THIS ASSET AND SHARE ACQUISITION AGREEMENT made the 8th day of March,
1995.
AMONG:
X.X. XXXXXXXXXX, INC., a corporation having offices at the City of
Spokane in the State of Washington, and a branch office in the City of
Xxxxxxx, in the Republic of Argentina
(hereinafter referred to as "Degerstrom")
OF THE FIRST PART
- AND -
XXXXX XXXXX, an individual residing in the City of Xxxxxxx, in the
Republic of Argentina
(hereinafter referred to as "Gavin")
OF THE SECOND PART
- AND -
XXXXX XXXXXX, an individual residing in the City of Xxxxxxx, in the
Republic of Argentina
(hereinafter referred to as "Xxxxxx")
OF THE THIRD PART
- AND -
XXXXXXX XXXXXX XXXXXXX XXXXXXXX, an individual residing in the City of
Xxxxxxx, in the Republic of Argentina
(hereinafter referred to as "Xxxxxxxx")
OF THE FOURTH PART
- AND -
MINERA ANDES S.A., a corporation having offices at the City of
Xxxxxxx, in the Republic of Argentina.
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(hereinafter referred to as "MASA")
OF THE FIFTH PART
- AND -
MINERA ANDES INC., a corporation incorporated under the laws of the
Province of Alberta and having offices at the City of Spokane in the
State of Washington
(hereinafter referred to as "Minera")
OF THE SIXTH PART
- AND -
NAD (S.A.), a corporation having offices at the City of Xxxxxxx, in
the Republic of Argentina ("NAD")
WHEREAS:
X. Xxxxxxxxxx is a privately held Washington corporation with a branch office in
the City of Xxxxxxx, in the Republic of Argentina;
X. Xxxxxxxxxx holds a 100% interest in, and has made application to obtain,
certain mining claims in the northern region of Argentina, and has the right to
earn certain interests in other mining claims pursuant to certain option
agreements further described in Schedule A;
X. Xxxxxxxxxx wishes to transfer certain of the above assets to MASA in exchange
for certain consideration, and MASA wishes to receive the above described assets
upon the terms and subject to the conditions set forth in this Agreement.
X. Xxxxxxxxxx wishes to transfer certain of the above assets to NAD in exchange
for certain consideration, and NAD wishes to receive the above described assets
upon the terms and subject to the conditions set forth in this Agreement.
X. Xxxxxxxxxx, Xxxxxx and Xxxxxxxx each hold shares in NAD, a corporation
located in the City of Xxxxxxx, in the Republic of Argentina, which corporation
holds a 100% interest in, and has made application to obtain, certain mining
claims in the northern region of Argentina, and has the right to earn certain
interests in other mining claims pursuant to certain option agreements further
described in Schedule "AA";
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X. Xxxxxxxxxx and Xxxxxx wish to transfer their shares in NAD to Minera, and
Minera wishes to receive the above shares upon the terms and subject to the
conditions set forth in this Agreement;
X. Xxxxxxxx holds a share in NAD and he wishes to grant an option to Minera to
purchase his share in NAD;
X. Xxxxxxxxxx, Xxxxxx and Xxxxx each hold shares in MASA a corporation located
in the City of Xxxxxxx, in the Republic of Argentina, which corporation holds a
100% interest in, and has made application to obtain, certain mining claims in
the northern region of Argentina, and has the right to earn certain interests in
other mining claims pursuant to certain option agreements further described in
Schedule "AAA";
X. Xxxxxxxxxx and Xxxxx wish to transfer the above described shares in MASA to
Minera, and Minera wishes to receive the above described shares upon the terms
and subject to the conditions set forth in this Agreement; and
X. Xxxxxx holds a share in MASA and wishes to grant an option to Minera to
purchase such share.
NOW, THEREFORE, in consideration of the premises hereto and the
covenants, warranties, representations, agreements and payments herein set forth
and provided for, the parties hereto covenant and agree as follows:
ARTICLE 1.
INTERPRETATION
1.01 In this Agreement, including the premises hereto, this clause and each
Schedule, the words and phrases set forth below shall having the meaning
ascribed thereto, namely:
(a) "Agreement" means this Asset and Share Acquisition Agreement dated the
8th day of March, 1995, among Xxxxxxxxxx, Xxxxx, Vargas, Elizalde,
MASA, Minera and NAD, and the expressions "above", "below", "herein",
"hereto", "hereof" and similar expressions refer to this Agreement;
(b) "Act" means the Business Corporations Act (Alberta) S.A. 1981, c.
B-15, as amended, together with all regulations promulgated pursuant
thereto;
(c) "Amalgamation" means the amalgamation of Minera and another
corporation as one corporation pursuant to a plan of arrangement under
the Act or in the alternative, the conversion of Minera to a publicly
traded company;
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(d) "Assets" means collectively all of the interests whatsoever of
Degerstrom in the Properties, as more particularly set forth and
described in Schedule "A" annexed hereto and a corresponding interest
in the Miscellaneous Interests;
(e) "Asset Closing" means the transfer of the Assets by Degerstrom to MASA
and NAD, and the payment by MASA and NAD to Degerstrom of the Purchase
Price therefor and the completion of all matters incidental thereto;
(f) "Bonus" means a one time payment of common shares issued from the
treasury of Minera to Degerstrom on the terms and conditions set forth
in Schedule "F";
(g) "Bankable Feasibility" means that point in time whenever a bank or
other lending institution will loan Minera, MASA or NAD funds for
production development on the Properties, NAD Properties, MASA
Properties or Future Properties;
(h) "Business Day" means a week day, excluding all statutory holidays in
the City of Calgary;
(i) "Business" means the business presently and heretofore carried on by
NAD and MASA as going concerns;
(j) "Cateos" means an exploration concession for mineral rights granted to
an individual or company in the Republic of Argentina, as defined by
the Republic of Argentina Mining Code, as amended. Cateos are measured
in units of 500 hectares (5 square kilometres) and can consist of a
maximum of 20 units (100 square Km). No owner can have contiguous
cateos or more then 10 cateos or 200 units (1000 square kilometres)
per province. A cateo allows for exploration but not exploitation of
the land. Private surface owners must be compensated for damages and
disturbance. Work plan and investment required. Area can be reduced at
any time.
(k) "Claims" means those certain Cateos, Manifestacion de Descubrimiento,
Mina, Estaca Mina, as defined by the Republic of Argentina Mining
Code, as amended, issued to Degerstrom by the government of Argentina
or any provincial government and all rights and privileges derived
therefrom including option agreements and any other agreements
whatsoever under and by virtue of which Degerstrom currently holds,
has acquired or is entitled to acquire the right to explore, drill
for, win, take, excavate, own or remove the minerals described
therein, the particulars of which are set forth in Schedule "A";
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(l) "Claim Locations" means the tract or tracts of land described within
the Claims, the NAD Claims, or the MASA Claims;
(m) "Closing" means the transfer of the NAD shares and MASA shares by the
Vendors to Minera and the payment by Minera of the Purchase Price
therefor and the completion of all matters incidental thereto;
(n) "Closing Date" means 10:00 a.m., Calgary time, on March 15, 1995;
(o) "Conveyance Agreement" means the form of agreement attached hereto as
Schedule "B";
(p) "Degerstrom" means X.X. Xxxxxxxxxx, Inc., a corporation incorporated
under the laws of the State of Washington;
(q) "Effective Date" means 12:01 a.m., Calgary time, on the 1st day of
July, 1994 for the Asset Closing;
(r) "Xxxxxxxx" means Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx, an individual
residing in the City of Xxxxxxx, in the Republic of Argentina;
(s) "Xxxxxxxx Option" means the sole, exclusive, irrevocable and
transferable option to purchase one (1) NAD Share, at a price of
$100.00 (US), granted by Xxxxxxxx to Minera in accordance with clause
2.07 of this Agreement.
(t) "Estaca Mina" means areas granted to extend the area covered by
existing Minas.
(u) "Future Properties" means any exploration properties in Argentina
acquired by Minera, MASA or NAD, or any affiliates thereof, while
Degerstrom is the manager of the Properties, NAD Properties and MASA
Properties pursuant to the Operating Agreement attached hereto as
Schedule "C";
(v) "Gavin" means Xxxxx Xxxxx, an individual residing in the City of
Xxxxxxx, in the Republic of Argentina;
(w) "Manifestacion de Descumbrimiento" means the intermediate stage
between the exploration phase and exploitation phase of development.
(An manifestacion de descubrimiento is a declaration that discovery
has been made and that a Mina (300 by 200 meters) or mina diseminada
(5 kilometre radius) is claimed. A work plan and investment is
required. This stage of development has a 15 month term.)
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(x) "MASA" means Minera Andes S.A., a corporation incorporated under the
laws of the Republic of Argentina;
(y) "MASA Assets" means collectively all of the interests whatsoever of
MASA in the MASA Properties as more particularly set forth and
described in Schedule "AAA" hereto annexed and Schedule "A" Part I,
after completion of the Asset Closing and a corresponding interest in
the MASA Miscellaneous Interests;
(z) "MASA Claims" means those certain Cateos, Manifestacion de
Descubrimiento, Mina, Estaca Mina, as defined by the Republic of
Argentina Mining Code, as amended, issued to MASA by the government of
Argentina or any provincial government, and all rights and privileges
derived therefrom, including option agreements and any other
agreements whatsoever under and by virtue of which MASA currently
holds, has acquired or is entitled to acquire the right to explore,
drill for, win, take, excavate, own or remove the minerals described
therein, the particulars of which are set forth in Schedule "AAA" and
Schedule "A" Part I, after completion of the Asset Closing;
(aa) "MASA Miscellaneous Interests" means all of MASA's entire right,
title, estate and interest in and to all property, assets and rights
pertaining to the MASA Claims to which MASA is entitled, including but
not in limitation of the generality of the foregoing, the said
interest of MASA in:
(i) all contracts, agreements, documents, books and records; all
geotechnical, seismic, geological, geophysical, drilling,
assaying, metallurgical mapping, production and engineering
information; and all other reports or studies relating to the
MASA Properties;
(ii) all subsisting rights to enter upon, use and occupy the surface
of any of the Claim Locations;
(iii) any other right, estate or interest in or any asset which
relates to but has not comprised part of the MASA Claims; and
(iv) all licenses, permits, easements, rights of way, certificates and
other approvals obtained by MASA, either before or after the date
of this Agreement, that are necessary for the exploration and
development of the MASA Properties or for the purpose of placing
the MASA Properties into production or continuing production
therefrom;
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(ab) "MASA Properties" means collectively the exploration properties in
Argentina listed, described or referred to in Schedule "AAA" and
Schedule "A" Part I, after completion of the Asset Closing, hereto
annexed, including without limitation, MASA Claims, mining leases,
mining rights and surface rights held by or in trust for MASA (whether
such rights are vested in MASA or only represent a right to acquire a
vested interest therein) in lands used or intended to be used for
mining purposes, including the right to acquire any such interest
pursuant to option agreements, together with all other property
interests in such properties, and all buildings, fixtures and
improvements and other assets located on such properties; provided
that such properties may be subject to Permitted Encumbrances and the
rights of third parties pursuant to contracts footnoted in said
Schedule "AAA" and Schedule "A" Part I, after completion of the Asset
Closing;
(ac) "MASA Shares" means common shares issued and outstanding in the
capital of MASA;
(ad) "Mina" means a exploitation grant based on Manifestacion de
Descubrimiento.
