Exhibit
10.1
MINING ACQUISITION AGREEMENT
THIS is dated for reference October
31, 2008.
BETWEEN:
SUNERGY INC., a company having an address at 8711 E. Paraiso Dr. Scottsdale, AZ
85255
( “Purchaser”)
AND:
GENERAL METALS CORPORATION,
a company having an address at 615 Sierra
Rose Drive, Suite 1, Reno NV , 89511
( “Vendor”)
A.
The Vendor is the registered beneficial
owner of an undivided one hundred percent (100%) interest in and to
those certain mineral interests which are more particularly
described in Schedule "A" attached hereto (the
“Property”); and
B.
The Vendor wishes to sell to the
Purchaser an undivided one hundred percent (100%) interest in and
to the Property and any deposits of minerals on the Property, and
the Purchaser wishes to acquire the same on the terms and subject
to the conditions as are more particularly set forth
herein.
THEREFORE
in consideration of the mutual covenants and agreements in this
Agreement, the parties agree as follows:
1.
DEFINITIONS AND
INTERPRETATION
1.1
For the purposes of this
Agreement:
(a)
"Affiliate" means any person,
partnership, joint venture, corporation or other form of enterprise
which directly or indirectly controls, is controlled by, or is
under common control with, a party to this Agreement. For purposes
of the preceding sentence, "control" means possession, directly or
indirectly, of the power to direct or cause direction of management
and policies through ownership of voting securities, contract,
voting trust or otherwise;
(b)
"Effective Date" means, October 31, 2008;
(c)
"Net Smelter Return" shall mean the gross
proceeds received by the Purchaser in any year from the sale of
Product from the mining operation on the Property, less
successively:
(i)
the cost of transportation of such
Product to a smelter or other place of treatment, and
(ii)
smelter and treatment charges;
(d)
"Ore" shall mean any minerals of
commercial economic value mined from the Property;
(e)
"Payment" means the payments contemplated in paragraph ;
(f)
"Product" shall mean Ore mined from the
Property and any concentrates or other materials or products
derived therefrom, but if any such Ore, concentrates or other
materials or products are further treated as part of the mining
operation in respect of the Property, such Ore, concentrates or
other materials or products shall not be considered to be "Product"
until after they have been so treated.
(g)
"Property" means properties in Ghana, more particularly described
in Schedule "A" of this Agreement;
(h)
"Property Rights" means all licences, permits, easements,
rights-of-way, certificates and other approvals obtained by either
of the parties, either before or after the date of this Agreement,
and necessary for the development of the Property or for the
purpose of placing the Property into production or of continuing
production on the Property; and
(i)
"Shares" means fully paid and non-assessable common shares in the
capital of the Purchaser, issued pursuant to exemptions from
registration and prospectus requirements contained in the United
States Securities Act of 1933 and the rules and regulations
promulgated thereunder, which Shares shall contain such restrictive
legends regarding applicable hold periods as required by such
securities laws.
1.2
For the purposes of this Agreement,
except as otherwise expressly provided or unless the context
otherwise requires:
(a)
"this Agreement" means this mining acquisition agreement and all
Schedules attached hereto;
(b)
any reference in this Agreement to a designated "Section",
"Schedule", "paragraph" or other subdivision refers to the
designated section, schedule, paragraph or other subdivision of
this Agreement;
(c)
the words "herein" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Section or other subdivision of this Agreement;
(d)
any reference to a statute includes and, unless otherwise specified
herein, is a reference to such statute and to the regulations made
pursuant thereto, with all amendments made thereto and in force
from time to time, and to any statute or regulations that may be
passed which has the effect of supplementing or superseding such
statute or such regulation;
(e)
any reference to "party" or "parties" means the Vendor, the
Purchaser, or both, as the context requires;
(f)
the headings in this Agreement are for convenience of reference
only and do not affect the interpretation of this Agreement;
and
(g)
all references to currency refer to United States
dollars.
1.3
The following are the Schedules to this
Agreement, and are incorporated into this Agreement by
reference:
Schedule "A":
Property-Legal Description and
Location
2.
