Contract
Exhibit 4.159
THIS AGREEMENT made as of this
1st day
of February 2009
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:
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1.
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Services
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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:
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(a)
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acting
as project manager, as the same is understood in the mining industry, for
development of the Properties to a pre-feasibility
stage;
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(b)
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aiding
in the negotiation, conclusion and approval of the acquisition of
additional resource properties;
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(c)
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administering
and supervising compliance with the Properties’ title and maintenance in
accordance with prevailing law and
contract;
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(d)
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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;
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(e)
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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;
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(f)
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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;
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(g)
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presenting
to the Company on a monthly basis an account statement with a clear
breakdown between administrative and exploration accounts and tax
liabilities;
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(h)
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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;
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(i)
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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 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;
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(j)
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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;
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(k)
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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;
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(l)
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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;
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(m)
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aiding
in the negotiation, conclusion and approval of future financings for the
Company;
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(n)
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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;
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(o)
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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)
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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;
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(q)
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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;
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(r)
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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
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(s)
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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.
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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:
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(a)
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Hastings
shall establish separate accounts for the conduct of the
Services;
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(b)
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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
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(c)
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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 enquiry
or controversy, or otherwise create or encourage any situation which may
impugn the reputation or negatively effect the work of the
Company.
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3.
Management
Fee
3.1 For
provision of the Services, Hastings shall be paid a fee of Sixty Thousand
Dollars ($60,000) per month payable on the first of every month commencing on
February 1st,
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 extra 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:
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(a)
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it
has the requisite skills, experience and industry contacts and support to
perform the Services to a standard acceptable within the
industry;
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(b)
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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;
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(c)
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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;
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(d)
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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
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(e)
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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.
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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
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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.
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:
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(a)
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if
Hastings or the Company shall become bankrupt or insolvent or make a
general assignment for the benefit of its
creditors;
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(b)
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if
Hastings or the Company shall be in default under any material term of
this Agreement;
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(c)
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if
the Company has failed to pay the Management Fee pursuant to section 3
hereof;
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(d)
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if
Hastings shall commit an act of fraud or dishonesty or be in dereliction
of its duties; or
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(e)
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if
Hastings is unable or unwilling to perform the duties under this
Agreement.
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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 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
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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.
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
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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.
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:
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(a)
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be
valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
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(b)
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be
relied upon as a consent to or waiver of any other breach or default of
the same or any other obligation;
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(c)
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constitute
a general waiver under this Agreement;
or
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(d)
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eliminate
or modify the need for a specific consent or waiver pursuant to this
section in any other or subsequent
instance.
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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.
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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 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.
HASTINGS MANAGEMENT
CORP. )
)
)
Per:/s/ Xxxxxxx Xxxxxx )
Xxxxxxx
Xxxxxx,
President )
XXXXXX GOLD
CORP. )
)
)
Per:/s/ Xxxx Xxxxxxxx
)
Authorized
Signatory )
)
Xxxx
Xxxxxxxx )
Name
(Printed) )
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