OPTION AGREEMENT
BETWEEN:
RNC GOLD INC.
- AND -
NORTHWESTERN MINERAL VENTURES INC.
CONCERNING:
THE PICACHOS PROJECT
JULY 14, 2004
TABLE OF CONTENTS
ARTICLE 1......................................................................2
DEFINITIONS AND PRINCIPLES OF INTERPRETATION...................................2
1.1 Definitions 2
1.2 Schedules 7
ARTICLE 2......................................................................7
REPRESENTATIONS AND WARRANTIES.................................................7
2.1 Optionor's Representations and Warranties 7
2.2 Representations and Warranties of Both Parties 9
2.3 Nature and Survival 10
ARTICLE 3.....................................................................11
OPTION........................................................................11
3.1 Grant of Option 11
ARTICLE 4.....................................................................11
EXPENDITURES AND PROGRAMS.....................................................11
4.1 Feasibility Study 11
4.2 Exploration Expenditures 11
ARTICLE 5.....................................................................12
Vesting of Interest...........................................................12
5.1 Vesting of 50% Interest 12
5.2 Expenditure Default Notice 12
5.3 Purchase of Underlying Royalty 13
ARTICLE 6.....................................................................13
Option Period Operations......................................................13
6.1 During the Option Period 13
ARTICLE 7.....................................................................15
CONFIDENTIALITY AND INFORMATION...............................................15
7.1 Confidentiality of Information 15
7.2 Permitted Disclosure 15
7.3 Exception 15
7.4 Joint Press Release 16
ARTICLE 8.....................................................................16
INDEMNIFICATION...............................................................16
8.1 Mutual Indemnifications 16
ARTICLE 9.....................................................................16
ADDITIONAL PROPERTY ACQUISITIONS..............................................16
9.1 Acquisitions 16
ARTICLE 10....................................................................17
GENERAL.......................................................................17
10.1 Rules of Interpretation 17
10.2 Arbitration 18
10.3 Force Majeure 19
10.4 Entire Agreement 20
10.5 Applicable Law 20
10.6 Expenses 20
ii
10.7 Notices 20
10.8 Assignment and Successors 21
10.9 Further Assurances 21
10.10 Counterparts 22
OPTION AGREEMENT
----------------
THIS AGREEMENT, made effective as of the 14th day of July, 2004.
BETWEEN:
RNC GOLD INC. (formerly Tango Mineral Resources Inc.),
a corporation incorporated under the laws of Canada,
("Optionor")
- and -
NORTHWESTERN MINERAL VENTURES INC., a corporation incorporated
Under the laws of the Province of Ontario,
("Optionee")
WITNESSETH THAT:
WHEREAS the Optionor and Minera ▇▇▇▇▇▇▇ ▇.▇. de C.V. entered into a mineral
property agreement with effect from March 31, 2002, as amended pursuant to
amending agreements dated September 9, 2002, March 31, 2003, March 17, 2004 and
April 5, 2004 ( the "Mineral Property Agreement");
WHEREAS the Optionor currently owns a 75% legal and beneficial interest in
Minera Tango S.A. de C.V., and whereas Minera ▇▇▇▇▇▇▇ ▇.▇. de C.V. currently
owns a 25% legal and beneficial interest in Minera Tango S.A. de C.V.;
AND WHEREAS Minera Tango S.A. de C.V. owns and holds directly a 100% right,
title and interest in and to certain mining concessions relating to a gold and
silver property situated in Municipio of San Dimas in Durango State, Mexico (the
"Pichachos" concessions), and a gold and silver property situated in Culiacan,
Sinaloa, Mexico (the "Tango" concessions)- collectively the "Property";
AND WHEREAS the Optionee desires to acquire from the Optionor an interest in
Minera Tango S.A. de C.V. and the underlying Property;
AND WHEREAS the Optionee and Optionor (collectively the "Parties") both
represent and warrant that - on or before the date on which both Parties each
own a 50% interest in Minera Tango S.A. de C.V. - the Parties will undertake to
act in good faith and use best efforts to agree upon a Joint Venture Agreement
necessary for the further exploitation and development of the Property on such
terms as are agreeable and satisfactory to both Parties;
NOW THEREFORE in consideration of the mutual covenants herein contained, the
parties agree as follows:
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ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS
Capitalized words and phrases used in this Agreement shall have the meaning
given to such words and phrases below:
"ABORIGINAL PEOPLES" shall mean any peoples native to Mexico that Claim or have
a right or interest in or to the Property that is dependent upon constitutional
or other lawful non-contractual rights or powers.
"AFFILIATE" means any corporation, company, partnership, joint venture or firm
that controls, is controlled by or is under common control with a Person. For
purposes of this definition, "control" shall mean (a) in the case of corporate
entities, direct or indirect ownership of more than 50% of the stock or shares
entitled to vote for the election of directors; and (b) in the case of
non-corporate entities, direct or indirect ownership of more than 50% of the
equity interest with the power to direct the management and policies of such
non-corporate entities.
"AGREEMENT" means this Option Agreement, including all schedules, and all
instruments supplementing, amending or confirming this Agreement and references
to "Article" or "Section" are to the specified article or section of this
Agreement.
"APPLICABLE LAW" means any applicable Canadian, Mexican or foreign federal,
provincial, state or local statute, regulation, rule, by-law, ordinance, order,
policy or consent, including the common law, as well as any other enactment,
treaty, official directive or guideline issued by a Governmental Authority and
the terms and conditions of any permit, licence or similar document or approval
issued by a Governmental Authority, and shall also include any order, judgment,
decree, injunction, ruling, award or declaration, or other decision of
whatsoever nature of a court, administrative or quasi-judicial tribunal, an
arbitrator or arbitration panel or a Governmental Authority of competent
jurisdiction that is not subject to appeal or that has not been appealed within
the requisite time therefor.
