EXHIBIT 4.78
CAPITOL SILVER MINE PROPERTY - ONTARIO
This Agreement is dated for reference the 21st day of June, 2005.
BETWEEN:
CANADIAN PROSPECTING VENTURES INC.
XX Xxx 000, 00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx X0X 0X0
Fax: 000.000.0000
(the above hereinafter referred to as the "Optionor")
OF THE FIRST PART
AND:
XXXXXX GOLD CORP.
711 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Fax: 000.000.0000
(the above hereinafter referred to as the "Optionee")
OF THE SECOND PART
WHEREAS the Optionor is the recorded and beneficial owner of certain mining
claims situated in Ontario more particularly described in Schedule "A" attached
hereto (the "Property");
AND WHEREAS the Optionor desires to grant and the Optionee is desirous of
obtaining an option to acquire a 100% undivided interest in and to the Property
upon terms and subject to the conditions herein contained.
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements herein contained, the parties agree as follows:
1. OPTION ONLY
This is an option only and except as specifically provided otherwise, nothing
herein contained shall be construed as obligating the Optionee to do any acts or
make any payments hereunder and any act or acts, or payment or payments as shall
be made hereunder shall not be construed as obligating the Optionee to do any
further act or make any further payment. If the Option is terminated before the
Option is exercised, the Optionee shall not be bound thereafter in debt, damages
or otherwise under this Agreement, except in respect of obligations arising
prior to such termination or otherwise provided for in this Agreement, and all
payments theretofore paid by the Optionee shall be retained by the Optionor for
its own use absolutely.
2. TERMS OF THE OPTION
In order to maintain the Option in good standing and earn a 100% right, title
and undivided interest in and to the Property, the Optionee, subject to
paragraph 1, shall:
(a) pay to the Optionor $5,000 upon regulatory approval;
(b) pay to the Optionor a further $5,000 on or before the date
which is 12 months from the date of regulatory approval;
(c) pay to the Optionor a further $10,000 on or before the date
which is 24 months from the date of regulatory approval;
(d) pay to the Optionor a further $15,000 on or before the date
which is 36 months from the date of regulatory approval;
(e) issue to the Optionor 50,000 common shares of the Optionee on
or before the fifth bueinsss day following regulatory
approval, regulatory approval must be sought within five (5)
business days of signing this Agreement;
(f) issue to the Optionor a further 50,000 common shares of the
Optionee on the date which is 12 months from the date of
regulatory approval;
(g) issue to the Optionor a further 150,000 common shares of the
Optionee on the date which is 24 months from the date of
regulatory approval;
(h) issue to the Optionor a further 100,000 common shares of the
Optionee on the date which is 36 months from the date of
regulatory approval;
(i) incur $20,000 in exploration expenses on the Property on or
before the date which is 12 months from the date of regulatory
approval;
(j) incur at least an aggregate of $40,000 in exploration expenses
on the Property on or before the date which is 24 months from
the date of regulatory approval;
(k) incur at least an aggregate of $60,000 in exploration expenses
on the Property on or before the date which is 36 months from
the date of regulatory approval; and
(l) grant the Optionor the first right of refusal for all
exploration work that the Optionor is competent to perform,
provided said work is conducted at a price consistent with the
going industry standard for such work in the area surrounding
the property.
3. EXERCISE OF THE OPTION
If the Optionee has paid $35,000 to the Optionor, issued 300,000 common shares
to the Optionor and incurred a minimum of $60,000 in exploration expenses on the
Property, the Optionee shall be deemed to have exercised the Option and will
have acquired an undivided 100% right, title and interest in and to the
Property, subject to the Royalty Interest.
4. ROYALTY INTEREST
The Optionor shall be entitled to receive and the Optionee shall pay to the
Optionor a royalty equal to 2% royalty of the net smelter returns (the "Royalty
Interest") calculated and payable from the Property in accordance with the
provisions of Schedule "B" attached hereto.
The Optionee may at any time purchase 0.5% of the Royalty Interest from the
Optionor for $500,000 and may at any time purchase an additional 0.5% of the
Royalty Interest from the Optionor for $500,000 thereby leaving the Optionor
with a 1% Royalty Interest.
5. OPERATOR
The Optionee shall be the operator for purposes of developing and executing
exploration programs.
6. RIGHT OF ENTRY
During the currency of the Option the Optionee and its employees, agents and any
person duly authorized by the Optionee shall have the sole and exclusive right,
so long as it is operator, to:
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(a) enter in, under and upon the Property;
(b) have exclusive and quiet possession thereof subject to the
rights of the Optionor hereunder;
(c) do such prospecting, exploration, development or other mining
work thereon and thereunder as the Optionee in its sole
discretion may consider advisable;
(d) bring upon and erect upon the Property such mining facilities
as the Optionee may consider advisable; and
(e) remove from the Property and dispose of reasonable quantities
of ores, minerals and metals for the purposes of sampling,
obtaining assays or making other tests.
