EXHIBIT 4.76
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT made as of this 1st day of January, 2006.
BETWEEN:
HASTINGS MANAGEMENT CORP., a company duly incorporated under the laws
of the Province of British Columbia, having its registered office at
711 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter called "Hastings")
OF THE FIRST PART
AND:
XXXXXX GOLD CORP., a company duly incorporated under the laws of the
Province of British Columbia, having its registered office at 711 - 000
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter called the "Company")
OF THE SECOND PART
WHEREAS:
X. Xxxxxxxx is in the business of managing the affairs of public and
private companies;
B. The Company is a public company listed on the TSX Venture Exchange and
is in the business of acquiring, exploring and developing natural resource
properties;
C. The Company has interests in certain mineral properties and is
continually acquiring additional properties (hereinafter called the
"Properties"); and
D. The Company desires to retain the management services of Hastings in
carrying on the Company's business and Hastings desires to manage the affairs of
the Company on the terms and conditions as are more particularly set forth
herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
respective covenants and agreements hereinafter contained the parties agree as
follows:
1. SERVICES
1.1 Hastings shall render services (the "Services") to and on behalf of the
Company and such Services shall include, without detracting from the generality,
the following:
(a) acting as project manager, as the same is understood in the
mining industry, for development of the Properties to a
pre-feasibility stage;
(b) aiding in the negotiation, conclusion and approval of the
acquisition of additional resource properties;
(c) administering and supervising compliance with the Properties'
title and maintenance in accordance with prevailing law and
contract;
(d) gathering historical research and conducting data analysis in
respect to the Properties and compiling the same for the
purpose of analysis and for the purpose of providing
recommendations to the Board of Directors of the Company;
(e) from the historical data and from the work conducted under the
supervision of Hastings, preparing exploration programmes and
budgets for consideration by the Board of Directors of the
Company, at such times as requested by the Board of Directors
of the Company;
(f) supervising and administering the financial requirements of
the Properties' maintenance and exploration, under the
supervision of the Board of Directors of the Company and
within the terms of this Agreement;
(g) presenting to the Company on a monthly basis an account
statement with a clear breakdown between administrative and
exploration accounts and tax liabilities;
(h) produce quarterly accounts in accordance with public recording
requirements and Generally Accepted Accounting Principles of
the Company in a form similar to Schedule "A" attached, and
assisting the auditor of the Company with yearly audited
financial statements;
(i) supervising all contract work and subcontract work, and
ensuring that the contractors and subcontractors are reputable
within the industry, the work conducted by them is conducted
to professional standards acceptable
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within the industry, the work is conducted in accordance with
the established programme and that security, information
confidentiality is required of and maintained by the
contractors and subcontractors and there are licensed and
registered with the applicable regulatory authorities;
(j) maintaining local administrative facilities and maintaining
field facilities (unless the same are supplied by another
party arranged by the parties) and such facilities shall be
maintained to a professional standard, including appropriate
standards for safety, cleanliness, inventory, personnel
support, communication, housing, information, appropriate
insurance and sample storage and security;
(k) maintaining all records and information pertaining to the
Services, and the Properties, and the exploration and
activities thereto, and ensuring that the Board of Directors
of the Company receives copies of all such material records
and information as would be reasonable and appropriate for the
Board of Directors' deliberations;
(l) ensuring that all work in respect to the Properties and
exploration and other activities thereto is performed in a
competent and diligent fashion to an acceptable standard
within the industry and ensuring that the same is effected in
conformity with all governmental requirements including,
without limiting the generality, all environmental
requirements, labour requirements, mining requirements,
taxation requirements, mobility requirements, and all and
every legislative enactment, regulation, ordinance, zoning,
order and every other matter required to ensure that the work
is conducted without violation and in conformity with every
governmental requirement, such that the Properties are
maintained in good standing and the development is permitted
under the law to proceed without disruption or impairment;
(m) aiding in the negotiation, conclusion and approval of future
financings for the Company;
(n) communicating with various regulatory authorities and
preparing and filing the required documentation on behalf of
the Company in order to ensure compliance with all applicable
laws;
(o) as requested by the Board of Directors of the Company
preparing news releases, promotional materials, maps and other
documents required to be disseminated to the public and to
members of the Company and to respond to any requests for
information or questions which may be posed by the public or
members of the Company;
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(p) maintaining electronic media communications and sites for the
Company where all material information relating to the Company
and its Properties is posted in order to keep the public and
members of the Company informed;
(q) monitor Company activities to ensure compliance with the
Company's overall long-term objective and the regulatory
framework in which the Company operates and to proactively
address and respond to the Board of Directors to prevent
non-conformity;
(r) pro-actively effecting all such activities in performance of
the Services as are not specifically stated herein but which
may be required or advisable and reasonable to safeguard the
Properties, and the Company's interest in the Properties, to
ensure regulatory compliance, and to produce a competent and
efficient exploration programme and reports, with verifiable
data and reports acceptable professionally within the
industry, and which will be acceptable by independent
professionals to provide the underlying data and information
to produce a pre-feasibility report, if warranted, and to
underpin a programme of work for an eventual feasibility
report; and
(s) compliance with such other additional instructions and
directions as the Board of Directors of the Company may
reasonably require for the proper and timely production of the
Services and to safeguard the Properties and the Company's
interest therein.
