EXHIBIT 4.116
XXXXX PROPERTY - ONTARIO
This Agreement is dated for reference the 28th day of May, 2006.
BETWEEN:
XXXXX XXXXX (AS TO 50%)
Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Tel: 000.000.0000
AND:
XXXXX XXXXXXX (AS TO 50%)
Xxx 0000
Xxxxxxx, Xxxxxxx
Tel: 705.
COLLECTIVELY OF THE FIRST PART
(the above hereinafter collectively referred to as the
"Optionor")
AND:
XXXXXX GOLD CORP.
711 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(the above hereinafter referred to as the "Optionee")
OF THE SECOND PART
WHEREAS the Optionor is the recorded and beneficial owner of certain mining
claims situated in Xxxxx Township, Ontario more particularly described in
Schedule "A" attached hereto (the "Property");
AND WHEREAS the Optionor desires to grant and the Optionee is desirous of
obtaining an option to acquire a 100% undivided interest in and to the Property
upon terms and subject to the conditions herein contained.
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements herein contained, the parties agree as follows:
1. OPTION ONLY
This is an option only and except as specifically provided otherwise, nothing
herein contained shall be construed as obligating the Optionee to do any acts or
make any payments hereunder and any act or acts, or payment or payments as shall
be made hereunder shall not be construed as obligating the Optionee to do any
further act or make any further payment. If the Option is terminated before the
Option is exercised, the Optionee shall not be bound thereafter in debt, damages
or otherwise under this Agreement, except in respect of obligations arising
prior to such termination or otherwise provided for in this Agreement, and all
payments theretofore paid by the Optionee shall be retained by the Optionor for
its own use absolutely.
2. TERMS OF THE OPTION
In order to maintain the Option in good standing and earn a 100% right, title
and undivided interest in and to the Property, the Optionee, subject to
paragraph 1, shall:
(a) pay to the Optionor $10,000 within 10 days of regulatory
approval;
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(b) pay to the Optionor a further $20,000 on or before the date
which is 12 months from the date of regulatory approval;
(c) pay to the Optionor a further $30,000 on or before the date
which is 24 months from the date of regulatory approval;
(d) pay to the Optionor a further $50,000 on or before the date
which is 36 months from the date of regulatory approval;
(e) issue to the Optionor 20,000 common shares upon receipt of
regulatory approval;
(f) issue to the Optionor a further 40,000 common shares on or
before the date which is 12 months from the date of regulatory
approval;
(g) issue to the Optionor a further 60,000 common shares on or
before the date which is 24 months from the date of regulatory
approval; and
(h) issue to the Optionor a further 100,000 common shares on or
before the date which is 36 months from the date of regulatory
approval.
3. EXERCISE OF THE OPTION
If the Optionee has paid $110,000 to the Optionor and issued 220,000 common
shares to the Optionor, the Optionee shall be deemed to have exercised the
Option and will have acquired an undivided 100% right, title and interest in and
to the Property, subject to the Royalty Interest.
4. ROYALTY INTEREST
The Optionor shall be entitled to receive and the Optionee shall pay to the
Optionor a royalty equal to 3% of the net smelter returns (the "Royalty
Interest") calculated and payable from the Property in accordance with the
provisions of Schedule "B" attached hereto.
The Optionee may at any time purchase half of the Royalty Interest from the
Optionor for $1,000,000, thereby leaving the Optionor with a 1.5% Royalty
Interest.
5. OPERATOR
The Optionee shall be the operator for purposes of developing and executing
exploration programs.
6. RIGHT OF ENTRY
During the currency of the Option the Optionee and its employees, agents and any
person duly authorized by the Optionee shall have the sole and exclusive right,
so long as it is operator, to:
(a) enter in, under and upon the Property;
(b) have exclusive and quiet possession thereof subject to the
rights of the Optionor hereunder;
(c) do such prospecting, exploration, development or other mining
work thereon and thereunder as the Optionee in its sole
discretion may consider advisable;
(d) bring upon and erect upon the Property such mining facilities
as the Optionee may consider advisable; and
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(e) remove from the Property and dispose of reasonable quantities
of ores, minerals and metals for the purposes of sampling,
obtaining assays or making other tests.
