OPTION TO PURCHASE AGREEMENT
AMENDMENT
THIS AMENDMENT DATED SEPTMEBER 8, 2005 IS APPLICABLE TO THE AGREEMENT made as of
the 27th day of August, 2004.
BETWEEN:
XXXXXX XXXXXX, businessman, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0
(hereinafter referred to as the "Vendor")
PARTIES OF THE FIRST PART
AND:
BOULDER CREEK EXPLORATIONS, INC., a company duly incorporated under the laws of
the State of Nevada, having an office at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
(hereinafter referred to as "BCEI")
OF THE SECOND PART
WHEREAS:
A. Vendor is the sole beneficial owner of 100% of the mineral claims Pun and
Xxx, both located within the Lillooet Mining Division of the Ministry of
Sustainable Resource Management which are both situated in the British
Columbia Canada as described in Schedule "A" attached hereto and forming
part hereof (hereinafter together with any form of successor or substitute
mineral tenure called the "Claim").
B. The parties now wish to enter into an agreement granting to BCEI the
exclusive right and option to acquire an undivided 100% of the right, title
and interest in and to the Claim on the terms and conditions as hereinafter
set forth.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual promises, covenants and agreements herein contained, the parties
hereto agree as follows:
1. INTERPRETATION
1.1 In this Agreement:
(a) "Effective Date" means the date that both parties have signed this
Agreement;
(b) "Mineral Products" means the products derived from operating the Claim
as a mine;
(c) "Net Smelter Returns" means the proceeds received by BCEI from any
smelter or other purchaser from the sale of any ores, concentrates or
minerals produced from the Claim after deducting from such proceeds
the following charges only to the extent that they are not deducted by
the smelter or other purchaser in computing the proceeds:
(i) the cost of transportation of the ores, concentrates or minerals
from the Claim to such smelter or other purchaser, including
related transport;
(ii) smelting and refining charges including penalties; and
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(iii) marketing costs.
(d) "Option" means the option granted by Vendor to BCEI pursuant to
Section 3;
(e) "Operating the Claim as a mine" or "Operation of the Claim as a mine"
means any or all of the mining, milling, smelting, refining or other
recovery of ores, minerals, metals or concentrates or values thereof,
derived from the Claim;
(f) "Dollars ($)" means legal currency of United States of America.
2. REPRESENTATIONS AND WARRANTIES
2.1 BCEI represents and warrants to Vendor that:
(a) BCEI is a body corporate duly incorporated, organized and validly
subsisting under the laws of its incorporating jurisdiction;
(b) BCEI has full power and authority to carry on its business and to
enter into this Agreement and any agreement or instrument referred to
or contemplated by this Agreement;
(c) neither the execution and delivery of this Agreement nor any of the
agreements referred to herein or contemplated hereby, nor the
consummation of the transactions hereby contemplated will conflict
with, result in the breach of or accelerate the performance required
by any agreement to which BCEI is a party; and
(d) the execution and delivery of this Agreement and the agreements
contemplated hereby will not violate or result in the breach of laws
of any jurisdiction applicable or pertaining thereto or of BCEI's
constating documents.
2.2 Vendor represents and warrants to BCEI:
(a) the Claim consists of the mineral claims Pun and Xxx, both located
within the Lillooet Mining Division of the Ministry of Sustainable
Resource which has been duly and validly staked and recorded, as
accurately described in Schedule "A", is presently in good standing
under the laws of the jurisdiction in which it is located and, except
as set forth herein, is free and clear of all liens, charges and
encumbrances;
(b) Vendor is the sole beneficial owner of a 100% interest in and to the
Claim and has the exclusive right to enter into this Agreement and all
necessary authority to dispose of an undivided 100% interest in and to
the Claim in accordance with the terms of this Agreement;
(c) no person, firm or corporation has any proprietary or possessory
interest in the Claim other than Vendor and no person is entitled to
any royalty or other payment in the nature
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of rent or royalty on any minerals, ores, metals or concentrates or
any other such products removed from the Claim;
(d) neither the execution and delivery of this Agreement nor any of the
agreements referred to herein or contemplated hereby, nor the
consummation of the transactions hereby contemplated will conflict
with, result in the breach of or accelerate the performance required
by any agreement to which Vendor is a party or by which he is bound;
(e) the execution and delivery of this Agreement and the agreements
contemplated hereby will not violate or result in the breach of the
laws of any jurisdiction applicable or pertaining thereto.
