EXHIBIT 4.58
MINING OPTION AGREEMENT
THIS AGREEMENT is made for reference August 31, 2004,
BETWEEN:
1544230 ONTARIO INC.
Xxx 000
Xxxxxx, Xxxxxxxx
XXX0XX
(the "Optionor")
AND:
XXXXXX GOLD CORP.
00000 - 00xx Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(the "Optionee")
WHEREAS:
A. The Optionor is the registered and beneficial owner of mining claims
located in the Xxxxx Xxxxxxxx, Xxxxx Xxxx, Xxxxxxx, more particularly described
in Schedule "A" to this Agreement (the "Property"); and
B. The Optionor has agreed to grant an option to the Optionee to acquire a
100% an interest in the Property on the terms described herein.
THEREFORE in consideration of the mutual covenants and agreements in this
Agreement, the parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 For the purposes of this Agreement:
(a) "Affiliate" means any person, partnership, joint venture, corporation
or other form of enterprise which directly or indirectly controls, is
controlled by, or is under common control with, a party to this
Agreement. For purposes of the preceding sentence, "control" means
possession, directly or indirectly, of the power to direct or cause
direction of management and policies through ownership of voting
securities, contract, voting trust or otherwise;
(b) "Net Smelter Returns" has the meaning prescribed in Schedule "B";
(c) "NS Royalty" means the royalty in favour of the Optionor to which the
Property is subject, which is an amount equal to 1 1/4 % of Net Smelter
Returns;
(d) "Option" means an exclusive option granted to the Optionee by the
Optionor to acquire up to an undivided 100% legal and beneficial
interest in and to the Property (subject to the NS Royalty),
exercisable in the manner described at section 3;
(e) "Option Period" means the period commencing on the date of this
Agreement and ending one day after the day on which the last Payment at
paragraph 3.2 is required to be made;
(f) "Payment" means a payment in cash or certified cheque by the Optionee
to the Optionor;
(g) "Property" has the meaning ascribed in recital "A" of this Agreement;
(h) "Property Rights" means all licences, permits, easements,
rights-of-way, certificates and other approvals obtained by either of
the parties, either before or after the date of this Agreement, and
necessary for the development of the Property or for the purpose of
placing the Property into production or of continuing production on the
Property; and
(i) "Shares" means fully paid and non-assessable common shares in the
capital of the Optionee, issued pursuant to exemptions from
registration and prospectus requirements contained in sections 45(2)(2
1) and 74(2)(18) of the SECURITIES ACT (British Columbia).
1.2 For the purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) "this Agreement" means this mining option agreement and all Schedules
attached hereto;
(b) any reference in this Agreement to a designated "Section", "Schedule",
"paragraph" or other subdivision refers to the designated section,
schedule, paragraph or other subdivision of this Agreement;
(c) the words "herein" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Section or
other subdivision of this Agreement;
(d) the word "including", when following any general statement, term or
matter, is not to be construed to limit such general statement, term or
matter to the specific items or matters set forth immediately following
such word or to similar items or matters, whether or not non-limiting
language (such as "without limitation" or "but not limited to" or words
of similar import) is used with reference thereto but rather refers to
all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter;
(e) any reference to a statute includes and, unless otherwise specified
herein, is a reference to such statute and to the regulations made
pursuant thereto, with all amendments made thereto and in force from
time to time, and to any statute or regulations that may be passed
which has the effect of supplementing or superseding such statute or
such regulation;
(f) any reference to "party" or "parties" means the Optionor, the Optionee,
or both, as the context requires;
(g) the headings in this Agreement are for convenience of reference only
and do not affect the interpretation of this Agreement;
(h) words importing the masculine gender include the feminine or neuter
gender and words in the singular include the plural, and vice versa;
and
(i) all references to currency refer to Canadian dollars.
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1.3 The following are the Schedules to this Agreement, and are incorporated
into this Agreement by reference:
Schedule "A": The Property
Schedule "B": NS Royalty
Wherever any term or condition, expressed or implied, in any of the Schedules
conflicts or is at variance with any term or conditions of this Agreement, the
terms or conditions of this Agreement will prevail.
