EXHIBIT 4.13
Option Agreement amended as of July 8, 2005, between
Bulakashu Mining Company Ltd., Xxxxxx Gold Corp., 0724000 BC Ltd.,
Baradero Resources Limited and Magellan Gold (BVI) Inc.
OPTION AGREEMENT
THIS AGREEMENT is made as of the 8th day of July, 2005
BETWEEN:
BULAKASHU MINING COMPANY LTD, a Kyrgyz limited liability
company with an address of 37, Baitik Baatyr St., Oktyabrskiy
district, Bishkek, 720005, Kyrgyz Republic
(hereinafter called "BMC")
OF THE FIRST PART
A N D:
MARSA GOLD CORP., a Kyrgyz limited liability company with an
address of Kyrgyz Republic, Bishkek, microregion 11, 6-46
(hereinafter called "Marsa")
OF THE SECOND PART
A N D:
CENTRASIA MINING CORP. (FORMERLY "MAGELLAN GOLD CORP."), a
British Columbia corporation with an address of 300 - 0000 X.
Xxxxxxxx Xx., Xxxxxxxxx, XX X0X 0X0, Xxxxxx
(hereinafter called "Centrasia")
OF THE THIRD PART
BARADERO RESOURCES LTD., a British Columbia corporation with
an address of 1305 - 0000 Xxxx Xxxxxxx Xx., Xxxxxxxxx, XX X0X
0X0, Xxxxxx
(hereinafter called "Baradero")
OF THE FOURTH PART
A N D:
MAGELLAN GOLD (BVI) INC., a British Virgin Islands corporation
with an address of c/o HWR Services Limited, Craigmuir
Xxxxxxxx, P.O. Box 71, Road Town, Tortola, British Virgin
Islands
(hereinafter called "Magellan Gold BVI")
OF THE FIFTH PART
-2-
RECITALS:
A. Marsa, Aitas Mining Company ("Aitas", a Kazakhstan corporation), BMC
and Centrasia are all of the parties to a Letter Agreement dated
September 24, 2004 (the "Original Agreement") pursuant to which
Centrasia was granted an option by Marsa and Aitas to acquire a 100%
interest in BMC from each of Marsa and Aitas, each as to a 50%
interest.
B. Marsa, Aitas, BMC and Centrasia are all of the parties to a Loan
Agreement dated September 24, 2004 (the "Loan Agreement") pursuant to
which Centrasia advanced US$110,000 (the "Loan") to BMC which is
further evidenced by a demand promissory note (the "Note") dated
September 24, 2004 in the original amount of US$110,000, made by BMC in
favour of Centrasia.
C. Aitas and Marsa guaranteed repayment of the Note pursuant to a written
Guarantee (the "Original Guarantee") dated September 24, 2004 and
secured their respective obligations under the Original Guarantee
pursuant to Pledge Agreements (the "Aitas Pledge" and the "Original
Pledge", respectively) dated September 24, 2004, pursuant to which
Aitas and Marsa pledged to Centrasia all of their respective interests
in BMC.
D. Pursuant to an Amending Agreement dated January 18, 2005, the
respective parties acknowledged that Aitas had recently withdrawn from
its membership interest in BMC and consequently Aitas was released from
its obligations under the Original Agreement, the Loan Agreement, the
Original Guarantee and the Aitas Pledge. Any reference to the Original
Agreement or the Loan Agreement hereunder is a reference to the
Original Agreement or the Loan Agreement as amended by the said
Amending Agreement.
E. Pursuant to a letter agreement dated March 17, 2005 between Baradero,
Centrasia and the shareholders of Centrasia (the "Pubco Agreement"),
the shareholders of Centrasia agreed to exchange all of their shares of
Centrasia for shares of Baradero, which is a publicly trading company
whose shares trade on the TSX Venture Exchange in Canada (ticker "BRH")
and on the Over The Counter Bulletin Board market in the United States
(ticker "BRHAF").
F. In anticipation of closing of the Pubco Agreement, Baradero has caused
two companies to be incorporated in the British Virgin Islands,
Magellan Holdings (BVI) Corp. ("Magellan Holdings BVI", which is a
direct wholly owned subsidiary of Baradero) and Magellan Gold BVI,
which is a direct wholly owned subsidiary of Magellan Holdings BVI.