"BUSINESS DAY" means a day, other than a Saturday, Sunday or statutory holiday,
on which the principal commercial banks located at Toronto, Ontario are open for
business during normal banking hours.
"▇▇▇▇▇▇▇" means Minera ▇▇▇▇▇▇▇ ▇.▇. de C.V.
"CLAIM" means any claim, demand, action, cause of action, damage, loss, cost,
liability or expense, including reasonable legal fees and all reasonable Costs
incurred in investigating or pursuing any of the foregoing or any proceeding
relating to any of the foregoing.
"CONFIDENTIALITY" means to maintain in confidence and not to disclose the
applicable information
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to third parties, except:
(i) employees, officers, directors, consultants, agents and other
representatives that need to know or ought to know in order to discharge
their respective duties in an efficient manner; or
(ii) Persons that are or may be interested in advancing, loaning, investing or
otherwise providing potential debt or equity to a Party, including banks,
financial institutions, brokerage companies and their respective employees,
officers, directors, consultants, agents and other representatives,
provided, however, that such Persons agree to maintain the information to
be disclosed in confidence for a period not less than two years;
and "CONFIDENTIAL" and "CONFIDENCE" shall have similar meanings.
"COSTS" means any and all damages, including exemplary and punitive damages,
losses, including economic losses, costs, expenses, liabilities and obligations
of whatsoever kind, direct or indirect, including fines, penalties, interest,
lawyers' fees and disbursements, and taxes thereon.
"EFFECTIVE DATE" means the date of this Agreement.
"ENCUMBRANCES" means any pledge, lien, restriction, charge, security agreement,
lease, conditional sale, title retention agreement, mortgage, encumbrance,
assignment by way of or in effect as security, or any other security interest,
and any option or adverse Claim, of any kind or character whatsoever.
"ENVIRONMENTAL LAWS" means all Applicable Laws relating to the protection of the
environment, including air, soil, surface water, ground water, biota, wildlife
or personal or real property, or to employee and public health and safety, and
includes those Environmental Laws that regulate, ascribe, provide for or pertain
to liabilities or obligations in relation to the existence, use, production,
manufacture, processing, distribution, transport, handling, storage, removal,
treatment, disposal, emission, discharge, migration, seepage, leakage, spillage
or release of Substances or the construction, alteration, use or operation,
demolition or decommissioning of any facilities or other real or personal
property.
"EXPENDITURES" means any and all expenditures and Costs of any kind incurred in
respect of the Property, including expenditures incurred on Studies and the
Operator's Fee, and such expenditures shall be deemed to have been incurred upon
the earlier of:
(i) the date of payment of same; or
(ii) the date upon which such expenditures become due and payable pursuant to
the applicable contractual obligation;
provided, however, that Expenditures shall not include legal Costs to prepare
this Agreement, nor implement any of the transactions contemplated herein, or to
acquire additional mineral
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properties. For greater clarity, costs to maintain the Mining Concessions shall
qualify as an Expenditure, as that term is defined above, and which amounts
shall be credited towards the Optionee's Expenditure obligations as outlined
under Article 4.2 of this Agreement.
"FEASIBILITY STUDY" means a study prepared at the direction of the Operator by a
recognized firm of mining engineering consultants which contains a detailed
examination of the feasibility of bringing a deposit of minerals on the Mining
Concessions into commercial production by the establishment of a mine, reviews
all outstanding issues, contains the statement of the ore reserves, reviews the
nature and scale of any proposed operation, contains an estimate of the
construction costs and production costs and is in the form of a bankable
document, that is to say, a document appropriate for presentation to a bank or
other financial institutions from which a party might wish to secure financing.
"GOVERNMENTAL AUTHORITIES" means all applicable federal, provincial or state and
municipal agencies, boards, tribunals, ministries and departments, both Canadian
and foreign, including Mexican.
"JOINT VENTURE AGREEMENT" means the Agreement for the further exploitation and
development of the Property that both Parties have undertaken to agree upon on
such terms as are mutually agreeable on or before the date on which the Parties
each own a 50% interest in Minera Tango S.A. de C.V.
"MATERIAL CONTRACT" means any contract or commitment, whether oral or written,
to which the Optionor is bound or in respect of which the Optionor may have
liability and that relates to the Property.
"MEXICO" means the Republic of the United Mexican States (Estados Unidos
Mexicanos).
"MINERAL PROPERTY AGREEMENT" has the meaning ascribed thereto in the recitals
hereto.
"MINING ACT" means the Mining Law of Mexico.
"MINING CONCESSIONS" means those concessions set out in Schedule A hereto
referred to as the "Picachos" concessions, as well as all additional mineral
properties acquired pursuant to Article 9 hereof.
"MISCELLANEOUS INTERESTS" means the interests of Tango in all property, assets
and rights (other than the Property) ancillary to the Property to which Tango is
entitled including, but not limited to, the interests of Tango in:
(i) any Studies;
(ii) all contracts, agreements and documents relating to the Property and the
operations conducted thereunder or any rights in relation thereto;
(iii) all subsisting rights to enter upon, use and occupy the surface of any
lands forming part of
5
the Property or of any lands to be traversed in order to gain access to
any of the lands forming part of the Property;
(iv) all assignable permits, licenses and authorizations relating to the
Property;
(v) all books, records, data and other information relating to the Property,
including accounting records, plans, drawings and specifications;
(vi) all right, title, benefit and interest of Tango in and to all of the
patents, trademarks, copyrights, designs, inventions, licences,
sub-licences, processes, technology and other industrial property of or
used in connection with the Property;
(vii) computer software in which Tango has an interest and used primarily in
relation to the Property; and
(viii) all pre-paid expenses and deposits relating to the Property, including
all pre-paid taxes, rentals, licence fees and water rates, as well as
pre-paid purchases of gas, oil and hydro.
