EXHIBIT 4.126
OWL LAKE PROPERTY
This Agreement is dated for reference the 7th day of February 2007
BETWEEN:
XXX XXXXX (as to 50%)
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel: (000) 000-0000
XXXXXX XXXXXXX (as to 50%)
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, X.X. X0X 0X0
Tel: (000) 000-0000
(hereinafter referred to collectively as the "Optionors")
OF THE FIRST PART
AND:
XXXXXX GOLD CORP.
#000 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(hereinafter referred to as the "Optionee")
OF THE SECOND PART
WITNESSES THAT WHEREAS Optionors are the recorded and beneficial owners of a
100% legal and beneficial interest in and to certain mining claims situated in
Ontario, more particularly described in Schedule "A" attached hereto
(collectively the "Property");
AND WHEREAS the Optionors desire 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. GRANT OF OPTION
The Optionors grant to the Optionee the sole, exclusive and irrevocable right
and option (the "Option") to acquire an undivided 100% right, title and interest
in and to the Property, in accordance with the terms of this Agreement.
2. 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 as provided for in this Agreement, and
all payments theretofore paid by the Optionee shall be retained by the Optionors
for their own use absolutely.
3. 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 2, shall:
(a) pay to the Optionors $10,000 upon signing this Agreement;
(b) pay to the Optionors a further $30,000 in cash or an
equivalent value in shares on or before the date which is 12
months from the date of regulatory approval;
(c) pay to the Optionors a further $50,000 in cash or an
equivalent value in shares on or before the date which is 24
months from the date of regulatory approval;
The deemed price of any common shares to be issued pursuant to this paragraph
shall be based on the average trading price over the previous ten business days
from the date that payment is due. The number of common shares received
multiplied by the deemed price shall be equal to or greater than the cash
payment owing by the Optionee to the Optionors.
4. EXERCISE OF THE OPTION
If the Optionee has paid $10,000 and either paid an additional $80,000 in cash
or issued the equivalent value of $80,000 in common shares of the Optionee to
the Optionors, or a combination of cash and shares, 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 only to the Royalty Interest
reserved to the Optionors pursuant to paragraph 6 hereof.
5. OPERATOR
During the term of the Option, the Optionee shall be the operator for purposes
of developing and executing exploration programs.
6. ROYALTY INTEREST
The Optionors shall be entitled to receive and the Optionee shall pay to the
Optionors a royalty equal to 2% 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 the Royalty Interest from the Optionors
for $500,000.
7. RIGHT OF ENTRY
During the currency of the Option the Optionee and its employees, agents and any
person duly authorized by the Optionors shall have the sole and exclusive right
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 desirable;
(d) bring upon and erect upon the Property such mining facilities
as the Optionee may consider advisable; and
(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.
8. NOTICE OF DEFAULT AND TERMINATION BY OPTIONORS
If the Optionee should be in default in making any payments or performing any
other of its obligations hereunder, the Optionors 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 Optionors, the Optionee shall cure the specified
default. If the Optionee fails to cure the default within the thirty (30) day
period, this Agreement shall terminate. Upon termination of this Agreement by
the Optionors, the provisions of the paragraph in this Agreement entitled
"Termination Prior to Acquisition of Interest" shall apply.
9. NO PRODUCTION OBLIGATION
The Optionee shall be under no obligation whatsoever to place the Property into
production.
10. TRANSFER OF PROPERTY
The Property will be transferred when the provisions in paragraph 3 have been
met.
11. 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 thirty
(30) days prior written notice to the Optionors of this election; provided that
any portion of the Property so excluded shall be in good standing, free and
clear of all liens, charges and encumbrances, and provided further that the
Optionee, if requested by the Optionors in writing, shall deliver to the
Optionors 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
Optionors. Upon termination of a portion of the Property, the terminated portion
of the Property shall be subject to the provisions of the paragraph in this
Agreement entitled "Termination Prior to Acquisition of Interest".
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12. COVENANTS OF THE OPTIONEE
During the currency of this Agreement, the Optionee shall:
(a) keep the Property in good standing by doing and filing of all
assessment work or by making payments in lieu thereof, and by
the doing all other acts and things and making all other
payments which may be necessary in that regard;
(b) permit the Optionors, or their 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, provided the Optionors shall not, without the
prior written consent of the Optionee, such consent not to be
unreasonably withheld, disclose any information obtained by it
or communicated to it, to any third party except as may be
required by regulatory bodies having jurisdiction over it; and
(c) conduct all work on or with respect to the Property in a
careful and workmanlike manner and in compliance with the
applicable laws of the jurisdiction in which the Property is
located and indemnify and save the Optionors harmless from any
and all claims, suits or actions made or brought against the
Optionors as a result of work done by the Optionee on or with
respect to the Property.
13. COVENANTS OF THE OPTIONORS
During the currency of this Agreement, the Optionors covenant and agree 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) 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;
(c) co-operate with the Optionee in obtaining any water
appropriation license, surface licenses and any other rights
or licenses on or related to the Property, the Optionee deems
necessary or desirable; and
(d) promptly provide the Optionee with any and all notices and
correspondence from government or regulatory agencies in
respect of the Property.
14. REPRESENTATIONS AND WARRANTIES OF THE OPTIONORS
The Optionors hereby represent and warrant to the Optionee that:
(a) the Optionors are the legal and beneficial owner of the
Property;
(b) the Property consists of those mining claims more particularly
described in Schedule "A", all of which were duly and validly
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) there are no pending or threatened actions, suits, claims or
proceedings regarding the Property; and
(e) the Optionors have 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 Optionors 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 Optionors 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 Optionors acknowledge and agree 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. The Optionee may deduct the amount
of any such loss or damage from any amounts payable by it to the Optionors
hereunder.
