EXHIBIT 10.4
ESCROW AGREEMENT
This Escrow Agreement, dated as of January 10, 2005, (the "Escrow Agreement"),
is entered into by and among Borealis Mining Company, a Nevada corporation
("Buyer"), Gryphon Gold Corporation, a Nevada corporation ("Guarantor"), and
Lawyers Title Agency of Arizona, LLC., an Arizona corporation, as escrow agent
(the "Escrow Agent").
RECITALS
WHEREAS, Buyer, Guarantor and Golden Phoenix Minerals, Inc., a Minnesota
corporation ("Seller"), have entered into a purchase agreement dated January 10,
2005 ("Purchase Agreement") whereby Seller has agreed to sell and assign its
interest in certain Property and Buyer has agreed to purchase and accept such
Property pursuant to the terms of the Purchase Agreement;
WHEREAS, Buyer has agreed to make scheduled payments payable to Seller
("Purchase Price" as defined in the Purchase Agreement) pursuant to the terms of
the Purchase Agreement;
WHEREAS, Guarantor has agreed to pledge as security certain securities ("Pledged
Stock" as defined in the Purchase Agreement) pursuant to the terms of the
Purchase Agreement; and
WHEREAS, the Escrow Agent has agreed with Buyer and Guarantor to hold the
Purchase Price and Pledged Stock in escrow pursuant to the terms and conditions
provided in the Purchase Agreement and this Escrow Agreement.
AGREEMENT
In consideration of the mutual covenants and agreements contained herein, Buyer,
Guarantor and Escrow Agent hereby agree as follows:
1. Buyer agrees to deposit the Purchase Price with the Escrow Agent in
accordance with the Purchase Agreement and the Purchase Price deposited to the
Escrow Agent shall be immediately negotiable (wired) and Escrow Agent shall
disburse the Purchase Price in accordance with the terms set out in the Purchase
Agreement without any further authorization of the parties. Buyer hereby
irrevocably authorizes and directs the Escrow Agent to hold and disburse the
Purchase Price pursuant to the terms of the Purchase Agreement and this Escrow
Agreement.
2. Guarantor agrees to deposit the Pledged Stock with Escrow Agent in
accordance with the Purchase Agreement and Escrow Agent hereby agrees to hold
the Pledged Stock in escrow and disburse the Pledged Stock in accordance with
the terms set out in the Purchase Agreement without any further authorization of
the parties. Guarantor hereby irrevocably authorizes and directs the Escrow
Agent to hold and disburse the Pledged Stock pursuant to the terms of the
Purchase Agreement and this Escrow Agreement
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3. Escrow Agent Escrow Agent is not responsible for monitoring the due
dates for payment of the Purchase Price as described in the Purchase Agreement.
4. Escrow shall be automatically cancelled on the 366th day following
the Closing Date as described in the Purchase Agreement.
5. The Escrow Agent shall have no liability to Buyer or Guarantor,
their respective shareholders or any other person with respect to any such
suspension of performance or disbursement into court, specifically including any
liability or claimed liability that may arise, or be alleged to have arisen, out
of or as a result of any delay in the disbursement of funds held in escrow or
any delay in or with respect to any other action required or requested of the
Escrow Agent.
6. The Escrow Agent may resign from the performance of its duties
hereunder at any time by giving ten (10) days' prior written notice to the Buyer
and Guarantor. Such resignation shall take effect upon the appointment of a
Successor Escrow Agent as provided herein below. Upon any such notice of
resignation, the parties hereto jointly shall appoint a Successor Escrow Agent
hereunder, which shall be a commercial bank, trust company or other financial
institution with a combined capital and surplus in excess of $10,000,000. Upon
the acceptance in writing of any appointment as escrow agent hereunder by a
Successor Escrow Agent, such Successor Escrow Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations under this Escrow Agreement, but shall not be
discharged from any liability for actions taken as Escrow Agent hereunder prior
to such succession. After any retiring Escrow Agent's resignation, the
provisions of this Escrow Agreement shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Escrow Agent under this Escrow
Agreement. The retiring Escrow Agent shall transmit all records pertaining to
the Escrow Fund and shall pay all funds held by it in escrow to the successor
Escrow Agent, after making copies of such records as the retiring Escrow Agent
deems advisable and after deduction and payment to the retiring Escrow Agent of
all fees and expenses (including court costs and attorneys' fees) payable to or
incurred by the retiring Escrow Agent in connection with the performance of its
duties and the exercise of its rights hereunder.