"OPERATOR" means the Party that is entitled to direct exploration work,
including work plans and budgets to be implemented, in respect of the Property.
"OPERATOR'S FEE" has the meaning ascribed thereto in the Mineral Property
Agreement.
"OPTION PERIOD" means the period of time from the Effective Date to the date
upon which the Joint Venture Agreement is effective or deemed effective pursuant
to the terms hereof.
"PARTIES" means the Optionor and the Optionee together, and "PARTY" means any
one of them.
"PERMITTED ENCUMBRANCES" means:
(i) easements, rights of way, servitude and similar rights in land including,
but not limited to, rights of way and servitude for highways and other
roads, railways, sewers, drains, gas and oil pipelines, gas and water
mains, electric power, telephone, telegraph or cable television conduits,
poles, wires and cables which are not material;
(ii) the right reserved to or vested in any Governmental Authority by the
terms of any lease, licence, grant or permit forming part of the
Property, or by any statutory provision, to terminate any such lease,
licence, grant or permit or to require annual or other periodic payments
as a condition of the continuance of them, as well as all other
reservations, limitations, provisos and conditions in any original grant
from Governmental Authorities;
(iii) the right of any Governmental Authority to levy taxes on minerals or the
revenue therefrom and governmental restrictions on production rates on
the operation of a mine on the Property, as well as all other rights
vested in any Governmental Authority to control or regulate the Property
pursuant to Applicable Laws;
6
(iv) any liens, charges or other Encumbrances:
(A) for taxes, assessments or governmental charges,
(B) incurred, created and granted in the ordinary course of business to
a public utility or Governmental Authority in connection with
operations conducted with respect to the Property,
but only to the extent those liens relate to Costs for which payment is
not due;
(v) the Underlying Royalty; and
(vi) any other rights or Encumbrances consented to in writing by the Optionee
or granted by the Optionee.
"PERSON" means any individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust,
company, corporation or other body corporate, union, Governmental Authority and
a natural person in his capacity as trustee, executor, administrator, or other
legal representative.
"PROPERTY" means collectively the Miscellaneous Interests and all permits,
licenses and other documents of title, including replacement or substitute forms
of documents of title, by virtue of which the holder is entitled to explore for,
develop, produce, mine, recover, remove or dispose of minerals from on or within
the lands outlined in the Mining Concessions.
"SALE" means a transaction effecting a sale, assignment, transfer and conveyance
to another Person.
"STUDIES" means any and all studies pertaining to the Property, including all:
(i) geological, resource, reserve, mining and product quality studies; and
(ii) socio-economic, environmental, transportation, infrastructure, power,
market and financial studies.
"SUBSTANCE" means any contaminant, pollutant or hazardous substance that is
likely to cause harm or degradation to the environment or risk to human health
or safety, including any pollutant, contaminant, waste, hazardous waste, toxic
substance or dangerous good which is defined or identified in any Environmental
Law.
"SUCCESSORS" means successors and includes any successor continuing by reason of
amalgamation or other reorganization and any Person to which assets are
transferred by reason of a liquidation, dissolution or winding-up.
"TANGO" means Minera Tango S.A. de C.V.
7
"TANGO SHARES" means the issued and outstanding shares of Tango, which carry the
right to vote at director's meetings, the right to receive dividends and the
right to a proportionate share of assets upon dissolution.
"UNDERLYING ROYALTY" means the 2.5 % Net Smelter Returns granted to ▇▇▇▇▇▇▇ by
RNC pursuant to the Mineral Property Agreement.
1.2 SCHEDULES
The following Schedule to this Agreement, as listed below, is an integral
part of this Agreement:
Schedule Description
-------- -----------
Schedule A Property ("Mining Concessions")
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 OPTIONOR'S REPRESENTATIONS AND WARRANTIES
The Optionor represents and warrants to the Optionee that:
(a) The Property is accurately described herein.
(b) Tango's sole activity is the commercial exploitation of the Mining
Concessions. Tango has no material assets other than the Property and
has no material liabilities.
(c) Except with respect to the Permitted Encumbrances, there are no
agreements creating a royalty or other interest whatsoever in the
Property and Tango owns a 100% right, title and interest in and to the
Property to which it has good and marketable title and, in particular:
(i) the Property has been properly and legally acquired,
(ii) that a properly executed and legally valid Transfer Agreement
exists whereby ▇▇▇▇▇▇▇ has transferred in its entirety its 100%
legal interest, title and ownership in the Property to Tango,
(ii) except for the Permitted Encumbrances and the rights of the
Optionee under this Agreement, the Optionor has not done any act
or suffered or permitted any action to be done whereby any
Person may acquire any interest in or to the Property or
minerals to be produced from the Property,
8
(iii) no Person has any right under preferential, pre-emptive or first
purchase rights or otherwise to acquire any interest in the
Property that might be trigger by virtue of this Agreement or
the transactions contemplated by it, and
(iv) the Property is free and clear of all Encumbrances, Claims and
defects in title.
(d) The authorized capital of Tango consists of the following: "social
capital will be variable, with a minimum of 50,000 Mexican pesos in
fixed capital and 400,000 Mexican pesos of authorized capital", of
which 7,960 shares have been duly issued and outstanding. At the time
of the execution of this Agreement, the Optionor owns 5,970 of all of
the issued and outstanding Tango Shares (representing 75% of the duly
issued and outstanding Tango Shares), and ▇▇▇▇▇▇▇ owns 1,990 of all
the issued and outstanding Tango Shares (representing 25% of the duly
issued and outstanding Tango Shares).