2. HASTINGS ORGANIZATION
2.1 Hastings shall have charge of its own internal affairs and
administrative arrangements for the production of the Services in accordance
with this Agreement, but Hastings shall establish the following internal
controls:
(a) Hastings shall establish separate accounts for the conduct of
the Services;
(b) Hastings shall employ reputable and technically competent
personnel and contractors and subcontractors, and shall notify
the Board of Directors of the Company of its roster of
personnel and contractors and subcontractors, and any
amendments thereto from time to time; and
(c) Hastings shall ensure that its employees, and other personnel
and the contractors and subcontractors, employ an appropriate
standard and code of conduct such that Hastings and the
parties hereto will not be subject to scandal, subject to
controversy, subject to any governmental or political
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enquiry or controversy, or otherwise create or encourage any
situation which may impugn the reputation or negatively effect
the work of the Company.
3. MANAGEMENT FEE
3.1 For provision of the Services, Hastings shall be paid a fee of Thirty
Five Thousand Dollars ($35,000) per month, which shall cover Hastings
administrative costs and financial services and the overhead of a home office in
Vancouver, but shall not include, which shall be separately charged, any
consultants, contractors, subcontractors, field office costs, travel,
accommodation, and other such matters relating to work conducted on the
Properties. The actual out-of-pocket costs shall be billed to the Company on a
monthly basis by Hastings with a 5% administrative surcharge.
3.2 Due to the nature of the business of the Company and the cyclical
nature of mineral exploration there will be times the Company will require more
extensive Services to be provided by Hastings. At such times, Hastings reserves
the right, to charge an additional fee of Ten Thousand Dollars ($10,000) per
month as and when the more extensive Services are required.
3.3 The President of the Company shall notify Hastings, to the best of his
knowledge, at the beginning of each month the extent of the Services that will
be required by the Company from Hastings.
4. REPRESENTATIONS, COVENANTS AND WARRANTIES OF HASTINGS
4.1 Hastings represents, covenants and warrants as follows:
(a) it has the requisite skills, experience and industry contacts
and support to perform the Services to a standard acceptable
within the industry;
(b) it shall devote the requisite time, shall devote sufficient
planning and foresight, shall devote sufficient skills and
resources, and shall devote reasonable best efforts to the
performance of the Services, subject to the provision of
appropriate and timely funding;
(c) it shall forewarn the Board of Directors of the Company if, at
any time, employing reasonable skill and foresight, Hastings
anticipates any problems as to performance, quality, cost, or
results of the exploration and development or as to any
societal or political or governmental problems which would
affect the Services, the Properties or the Company's interest
therein;
(d) it shall pro-actively perform all the terms, conditions, and
warranties and covenants of this Agreement with due diligence,
reasonable best efforts and due skill and attention to the
requirements of the Services; and
(e) it shall well and conscientiously serve the Company during the
continuation of this Agreement, and Hastings shall use its
best efforts to promote the interests of the Company.
5. HASTINGS INDEMNITY
5.1 Hastings agrees and warrants to indemnify and hold harmless the
Company, and its servants, agents, and affiliates, from any and all costs,
damages, expenses or losses, arising from any negligence, misconduct or default
in respect to any activity conducted by Hastings in the performance of the
Services.
6. TERM
6.1 Subject to the provisions hereof the term of this Agreement shall
commence on the date of this Agreement and continue for one (1) year.
6.2 Provided Hastings is not in default hereunder, this Agreement shall
automatically renew for a further one (1) year term, and shall successively
renew for further one (1) year terms, unless Hastings or the Company shall give
to the other party thirty (30) days notice of non-renewal in which case it shall
terminate.
6.3 This Agreement may be terminated by Hastings or the Company, without
cause, by giving ninety (90) days notice.
7. INDEPENDENT CONTRACTORS
7.1 Hastings, and any of its employees or agents, are not, and shall not be
construed to be, employees or agents of the Company but are, and at all times
shall remain, excepting only where specifically authorized in writing, an
independent contractor, who shall have no capacity to bind the Company or engage
or commit their liabilities or obligations unless specifically approved in
writing, and all engagements, contracts and undertakings to be engaged by
Hastings for the performance of the Services shall be engaged directly by
Hastings unless otherwise directed by the Board of Directors of the Company.