-3-
G. It is anticipated that on closing of the transactions contemplated by
the Pubco Agreement, Baradero will change its name to "Centrasia Mining
Corp." and Centrasia will change its name as a consequence.
H. It is in order to replace the Original Guarantee and the Original
Pledge with a new guarantee and a new pledge agreement.
I. The Pubco Agreement requires that certain amendments be made to the
Original Agreement, and the parties hereto have agreed to replace the
Original Agreement with this Agreement as hereinafter provided.
NOW THEREFORE, for and in consideration of the premises, and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. The Recitals set forth above are acknowledged by all of the parties
hereto to be true and correct and are incorporated into this Agreement
by this reference.
2. (A) Marsa hereby agrees to execute a new guarantee (the "Marsa
Guarantee") to replace the Original Guarantee, which will provide
security for the repayment of the Loan and all present and future
indebtedness of BMC to Centrasia, including under this Agreement.
(B) Marsa hereby agrees to execute a new pledge agreement (the "Marsa
Pledge") to replace the Original Pledge, which will provide security
for the repayment of the Loan and all present and future indebtedness
of BMC to Centrasia, including under this Agreement.
3. On the dates set forth in Section 11 below and subject to the terms and
conditions of this Agreement, Marsa will cause the Charter of BMC (the
"BMC Charter") to be amended to provide that Centrasia shall have
acquired a participating interest in BMC free and clear from any and
all liens, charges or encumbrances whatsoever (hereinafter referred to
as a "Participating Interest").
4. Marsa acknowledges that immediately after the closing of the
transactions contemplated by the Pubco Agreement, all of Centrasia's
right, title and interest in this Agreement, the Loan Agreement, the
Marsa Guarantee and the Marsa Pledge shall be assigned to Magellan Gold
BVI and Marsa hereby consents to such assignment and agrees to execute
all collateral agreements and documents as may be necessary to effect
such assignment. Upon such assignment, Magellan Gold BVI shall assume
all of the rights, privileges, obligations and liabilities of Centrasia
under this Agreement, the Loan Agreement, the Marsa Guarantee and the
Marsa Pledge.
5. In addition to the Intercompany Loans to be made by Centrasia to BMC
(as defined in section 10), Centrasia must make share and cash payments
to Marsa to maintain its interest under this Agreement. Subject to the
closing of the transactions contemplated by the Pubco Agreement and in
consideration for the transfer to its subsidiary Magellan Gold BVI at
-4-
such closing of Centrasia's interest in this Agreement, the share
payments shall consist of 1,025,000 shares in the capital of Baradero
(the "Purchase Shares"), to be issued to Marsa on the dates and in the
amounts shown below unless, at least 10 days before each such date,
Marsa delivers a written direction to Baradero instructing Baradero to
issue the Purchase Shares to a nominee, in which event the Purchase
Shares will be issued to the named nominee.
The Purchase Shares will be issued as follows:
-----------------------------------------------------------------------
Date No. of Purchase Shares
-----------------------------------------------------------------------
On the date of closing of the Pubco Agreement 200,000 Shares
January 2, 2006 200,000 Shares
January 2, 2007 250,000 Shares
January 2, 2008 375,000 Shares
---------
Total: 1,025,000 Shares
=========
-----------------------------------------------------------------------
The cash payments shall be the aggregate sum of US$120,000 paid as
follows:
-----------------------------------------------------------------------
Date US$ to be Paid
-----------------------------------------------------------------------
January 2, 2005(which Marsa hereby acknowledges has been paid) $40,000
On or before the earlier of (i) five days after $40,000
the date of closing of the Pubco Agreement; or
(ii) September 1, 2005, and subject to the
amendment of the BMC Charter as provided in
section 13
On or before January 2, 2006 $40,000
-------
Total: $120,000
=======
-----------------------------------------------------------------------
6. (A) The Purchase Shares will be subject to a four month hold period
from the date they are issued in each case from any sale in applicable
jurisdictions in Canada or through the TSX Venture Exchange (the
"Exchange"), and certain of the Purchase Shares may be subject to
escrowing in accordance with the rules of the Exchange.
