Attached files
Exhibit K
PURCHASE AND SALE AGREEMENT
BETWEEN
H. B. LAYNE CONTRACTOR, INC.
AND
BARRICK BULLFROG INC.
July 20th, 2001
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement is entered into to be effective as of
July 2001, by and between H. B. Layne Contractor, Inc., an Indiana corporation
("Seller"), and Barrick Bullfrog Inc., a Delaware corporation ("Buyer").
RECITALS
A. Seller owns or controls certain unpatented mining claims located in
Nye County, Nevada (the "Properties"). The Properties are more particularly
described in Exhibit A. The Properties are presently leased and subleased by
Seller to Buyer pursuant to that certain Lease Agreement dated February 5, 1987
between Seller and St. Joe Gold Corporation, predecessor to Buyer (the "Lease")
which is also more particularly described in Exhibit A.
B. Buyer operates the Bullfrog Mine in Nye County, Nevada and is the
lessee under the Lease. Buyer has paid to Seller royalties and other payments
pursuant to the Lease. Buyer and Seller have a present disagreement about
whether the royalties payable by Buyer (as lessee) to Seller (as lessor) under
the Lease have been properly paid.
C. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller all of Seller's interest in the Properties and the Lease and certain
related assets. Seller and Buyer also desire to resolve any disagreements they
may have with respect to royalty or other payments due to Seller under the
Lease.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the Parties, Seller and Buyer agree as follows:
1.0 DEFINITIONS
1.1 "Adverse Consequences" means all losses, liabilities, actions, suits,
proceedings, hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues, penalties,
fines, costs, reasonable amounts paid in settlement, obligations, taxes, liens,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses.
1.2 "Agreement" means this Purchase and Sale Agreement together with all
its Exhibits.
1.3 "Assumed Liabilities" means any claim, action or cause of action
arising out of mining and processing operations conducted on the Properties by
Buyer, its predecessors, or its affiliates whether before or after the Closing
Date including any liability (including without limitation potential liability
for investigatory costs, cleanup costs, governmental response costs,
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natural resources damages, or penalties) arising out of, based on or resulting
from any violation, or alleged violation, of state or federal environmental laws
or regulations. Assumed Liabilities shall not include any Excluded Liabilities.
1.4 "Assets" means the Properties, the Lease and all of Seller's right,
title and interest in and to the Revert Agreements and any fixtures,
improvements and other tangible or intangible real or personal property related
to the Properties, the Lease and the Revert Agreements, including without
limitation all of Seller's right, title and interest in and to all permits,
rights of way, easements, water rights, surface use agreements and other
contracts related to the Properties, all choses, rights, actions or causes of
action in any way affecting or relating to the Properties, the Lease or the
Revert Agreements, and all of the improvements, buildings, structures and
fixtures located thereon, or used for the benefit of the Properties together
with any water rights, including any certificates, applications and interests
relating to such water rights, and any wells, ditches or flumes located on or
appurtenant to the Properties.
1.5 "Buyer" has the meaning given in the preface.
1.6 "Closing" means the closing to be conducted as described in Section
2.2 of this Agreement.
1.7 "Closing Date" means the date on which the Closing occurs as provided
in Section 2.2 of this Agreement.
1.8 "Conveyance" means a Deed, Assignment and Bill of Sale substantially
in the form attached to this Agreement as Exhibit B to be executed and delivered
by Seller at the Closing.
1.9 "Disputed Claims" means any and all claims, actions, causes of action,
demands and disputes between the Parties whether or not presently asserted with
respect to the Properties, the Lease or the other Assets and (a) the allegation
of Seller that Buyer and its predecessors have not fully and properly paid to
Seller all royalties or other payments due under the Lease including any claim
for additional royalties with respect to lands in Section 10, T. 12 S., R. 15
E., MDM and (b) the allegation of Buyer that it has overpaid Seller royalties on
lands in Section 10, T. 12 S., R. 15 E., MDM. The Disputed Claims shall not
include any claims, actions, causes of action, demands and disputes that might
arise in the future as a result of a breach, or alleged breach, of any
representation or warranty made by a Party in this Agreement, the failure of a
Party to perform an obligation arising under this Agreement or any other matter
not included in the Disputed Claims.
