EXHIBIT 4.114
XXXXX/XXXXXXXX PROPERTY - ONTARIO
This Agreement is dated for reference the 18th day of May, 2006.
BETWEEN:
XXXXX XXXXXXX ("GERVAIS") (AS TO 98.9%)
Xxx 00
Xxxxxxx, Xxxxxxx X0X 0X0
Tel: 000.000.0000
AND:
XXXXXX XXXX ("GULL') (AS TO 1.1%)
Xxx 0000
Xxxxxxxxx, Xxxxxxx X0X 0X0
Tel: 000.000.0000
COLLECTIVELY OF THE FIRST PART
(Gull and Gervais hereinafter collectively referred to as the
"Optionor") AND:
XXXXXX GOLD CORP.
711 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(the above hereinafter referred to as the "Optionee")
OF THE SECOND PART
WHEREAS the Optionor is the recorded and beneficial owner of certain mining
claims situated in Xxxxx, Xxxxxxxx and Xxxxxxxx Townships, Ontario more
particularly described in Schedule "A" attached hereto (the "Property");
AND WHEREAS the Optionor desires to grant and the Optionee is desirous of
obtaining an option to acquire a 100% undivided interest in and to the Property
upon terms and subject to the conditions herein contained.
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements herein contained, the parties agree as follows:
1. OPTION ONLY
This is an option only and except as specifically provided otherwise, nothing
herein contained shall be construed as obligating the Optionee to do any acts or
make any payments hereunder and any act or acts, or payment or payments as shall
be made hereunder shall not be construed as obligating the Optionee to do any
further act or make any further payment. If the Option is terminated before the
Option is exercised, the Optionee shall not be bound thereafter in debt, damages
or otherwise under this Agreement, except in respect of obligations arising
prior to such termination or otherwise provided for in this Agreement, and all
payments theretofore paid by the Optionee shall be retained by the Optionor for
its own use absolutely.
2. TERMS OF THE OPTION
In order to maintain the Option in good standing and earn a 100% right, title
and undivided interest in and to the Property, the Optionee, subject to
paragraph 1, shall:
(a) pay to the Optionor a further $25,000 within 10 days of
regulatory approval;
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(b) pay to the Optionor a further $25,000 on or before the date
which is 6 months from the date of regulatory approval;
(c) pay to the Optionor a further $25,000 on or before the date
which is 12 months from the date of regulatory approval;
(d) pay to the Optionor a further $25,000 on or before the date
which is 18 months from the date of regulatory approval;
(e) pay to the Optionor a further $25,000 on or before the date
which is 24 months from the date of regulatory approval;
(f) pay to the Optionor a further $25,000 on or before the date
which is 30 months from the date of regulatory approval;
(g) pay to the Optionor a further $25,000 on or before the date
which is 36 months from the date of regulatory approval;
(h) pay to the Optionor a further $25,000 on or before the date
which is 42 months from the date of regulatory approval;
(i) pay to the Optionor a further $25,000 on or before the date
which is 48 months from the date of regulatory approval;
(j) pay to the Optionor a further $25,000 on or before the date
which is 54 months from the date of regulatory approval;
(k) pay to the Optionor a further $50,000 on or before the date
which is 60 months from the date of regulatory approval;
(l) issue to the Optionor 100,000 common shares upon receipt of
regulatory approval;
(m) issue to the Optionor a further 100,000 common shares on or
before the date which is 12 months from the date of regulatory
approval;
(n) issue to the Optionor a further 100,000 common shares on or
before the date which is 24 months from the date of regulatory
approval;
(o) issue to the Optionor a further 100,000 common shares on or
before the date which is 36 months from the date of regulatory
approval;
(p) issue to the Optionor a further 100,000 common shares on or
before the date which is 48 months from the date of regulatory
approval;
(q) issue to the Optionor a further 100,000 common shares on or
before the date which is 60 months from the date of regulatory
approval;
(r) incur a minimum of $25,000 in exploration expenses on the
Property on or before the date which is 12 months from the
date of regulatory approval;
(s) incur at least an aggregate of $50,000 in exploration expenses
on the Property on or before the date which is 24 months from
the date of regulatory approval;
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(t) incur at least an aggregate of $75,000 in exploration expenses
on the Property on or before the date which is 36 months from
the date of regulatory approval;
(u) incur at least an aggregate of $100,000 in exploration
expenses on the Property on or before the date which is 48
months from the date of regulatory approval; and
(v) incur at least an aggregate of $150,000 in exploration
expenses on the Property on or before the date which is 60
months from the date of regulatory approval.