-5-
(B) The Purchase Shares have not been and will not be registered in the
United States SECURITIES ACT OF 1933 (the "1933 Act"), or under any
state securities or "blue sky" laws of any state of the United States,
and, unless so registered, may not be offered or sold in the United
States or to U.S. Persons (as such term is defined in Regulation S
under the SECURITIES ACT OF 1933, as amended, of the United States of
America) except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the 1933 Act. As such, the
Purchase Shares will be subject to a one year hold period from and
after the date they are issued in each case from sale in the United
States.
(C) Marsa will provide and execute all representations and collateral
agreements as are necessary to ensure that the issuance of the Purchase
Shares complies with the requirements of all applicable securities
legislation and the rules of the Exchange.
7. Baradero will issue the Purchase Shares from treasury as fully-paid and
non-assessable shares in the capital of Baradero, free and clear of all
liens, charges and encumbrances except as expressly provided for in
Section 6 above.
8. (1) BMC holds Exploration Licence No. AP-48 (the "Licence") issued
on March 28, 2005 by the State Agency for Geology and Mineral
Resources under the Government of the Kyrgyz Republic (the
"Geology Agency"). The Licence is an exploration licence that
permits BMC to explore for gold in the area described in a
Licence Agreement dated March 28, 2005 between BMC and the
Geology Agency (which area is hereinafter referred to as the
"Bulakashu Property"). For the purposes of this Agreement, the
"Closing Date" shall be deemed to refer to the date upon which
Centrasia has succeeded to a 100% Participating Interest in
BMC pursuant to sub-section 11(d), and an "Interim Closing
Date" refers to a date when a loan made by Centrasia is
converted into a Participating Interest pursuant to
sub-sections 11(a) to (c). From the date hereof until the
Closing Date (the "Pre-Closing Period"), BMC will:
(a) not sell or dispose of the Licence or any of its
other assets (collectively, hereinafter the
"Assets");
(b) preserve, protect and maintain the Assets;
(c) carry on its business as a natural resources
exploration and development company (the "Business")
in the ordinary course consistent with past practice
and in compliance with all applicable laws,
regulations and rules of all governmental
authorities;
(d) not suffer or permit any encumbrance to attach to or
affect any of the Assets;
(e) not enter into any transaction which could cause any
representation or warranty of BMC or Marsa contained
herein to be incorrect on the Closing Date or
constitute a breach of any covenant or agreement of
BMC or Marsa contained herein;
-6-
(f) give to Centrasia, Baradero and Magellan Gold BVI and
their respective counsel, accountants and other
representatives, full access, during normal business
hours throughout the Pre-Closing Period, to all of
BMC's books and records relating to its Business and
the Assets, and promptly furnish to Centrasia,
Baradero or Magellan Gold BVI during that period all
such information as may request by any such party;
(g) on or before each Interim Closing Date and the
Closing Date, obtain any and all required consents of
any third parties in respect of each conversion of a
loan made by Centrasia into a Participating Interest
referenced in sub-sections 11(a) through (d); and
(h) take or cause to be taken all corporate action,
including obtaining BMC participant approval if
necessary, to validly and effectively ratify the
execution and delivery of this Agreement and
authorize the closing of the transactions
contemplated hereby;
(2) Marsa as the sole participant of BMC will not make any changes
in the Business or Assets of BMC as permitted by Article 12.1
of the BMC Charter without the prior written consent of
Centrasia and Baradero.
9. (1) BMC and Marsa each acknowledge that the Loan and all present
and future indebtedness of BMC to Centrasia, including under
this Agreement, shall be secured by the Marsa Guarantee and
the Marsa Pledge, which shall be continuing obligations of
Marsa until the Closing Date.
(2) BMC and Marsa also hereby acknowledge that the Agreement
between BMC and Marsa on joint activity for the purpose of
carrying of the exploration works dated July 25, 2004 is
hereby terminated.