(e) Tango is a corporation duly incorporated and validly existing under
the laws of its incorporation, amalgamation or continuance, as the
case may be, and has all necessary corporate power, authority and
capacity to own its property and assets and to carry on its business
as presently conducted.
(f) Tango has all necessary power, authority and capacity to enter into
the Joint Venture Agreement and to carry out its obligations under the
Joint Venture Agreement and the execution and delivery of the Joint
Venture Agreement.
(g) No Person has any agreement, option, understanding or commitment, or
any right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement, option or commitment, including
convertible securities, warrants or convertible obligations of any
nature, for:
(i) the purchase, subscription, allotment or issuance of, or
conversion into, any of the unissued shares in the capital of
Tango or any securities of Tango; or
(ii) the purchase from the Optionor of any of the Tango shares.
(h) There is no actual, threatened or, to the best of its knowledge,
contemplated Claim or challenge relating to the Property, nor to the
best of its information, knowledge and belief is there any basis
therefor, and there is not presently outstanding against the Optionor
or Tango any judgment, decree, injunction, rule or order of any court,
Governmental Authority or arbitrator which would have a material
effect upon the Property.
(i) All taxes, assessments, rentals, levies and other payments, as well as
all reports, relating to the Property and required to be made,
performed and filed to and with
9
any Governmental Authority in order to maintain the Property in good
standing have been so made, performed or filed, as the case may be.
(j) To the best of the Optionor's knowledge there has been no Claim made
by any Aboriginal Peoples, nor is there any basis therefor, with
respect to any right or interest in or to the Property.
(k) To the best of the Optionor's knowledge, conditions on and relating to
the Property respecting all past and current operations thereon are in
compliance in all material respects with all Applicable Laws,
including Environmental Laws.
(l) It has not received any notice of, or communication relating to, any
actual or alleged breach of any Environmental Laws, and there are no
outstanding work orders or actions required to be taken relating to
environmental matters respecting the Property or any operations
carried out thereon.
(m) It is not a party to or bound by any guarantee, indemnification,
surety or similar obligation pertaining to the Property and, except
for this Agreement, no Material Contracts have been entered between
the Optionor and any other Person with respect to the Property other
than the Mineral Property Agreement.
(n) Neither it nor ▇▇▇▇▇▇▇ is in default or breach of any of their
obligations under the Mineral Property Agreement and there exists no
state of facts which, after notice or lapse of time or both, would
constitute such a default or breach. The Mineral Property Agreement is
in good standing and in full force and effect without amendment
thereto.
(o) The Optionor has the right and power to enter into this Agreement and
assign its interest in Tango to the Optionee.
2.2 REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Each Party represents and warrants to the other that:
(a) It is a corporation duly incorporated and validly existing under the
laws of its incorporation, amalgamation or continuance, as the case
may be, and has all necessary corporate power, authority and capacity
to own its property and assets and to carry on its business as
presently conducted.
(b) The execution, delivery and performance of this Agreement do not, and
the fulfillment and compliance with the terms and conditions hereof by
it (to the extent required herein) and the consummation of the
transactions contemplated hereby will not, conflict with any of or
require the consent or waiver of rights of any Person under its
constating documents or by-laws, nor to the best of its knowledge do
or will any of the foregoing:
10
(i) violate any provision of or require any consent, authorization
or approval under any Applicable Law;
(ii) conflict with, result in a breach of, constitute a default under
(whether with notice or the lapse of time or both), accelerate
or permit the acceleration of the performance required by, or
require any consent, authorization or approval which has not
been obtained under any agreement or instrument to which it is a
party or by which it is bound or to which any of its property is
subject; or
(iii) result in the creation of any Encumbrance upon its interest in
the Property, in the case of the Optionor.
(c) It has all necessary power, authority and capacity to enter into this
Agreement and to carry out its obligations under this Agreement and
the execution and delivery of this Agreement and the consummation of
the transactions contemplated in this Agreement have been duly
authorized by all necessary corporate action on its part.
(d) This Agreement constitutes a valid and binding obligation on it,
enforceable against it in accordance with the terms of this Agreement,
subject, however, to limitations with respect to enforcement imposed
by law in connection with bankruptcy or similar proceedings and to the
extent that equitable remedies such as specific performance and
injunction are in the discretion of the court from which they are
sought.
(e) It has not incurred any liability, contingent or otherwise, for
brokers' or finders' fees in respect of the transactions contemplated
herein.
No investigations made by or on behalf of a Party at any time shall have
the effect of waiving, diminishing the scope of or otherwise affecting any
representation or warranty made by the other Party in or pursuant to this
Agreement. No waiver by a Party of any condition or other provision, in whole or
in part, shall constitute a waiver of any other condition or provision.
2.3 Representations and Warranties of the Optionee
The Optionee represents and warrants that it shall use its best efforts to
make available to the Optionor the funds as per the timetable provided
under Article 4.2 of this Agreement.
2.4 NATURE AND SURVIVAL
(a) All statements contained in any certificate or other instrument
delivered by or on behalf of a Party pursuant to or in connection with
the transactions contemplated in this Agreement shall be deemed to be
representations and warranties made by such Party under this
Agreement.
(b) The representations and warranties contained in this Article 2 will
not merge in
11
the Joint Venture Agreement and shall survive the execution and
delivery of the Joint Venture Agreement and shall continue in full
force and effect.
(c) If, prior to the expiry of the survival periods provided for in
Section 2.3(b), no written Claim shall have been made under this
Agreement against a Party for any misstatement, inaccuracy or
incorrectness or breach of any representation or warranty made in this
Agreement by such Party, such Party shall have no further liability
under this Agreement with respect to such representation or warranty.