(ae) "Miscellaneous Interests" means all of Xxxxxxxxxx'x entire right,
title, estate and interest in and to all property, assets and rights
pertaining to the Claims to which Degerstrom is entitled, including
but not in limitation of the generality of the foregoing, the said
interest of Degerstrom in:
(i) all contracts, agreements, documents, books and records; all
geotechnical, seismic, geological, geophysical, drilling,
assaying, metallurgical testing, studies, mapping, production and
engineering information; and all other reports or studies
relating to the Properties;
(ii) all subsisting rights to enter upon, use and occupy the surface
of any of the Claim Locations;
(iii) any other right, estate or interest in or any asset which
relates to but has not comprised part of the Claims; and
(iv) all licenses, permits, easements, rights of way, certificates and
other approvals obtained by the Degerstrom, either before or
after the date of this Agreement, that are necessary for the
exploration and development of the Properties or for the purpose
of placing the Properties into production or continuing
production therefrom;
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(af) "Minera" means Minera Andes Inc., a corporation incorporated under the
Act and any successors thereof including the corporation resulting
from the Amalgamation;
(ag) "Minera Shares" means 4,000,000 common shares of Minera issued to
Degerstrom from the treasury of Minera at a deemed price of $0.17
(Cdn.) per common share. (The deemed price per Minera Share is derived
from independent audit of Xxxxxxxxxx'x expenses and costs before the
Effective Date. The price per Minera Share is a fraction of the total
expenditures of Degerstrom of $575,537 to the Effective Date, as set
forth in Schedule "M" attached hereto);
(ah) "NAD" means NAD (S.A.), a corporation incorporated under the laws of
the Republic of Argentina;
(ai) "NAD Assets" means collectively all of the interests whatsoever of NAD
in the NAD Properties as more particularly set forth and described in
Schedule "AA" and Schedule "A" Part II, after completion of the Asset
Closing, hereto annexed and a corresponding interest in the NAD
Miscellaneous Interests;
(aj) "NAD Claims" means those certain Cateos, Manifestacion de
Descubrimiento, Mina, Estaca Mina, as defined by the Republic of
Argentina Mining Code, as amended, issued to NAD by the government of
Argentina or any provincial government, and all rights and privileges
derived therefrom, including option agreements and any other
agreements whatsoever under and by virtue of which NAD currently
holds, has acquired or is entitled to acquire the right to explore,
drill for, win, take, excavate, own or remove the minerals described
therein, the particulars of which are set forth in Schedule "AA" and
Schedule "A" Part II, after completion of the Asset Closing;
(ak) "NAD Miscellaneous Interests" means all of NAD's entire right, title,
estate and interest in and to all property, assets and rights
pertaining to the NAD Claims to which NAD is entitled, including but
not in limitation of the generality of the foregoing, the said
interest of the NAD in:
(i) all contracts, agreements, documents, books and records all
geotechnical data and all seismic, geological, geophysical,
drilling, assaying, metallurgical testing, studies, mapping,
production and engineering information; and all other reports or
studies relating to the NAD Properties;
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(ii) all subsisting rights to enter upon, use and occupy the surface
of any of the Claim Locations;
(iii) any other right, estate or interest in or any asset which
relates to but has not comprised part of the NAD Claims; and
(iv) all licenses, permits, easements, rights of way, certificates and
other approvals obtained by NAD, either before or after the date
of this Agreement, that are necessary for the exploration and
development of the NAD Properties or for the purpose of placing
the NAD Properties into production or continuing production
therefrom;
(al) "NAD Properties" means collectively the exploration properties in
Argentina listed, described or referred to in Schedule "AA" and
Schedule "A" Part II, after completion of the Asset Closing, hereto
annexed, including without limitation, NAD Claims, mining leases,
mining rights and surface rights held by or in trust for NAD (whether
such rights are vested in NAD or only represent a right to acquire a
vested interest therein) in lands used or intended to be used for
mining purposes, including the right to acquire any such interest
pursuant to option agreements, together with all other property
interests in such properties, and all buildings, fixtures and
improvements and other assets located on such properties; provided
that such properties may be subject to Permitted Encumbrances and the
rights of third parties pursuant to contracts footnoted in said
Schedule "AA" and Schedule "A" Part II, after completion of the Asset
Closing;
(am) "NAD Shares" means common shares issued and outstanding in the capital
of NAD;
(an) "Net Smelter Returns or NSR" has the definition outlined in Schedule
"D" hereto attached;
(ao) "Operating Agreement" means the form of exploration and operating
agreement attached hereto as Schedule "C";
(ap) "Permitted Encumbrances" means:
(i) easements, rights of way, servitudes or other similar rights in
land including, without limiting the generality of the foregoing,
rights of way and servitudes for railways, sewers, drains, gas
and oil pipelines, gas and water mains, electric light, power,
telephone, telegraph or cable television conduits, poles, wires
and cables;
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(ii) the right reserved to or vested in any government or other public
authority by the terms of any or by any statutory provision, to
terminate, revoke or forfeit any of the Claims, NAD Claims or
MASA Claims, or to require annual or other periodic payments as a
condition of the continuance thereof;
(iii) rights reserved to or vested in any governmental, statutory or
public authority to control or regulate any of the Assets, NAD
Assets or MASA Assets in any manner, and all applicable laws,
rules and orders of any governmental authority;
(iv) the reservations, limitations, provisos and conditions in any
original grants from the government of any of the Claims, NAD
Claims or MASA Claims, or interests therein and statutory
exceptions to title;
(v) the terms and conditions of the Claims, NAD Claims and MASA
Claims;
(vi) rights reserved to or vested in provincial or governmental,
statutory or public authority to levy taxes on minerals or the
income therefrom, or to limit, control or regulate any of the
Assets, NAD Assets or MASA Assets in any manner, and all
applicable laws, rules and orders of any governmental authority;
and
(vii) all royalty burdens (including lessor's royalties) liens,
adverse claims and encumbrances listed on Schedule "A" for
Properties, Schedule "AA" for NAD Properties, and Schedule "AAA"
for MASA Properties.
(viii) in certain instances there may be interior claims inside the
Properties, MASA Properties or NAD Properties that are unknown to
Degerstrom, NAD or MASA due to discrepancies and delays at the
Argentinean departments governing the registration of claims;
thus, in some instances, boundaries of the Properties, MASA
Properties and NAD Properties may change as the result of claims
filed by a third party that supersede Xxxxxxxxxx'x, NAD's or
MASA's filings.
(aq) "Place of Closing" means the offices of Xxxxxxx and Company located at
Xxxxx 0000, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0;
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(ar) "Properties" means collectively the exploration properties in
Argentina listed, described or referred to in Schedule "A" hereto
annexed, including without limitation, the Claims, mining leases,
mining rights and surface rights held by or in trust for Degerstrom
(whether such rights are vested in Degerstrom or only represent a
right to acquire a vested interest therein) in lands used or intended
to be used for mining purposes, including the right to acquire any
such interest pursuant to option agreements, together with all other
property interests in such properties, and all buildings, fixtures and
improvements and other assets located on such properties; provided
that such properties may be subject to Permitted Encumbrances and the
rights of third parties pursuant to contracts footnoted in said
Schedule "A";
(as) "Purchase Price" shall have the meaning attributed to it in Article 3;
(at) "Regulatory Approvals" means the approvals for the transactions
contemplated herein, required from all regulatory bodies including any
stock exchange, the United States Securities and Exchange Commission
or any state or provincial authority have jurisdiction over securities
matters generally;
(au) "Royalty" shall have the meaning attributed to it in Article 4.
(av) "Underlying Royalties" means any royalties on the Properties, NAD
Properties, MASA Properties or Future Properties that are part of the
lease, purchase, or option of said property from the owner or any
royalties that may be imposed by provincial governments;
(aw) "Xxxxxx" means Xxxxx Xxxxxx, an individual residing in the City of
Xxxxxxx, in the Republic of Argentina;
(ax) "Xxxxxx Option" means the sole, exclusive, irrevocable and
transferable option to purchase one (1) MASA Share, as a price of
$100.00 (US), granted by Xxxxxx to MASA in accordance with clause 2.04
of this Agreement;
(ay) "Vendors" means collectively Xxxxxxxxxx, Xxxxx, Xxxxxx and Xxxxxxxx:
1.02 Appended hereto are the following Schedules:
Schedule "A" - Description of Properties
Schedule "AA" - Description of NAD Properties
Schedule "AAA" - Description of MASA Properties
Schedule "B" - Conveyance Agreement
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Schedule "C" - Operating Agreement
Schedule "D" - Definition of Net Smelter Returns
Schedule "E" - Adjustment Procedure
Schedule "F" - Description of Bonus
Schedule "G" - Articles of Incorporation for NAD
Schedule "H" - Articles of Incorporation for MASA
Schedule "I" - Xxxxxx Option Agreement
Schedule "J" - Xxxxxxxx Option Agreement
Schedule "K" - Cost and Expenses After Effective Date
Schedule "L" - Repayment Schedule
Schedule "M" - Costs and Expenses Before Effective Date
1.03 Wherever any provision of any Schedule to this Agreement conflicts with any
provision in the body of this Agreement, the provisions of the body of this
Agreement shall prevail. References herein to a Schedule shall mean a reference
to the applicable Schedule to this Agreement. References in any Schedule to the
"Agreement" shall mean a reference to this Agreement. References in any Schedule
to another Schedule shall mean a reference to a Schedule to this Agreement.
1.04 References herein to a clause shall mean a reference to a clause within the
body of this Agreement.
1.05 The headings of Articles, clauses and subclauses herein and in the
Schedules are inserted for convenience of reference only and shall not affect or
be considered to affect the construction of the provisions hereof.
1.06 In this Agreement, words importing persons include corporations and vice
versa, words importing the masculine gender include the feminine and neuter
genders and vice versa, and words importing the singular include the plural and
vice versa.
1.07 All amounts of money which are referred to in this Agreement are expressed
in lawful money of the United States unless otherwise specified.
1.08 Words and phrases used herein and defined in the Republic of Argentina
Mining Code, as amended, shall have the same meaning herein unless the context
otherwise requires.
ARTICLE 2.
SALE
2.01 Degerstrom agrees to sell and convey that portion of Assets set forth in
Schedule "A" Part I to MASA, and MASA agrees to purchase and receive that
portion of the Assets so described from Degerstrom, all in accordance with and
subject to the terms and conditions set forth in the Agreement and Degerstrom
agrees to sell or convey that portion of the Assets set
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forth in Schedule "A" Part II to NAD, and NAD agrees to purchase and receive
that portion of the Assets so described from Degerstrom, all in accordance with
and subject to the terms and conditions set forth in the Agreement.
2.02 Degerstrom agrees to sell and convey the MASA Shares it holds and Minera
agrees to purchase and receive the MASA Shares held by Degerstrom, all in
accordance with and subject to the terms and conditions set forth in the
Agreement.
2.03 Gavin agrees to sell and convey the MASA Shares it holds and Minera agrees
to purchase and receive the MASA Shares held by Gavin, all in accordance with
and subject to the terms and conditions set forth in the Agreement.
2.04 Xxxxxx hereby grants an option to Minera to purchase the one MASA Share
which he holds, all in accordance with and subject to the terms and conditions
set forth in the option agreement appended hereto as Schedule "I".