10. Subject to the terms and conditions of this Agreement, Centrasia will
commit to fund BMC's exploration program on the Bulakashu Property, by
way of intercompany loans including the Loan (collectively, the
"Intercompany Loans") to be advanced pursuant to mutually agreed upon
budgets from time to time, in the following total amounts during the
following periods:
Calendar Year 2005: Cdn$200,000(deemed to be equal to US$160,000
(at Cdn$1 = US$0.80),the "2005 Calendar
Year Loan")
Calendar Year 2006: US$690,000 (the "2006 Calendar Year Loan")
Calendar Year 2007: US$650,000 (the "2007 Calendar Year Loan")
Calendar Year 2008: US$750,000 (the "2008 Calendar Year Loan")
At such time as BMC has defined on the Bulakashu Property an indicated
reserve (as defined by JORC or CIM reserve standards) of not less than
300,000 ounces of gold, Centrasia will initiate a pre-feasibility study
as a possible pre-cursor to production. If Marsa desires to initiate a
pre-feasibility study of the Bulakashu Property it may do so at any
time, at its sole cost and expense.
-7-
11. The Intercompany Loans shall be converted to Participating Interests in the
following amounts at the following dates:
(a) At the end of calendar year 2005, the Loan and the 2005
Calendar Year Loan shall be converted to a Participating
Interest equal to 10.5% of the total Participating Interest in
BMC on December 31, 2005 and Marsa shall cause the BMC Charter
to be amended accordingly.
(b) At the end of calendar year 2006, the 2006 Calendar Year Loan
shall be converted to a Participating Interest equal to 27% of
the total Participating Interest in BMC on December 31, 2006,
increasing Centrasia's Participating Interest in BMC to 37.5%,
and Marsa shall cause the BMC Charter to be amended
accordingly.
(c) At the end of calendar year 2007, the 2007 Calendar Year Loan
shall be converted to a Participating Interest equal to 30% of
the total Participating Interest in BMC on December 31, 2007,
increasing Centrasia's Participating Interest in BMC to 67.5%,
and Marsa shall cause the BMC Charter to be amended
accordingly.
(d) At the end of calendar year 2008, the 2008 Calendar Year Loan
shall be converted to a Participating Interest equal to 32.5%
of the total Participating Interest in BMC on December 31,
2008, increasing Centrasia's Participating Interest in BMC to
100%, and Marsa shall cause the BMC Charter to be amended
accordingly and shall cease to be a participant in BMC.
The Intercompany Loans shall be converted to Participating Interests by
means of execution of agreements between Marsa Gold and Centrasia and
taking other necessary actions in accordance with applicable law.
12. If, during any of calendar years 2005, 2006, 2007 or 2008, Centrasia
fails to fund the respective Intercompany Loan for that year, or issue
the Purchase Shares as and when required pursuant to Section 5 above,
or commits any other material breach of this Agreement, Marsa' sole
remedy shall be the right to "put" back to Centrasia all or a portion
of the Purchase Shares that Marsa has received up to the date of the
put (the total number of such Purchase Shares received being referred
to as the "Total Purchase Shares" and the number of Purchase Shares
actually put to Centrasia being referred to as the "Put Shares") in
exchange for a pro-rata portion of the Participating Interests that
Centrasia has then received equal to the product of (X) divided by (Y)
multiplied by 100 and expressed as a percentage, where (X) is equal to
the number of Put Shares and (Y) is equal to the number of the Total
Purchase Shares. In such event, (i) the then outstanding balance of the
current Intercompany Loan shall be forgiven, (ii) Marsa shall be
entitled to keep whatever amounts Centrasia has already then paid to
them on account of the cash portion of the purchase price and (iii) the
parties shall thereafter be released from any further obligation
hereunder.
-8-
13. The parties agree to use their best efforts to prepare an amendment to
the BMC Charter to include provisions regarding Board of Directors. The
Board of Directors shall consist of three members, two of whom shall be
Centrasia nominees and the third shall be a nominee of Marsa. The BMC
Board shall be responsible for designing and implementing an
exploration program pursuant to the budget approved by BMC and
Centrasia during each calendar year as required by Section 10 above.