1.10 "Excluded Liabilities" means any and all liabilities of Seller
arising out of contractual relationships of Seller with respect to the
Properties or the Lease or the Revert Agreements (including any attorneys' fee
agreements, consulting agreements, employment agreements or contingent fee
agreements) or with respect to claims against or litigation involving Seller
with respect to the Properties or the Lease, including any claim by third
parties for royalties paid to Seller under the Lease, any claim by any
governmental agencies with respect to state, federal or local taxes or net
profits or proceeds taxes owed with respect to any rental, royalty, bonus or
other payment made by Buyer or its predecessors to Seller or its predecessors,
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and any claim for sales or use taxes, federal excise taxes, transfer, transfer
gain, documentation, gross receipts, value added and other taxes and charges, as
well as all associated interest and penalties payable with respect to the sale
or transfer of the Assets from Seller to Buyer pursuant to this Agreement.
1.11 "Lease" has the meaning given in Recital A.
1.12 "Lien" means, with respect to any of the Assets, any mortgage, title
defect, lien, lease, pledge, charge, security interest, hypothecation,
restriction, judgment, lien for taxes or governmental assessments, charges or
claims (including income taxes of the Seller or federal, state or local taxes
associated with royalties paid to Seller from the Properties, the Lease or the
Revert Agreements).
1.13 "Party" means Buyer or Seller and "Parties" means Buyer and Seller.
1.14 "Properties" has the meaning given in Recital A.
1.15 "Purchase Price" means the sum of US$350,000 to be paid by Buyer to
Seller at the Closing.
1.16 "Revert Agreements" means that certain Mining Lease and Option to
Purchase Agreement dated August 3, 1978 between Robert A. Revert and Claron
Burnett and Kelly Minerals, Inc. and that certain Assignment of Mining Lease and
Option to Purchase Agreement dated November 29, 1978 between Kelly Minerals,
Inc. and H. B. Layne Contractor, Inc.
1.17 "Seller" has the meaning given in the preface.
2.0 BASIC TRANSACTION.
2.1 Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, at the Closing, Buyer agrees to purchase the
Assets from Seller, and Seller agrees to sell, transfer, convey and deliver the
Assets to Buyer, for the Purchase Price.
2.2 The Closing. The Closing shall take place by exchange of documents by
mail or commercial courier, commencing on July 20 2001. The Closing shall occur
in the following order:
(a) Seller will deliver to the Buyer (i) a certificate of a duly
authorized officer of Seller confirming that, as at the Closing Date, all
of the representations and warranties of Seller contained in this
Agreement are true, complete and correct, as if made on such date, and
that Seller has performed or complied with all of the terms, covenants and
conditions of this Agreement to be performed or complied with by Seller at
or prior to the Closing, and (ii) an opinion of Seller's legal counsel in
form reasonably satisfactory to Buyer's legal counsel that as of the
Closing Date the representations and warranties in Subsections 4.1(a),
(b), (c), and (d) are true and correct.
(b) Buyer will deliver to Seller (i) a certificate of a duly
authorized officer of Buyer confirming that, as at the Closing Date, all
of the representations and warranties of Seller
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contained herein are true, complete and correct, as if made on such date,
and that Buyer has performed or complied with all of the terms, covenants
and conditions of this Agreement to be performed or complied with by Buyer
at or prior to the Closing, and (ii) an opinion of Buyer's legal counsel
in form reasonably satisfactory to Seller's legal counsel that as of the
Closing Date the representations and warranties in Subsections 4.2(a),
(b), and (c) are true and correct.
(c) Seller will execute, acknowledge and deliver to Buyer the
Conveyance and such other instruments of sale, transfer, conveyance, and
assignment as the Buyer may request; and
(d) Buyer will deliver to Seller the Purchase Price.
2.3 Allocation. The Parties agree to allocate the Purchase Price equally
among all of the Properties for all purposes (including financial accounting and
tax purposes).
2.4 Assumption of Liabilities. In addition to payment of the Purchase
Price, from and after the Closing, Buyer shall assume and agree to pay,
discharge and perform when due the Assumed Liabilities. Buyer will not assume
nor have any responsibility with respect to any other obligation or liability of
Seller not expressly included in the Assumed Liabilities.