2.05 Degerstrom agrees to sell and convey the NAD Shares it holds to Minera, and
Minera agrees to purchase and receive the NAD Shares held by Degerstrom, all in
accordance with and subject to the terms and conditions set forth in the
Agreement.
2.06 Xxxxxx agrees to sell and convey the NAD Shares it each holds to Minera and
Minera agrees to purchase and receive the NAD Shares from Xxxxxx, all in
accordance with and subject to the terms and conditions set forth in the
Agreement.
2.07 Xxxxxxxx hereby agrees to grant an option to Minera to purchase the one NAD
Share which he holds, all in accordance with and subject to the terms and
conditions set forth in the Option Agreement appended hereto as Schedule "J".
2.08 From time to time after the Closing Date, Degerstrom shall execute and
deliver or cause to be executed and delivered to MASA and NAD, as the case may
be, such instruments of sale, transfer, conveyance, assignment and delivery,
consents, assurances, powers of attorney and other instruments as may be
reasonably requested by counsel for MASA and NAD, in addition to those the
delivery of which are required at the Asset Closing, in order to vest in MASA
and NAD, as the case may be, all right, title and interest of Degerstrom in and
to the Assets, in order to carry out the purpose and intent of this Agreement,
at no cost to Degerstrom.
2.09 From time to time after the Closing Date, the Vendors shall execute and
deliver or cause to be executed and delivered to Minera, such instruments of
sale, transfer, conveyance, assignment and delivery, consents, assurances,
powers of attorney and other instruments as may be reasonably requested by
counsel for Minera, in addition to those the delivery of which are required at
the Closing, in order to vest in Minera, all right, title and interest of the
Vendors in and to the MASA Shares, NAD Shares in order to carry out the purpose
and intent of this Agreement, at no cost to the Vendors.
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2.10 The Asset Closing shall take place immediately prior to the Closing at the
Place of Closing on the Closing Date or at such other place or at such other
time as the Vendors, Minera, NAD and MASA may agree.
ARTICLE 3.
PURCHASE PRICE
3.01 The purchase price to be paid by MASA for the Assets transferred to it from
Degerstrom is the Royalty.
3.02 The purchase price to be paid by NAD for the Assets transferred to it from
Degerstrom is the Royalty.
3.03 The purchase price to be paid by Minera to Xxxxxxxxxx for the NAD Shares
and MASA Shares held by Xxxxxxxxxx shall be the sum of the following:
(a) the Minera Shares payable on the Closing Date to Xxxxxxxxxx;
(b) the Bonus;
(c) the Royalty; and
(d) the aggregate amount of costs and expenses incurred by Xxxxxxxxxx on
behalf of Minera from the Effective Date until the Closing Date.
(These costs and expenses include operating costs, capital costs,
overhead, and all costs associated with the incorporation and the
administration and operation of Minera, paid by Xxxxxxxxxx after the
Effective Date. These costs and expenses are set forth in Schedule "K"
will be reimbursed to Xxxxxxxxxx after Closing pending an audit by an
independent accounting firm to confirm or adjust amounts listed in
Schedule "K". Reimbursement as defined in Schedule "L" hereto
attached.
3.04 Xxxxxxxxxx acknowledges and agrees that:
(a) the Minera Shares are issued pursuant to exemptions contained in the
Securities Act (Alberta) and pursuant to an exemption from the
registration requirements of the United States Securities Act of 1933;
(b) the issuance of the Minera Shares are subject to the policies, rules
and by-laws of any regulatory body and the Minera Shares may be
subject to escrow provisions imposed by any regulatory body.
Xxxxxxxxxx agrees to be bound by and comply with all of the policies,
rules and by-laws of any regulatory body in regard to the Minera
Shares, and to comply with
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all laws and securities regulations in respect of the trading of the
Minera Shares; and
(c) no portion of the Minera Shares held by Xxxxxxxxxx or shares received
by Xxxxxxxxxx pursuant to an Amalgamation shall be traded, as that
term is defined in the Securities Act (Alberta), for a period of 1.5
years without the prior written approval of Minera, such consent not
to be unreasonably withheld.
3.05 Minera shall cause to be delivered to Xxxxxxxxxx a certificate or
certificates representing all the Minera Shares and will cause the Minera Shares
to be duly recorded on the books of Minera in the name of Xxxxxxxxxx. All such
share certificates shall be fully transferable on the books of Minera and
endorsed in blank for transfer in a manner satisfactory to counsel for
Xxxxxxxxxx. The delivery of such Minera Shares shall be against receipt of the
Minera Shares and NAD Shares from Xxxxxxxxxx.
3.06 The purchase price to be paid by Minera to Gavin for the MASA Shares held
by Gavin shall be $400.00 (U.S.), payable by Minera to Gavin on the Closing
Date.
3.07 The purchase price to be paid by Minera to Xxxxxx for the Xxxxxx Option
shall be $1.00 payable by Minera to Xxxxxx on the Closing Date.
3.08 The purchase price to be paid by Minera to Xxxxxx for the NAD Shares held
by Xxxxxx shall be $200.00 (U.S.) payable by Minera to Xxxxxx on the Closing
Date.
3.09 The purchase price to be paid by Minera to Xxxxxxxx for the Xxxxxxxx Option
shall be $1.00 payable by Minera to Xxxxxxxx on the Closing Date.
ARTICLE 4.
NET SMELTER RETURN ROYALTY
4.01 Subject to Section 4.03 Xxxxxxxxxx will levy and collect a Royalty equal to
a percentage determined in Section 4.02 of the Net Smelter Return earned on all
of the Properties, MASA Properties, NAD Properties and any Future Properties
acquired by Minera, MASA, NAD or their affiliates, as the case may be, located
in the Republic of Argentina. The Net Smelter Return will be calculated as set
forth in Schedule "D".
4.02 The Properties, MASA Properties, NAD Properties or Future Properties, are
subject to a Royalty equal to the difference between 3% and the Underlying
Royalty subject to a maximum Royalty of 2% and a minimum Royalty of 0% payable
to Xxxxxxxxxx:
4.03 In the event Xxxxxxxxxx allocates and levies a Royalty on the NSR earned on
any of the Properties, MASA Properties, NAD Properties or the Future Properties,
MASA, Minera,
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NAD or their affiliates, as the case may be, each shall at any time have the
option, upon giving notice to Xxxxxxxxxx, to buy back up to one-half of the
Royalty on the NSR payable to Xxxxxxxxxx on the property owned by it upon the
payment of $1,500,000 (U.S. Funds) for every 1% of the Royalty on the NSR
purchased. The notice shall be in writing and contain the details as to the
percentage of the Royalty to be purchased and the consideration to be paid. Each
of MASA, Minera, NAD or their affiliates, as the case may be, shall then have
the right for a period of twenty (20) days after receipt of the notice by
Xxxxxxxxxx to purchase the Royalty and to provide the consideration to
Xxxxxxxxxx. The option to purchase the Royalty payable on the NSR may be
exercised in whole or in part at any time by each of MASA, Minera, NAD or their
affiliates, as the case may be, until such time as the full amount of the
Royalty has been purchased pursuant to the conditions stated above.
ARTICLE 5.
TRANSFER OF ASSETS
5.01 The Properties shall be in the possession and remain at the risk of
Xxxxxxxxxx until the Asset Closing. At such time and upon payment by MASA of the
purchase price to Xxxxxxxxxx, title to that portion of the Assets set forth in
Schedule "A" Part I will pass to MASA. Thereafter, that portion of the Assets
set forth in Schedule "A" Part I shall be at the risk of MASA. At such time and
upon payment by NAD of the purchase price to Xxxxxxxxxx, title to that portion
of the Assets set forth in Schedule "A" Part II will pass to NAD. Thereafter,
that portion of the Assets set forth in Schedule "A" Part II shall be at the
risk of NAD.
ARTICLE 6.
ADJUSTMENTS
6.01 General
All benefits, income and expenses, and all other obligations of every
kind and nature whatsoever accruing, payable or paid or received or receivable,
in respect to the Assets, and all benefits, income, expenses and all obligations
of every kind and nature whatsoever accruing payable or paid and received or
receivable in respect to all general exploration costs associated with the
Assets and, costs of exploration projects in Argentina that did not become part
of the Assets, including but not limited to maintenance, exploration,
development, overhead and operating costs shall be apportioned between
Xxxxxxxxxx and MASA with respect to that portion of the Assets set forth in
Schedule "A" Part I and Xxxxxxxxxx and NAD with respect to that portion of the
Assets set forth in Schedule "A" Part II as of the Effective Date on the
following basis:
(a) Xxxxxxxxxx shall be responsible for costs and expenses, including
operating costs and capital costs, paid prior to the Effective Date;
and MASA shall be responsible for costs and expenses, including
exploration and development costs, operating costs, capital costs,
maintenance and overhead, with respect to that portion of the
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Assets set forth in Schedule "A" Part I, all general exploration costs
associated with that portion of the Assets set forth in Schedule "A"
Part I and costs of exploration projects that did not become part of
that portion of the Assets set forth in Schedule "A" Part I and all
costs associated with the incorporation and administration and
operation of MASA that are paid by Xxxxxxxxxx after the Effective
Date;
(b) Xxxxxxxxxx shall be responsible for costs and expenses, including
operating costs and capital costs, maintenance and overhead, with
respect to that portion of the Assets set forth in Schedule "A" Part
II and all general exploration costs associated with that portion of
the Assets set forth in Schedule "A" Part II and costs of exploration
projects that did not become part of that portion of the Assets set
forth in Schedule "A" Part II paid prior to the Effective Date and NAD
shall be responsible for costs and expenses, including exploration and
development that portion of costs, operating costs, capital costs,
maintenance and overhead, with respect to that portion of the Assets
set forth in Schedule "A" Part II and all general exploration and
exploration projects that did not become part of that portion of the
Assets set forth in Schedule "A" Part II and all costs associated with
the administration and operation of NAD, paid by Xxxxxxxxxx after the
Effective Date;
(c) Rental and all similar payments made by Xxxxxxxxxx to preserve that
portion of the Claims relating to the Assets set forth in Schedule "A"
Part I, if any, shall be paid by MASA from the Effective Date as set
forth in Schedule "E" section 5;
(d) Rental and all similar payments made by Xxxxxxxxxx to preserve that
portion of the Claims relating to the Assets set forth in Schedule "A"
Part II, if any, shall be paid by NAD from the Effective Date as set
forth in Schedule "E" section 5;
(e) From the Effective Date to the Closing Date, Xxxxxxxxxx has been
paying MASA's costs and expenses as identified in section 6.01(a) and
6.01(c) above and NAD's cost and expenses as identified in Section
6.01 (b) and 6.01 (d) above, which costs and expenses will be
reimbursed to Xxxxxxxxxx based on the following:
(i) Costs and expenses attached hereto as Schedule "K" will be
audited by an independent accounting firm prior to reimbursement
to Xxxxxxxxxx in accordance with the General Accepted Accounting
Principals (GAAP) of Canada; and,
(ii) Xxxxxxxxxx will be reimbursed its audited costs and expenses as
set forth in Schedule "L" attached hereto.
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6.02 Adjustment Procedure
All benefits and obligations as set forth in clause 6.01 hereof shall
be subject to adjustment in accordance with the procedure as identified in
Schedule "E" hereof.
ARTICLE 7.