Once the amendment has been approved by all parties, Marsa and BMC
agree to take all necessary steps to bring the amendment to the BMC
Charter into effect at the earliest possible date, and in any event on
or before September 1, 2005.
14. Marsa and BMC do hereby jointly and severally represent and warrant to
Centrasia, Baradero and Magellan Gold BVI, with the intent that
Centrasia, Baradero and Magellan Gold BVI shall rely on such
representations and warranties in entering into this Agreement and in
closing the transactions contemplated hereby, that:
(a) Marsa and BMC are each corporations duly incorporated, validly
existing and in good standing under the laws of the Kyrgyz
Republic, and Marsa has the power and capacity to own and
dispose of the Participating Interests presently held by it;
(b) BMC has the power and corporate capacity to carry on its
Business;
(c) the Assets are all of the assets necessary or desirable to
carry on its Business;
(d) Marsa is the sole participant of BMC and owns all of the
right, title and interest in and to the entire Participating
Interest in BMC, and no person has any right to acquire any
Participating Interest in BMC from Marsa or otherwise;
(e) no person has any right to acquire any Participating Interest
of BMC from BMC, whether by exercise of options, conversion of
convertible securities or otherwise;
(f) BMC owns all of the right, title and interest in and to each
of the Assets, free and clear of all liens, charges, pledges,
security interests and encumbrances whatsoever;
(g) on each Interim Closing Date and on the Closing Date,
Centrasia will receive all right, title and interest in the
Participating Interests to which it is entitled on each such
respective date, free and clear of all liens, charges and
encumbrances;
(h) all of the licences, permits, approvals, consents,
certificates, registrations and authorizations as are
necessary or desirable in the ordinary course of the conduct
of its Business or otherwise for the use of the Assets have
been obtained, are in good standing and are not terminable on
the basis of the creation of Participating Interests in
Centrasia;
-9-
(i) all registrations or filings with any governmental offices,
domestic and foreign, as are necessary or advisable to
evidence or protect or preserve any of the Assets which are
necessary to or used in its Business (the "Rights") have been
made and the Rights are valid and enforceable;
(j) there is no legal action pending or threatened by any person
or entity relating to the Participating Interests, the Assets
or the Business and Marsa is not aware of any adverse claim
which has ever been, or is currently being, threatened against
the Participating Interests, the Assets or the Business or any
of them, nor is it aware of any claim by any person or entity
that any of the Rights is or may be invalid or unenforceable;
(k) BMC has not, in any manner whatsoever, granted, transferred,
licensed or assigned or permitted to be granted, transferred,
licensed or assigned any right or interest of any kind
whatsoever in the Assets to any person or entity and BMC has
not otherwise encumbered the Assets;
(l) no authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required or desirable in connection with the issuance
of creation of Participating Interests in Centrasia pursuant
to this Agreement, save and except for the necessary amendment
to the BMC Charter;
(m) no representation or warranty of BMC or Marsa in this
Agreement contains any untrue statement of a material fact;
(n) the representations and warranties of BMC and Marsa contained
in this Agreement do not omit to state any material fact
necessary to make any of them not misleading to a prospective
purchaser of BMC seeking full, true and plain disclosure as to
BMC;
(o) the execution and delivery of this Agreement and the
completion of the transactions contemplated by this Agreement
have been duly and validly authorized by all necessary
corporate action on the part of each of BMC and Marsa, and
this Agreement constitutes a legal, valid and binding
obligation of each of BMC and Marsa enforceable against each
such party in accordance with its terms;
(p) there will be no change made to the General Director of BMC
until such time as the BMC Charter is amended to provide for a
Board of Directors as set out in section 13;
(q) the BMC Charter complies with all applicable Kyrgyz laws; and
(r) neither the execution and delivery of this Agreement, nor the
completion of the purchase and sale contemplated by this
Agreement will:
-10-
(i) violate any of the terms and provisions of the
constating documents or bylaws or articles of Marsa
or BMC, or any order, decree, statute, by-law,
regulation, covenant or restriction applicable to
Marsa, BMC or any of the Assets;
(ii) give any person the right to terminate, suspend the
operation of, cancel or remove any of the Assets; or
(iii) result in any fees, duties, taxes, assessments or
other amounts relating to the Participating Interests
or any of the Assets becoming due or payable.