2. REPRESENTATIONS AND WARRANTIES OF THE OPTIONOR AND THE OPTIONEE
2.1 The Optionor represents and warrants to the Optionee that:
(a) the Optionor is the beneficial owner of the Property and the Optionor
has the full right, power, capacity and authority to enter into,
execute and deliver this Agreement;
(b) the Property is held by the Optionor is free and clear of and from all
liens, charges and encumbrances;
(c) the Optionor holds all permits, licences, consents and authorities
issued by any government or governmental authority which are necessary
in connection with the ownership and operation of its business and the
ownership of the Property;
(d) to the best of the Optionor's knowledge, the Property has been properly
staked, located and recorded pursuant to the applicable laws and
regulations of Ontario and all mining claims comprising the Property
are in good standing;
(e) there is no adverse claim or challenge against or to the ownership of
or title to any part of the Property and, to the best of the knowledge
of the Optionor there is no basis for such adverse claim or challenge
except for a general claim by aboriginal peoples in British Columbia to
the ownership of British Columbia which may affect the Property;
2.2 The representations and warranties contained in paragraph 2.1 are
provided for the exclusive benefit of the Optionee, and a breach of any one or
more representations or warranties may be waived by the Optionee in whole or in
part at any time without prejudice to its rights in respect of any other breach
of the same or any other representation or warranty, and the representations and
warranties contained in paragraph 2.1 will survive the execution and delivery of
this Agreement.
2.3 The Optionee represents and warrants to the Optionor that:
(a) the Optionee is a valid and subsisting corporation duly incorporated
and in good standing under the laws of the jurisdiction in which it is
incorporated, continued or amalgamated;
(b) the Optionee has the full right, power, capacity and authority to enter
into, execute and deliver this Agreement and to be bound by its terms;
(c) the consummation of this Agreement will not conflict with nor result in
any breach of its constituting documents or any covenants or agreements
contained in or constitute a default under any agreement or other
instrument whatever to which the Optionee is a party or by which the
Optionee is bound or to which the Optionee may be subject; and
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(d) no proceedings are pending for, and the Optionee is unaware of any
basis for, the institution of any proceedings leading to the placing of
the Optionee in bankruptcy or subject to any other laws governing the
affairs of insolvent parties.
(e) The representations and warranties contained in paragraph 2.3 are
provided for the exclusive benefit of the Optionor, and a breach of any
one or more representations or warranties may be waived by the Optionor
in whole or in part at any time without prejudice to its rights in
respect of any other breach of the same or any other representation or
warranty; and the representations and warranties contained in paragraph
2.3 of will survive the execution and delivery of this Agreement.
3. OPTION
3.1 The Optionor hereby grants the Option to the Optionee which Option is
exercisable by the Optionee:
(a) issuing to the Optionor 100,000 Shares as follows:
(i) 25,000 Shares upon acceptance of this Agreement by the TSX
Venture Exchange (the "Exchange");
(ii) 25,000 Shares by August 31, 2005;
(iii) 25,000 Shares by August 31, 2006; and
(iv) 25,000 Shares by August 31, 2007.
(b) making the following Payments to the Optionor:
(i) $8,000 upon acceptance of this Agreement by the Exchange, of
which $3,000 will be considered for claim staking;
(ii) $10,000 on or before August 31, 2005;
(iii) $15,000 on or before August 31, 2006;
(iv) $20,000 on or before August 31, 2007;
(v) $40,000 on or before August 31, 2008.
3.2 The Optionor and the Optionee acknowledge and agree that upon
completion of all of the Payments and Share issuances set out above, the
Optionee shall have earned a 100% interest in the Property. Each of the Payments
and issuances of Shares are required to be made in order for the Option to be
exercised, and the Optionee will not be entitled to any refund of Payments
previously made or Shares previously issued if it fails or elects not to
exercise the Option in full.
3.3 The Optionee has the right to accelerate the schedule of work
Expenditures, Payments and Share issuances outlined above and by so doing reduce
the time for earning its 50% interest.
3.4 Except as specifically provided elsewhere herein, this is an option
agreement only and until the exercise of the Option, nothing herein contained
and no act done nor payment or share issuance made hereunder shall obligate the
Optionee to do any further act or acts or to make any further payments or shares
issuances (other than the requirements specified in paragraph 3.1), and in no
event shall this Agreement or any act done or any payment or share issuance made
be construed as an obligation of the Optionee to do or perform any work or make
any payments or share issuances on or with respect to the Property.
4. PROPERTY EXPLORATION AND MAINTENANCE
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4.1 The Optionor agrees that it will submit such reports of its exploration
activities on the Property to the appropriate government authorities as may be
required to maintain the Property in good standing during the Option Period, and
will, if requested by the Optionee, further provide copies of such information
to the Optionee.