APPOINTMENT OF OPERATOR
7.01 Following the Closing Date, Xxxxxxxxxx will become the operator of all
exploration projects on the Properties, the MASA Properties, NAD Properties and
Future Properties. The relationship of the parties will be governed in
accordance with the terms of the Operating Agreement attached hereto as Schedule
"C".
ARTICLE 8.
RIGHT OF FIRST REFUSAL
8.01 In the event MASA, Minera, or NAD elects to develop a Property, MASA
Property, NAD Property, or Future Property, as the case may be, and contract out
development and production, MASA, Minera, or NAD, as the case may be, shall give
notice thereof to Xxxxxxxxxx. The notice shall contain the terms and conditions
of the proposed arrangement including the consideration to be received and if
applicable the name of the third-party to whom MASA, Minera or NAD are
contracting with. Xxxxxxxxxx shall have the right for a period of thirty (30)
days after the receipt of the notice from MASA, Minera or NAD (in this article
called the "Notice Period") to elect in writing to meet the contract bid by a
third-party. If Xxxxxxxxxx declines or fails to elect within the Notice Period,
to meet the contract bid MASA, Minera or NAD, as the case may be, shall be free
for a period of sixty (60) days next following the expiry of the Notice Period
to enter into a contract with the third-party on the terms and conditions and to
the third party, if applicable, stipulated in its offer but not after the said
sixty (60) day period nor otherwise than as so stipulated without again
complying with the provisions of this article.
ARTICLE 9.
INTERIM OPERATIONS
9.01 Xxxxxxxxxx agrees to inform MASA, Minera and NAD of all proposed material
operations with respect to the Assets to take place between the execution of
this Agreement and the Closing Date. Between the date of execution of this
Agreement and the Closing Date, no contractual commitment shall be entered into
and no variation of existing commitments or transactions in respect of the
Assets shall be made or entered into by Xxxxxxxxxx, without notification to
MASA, Minera and NAD.
9.02 Subject to Clause 9.01, until the Closing Date, to the extent that the
nature of Xxxxxxxxxx'x interests permit, and subject to all agreements
applicable to the Assets, Xxxxxxxxxx shall use all reasonable efforts which
would normally be expected of Xxxxxxxxxx in accordance
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with industry standards to cause the Properties to be maintained in a proper and
prudent manner in accordance with generally accepted mining industry practices,
and shall cause all covenants and conditions concerning the mining lands and all
other agreements relating to the Properties to be performed and complied with.
MASA, Minera or NAD shall reimburse Xxxxxxxxxx for all costs and expenses
relating to the Properties incurred after the Effective Date to the Asset
Closing pursuant to the procedure set forth in Schedule "E" hereof.
9.03 Notwithstanding the foregoing, Xxxxxxxxxx shall not, from the date hereof
and without the prior written consent of MASA, Minera or NAD, which consent
shall not be unreasonably withheld or delayed, surrender or abandon any of the
Properties or permit any of the Claims comprising the Properties to expire.
However, certain Properties may be abandoned or surrendered or Claims comprising
the Properties may be allowed to expire if they are deemed not worthy of
retention through the normal course of geologic investigation by Xxxxxxxxxx
without written consent of MASA, NAD and Minera. Xxxxxxxxxx covenants and agrees
to apply for the continuation of any Claim comprising the Properties which will
expire on or prior to the Closing Date, subject to the following.
9.04 Xxxxxxxxxx, Xxxxx and Xxxxxx, with respect to MASA, and Xxxxxxxxxx, Xxxxxx
and Xxxxxxxx, with respect to NAD, shall cause the Business of NAD and the
Business of MASA to be carried on in the ordinary course between the date of
execution and delivery of this Agreement and the Closing Date, and each
undertakes to notify Minera of any event or occurrence during such period which
might reasonably be considered to have a materially adverse effect on the
Business of the NAD or the Business of MASA, as the case may be.
9.05 Unless otherwise approved by Minera in writing, which approval may not be
unreasonably withheld, Xxxxxxxxxx, Xxxxx and Xxxxxx, with respect to MASA, and
Xxxxxxxxxx, Xxxxxx and Xxxxxxxx, with respect to NAD, covenant with Minera that
during the period from the date hereof until the earlier of the Closing Date or
termination of this Agreement, Xxxxxxxxxx, Xxxxx and Xxxxxx, with respect to
MASA, and Xxxxxxxxxx, Xxxxxx and Xxxxxxxx, with respect to NAD, shall not permit
NAD or MASA to:
(a) sell, transfer or dispose of or create any mortgage, pledge, waiver or
other encumbrance or a security interest on or in respect of the whole
or any part of the NAD Assets or MASA Assets, however certain MASA
Properties or NAD Properties may be abandoned or surrendered or MASA
Claims comprising the MASA Properties or the NAD Claims comprising the
NAD Properties may be allowed to expire if they are deemed not worthy
of retention through the normal course of geologic investigation by
Xxxxxxxxxx without written consent of Minera;
(b) enter into any transaction not in the ordinary course of business;
(c) borrow money or incur any indebtedness for money borrowed;
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(d) make loans, advances or other payments, excluding routine advances to
employees of NAD or MASA for expenses incurred in the ordinary course
and such amounts as contemplated in this Agreement;
(e) make any capital expenditures;
(f) issue, sell or agree to issue or sell any shares, rights, options,
warrants or other securities;
(g) purchase, cancel, retire, redeem or otherwise acquire any of NAD or
MASA's outstanding shares, rights, options, warrants or other
securities other than as contemplated herein;
(h) change, amend or modify the charter documents or by-laws of NAD or
MASA;
(i) enter into or amend any contract or otherwise agree to any changes in
any contract to which NAD or MASA is a party;
(j) except for the specific purposes of complying with the terms hereof,
hold any meetings of the board of directors or shareholders of NAD or
MASA without prior notice and subsequent delivery of minutes thereof
to Minera; or
(k) declare, set aside, make or pay any dividend or other distribution of
any kind in respect of any securities issued by NAD or MASA.
9.06 Xxxxxxxxxx shall continue to remain liable for, and agrees to indemnify and
save MASA harmless from and against, any costs, expenses or claims made in
respect of that portion of the Assets set forth in Schedule "A" Part I and
Xxxxxxxxxx'x interests in all agreements regarding that portion of the Assets
set forth in Schedule "A" Part I that are assigned to MASA arising any time
prior to the Effective Date, excepting, in each case, any liability, loss, cost,
claim or damage to the extent the same are reimbursed by insurance or caused by
the negligence of MASA. MASA agrees to assume liability for and indemnify and
save Xxxxxxxxxx harmless from and against, any costs, expenses or other claims
made in respect of that portion of the Assets set forth in Schedule "A" Part I
that are assigned to MASA attributable to any time after the Effective Date,
excepting, in each case, any liability, loss, cost, claim or damage to the
extent that the same are reimbursed by insurance or caused by the negligence of
Xxxxxxxxxx.
9.07 Xxxxxxxxxx shall continue to remain liable for and agrees to indemnify and
save NAD harmless from and against, any cost, expense or claim made in respect
of that portion of the Assets set forth in Schedule "A" Part II and Xxxxxxxxxx'x
interests in all agreements regarding that portion of the Assets set forth in
Schedule "A" Part II that are assigned to NAD arising any time prior to the
Effective Date, excepting, in each case, any liability, loss, cost, claim or
damage to the extent the same are reimbursed by insurance or caused by the
negligence of NAD. NAD agrees to assume liability for and indemnify and save
Xxxxxxxxxx harmless from
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and against, any costs, expense or other claim made in respect of that portion
of the Assets set forth in Schedule "A" Part II that are assigned to NAD
attributable to any time after the Effective Date, excepting, in each case, any
liability, loss, cost, claim or damage to the extent that the same are
reimbursed by insurance or caused by the negligence of Xxxxxxxxxx.
9.08 The indemnities contained in clause 9.06 shall survive the Asset Closing
until July 1, 1996, and shall be deemed to apply to all assignments, transfers,
conveyances, novations and other documents conveying that portion of the Assets
set forth in Schedule "A" Part I to MASA. Each party shall have full right of
substitution and subrogation in and to all covenants and warranties by others
heretofore given or made in respect of that portion of the Assets set forth in
Schedule "A" Part I or any part thereof to the extent permitted at law.
9.09 The indemnities contained in clause 9.07 shall survive the Asset Closing
until July 1, 1996, and shall be deemed to apply to all assignments, transfers,
conveyances, novations and other documents conveying that portion of the Assets
set forth in Schedule "A" Part II to NAD. Each party shall have full right of
substitution and subrogation in and to all covenants and warranties by others
heretofore given or made in respect of that portion of the Assets set forth in
Schedule "A" Part II, or any part thereof to the extent permitted at law.
9.10 The Vendors covenant and agree with Minera, each on their own behalf, and
Minera hereby covenants and agrees with the Vendors (the party or parties so
covenanting and agreeing to indemnify another party or parties hereinafter in
this Section referred to as the "Indemnifying Party" and the party or parties so
to be indemnified being hereinafter called the "Indemnified Party") to indemnify
and save harmless the Indemnified Party, effective as and from the Closing, from
and against any claims, demands, actions, causes of action, damages, loss,
costs, liability or expense (hereinafter in this Section called "Claims") which
may be made or brought against the Indemnified Party or which it may suffer or
incur as a result of, in respect of, or arising out of any nonfulfillment of any
covenant or agreement on the part of the Indemnifying Party under this Agreement
or any incorrectness in or breach of any representation or warranty of the
Indemnifying Party contained herein or in any certificate or other document
furnished by the Indemnifying Party pursuant hereto.
ARTICLE 10.
TECHNICAL, OPERATING AND FINANCIAL INFORMATION
10.01 Xxxxxxxxxx shall, subject to any and all contractual restrictions on it,
make available to MASA, NAD and Minera and their authorized representatives for
inspection at a location in the City of Xxxxxxx, Argentina any and all records
pertaining to operating revenues and expenses, all geo-technical data relating
to the Assets, NAD Assets and MASA Assets as are in the possession of Xxxxxxxxxx
or to which Xxxxxxxxxx is entitled and provide, if requested by MASA, NAD and
Minera, copies of same at MASA, NAD or Minera's expense.
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10.02 Xxxxxxxxxx shall, subject to any and all contractual restrictions on it,
make available to MASA, NAD and Minera and their authorized representatives for
inspection at a location in the City of Xxxxxxx, Argentina any and all of its
books, accounts, records and other financial, operating, marketing and other
data and records relating to the Assets, NAD Assets and MASA Assets as MASA, NAD
and Minera reasonably requires in connection herewith.
10.03 Xxxxxxxxxx shall upon Asset Closing deliver to MASA and NAD, in organized
form, original copies of such documents and information as contemplated in this
Article 10, at MASA and NAD's expense.
ARTICLE 11.
CONVEYANCES AND ELECTIONS
11.01 At the Asset Closing, Xxxxxxxxxx shall prepare, execute and deliver (or
cause to be executed and delivered) to MASA and NAD, or solicitors of MASA and
NAD, all such deeds, bills of sale, assignments, transfers, conveyances,
novations, notices, discharges of security and other documents and assurances as
may be reasonably necessary to convey that portion of the Properties to MASA and
NAD, as the case may be, at no cost to Xxxxxxxxxx. Xxxxxxxxxx shall also deliver
all files, records, reports, data and other information relating to the
Miscellaneous Interests. Any such closing documents and assurances shall be in
such form and shall be of such content as are reasonably required by MASA and
NAD. Xxxxxxxxxx shall cooperate with MASA and NAD to secure execution of such
deeds, documents and assurances by the parties thereto other than Xxxxxxxxxx,
XXXX and NAD. All such deeds, documents and assurances executed and delivered
pursuant to this Agreement are subordinate to the provisions of this Agreement
and the provisions of this Agreement shall govern and prevail in the event of
any conflict between the provisions of this Agreement and any such document or
assurance. There shall be no merger of any covenant, representation or warranty
herein contained in any such deeds, documents and assurances notwithstanding any
rule of law, equity or statute to the contrary.