15. Each of BMC and Marsa will indemnify and hold each of Centrasia,
Baradero and Magellan Gold BVI harmless from and against:
(a) any and all liabilities, whether accrued, absolute, contingent
or otherwise, existing at the Closing Date and each Interim
Closing Date in connection with the respective Participating
Interests to be acquired by Centrasia;
(b) any and all damages or deficiencies resulting from any
misrepresentation, breach of warranty or non-fulfilment of any
covenant on the part of Marsa or BMC under this Agreement or
from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished to Centrasia,
Baradero or Magellan Gold BVI under this Agreement; and
(c) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any
of the foregoing.
16. Centrasia, Baradero and Magellan Gold BVI jointly and severally
represent and warrant to Marsa and BMC, with the intent that each of
Marsa and BMC shall rely on these representations and warranties in
entering into this Agreement and in concluding the transactions
contemplated hereby, that:
(a) Each of Centrasia, Baradero and Magellan Gold BVI is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation,
has the power and capacity to enter into this Agreement and
carry out its terms;
(b) Centrasia is currently authorized to issue 10,000,000 common
shares, each with a par value of US$0.001, and 10,000,000
preferred shares, each with a par value of US$0.001. As at the
date of this Agreement Centrasia has issued and outstanding a
total of 3,700,100 common shares and no preferred shares, all
of which are validly issued and outstanding as fully paid and
non-assessable shares;
(c) the execution and delivery of this Agreement and the
completion of the transactions contemplated by this Agreement
have been duly and validly authorized by all necessary
corporate action on the part of each of Centrasia, Baradero
and Magellan Gold BVI and this Agreement constitutes a legal,
valid and binding obligation of each such party enforceable
against each such party in accordance with its terms; and
-11-
(d) the Purchase Shares, when issued, will be issued as fully paid
and non-assessable shares free and clear of all liens,
charges, claims or encumbrances, except as expressly provided
for in Section 6 of this Agreement.
17. All representations, warranties, covenants and agreements made by a
party in this Agreement shall, unless otherwise expressly stated,
survive the execution of this Agreement, each Interim Closing Date and
the Closing Date.
18. The obligation of each of Centrasia, Baradero and Magellan Gold BVI to
close the transactions contemplated by this Agreement, including the
obligation to deliver the Purchase Shares, is subject to the fulfilment
by Marsa and BMC to the satisfaction of each of Centrasia, Baradero and
Magellan Gold BVI on or before the Closing Date and each Interim
Closing Date, of the following conditions:
(a) that the representations and warranties of Marsa and BMC
contained in this Agreement and in any certificate or document
delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be true at and as of
the Closing Date and each Interim Closing Date as if such
representations and warranties were made at and as of such
time;
(b) that BMC shall not then be in default of the terms of the Loan
Agreement;
(c) that there shall be no legal or administrative restriction
preventing BMC from amending the BMC Charter, and BMC shall
have amended the BMC Charter to include provisions regarding a
Board of Directors, as provided in section 13 above;
(d) that Marsa and BMC shall have performed and complied with all
of the agreements, covenants and conditions required by this
Agreement to be performed or complied with by it on or before
the Closing Date and each Interim Closing Date;
(e) that between the date of this Agreement and the Closing Date
and each Interim Closing Date, no change, event, or
circumstance has occurred which materially adversely affects
the Assets;
(f) that between the date of this Agreement and the Closing Date
and each Interim Closing Date, there has not been any
substantial loss, damage, or destruction, whether or not
-12-
covered by insurance, to any of the Assets; and (g) that no
legal or regulatory action or proceeding shall be pending or
threatened on the Closing Date and each Interim Closing Date
by any person to enjoin, restrict or prohibit the purchase and
sale of the Participating Interests.
The foregoing conditions are for the exclusive benefit of each of
Centrasia, Baradero and Magellan Gold BVI and any such condition may be
waived in whole or in part by each such party at or before the Closing
Date by delivering to Marsa and BMC a written waiver to that effect
signed by the respective party.