2.3 The representations and warranties hereinbefore set out are conditions on
which the parties have relied in entering into this Agreement and will
survive the acquisition of any interest in the Claim by BCEI and each party
will indemnify and save the other party harmless from all loss, damage,
costs, actions and suits arising out of or in connection with any breach or
any representation, warranty, covenant, agreement or condition made by the
other party and contained in this Agreement.
3. OPTION
3.1 Vendor hereby gives and grants to BCEI the sole and exclusive right and
option to acquire an undivided 100% of the right, title and interest of
Vendor in and to the Claim, subject only to Vendor receiving the annual
payments in accordance with the terms of this Agreement for and in
consideration of the following:
(a) BCEI, or its permitted assigns, incurring exploration expenditures on
the Claims of a minimum of $15,000 on or before March 31, 2006;
and
(b) BCEI, or its permitted assigns, incurring exploration expenditures on
the Claims of a further $40,000 (for aggregate minimum exploration
expenses of $55,000) on or before March 31, 2007; and
3.2 Upon exercise of the Option, BCEI agrees to pay Vendor, commencing January
1, 2009, the sum of $25,000 per annum for so long as BCEI, or its permitted
assigns, holds any interest in the Claims. Failure to make any such annual
payment shall result in termination of this Agreement in accordance with
Section 5.1.
4. RIGHT OF ENTRY
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4.1 Until such time as the Option has been exercised, BCEI, its employees,
agents and independent contractors, will have the sole and exclusive right
and option to:
(a) enter upon the Claims;
(b) have exclusive and quiet possession thereof;
(c) do such prospecting, exploration, development or other mining work
thereon and thereunder as BCEI in its sole discretion may consider
advisable; and
(d) bring and erect upon the Claims such facilities as BCEI may consider
advisable.
5. TERMINATION
5.1 Subject to Section 8, this Agreement and the Option will terminate:
(a) on March 31, 2006 at 11:59 P.M., unless on or before that date,
BCEI has incurred exploration expenditures of a minimum of $15,000 on
the Claims;
(b) on March 31, 2007 at 11:59 P.M., unless BCEI has incurred a
further $40,000 of exploration expenditures on the Claims (for an
aggregate of $55,000); or
c) at 11:59 P.M. on January 1 of each and every year, commencing on
January 1, 2009, unless BCEI or its successor or assign has paid to
Vendor the sum of $25,000 on or before that date.
6. COVENANTS OF VENDOR
6.1 Vendor will:
(a) not do any act or thing which would or might in any way adversely
affect the rights of BCEI hereunder;
(b) make available to BCEI and its representatives all records and files
in the possession of Vendor relating to the Claims and permit BCEI and
its representatives at its own expense to take abstracts therefrom and
make copies thereof; and
(c) promptly provide BCEI with any and all notices and correspondence from
government agencies in respect of the Claims.
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7. COVENANTS OF BCEI
7.1 BCEI will:
(a) keep the Claims free and clear of all liens, charges and encumbrances
arising from their operations hereunder and in good standing by the
doing and filing of all necessary work and by the doing of all other
acts and things and making all other payments which may be necessary
in that regard;
(b) permit Vendor, or its representatives duly authorized by it in
writing, at their own risk and expense, access to the Claims at all
reasonable times and to all records prepared by BCEI in connection
with work done on or with respect to the Claims;
(c) conduct all work on or with respect to the Claims in a careful and
miner-like manner and in compliance with all applicable Federal,
Provincial and local laws, rules, orders and regulations, and
indemnify and save Vendor harmless from any and all Claims, suits,
actions made or brought against it as a result of work done by BCEI on
or with respect to the Claims; and
(d) obtain and maintain, or cause any contractor engaged hereunder to
obtain and maintain, during any period in which active work is
carried out hereunder, adequate insurance.
8. EXERCISE OF OPTION
8.1 Once BCEI has incurred the exploration expenditures, and made the payments
set out in Section 3.1, BCEI will, subject to the right of Vendor to
receive the obligation of BCEI to make the annual payments set out in
Section 3.2, own an undivided 100% of Vendor's right, title, and interest
in and to the Claims.