11.02 At the Asset Closing, Xxxxxxxxxx shall deliver, or cause to be delivered,
such transfers and assignments as MASA and NAD reasonably deems necessary to
convey legal title to that portion of the Properties being transferred to each
of MASA and NAD, as the case may be, and such other assignments, conveyances,
novations, notices and other documents as may reasonably be required by MASA and
NAD, at their respective expense.
11.03 Prior to and following the Asset Closing, Xxxxxxxxxx shall use all
reasonable efforts to obtain and deliver to MASA and NAD all necessary consents,
permissions and approvals by shareholders, co-owners, third parties and
governmental and regulatory authorities necessary and applicable in connection
with the transaction herein provided for, at their respective expense.
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ARTICLE 12.
XXXXXXXXXX'X REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO ASSETS
12.01 To induce MASA and NAD to enter into this Agreement and complete the
transactions contemplated herein, with respect to the transfer of the Assets,
Xxxxxxxxxx hereby represents and warrants to and in favour of MASA and NAD now
as provided in this Article 12, which representations and warranties shall also
have been and will be true and correct as at the Effective Date, the date hereof
and the Closing Date;
12.02 Xxxxxxxxxx is and at the Closing Date shall continue to be a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Washington;
12.03 Xxxxxxxxxx is the beneficial, equitable and registered owner of the Assets
and has the ability to convey and transfer an interest in that portion of the
Assets set forth in Schedule "A" Part I to MASA and that portion of the Assets
set forth in Schedule "A" Part II to NAD;
12.04 Xxxxxxxxxx has the corporate power to own the Assets and carry on business
with respect to the Assets;
12.05 Xxxxxxxxxx has all requisite corporate power and authority to enter into
this Agreement and to perform each of Xxxxxxxxxx'x obligations under this
Agreement;
12.06 All necessary corporate action has been taken by Xxxxxxxxxx to authorize
the execution and delivery by Xxxxxxxxxx of this Agreement and all other
agreements and instruments contemplated by this Agreement;
12.07 The execution and delivery of this Agreement and each and every agreement
or document to be executed and delivered hereunder and the consummation of
transactions contemplated herein will not violate nor be in conflict with any
provision of any material agreement or instrument to which Xxxxxxxxxx is a party
or is bound, or any judgment, decree, order, statute, rule or regulation
applicable to Xxxxxxxxxx or of the articles of incorporation or by-laws of
Xxxxxxxxxx;
12.08 Except as specifically set forth in this Agreement, no person, firm or
corporation has any right, under preferential rights of purchase clauses or
otherwise which has not been waived prior to the Asset Closing, to acquire any
interest in the Assets;
12.09 This Agreement has been duly executed and delivered by Xxxxxxxxxx and all
documents required hereunder to be executed and delivered by Xxxxxxxxxx shall
have been duly executed and delivered, and this Agreement does and such
documents will, constitute legal, valid and binding obligations of Xxxxxxxxxx
enforceable in accordance with their respective terms;
-24-
12.10 Xxxxxxxxxx has not received notice of default under any agreement
affecting the Assets;
12.11 Xxxxxxxxxx has not incurred any obligation or liability contingent or
otherwise, for brokers' or finders' fees in respect of this transaction for
which MASA or NAD shall have any obligation or liability, except as disclosed;
12.12 In respect of the Properties:
(a) all Claims comprising part of the Properties are in all respects valid
and subsisting;
(b) applications have been filed for certain Claims comprising part of the
Properties.
(c) all requirements and procedures to maintain the validity of each of
the Claims comprising part of the Properties have in all respects been
properly and timely observed and followed, and all conditions and
obligations necessary to keep them in full force and effect have in
all respects been fully satisfied and performed;
(d) Xxxxxxxxxx has not received any notice of default or delinquency under
any of the Claims comprising part of the Properties which has not been
cured or which is outstanding and uncured as of the date hereof;
(e) Xxxxxxxxxx has complied in all respects with all conditions required
of it necessary to keep the Claims comprising part of the Properties
in full force and effect;
(f) all rentals, production royalties, advance royalties and other
payments due under the Claims comprising part of the Properties have
in all respects been properly paid to the persons entitled to receive
such payment;
(g) all of the Properties have been operated and maintained in conformance
with all applicable laws, rules, regulations and orders of all
governmental authorities having jurisdiction and are in all respects
subject to no penalties on account of past operation and maintenance;
(h) none of the Properties or the occupancy or operation of any of such
Properties, is in violation of any foreign or municipal building or
zoning law, ordinance, code or regulation applicable to such
Properties or their owner;
(i) no notice from any governmental body or other authority has been
served upon Xxxxxxxxxx or, to the best of Xxxxxxxxxx'x knowledge, upon
any other person or upon any real property used in the operations of
the Properties, claiming any violation of any such building or zoning
law, ordinance, code or regulation or
-25-
requiring or calling attention to the need for any work, repairs,
construction, alterations or installation on or in connection with
said Properties; and,
(j) no condemnation or eminent domain proceedings have been initiated
which relate to any of the Properties and no such proceedings are
threatened or have been filed by any government authority have
jurisdiction with respect thereto; and,
12.13 To the best of Xxxxxxxxxx'x knowledge, information and belief, there is no
circumstance, matter or thing which reasonably could be expected to lead
Xxxxxxxxxx to believe that Xxxxxxxxxx does not have good and marketable title to
its interests in the Assets as set out in Schedule "A" or a valid option to earn
interest in the Properties as set out in Schedule "A", and Xxxxxxxxxx has done
no act or thing and is not aware of any act or thing having been done whereby
any of its interests in and to the Assets may be cancelled, nor has it
encumbered or alienated the Assets or any interest therein, and the Assets are
as of the Effective Date, and will be at the Closing Date, free and clear of all
liens, encumbrances, adverse claims, demands and royalties created by, through
or under it other than existing security for which registrable discharges and a
release will be provided at Closing and the Permitted Encumbrances and except as
set forth in Clause 4.01;
12.14 Subject to the rents, covenants, conditions and stipulations in the Claims
and any option agreements pertaining to the Assets and on the lessee's or
holder's part thereunder to be paid, performed and observed, MASA and NAD may
(upon the Asset Closing) enter into and upon, hold and enjoy the Assets for the
residue of their respective terms, and all renewals or extensions thereof for
MASA and NAD's own use and benefit without any lawful interruption of or by
Degerstrom or any other person whomsoever claiming or to claim by, through or
under Xxxxxxxxxx and Xxxxxxxxxx binds itself to warrant and defend all and
singular the Assets against all persons whosoever claiming or to claim the same
or any part hereof or any interest therein by, through or under Xxxxxxxxxx;
12.15 There are no outstanding authorizations for expenditure pursuant to which
expenditures will or may be made in respect of the Assets, nor are there any
other financial commitments which are outstanding or due or which hereafter may
become due in respect of Assets or operations in respect thereof, excepting
authorizations for expenditure or commitments in respect of the Assets of which
Xxxxxxxxxx has provided written notice to MASA and NAD, as the case may be,
prior to the date hereof;
12.16 Xxxxxxxxxx is not a party to any action, suit or other legal,
administrative or arbitration proceeding or government investigation, actual or
threatened, which might reasonably be expected to result in a material
impairment or loss of Xxxxxxxxxx'x interest in the Assets or any part thereof,
and there is no particular circumstance, matter or thing known to Xxxxxxxxxx
which could reasonably be anticipated to give rise to any such action, suit or
other legal, administrative or arbitration proceeding or government
investigation;
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12.17 To the best of Xxxxxxxxxx'x knowledge, the Properties are in compliance,
and as of the closing will be in compliance, in all material respects with all
applicable laws, regulations, orders, judgments and decrees, including without
limitation, all applicable government and other environmental legislation or
regulations, and are in material compliance with and have obtained all necessary
environmental orders, permits, certificates, approvals, directions,
instructions, consents and other requirements applicable to the Properties by or
from any governmental authority. None of the Properties are subject to any
enforcement proceedings under any governmental law, regulation or ordinance.
12.18 To the best of Xxxxxxxxxx'x knowledge, the Properties have been operated
in substantial compliance with applicable environmental, health or safety laws,
regulations, orders, or approvals in all material respects. All material
environmental contaminants used on or in connection with the Properties have
been used, stored, treated, shipped and disposed of, in substantial compliance
with applicable environmental, health or safety laws, regulations, orders, or
approvals in all material respects. To the best of Xxxxxxxxxx'x knowledge, no
hazardous or toxic materials, substances, pollutants, contaminants or wastes
have been released in connection with the Properties into the environment in
breach of laws or regulations, nor has any relevant person deposited,
discharged, placed or disposed of any such contaminants in breach of laws or
regulations. To the best of Xxxxxxxxxx'x knowledge, each relevant person has
maintained all environmental and operating documents and records substantially
in the manner and for the time periods required by applicable governmental laws,
regulations or orders.
12.19 No statement, representation or warranty of Xxxxxxxxxx under this
Agreement, and none of the written data and documentation, including accounting
statements and records, furnished or caused to be furnished by Xxxxxxxxxx to
MASA and NAD, contains or will contain any untrue statement of a material fact.
12.20 None of the documents which have been supplied to MASA and NAD by or on
behalf of Xxxxxxxxxx in connection with the transactions contemplated hereunder,
contains any untrue statement of a material fact (as defined in the Securities
Act (Alberta)) or omits any statement of a material fact necessary in order to
make the statements contained therein not misleading; provided, however, that
ore reserve calculations, projections and forecasts in relation to future events
concerning the Assets and the Properties, although based on reasonable
assumptions, are subject to different interpretations and actual results may
vary from such calculations, projections and forecasts. There is no fact known
to Xxxxxxxxxx which materially and adversely affects, or which may materially
and adversely affect, the business, prospects or financial condition of the
Assets and the Properties that has not been disclosed to MASA and NAD.
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ARTICLE 13.
MASA'S REPRESENTATIONS AND WARRANTIES
13.01 To induce Xxxxxxxxxx to enter into this Agreement and complete the
transactions contemplated herein, MASA hereby represents and warrants to and in
favour to Xxxxxxxxxx now as provided in this Article 13 which representations
and warranties shall also have been true and will be true and correct as at the
date hereof and as of the Closing Date.
13.02 MASA is and at the Closing Date shall continue to be a corporation duly
incorporated under its jurisdiction of incorporation, validly existing, and is
in good standing under the laws of Argentina and qualified under the mining laws
of the Republic of Argentina.
13.03 MASA has all requisite power and authority to enter into this Agreement
and to purchase and pay for that portion of the Assets set forth in Schedule "A"
Part I on the terms described herein and to perform the other obligations of
MASA under this Agreement.
13.04 All necessary corporate action will have been taken by MASA at the Closing
Date to authorize the execution and delivery by MASA of this Agreement and all
other agreements and instruments contemplated by this Agreement.