19. On the Closing Date and each Interim Closing Date, Marsa shall deliver
or cause to be delivered to Centrasia:
(a) such bills of sale, transfer documents, assignments, in form
and content satisfactory to Centrasia, as are appropriate to
effectively vest good and marketable title to the applicable
Participating Interest in Centrasia to the extent contemplated
by this Agreement;
(b) any consents or approvals required to be obtained by Marsa for
the purpose of validly creating the applicable Participating
Interests to Centrasia;
(c) a certificate of each of Marsa and BMC dated as of the Closing
Date and each Interim Closing Date, acceptable in form and
content to Centrasia, Baradero and Magellan Gold BVI,
certifying that:
(i) the Directors of each of the respective party have
passed resolutions duly authorizing the execution and
delivery of this Agreement and the completion of the
transactions contemplated hereby; and
(ii) the respective party's representations and warranties
contained in this Agreement are true as of the
Closing Date and each Interim Closing Date;
(d) the legal opinion of the solicitors for Marsa and BMC, in form
and content satisfactory to Centrasia, to the effect that all
necessary steps and corporate proceedings have been taken by
Marsa and BMC to permit the registration of the applicable
Participating Interests as contemplated hereby, that this
Agreement and all documents and instruments delivered pursuant
hereto have been duly and validly authorized, executed, and
delivered by Marsa and BMC and will constitute valid and
legally binding obligations of Marsa and BMC, and
(e) all such other documents and instruments as Centrasia,
Baradero or Magellan Gold BVI may reasonably require.
-13-
20. Marsa and BMC agree that they will cooperate with Centrasia, Baradero
and Magellan Gold BVI in preparing financial statements of BMC for the
most recent calendar years prior to the closing of the Pubco Agreement,
prepared and audited in accordance with Canadian GAAP and GAAS and
otherwise meeting the requirements of the Exchange, the British
Columbia Securities Commission, and, to the extend applicable, the
United States Securities and Exchange Commission, together with
unaudited reviewed financial statements prepared in accordance with
Canadian GAAP for any interim periods following the most recent fiscal
year end.
21. Any notice required or permitted to be given under this Agreement will
be in writing and may be given by hand delivering, sending by
electronic facsimile transmission or other means of electronic
communication capable of producing a printed copy, or sending by
overnight courier, the notice to the address of the party set out above
and in the case of:
(a) Centrasia, Baradero or Magellan Gold BVI, with a copy to:
Axium Law Group
X.X. Xxx 00000
1055 Dunsmuir St. #3350, Bentall 4
Xxxxxxxxx, XX X0X 0X0 XXXXXX
Attention: Xxxxxxx C Varabioff
Fax: 000- 000-0000
and to:
Xxxxxx, Xxxxxxx
XX Xxx 00000, Xxxxxxx Xxxxxx
Xxxxx 0000, 000 Xxxx Xxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0 XXXXXX
Attention: Xx. Xxxxx X. Xxxxxx
Fax: 000-000-0000
(b) Marsa, with a copy to:
c/o Bulakashu Mining Company LTD
Xxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxxx Xxxxxxx 00
Facsimile No.: (996) (312) 55-94-34
(or to such other address or number as any party may specify by notice
in writing to another party). Any notice delivered or sent by
electronic facsimile transmission or other means of electronic
communication capable of producing a printed copy on a business day
will be deemed conclusively to have been effectively given on the day
the notice was delivered, or the transmission was sent successfully to
the number set out above, as the case may be. Any notice sent by
overnight courier will be deemed conclusively to have been effectively
given on the next business day after depositing with the courier.
-14-
22. If under this Agreement or any document delivered under this Agreement,
either of Marsa or BMC become obligated to pay any sum of money to
Centrasia, then such sum may at the election of Centrasia, and without
limiting or waiving any right or remedy for Centrasia under this
Agreement, be set-off against and shall apply to any sum of money or
security owed by Centrasia to Marsa or BMC until such amount has been
completely set-off. This covenant shall survive the Closing.
23. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter herein and in particular supersedes
and replaces the Original Agreement.