7. NOTICE OF DEFAULT AND TERMINATION BY OPTIONOR
If the Optionee should be in default in making any payments or performing any
other of its obligations hereunder, the Optionor may give written notice to the
Optionee specifying the default. The Optionee shall not lose any rights granted
under this Agreement so long as, within thirty (30) days after the giving of
such notice of default by the Optionor, the Optionee shall cure the specified
default. If the Optionee fails to cure the default within the thirty (30) day
period, the Optionor shall be entitled thereafter to terminate this Agreement by
giving written notice of termination to the Optionee. Upon termination of this
Agreement by the Optionor the provisions of paragraph 13 shall apply.
8. NO PRODUCTION OBLIGATION
The Optionee shall be under no obligation whatsoever to place the Property into
production.
9. EXCLUSION OF PROPERTY
The Optionee shall have the right at any time and from time to time to elect to
exclude from this Agreement any portion of the Property by not less than 30 days
prior written notice to the Optionor of this election; provided that any portion
of the Property so excluded shall be in good standing for a period of a minimum
of six months free and clear of all liens, charges and encumbrances, and
provided further that the Optionee, if requested by the Optionor in writing,
shall deliver to the Optionor recorded transfers of any mineral claims and other
property interests which are included in the portion of the Property so excluded
in favour of the Optionor.
10. COVENANTS OF THE OPTIONEE
During the currency of this Agreement, the Optionee shall:
(a) ensure the Property is in good standing by ensuring all the
filing of assessment work conducted on the Property is
completed or by making payments in lieu thereof, and by doing
all other acts and things and making all other payments which
may be necessary in that regard;
(b) make available to the Optionor and its representatives all
records and files relating to the Property in its possession
and permit the Optionor and its representatives to take
abstracts therefrom and make copies thereof;
(c) permit the Optionor, or its representative, duly authorized by
it in writing, at its own risk and expense, access to the
Property at all reasonable times and to all records prepared
by the Optionee in connection with work done or with respect
to the Property;
(d) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionor hereunder; and
(e) ensure all work on or with respect to the Property is done in
a careful and workmanlike manner and in compliance with the
applicable laws of the jurisdiction in which the Property is
located.
11. COVENANTS OF THE OPTIONOR
During the currency of this Agreement, the Optionor covenants and agrees with
the Optionee to:
(a) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionee hereunder;
(b) perform sufficient work on the Property to maintain it in good
standing for each year this Agreement remains in good
standing;
(c) make available to the Optionee and its representatives all
records and files relating to the Property in its possession
and permit the Optionee and its representatives to take
abstracts therefrom and make copies thereof;
(d) co-operate with the Optionee in obtaining any water
appropriation license, and any surface and other rights on or
related to the Property, the Optionee deems desirable;
(e) promptly provide the Optionee with any and all notices and
correspondence from government agencies in respect of the
Property; and
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(f) promptly make all necessary filings on the Property either as
determined by the Optionor or as directed by the Optionee.
12. REPRESENTATIONS AND WARRANTIES OF THE OPTIONOR
The Optionor hereby represents and warrants to the Optionee that:
(a) the Optionor is the legal and beneficial owner of the
Property;
(b) the Property consists of those mineral claims more
particularly described in Schedule "A" attached hereto, and
that such claims were located and recorded in accordance with
the applicable laws of Ontario and are valid and subsisting as
of the date of execution and delivery of this Agreement;
(c) the Property is in good standing, free and clear of all liens,
charges and encumbrances;
(d) file all work done on the Property with the Ontario Ministry
of Development of Mines in accordance with applicable
legislation;
(e) there are no pending or threatened actions, suits, claims or
proceedings regarding the Property; and
(f) the Optionor has the exclusive right and authority to enter
into this Agreement and to dispose of the Property in
accordance with the terms hereof, and that no other person,
firm or corporation has any proprietary or other interest in
the same.
The representations and warranties of the Optionor herein before set out, form a
part of this Agreement and are conditions upon which the Optionee has relied on
in entering into this Agreement and shall survive the exercise of the Option by
the Optionee. The Optionor shall indemnify and save the Optionee harmless from
all loss, damage, costs, actions and suits arising out of or in connection with
any breach of any representation, warranty, covenant, agreement or condition
contained in this Agreement. The Optionor acknowledges and agrees that the
Optionee has entered into this Agreement relying on the warranties and
representations and other terms and conditions of this Agreement and that no
information which is now known or which may hereafter become known to the
Optionee or its officers, directors or professional advisors shall limit or
extinguish the right to indemnity hereunder.
