Exhibit 10.11
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of December 19, 2007
(this "Agreement"), is among ECUADORGOLDCORP, S.A., an Ecuadorian corporation
("Ecuadorgold"), and CUTLER LAW GROUP, INC., a Florida corporation (the
"Assignee"), Spirit Exploration, Inc., a Nevada corporation ("Spirit), and
Minera Pacifico Noreste, S.A. ("Pacifico").
WHEREAS, Prior to the date hereof, Minera Pacifico Noreste S.A.
("Pacifico") has been the 100% owner of the mineral properties constituting the
Muluncay Project (the "Muluncay Project"). The Muluncay Project lies in the
centre of the Portovelo-Zaruma mining camp, which is found in the cantons of
Ayapamba and Paccha, Province of El Oro, southern Ecuador. It is centered at
Latitude 03 36' 30" South and Longitude 79 40' West. It covers an area of 374
hectares. Boundary co-ordinates for the Muluncay Project are found in Table
immediately below. The specific properties constituting the Muluncay Project are
more fully set forth on Exhibit A hereto. These are based on a metric UTM grid
system referenced to PSAD-56 datum and geographic zone 17.
MULUNCAY BOUNDARY COORDINATES
-----------------------------
EASTING - M NORTHING - M
----------- ------------
652000 9599400
----------- ------------
653100 9599400
----------- ------------
653100 9596800
----------- ------------
651600 9596800
----------- ------------
651600 9599000
----------- ------------
652000 9599000
----------- ------------
652000 9599400
----------- ------------
WHEREAS, the properties constituting the Muluncay Project are subject to
certain Mortgage Obligations (the "Mortgages") currently obligating Pacifico to
the payment of certain sums and interest. The Mortgages are more fully set forth
on Exhibit B hereto.
WHEREAS, by separate agreement of even date herewith, Ecuadorgold has been
assigned the Muluncay Project from Pacifico and assumed the obligations of the
Mortgages.
WHEREAS, Ecuadorgold is a wholly owned subsidiary of Spirit.
WHEREAS, in connection with that certain Definitive Agreement dated
November 15, 2007, Pacifico agreed to transfer the Muluncay Project subject to
the Mortgages to Ecuadorgold in consideration for certain shares of common
stock.
WHEREAS, the Muluncay Project must be assigned first to Ecuadorgold, and
then to Assignee as Trustee in connection with a financing (the "Financing")
currently being undertaken by Spirit.
WHEREAS, Assignee desires to acquire the Muluncay Project and assume the
obligations of the Mortgages underlying the Muluncay Project in connection with
the proposed financing.
WHEREAS, Assignee has formed Cutler Ecuador S.A., a new corporation in
Ecuador, which is 99% owned by Assignee ("Cutler Law Group Ecuador") which shall
acquire the Muluncay Project and assume the obligations of the Mortgages
underlying the Muluncay Project.
For and in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Assignment and Assumption.
a. Ecuadorgold hereby grants, transfers and assigns to the Cutler Law
Group Ecuador on behalf of Assignee all of the right, title and interest of
the Assignor in the Muluncay Project, and Cutler Law Group Ecuador on
behalf of Assignee hereby assumes any and all obligations related to the
Mortgages.
b. Ecuadorgold represents and warrants to the Assignee that
Ecuadorgold has not taken any action that would serve to impair or encumber
the Ecuadorgold's ownership interest in the Muluncay Project since the date
of acquisition other than the Mortgages.
2. Representations and Warranties of the Assignor. Ecuadorgold warrants
and represents to, and covenants with, the Assignee that:
a. Ecuadorgold is the lawful owner of the Muluncay Project with the
full right to transfer such Muluncay Project, which transfer is made free
from any claims and encumbrances other than the Mortgages;
b. Neither Ecuadorgold nor anyone acting on its behalf has offered,
transferred, pledged sold or otherwise disposed of the Muluncay Project or
any interest in the Muluncay Project to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Muluncay Project or
any interest in the Muluncay Project.