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8. CONFIDENTIALITY
8.1 Hastings shall maintain all maters involving the Properties and the
Services in confidence, except only insofar as shall be required to perform the
Services hereunder, or as may be permitted by the Board of Directors of the
Company in writing, or as may come into the public domain through public
communications. Hastings shall ensure that its employees and other personnel and
contractors and subcontractors, and such other persons with whom it may contract
or communicate, shall also maintain confidentiality in respect to the Properties
and the Services.
9. OWNERSHIP OF INFORMATION
9.1 Hastings agrees and warrants that all work, work product, information,
samples, drill cores, or any other matter in respect to the Properties or the
Services are and shall be solely the property of the Company and Hastings shall
have no claim or interest therein whatsoever.
10. TERMINATION
10.1 The Agreement may be terminated with cause on the occurrence of any of
the following events:
(a) if Hastings or the Company shall become bankrupt or insolvent
or make a general assignment for the benefit of its creditors;
(b) if Hastings or the Company shall be in default under any
material term of this Agreement;
(c) if the Company has failed to pay the Management Fee pursuant
to section 3 hereof;
(d) if Hastings shall commit an act of fraud or dishonesty or be
in dereliction of its duties; or
(e) if Hastings is unable or unwilling to perform the duties under
this Agreement.
10.2 The Company may terminate this Agreement with cause upon giving
Hastings thirty (30) days' notice and Hastings may terminate this Agreement with
cause by giving thirty (30) days' notice.
10.3 On termination of this Agreement, Hastings warrants that it shall
deliver to the Company all materials and information relating to the Properties
and the Services, including, but
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not limited to, all files, all agreements, all reports, all correspondence, all
maps, all working papers, all analytical work, all samples, and all drill cores
in its possession.
10.4 If the Board of Directors of the Company so requires, Hastings shall
also assign all specific facilities, including local offices and field camps,
and thereto shall assign all leases, contracts of service, rentals and other
such matters as such party or the Board of Directors of the Company may
determine, subject to lessors, et al., agreeing to such assignment, and Hastings
agrees to sell, at reasonable rates, all phone systems, furnishings, information
processing systems, rolling stock, inventory, equipment, and all other goods and
matters at such local office or field facilities as may be owned by Hastings,
excepting only where the local office or field facilities service more clients
than represented by this Agreement; in which case such sales and assignments
contemplated herein shall be discretionary on the part of Hastings.
11. EVENTS OF FORCE MAJEURE
11.1 If any party hereto is at any time prevented or delayed in complying
with any provisions of this Agreement by reason of strikes, walk-outs, labour
shortages, power shortages, fires, wars, civil disturbances, acts of God,
governmental regulations restricting normal operations, shipping delays or any
other reason or reasons beyond the control of such party (the "Delaying Party"),
then the time limited for the performance by such Delaying Party of its
obligations hereunder shall be extended by a period of time equal in length to
the period of each such prevention or delay.
11.2 Such Delaying Party shall within five (5) business days give notice to
the Company of each event of force majeure and shall furnish notice of the
nature of the event, together with particulars of the number of days by which
the obligations of such Delaying Party hereunder will be or have been extended
by virtue of such event of force majeure.
12. ARBITRATION
12.1 The parties hereto agree that all questions or matters in dispute with
respect to this Agreement shall be submitted to arbitration pursuant to the
terms hereof.
12.2 It shall be a condition precedent to the right of any party to submit
any matter to arbitration pursuant to the provisions hereof and that any party
intending to refer any matter to arbitration shall have given not less than
thirty (30) days' prior notice of its intention to do so to the other party
together with particulars of the matter in dispute. The parties shall employ
good faith and best efforts to attempt to negotiate a resolution to any dispute
during such notice period. On the expiration of such thirty (30) days, any party
may give notice to refer the dispute to arbitration as provided hereinafter.
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12.3 The party desiring arbitration shall, after the thirty (30) day notice
above, appoint one (1) arbitrator, and shall notify the other party of such
appointment, and the other party shall, within ten (10) days after receiving
such notice, appoint an arbitrator, and the two arbitrators so named, before
proceeding to act, shall, within ten (10) days of the appointment of the last
appointed arbitrator, unanimously agree on the appointment of a third
arbitrator, to act with them and be chairman of the arbitration herein provided
for. If the other party shall fail to appoint an arbitrator within ten (10) days
after receiving notice of the appointment of the first arbitrator, and if the
two arbitrators appointed by the parties shall be unable to agree on the
appointment of the third arbitrator, the third arbitrator shall be appointed
under the provisions of the COMMERCIAL ARBITRATION ACT of the Province of
British Columbia. Notwithstanding the foregoing, the parties may agree to have
the arbitration heard by a single arbitrator appointed by unanimous consent.