13.05 The execution and delivery of this Agreement and each and every agreement
or document to be executed and delivered hereunder and the consummation of the
transactions contemplated herein will not violate, nor be in conflict with, any
provision of any material agreement or instrument to which MASA is a party or is
bound, or any judgment, decree, order, statute, rule or regulation applicable to
MASA or the constating documents or by-laws of MASA.
13.06 This Agreement has been duly executed and delivered by MASA and all
documents required hereunder to be executed and delivered by MASA shall have
been duly executed and delivered and this Agreement does, and such documents
will, constitute legal, valid and binding obligations of MASA enforceable in
accordance with their respective terms.
13.07 MASA has not incurred any liability, contingent or otherwise, for brokers'
or finders' fees in respect of this transaction for which Xxxxxxxxxx shall have
any obligation or liability.
ARTICLE 14.
NAD'S REPRESENTATIONS AND WARRANTIES
14.01 To induce Xxxxxxxxxx to enter into this Agreement and complete the
transactions contemplated herein, NAD hereby represents and warrants to and in
favour to Xxxxxxxxxx now as provided in this Article 14 which representations
and warranties shall also have been true and will be true and correct as at the
date hereof and as of the Closing Date.
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14.02 NAD is and at the Closing Date shall continue to be a corporation duly
incorporated under its jurisdiction of incorporation, validly existing, and is
in good standing under the laws of Argentina and qualified under the mining laws
of the Republic of Argentina.
14.03 NAD has all requisite power and authority to enter into this Agreement and
to purchase and pay for that portion of the Assets set forth in Schedule "A"
Part II on the terms described herein and to perform the other obligations of
NAD under this Agreement.
14.04 All necessary corporate action will have been taken by NAD at the Closing
Date to authorize the execution and delivery by NAD of this Agreement and all
other agreements and instruments contemplated by this Agreement.
14.05 The execution and delivery of this Agreement and each and every agreement
or document to be executed and delivered hereunder and the consummation of the
transactions contemplated herein will not violate, nor be in conflict with, any
provision of any material agreement or instrument to which NAD is a party or is
bound, or any judgment, decree, order, statute, rule or regulation applicable to
NAD or the constating documents or by-laws of NAD.
14.06 This Agreement has been duly executed and delivered by NAD and all
documents required hereunder to be executed and delivered by NAD shall have been
duly executed and delivered and this Agreement does, and such documents will,
constitute legal, valid and binding obligations of NAD enforceable in accordance
with their respective terms.
14.07 NAD has not incurred any liability, contingent or otherwise, for brokers'
or finders' fees in respect of this transaction for which Xxxxxxxxxx shall have
any obligation or liability.
ARTICLE 15.
DEGERSTROM, VARGAS, AND XXXXXXXX'X REPRESENTATIONS
AND WARRANTIES
15.01 To induce Minera to enter into this Agreement and complete the
transactions contemplated herein, Xxxxxxxxxx, Xxxxxx and Xxxxxxxx, each on their
own behalf hereby represent and warrant to and in favor of Minera now as
provided in Article 15, which representations and warranties will be true and
correct as of the date hereof and as of the Closing Date.
15.02 The NAD Shares are free of all mortgages, charges, liens and other
encumbrances and no other person, firm or corporation has any agreement, option
or right capable of becoming an agreement for the purchase from Xxxxxxxxxx,
Xxxxxx and Xxxxxxxx of any of the NAD Shares except as provided herein, and
Xxxxxxxxxx, Xxxxxx and Xxxxxxxx are entitled to sell the NAD Shares as provided
in this Agreement.
-29-
15.03 Xxxxxxxxxx has all requisite corporate power and authority to enter into
this Agreement and to perform each of Xxxxxxxxxx'x obligations under this
Agreement.
15.04 All necessary corporate action has been taken by Xxxxxxxxxx to authorize
the execution and delivery by Xxxxxxxxxx of this Agreement and all other
agreements and instruments contemplated by this Agreement;
15.05 The execution and delivery of this Agreement and each and every agreement
or document to be executed and delivered hereunder and the consummation of
transactions contemplated herein will not violate nor be in conflict with any
provision of any material agreement or instrument to which Xxxxxxxxxx, Xxxxxx or
Xxxxxxxx is a party or is bound, or any judgment, decree, order, statute, rule
or regulation applicable to Xxxxxxxxxx, Xxxxxx and Xxxxxxxx or of the articles
of incorporation or by-laws of Xxxxxxxxxx;
15.06 This Agreement has been duly executed and delivered by Xxxxxxxxxx, Xxxxxx
and Xxxxxxxx and all documents required hereunder to be executed and delivered
by Xxxxxxxxxx, Xxxxxx and Xxxxxxxx shall have been duly executed and delivered,
and this Agreement does and such documents will, constitute legal, valid and
binding obligations of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx enforceable in accordance
with their respective terms;
15.07 NAD has not received notice of default under any agreement affecting the
NAD Assets;
15.08 Xxxxxxxxxx, Xxxxxx and Xxxxxxxx have not incurred any obligation or
liability contingent or otherwise, for brokers' or finders' fees in respect of
this transaction for which Minera shall have any obligation or liability except
as disclosed;
15.09 In respect of the NAD Properties:
(a) all NAD Claims comprising part of the NAD Properties are in all
respects valid and subsisting;
(b) applications have been filed for certain NAD Claims comprising part of
the NAD Properties.
(c) all requirements and procedures to maintain the validity of each of
the NAD Claims comprising part of the NAD Properties have in all
respects been properly and timely observed and followed, and all
conditions and obligations necessary to keep them in full force and
effect have in all respects been fully satisfied and performed;
(d) NAD has not received any notice of default or delinquency under any of
the NAD Claims comprising part of the NAD Properties which has not
been cured or which is outstanding and uncured as of the date hereof;
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(e) NAD has complied in all respects with all conditions required of it
necessary to keep the NAD Claims comprising part of the NAD Properties
in full force and effect;
(f) all rentals, production royalties, advance royalties and other
payments due under the NAD Claims comprising part of the NAD
Properties have in all respects been properly paid to the persons
entitled to receive such payment;
(g) all of the NAD Properties have been operated and maintained in
conformance with all applicable laws, rules, regulations and orders of
all governmental authorities having jurisdiction and are in all
respects subject to no penalties on account of past operation and
maintenance;
(h) none of the NAD Properties or the occupancy or operation of any of
such NAD Properties, is in violation of any foreign or municipal
building or zoning law, ordinance, code or regulation applicable to
such NAD Properties or their owner;
(i) no notice from any governmental body or other authority has been
served upon NAD or, to the best of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x
knowledge, upon any other person or upon any real property used in the
operations of the NAD Properties, claiming any violation of any such
building or zoning law, ordinance, code or regulation or requiring or
calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with said NAD
Properties; and,
(j) no condemnation or eminent domain proceedings have been initiated
which relate to any of the NAD Properties and no such proceedings are
threatened or have been filed by any government authority have
jurisdiction with respect thereto;
15.10 (a) NAD has been duly organized and is validly existing under the laws of
the Republic of Argentina. The authorized capital of NAD is as
follows:
12 common shares (par value)
(b) The issued capital of NAD is 12 common shares, all of which are issued
as fully paid and non-assessable which are registered as follows:
9 common shares (par value) - Xxxxxxxxxx 0 xxxxxx xxxxxx (xxx xxxxx) -
Xxxxxx 0 common share (par value) - Xxxxxxxx
(c) There are not any outstanding subscriptions, options, rights, warrants
or other agreements or commitments obligating NAD to sell or issue any
additional shares of any class or any securities convertible into any
shares of any class.
-31-
(d) Particulars of the charter documents and amendments thereto of NAD are
described in Schedule "G" hereto. NAD has not authorized delivery or
delivered to the appropriate government agency in the Republic of
Argentina any application for amendment to the constating documents of
NAD.
(e) NAD has no subsidiary companies and owns no shares or securities of
any other entity.
(f) The Business of NAD has been carried on in the ordinary course since
June 15, 1994.
(g) NAD has the corporate power to own its property, which include the NAD
Assets and to carry on the Business presently carried on by it.
(h) NAD is duly qualified to do business and is in good standing in each
jurisdiction in which the nature of the Business conducted by it or
the property owned or leased by it makes such qualification necessary.
(i) No payments have been made or authorized since incorporation by NAD to
its officers, directors, or shareholders.
15.11 To Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x best information and belief, after
due inquiry:
(a) NAD has no outstanding contracts except as are disclosed in Schedule
"AA" hereto, and except as otherwise set out herein or in other
Schedules hereto; and
(b) NAD is in good standing under all contracts to which it is a party and
is entitled to all benefits thereunder.
15.12 NAD is not a party to any agreement of guarantee, indemnification or
assumption of the obligations of a third party, or other like commitment,
including endorsements or other contingent liabilities.
15.13 NAD has paid all taxes exigible from it or for the collection of which it
is responsible under the laws of the Republic of Argentina.
15.14 To the best of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x knowledge, information
and belief, there is no circumstance, matter or thing which reasonably could be
expected to lead any of them to believe that NAD does not have good and
marketable title to its interests in the NAD Assets or a valid option to earn
interest in the NAD Properties, and NAD has done no act or thing and is not
aware of any act or thing having been done whereby any of NAD's interests in and
to the NAD Assets may be cancelled, nor has NAD encumbered or alienated the NAD
Assets or any interest therein, and the NAD Assets are now and will be at the
Closing Date, free
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and clear of all liens, encumbrances, adverse claims, demands and royalties
created by, through or under NAD other than existing security for which
registrable discharges and a release will be provided at Closing and the
Permitted Encumbrances and except as set forth in Clauses 4.01;
15.15 There are no outstanding authorizations for expenditure pursuant to which
expenditures will or may be made in respect of the NAD Assets, nor are there any
other financial commitments which are outstanding or due or which hereafter may
become due in respect of NAD Assets or operations in respect thereof, excepting
authorizations for expenditure or commitments in respect of the NAD Assets of
which Xxxxxxxxxx, Xxxxxx and Xxxxxxxx have provided written notice to Minera
prior to the date hereof;
15.16 NAD is not a party to any action, suit or other legal, administrative or
arbitration proceeding or government investigation, actual or threatened, which
might reasonably be expected to result in a material impairment or loss of NAD's
interest in the NAD Assets or any part thereof, and there is no particular
circumstance, matter or thing known to Xxxxxxxxxx, Xxxxxx and Xxxxxxxx which
could reasonably be anticipated to give rise to any such action, suit or other
legal, administrative or arbitration proceeding or government investigation;
15.17 To the best of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x knowledge, the NAD
Properties are in compliance, and as of the closing will be in compliance, in
all material respects with all applicable laws, regulations, orders, judgments
and decrees, including without limitation, all applicable government and other
environmental legislation or regulations, and are in material compliance with
and have obtained all necessary environmental orders, permits, certificates,
approvals, directions, instructions, consents and other requirements applicable
to the NAD Properties by or from any governmental authority. None of the NAD
Properties are subject to any enforcement proceedings under any governmental
law, regulation or ordinance.