In providing a Claim, the Party making the Claim shall not be
obligated to set out in the Claim the amount of Costs suffered by such
Party, if such Costs, as at the time of making the Claim, are not
reasonably ascertainable.
ARTICLE 3
OPTION
3.1 GRANT OF OPTION
The Optionor hereby grants to the Optionee the sole and exclusive right and
option (the "Option") exercisable in the manner described herein, to acquire
two-thirds (2/3) of the Optionor's current beneficial interest in Tango or
one-half (1/2) of its beneficial interest if the Optionor acquires the full 100%
beneficial interest in Tango, and through such acquisition, a 50% interest in
the Property, free and clear of all liens, charges, encumbrances, security
interests and adverse claims other than the Permitted Encumbrances.
ARTICLE 4
EXPENDITURES AND PROGRAMS
4.1 FEASIBILITY STUDY
To exercise the Option, the Optionee shall incur the Expenditures set out
in Section 4.2 in order to generate a Feasibility Study for an operation
involving production of a minimum of 25,000 ounces of gold equivalent per year
from the Mining Concessions within three years from the Effective Date.
4.2 EXPENDITURES
The Optionee shall incur aggregate Expenditures as follows, and in
compliance with the terms of the underlying Mineral Property Agreement with
respect to maintaining the underlying Property in good standing:
(i) within one year of the Effective Date - CAD $500,000;
(ii) within two years of the Effective Date -CAD $1,500,000, and in any
event, no later than December 30, 2006. For greater clarity, the
Optionee shall expend CAD $500,000 in Year 1 and CAD $1,000,000 in
Year 2, for a combined aggregate expenditure of CAD $1,500,000 on
or before December 30, 2006;
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(iii) within three years of the Effective Date - such additional
Expenditures as are required to produce the Feasibility Study.
For greater clarity, the Optionor may use such portions of the above
Expenditures as may be necessary under the terms of the Mineral Property
Agreement to maintain the underlying Property in good standing. Any such
portions of the Expenditures used by the Optionor towards the maintenance of the
Property shall be credited and counted as part of the Optionee's Expenditures,
as that term is defined above.
The Optionee has the right, but not the obligation, to incur the foregoing
Expenditures.
ARTICLE 5
VESTING OF INTEREST
5.1 VESTING OF 50% INTEREST
Should the Optionee comply with Sections 4.1 and 4.2, then:
(a) The Optionee shall give notice to the Optionor of such fact;
(b) Both parties shall execute the Joint Venture Agreement and, until such
execution, the Parties shall be deemed to have executed same;
(c) The Optionor shall cause Tango to execute the Joint Venture Agreement;
(d) The Optionor shall cause Tango to issue that number of Tango Shares,
which after such issuance would result in the Optionee and Optionor
each owning 50% of the issued and outstanding shares of Tango;
(e) This Agreement shall be terminated except for Sections 5.3, 8 and 10
which shall continue in full force and effect; and
(f) Neither Party shall be liable to the other as a result of such
termination, save and except for prior breaches hereunder.
5.2 EXPENDITURE DEFAULT NOTICE
Should the Optionee give notice to the Optionor pursuant to Section 5.1
("Optionee's Expenditure Notice") and the Optionor not accept notice of the
relevant fact, then:
(a) The Optionor may give notice, within 30 days of the Optionee's
Expenditure Notice, to the Optionee ("Default Notice"), along with a
statement of the Expenditures that the Optionor believes the Optionee
has not incurred ("Alleged Default Funds") and the reasons therefor;
13
(b) The Optionee shall have the right to either:
(i) make a payment to the Optionor, within 30 days of the Default
Notice, of the Alleged Default Funds; or
(ii) make payment to the Optionor, within 30 days of an audit report
by an accounting firm of international repute, of the Deficient
Expenditures, if any, where "Deficient Expenditures" means those
Expenditures stated to have been incurred in the Optionee's
Expenditure Notice, but not found to have been duly incurred by
such accounting firm;
(c) Any payment duly made by the Optionee to the Optionor pursuant to
Section 5.2 shall completely cure any default hereunder and the
Optionee shall be deemed to have properly incurred the applicable
Expenditures for purposes of Section 4.2;
(d) Should the Optionee receive a Default Notice and, within 30 days
thereof, neither make the requisite payment under this Section 5.2 nor
cause an audit to be commenced pursuant to Section 5.2(b)(ii), then
the Optionee shall be deemed not to have incurred the Alleged Default
Funds; and
(e) For purposes of clarity, should an audit be performed pursuant to
Section 5.2(b)(ii) and the Deficient Expenditures be equal to zero
then no payment is required to be made by the Optionee hereunder and
the Optionor shall be liable for all Costs of such audit.
5.3 PURCHASE OF UNDERLYING ROYALTY
In the event the Optionor decides to purchase up to 50% of the Underlying
Royalty pursuant to the Mineral Property Agreement, it shall give notice of such
proposed purchase to the Optionee. The Optionee may, within 30 days of receipt
of the said notice, elect by notice to the Optionor, accompanied with one-half
of the purchase price for the purchased Underlying Royalty, to acquire one-half
of the purchased Underlying Royalty. In the event the Optionee does not make the
election aforesaid within the period of 30 days, the Optionor may acquire the
Underlying Royalty for its own account.
