EXHIBIT 4.99
XXXXX PROPERTY - ONTARIO
This Agreement is dated for reference the 22nd day of August, 2005.
BETWEEN:
FILO EXPLORATION SERVICES LIMITED (AS TO 50%)
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXX X. XXXXX (AS TO 50%)
X.X. Xxx 0000
Xxxxx Xxxxxxxxx, Xxxxxxx X0X 0X0
(the above hereinafter collectively referred to as the
"Optionor")
OF THE FIRST PART
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 Township, 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 $5,000 upon regulatory approval;
(b) issue to the Optionor 25,000 common shares of the Optionee on
or before the fifth business day following regulatory
approval;
(c) issue to the Optionor a further 25,000 common shares of the
Optionee on the date which is 12 months following the date of
regulatory approval
(d) issue to the Optionor a further 25,000 common shares of the
Optionee on the date which is 24 months following the date of
regulatory approval;
(e) issue to the Optionor a further 25,000 common shares of the
Optionee on the date which is 36 months following the date of
regulatory approval; and
(f) incur exploration expenditures on the Property in the amount
of $20,000 on or before December 31, 2005.
3. EXERCISE OF THE OPTION
If the Optionee has paid $5,000 to the Optionor and issued 100,000 common shares
to the Optionor, 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 a 1% royalty from production (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 half of the Royalty Interest from the
Optionor for $500,000 thereby leaving the Optionor with a 0.5% Royalty Interest.
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;
(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
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lose any rights granted under this Agreement so long as, within sixty (60) 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
sixty (60) day period, this Agreement shall terminate. 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 60 days
prior written notice to the Optionor 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 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) will provide copies of 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 within 30 days of returning a Property;
(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
(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 and indemnify and save the Optionor harmless from any
and all loss, damage, costs, actions and suits arising out of
or in connection with work done by the Optionee on or with
respect to the Property.
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) 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;
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(c) promptly provide the Optionee with any and all notices and
correspondence from government agencies in respect of the
Property; and
(d) 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) there are no pending or threatened actions, suits, claims or
proceedings regarding the Property; and
(e) 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
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, the Optionee shall return to the Optionor forthwith
exclusive and quiet possession of the Property, in good standing 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
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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 registered 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. PAYMENTS
In the event of a capital reorganization, reclassification, subdivision or
consolidation of the capital stock of the Company, or the merger, amalgamation,
or other corporate combination of the Company with, or the sale of all or
substantially all of its assets to, one or more other entities, or of any other
events in which new securities of any nature are delivered in exchange for
common shares of the Optionee (collectively or individually a "Fundamental
Change") prior to the common share issuances pursuant to paragraph 3 hereof,
then at the time the common shares would have been issued pursuant to this
Agreement and in lieu of issuing the common shares which, but for such
Fundamental Change and this provision would have been issued pursuant to this
Agreement, the Optionee or its successor shall instead issue and deliver to the
Optionor that number and class of shares and/or other securities and property
that would have been issued and delivered as a result of the Fundamental Change
in exchange for the common shares which the Optionee is obligated to pay, if
such issuance had occurred prior to the occurrence of the Fundamental Change.
The adjustments so provided for herein are cumulative.
19. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
20. 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.
21. 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.
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22. 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.
23. 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.
24. APPROVALS
The Optionee and the Optionor hereby acknowledge that this Agreement shall be
subject to all necessary regulatory approvals.
25. 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.
26. ASSIGNMENT
The Optionee with the consent of the Optionor first had and obtained, such
consent to be not unreasonably withheld, 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 Optionor its 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 Optionor in connection
with the exercise of the Option must be shares of the Optionee, unless otherwise
agreed in writing by the Optionor.
No transfer or assignment by the Optionee of any interest less than its entire
interest in this Agreement shall, as between the Optionee and the Optionor,
discharge it from any of its obligations hereunder, but upon the transfer by the
Optionee of the entire interest at the time held by it in this Agreement
(whether to one or more transferees and whether in one or in a number of
successive transfers), the Optionee shall be deemed to be discharged from all
obligations hereunder save and except for obligations which arose prior to the
date of transfer.
27. AFTER-ACQUIRED PROPERTY
The area which is adjacent to the outer most boundary of the Property shall be
deemed to be an area of interest, other than property subject to an agreement
with a third party, ("Area of Interest"). During the term of
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this Agreement any mineral claim, lease or other mineral right or interest
acquired by or on behalf of the Optionee, the Optionor 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.
28. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario.
29. 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.
30. 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.
The COMMON SEAL of )
FILO EXPLORATION SERVICES LIMITED )
was hereunto affixed in the presence of: )
)
BY: /S/ XXXXX FLIO )
------------------------------------------------ )
Authorized Signatory )
SIGNED, SEALED and DELIVERED by )
XXXXX X. XXXXX in the presence of: )
)
BY: /S/ XXXXXXX XXXXX ) BY: /S/ XXXXX X. XXXXX
------------------------------------------------ ) --------------------------
Name ) XXXXX X. XXXXX
)
000 XXXXXXXX XX., XXXXX XXXXXXXXX, XXX., X0X 0X0 )
------------------------------------------------ )
Address )
)
SECRETARY )
------------------------------------------------ )
Occupation )
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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SCHEDULE "A"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 22ND DAY OF AUGUST, 2005
BETWEEN FILO EXPLORATION SERVICES LIMITED, XXXXX X. XXXXX AND XXXXXX GOLD CORP.
--------------------------------------------------------------------------------
PROPERTY
The Property consists of the following:
TOWNSHIP CLAIM NUMBER DUE DATE
-------- ------------ --------------
Xxxxx 3015009 March 11, 2006
Xxxxx 3015033 March 3, 2006
Xxxxx 3015034 March 5, 2006
Xxxxx 3015035 March 5, 2006
Xxxxx 3015036 March 5, 2006
Xxxxx 3015037 March 11, 2006
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SCHEDULE "B"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 22ND DAY OF AUGUST, 2005
BETWEEN FILO EXPLORATION SERVICES LIMITED, XXXXX X. XXXXX 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 Optionor 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 Optionor shall be made
forthwith;
(b) a copy of the audited statements shall be delivered to the
Optionor;
(c) the Optionor 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 Optionor 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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