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9. OBLIGATIONS OF BCEI AFTER TERMINATION
9.1 In the event of the termination of the Option, BCEI will:
(a) leave the Claims in good standing for a minimum of one (1) year under
all applicable legislation, free and clear of all liens, charges and
encumbrances arising from this Agreement or their operations hereunder
and in a safe and orderly condition;
(b) deliver to Vendor within 60 days of its written request a
comprehensive report on all work carried out by BCEI on the Claims
(limited to factual matter only) together with copies of all maps,
drill logs, assay results and other technical data compiled by BCEI
with respect to the Claims;
(c) have the right, and obligation on demand made by Vendor, to remove
from the Claims within six (6) months of the effective date of
termination all facilities erected, installed or brought upon the
Claims by or at the instance of BCEI provided that at the option of
Vendor, any or all of facilities not so removed will become the
property of Vendor; and
(d) deliver to Vendor a duly executed transfer in registrable form of an
undivided 100% right, title and interest in and to the Claims in
favor of Vendor, or its nominee.
10. TRANSFER OF TITLE
10.1 Upon the request of BCEI, Vendor will deliver to BCEI a duly executed
transfer in registrable form of an undivided 100% of Vendor's right, title
and interest in and to the Claims in favour of BCEI which BCEI will be
entitled to register against title to the Claims provided that transfer of
legal title to the Claims as set forth in this Subsection 10.1 is for
administrative convenience only and beneficial ownership of an undivided
100% interest in the Claims will pass to BCEI only in accordance with the
terms and conditions of this Agreement.
11. REGISTRATION OF AGREEMENT
12.1 Notwithstanding Section 10 of this Agreement, BCEI or Vendor will have the
right at any time to register this Agreement or a Memorandum thereof
against title to the Claims.
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12. DISPOSITION OF CLAIMS
12.1 BCEI may at any time sell, transfer or otherwise dispose of all or any
portion of its interest in and to the Claims and this Agreement provided
that, at any time, BCEI has first obtained the consent in writing of
Vendor, such consent not to be unreasonably withheld and further provided
that, at any time during the currency of this Agreement, any purchaser,
grantee or transferee of any such interest will have first delivered to
Vendor its agreement related to this Agreement and to the Claims,
containing:
(a) a covenant with Vendor by such transferee to perform all the
obligations of BCEI to be performed under this Agreement in respect of
the interest to be acquired by it from BCEI, and
(b) a provision subjecting any further sale, transfer or other disposition
of such interest in the Claims and this Agreement or any portion
thereof to the restrictions contained in this Subsection 12.1.
12.2 The provisions or Subsection 13.1 of this Agreement will not prevent either
party from entering into an amalgamation or corporate reorganization which
will have the effect in law of the amalgamated or surviving company
possessing all the property, rights and interests and being subject to all
the debts, liabilities and obligations of each amalgamating or predecessor
company.
13. ABANDONMENT OF PROPERTY
13.l BCEI shall have the unfettered right at any time after the exercise of the
Option to abandon all or any part of its interest in the Claims by
delivering a notice in writing of their intention to do so to Vendor, such
notice to list the part or parts of the Claims to be abandoned, and if
within 30 days of receipt of such notice Vendor delivers to BCEI a notice
("Reacquisition Notice") stating its intention to reacquire all or part or
parts of the Claims, BCEI will deliver to Vendor duly executed recordable
transfers of its interest in such part or parts of the Claims as Vendor has
set forth in the Reacquisition Notice, such part or parts to be in good
standing for at least one year beyond the date of delivery of such
transfers and to be free and clear of all liens, charges, and encumbrances
arising from the operations of BCEI or its agents or subcontractors
hereunder.
14. CONFIDENTIAL NATURE OF INFORMATION
15.1 The parties agree that all information obtained from the work carried out
hereunder and under the operation of this Agreement will be the exclusive
property of the parties and will not be used other than for the activities
contemplated hereunder except as required by law or by the rules and
regulations of any regulatory authority having jurisdiction, or with the
written consent of both parties, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, it is understood and agreed that a
party will not be liable to the other party for the fraudulent or negligent
disclosure of information by any of its employees, servants or agents,
provided that such party has taken reasonable steps to ensure the
preservation of the confidential nature of such information.
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16. FURTHER ASSURANCES
16.1 The parties hereto agree that they and each of them will execute all
documents and do all acts and things within their respective powers to
carry out and implement the provisions or intent of this Agreement.