3.0 SETTLEMENT OF THE DISPUTED CLAIMS
3.1 Mutual Release. As part of the consideration exchanged by Seller and
Buyer pursuant to this Agreement, if the Closing occurs and without any further
action or documentation on the part of Seller and Buyer or either of them,
Seller and Buyer agree that they will have irrevocably settled the Disputed
Claims. The Closing shall evidence the full and complete release and discharge
of the Disputed Claims by each Party and its and their subsidiaries, parents,
officers, employees, directors, servants, agents, attorneys, affiliates,
representatives, successors and assigns of the other Party and its and their
subsidiaries, parents, officers, employees, directors, servants, agents,
attorneys, affiliates, representatives, successors and assigns.
3.2 Disclaimer With Respect to the Settlement. The Parties understand and
agree that this settlement represents a compromise of the Disputed Claims, that
the Disputed Claims are disputed by the Parties against whom they are or might
be made and that settlement of the Disputed Claims is not to be construed as an
admission of liability on the part of either Party (each of whom expressly
denies any such liability) with respect to any obligations with respect to the
Properties or the Lease or the Revert Agreements. Each Party acknowledges that
it is relying on its own judgment, belief and knowledge as to the extent and
nature of the Disputed Claims and that it is not relying on any statements or
representations of any kind of the other Party. The Parties further understand
and agree that the facts now known by them or believed by them to be true and
upon which they have relied in negotiating this settlement might later prove to
be untrue or that additional facts might become known to them and expressly
accept and assume the risk associated with such possibilities and agree that
this settlement is binding and is not subject to termination or rescission in
such event.
3.3 Future Grant of Royalty. Buyer agrees that if, in the future, Buyer
commences mining from the Properties, insofar and only insofar as the Properties
are within Section 15, T.
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12 S., R. 15 E., MDM or the S1/2SE1/4SW1/4 of Section 10, T. 12 S., R. 15 E.,
MDM, Buyer will grant to Seller a production royalty on terms equivalent to the
Net Returns royalty set out in Section 5.c of the Lease. Such royalty shall be
granted when and if production is obtained and Buyer will have absolutely no
obligation, express or implied, (a) to explore for, develop, mine or market any
minerals from within the Properties or (b) to pay any rentals, advance royalties
or other payments of any kind absent actual production from such Properties.
3.4 Maintenance of the Properties; New Tenure. Buyer shall have no
obligation, express or implied, to maintain any of the mining claims included in
the Properties. Buyer may abandon such claims, relocate such claims as new
mining claims or as mill sites, or exchange or otherwise convert such claims to
a different form of tenure as Buyer sees fit. If Buyer maintains less than all
of the mining claims, relocates the claims or secures a different form of
tenure, the right to receive future royalties as provided in Section 3.3 shall
attach to such mining claims or different form of tenure as Buyer then has on
lands in Section 15, T. 12 S., R. 15 E., MDM or the S1/2SE1/4SW1/4 of Section
10, T. 12 S., R. 15 E., MDM, that are included within the Properties. For so
long as Buyer maintains any mining claims or other form of tenure on lands
included within the Properties, Seller shall not locate or participate in or
otherwise assist any third party in locating mining claims or mill sites on or
attempting to secure any interest in such lands.
4.0 REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer that the statements contained in this Section 4.1 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement).
(a) Organization of the Seller. Seller is a corporation duly
organized,validly existing, and in good standing under the laws of the
jurisdiction of its incorporation and is in good standing under the laws
of the State of Nevada.
(b) Authorization of Transaction. Seller has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. Without limiting the generality of the foregoing,
this Agreement is consistent with the powers of Seller as set forth in its
charter and bylaws and the board of directors of Seller has reviewed and
has duly authorized the execution, delivery, and performance of this
Agreement by Seller. This Agreement constitutes the valid and legally
binding obligation of Seller, enforceable in accordance with its terms and
conditions.
(c) Shareholders' Approval. The shareholders of Seller have reviewed
this Agreement, discussed the subject matter of this Agreement and the
transactions contemplated by this Agreement with counsel of their choice,
and have duly authorized the execution, delivery, and performance of this
Agreement by the Seller.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will (i) violate any statute, regulation, rule, or decree of any
government, governmental agency, or court to which
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Seller is subject or (ii) conflict with, result in a breach of, constitute
a default under any agreement to which Seller is a party. Seller does not
need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any third party, including any
government or governmental agency, in order for the Parties to consummate
the transactions contemplated by this Agreement.
(e) Brokers' Fees. Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, consultant, advisor or agent
with respect to the transactions contemplated by this Agreement for which
the Buyer could become liable or obligated.