For the purposes of this Agreement, "exploration expenses" means all costs,
expenses and charges of whatsoever kind or nature incurred by the Optionee in
connection with the exploration, development and maintenance of the Property,
determined in accordance with Canadian generally accepted accounting practices.
3. EXERCISE OF THE OPTION
If the Optionee has paid $300,000 to the Optionor, issued 600,000 common shares
to the Optionor and incurred at least an aggregate of $150,000 in exploration
expenses on the Property, the Optionee shall be deemed to have exercised the
Option and will have acquired an undivided 100% right, title and interest in and
to the Property, subject to the Royalty Interest.
4. ROYALTY INTEREST
The Optionor shall be entitled to receive and the Optionee shall pay to the
Optionor a royalty equal to 3% of the net smelter returns (the "Royalty
Interest") calculated and payable from the Property in accordance with the
provisions of Schedule "B" attached hereto.
The Optionee may at any time purchase the first one-third of the Royalty
Interest from the Optionor for $1,000,000 and may at any time purchase another
one-third of the Royalty Interest from the Optionor for $1,000,000, thereby
leaving the Optionor with a 1% Royalty Interest.
The Optionee shall issue to Gervais 100,000 common shares of the Optionee after
the completion of a positive feasibility study.
The Optionee agrees to pay to Gervais Advance Royalty payments in the amount of
$12,500 commencing on the date which is 66 months from the date of regulatory
approval and payable every six months thereafter.
Such Advance Royalty payments will continue until such time as the Optionee has
commenced commercial production on the Property, at which time the Advance
Royalty payments will cease. Any Advance Royalty payments shall be deducted from
any Royalty Interest payments contemplated by this section should commercial
production commence. If the Optionee exercises its Option and subsequently
allows the claims comprising the Property to lapse, the Optionee will be under
no further obligation to make any Advance Royalty Interest payments.
5. OPERATOR
The Optionee shall be the operator for purposes of developing and executing
exploration programs.
6. RIGHT OF ENTRY
During the currency of the Option the Optionee and its employees, agents and any
person duly authorized by the Optionee shall have the sole and exclusive right,
so long as it is operator, to:
(a) enter in, under and upon the Property;
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(b) have exclusive and quiet possession thereof subject to the
rights of the Optionor hereunder;
(c) do such prospecting, exploration, development or other mining
work thereon and thereunder as the Optionee in its sole
discretion may consider advisable;
(d) bring upon and erect upon the Property such mining facilities
as the Optionee may consider advisable; and
(e) remove from the Property and dispose of reasonable quantities
of ores, minerals and metals for the purposes of sampling,
obtaining assays or making other tests.
7. NOTICE OF DEFAULT AND TERMINATION BY OPTIONOR
If the Optionee should be in default in making any payments or performing any
other of its obligations hereunder, the Optionor may give written notice to the
Optionee specifying the default. The Optionee shall not lose any rights granted
under this Agreement so long as, within thirty (30) days after the giving of
such notice of default by the Optionor, the Optionee shall cure the specified
default. If the Optionee fails to cure the default within the thirty (30) day
period, the Optionor shall be entitled thereafter to terminate this Agreement by
giving written notice of termination to the Optionee. Upon termination of this
Agreement by the Optionor the provisions of paragraph 13 shall apply.
8. NO PRODUCTION OBLIGATION
The Optionee shall be under no obligation whatsoever to place the Property into
production.
9. EXCLUSION OF PROPERTY
The Optionee shall have the right at any time and from time to time to elect to
exclude from this Agreement any portion of the Property by not less than 30 days
prior written notice to the Optionor of this election; provided that any portion
of the Property so excluded shall be in good standing for a period of a minimum
of six months free and clear of all liens, charges and encumbrances, and
provided further that the Optionee, if requested by the Optionor in writing,
shall deliver to the Optionor recorded transfers of any mineral claims and other
property interests which are included in the portion of the Property so excluded
in favour of the Optionor.
10. COVENANTS OF THE OPTIONEE
During the currency of this Agreement, the Optionee shall:
(a) ensure the Property is in good standing by ensuring all the
filing of assessment work conducted on the Property is
completed or by making payments in lieu thereof, and by doing
all other acts and things and making all other payments which
may be necessary in that regard;
(b) make available to the Optionor and its representatives all
records and files relating to the Property in its possession
and permit the Optionor and its representatives to take
abstracts therefrom and make copies thereof;
(c) permit the Optionor, or its representative, duly authorized by
it in writing, at its own risk and expense, access to the
Property at all reasonable times and to all records prepared
by the Optionee in connection with work done or with respect
to the Property;
(d) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionor hereunder; and
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(e) ensure all work on or with respect to the Property is done in
a careful and workmanlike manner and in compliance with the
applicable laws of the jurisdiction in which the Property is
located.