7. The Escrow Agent shall have no liability or obligation with respect
to the Escrow Fund except for Escrow Agent's willful misconduct or gross
negligence. The Escrow Agent's sole responsibility shall be for the safekeeping,
and disbursement of the Escrow Fund in accordance with the terms of the Purchase
Agreement and this Escrow Agreement. The Escrow Agent shall have no implied
duties or obligations and shall not be charged with knowledge or notice of any
fact or circumstance not specifically set forth herein. The Escrow Agent may
rely upon any instrument, not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any information
contained therein, which the Escrow Agent shall in good faith believe to be
genuine, to have been signed or presented by the person or parties purporting to
sign the same and to conform to the provisions of this Escrow Agreement. In no
event shall the Escrow Agent be liable for incidental, indirect, special,
consequential or punitive damages. The Escrow Agent shall not be obligated to
take any legal action or commence any proceeding in connection with
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the Escrow Fund, any account in which Escrow Fund are deposited, this Escrow
Agreement, or the Purchase Agreement, or to appear in, prosecute or defend any
such legal action or proceeding. The Escrow Agent may consult legal counsel
selected by it in the event of any dispute or question as to the construction of
any of the provisions hereof or of any other agreement or of its duties
hereunder, or relating to any dispute involving any party hereto, and shall
incur no liability and shall be fully indemnified from any liability whatsoever
in acting in accordance with the opinion or instruction of such counsel. Buyer
and Guarantor shall each promptly pay, upon demand, 50% of the reasonable fees
and expenses of any such counsel.
8. The Escrow Agent is authorized, in its sole discretion, to comply
with orders issued or process entered by any court with respect to the Escrow
Fund, without determination by the Escrow Agent of such court's jurisdiction in
the matter. If any portion of the Escrow Fund is at any time attached, garnished
or levied upon under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any such property shall be stayed or
enjoined by any court order, or in case any order, judgment or decree shall be
made or entered by any court affecting such property or any part thereof, then
and in any such event, the Escrow Agent is authorized, in its sole discretion,
to rely upon and comply with any such order, writ, judgment or decree which it
is advised by legal counsel selected by it is binding upon it without the need
for appeal or other action; and if the Escrow Agent complies with any such
order, writ, judgment or decree, it shall not be liable to any of the parties
hereto or to any other person or entity by reason of such compliance even though
such order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
9. From and at all times after the date of this Escrow Agreement, Buyer
and Guarantor shall, to the fullest extent permitted by law and to the extent
provided herein, indemnify and hold harmless the Escrow Agent and each director,
officer, employee, attorney, agent and affiliate of the Escrow Agent
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, costs and expenses of any
kind or nature whatsoever (including without limitation reasonable attorneys'
fees, costs and expenses) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including without limitation, Seller, Buyer or
Guarantor, whether threatened or initiated, asserting a claim for any legal or
equitable remedy against any person under any statute or regulation, including,
but not limited to, any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or failure of performance of
this Escrow Agreement or any transactions contemplated herein, whether or not
any such Indemnified Party is a party to any such action, proceeding, suit or
the target of any such inquiry or investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for any
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or willful
misconduct of such Indemnified Party. If any such action or claim shall be
brought or asserted against any Indemnified Party, such Indemnified Party shall
promptly notify Buyer and Guarantor, in writing, and
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such parties shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in its
sole discretion, have the right to employ separate counsel (who may be selected
by such Indemnified Party in its sole discretion) in any such action and to
participate in the defense thereof, and the fees and expenses of such counsel
shall be paid by such Indemnified Party, except that Buyer and Guarantor each
shall be required to pay 50% of such fees and expenses if (a) Buyer and
Guarantor agree to pay such fees and expenses, (b) Buyer and Guarantor shall
have failed to assume the defense of such action or proceeding or shall have
failed, in the reasonable discretion of such Indemnified Party, to employ
counsel satisfactory to the Indemnified Party in any such action or proceeding,
(c) Buyer and Guarantor is the plaintiff in any such action or proceeding and
the Indemnified Party is not a defendant in any such action or proceeding, or
(d) the named or potential parties to any such action or proceeding (including
any potentially impleaded parties) include both Indemnified Party, Buyer and
Guarantor, and Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to Buyer and Guarantor. Buyer and Guarantor shall
each be liable to pay 50% of the reasonable fees and expenses of counsel
pursuant to the preceding sentence, except that any obligation to pay under
clause (a) shall apply only to the party so agreeing. All such fees and expenses
payable by Buyer and Guarantor pursuant to the foregoing sentence shall be paid
from time to time as incurred. The obligations under this Section 9 shall
survive any termination of this Escrow Agreement.