5. ROYALTIES ENCUMBERING PROPERTY
5.1 The Optionee acknowledges and agrees that to the extent described in
Schedule "B", the Property is subject to the NS Royalty in favour of the
Optionor. The Optionor has given the Optionee the right to purchase .5% of the
NS Royalty for FIVE HUNDRED THOUSAND DOLLARS ($500,000).
6. RIGHT OF ENTRY
Throughout the Option Period, the Optionor will have the exclusive right in
respect of the Property to:
(a) enter the Property; and
(b) bring and erect upon the Property such buildings, plant, machinery and
equipment as the Optionee may deem necessary or desirable in its sole
discretion.
7. RECORDING OF AGREEMENT
7.1 The Optionor and the Optionee will execute and deliver such additional
documentation as legal counsel for the Optionor and the Optionee determine is
necessary in order to duly register and record in the appropriate registration
and recording offices notice that the Optionor's interest in and to the Property
is subject to and bound by the terms of this Agreement.
8. CONDITIONS PRECEDENT
8.1 The obligation of the Optionee to consummate the transactions
contemplated under this Agreement is subject to the following conditions which
are to the Optionee's sole benefit and may be waived in writing by the Optionee:
(a) the Optionee and the Optionor will have received the requisite
regulatory approvals to the transactions contemplated in this
Agreement; and
(b) the Optionee will be satisfied as to the title to the Property held by
the Optionor.
8.2 The Optionee and the Optionor will use their best efforts to assist
each other in obtaining the requisite regulatory approvals to this Agreement.
8.3 This Agreement will terminate if the conditions described in paragraph
8.1 are not satisfied on or before 45 days from the date of this Agreement.
9. OBLIGATIONS DURING OPTION PERIOD
9.1 During the Option Period, unless this Agreement is terminated in
accordance with paragraph 14, the Optionor covenants and agrees with the
Optionee that the Optionor will:
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(a) maintain the Property in good standing by doing and filing all
assessment work or making payments in lieu thereof and by performing
all other acts which may be necessary in order to keep the Property in
good standing and free and clear of all liens and other charges arising
from or out of the Optionor's activities on the Property;
(b) do all work on the Property in a good and workmanlike manner and in
accordance with sound mining and engineering practices and in
compliance with all applicable laws, bylaws, regulations, orders, and
lawful requirements of any governmental or regulatory authority and
comply with all laws governing the possession of the Property,
including, without limitation, those governing safety, pollution and
environmental matters;
(c) deliver to the Optionee (immediately after receipt by the Optionor all
engineering and geological reports and assay results in respect of
samples taken from the Property (together with reports showing the
location from which the samples were taken and the type of samples) and
report to the Optionee on a monthly basis in respect of all data
relevant to the Property, including, without limitation, opinions and
field results, provided that the Optionee will indemnify and save the
Optionor harmless with respect to any use made by the Optionee of
interpretive data prepared by and received from the Optionor;
(d) permit the Optionee, at his own risk and expense, access to the
Property at all reasonable times and to all records prepared by the
Optionor in connection with the Expenditures; and
10. RIGHTS AND OBLIGATIONS AFTER TERMINATION OF OPTION
10.1 If this Agreement and the Option will terminate pursuant to the
provisions of paragraph 14, then:
(a) the Optionee will deliver a deed of quit claim or other appropriate
instrument to the Optionor in recordable form whereby the Optionee will
acknowledge and agree that it has no interest either legal or equitable
in and to the Property; and
(b) the Optionee will deliver, at no cost to the Optionor, within thirty
(30) days after the date of such termination, copies of all reports,
maps, assay results and other relevant technical data (including
interpretative data) compiled by or in the possession or under the
control of the Optionee with respect to the Property and all core,
pulps, samples and other materials relevant to the Property in the
possession or under the control of the Optionee.
11. NO ENCUMBRANCES AGAINST PROPERTY
11.1 During the Option Period, neither the Optionee nor the Optionor will be
entitled to grant any mortgage, charge or lien of or upon the Property or any
portion thereof without the prior written consent of the other party.