(f) Title to the Assets. With respect to the Assets, Seller
represents and warrants that:
(i) Seller has good and marketable title to the Assets, free
and clear of any Lien, or any right or claim of third parties,
except for the rights of Buyer under the Lease and this Agreement.
No outstanding third party rights exist with respect to the Revert
Agreements and Seller is the sole owner of the Properties and the
Lease and is the sole entity entitled to receive any royalty or
other payments payable with respect to minerals produced from the
Properties. Seller has not assigned, transferred, conveyed,
mortgaged, deeded in trust, or encumbered any interest in the
Properties, the Lease or the Revert Agreements. Seller has no
obligation to pay to any third party any portion of the payments it
has received under this Agreement, the Lease or the Revert
Agreements.
(ii) Except for the civil litigation styled "Bond Gold
Bullfrog, Inc. vs. Parador Mining Co., Inc., et al., presently
pending in the Nevada Supreme Court, there are no pending or, to the
knowledge of Seller, threatened condemnation proceedings, lawsuits,
or administrative actions involving Seller and relating to the
Assets.
(iii) No contracts, agreements, options, rights of first
refusal, preemptive rights, other, similar rights or other interests
exist with respect to the Assets to which Seller or its predecessors
are bound and for which the Buyer could become liable or obligated
after Closing.
(iv) All consideration due under the Revert Agreements has
been fully and timely paid and no obligations exist with respect to
the Revert Agreements for which the Buyer could become liable or
obligated after Closing.
(g) Disclosure. The representations and warranties contained in this
Section do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section not misleading.
4.2 Representations and Warranties of Buyer. Buyer represents and warrants
to the Seller that the statements contained in this Section 4.2 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement).
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(a) Organization of Buyer. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction
of its incorporation and is in good standing under the laws of the State
of Nevada.
(b) Authorization of Transaction. Buyer has full power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder. Without limiting generality of the foregoing, this Agreement is
consistent with the powers of Buyer as set the forth in its charter and
bylaws and the execution, delivery, and performance of this Agreement by
the Buyer has been duly authorized. This Agreement constitutes the valid
and legally binding obligation of Buyer, enforceable in accordance with
its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will (i) violate any statute, regulation, rule, or decree of any
government, governmental agency, or court to which Buyer is subject or
(ii) conflict with, result in a breach of, constitute a default under any
agreement to which Buyer is a party. Buyer does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any third party, including any government or governmental
agency, in order for the Parties to consummate the transactions
contemplated by this Agreement.
(d) Brokers' Fees. Buyer has no liability or obligation to pay any
fees or commissions to any broker, finder, consultant, advisor or agent
with respect to the transactions contemplated by this Agreement for which
the Seller could become liable or obligated.
5.0 INTERIM PERIOD; OBLIGATION TO CLOSE
5.1 No Change or Commitments. Between the Date of this Agreement and the
Closing Date, neither Party shall enter into any arrangement or contract or make
any new commitment with respect to the Assets.
5.2 Work Diligently Towards Closing. Buyer and Seller shall each use their
efforts to work diligently towards completing the transaction contemplated by
reasonable best this Agreement on the Closing Date.
5.3 Notification of Breach. Each Party shall use its reasonable best
efforts to notify other Party if it believes that any breach has occurred with
respect to any of the representations, warranties, covenants or agreements
contained in this Agreement or of any if becomes aware of any event reasonably
likely to cause any of such circumstance or representations, warranties,
covenants or agreements to be breached.
5.4 Conditions to Obligation of Seller to Close. The obligation of Seller
to consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions:
(a) All of the representations and warranties of Buyer contained in
Section 4.2 true, complete and correct on and as of the Closing Date as if
made on the Closing Date shall be and Seller shall have received the
materials described in Subsection 2.2(b); and
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(b) No injunction, restraining or similar order shall have been
issued by a court or governmental authority prohibiting the transactions
contemplated by this Agreement.
5.5 Conditions to Obligation of Buyer to Close. The Buyer to obligation of
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions:
(a) All of the representations and warranties of Seller contained in
Section 4.1 shall be true, complete and correct on and as of the Closing
Date as if made on the Closing Date and Buyer shall have received the
described in Subsection 2.2(a);
(b) No material change shall have occurred with respect to any of
the Assets between the date of this Agreement and the Closing Date; and
(c) No injunction, restraining or similar order shall have been
issued by a court or governmental authority prohibiting the transactions
contemplated by this Agreement.