ARTICLE 6
OPTION PERIOD OPERATIONS
6.1 DURING THE OPTION PERIOD
(a) During the Option Period:
(i) From the proceeds of the above Expenditures, as that term is
defined above, the Optionor shall cause Tango to maintain the
Property in good standing by paying all appropriate mining
duties, taxes or other applicable fees and filing all necessary
reports, including those duties and reports
14
referred to in the Mining Act;
(ii) The Optionor shall be the Operator;
(iii) The Operator shall, at the direction and under the control of
the Optionee, prepare, or cause to be prepared, such programs,
budgets and studies, including the Feasibility Study, as would
enable the Optionee to incur the Expenditures as provided in
Article 4;
(iv) The Optionor shall cause its designated agent to perform all
exploration work so directed by the Operator as a contractor to
the Operator at commercially competitive rates and on
commercially competitive terms and the Optionor's designated
agent shall receive, as consideration therefor, the Operator's
Fee. At the time of execution of this Agreement, the Optionor's
designated agent is ▇▇▇▇▇▇▇, which is subject to the
termination provisions outlined in Article 6.1 (b) below;
(v) The Operator shall ensure that all work so performed is done in
accordance with good mining practice and in compliance with all
Applicable Laws and shall indemnify the Optionee from and
against all Claims in respect of such work, including liens
arising from the non-payment of workers or suppliers;
(vi) The Operator shall report on all such work so performed or
being performed on such regular intervals and in such detail as
the Optionee may request;
(vii) Both Parties shall have access to the Property, at their sole
risk and expense, and to all records pertaining to the
Property;
(viii) Both Parties shall have the right to propose that a portion of
the Property be abandoned ("Infertile Property") and, if the
Parties should agree, the Infertile Property shall, subject to
consent by ▇▇▇▇▇▇▇, be abandoned; and
(ix) Provided the Optionee shall fund the Expenditures contemplated
herein, the Optionor shall fulfill its obligations under the
Mineral Property Agreement and shall earn a 100% interest in
Tango within the time periods provided in the Mineral Property
Agreement.
(b) Notwithstanding the provisions of Section 6.1, the Optionee may
terminate the Optionor as an Operator and its designated agent,
including but not limited to ▇▇▇▇▇▇▇, as contractor for cause, such as
the inability or unwillingness to perform all or any portion of the
directed work, upon 30 days notice to the Optionor or ▇▇▇▇▇▇▇, as the
case may be, and, upon such termination, appoint itself or a third
person as Operator and contractor.
15
ARTICLE 7
CONFIDENTIALITY AND INFORMATION
7.1 CONFIDENTIALITY OF INFORMATION
All information provided to or received by the Parties hereunder shall be
treated as Confidential ("Confidential Information"). The Optionee and the
Optionor shall each solicit the consent of the other to the disclosure of
Confidential Information in circumstances other than those set forth in Section
7.2 and such consent shall not be unreasonably withheld or delayed.
7.2 PERMITTED DISCLOSURE
The consent required by Section 7.1 shall not apply to a disclosure to:
(a) comply with any Applicable Laws, stock exchange rules or a regulatory
authority having jurisdiction;
(b) a director, officer or employee of a Party;
(c) an Affiliate of a Party;
(d) a consultant, contractor or subcontractor of a Party that has a bona
fide need to be informed,
(e) any third party to whom the disclosing Party may assign any of its
rights under this agreement; or
(f) a bank or other financial institution from which the disclosing Party
is seeking equity or debt financing,
provided, however, that in the case of Sections 7.2(e) and (f) the third party
or parties, as the case may be, agree to maintain in Confidence for a period of
not less than two years any of the information so disclosed to them.
7.3 EXCEPTION
The obligations of Confidence and prohibitions against use under this
Agreement shall not apply to information that the disclosing Party can show by
reasonable documentary evidence or otherwise:
(a) as of the Effective Date, was in the public domain;
(b) after the Effective Date, was published or otherwise became part of
the public domain through no fault of the Optionor or an Affiliate
thereof (but only after, and only to the extent that, it is published
or otherwise becomes part of the public domain);
16
(c) was information that the Optionor or its Affiliates were required to
disclose pursuant to the order of any Governmental Authority or
judicial authority.
7.4 JOINT PRESS RELEASE
The Optionor and the Optionee acknowledge that each of them has an
obligation to disclose, inter alia, a summary of the terms and conditions of
this Agreement to its shareholders pursuant to Applicable Laws ("Press
Release"). The Parties agree to cooperate on the form of the Press Release. it
is acknowledged that the Press Release will disclose all information required
pursuant to Instrument 43-101, a policy of the Ontario Securities Commission.
ARTICLE 8
INDEMNIFICATION
8.1 MUTUAL INDEMNIFICATIONS
The Optionor covenants and agrees with the Optionee, and the Optionee
covenants and agrees with the Optionor (the Party so covenanting being referred
to in this Section as the "Indemnifying Party", and the other Party being
referred to in this Section as the "Indemnified Party") that the Indemnifying
Party shall:
(a) be solely liable and responsible for any and all Claims which the
Indemnified Party or any of its respective directors, officers,
servants, agents and employees, together with the Successors, assigns,
administrators, executors, heirs and all other legal representatives
of the foregoing, may suffer, sustain, pay or incur; and
(b) indemnify and save the Indemnified Party and its respective directors,
officers, servants, agents and employees, together with the
Successors, assigns, administrators, executors, heirs and all other
legal representatives of the foregoing, harmless from any and all
Claims which may be brought against or suffered by such Persons or
which they may sustain, pay or incur,
as a result of, arising out of, attributable to or connected with any breach or
non-fulfillment of any covenant or agreement on the part of the Indemnifying
Party under this Agreement (other than a breach or non-fulfillment of the
Optionee's obligation under Section 4.2(b)) or any misstatement or inaccuracy of
or any other incorrectness in or breach of any representation or warranty of the
Indemnifying Party contained in this Agreement or in any certificate or other
document furnished by the Indemnifying Party pursuant to this Agreement.