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13. TERMINATION PRIOR TO ACQUISITION OF INTEREST
If the Option is terminated, or if this Agreement is terminated prior to the
exercise of the Option by the Optionee, the Optionee shall return to the
Optionor forthwith exclusive and quiet possession of the Property, in good
standing for a period of a minimum of six months free and clear of all liens,
charges and encumbrances.
14. ADDITIONAL TERMINATION
In addition to any other termination provisions contained in this Agreement, the
Optionee shall at any time have the right to terminate its rights and future
obligations under this Agreement by giving notice in writing of such termination
to the Optionor, and in the event of such termination, the Optionee shall not
earn any interest in the Property, and this Agreement, save and except for the
provisions of paragraphs 13 hereof, shall be of no further force and effect.
15. FORCE MAJEURE
If the Optionee is prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, lockouts, labour shortages, power shortages,
fires, wars, acts of God, governmental regulations restricting normal operations
or any other reason or reasons beyond the control of the Optionee, the time
limited for the performance of the various provisions of this Agreement as set
out above shall be extended by a period of time equal in length to the period of
such prevention and delay. The Optionee, insofar as is possible, shall promptly
give written notice to the Optionor of the particulars of the reasons for any
prevention or delay under this paragraph, and shall take all reasonable steps to
remove the cause of such prevention or delay and shall give written notice to
the Optionor as soon as such cause ceases to subsist.
16. NOTICE
Any notice required to be given under this Agreement shall be deemed to be well
and sufficiently given if delivered or if mailed by registered mail in Canada,
(save and except during the period of any interruption in the normal postal
service within Canada) or sent by facsimile transfer to either party at the
addresses first set out above and any notice given as aforesaid shall be deemed
to have been given, if delivered or sent by facsimile transfer, when delivered
or faxed, or if by mail, on the third business day after the date sent by mail .
Either party may from time to time by notice in writing change its address for
the purpose of this paragraph.
17. FURTHER ASSURANCES
The parties hereto agree to execute all such further or other assurances and
documents and to do or cause to be done all acts necessary to implement and
carry into effect the provisions and intent of this Agreement.
18. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
19. TITLES
The titles to the respective paragraphs hereof shall not be deemed to form part
of this Agreement but shall be regarded as having been used for convenience of
reference only.
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20. SCHEDULES
The Schedules to this Agreement shall be construed with and as an integral part
of this Agreement to the same extent as if they were contained in the body
hereof.
21. VOID OR INVALID PROVISION
If any term, provision, covenant or condition of this Agreement, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all provisions, covenants and conditions of this
Agreement, and all applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and in no way be affected, impaired or
invalidated thereby.
22. SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors, assigns, heirs, executors or
administrators as the case may be.
23. APPROVALS
The Optionee and the Optionor hereby acknowledge that this Agreement shall be
subject to all necessary regulatory approvals.
24. ARBITRATION
If any question, difference or dispute shall arise between the parties or any of
them in respect of any matter arising under or in connection with the subject
matter of this Agreement, or in relation to the construction hereof, the same
shall be determined by the award of a single arbitrator under the Commercial
Arbitration Act of the Province of Ontario, and the decision of the arbitrator
shall in all respects be conclusive and binding upon all the parties.
25. ASSIGNMENT
This Agreement and any agreement contemplated hereby may not be assigned by the
Optionee without the written consent of the Optionor, such consent not to be
unreasonably withheld.
26. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario.
27. PRIOR AGREEMENTS
This Agreement contains the entire agreement between the parties in respect of
the Property and supersedes all prior agreements between the parties hereto with
respect to the Property, which said prior agreements shall be deemed to be null
and void upon the execution hereof.
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28. EXECUTION IN COUNTERPARTS AND DELIVERY
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document and may be delivered by
facsimile or other means of electronic communication producing a printed copy.
IN WITNESS WHEREOF the parties hereto have executed these presents as of the day
and year first above written.