12. FORCE MAJEURE
12.1 If either party is at any time during the Option Period prevented or
delayed in complying with any of the provisions of this Agreement (the "Affected
Party") by reason of strikes, lockouts, labour, power or fuel, shortages, fires,
wars, acts of God, civil disturbances, governmental regulations restricting
normal operations, shipping delays or any other reason or reasons beyond the
reasonable control of the Affected Party (provided that lack of sufficient funds
to carry out exploration on the Property will be deemed not to be beyond the
reasonable control of the Affected Party), then the time limited for the
performance by the
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Affected Party of its obligations hereunder will be extended by a period of time
equal in length to the period of each such prevention or delay. Nothing in this
paragraph 13.1 or this Agreement will relieve either Party from its obligation
to maintain the claims comprising the Property in good standing and to comply
with all applicable laws and regulations including, without limitation, those
governing safety, pollution and environmental matters.
12.2 The Affected Party will give notice to the other party of each event of
force majeure under paragraph 12.1 within 7 days of such event commencing and
upon cessation of such event will furnish the other party with written notice to
that effect together with particulars of the number of days by which the time
for performing the obligations of the Affected Party under this Agreement has
been extended by virtue of such event of force majeure and all preceding events
of force majeure.
13. CONFIDENTIAL INFORMATION
13.1 The terms of this Agreement and all information obtained in connection
with the performance of this Agreement will be the exclusive property of the
parties hereto and except as provided in paragraph 13.2, will not be disclosed
to any third party or the public without the prior written consent of the other
party, which consent will not be unreasonably withheld.
13.2 The consent required by paragraph 13.1 will not apply to a disclosure:
(a) to an Affiliate, consultant, contractor or subcontractor that has a
bona fide need to be informed;
(b) to any third party to whom the disclosing party contemplates a transfer
of all or any part of its interest in this Agreement;
(c) to a governmental agency or to the public which such party believes in
good faith is required by pertinent laws or regulation or the rules of
any applicable stock exchange; or
(d) to an investment dealer, broker, bank or similar financial institution,
in confidence if required as part of a due diligence investigation by
such financial institution in connection with a financing required by
such party or its shareholders or affiliates to meet, in part, its
obligations under this Agreement.
14. DEFAULT AND TERMINATION
14.1 If at any time during the Option Period, a party is in default of any
requirement of this Agreement or is in breach of any provision contained in this
Agreement, the party affected by the default (the "Non-Defaulting Party") may
terminate this Agreement by giving written notice of termination to the Optionee
but only if:
(a) it will have given to the other party written notice of the particular
failure, default, or breach on the part of the other party; and
(b) the other party has not, within 30 days following delivery of such
written notice of default, cured such default or commenced to cure such
default, it being agreed by the Optionee that should it so commence to
cure any default it will prosecute such cure to completion without
undue delay.
14.2 Notwithstanding any termination of this Agreement, the Optionee will
remain liable for those obligations specified in Section 10 and Section 15 and
the Optionor will remain liable for its obligations under Section 15.
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15. INDEMNITY
15.1 The Optionor covenants and agrees with the Optionee (which covenant and
agreement will survive the execution, delivery and termination of this
Agreement) to indemnify and save harmless the Optionee against all liabilities,
claims, demands, actions, causes of action, damages, losses, costs, expenses or
legal fees suffered or incurred by the Optionee, directly or indirectly, by
reason of or arising out of any warranties or representations on the part of the
Optionor herein being untrue or arising out of work done by the Optionor on or
with respect to the Property.
15.2 The Optionee covenants and agrees with the Optionor (which covenant and
agreement will survive the execution, delivery and termination of this
Agreement) to indemnify and save harmless the Optionor against all liabilities,
claims, demands, actions, causes of action, damages, losses, costs, expenses or
legal fees suffered or incurred by reason of or arising out of any warranties or
representations on the part of the Optionee herein being untrue or arising out
of the Optionee and its duly authorized representatives accessing the Property.
16. GOVERNING LAW
16.1 This Agreement will be construed and in all respects governed by the
laws of the Province of Ontario and the laws of Canada applicable in Ontario.
17. NOTICES
17.1 All notices, payments and other required communications and deliveries
to the parties hereto will be in writing, and will be addressed to the parties
as follows or at such other address as the parties may specify from time to
time:
to the Optionor:
1544230 Ontario Inc.
Xxx 000
Xxxxxx, Xxxxxxxx
XXX0XX
Fax: 000-000-0000
to the Optionee:
Xxxxxx Gold Corp.