6.0 TERMINATION
6.1 Termination. This Agreement may be terminated prior to or at the
Closing:
(a) By mutual written consent of Buyer and Seller; or
(b) By either Party if the Closing has not occurred (other than as a
result of the failure by a Party to comply fully with its obligations
under this Agreement) on or before July 31, 2001; or By either Party if a
material breach by the other Party of its obligations (c) hereunder has
occurred and such breach has not been cured to the non-breaching Party's
satisfaction following receipt of notice of breach from the non-breaching
Party.
6.2 Other Remedies. If this Agreement is terminated pursuant to Subsection
6.1(a) or pursuant to Subsection 6.1(b) other than as a result of the failure by
a Party to comply fully with its obligations under this Agreement, all further
obligations of the Parties shall terminate except that the obligations in
Subsection 8.2(b) shall survive. If this Agreement is terminated pursuant to
Subsection 6.1(b) as a result of the failure by a Party to comply fully with its
obligations under this Agreement or pursuant to Subsection 6.1(c), the exercise
of a right of termination will not be an election of remedies and, in addition
to any other rights it may have under this Agreement or otherwise, the
terminating Party's right to pursue all legal remedies will survive such
termination unimpaired.
7.0 SURVIVAL; REMEDIES; INDEMNIFICATION
7.1 Survival. All obligations (i) of Seller for breach of the
representations and warranties set forth in Section 4.1 and to indemnify and
hold harmless Buyer under Section 7.3, (ii) of Buyer for breach of the
representations and warranties set forth in Section 4.2 and to indemnify and
hold harmless Seller under Section 7.2, and (iii) of Seller and Buyer set forth
in Sections 3.1 through 3.4 shall survive the Closing. In the event a Party
breaches any of its
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covenants, representations and warranties in this Agreement, provided that the
other Party makes written claim for indemnification against the indemnifying
Party pursuant to Section 7.4 below, a indemnifying Party agrees to indemnify
the other Party from and against the entirety of then the Consequences the other
Party shall suffer through and after the date of the claim. any Adverse
7.2 Buyer's Indemnities. Subject to the limitations and procedures set
forth in Section 7.4, after the Closing Date Buyer shall indemnify and hold
Seller and its officers, directors, agents, attorneys, and representatives
harmless against and in respect of all employees, incurred by Seller and its
officers, employees, directors, agents, Adverse Consequences attorneys, and
representatives to the extent that such Adverse Consequences arise out of
(a) The Assumed Liabilities or Buyer's use or operation of the Properties
on and after the Closing Date; and
(b) Any breach of any of the representations and warranties of Buyer in
this Agreement, or in any document delivered in connection with this Agreement,
or contained by Buyer to fulfill any agreement or covenants on the part of Buyer
under this the failure Agreement or in any document delivered in connection with
this Agreement.
7.3 Seller's Indemnities. Subject to the limitations and procedures of
Section 7.4, Date Seller shall indemnify, defend and hold the Buyer and its
officers, after the Closing agents, attorneys, and representatives harmless
against and in respect of all employees, directors, incurred by Buyer and its
officers, employees, directors, agents, Adverse Consequences attorneys, and
representatives to the extent that such Adverse Consequences arise out of
(a) The Excluded Liabilities; and
(b) Any breach of any of the representations and warranties of Seller
Agreement or any document delivered in connection with this Agreement, or
contained in this to fulfill any agreement or covenants on the part of Seller
under this the failure by Seller Agreement or any document delivered in
connection with this Agreement.
7.4 Notice and Procedure. If a Party believes that it is entitled to
indemnification shall initiate a claim for indemnification by giving notice in
under this Agreement, the Party indemnifying Party as soon as possible after the
Party discovers the basis for a writing to the shall specify the basis for
seeking indemnification under this Agreement, the claim. Such notice nature of
the event giving rise to the claim, the identity of any amount (to the extent
known), the involved, any pleadings or other documents or demands served upon
the Party third parties relevant information. The failure to give prompt notice
of a matter giving notice and any other give rise to an indemnification claim
shall not affect the rights of the indemnified which may such claims from the
indemnifying Party so long as such failure to so notify does Party to collect
adversely affect the indemnifying Party's ability to defend such claim against a
not materially third party.