15.18 To the best of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x knowledge, the NAD
Properties have been operated in substantial compliance with applicable
environmental, health or safety laws, regulations, orders, or approvals in all
material respects. All material environmental contaminants used on or in
connection with the NAD Properties have been used, stored, treated, shipped and
disposed of, in substantial compliance with applicable environmental, health or
safety laws, regulations, orders, or approvals in all material respects. To the
best of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x knowledge, no hazardous or toxic
materials, substances, pollutants, contaminants or wastes have been released in
connection with the NAD Properties into the environment in breach of laws or
regulations, nor has any relevant person deposited, discharged, placed or
disposed of any such contaminants in breach of laws or regulations. To the best
of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx'x knowledge, each relevant person has
maintained all environmental and operating documents and records substantially
in the manner and for the time periods required by applicable governmental laws,
regulations or orders.
15.19 No statement, representation and warranty of Xxxxxxxxxx, Xxxxxx or
Xxxxxxxx and none of the documents which have been supplied to Minera by or on
behalf of Xxxxxxxxxx, Xxxxxx or Xxxxxxxx in connection with the transactions
contemplated hereunder, contains any
-33-
untrue statement of a material fact (as defined in the Securities Act (Alberta))
or omits any statement of a material fact necessary in order to make the
statements contained therein not misleading; provided, however, that ore reserve
calculations, projections and forecasts in relation to future events concerning
the NAD Assets and the NAD Properties, although based on reasonable assumptions,
are subject to different interpretations and actual results may vary from such
calculations, projections and forecasts. There is no fact known to Xxxxxxxxxx,
Xxxxxx or Xxxxxxxx which materially and adversely affects, or which may
materially and adversely affect, the business, prospects or financial condition
of the NAD Assets and the NAD Properties that have not been disclosed to Minera.
ARTICLE 16.
XXXXXXXXXX, XXXXX AND XXXXXX' REPRESENTATIONS
AND WARRANTIES
16.01 To induce Minera to enter into this Agreement and complete the
transactions contemplated herein, Xxxxxxxxxx, Xxxxx and Xxxxxx, each on their
own behalf hereby represent and warrant to and in favor of Minera now as
provided in Article 16, which representations and warranties will be true and
correct as at the date hereof and as of the Closing Date.
16.02 The MASA Shares are free of all mortgages, charges, liens and other
encumbrances, and no other person, firm or corporation has any agreement, option
or right capable of becoming an agreement for the purchase from Xxxxxxxxxx,
Xxxxx and Xxxxxx of any of the MASA Shares except as provided herein, and
Xxxxxxxxxx, Xxxxx and Xxxxxx are entitled to sell the MASA Shares as provided in
this Agreement.
16.03 Xxxxxxxxxx has all requisite corporate power and authority to enter into
this Agreement and to perform each of Xxxxxxxxxx'x obligations under this
Agreement.
16.04 All necessary corporate action has been taken by Xxxxxxxxxx to authorize
the execution and delivery by Xxxxxxxxxx of this Agreement and all other
agreements and instruments contemplated by this Agreement;
16.05 The execution and delivery of this Agreement and each and every agreement
or document to be executed and delivered hereunder and the consummation of
transactions contemplated herein will not violate nor be in conflict with any
provision of any material agreement or instrument to which Xxxxxxxxxx, Xxxxx or
Xxxxxx are a party or is bound, or any judgment, decree, order, statute, rule or
regulation applicable to Xxxxxxxxxx, Xxxxx and Xxxxxx or of the articles of
incorporation or by-laws of Xxxxxxxxxx;
16.06 This Agreement has been duly executed and delivered by Xxxxxxxxxx, Xxxxx
and Xxxxxx and all documents required hereunder to be executed and delivered by
Xxxxxxxxxx, Xxxxx and Xxxxxx shall have been duly executed and delivered, and
this Agreement does and
-34-
such documents will, constitute legal, valid and binding obligations of
Xxxxxxxxxx, Xxxxx and Xxxxxx enforceable in accordance with their respective
terms;
16.07 MASA has not received notice of default under any agreement affecting the
MASA Assets;
16.08 Xxxxxxxxxx, Xxxxx and Xxxxxx have not incurred any obligation or liability
contingent or otherwise, for brokers' or finders' fees in respect of this
transaction for which Minera shall have any obligation or liability except as
disclosed;
16.09 In respect of the MASA Properties:
(a) all MASA Claims comprising part of the MASA Properties are in all
respects valid and subsisting;
(b) applications have been filed for certain MASA Claims comprising part
of the MASA Properties.
(c) all requirements and procedures to maintain the validity of each of
the MASA Claims comprising part of the MASA Properties have in all
respects been properly and timely observed and followed, and all
conditions and obligations necessary to keep them in full force and
effect have in all respects been fully satisfied and performed;
(d) MASA has not received any notice of default or delinquency under any
of the MASA Claims comprising part of the MASA Properties which has
not been cured or which is outstanding and uncured as of the date
hereof;
(e) MASA has complied in all respects with all conditions required of it
necessary to keep the MASA Claims comprising part of the MASA
Properties in full force and effect;
(f) all rentals, production royalties, advance royalties and other
payments due under the MASA Claims comprising part of the MASA
Properties have in all respects been properly paid to the persons
entitled to receive such payment;
(g) all of the MASA Properties have been operated and maintained in
conformance with all applicable laws, rules, regulations and orders of
all governmental authorities having jurisdiction and are in all
respects subject to no penalties on account of past operation and
maintenance;
(h) none of the MASA Properties or the occupancy or operation of any of
such MASA Properties, is in violation of any foreign or municipal
building or zoning
-35-
law, ordinance, code or regulation applicable to such MASA Properties
or their owner;
(i) no notice from any governmental body or other authority has been
served upon MASA or, to the best of Xxxxxxxxxx, Xxxxx and Xxxxxx'x
knowledge, upon any other person or upon any real property used in the
operations of the MASA Properties, claiming any violation of any such
building or zoning law, ordinance, code or regulation or requiring or
calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with said MASA
Properties; and,
(j) no condemnation or eminent domain proceedings have been initiated
which relate to any of the MASA Properties and no such proceedings are
threatened or have been filed by any government authority have
jurisdiction with respect thereto;
16.10 (a) MASA has been duly organized and is validly existing under the laws
of the Republic of Argentina. The authorized capital of MASA is as
follows:
20 common shares (par value)
(b) The issued capital of MASA is 20 common shares, all of which are
issued as fully paid and non-assessable which are registered as
follows:
15 common shares (par value) - Xxxxxxxxxx
4 common shares (par value) - Gavin
1 common share (par value) - Xxxxxx
(c) There are not any outstanding subscriptions, options, rights, warrants
or other agreements or commitments obligating MASA to sell or issue
any additional shares of any class or any securities convertible into
any shares of any class.
(d) Particulars of the charter documents and amendments thereto, of MASA
are described in Schedule "H" hereto. MASA has not authorized delivery
or delivered to the appropriate government agency in the Republic of
Argentina any application for amendment to the constating documents of
MASA.
(e) MASA has no subsidiary companies and owns no shares or securities of
any other entity.
(f) The Business of MASA has been carried on in the ordinary course since
September 13, 1994.
(g) MASA has the corporate power to own its property, which include the
MASA Assets and to carry on the Business presently carried on by it.
-36-
(h) MASA is duly qualified to do business and is in good standing in each
jurisdiction in which the nature of the Business conducted by it or
the property owned or leased by it makes such qualification necessary.
(i) No payments have been made or authorized since incorporation by MASA
to its officers, directors, or shareholders.
16.11 To Xxxxxxxxxx, Xxxxx and Xxxxxx' best information and belief, after due
inquiry:
(a) MASA has no outstanding contracts except as are disclosed in Schedule
"AAA" hereto, and except as otherwise set out herein or in other
Schedules hereto; and,
(b) MASA is in good standing under all contracts to which it is a party
and is entitled to all benefits thereunder.
16.12 MASA is not a party to any agreement of guarantee, indemnification or
assumption of the obligations of a third party, or other like commitment,
including endorsements or other contingent liabilities.
16.13 MASA has paid all taxes exigible from it or for the collection of which it
is responsible under the laws of the Republic of Argentina.
16.14 To the best of Xxxxxxxxxx, Xxxxx and Xxxxxx' knowledge, information and
belief, there is no circumstance, matter or thing which reasonably could be
expected to lead any of them to believe that MASA does not have good and
marketable title to its interests in the MASA Assets or a valid option to earn
interest in the MASA Properties and MASA has done no act or thing and is not
aware of any act or thing having been done whereby any of MASA's interests in
and to the MASA Assets may be cancelled nor has MASA encumbered or alienated the
MASA Assets or any interest therein, and the MASA Assets are now and will be at
the Closing Date free and clear of all liens, encumbrances, adverse claims,
demands and royalties created by, through or under MASA other than existing
security for which registrable discharges and a release will be provided at
Closing and the Permitted Encumbrances and except as set forth in Clauses 4.01;
16.15 There are no outstanding authorizations for expenditure pursuant to which
expenditures will or may be made in respect of the MASA Assets, nor are there
any other financial commitments which are outstanding or due or which hereafter
may become due in respect of MASA Assets or operations in respect thereof,
excepting authorizations for expenditure or commitments in respect of the MASA
Assets of which Xxxxxxxxxx, Xxxxx and Xxxxxx have provided written notice to
Minera prior to the date hereof;
16.16 MASA is not a party to any action, suit or other legal, administrative or
arbitration proceeding or government investigation, actual or threatened, which
might reasonably be expected to result in a material impairment or loss of
MASA's interest in the MASA Assets
-37-
or any part thereof, and there is no particular circumstance, matter or thing
known to Xxxxxxxxxx, Xxxxx and Xxxxxx which could reasonably be anticipated to
give rise to any such action, suit or other legal, administrative or arbitration
proceeding or government investigation;
16.17 To the best of Xxxxxxxxxx, Xxxxx and Xxxxxx' knowledge, the MASA
Properties are in compliance, and as of the closing will be in compliance, in
all material respects with all applicable laws, regulations, orders, judgments
and decrees, including without limitation, all applicable government and other
environmental legislation or regulations, and are in material compliance with
and have obtained all necessary environmental orders, permits, certificates,
approvals, directions, instructions, consents and other requirements applicable
to the MASA Properties by or from any governmental authority. None of the MASA
Properties are subject to any enforcement proceedings under any governmental
law, regulation or ordinance.
16.18 To the best of Xxxxxxxxxx, Xxxxx and Xxxxxx' knowledge, the MASA
Properties have been operated in substantial compliance with applicable
environmental, health or safety laws, regulations, orders, or approvals in all
material respects. All material environmental contaminants used on or in
connection with the MASA Properties have been used, stored, treated, shipped and
disposed of, in substantial compliance with applicable environmental, health or
safety laws, regulations, orders, or approvals in all material respects. To the
best of Xxxxxxxxxx, Xxxxx and Xxxxxx' knowledge, no hazardous or toxic
materials, substances, pollutants, contaminants or wastes have been released in
connection with the MASA Properties into the environment in breach of laws or
regulations, nor has any relevant person deposited, discharged, placed or
disposed of any such contaminants in breach of laws or regulations. To the best
of Xxxxxxxxxx, Xxxxx and Xxxxxx' knowledge, each relevant person has maintained
all environmental and operating documents and records substantially in the
manner and for the time periods required by applicable governmental laws,
regulations or orders.