17. NOTICE
17.1 Any notice, direction or other instrument required or permitted to be given
under this Agreement will be in writing and will be given by the delivery
or the same or by mailing the same by prepaid registered or certified mail
in each case addressed as follows:
(a) if to Vendor
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X., X0X0X0
Attention : Xxxxxx Xxxxxx
---------
(b) if to Boulder Creek Explorations, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
l7.2 Any notice, direction or other instrument aforesaid will, if delivered, be
deemed to have been given and received on the day it was delivered, and if
mailed, be deemed to have been given and received on the fifth business day
following the day of mailing, except in the event of disruption of the
postal services in which event notice will be deemed to be received only
when actually received.
17.3 Any party may at any time give to the other notice in writing of any change
of address of the party giving such notice and from and after the giving of
such notice, the address or addresses therein specified will be deemed to
be the address of such party for the purpose of giving notice hereunder.
18. HEADINGS
18.1 The headings to the respective sections herein will not be deemed part of
this Agreement but will be regarded as having been used for convenience
only.
19. DEFAULT
19.1 If any party (a "Defaulting Party") is in default of any requirement herein
set forth other than the provisions of Section 5 for which notice of
default need not be given, the party affected by such default will give
written notice to the defaulting Party specifying the default and the
Defaulting Party will not lose any rights under this Agreement, unless
within 30 days after the giving of notice of default by the affected party
the Defaulting Party has cured the default by the appropriate performance
and if the Defaulting Party fails within such period to cure any such
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default, the affected party will be entitled to seek any remedy it may have
on account of such default.
20. PAYMENT
20.1 All references to monies hereunder will be in Canadian funds except where
otherwise designated. All payments to be made to any party hereunder will
be mailed or delivered to such party at its address for notice purposes as
provided herein, or for the account of such party at such bank or banks in
Canada as such party may designate from time to time by written notice.
Said bank or banks will be deemed the agent of the designating party for
the purpose of receiving and collecting such payment.
21. ENUREMENT
21.1 Subject to Section 13, this Agreement will ensure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns.
22. TERMS
22.1 The terms and provisions of this Agreement shall be interpreted in
accordance with the laws of British Columbia Canada.
23. FORCE MAJEURE
23.1 No party will be liable for its failure to perform any of its obligations
under this Agreement due to a cause beyond its control (except those caused
by its own lack of funds) including, but not limited to acts of God, fire,
flood, explosion, strikes, lockouts or other industrial disturbances, laws,
rules and regulations or orders of any duly constituted governmental
authority or non- availability of materials or transportation (each an
"Intervening Event").
23.2 All time limits imposed by this Agreement, other than those imposed by
Section 5, will be extended by a period equivalent to the period of delay
resulting from an Intervening Event described in Subsection 23.1.
23.3 A party relying on the provisions of Subsection 23.1 will take all
reasonable steps to eliminate an Intervening Event and, if possible, will
perform its obligations under this Agreement as far as practical, but
nothing herein will require such party to settle or adjust any labour
dispute or to question or to test the validity of any law, rule, regulation
or order of any duly constituted governmental authority or to complete its
obligations under this Agreement if an Intervening Event renders completion
impossible.
24. ENTIRE AGREEMENT
24.1 This Agreement constitutes the entire agreement between the parties and
replaces and supersedes all prior agreements, memoranda, correspondence,
communications, negotiations and
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representations, whether verbal or written, express or implied, statutory
or otherwise between the parties with respect to the subject matter herein.
25. TIME OF ESSENCE
25.1 Time will be of the essence in this Agreement.
26. ENFORCEMENT OF AGREEMENT
26.1 The covenants, promises, terms and conditions contained herein will be
binding upon the parties jointly and severally and may be enforced by each
as against each other inter se.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
XXXXXX XXXXXX
________________________
By: Xxxxxx Xxxxxx
________________________
Signature of Witness
________________________
Printed Name of Witness
BOULDER CREEK EXPLORATIONS, INC.
Per: _____________________________________________________
by its Authorized Signatory: Xxxxxx Xxxxxx, President
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This is SCHEDULE "A" to an Agreement made as of the 27th day of August, 2004
between VENDOR and BOULDER CREEK EXPLORATIONS, INC. and incorporated to the
amendment herein dated September 8, 2005.
Tenure Number Claim Name Issue Date Tag Number
------------- ---------- ---------- ----------
409538 Pun April 8, 2004 233318
409539 Xxx April 8, 2004 233317
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