24. Delivery of an executed copy of this Agreement by electronic facsimile
transmission or other means of electronic communication capable of
producing a printed copy will be deemed to be execution and delivery of
this Agreement as of the date set forth on page one of this Agreement.
25. Unless otherwise provided, all dollar amounts referred to in this
Agreement are in lawful money of the United States. 26. This Agreement
will enure to the benefit of and be binding upon the parties and their
respective administrators, successors,
and assigns.
27. Wherever there is any conflict between any provision of this Agreement
and any present or future statute, law, ordinance, or regulation
against which the parties have no legal right to contract, the latter
will prevail; but in such event the provision of this Agreement thus
affected will be curtailed and limited only to the extent necessary to
bring it within the requirements of the law. If any term, provision,
covenant, or condition of this Agreement or the application thereof to
any person or circumstance will, at any time or to any extent, be
invalid, illegal, voidable, or unenforceable, then the remainder of
this Agreement or the application thereof to persons or circumstances
other than those as to whom it is held invalid, illegal, voidable, or
unenforceable will not be affected thereby, and each term, provision,
covenants, and condition of this Agreement will be and remain valid and
enforceable to the fullest extent permitted by law. If any tribunal or
Court of competent jurisdiction deems any provision hereof (other than
for the payment of money) unreasonable, then the said tribunal or Court
may declare a reasonable modification hereof, and this Agreement will
be valid and enforceable, and the parties hereto will be bound by and
perform the same, as so modified.
28. When the context hereof makes it possible, the word "person" appearing
in this Agreement includes in its meaning any firm and any body
corporate or politic.
29. This Agreement will be governed by and construed in accordance with the
law of British Columbia. All disputes arising out of or in connection
with this Agreement, or in respect of any defined legal relationship
associated therewith or derived therefrom, shall be referred to and
finally resolved by arbitration in the English language using a sole
arbitrator under the rules of the British Columbia International
Commercial Arbitration Centre. The appointing authority or tribunal
shall be the British Columbia International Commercial Arbitration
Centre. The case shall be administered by the British Columbia
International Commercial Arbitration Centre in accordance with its
Rules. The place of arbitration shall be Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx.
-15-
30. This Agreement may be executed in several counterparts, each of which
will be deemed to be an original and all of which will together
constitute one and the same instrument.
31. Delivery of an executed copy of this Agreement by electronic facsimile
transmission or other means of electronic communication capable of
producing a printed copy will be deemed to be execution and delivery of
this Agreement as of the date of this Agreement.
32. There are no representations, warranties, collateral agreements, or
conditions between the parties hereto except as specified in this
Agreement, the Loan Agreement, the Marsa Guarantee and the Marsa
Pledge.
33. The parties will execute and deliver all such further documents, do or
cause to be done all such further acts and things, and give all such
further assurances as may be necessary to give full effect to the
provisions and intent of this Agreement.
34. Time is of the essence of this Agreement.
35. Notwithstanding any other provision herein, the obligations of Baradero
and Magellan Gold BVI under this Agreement are subject to completion of
the transactions contemplated by the Pubco Agreement (as amended or
replaced from time to time). If these transactions are not completed on
or before September 30, 2005, then this Agreement shall be null and
void so far as Baradero and Magellan Gold BVI are concerned and neither
of those parties shall have any obligations hereunder. This section
does not relieve Centrasia from its obligation to pay US$40,000 to
Marsa no later than September 1, 2005 pursuant to section 5 above.
36. This Agreement is subject to its acceptance for filing by the Exchange.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day
and year first above written.
BULAKASHU MINING COMPANY LTD
Per: /s/ Xxxx Xxx
----------------------------
Authorized Signatory
MARSA GOLD CORP.
Per: /s/ Xxxxxxx Vedeshkin-Ryabov
----------------------------
Authorized Signatory
-16-
CENTRASIA MINING CORP.
Per: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Authorized Signatory
BARADERO RESOURCES LTD
Per: /s/ Xxxx XxXxxx
----------------------------
Authorized Signatory
MAGELLAN GOLD (BVI) INC.
Per: /s/ Xxxx XxXxxx
----------------------------
Authorized Signatory