ARTICLE 9
ADDITIONAL PROPERTY ACQUISITIONS
9.1 ACQUISITIONS
The provisions of section 5.6 of the Joint Venture Agreement shall apply
mutatis
17
mutandis with respect to the acquisition of additional mineral properties within
1 kilometre of any of the boundaries of the Mining Concessions during the
currency hereof.
ARTICLE 10
GENERAL
10.1 RULES OF INTERPRETATION
In this Agreement and the Schedules:
(a) Time is of the essence in the performance of the Parties' respective
obligations.
(b) Unless otherwise specified, all references to money amounts are to
Canadian currency.
(c) The descriptive headings of Articles and Sections are inserted solely
for convenience of reference and are not intended as complete or
accurate descriptions of content and shall not be used to interpret
the provisions of this Agreement.
(d) The use of words in the singular or plural, or with a particular
gender, shall not limit the scope or exclude the application of any
provision of this Agreement to such person or persons or circumstances
as the context otherwise permits.
(e) Whenever a provision of this Agreement requires an approval or consent
by a Party and notification of such approval or consent is not
delivered within the applicable time limit, then, unless otherwise
specified, the Party whose consent or approval is required shall be
conclusively deemed to have withheld its consent or approval, provided
that nothing in this paragraph shall limit or derogate in any way the
obligation in this Agreement of a Party to act reasonably in
withholding or granting its consent or approval, or its liability for
a failure to do so.
(f) Unless otherwise specified, time periods within or following which any
payment is to be made or act is to be done shall be calculated by
excluding the day on which the period commences and including the day
on which the period ends and by extending the period to the next
Business Day following if the last day of the period is not a Business
Day. Whenever any payment is to be made or any action under this
Agreement is to be taken on a day other than a Business Day, such
payment shall be made or action taken on the next Business Day
following.
(g) Where a representation or warranty is made in this Agreement on the
basis of the knowledge of a Optionor, such knowledge consists of the
actual knowledge of the officers and senior managers of the Optionor
but does not include the knowledge of any other Person.
(h) The use of the words, "include" or "including" shall be deemed to mean
"include, without limitation", or "including, without limitation", if
applicable.
18
10.2 ARBITRATION
(a) In the event of a dispute in relation to this Agreement, including,
without limitation, the existence, validity, performance, breach or
termination thereof, or any matter arising therefrom, including
whether any matter is subject to arbitration, the Parties agree to
negotiate diligently and in good faith in an attempt to resolve such
dispute. Submission to arbitration under this Section 10.2 shall be a
condition precedent to bringing any action with respect to such
dispute.
(b) Failing resolution within 20 days, the dispute shall be resolved by
binding arbitration, conducted in English, in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. The
International Arbitration Rules of the American Arbitration
Association shall apply to such proceedings.
(c) To demand arbitration any Party (the "Demanding Party") shall give
written notice to the other Party (the "Responding Party"), which
notice shall toll the running of any applicable limitations of actions
by law or under this Agreement. Such notice shall specify the nature
of the allegation and issues in dispute, the amount or value involved
(if applicable) and the remedy requested. Within 20 days of the
receipt of the notice, the Responding Party shall answer the demand in
writing, specifying the allegations and issues that are disputed.
(d) The Demanding Party and Responding Party shall each select one
qualified arbitrator within 10 days of the Responding Party's answer.
Each of the arbitrators shall be a disinterested person qualified by
experience to hear and determine the issues to be arbitrated. The
arbitrators so chosen shall select a neutral arbitrator within 10 days
of their selection. If the named arbitrators cannot agree on a neutral
arbitrator, either of the Parties may make application to the
president of the American Bar Association or his or her nominee, with
a copy to both Parties, requesting the American Bar Association to
select and appoint a third arbitrator. The American Bar Association's
selection shall be final and binding on the Parties. If either the
Demanding Party or the Responding Party does not name an arbitrator,
the arbitrator named by the other Party shall serve as the sole
arbitrator.
(e) No later than 20 Business Days after hearing the representations and
evidence of the Parties, the arbitrator shall make his or her
determination in writing and deliver one copy to each of the Parties.
The written decision of the arbitrator shall be final and binding upon
the Parties in respect of all matters relating to the arbitration, the
procedure, the conduct of the Parties during the proceedings and the
final determination of the issues in the arbitration. There shall be
no appeal from the determination of the arbitrator to any court. The
decision rendered by the arbitrator may be entered into any court for
enforcement purposes.
(f) The arbitrator may determine all questions in law and jurisdiction
(including questions as to whether or not a dispute is arbitrable) and
all matters of procedure
19
relating to the arbitration.
(g) The arbitrator shall have the right to grant legal and equitable
relief and to award Costs (including legal fees and the Costs of
arbitration) and interest. The Costs of any arbitration shall be born
by the Parties in the manner specified by the arbitrator in his or her
determination. The arbitrator(s) may make an interim order, including
injunctive relief and other provisional, protective or conservatory
measures, as well as orders seeking assistance from a court in taking
or compelling evidence or preserving and producing documents regarding
the subject matter of the dispute.
(h) Disputes between the Parties shall not operate as an Event of Force
Majeure.
(i) All papers, notices or process pertaining to an arbitration hereunder
may be served on a party as provided in Article 10.7.
(j) The Parties agree to treat as Confidential Information, in accordance
with the provisions of Article 7, the following: the existence of the
arbitral proceedings; written notices, pleadings and correspondence in
relation to the arbitration; reports, summaries, witness statements
and other documents prepared in respect of the arbitration; documents
exchanged for purposes of the arbitration; the contents of any award
or ruling made in respect of the arbitration. Notwithstanding the
foregoing part of this Section 10.2(j), a Party may disclose such
Confidential Information in judicial proceedings to enforce, nullify,
modify or correct an award or ruling and as permitted under Article 7.