(a) Notice and Response. The Party from whom indemnification is
sought days of receipt of a notice seeking indemnity as provided in the
preceding shall, within 15 response to the notifying Party in writing as
to whether it accepts or denies paragraph, provide a If the Party from
whom indemnification is sought accepts the request the request for
indemnity.
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for indemnification, the Parties shall settle the claim accordingly. If
the Party from whom indemnification is sought denies the request for
indemnification or fails to respond, the notifying Party may pursue all
legal remedies available to it.
(b) Matters Involving Third Parties. If the claim for
indemnification involves a third party, in addition to providing a
response to the notifying Party as provided above, the indemnifying Party
will have the right at any time to assume and thereafter conduct the
defense of the claim made by the third party with counsel of its choice
reasonably satisfactory to the other Party; provided, however, that the
indemnifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to the third party claim without the
prior written consent of the indemnified Party (not to be withheld
unreasonably) unless the judgment or proposed settlement involves only the
payment of money damages and does not impose an injunction or other
equitable relief upon the indemnified Party. Unless and until the
indemnifying Party assumes the defense of a a third party claim, however,
the Party seeking indemnification may defend against the third party claim
in any manner it reasonably may deem appropriate.
8.0 GENERAL
8.1 Notices. Any notices or other communications between the Parties
required by this Agreement shall be in writing and delivered by personal
delivery, by facsimile transmission or by commercial courier. Delivery shall be
effective on verifiable receipt. All such notices or communications shall be
addressed as follows, provided that either Party may change its address at any
time by notice given in the manner described above:
To Seller: With a copy to:
H. B. Layne Contractor, Inc. H. B. Layne Contractor, Inc.
5620 South Landings Drive, #704 6510 Melaleuca Road
Ft. Myers, Florida 33919 Southwest Ranches
Attn: S. Lee Crouch Fort Lauderdale, Florida 33330
Tel: (941) 433-1382 Attn: Patrick R. Layne, President
Fax: (941) 433-5966 Tel: (954) 434-8943
Fax: (954) 434-3130
To Buyer: With a copy to:
Barrick Bullfrog Inc. Barrick Bullfrog Inc.
Barrick Management Corporationc/o 293 Spruce Road
136 East South Temple, Suite 1050 Elko, Nevada 89801-4491
Lake City, Utah 84111Salt Attn: W. G. (Bill) Houston
Attn: Rich Haddock Tel: (775) 738-2062
Tel: (801) 539-0660 Fax: (775) 738-2804
Fax: (801) 539-0665
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8.2 Miscellaneous.
(a) Amendment of Agreement. This Agreement may only be amended or
modified by a document in writing executed by the Parties. Nothing in this
Agreement shall impose any obligations or covenants, express or implied,
to conduct any particular level or degree of exploration, development or
mining operations upon the Properties, except as otherwise except as
expressly required by this Agreement.
(b) Confidentiality. This Agreement and all of its terms and
conditions and all information provided by Buyer to Seller with respect to
the Properties, the Leases and the Revert Agreements shall be treated by
the Parties as confidential and shall not be divulged by a Party directly
or indirectly to any person without the prior written authorization of the
other Party. It is understood that the foregoing obligations shall
continue indefinitely notwithstanding the termination of this Agreement.
Such obligations do not apply to information that is in the public domain
through no fault of the disclosing Party or which is independently
obtained from a third party with no breach of confidentiality, or which is
required to be disclosed pursuant to applicable law, regulation, judicial
or administrative order or stock exchange rules.
(c) Governing Law; Severability. This Agreement shall be construed
and interpreted in accordance with, governed and enforced in all respects
by the laws of the State of Nevada. If any provision of this Agreement is
held to be invalid or unenforceable, the remainder of this Agreement shall
continue in full force and effect.
(d) Press Releases. Neither Party shall issue any press release or
make any public announcement relating to the subject matter of this
Agreement.
(e) Further Assurances. Each of the Parties agrees that from time to
time, at the request of the other Party and without further consideration,
it will execute and deliver such other documents and take such other
actions as counsel for such other Party reasonably requests in order to
consummate more effectively the transactions contemplated by this
Agreement.
(f) Assignment. Neither Party shall have the right to transfer its
rights under this Agreement, in whole or in part, prior to the Closing.
(g) No Third-Party Beneficiaries. Except as expressly provided in
this Agreement, this Agreement shall not confer any rights or remedies
upon any third party.