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15. 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
Optionors forthwith exclusive and quiet possession of the Property, in good
standing, and free and clear of all liens, charges and encumbrances for a period
of one year.
16. 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 Optionors, 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 the paragraph in this Agreement entitled "Termination Prior to
Acquisition of Interest" hereof, shall be of no further force and effect.
17. 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 Optionors 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 Optionors as soon as such cause ceases to subsist.
18. 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.
19. 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.
20. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
21. 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.
22. 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.
23. 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.
24. 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.
25. APPROVALS
The Optionee and the Optionors hereby acknowledge that this Agreement shall be
subject to all necessary regulatory approvals.
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26. 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.
27. ASSIGNMENT
The Optionee may at any time during the term of the Option sell, transfer or
otherwise dispose of all or any portion of its interest in or its rights under
this Agreement; provided that any purchaser, grantee or transferee of any such
interest or rights delivers to the Optionors their agreement related to this
Agreement and to the Property, containing:
(a) a covenant by such transferee to perform all the obligations
of the Optionee to be performed under this Agreement in
respect of the interest or rights to be acquired by it from
the Optionee to the same extent as if this Agreement had been
originally executed by such transferee as principal obligant;
and
(b) a provision subjecting any further sale, transfer or other
disposition of such interest or rights or any portion thereof
to the restrictions contained in this section;
and further provided that any shares delivered to the Optionors in connection
with the exercise of the Option must be shares of the Optionee, unless otherwise
agreed in writing by the Optionors.
28. AFTER-ACQUIRED PROPERTY
The area which is included within two kilometers of the outer-most boundary of
the Property shall be deemed to be an area of interest ("Area of Interest").
During the term of this Agreement, commencing on the date hereof, any mineral
claim, lease or other mineral right or interest acquired by or on behalf of the
Optionee, the Optionors or their assigns, by staking within the Area of Interest
shall be deemed to have been acquired on behalf of and for the benefit of the
parties pursuant to the terms of this Agreement. This Agreement shall not extend
beyond the Area of Interest and shall not affect mineral properties which the
parties now hold or hereafter stake or acquire adjacent to the Area of Interest.
29. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario.
30. 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.
31. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document.
IN WITNESS WHEREOF the parties hereto have executed these presents as of the day
and year first above written.
SIGNED, SEALED and DELIVERED by )
XXX XXXXX in the presence of: )
)
BY: /S/ X.X. XXXXXXX )
---------------------------------------- )
Name (printed) )
)
0000 XXXXX XXXX XXXX, XXXXXXXXXX, X.X. )
---------------------------------------- )
Address ) BY: /S/ XXX XXXXX
) -------------------------------
) XXX XXXXX
SEMI-RETIRED )
---------------------------------------- )
Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXX XXXXXXX in the presence of: )
)
BY: /S/ XXX XXXXX )
---------------------------------------- )
Name (printed) )
)
X.X. XXX 0000, XXXXXXX, XXXXXXX, X0X 0X0 )
---------------------------------------- )
Address ) BY: /S/ XXXXXX XXXXXXX
) -------------------------------
) XXXXXX XXXXXXX
PROSPECTOR )
---------------------------------------- )
Occupation )
The COMMON SEAL of )
XXXXXX GOLD CORP. )
was hereunto affixed in the presence of: )
)
BY: XXXX X. XXXXXXXX )
---------------------------------------- )
Authorized Signatory
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SCHEDULE "A"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 7TH DAY OF FEBRUARY 0000
XXXXXXX XXX XXXXX, XXXXXX XXXXXXX AND XXXXXX GOLD CORP.
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The Property consists of the following claims in the Thunder Bay Mining
District, Ontario. The following is the township, claim number, number of units,
recording date and the expiry date:
-------------------- ---------------- ---------- --------------- ---------------
TOWNSHIP CLAIM NUMBER # OF UNITS RECORDING DATE EXPIRY DATE
-------------------- ---------------- ---------- --------------- ---------------
Lower Aguasabon Lake 4211426 6 June 21, 2006 June 21, 2008
-------------------- ---------------- ---------- --------------- ---------------
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SCHEDULE "B"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 7TH DAY OF FEBRUARY 0000
XXXXXXX XXX XXXXX, XXXXXX XXXXXXX AND XXXXXX GOLD CORP.
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NET SMELTER RETURNS
For the purposes of this Agreement, "Net Smelter Returns" shall be deemed to
mean the amount received from a mint, smelter, or other purchaser upon the sale
of all metals, bullion, concentrates or ores 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.
Net Smelter Returns payable to the Optionors shall be paid quarterly within
sixty (60) days following the end of each fiscal quarter of the Optionee during
which the Property is in commercial production of a best-estimate basis. The
records relating to the calculation of royalty payments shall be audited
annually at the end of each fiscal year of the Optionee and:
(a) any adjustment of payments to the Optionors shall be made forthwith;
(b) a copy of the audited statements shall be delivered to the Optionors;
(c) the Optionors shall have thirty (30) days after receipt of such
statements to question their accuracy in writing and failing such
objection the statements shall be deemed correct; and
(d) the Optionors or their auditor duly appointed in writing shall have the
right at all reasonable times upon written request to inspect such of
the books and financial records of the Optionee as may be relevant to
the determination of the Net Smelter Returns hereunder, and at their
own expense to make copies thereof.
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