SIGNED, SEALED and DELIVERED by )
XXXXX XXXXX in the presence of: )
BY: /S/ XXXXXX XXXXXXX ) BY: /S/ XXXXX XXXXX
------------------------------------ --------------------------------
Name ) XXXXX XXXXX
TIMMINS, ON )
------------------------------------
Address )
HOUSEWIFE )
------------------------------------
Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXX XXXXXXX in the presence of: )
BY: XXXX XXXXX ) BY: /S/ XXXXX XXXXXXX
------------------------------------ --------------------------------
Name ) XXXXX XXXXXXX
TIMMINS, ON )
------------------------------------
Address )
HOUSEWIFE )
------------------------------------
Occupation )
The COMMON SEAL of )
XXXXXX GOLD CORP. )
was hereunto affixed in the presence of: )
)
BY: /S/ XXXXXXX X. XXXXXX )
------------------------------------
Authorized Signatory )
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SCHEDULE "A"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 28TH DAY OF MAY, 2006
BETWEEN XXXXX XXXXX, XXXXX XXXXXXX AND XXXXXX GOLD CORP.
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PROPERTY
The Property consists of the following claim numbers, township, number of units
and due date for the Property:
CLAIM NUMBER TOWNSHIP NUMBER OF UNITS DUE DATE
------------ -------- --------------- --------
1203701 Xxxxx 1 August 30, 2006
1207473 Xxxxx 7 August 30, 2006
1207471 Xxxxx 1 August 30, 2006
1219443 Xxxxx 1 August 30, 2006
1228238 Xxxxx 11 September 22, 2006
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SCHEDULE "B"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 28TH DAY OF MAY, 2006
BETWEEN XXXXX XXXXX, XXXXX XXXXXXX AND XXXXXX GOLD CORP.
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ROYALTIES
1. For all diamonds, gems and other precious and semi-precious stones
("STONE PRODUCTS") mined or produced from the Property, the Optionee
shall pay to the Optionor a Royalty equal to a percentage of the net
sales returns ("NSAR") realized from the sale or disposition of the
Stone Products.
2. For all metals, bullion, concentrates or ores ("OTHER PRODUCTS") mined
or produced from the Property, the Optionee shall pay to the Optionor a
Royalty equal to a percentage of the net smelter returns ("NSMR")
realized or deemed to be realized as hereinafter provided, from the
sale or disposition of the Other Products.
3. The aforementioned percentage of the NSAR and percentage of the NSMR
shall be that determined in accordance with the provisions of Section
4.1 of the Agreement to which this Schedule B forms a part; and in the
calculation of the Royalty, such percentage is applied to 100% of the
NSAR or NSMR, as the case may be, regardless of dilution of the
Optionee's working interest or entitlement with respect to the
Agreement, the Property or the Products.
4. For the purposes of this Schedule B, the term "PRODUCTS" shall be
interpreted as a collective reference to Stone Products and Other
Products and the term "ROYALTY" shall be interpreted as a collective
reference to the NSAR Royalty and the NSMR Royalty.
5. Net Sales Returns Royalty - Stone Products
a. Net sales returns means the gross proceeds from the sale or
disposition of Stone Products to an independent purchaser,
after deducting therefrom the cost of Valuation, Sorting,
Shipping and Insurance in connection with the Stone Products
as well as any sales, excise, production, export and other
duties, levies, assessments and taxes (except income taxes)
payable on the production or sale of Stone Products (but not
income taxes), and for the purposes hereof:
i. "VALUATION" means the establishing of a value for
each lot or group of sorted Stone Products for
purposes of reference when negotiating with a
potential purchaser of the same;
ii. "SORTING" means the final separation of Stone
Products and dividing them into groups according to
quality, size, or other characteristics, and then the
division of such groups into appropriate lots or
groups for valuing and/or sale, it being acknowledged
that in the case of gem quality Stone Products, a
group or lot may be a single stone;
iii. "SHIPPING" means all methods of transportation or
places of storage of Stone Products from the moment
they leave the Property until the passing of title
thereto or risks therefor (whichever is the later) to
an independent purchaser, including, without
limitation, any cost that may be incurred by reason
of such methods or places used or any sorting or
valuation facilities being situated off the Property;
and
iv. "INSURANCE" means all insurance that the Optionee
considers advisable to protect all or part of the
Stone Products in the possession or control of the
Optionee (including, without limitation, during
shipping) until the passing of title thereto or risks
therefor
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(whichever is the later) and including, without
limitation, the insurance or bonding of any person
who does or may come into contact with any such Stone
Products at any point during the operations of the
Optionee whether such person is an employee of the
Optionee or otherwise.
b. If Stone Products are sold to any entity with which the
Optionee does not deal at arm's length, the Stone Products
shall for the purposes hereof be deemed to have been sold at
prices determined by an independent valuator chosen by the
Optionor.
c. The Optionee shall not have the right to commingle Stone
Products produced from the Property with similar products
produced from other properties.