7. NOTICE OF DEFAULT AND TERMINATION BY OPTIONOR
If the Optionee should be in default in making any payments or performing any
other of its obligations hereunder, the Optionor may give written notice to the
Optionee specifying the default. The Optionee shall not lose any rights granted
under this Agreement so long as, within thirty (30) days after the giving of
such notice of default by the Optionor, the Optionee shall cure the specified
default. If the Optionee fails to cure the default within the thirty (30) day
period, the Optionor shall be entitled thereafter to terminate this Agreement by
giving written notice of termination to the Optionee. Upon termination of this
Agreement by the Optionor the provisions of paragraph 13 shall apply.
8. NO PRODUCTION OBLIGATION
The Optionee shall be under no obligation whatsoever to place the Property into
production.
9. EXCLUSION OF PROPERTY
The Optionee shall have the right at any time and from time to time to elect to
exclude from this Agreement any portion of the Property by not less than 60 days
prior written notice to the Optionor of this election; provided that any portion
of the Property so excluded shall be in good standing for a period of a minimum
of one year and free and clear of all liens, charges and encumbrances, and
provided further that the Optionee, if requested by the Optionor in writing,
shall deliver to the Optionor recorded transfers of any mineral claims and other
property interests which are included in the portion of the Property so excluded
in favour of the Optionor.
10. COVENANTS OF THE OPTIONEE
During the currency of this Agreement, the Optionee shall:
(a) ensure the Property is in good standing by ensuring all the
filing of assessment work conducted on the Property is
completed or by making payments in lieu thereof, and by doing
all other acts and things and making all other payments which
may be necessary in that regard;
(b) will provide copies of all records and files relating to the
Property in its possession and permit the Optionor and its
representatives to take abstracts therefrom and make copies
thereof within 30 days of returning a Proeprty;
(c) permit the Optionor, or its representative, duly authorized by
it in writing, at its own risk and expense, access to the
Property at all reasonable times and to all records prepared
by the Optionee in connection with work done or with respect
to the Property;
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(d) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionor hereunder; and
(e) ensure all work on or with respect to the Property is done in
a careful and workmanlike manner and in compliance with the
applicable laws of the jurisdiction in which the Property is
located and indemnify and save the Optionor harmless from any
and all loss, damage, costs, actions and suits arising out of
or in connection with work done by the Optionee on or with
respect to the Property.
11. COVENANTS OF THE OPTIONOR
During the currency of this Agreement, the Optionor covenants and agrees with
the Optionee to:
(a) not do or permit or suffer to be done any act or thing which
would or might in any way adversely affect the rights of the
Optionee hereunder;
(b) make available to the Optionee and its representatives all
records and files relating to the Property in its possession
and permit the Optionee and its representatives to take
abstracts therefrom and make copies thereof;
(c) promptly provide the Optionee with any and all notices and
correspondence from government agencies in respect of the
Property; and
(d) promptly make all necessary filings on the Property either as
determined by the Optionor or as directed by the Optionee.
12. REPRESENTATIONS AND WARRANTIES OF THE OPTIONOR
The Optionor hereby represents and warrants to the Optionee that:
(a) the Optionor is the legal and beneficial owner of the
Property;
(b) the Property consists of those mineral claims more
particularly described in Schedule "A" attached hereto, and
that such claims were located and recorded in accordance with
the applicable laws of Ontario and are valid and subsisting as
of the date of execution and delivery of this Agreement;
(c) the Property is in good standing, free and clear of all liens,
charges and encumbrances;
(d) there are no pending or threatened actions, suits, claims or
proceedings regarding the Property; and
(e) the Optionor has the exclusive right and authority to enter
into this Agreement and to dispose of the Property in
accordance with the terms hereof, and that no other person,
firm or corporation has any proprietary or other interest in
the same.
The representations and warranties of the Optionor herein before set out, form a
part of this Agreement and are conditions upon which the Optionee has relied on
in entering into this Agreement and shall survive the exercise of the Option by
the Optionee. The Optionor shall indemnify and save the Optionee harmless from
all loss, damage, costs, actions and suits arising out of or in connection with
any breach of any representation, warranty, covenant, agreement or condition
contained in this Agreement. The Optionor acknowledges and agrees that the
Optionee has entered into this Agreement relying on the warranties and
representations and other terms and conditions of this Agreement and that no
information which is now known or which may hereafter become known to the
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Optionee or its officers, directors or professional advisors shall limit or
extinguish the right to indemnity hereunder.