11. COVENANTS OF THE OPTIONOR
During the currency of this Agreement, the Optionor covenants and agrees with
the Optionee to:
(a) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionee hereunder;
(b) perform sufficient work on the Property to maintain it in good
standing for each year this Agreement remains in good
standing;
(c) make available to the Optionee and its representatives all
records and files relating to the Property in its possession
and permit the Optionee and its representatives to take
abstracts therefrom and make copies thereof;
(d) co-operate with the Optionee in obtaining any water
appropriation license, and any surface and other rights on or
related to the Property, the Optionee deems desirable;
(e) promptly provide the Optionee with any and all notices and
correspondence from government agencies in respect of the
Property; and
(f) promptly make all necessary filings on the Property either as
determined by the Optionor or as directed by the Optionee.
12. REPRESENTATIONS AND WARRANTIES OF THE OPTIONOR
The Optionor hereby represents and warrants to the Optionee that:
(a) the Optionor is the legal and beneficial owner of the
Property;
(b) the Property consists of those mineral claims more
particularly described in Schedule "A" attached hereto, and
that such claims were located and recorded in accordance with
the applicable laws of Ontario and are valid and subsisting as
of the date of execution and delivery of this Agreement;
(c) the Property is in good standing, free and clear of all liens,
charges and encumbrances;
(d) file all work done on the Property with the Ontario Ministry
of Development of Mines in accordance with applicable
legislation;
(e) there are no pending or threatened actions, suits, claims or
proceedings regarding the Property; and
(f) the Optionor has the exclusive right and authority to enter
into this Agreement and to dispose of the Property in
accordance with the terms hereof, and that no other person,
firm or corporation has any proprietary or other interest in
the same.
The representations and warranties of the Optionor herein before set out, form a
part of this Agreement and are conditions upon which the Optionee has relied on
in entering into this Agreement and shall survive the exercise of the Option by
the Optionee. The Optionor shall indemnify and save the Optionee harmless from
all loss, damage, costs, actions and suits arising out of or in connection with
any breach of any representation, warranty, covenant, agreement or condition
contained in this Agreement. The Optionor acknowledges and agrees that the
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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.
13. TERMINATION PRIOR TO ACQUISITION OF INTEREST
If the Option is terminated, or if this Agreement is terminated prior to the
exercise of the Option by the Optionee, the Optionee shall return to the
Optionor forthwith exclusive and quiet possession of the Property, in good
standing for a period of a minimum of one year free and clear of all liens,
charges and encumbrances.
14. ADDITIONAL TERMINATION
In addition to any other termination provisions contained in this Agreement, the
Optionee shall at any time have the right to terminate its rights and future
obligations under this Agreement by giving notice in writing of such termination
to the Optionor, and in the event of such termination, the Optionee shall not
earn any interest in the Property, and this Agreement, save and except for the
provisions of paragraphs 13 hereof, shall be of no further force and effect.
15. FORCE MAJEURE
If the Optionee is prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, lockouts, labour shortages, power shortages,
fires, wars, acts of God, governmental regulations restricting normal operations
or any other reason or reasons beyond the control of the Optionee, the time
limited for the performance of the various provisions of this Agreement as set
out above shall be extended by a period of time equal in length to the period of
such prevention and delay. The Optionee, insofar as is possible, shall promptly
give written notice to the Optionor of the particulars of the reasons for any
prevention or delay under this paragraph, and shall take all reasonable steps to
remove the cause of such prevention or delay and shall give written notice to
the Optionor as soon as such cause ceases to subsist.
16. NOTICE
Any notice required to be given under this Agreement shall be deemed to be well
and sufficiently given if delivered or if mailed by registered mail in Canada,
(save and except during the period of any interruption in the normal postal
service within Canada) or sent by facsimile transfer to either party at the
addresses first set out above and any notice given as aforesaid shall be deemed
to have been given, if delivered or sent by facsimile transfer, when delivered
or faxed, or if by mail, on the third business day after the date sent by mail .
Either party may from time to time by notice in writing change its address for
the purpose of this paragraph.
17. FURTHER ASSURANCES
The parties hereto agree to execute all such further or other assurances and
documents and to do or cause to be done all acts necessary to implement and
carry into effect the provisions and intent of this Agreement.
18. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
19. TITLES
The titles to the respective paragraphs hereof shall not be deemed to form part
of this Agreement but shall be regarded as having been used for convenience of
reference only.
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20. SCHEDULES
The Schedules to this Agreement shall be construed with and as an integral part
of this Agreement to the same extent as if they were contained in the body
hereof.
21. VOID OR INVALID PROVISION
If any term, provision, covenant or condition of this Agreement, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all provisions, covenants and conditions of this
Agreement, and all applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and in no way be affected, impaired or
invalidated thereby.
22. SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors, assigns, heirs, executors or
administrators as the case may be.
23. APPROVALS
The Optionee and the Optionor hereby acknowledge that this Agreement shall be
subject to all necessary regulatory approvals.
24. ARBITRATION
If any question, difference or dispute shall arise between the parties or any of
them in respect of any matter arising under or in connection with the subject
matter of this Agreement, or in relation to the construction hereof, the same
shall be determined by the award of a single arbitrator under the Commercial
Arbitration Act of the Province of Ontario, and the decision of the arbitrator
shall in all respects be conclusive and binding upon all the parties.
25. AFTER-ACQUIRED PROPERTY
The area which is included within five kilometres 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 any mineral claim staked by or on behalf of
the Optionee 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.
26. ASSIGNMENT
This Agreement and any agreement contemplated hereby may not be assigned by the
Optionee without the written consent of the Optionor, such consent not to be
unreasonably withheld.
27. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario.
28. PRIOR AGREEMENTS
This Agreement contains the entire agreement between the parties in respect of
the Property and supersedes all prior agreements between the parties hereto with
respect to the Property, which said prior agreements shall be deemed to be null
and void upon the execution hereof.
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29. EXECUTION IN COUNTERPARTS AND DELIVERY
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document and may be delivered by
facsimile or other means of electronic communication producing a printed copy.
IN WITNESS WHEREOF the parties hereto have executed these presents as of the day
and year first above written.
SIGNED, SEALED and DELIVERED by )
XXXXX XXXXXXX in the presence of: )
BY: /S/ XXXX XXXXXXX ) BY: /S/ XXXXX XXXXXXX
------------------------------------ ---------------------------
Name ) XXXXX XXXXXXX
000 XXXXXX XXX., XXXXXXX, XX )
------------------------------------
Address )
VALUATION REVEEN SPECIALIST )
------------------------------------
Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXX XXXX in the presence of: )
) ---------------------------
Name ) XXXXXX XXXX
)
Address )
)
------------------------------------
Occupation )
The COMMON SEAL of )
XXXXXX GOLD CORP. )
was hereunto affixed in the presence of: )
)
BY: /S/ XXXXXXX X. XXXXXX )
------------------------------------
Authorized Signatory )
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SCHEDULE "A"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 18TH DAY OF MAY, 2006
BETWEEN XXXXX XXXXXXX, XXXXXX XXXX AND XXXXXX GOLD CORP.
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PROPERTY
The Property consists of he following claim numbers, township, number of units
and due date for the Property:
CLAIM NUMBER TOWNSHIP NUMBER OF UNITS DUE DATE
------------ -------- --------------- --------
4207656 Xxxxxxxx 14 December 19, 2007
3006969 Xxxxxxxx 2 November 18, 2006
3016392 Loveland 16 August 25, 2006
3016389 Loveland 16 September 2, 2006
3016395 Loveland 16 September 29, 2006
3015369 Loveland 3 August 17, 2006
3005414 Xxxxx 1 July 2, 2007
3005415 Xxxxx 1 July 2, 2007
3005416 Xxxxx 1 July 2, 2007
3012023 Xxxxx 2 April 7, 2007
3012024 Xxxxx 1 April 7, 2007
4202912 Xxxxx 3 April 29, 2007
4209318 Xxxxx 7 April 18, 2008
3007079 Xxxxx 16 October 18, 2006
4207649 Xxxxx 9 December 6, 2007
4207653 Xxxxx 9 December 6, 2007
4207657 Xxxxx 11 December 21, 2007
4201796 Xxxxx 8 December 21, 2007
4207658 Xxxxx 8 December 21, 2007
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SCHEDULE "B"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 18TH DAY OF MAY, 2006
BETWEEN XXXXX XXXXXXX, XXXXXX XXXX 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 Gervais 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 on 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 Gervais shall be made forthwith;
(b) a copy of the audited statements shall be delivered to the
Optionor;
(c) Gervais shall have sixty (60) days after receipt of such
statements to question their accuracy in writing and failing
such objection the statements shall be deemed correct; and
(d) Gervais or its 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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