10.3 FORCE MAJEURE
(a) No Party hereto shall be liable under this Agreement to another Party
for any failure to perform any of its obligations caused or arising
out of any act not within the control of the Party, excluding lack of
funds, but including, without limitation, acts said to be of God,
strikes, lockouts or other industrial disputes, acts of a public
enemy, riots, fire, storm, flood, explosion, government restriction,
failure to obtain any approvals required from regulatory authorities
(including environmental protection agencies, but excluding receipts
for prospectuses or other approvals concerning financings),
unavailability of equipment, interference of Persons primarily
concerned about environmental or Aboriginal Peoples' rights issues and
any other cause, whether of the kind enumerated above or otherwise,
which is not reasonably within the control of the Party ("Event of
Force Majeure").
(b) No right of a Party shall be affected, and no Party shall be found in
default, under this Agreement by the failure of such Party to meet any
term or condition of this Agreement where such failure is caused by an
Event of Force Majeure and, in such event, all times specified or
provided for in this Agreement shall be extended by a period
commensurate with the period during which the Event of Force Majeure
causes such failure.
20
(c) A Party affected by an Event of Force Majeure shall take all
reasonable steps within its control to remedy the failure caused by
such event, provided,, however, that nothing contained in this Section
10.3 shall require any Party to settle any labour or industrial
dispute or to test the constitutionality of any law enacted by any
Legislature or Parliament of or within Canada or Mexico.
(d) Any Party relying on the provisions of this section 10.3 shall
forthwith give notice to the other Party of the commencement of an
Event of Force Majeure and of its end.
10.4 ENTIRE AGREEMENT
This Agreement, including the Schedules to this Agreement, together with
the agreements and other documents to be delivered pursuant to this Agreement,
constitute the entire agreement between the Parties pertaining to the subject
matter hereof and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the Parties and there are no
warranties, representations or other agreements between the Parties in
connection with the subject matter hereof except as specifically set forth in
this Agreement and in any agreement or document delivered pursuant to this
Agreement. No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby.
10.5 APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable in the Province of Ontario
and shall be treated, in all respects, as an Ontario contract.
10.6 EXPENSES
Except as otherwise provided, all Costs incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the Party
incurring them.
10.7 NOTICES
Any notice or writing required or permitted to be given under this
Agreement or any communication otherwise made in respect of this Agreement
(referred to in this Section as a "Notice") shall be sufficiently given if
delivered or transmitted by facsimile or another form of electronic
communication tested prior to transmission to such Party:
(a) In the case of a notice to the Optionor at:
▇▇▇▇▇ ▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
21
Attention: President
(b) in the case of a notice to the Optionee at:
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: President
or at such other address as the Party to whom such Notice is to be given shall
have last notified the Party giving the same, in the manner provided in this
Section. Any Notice delivered to the Party to whom it is addressed as provided
in this Section shall be deemed to have been given and received on the day it is
so delivered at such address, provided that if such day is not a Business Day
then the Notice shall be deemed to have been given and received on the Business
Day next following such day. Any Notice transmitted by facsimile or other form
of electronic communication shall be deemed given and received on the first
Business Day after its transmission.
10.8 ASSIGNMENT AND SUCCESSORS
The following apply with respect to assignment and Successors:
(a) This Agreement is binding upon and is for the benefit of the Parties
and their respective Successors and permitted assignees.
(b) Either Party may assign its rights hereunder to a third party.
(c) No assignment shall relieve a Party of its obligations hereunder
without the written consent of the other Party, which consent may be
unreasonably withheld.
(d) The provisions of section 5.6 of the Joint Venture Agreement shall
apply mutatis mutandis during the currency hereof.
10.9 FURTHER ASSURANCES
Subject to the terms and conditions of this Agreement, the Optionor and the
Optionee will use all reasonable efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper or
advisable under Applicable Laws to obtain consents of all Persons, including all
Governmental Authorities, necessary for the consummation of the Sale by or to
it, as applicable, of the Property pursuant to this Agreement, or to carry out
all of their respective obligations under this Agreement and to consummate the
transactions contemplated by this Agreement, and from time to time after the
Closing Date, without further consideration, each Party will, at its own
expense, execute and deliver such documents to any other Party as such Party may
reasonably request in order to consummate the transactions contemplated by this
Agreement. Each of the Parties agrees to take all such actions as are within its
power to control,
22
and to use reasonable commercial efforts to cause other actions to be taken
which are not within its power to control, so as to ensure compliance with each
of the conditions and covenants set forth in this Agreement which are for the
benefit of any other Party.
10.10 COUNTERPARTS
This Agreement may be executed by the Parties in separate counterparts and
by facsimile, and each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF the Parties have hereunto duly executed this Agreement,
with the understanding that this Agreement is subject to regulatory approval and
approval by each of the Parties' respective board of directors.
RNC GOLD INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------
NORTHWESTERN MINERAL
VENTURES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
23
Schedule A
Mining Concessions
The Mining Concessions comprises the following:
1. Pichachos Concession - Legal Description "Pago De Derecho Por 4225.4414
Has. De Exploracion Del ▇▇▇▇ ▇▇▇▇▇▇ "Pichachos" E-25/24465 T-211194".
Registro Federal ROL 69 09 04
2. ▇▇▇▇▇▇▇ Concession - Legal Description "Pago De Derechos Sobre Concesion
Minera De Exploraciaon Del Lote "▇▇▇▇▇▇▇", Titulo 217367, Con 2577.46 Has".
Registro Federal ROMI6909042F2.
3. Tango Concession - Legal Description "Pago De Derechos Sobre Concesion
Minera De Exploracion Del Lote "Tango", Titulo 219836, Con. 3573.5954 Has".
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇.