c. Ecuadorgold has been duly organized and is validly existing as a
corporation in good standing under the laws of the Country of Ecuador with
full power and authority to enter into and perform its obligations under
this Agreement;
d. This Agreement has been duly executed and delivered by Ecuadorgold,
and, assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a legal, valid, and binding agreement of
Ecuadorgold, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law;
e. The execution, delivery and performance by Ecuadorgold of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date thereof;
f. The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action on the part of Ecuadorgold;
neither the execution and delivery by Ecuadorgold of this Agreement, nor
the consummation by Ecuadorgold of the transactions herein contemplated,
nor compliance by Ecuadorgold with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of the
provisions of the governing documents of Ecuadorgold or any law,
governmental rule or regulation or any material judgment, decree or order
binding on Ecuadorgold or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other
instrument to which Ecuadorgold is a party or by which it is bound;
4. Representations and Warranties of the Assignee. The Assignee
warrants and represents to, and covenants with, Ecuadorgold that:
a. Cutler Law Group Ecuador and Assignee agree to be bound by all of
the terms, covenants and conditions of its ownership of the Muluncay
Project and from and after the date hereof, Cutler Law Group Ecuador on
behalf of Assignee assumes for the benefit of Ecuadorgold all of
Ecuadorgold's obligations under the Mortgages;
b The Assignee hereto represents and warrants that it is duly and
legally authorized to enter into this Agreement and to perform its
obligations hereunder; and
c. The Assignee hereto represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and (assuming due
authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Covenants of Spirit and Pacifico.
a. Immediately upon receipt of any funding from the Financing, or upon
the receipt by Spirit of any funds from any other source for use in its
operations, Spirit shall immediately pay any and all obligations (including
without limitation principal, penalties and/or interest) due under the
Mortgages in full.
b. Immediately upon full payment of the Mortgages as set forth in
paragraph 5(a) above, Pacifico shall immediately undertake any and all
actions necessary or advisable to complete legal transfer of the properties
constituting the Muluncay Project to Assignee or Cutler Law Group (as
Trustee). Without limitation to the generality of the foregoing, Pacifico
agrees to provide whatever title documents, legal opinions, property
descriptions or other definitive documentation required to formally
effectuate legal title, to register legal title and/or record in the
appropriate registration and recording offices transfer of and title to
such Muluncay Properties set forth therein with Assignee or Cutler Law
Group, as the case may be, under applicable Ecuadorian law to the
reasonable satisfaction of counsel to Assignee or Cutler Law Group,
sufficient to assure that Assignee or Cutler Law Group, as the case may be,
has full legal right, title and interest to such properties constituting
the Muluncay Project including without limitation any and all mineral
rights and mining rights thereto.
6. This Agreement has been entered into in the state of Nevada, and all
questions with respect to this Agreement and the rights and liabilities of the
parties hereto shall be governed by the laws of Nevada, and the venue of any
action brought hereunder shall be in Clark County, State of Nevada. Without
limitation in any way to the foregoing, Spirit and Pacifico hereby expressly
waive any and all application of Ecuadorian law to the interpretation and
enforcement of this Agreement and expressly waive any right to venue or
jurisdiction of any court in Ecuador.
7. All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, or sent by overnight courier to those
addresses set forth opposite the signature page hereto.and/or such other address
as may hereafter be furnished by Ecuadorgold or Assignee.
8. Each of Ecuadorgold and Assignee, for itself and its successors and
assigns, hereby covenants with the other, its successors and assigns, that such
party and its successors and assigns will do, execute and deliver, or will cause
to be done, executed and delivered, all such further acts, transfers,
assignments, conveyances, powers of attorney and assurances as are necessary to
effectuate the transactions set forth herein.
9. This Agreement and the covenants and agreements contained herein
shall inure to the benefit of Assignee and its successors and assigns, and shall
be binding upon Ecuadorgold and its successors and assigns.
10. This Agreement contains the entire understanding between the parties
hereto concerning the subject matter hereof, and there are no representations,
agreements, arrangements or understandings, oral or written, between or among
the parties hereto relating to the subject matter of this Agreement which are
not fully expressed herein. Neither this Agreement nor any of the provisions
herein shall be modified or waived except by an instrument in writing signed by
each of the parties hereto.
11. This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above written.
ASSIGNEE (for itself and on behalf of CUTLER LAW GROUP ECUADOR):
CUTLER LAW GROUP, INC.
By: \s\ M. Richard Cutler
---------------------
M. Richard Cutler, President
ASSIGNOR:
ECUADORGOLDCORP, S.A.
By: \s\ Luis Penaherrera
--------------------
Luis Penaherrera, General Manager
PACIFICO:
MINERA DEL PACIFICO NORESTE, S.A.
By: \s\ Luiggi Lopez
----------------
Luiggi Lopez
SPIRIT:
SPIRIT EXPLORATION, INC.
By: \s\ Peter Laipnieks
-------------------
Peter Laipnieks, President