13. TERMINATION PRIOR TO ACQUISITION OF INTEREST
If the Option is terminated, the Optionee shall return to the Optionor forthwith
exclusive and quiet possession of the Property, in good standing for a period of
a minimum of one year and free and clear of all liens, charges and encumbrances.
14. ADDITIONAL TERMINATION
In addition to any other termination provisions contained in this Agreement, the
Optionee shall at any time have the right to terminate its rights and future
obligations under this Agreement by giving notice in writing of such termination
to the Optionor, and in the event of such termination, the Optionee shall not
earn any interest in the Property, and this Agreement, save and except for the
provisions of paragraphs 13 hereof, shall be of no further force and effect.
15. FORCE MAJEURE
If the Optionee is prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, lockouts, labour shortages, power shortages,
fires, wars, acts of God, governmental regulations restricting normal operations
or any other reason or reasons beyond the control of the Optionee, the time
limited for the performance of the various provisions of this Agreement as set
out above shall be extended by a period of time equal in length to the period of
such prevention and delay. The Optionee, insofar as is possible, shall promptly
give written notice to the Optionor of the particulars of the reasons for any
prevention or delay under this paragraph, and shall take all reasonable steps to
remove the cause of such prevention or delay and shall give written notice to
the Optionor as soon as such cause ceases to subsist.
16. NOTICE
Any notice required to be given under this Agreement shall be deemed to be well
and sufficiently given if delivered or if mailed by registered mail in Canada,
(save and except during the period of any interruption in the normal postal
service within Canada) or sent by facsimile transfer to either party at the
addresses first set out above and any notice given as aforesaid shall be deemed
to have been given, if delivered or sent by facsimile transfer, when delivered
or faxed, or if by registered mail, on the third business day after the date
sent by mail . Either party may from time to time by notice in writing change
its address for the purpose of this paragraph.
17. FURTHER ASSURANCES
The parties hereto agree to execute all such further or other assurances and
documents and to do or cause to be done all acts necessary to implement and
carry into effect the provisions and intent of this Agreement.
18. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
19. TITLES
The titles to the respective paragraphs hereof shall not be deemed to form part
of this Agreement but shall be regarded as having been used for convenience of
reference only.
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20. SCHEDULES
The Schedules to this Agreement shall be construed with and as an integral part
of this Agreement to the same extent as if they were contained in the body
hereof.
21. VOID OR INVALID PROVISION
If any term, provision, covenant or condition of this Agreement, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all provisions, covenants and conditions of this
Agreement, and all applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and in no way be affected, impaired or
invalidated thereby.
22. SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors, assigns, heirs, executors or
administrators as the case may be.
23. APPROVALS
The Optionee and the Optionor hereby acknowledge that this Agreement shall be
subject to all necessary regulatory approvals.
24. ARBITRATION
If any question, difference or dispute shall arise between the parties or any of
them in respect of any matter arising under or in connection with the subject
matter of this Agreement, or in relation to the construction hereof, the same
shall be determined by the award of a single arbitrator under the Commercial
Arbitration Act of the Province of Ontario, and the decision of the arbitrator
shall in all respects be conclusive and binding upon all the parties.
25. ASSIGNMENT
The Optionee with the consent of the Optionor first had and obtained, such
consent to be not unreasonably withheld, may at any time during the term of the
Option sell, transfer or otherwise dispose of all or any portion of its interest
in or its rights under this Agreement; provided that any purchaser, grantee or
transferee of any such interest or rights delivers to the Optionor its agreement
related to this Agreement and to the Property, containing:
(a) a covenant by such transferee to perform all the obligations
of the Optionee to be performed under this Agreement in
respect of the interest or rights to be acquired by it from
the Optionee to the same extent as if this Agreement had been
originally executed by such transferee as principal obligant;
and
(b) a provision subjecting any further sale, transfer or other
disposition of such interest or rights or any portion thereof
to the restrictions contained in this section;
and further provided that any shares delivered to the Optionor in connection
with the exercise of the Option must be shares of the Optionee, unless otherwise
agreed in writing by the Optionor.
No transfer or assignment by the Optionee of any interest less than its entire
interest in this Agreement shall, as between the Optionee and the Optionor,
discharge it from any of its obligations hereunder, but upon the transfer by the
Optionee of the entire interest at the time held by it in this Agreement
(whether to one or more transferees and whether in one or in a number of
successive transfers), the Optionee shall be deemed to be discharged from all
obligations hereunder save and except for obligations which arose prior to the
date of transfer.