6. Net Smelter Returns Royalty - Other Products
a. Net smelter returns means the gross proceeds from the sale or
disposition of Other Products removed from the Property after
deducting the costs of treatment, tolling, smelting, refining
and minting of such products and all costs associated
therewith such as transporting, insuring, handling, weighing,
sampling, assaying and marketing, as well as all penalties,
representation charges, referee's fees and expenses, import
taxes and export taxes; and the term "smelter" shall mean
conventional smelters as well as any other type of production
plant used in lieu of a conventional smelter to reduce ores or
concentrates.
b. If smelting, refining, treatment, assay or sampling of Other
Products is performed by facilities owned or controlled by the
Optionee or any of its affiliates, all charges, costs and
penalties therefor to be deducted pursuant to the foregoing
paragraph shall be equal to and not exceed actual costs
incurred by the Optionee in carrying out such processes and
shall not exceed such amounts which the Optionee would have
incurred if such operations were conducted at facilities
operating at arm's length to the Optionee, and which were then
offering comparable services for comparable quantities and
quality of Other Products.
c. The Optionee shall have the right to commingle Other Products
produced from the Property with ores and minerals produced
from other properties. Before commingling, Other Products from
the Property shall be weighed, sampled, assayed, measured or
gauged by the Optionee in accordance with sound mining and
metallurgical practices for moisture, penalty substances and
payable content. Records shall be kept by the Optionee for a
reasonable time showing weights, moisture and assays of
payable content. Prior to commingling, the Optionee shall give
thirty (30) days notice to the Optionor specifying its
decision to commingle and outlining the procedures it proposes
to follow.
7. General
a. Royalties shall accrue at the time of sale or deemed sale, as
applicable, and they shall become due and payable in cash on a
calendar quarter basis, on the twentieth (20th) day of the
month next following the calendar quarter in which they
accrue.
b. At the time of making each Royalty payment to the Optionor,
the Optionee shall provide the Optionor with a certificate of
a senior officer of the Optionor certifying as to the accuracy
of the calculations of the Royalty payment and setting out the
method of the calculation thereof to which shall be attached a
true copy of the related smelter or sales receipt or receipts.
c. Net sales returns and net smelter returns upon the respective
Products shall be calculated exclusively as provided herein,
and the Royalty computed thereon shall be determined without
regard to any "hedging", "forward", "futures" or comparable
sales (collectively referred to as "FUTURE trading") of such
Products by or on behalf of the Optionee. The Optionor shall
not be entitled to any benefit of or be subject to any loss
attributable to such future trading by the Optionee.
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d. The Optionee shall cause to be kept proper books of account,
records and supporting materials covering all matters relevant
to the calculation of Royalties payable to the Optionor, and
the reasonable verification thereof; and the Optionor shall
have, from time to time, the unfettered right, during regular
business hours and on reasonable notice, to carry out at its
sole cost and expense an audit by established independent
professionals chosen by the Optionor, of the methodology and
manner of calculating all Royalty payments hereunder and the
Optionee shall provide, during regular business hours and on
reasonable notice, unrestricted access to its books, accounts,
records, vouchers, smelter settlements, sales receipts and
related documentation for this purpose. Should there be any
difference in the amount of the Royalty payment or payments
which are ultimately determined by the process described in
Article 8 of the Agreement to be in the Optionor's favour,
which exceed three (3%) percent of the amount of the Royalty
paid to the Optionor, then the cost of said audit, to the
extent reasonable, shall be reimbursed to the Optionor by the
Optionee.
e. Any dispute relating to the quantum or methodology of
calculating all Royalties payable hereunder shall be settled
by arbitration pursuant to the provisions of Article 24 of the
Agreement.