(h) Costs and Fees. The Parties shall pay their own expenses
including attorney's fees, incident to the preparation and performance of
this Agreement, whether or not the transactions contemplated herein are
consummated.
Waiver. The failure of a Party to insist upon the strict performance
of any of the terms, conditions or covenants of this Agreement shall not
be construed as a waiver or relinquishment for the future of any term,
condition or covenant.
(j) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption
416342i
7/16/01 11
or burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any of the provisions of this Agreement.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. The Parties agree
that signatures transmitted by facsimile transmission shall constitute
original signatures and that an Agreement transmitted by facsimile and
containing the signatures (original or transmitted) of both Parties shall
be binding.
(1) Integration. All understandings and agreements between the
Parties regarding the purchase and sale of the Assets and the settlement
of the Claims are merged into this Agreement, which fully and completely
expresses the agreement of the Parties. This Agreement was entered into
after adequate investigation, neither Party relying upon any statement or
representation not embodied in this Agreement made by the other Party. All
Exhibits referred to in this Agreement are expressly incorporated into
this Agreement.
Executed to be effective as of the date first written above.
"Seller"
H. B. Layne Contractor, Inc.
"Buyer"
Barrick Bullfrog Inc.
416342.1
7/16/01 12
EXHIBIT A
to
Purchase and Sale Agreement
THE PROPERTIES
The Properties consist of those certain unpatented lode mining claims
situated in the Bullfrog Mining District, Nye County, Nevada, the names of which
and the place of record of the location notices in the official records of the
Nye County Recorder and the authorized office of the Bureau of Land Management
are as follows:
1. Mining claims originally subject to the Mining Lease and Option to
Purchase Agreement dated August 3, 1987, by and between Robert A. Revert and
Claron Burnett, as lessors, and Kelly Minerals, Inc., as lessee, as assigned and
conveyed to H. B. Layne Contractor, Inc. by Assignment of Mining Lease and
Option to Purchase Agreement dated November 29, 1978 between Kelly Minerals,
Inc. and H. B. Layne Contractor, Inc. and subject to the Lease Agreement dated
February 5, 1987 between H.B. Layne Contractor, Inc., and St. Joe Gold
Corporation:
NAME OF CLAIM NYE COUNTY RECORDS BLM SERIAL
Book Page NMC #
Ace No. 1 110 426 112229
Ace No. 2 110 427 112230
Ace No. 3 110 428 112231
2. Mining claims located in the name of and 100% owned by H. B. Layne
Contractor, Inc. and subject to the Lease Agreement dated February 5, 1987
between H.B. Layne Contractor, Inc., and St. Joe Gold Corporation:
NAME OF CLAIM NYE COUNTY RECORDS BLM SERIAL
Book Page NMC #
Golden Eagle # 2 424 120 298788
Golden Eagle # 3 424 121 298789
Golden Age # 1 424 103 298790
Golden Age # 2 424 104 298791
Golden Age # 3 424 105 298792
Golden Age # 4 424 106 298793
Golden Age # 5 424 107 298794
416342.1
7/16/01 13
Golden Age # 6
Original Location 424 108 298795
Relocation 252249 583381
Golden Age # 7
Original Location 424 109 298796
Relocation 252250 583382
Golden Age # 8
Original Location 424 110 298797
Relocation 252251 583383
Golden Age # 9
Original Location 424 111 298798
Relocation 252252 583384
Golden Age # 12
Original Location 424 112 298799
Relocation 252253 583385
Golden Age # 13
Original Location 424 113 298800
Relocation 252254 583386
Golden Age # 14
Original Location 424 114 298801
Relocation 252255 583387
Golden Age # 15 424 115 298802
Golden Age # 16 424 116 298803
Golden Age # 17
Original Location 424 117 298804
Relocation 252256 583388
416342.1
7/16/01 14
EXHIBIT B
to
Purchase and Sale Agreement
THE CONVEYANCE
Assessor's Parcel No.
When Recorded, Return to:
W. G. (Bill) Houston
Barrick Bullfrog Inc.