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26. AFTER-ACQUIRED PROPERTY
The area which is included within two kilometres of the outer most boundary of
the Property shall be deemed to be an area of interest ("Area of Interest").
During the term of this Agreement any mineral claim, lease or other mineral
right or interest acquired by or on behalf of the Optionee, the Optionor or
their assigns, by staking within the Area of Interest shall be deemed to have
been acquired on behalf of and for the benefit of the parties pursuant to the
terms of this Agreement. This Agreement shall not extend beyond the Area of
Interest and shall not affect mineral properties which the parties now hold or
hereafter stake or acquire adjacent to the Area of Interest."
27. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario.
28. PRIOR AGREEMENTS
This Agreement contains the entire agreement between the parties in respect of
the Property and supersedes all prior agreements between the parties hereto with
respect to the Property, which said prior agreements shall be deemed to be null
and void upon the execution hereof.
29. EXECUTION IN COUNTERPARTS AND DELIVERY
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document and may be delivered by
facsimile or other means of electronic communication producing a printed copy.
IN WITNESS WHEREOF the parties hereto have executed these presents as of the day
and year first above written.
The COMMON SEAL of )
Canadian Prospecting Ventures Inc. )
was hereunto affixed in the presence of: )
)
BY: /S/ XXXXX X. XXXXXXXX )
--------------------------------------- )
Xxxxx X. XxXxxxxx, President )
The COMMON SEAL of )
XXXXXX GOLD CORP. )
was hereunto affixed in the presence of: )
)
BY: /S/ XXXXXXX X. XXXXXX )
--------------------------------------- )
Authorized Signatory )
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SCHEDULE "A"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 21ST DAY OF JUNE, 2005
BETWEEN CANADIAN PROSPECTING VENTURES INC. AND XXXXXX GOLD CORP.
--------------------------------------------------------------------------------
PROPERTY
The Property consists of the following:
CLAIM NUMBER TOWNSHIP NUMBER OF UNITS DUE DATE
------------ -------- --------------- ------------
L-4208019 Haultain 1 June 9, 2005
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SCHEDULE "B"
REFERRED TO IN THE AGREEMENT DATED FOR REFERENCE THE 21ST DAY OF JUNE, 2005
BETWEEN CANADIAN PROSPECTING VENTURES INC. AND XXXXXX GOLD CORP.
--------------------------------------------------------------------------------
ROYALTIES
1. For all diamonds, gems and other precious and semi-precious stones
("STONE PRODUCTS") mined or produced from the Property, the Optionee
shall pay to the Optionor a Royalty equal to a percentage of the net
sales returns ("NSAR") realized from the sale or disposition of the
Stone Products.
2. For all metals, bullion, concentrates or ores ("OTHER PRODUCTS") mined
or produced from the Property, the Optionee shall pay to the Optionor a
Royalty equal to a percentage of the net smelter returns ("NSMR")
realized or deemed to be realized as hereinafter provided, from the
sale or disposition of the Other Products.
3. The aforementioned percentage of the NSAR and percentage of the NSMR
shall be that determined in accordance with the provisions of Section
4.1 of the Agreement to which this Schedule B forms a part; and in the
calculation of the Royalty, such percentage is applied to 100% of the
NSAR or NSMR, as the case may be, regardless of dilution of the
Optionee's working interest or entitlement with respect to the
Agreement, the Property or the Products.
4. For the purposes of this Schedule B, the term "PRODUCTS" shall be
interpreted as a collective reference to Stone Products and Other
Products and the term "ROYALTY" shall be interpreted as a collective
reference to the NSAR Royalty and the NSMR Royalty.
5. Net Sales Returns Royalty - Stone Products
a. Net sales returns means the gross proceeds from the sale or
disposition of Stone Products to an independent purchaser,
after deducting therefrom the cost of Valuation, Sorting,
Shipping and Insurance in connection with the Stone Products
as well as any sales, excise, production, export and other
duties, levies, assessments and taxes (except income taxes)
payable on the production or sale of Stone Products (but not
income taxes), and for the purposes hereof:
i. "VALUATION" means the establishing of a value for
each lot or group of sorted Stone Products for
purposes of reference when negotiating with a
potential purchaser of the same;
ii. "SORTING" means separation of Stone Products from
waste materials and dividing them into groups
according to quality, size, or other characteristics,
and then the division of such groups into appropriate
lots or groups for valuing and/or sale, it being
acknowledged that in the case of gem quality Stone
Products, a group or lot may be a single stone;
iii. "SHIPPING" means all methods of transportation or
places of storage of Stone Products from the moment
they leave the Property until the passing of title
thereto or risks therefor (whichever is the later) to
an independent purchaser, including, without
limitation, any cost that may be incurred by reason
of such methods or places used or any sorting or
valuation facilities being situated off the Property;
and
iv. "INSURANCE" means all insurance that the Optionee
considers advisable to protect all or part of the
Stone Products in the possession or control of the
Optionee (including,
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without limitation, during shipping) until the
passing of title thereto or risks therefor (whichever
is the later) and including, without limitation, the
insurance or bonding of any person who does or may
come into contact with any such Stone Products at any
point during the operations of the Optionee whether
such person is an employee of the Optionee or
otherwise.