Except as specifically otherwise provided in this section, the arbitration
herein provided for shall be conducted in accordance with such COMMERCIAL
ARBITRATION ACT. The chairman, or in the case where only one arbitrator is
appointed, the single arbitrator, shall fix a time and place in Vancouver,
British Columbia, for the purpose of hearing the evidence and representations of
the parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for under such COMMERCIAL ARBITRATION ACT or
this section. After hearing any evidence and representations that the parties
may submit, the single arbitrator, or the arbitrators, as the case may be, shall
make an award and reduce the same to writing, and deliver one (1) copy thereof
to each of the parties. The expense of the arbitration shall be paid as
specified in the award.
12.4 The parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them.
12.5 In the event that arbitration was effected to determine the issue of a
default under this Agreement and if the arbitrator finds that a default has
occurred, then this Agreement shall terminate at the election of the
non-defaulting party, without prejudice to such party's right to enforce any
damages or other remedy awarded by the arbitrator.
13. NOTICE
13.1 Any notice, direction or instrument required or permitted to be given
hereunder shall be given in writing and be mailed, postage prepaid, or be
delivered by one party to the other, at the addresses first herein appearing.
Any notice, direction or any other instrument aforesaid if delivered shall be
deemed to have been given on the day on which it was delivered, or if mailed,
shall be deemed to have been given or made on the third business day following
the day on which it was mailed, provided that if there shall be a postal strike,
slow down or other labour dispute which may affect the delivery of such notice
through the mail between the time of mailing and the actual receipt of the
notice then such notice shall only be effective only if actually delivered. Any
party may, from time to time, give notice of any change of its respective
address and, in such event, the address of such party shall be deemed to be
changed accordingly.
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14. SEVERABILITY AND CONSTRUCTION
14.1 If any provision of this Agreement or any part thereof shall be found
or determined to be invalid it shall be severable from this Agreement and the
remainder of this Agreement shall be construed as if such invalid provision or
part has been deleted from this Agreement.
15. CONSENTS AND WAIVERS
15.1 No consent or waiver expressed or implied by either party in respect of
any breach or default by the other party in the performance of its obligations
hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach
or default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this section in any other or subsequent instance.
16. TIME OF THE ESSENCE
16.1 Time shall be of the essence in this Agreement.
17. ASSIGNMENT
17.1 This Agreement may only be assigned with the express written consent of
the parties.
18. SUCCESSORS AND ASSIGNS
18.1 This Agreement shall enure to the benefit of and be binding upon each
of the parties hereto and their respective successors and permitted assigns.
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19. APPROVALS
19.1 This Agreement is subject to the acceptance of the TSX Venture Exchange
or other appropriate regulatory authority.
20. FURTHER ASSURANCES
20.1 The parties hereto agree from time to time after the execution hereof
to make, do, execute or cause or permit to be made, done or executed all such
further and other lawful acts, deeds, things, devices and assurances in law
whatsoever as may be required to carry out the true intention and to giver full
force and effect to this Agreement.
21. ENTIRE AGREEMENT
21.1 This Agreement embodies the entire agreement and understanding between
the parties hereto and supersedes all prior agreements and undertakings, whether
oral or written, relative to the subject matter hereof.
22. APPLICABLE LAW
22.1 This Agreement and all matters arising thereunder shall be governed by
the laws of British Columbia and all disputes arising under this Agreement shall
be referred to a court of British Columbia.
23. COUNTERPARTS
23.1 This Agreement may be signed by the parties hereto in as many
counterparts as may be necessary, each of which so signed shall be deemed to be
an original, and such counterparts together shall constitute one and the same
instrument and notwithstanding the date of execution will be deemed to bear the
Execution Date as set forth on the front page of this Agreement. This Agreement
may be executed by facsimile and such facsimiles shall be deemed original
documents.
24. NO PARTNERSHIP OR AGENCY
24.1 The parties hereto have not created a partnership and nothing contained
in this Agreement shall in any manner whatsoever constitute any party the
partner, agent or legal representative of any other party, nor create any
fiduciary relationship between them for any purpose whatsoever. No party shall
have any authority to act for, or to assume any obligations or
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responsibility on behalf of, any other party except as may be, from time to
time, agreed upon in writing between the parties or as otherwise expressly
provided.
IN WITNESS WHEREOF the common seal of the Company and Hastings was
hereunto affixed in the presence of its proper officers as of the date first
above written.
The COMMON SEAL of )
HASTINGS MANAGEMENT CORP. )
was hereunto affixed in the )
presence of: )
)
By: /s/ Xxxxxxx X. Xxxxxx )
Authorized Signatory )
The COMMON SEAL of )
XXXXXX GOLD CORP. )
was hereunto affixed )
in the presence of: )
)
By: /s/ Xxxx X. Xxxxxxxx )
Authorized Signatory )
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