293 Spruce Road
Elko, Nevada 89801-4491
DEED, ASSIGNMENT AND BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby expressly acknowledged, H. B. Layne Contractor, Inc., a Florida
corporation ("Grantor)),
grants, sells, transfers, conveys, assigns and delivers to Barrick
Bullfrog Inc., a Delaware corporation ("Grantee), whose mailing address is 293
Spruce Road, Elko, Nevada 89801-4491, the entire estate in and to the following
described property situated in Nye County, Nevada (the 'Properties"), subject
only to the paramount title of the United States of America:
See Exhibit A attached to this Deed, Assignment and Bill of Sale,
together with all of Grantor's interest in and to the leases and the other
agreements identified in Exhibit A, any after acquired title in and to the
Properties or the lands covered thereby and any fixtures, improvements and other
tangible or intangible real or personal property related to the Properties, the
leases and the other agreements, including without limitation all of Grantor's
right, title and interest in and to all permits, rights of way, easements, water
rights, surface use agreements and other contracts related to the Properties,
all choses, rights, actions or causes of action in any way affecting or relating
to the Properties, the leases or other agreements identified in Exhibit A, and
all of the improvements, buildings, structures and fixtures located thereon, or
used for the benefit of the Properties together with any water rights, including
any certificates, applications and interests relating to such water rights, and
any wells, ditches or flumes located on or appurtenant to the Properties.
Grantor hereby binds itself and its successors to warrant and defend the
title to the Properties against all claiming by through or under Grantor, but
not otherwise.
416342.1
7/16/01 15
IN WITNESS WHEREOF, Grantor has duly executed this Deed, Assignment and
Bill of Sale as of the day and year first above written.
"Grantor"
H. B. Layne Contractor, Inc.
By:
Its:
State of
)
) ss.
County of
)
This instrument was acknowledged before me, a notary public, on July
2001, by , the of H. B. LAYNE CONTRACTOR,
INC., a Florida corporation, on behalf of the corporation.
Notary Public
My commission expires:
416342.1
7/16/01 16
EXHIBIT A
to
Deed, Assignment and Bill of Sale
THE PROPERTIES
The Properties consist of those certain unpatented lode mining claims
situated in the Bullfrog Mining District, Nye County, Nevada, the names of which
and the place of record of the location notices in the official records of the
Nye County Recorder and the authorized office of the Bureau of Land Management
are as follows:
1. Mining claims originally subject to the Mining Lease and Option to
Purchase Agreement dated August 3, 1987, by and between Robert A. Revert and
Claron Burnett, as lessors, and Kelly Minerals, Inc., as lessee, as assigned and
conveyed to H. B. Layne Contractor, Inc. by Assignment of Mining Lease and
Option to Purchase Agreement dated November 29, 1978 between Kelly Minerals,
Inc. and H. B. Layne Contractor, Inc. and subject to the Lease Agreement dated
February 5, 1987 between H.B. Layne Contractor, Inc., and St. Joe Gold
Corporation:
NAME OF CLAIM NYE COUNTY RECORDS BLM SERIAL #
Book Page NMC #
Ace No. 1 110 426 112229
Ace No. 2 110 427 112230
Ace No. 3 110 428 112231
2. Mining claims located in the name of and 100% owned by H. B. Layne
Contractor, Inc. and subject to the Lease Agreement dated February 5, 1987
between H.B. Layne Contractor, Inc., and St. Joe Gold Corporation:
NAME OF CLAIM NYE COUNTY RECORDS BLM SERIAL #
Book Page NMC #
Golden Eagle # 2 424 120 298788
Golden Eagle # 3 424 121 298789
Golden Age # 1 424 103 298790
Golden Age # 2 424 104 298791
Golden Age # 3 424 105 298792
Golden Age # 4 424 106 298793
Golden Age # 5 424 107 298794
Golden Age # 6
Original Location 424 108 298795
Relocation 252249 583381
416342.1
7/16/01 17
Golden Age # 7
Original Location 424 109 298796
Relocation 252250 583382
Golden Age # 8
Original Location 424 110 298797
Relocation 252251 583383
Golden Age # 9
Original Location 424 111 298798
Relocation 252252 583384
Golden Age # 12
Original Location 424 112 298799
Relocation 252253 583385
Golden Age # 13
Original Location 424 113 298800
Relocation 252254 583386
Golden Age # 14
Original Location 424 114 298801
Relocation 252255 583387
Golden Age # 15 424 115 298802
Golden Age # 16 424 116 298803
Golden Age # 17
Original Location 424 117 298804
Relocation 252256 583388
416342.1
7/16/01 18