b. If Stone Products are sold to any entity with which the
Optionee does not deal at arm's length, the Stone Products
shall for the purposes hereof be deemed to have been sold at
prices determined by an independent valuator chosen by the
Optionor.
c. The Optionee shall not have the right to commingle Stone
Products produced from the Property with similar products
produced from other properties.
6. Net Smelter Returns Royalty - Other Products
a. Net smelter returns means the gross proceeds from the sale or
disposition of Other Products removed from the Property after
deducting the costs of treatment, tolling, smelting, refining
and minting of such products and all costs associated
therewith such as transporting, insuring, handling, weighing,
sampling, assaying and marketing, as well as all penalties,
representation charges, referee's fees and expenses, import
taxes and export taxes; and the term "smelter" shall mean
conventional smelters as well as any other type of production
plant used in lieu of a conventional smelter to reduce ores or
concentrates.
b. If smelting, refining, treatment, assay or sampling of Other
Products is performed by facilities owned or controlled by the
Optionee or any of its affiliates, all charges, costs and
penalties therefor to be deducted pursuant to the foregoing
paragraph shall be equal to and not exceed actual costs
incurred by the Optionee in carrying out such processes and
shall not exceed such amounts which the Optionee would have
incurred if such operations were conducted at facilities
operating at arm's length to the Optionee, and which were then
offering comparable services for comparable quantities and
quality of Other Products.
c. The Optionee shall have the right to commingle Other Products
produced from the Property with ores and minerals produced
from other properties. Before commingling, Other Products from
the Property shall be weighed, sampled, assayed, measured or
gauged by the Optionee in accordance with sound mining and
metallurgical practices for moisture, penalty substances and
payable content. Records shall be kept by the Optionee for a
reasonable time showing weights, moisture and assays of
payable content. Prior to commingling, the Optionee shall give
thirty (30) days notice to the Optionor specifying its
decision to commingle and outlining the procedures it proposes
to follow.
7. General
a. Royalties shall accrue at the time of sale or deemed sale, as
applicable, and they shall become due and payable in cash on a
calendar quarter basis, on the twentieth (20th) day of the
month next following the calendar quarter in which they
accrue.
b. At the time of making each Royalty payment to the Optionor,
the Optionee shall provide the Optionor with a certificate of
a senior officer of the Optionor certifying as to the accuracy
of the calculations of the Royalty payment and setting out the
method of the calculation thereof to which shall be attached a
true copy of the related smelter or sales receipt or receipts.
c. Net sales returns and net smelter returns upon the respective
Products shall be calculated exclusively as provided herein,
and the Royalty computed thereon shall be determined without
regard to any "hedging", "forward", "futures" or comparable
sales (collectively referred to as
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"FUTURE TRADING") of such Products by or on behalf of the
Optionee. The Optionor shall not be entitled to any benefit of
or be subject to any loss attributable to such future trading
by the Optionee.
d. The Optionee shall cause to be kept proper books of account,
records and supporting materials covering all matters relevant
to the calculation of Royalties payable to the Optionor, and
the reasonable verification thereof; and the Optionor shall
have, from time to time, the unfettered right, during regular
business hours and on reasonable notice, to carry out at its
sole cost and expense an audit by established independent
professionals chosen by the Optionor, of the methodology and
manner of calculating all Royalty payments hereunder and the
Optionee shall provide, during regular business hours and on
reasonable notice, unrestricted access to its books, accounts,
records, vouchers, smelter settlements, sales receipts and
related documentation for this purpose. Should there be any
difference in the amount of the Royalty payment or payments
which are ultimately determined by the process described in
Article 8 of the Agreement to be in the Optionor's favour,
which exceed three (3%) percent of the amount of the Royalty
paid to the Optionor, then the cost of said audit, to the
extent reasonable, shall be reimbursed to the Optionor by the
Optionee.
e. Any dispute relating to the quantum or methodology of
calculating all Royalties payable hereunder shall be settled
by arbitration pursuant to the provisions of Article 24 of the
Agreement.
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