REPRESENTATIONS AND WARRANTIES OF THE
VENDOR AND THE PURCHASER
2.1
The Vendor represents and warrants to the
Purchaser that:
(a)
the Vendor is the beneficial owner of it’s interest in the
Property and the Vendor has the full right, power, capacity and
authority to enter into, execute and deliver this
Agreement;
(b)
the Property is free and clear of, and from, all liens, charges and
encumbrances with all assessment work therein having been duly
completed through the year ended December 31, 2008;
(c)
the Vendor holds all permits, licences, consents and authorities
issued by any government or governmental authority which are
necessary in connection with the ownership and operation of its
business and the ownership of the Property;
(d)
the Property has been properly staked, located and recorded
pursuant to the applicable laws and regulations of Ghana and all
mining claims comprising the Property are in good
standing;
(e)
there are no outstanding agreements or options to acquire the
Property or any portion thereof, and no person, firm or corporation
has any proprietary or possessor interest in the
Property;
(f)
to the best of the Vendor's knowledge,
there are no outstanding orders or directions relating to
environmental matters requiring any work, repairs, construction or
capital expenditures with respect to the Property and the conduct
of the operations related thereto, and the Vendor has not received
any notice of the same and is not aware of any basis on which any
such orders or direction could be made;
(g)
there is no adverse claim or challenge
against or to the ownership of or title to any part of the Property
and, to the best of the Vendor’s knowledge there is no basis
for such adverse claim or challenge which may affect the
Property;
(h)
the
consummation of the transactions contemplated by this Agreement
does not and will not conflict with, constitute a default under,
result in a breach of, entitle any person or company to a right of
termination under, or result in the creation or imposition of any
lien, encumbrance or restriction of any nature whatsoever upon or
against the property or assets of the Vendor, under its constating
documents, any contract, agreement, indenture or other instrument
to which the Vendor is a party or by which it is bound, any law,
judgment, order, writ, injunction or decree of any court,
administrative agency or other tribunal or any regulation of any
governmental authority;
(i)
t here are no actual or pending proceedings for, and
the Vendor is unaware of any basis for, the institution of any
proceedings leading to the placing of the Vendor in bankruptcy or
subject to any other laws governing the affairs of insolvent
parties and the Property does not represent all or substantially
all of the Vendor’s corporate undertaking;
(j)
reclamation and rehabilitation of those parts of the Property which
have been previously worked have been properly completed in
compliance with all applicable laws;
(k)
the Vendor has advised the Purchaser of
all of the material information relating to the mineral potential
of the Property of which it has knowledge; and
(l)
t
here are no mine workings or waste dumps or mine tailings on the
property.
2.2
The representations and warranties
contained in paragraph are provided for the exclusive benefit
of the Purchaser, and a breach of any one or more representations
or warranties may be waived by the Purchaser in whole or in part at
any time without prejudice to its rights in respect of any other
breach of the same or any other representation or warranty, and the
representations and warranties contained in paragraph will
survive the execution and delivery of this Agreement.
2.3
The Purchaser represents and warrants to
the Vendor that:
(a)
the Purchaser is a valid and subsisting
corporation duly incorporated and in good standing under the laws
of the State of Nevada;
(b)
the Purchaser
has the full right, power, capacity and authority to enter into,
execute and deliver this Agreement and to be bound by its
terms;
(c)
the consummation of this Agreement will
not conflict with nor result in any breach of its constating
documents or any covenants or agreements contained in or constitute
a default under any agreement or other instrument whatever to which
the Purchaser is a party or by which the Purchaser is bound or to
which the Purchaser may be subject; and
(d)
no proceedings are pending for, and the
Purchaser is unaware of any basis for, the institution of any
proceedings leading to the placing of the Purchaser in bankruptcy
or subject to any other laws governing the affairs of insolvent
parties.
2.4
The representations and warranties
contained in paragraph 2.3 are provided for the exclusive benefit
of the Vendor, and a breach of any one or more representations or
warranties may be waived by the Vendor in whole or in part at any
time without prejudice to its rights in respect of any other breach
of the same or any other representation or warranty, and the
representations and warranties contained in paragraph will
survive the execution and delivery of this Agreement.
2.5
The Vendor and the Purchaser acknowledge
that the Vendor will maintain control of the Property, subject to
this Agreement, and subject to all appropriate local and national
governmental approvals and environmental considerations.
3.
PURCHASE
3.1
The Vendor hereby sells to the Purchaser
a one hundred percent (100%) undivided interest in and to the
Property and all minerals on the Property, free and clear of all
claims, taxes, liens or encumbrances, on the terms and conditions
set out herein.
3.2
The consideration payable by the
Purchaser to the Vendor pursuant to this Agreement shall be for the
aggregate consideration of $1,000,000 consisting of the
following:
(a)
$500,000, which shall be payable as
follows:
(i)
$50,000 which is to be provided within 5
days of the Effective Date,
(ii)
$200,000 which is to be provided by
December 31, 2008, and
(iii)
and the balance of $250,000 which is to
be provided by April 30, 2009; and
(b)
2,000,000 restricted Shares of common
stock of the Purchaser, at a deemed value of $0.25 per
Share.
3.3
If the Purchaser identifies any material
defect in the Vendor’s title to the Property, the Purchaser
shall give the Vendor notice of such defect. If the defect
has not been cured within 60 days of receipt of such notice, the
Purchaser shall be entitled to take such curative action as is
reasonably necessary, and shall be entitled to deduct the costs and
expenses incurred in taking such action from Payments then
otherwise due or accruing due to the Vendor. If there are no
such Payments, the Purchaser shall be entitled to a refund in the
amount of said costs and expenses.
3.4
If any third party asserts any right or
claim to the Property or to any amounts payable to the Vendor, the
Purchaser may deposit any amounts otherwise due to the Vendor in
escrow with a suitable agent until the validity of such right or
claim has been finally resolved. If the Purchaser deposits
said amounts in escrow, the Purchaser
