (including without limitation reasonable attorneys’ fees and
other costs and expenses incident to any claim, suit, action or proceeding,
whether pending or threatened) suffered, sustained, incurred or required to
be
paid by Assignor because of, or that result from, relate to or arise out of
or
in connection with any act or omission of Assignee that relates to (i) the
Assigned Agreement, for the period on and after September 20, 2005; (ii) the
ownership, operation or use by Assignee (or any of them) of the DMC Interests
or
any property or other asset of DMC from and after September 20, 2005; and (iii)
the duties, obligations and liabilities assumed by Assignee pursuant to this
Assignment.
b. Assignor
hereby agrees to defend, indemnify and hold Assignee, its affiliates, directors,
officers, employees, agents, successors and assigns harmless from and against
any and all claims, demands, damages, liabilities, losses, costs, expenses,
assessments, settlement payments and judgments of any nature whatsoever
(including without limitation reasonable attorneys’ fees and other costs and
expenses incident to any claim, suit, action or proceeding, whether pending
or
threatened) suffered, sustained, incurred or required to be paid by Assignee
because of, or that result from, relate to or arise out of or in connection
with
any act or omission of Assignor that relates to (i) any costs, fees and expenses
claimed by CPM Group based on the activities of CPM Group performed by or on
behalf of Assignor prior to the Effective Date; and (ii) any costs, fees or
expenses claimed by Xx. Xxxx Xxxxx based on the activities of Xx. Xxxx Xxxxx
performed by or on behalf of Assignor prior to the Effective Date.
5. Governing
Law.
This
Assignment shall be governed by and interpreted in accordance with the laws
of
the Province of British Columbia, and the federal laws of Canada applicable
therein, without regard to conflicts of laws principles that would require
the
application of any other law.
6. Execution
in Counterparts; Effectiveness.
This
Assignment may be executed in any number of counterparts with the same effect
as
if all parties had signed one and the same document. This
Assignment shall be effective when validly executed and delivered by all
parties.
7. Amendment.
This
Assignment may not be amended, supplemented or otherwise modified except in
a
written document executed by the party against whose interest the modification
shall operate.
8. Binding
Effect.
The
terms and conditions of this Assignment shall be binding upon and inure to
the
benefit of the parties and their respective heirs, successors and permitted
assigns.
9. No
Third Party Beneficiary.
This
Assignment is not intended to give or confer any benefits, rights, privileges,
claims, actions, or remedies to any person or entity as a third party
beneficiary.
10. Further
Assurances.
Upon
the request of any party to this Assignment, the other party or parties
shall:
a. furnish
to the requesting party any additional information reasonably
requested;
b. execute
and deliver, at its or their own expense, any other documents reasonably
requested; and
c. take
any
other actions as the requesting party may reasonably require to more effectively
carry out the intent of this Assignment.
11. Severability.
If a
court of competent jurisdiction holds any provision of this Assignment invalid
or unenforceable, for any reason, the other provisions of this Assignment shall
remain in full force and effect. Any provision of this Assignment held invalid
or unenforceable only in part or degree shall remain in full force and effect
to
the extent not held invalid or unenforceable.
12. Notices.
All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Assignment shall be in writing and shall be
given by any of the following methods: (i) personal delivery; (ii) registered
or
certified mail, postage prepaid, return receipt requested; (iii) facsimile,
receipt confirmed; or (iv) by an internationally recognized overnight courier
service. Notices shall be sent to the appropriate party at its address given
below (or at such other address for such party as shall be specified by notice
given hereunder):
If
to Assignor:
Trend
Mining Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
Xx 00000
Attention: Xxxxxx
X.
Xxxxxx
Facsimile: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
Holland
& Xxxx LLP
0000
Xxxx
Xxxxxxxx Xxxxxxx, Xxx 000
Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx
Xxxxxxxx
Facsimile: (000)
000-0000
If
to Assignee:
Oro
Chile
0000
Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000-0000
Attention: Xxxxx
Xxxxx, Manager
Facsimile: (000)
000-0000
and
The
Russells
00000
Xxxx Xxxxxxx Xxxx Xxxxx, Xxx. 000
Xxxxxxxx,
XX 00000
Attention: Xxxxx
X.
Xxxxxxx
Facsimile:
(000)
000-0000
If
to Pacrim:
Pacific
Rim Mining Corp.
Suite
410
- 000 Xxxx Xxxxxx
Xxxxxxxxx,
X.X.
Xxxxxx
X0X 0X0
Attention: President
Facsimile: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
Gowling,
Xxxxxxx Xxxxxxxxx LLP
Suite
2300, 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx,
X.X.
Xxxxxx
X0X 0X0
Attention: Xxxxxxxx
X. Xxxxxx
Facsimile: (000)
000-0000
Each
such
notice or communication shall be effective (x) if delivered personally by
registered or certified mail, return receipt requested, or by internationally
recognized overnight courier service, when delivered at the address specified
in
this Section 12 (or in accordance with the latest unrevoked direction from
such
party), and (y) if given by facsimile, when such facsimile is transmitted
to the facsimile number specified in this Section 12 (or in accordance with
the
latest unrevoked direction from such party), and confirmation of receipt from
the receiving facsimile machine is received.
[SIGNATURES
FOLLOW]
IN
WITNESS WHEREOF this
Assignment has been executed and delivered by the parties as of the day and
year
first above written.
EXECUTED
AS A DEED AND
DELIVERED
by
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TREND
MINING COMPANY
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acting
by Xxxxxx X. Xxxxxx, President
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/s/
Xxxxxx X. Xxxxxx
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In
the presence of:
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/s/ Xxxxxxx X.X. Xxxxxx | Witness |
EXECUTED
AS A DEED AND DELIVERED
by
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ORO
CHILE LLC
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acting
by Xxxxx Xxxxx, Manager
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/s/
Xxxxx Xxxxx
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In the presence of: | ||||
/s/ Xxxxxxx X.X. Xxxxxx | Witness | |||
EXECUTED
AS A DEED AND DELIVERED by
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Xxxxx
X. Xxxxxxx
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/s/
Xxxxx X. Xxxxxxx
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In the presence of: | ||||
/s/ Xxxxx X. Xxxxxxx | Witness |
EXECUTED
AS A DEED AND DELIVERED by
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Xxxxx
X. Xxxxxxx
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/s/
Xxxxx X. Xxxxxxx
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In the presence of: | ||||
/s/ Xxxxx X. Xxxxxxx | Witness |
EXECUTED
AS A DEED AND DELIVERED by
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Xxxxx
X. Xxxxxxx III
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/s/
Xxxxx X. Xxxxxxx
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In
the presence of:
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/s/ Xxxxx X. Xxxxxxx | Witness |
EXECUTED
AS A DEED AND DELIVERED
by
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PACIFIC
RIM MINING CORP.
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acting
by Xxxxxxxxx XxXxxx-Xxxxxxx, President
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/s/
Xxxxxxxxx XxXxxx-Xxxxxxx
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In
the presence of:
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/s/ Xxxxxxxx X. Xxxxxx | Witness |