00000 - 00xx Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Fax: 000-000-0000
17.2 Notices must be delivered, sent by telex, telegram, telecopier or
mailed by pre-paid post and addressed to the party to which notice is to be
given. If notice is sent by telex, telegram or telecopier or is delivered, it
will be deemed to have been given and received at the time of transmission or
delivery. If notice is mailed, it will be deemed to have been received ten
business days following the date of the mailing of the notice. If there is an
interruption in normal mail service due to strike, labour unrest or other cause
at or prior to the time a notice is mailed the notice will be sent by telex,
telegram or telecopier or will be delivered.
17.3 Either party hereto may at any time and from time to time notify the
other party in writing of a change of address and the new address to which a
notice will be given thereafter until further change.
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18. ASSIGNMENT
18.1 The Option and the Optionee's rights hereunder may be assigned, either
in whole or in part, by the Optionee to an Assignee provided that:
(a) the Optionor gives its prior written consent to such assignment, which
consent may not be unreasonably withheld by the Optionor;
(b) the Optionee at the time of assignment is not in default of any of the
obligations, warranties or representations given hereunder or to be
performed by it pursuant to this Agreement;
(c) the Optionee will not be relieved of any duty or obligation hereunder
unless the Optionee has assigned its entire interest in this Agreement;
and
(d) each Assignee prior to the effective date of the assignment agrees in
writing with the Optionor to be bound by the terms and conditions of
this Agreement.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the Optionor
and the Optionee and will supersede and replace any other agreement or
arrangement, whether oral or in writing, previously existing between the patties
with respect to the subject matter of this Agreement.
20. CONSENT OR WAIVER
20.1 No consent or waiver, express or implied, by either party hereto in
respect of any breach or default by the other party in the performance by such
other party of its obligations under this Agreement will be deemed or construed
to be a consent to or a waiver or any other breach or default.
21. FURTHER ASSURANCES
21.1 The parties will promptly execute, or cause to be executed, all bills
of sale, transfers, documents, conveyances and other instruments of further
assurance which may be reasonably necessary or advisable to carry out fully the
intent and purpose of this Agreement or to record wherever appropriate the
respective interests from time to time of the parties hereto in and to the
Property.
22. SEVERABILITY
22.1 If any provision of this Agreement is or will become illegal,
unenforceable or invalid for any reason whatsoever, such illegal, unenforceable
or invalid provisions will be severable from the remainder of this Agreement and
will not affect the legality, enforceability or validity of the remaining
provisions of this Agreement.
23. ENUREMENT
23.1 This Agreement will enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
24. AMENDMENTS
24.1 This Agreement may only be amended in writing with the mutual consent
of all parties.
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25. TIME
25.1 Time will be the essence of this Agreement.
26. COUNTERPARTS
26.1 This Agreement may be executed in any number of counterparts and by
facsimile transmission with the same effect as if all parties hereto had signed
the same document. All counterparts will be construed together and constitute
one and the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first above written.
1544230 ONTARIO INC.
By: /s/ Perry English
----------------------------
Perry English
XXXXXX GOLD CORP.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx, President
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SCHEDULE "A"
to the Agreement between
1544230 ONTARIO INC. and
XXXXXX GOLD CORP.
THE PROPERTY
21 claim units known as the "Glass Claims"
covering an area of 840 acres
in the Kenora Mining Division, Ontario
consisting of
EXPIRY EXPIRY
CLAIM NAME RECORD NO. NO. OF UNITS MONTH YEAR
---------- ---------- ------------ --------- ------
3014819 -- 16 September 2006
3014820 -- 5 September 2006
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SCHEDULE "B"
to the Agreement between
PERRY ENGLISH AND
XXXXXX GOLD CORP.
NS ROYALTY NET SMELTER RETURNS
The Property shall be subject to the NS Royalty, being 1 1/4% of Net Smelter
Returns, payable annually to the Optionor. For the purposes of calculating the
NS Royalty, "Net Smelter Returns" means the actual proceeds received from any
mint, smelter, refinery or other purchaser for the sale of ores, metals (metals
shall include bullion) or concentrates produced from the Property and sold,
after deducting from such proceeds the following charges to the extent that they
were not deducted by the purchaser in computing payment: smelting and refining
charges; penalties; smelter assay costs and umpire assay costs; deductions of
the nature of profit sharing with any mint, smelter, refinery or other
purchaser; cost of freight and handling of ores, metals or concentrates from the
Property to any mint, smelter, refinery or other purchaser; marketing costs;
insurance on such ores, metals or concentrates; custom duties; severance,
royalties, Ad valorem or mineral taxes of the like and export and import taxes
or tariffs payable in respect of said ores, metals or concentrates.
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