10. The Escrow Agent shall be paid a fee of $2,177.00 as compensation
for serving as Escrow Agent and shall be reimbursed for any out-of-pocket
expenses incurred by it, which fee and reimbursement shall be payable by Buyer.
11 All notices and other communications hereunder shall be in writing
and shall be deemed to have been validly served, given or delivered five (5)
days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows:
If to Buyer:
Borealis Mining Company
1153 Bergen Parkway, Suite M290
Evergreen, CO 80439-9773
\ Attention: Allen Gordon
with copies to:
Snell & Wilmer LLP
One S. Church Avenue, Suite 1500
Tucson, AZ 85701-1630
Facsimile: (520) 884-1294
Attention: Lowell Thomas, Esq.
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If to Guarantor:
Gryphon Gold Corporation
1153 Bergen Parkway, Suite M290
Evergreen, CO 80439-9773
\ Attention: Allen Gordon
with copies to:
Snell & Wilmer LLP
One S. Church Avenue, Suite 1500
Tucson, AZ 85701-1630
Facsimile: (520) 884-1294
Attention: Lowell Thomas, Esq.
If to the Escrow Agent:
Lawyers Title of Arizona, Inc.
One S. Church Avenue, Suite 1800
Tucson, AZ 85701
Telephone: (520) 740-0424
Facsimile: (520) 740-0436
Attention: Pam Tighe or Cathy Hansen
or to such other address as each party may designate for itself by like notice.
12. Amendment or Waiver. This Escrow Agreement may be changed, waived,
discharged or terminated only by a writing signed by Buyer, Guarantor and the
Escrow Agent. No delay or omission by any party in exercising any right with
respect hereto shall operate as a waiver. A waiver on any one occasion shall not
be construed as a bar to, or waiver of, any right or remedy on any future
occasion.
13. Severability. To the extent any provision of this Escrow Agreement
is prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
14. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of Arizona without
giving effect to the conflict of laws principles thereof.
15. Entire Agreement. This Escrow Agreement and the Purchase Agreement
constitute the entire agreement between the parties relating to the holding,
investment and disbursement of the Escrow Funds and sets forth in their entirety
the obligations and duties of the Escrow Agent with respect to the Escrow Funds.
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16. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and be
enforceable by the respective heirs, successors and assigns of Buyer, Guarantor
and the Escrow Agent.
17. Execution in Counterparts. This Escrow Agreement may be executed in
two or more counterparts, which when so executed shall constitute one and the
same agreement or direction. The parties agree that facsimile signatures
attached to this Escrow Agreement shall be valid and binding as an original
signature.
18. Enforceability. Any term or provision of this Escrow Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
or provisions of this Escrow Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Escrow Agreement in any
other jurisdiction.
IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement as of the date first above written.
BOREALIS MINING COMPANY, a Nevada corporation
By: /s/ Allen S. Gordon
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Name: Allen S. Gordon
Its: President
GRYPHON GOLD CORPORATION, a Nevada corporation
By: /s/ Allen S. Gordon
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Name: Allen S. Gordon
Its: President
LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation
By:
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Name:
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Title:
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