16.19 No statement, representation and warranty of Xxxxxxxxxx, Xxxxx or Xxxxxx
and none of the documents which have been supplied to Minera by or on behalf of
Xxxxxxxxxx, Xxxxx or Xxxxxx in connection with the transactions contemplated
hereunder, contains any untrue statement of a material fact (as defined in the
Securities Act (Alberta)) or omits any statement of a material fact necessary in
order to make the statements contained therein not misleading; provided,
however, that ore reserve calculations, projections and forecasts in relation to
future events concerning the MASA Assets and the MASA Properties, although based
on reasonable assumptions, are subject to different interpretations and actual
results may vary from such calculations, projections and forecasts. There is no
fact known to Xxxxxxxxxx, Xxxxx or Xxxxxx which materially and adversely
affects, or which may materially and adversely affect, the business, prospects
or financial condition of the MASA Assets and the MASA Properties that have not
been disclosed to Minera.
-38-
ARTICLE 17.
MINERA'S REPRESENTATIONS
AND WARRANTIES
17.01 To induce the Vendors to enter into this Agreement and complete the
transactions contemplated herein, Minera hereby represents and warrants to and
in favour of the Vendors now as provided in Article 17 which representations and
warranties shall also have been true and will be true and correct as at the date
hereof and the Closing Date as the case may be.
17.02 It has been duly incorporated and validly exist as a corporation in good
standing under the laws of its jurisdiction of incorporation.
17.03 It has duly obtained all corporate authorizations for the execution of
this Agreement and for the performance of this Agreement by it, and the
consummation of the transaction herein contemplated by it will not conflict with
or result in any breach of any covenants or agreements contained in, or
constitute a default under, or result in the creation of any encumbrance under
the provisions of the Articles or the constating documents of it or any
shareholders' or directors' resolution, indenture, agreement or other instrument
whatsoever to which it is a party or by which it is bound.
17.04 The Minera Shares, as defined hereafter, to be issued to Xxxxxxxxxx
pursuant to this Agreement shall be duly issued as fully paid and
non-assessable.
ARTICLE 18.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
18.01 Notwithstanding anything to the contrary herein expressed or implied, it
is expressly agreed and understood that the covenants, representations and
warranties set forth in Article 12 are true on the date hereof, at the Effective
Date, and at the Closing Date, and notwithstanding the Asset Closing or
deliveries of covenants, representations and warranties in any other agreements
at the Asset Closing, or prior or subsequent thereto, or investigations by the
parties hereto or their counsel, the covenants, representations and warranties
along with all rights of action in connection therewith, set forth in Article
12, shall survive the Asset Closing for the benefit of the parties hereto for a
period of one (1) year from the Closing Date and shall be deemed to apply to all
assignments, conveyances, transfers and documents conveying any of the Assets
from Xxxxxxxxxx to MASA and NAD.
18.02 Notwithstanding anything to the contrary herein expressed or implied, it
is expressly agreed and understood that the covenants, representations and
warranties set forth in Articles 13 and 14 are true on the date hereof, and the
Closing Date, and notwithstanding the Asset Closing, or deliveries of covenants,
representations and warranties in any other agreements at the Asset Closing, or
prior or subsequent thereto, or investigations by the parties hereto or their
counsel, the covenants, representations and warranties along with all rights of
action in
-39-
connection therewith, set forth in Articles 13 and 14, shall survive the Asset
Closing for the benefit of the parties hereto for a period of one (1) year from
the Closing Date and shall be deemed to apply to all assignments, conveyances,
transfers and documents conveying any of the Assets from Xxxxxxxxxx to MASA and
NAD.
18.03 Notwithstanding anything to the contrary herein expressed or implied, it
is expressly agreed and understood that the covenants, representations and
warranties set forth in Articles 15, 16 and 17 are true on the date hereof, and
the Closing Date, and notwithstanding the Closing, or deliveries of covenants,
representations and warranties in any other agreements at the Closing, or prior
or subsequent thereto, or investigations by the parties hereto or their counsel,
the covenants, representations and warranties along with all rights of action in
connection therewith, set forth in Articles 15, 16 and 17, shall survive the
Closing for the benefit of the parties hereto for a period of one (1) year from
the Closing Date and shall be deemed to apply to the transfer of the NAD Shares
from Xxxxxxxxxx and Xxxxxx and the granting of the NAD option by Xxxxxxxx to
Minera and the transfer of the MASA Shares from Xxxxxxxxxx and Xxxxx and the
granting of the MASA Option by Xxxxxx to Minera.
ARTICLE 19.
XXXXXXXXXX'X CLOSING CONDITIONS
19.01 The obligation of Xxxxxxxxxx to complete the sale of that portion of the
Assets set forth in Schedule "A" Part I to MASA and the sale of that portion of
the Assets set forth in Schedule "A" Part II to NAD pursuant to this Agreement
is subject to the satisfaction, at or prior to the Closing Date, of the
following conditions precedent:
(a) all representations and warranties of MASA contained in this Agreement
shall be true and have been complied with in all material respects at
and as of the date hereof and the Closing Date, MASA shall have
tendered to Xxxxxxxxxx a certificate from a senior officer of MASA to
such effect and MASA shall have performed and satisfied all covenants
required by this Agreement to be performed and satisfied by MASA at or
prior to the Closing Date, or will be caused to occur after the
Closing Date;
(b) all representations and warranties of NAD contained in this Agreement
shall be true and have been complied with in all material respects at
and as of the date hereof and the Closing Date, NAD shall have
tendered to Xxxxxxxxxx a certificate from a senior officer of NAD to
such effect and NAD shall have performed and satisfied all covenants
required by this Agreement to be performed and satisfied by NAD at or
prior to the Closing Date, or will be caused to occur after the
Closing Date;
(c) MASA shall have tendered to Xxxxxxxxxx the purchase price payable at
the Closing Date;
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(d) NAD shall have tendered to Xxxxxxxxxx the purchase price payable at
the Closing Date;
(e) at the Closing Date, no action or proceeding shall have been
instituted or threatened by any one before any court or governmental
agency to obtain damages in respect of this Agreement and no
litigation or proceeding shall be pending or threatened to restrain,
set aside or invalidate the transactions contemplated by this
Agreement; and
(f) the concurrent execution and delivery of the Operating Agreement.
19.02 The forgoing conditions contained in clauses 19.01 shall be for the
benefit of Xxxxxxxxxx and may, without prejudice to any rights of Degerstrom
hereunder, be waived by Xxxxxxxxxx in writing, in whole or in part, at any time.
In case any of the said conditions shall not be complied with through no act,
default or omission of Xxxxxxxxxx or waived by Xxxxxxxxxx, at or before the
Closing Date, Xxxxxxxxxx may rescind and terminate this Agreement by written
notice to MASA or NAD, as the case may be.
ARTICLE 20.
XXXXXXXXXX, XXXXXX AND XXXXXXXX'X CLOSING CONDITIONS
20.01 The obligation of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx to complete the sale of
the NAD Shares to Minera pursuant to this Agreement is subject to the
satisfaction at or prior to the Closing Date of the following conditions
precedent:
(a) all representations and warranties of Minera contained in this
Agreement shall be true and have been complied with in all material
respects at and as of the date hereof and the Closing Date, Minera
each shall have tendered to Xxxxxxxxxx, Xxxxxx and Xxxxxxxx a
certificate from a senior officer of Minera, respectively, to such
effect, and Minera shall have performed and satisfied all covenants
required by this Agreement to be performed and satisfied by Minera at
or prior to the Closing Date, or will be caused to occur after the
Closing Date;
(b) Minera shall have tendered to Xxxxxxxxxx, Xxxxxx and Xxxxxxxx that
portion of the purchase price payable at the Closing Date;
(c) at the Closing Date, no action or proceeding shall have been
instituted or threatened by any one before any court or governmental
agency to obtain damages in respect of this Agreement and no
litigation or proceeding shall be pending or threatened to restrain,
set aside or invalidate the transactions contemplated by this
Agreement; and,
(d) the concurrent execution and delivery of the Operating Agreement.
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20.02 The forgoing conditions contained in clauses 20.01 shall be for the
benefit of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx and may, without prejudice to any
rights of Xxxxxxxxxx, Xxxxxx and Xxxxxxxx hereunder, be waived by Xxxxxxxxxx,
Xxxxxx or Xxxxxxxx in writing, in whole or in part, at any time. In case any of
the said conditions shall not be complied with through no act, default or
omission of Xxxxxxxxxx, Xxxxxx or Xxxxxxxx or waived by Xxxxxxxxxx, Xxxxxx or
Xxxxxxxx at or before the Closing Date, Xxxxxxxxxx, Xxxxxx or Xxxxxxxx may
rescind and terminate this Agreement by written notice to Minera.
ARTICLE 21.
XXXXXXXXXX, XXXXX AND XXXXXX' CLOSING CONDITIONS
21.01 The obligation of Xxxxxxxxxx, Xxxxx and Xxxxxx to complete the transfer of
the MASA Shares to Minera pursuant to this Agreement is subject to the
satisfaction at or prior to the Closing Date of the following conditions
precedent:
(a) all representations and warranties of the Minera contained in this
Agreement shall be true and have been complied with in all material
respects at and as of the date hereof and the Closing Date, Minera
shall have tendered to Xxxxxxxxxx, Xxxxx and Xxxxxx a certificate from
a senior officer of Minera to such effect, and Minera shall have
performed and satisfied all covenants required by this Agreement to be
performed and satisfied by Minera at or prior to, Closing Date, or
will be caused to occur after the Closing Date;
(b) Minera shall have tendered to Xxxxxxxxxx, Xxxxx and Xxxxxx that
portion of the purchase price payable at the Closing Date;
(c) at the Closing Date, no action or proceeding shall have been
instituted or threatened by any one before any court or governmental
agency to obtain damages in respect of this Agreement and no
litigation or proceeding shall be pending or threatened to restrain,
set aside or invalidate the transactions contemplated by this
Agreement; and,
(d) the concurrent execution and delivery of the Operating Agreement.
21.02 The forgoing conditions contained in clauses 21.01 shall be for the
benefit of Xxxxxxxxxx, Xxxxx and Xxxxxx and may, without prejudice to any rights
of Xxxxxxxxxx, Xxxxx and Xxxxxx hereunder, be waived by Xxxxxxxxxx, Xxxxx or
Xxxxxx in writing, in whole or in part, at any time. In case any of the said
conditions shall not be complied with through no act, default or omission of
Xxxxxxxxxx, Xxxxx or Xxxxxx or waived by Xxxxxxxxxx, Xxxxx or Xxxxxx at or
before the Closing Date, Xxxxxxxxxx, Xxxxx or Xxxxxx may rescind and terminate
this Agreement by written notice to Minera.
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ARTICLE 22.
MASA'S CLOSING CONDITIONS
22.01 The obligation of MASA to complete the purchase of that portion of the
Assets as set forth in Schedule "A" Part I from Xxxxxxxxxx pursuant to this
Agreement is subject to the satisfaction at or prior to the Closing Date of the
following conditions precedent:
(a) all covenants, representations and warranties of Xxxxxxxxxx contained
in this Agreement shall be true and have been complied with in all
material respects at and as of the Effective Date, the date hereof and
the Closing Date, Xxxxxxxxxx shall have tendered to MASA a certificate
of a senior officer of Xxxxxxxxxx dated as of the Closing Date to such
effect, and Xxxxxxxxxx shall have performed and satisfied all
covenants required by this Agreement to be performed and satisfied by
Xxxxxxxxxx at or prior to the Closing Date;
(b) except as shall have been approved in writing by MASA, there shall not
have occurred between the date hereof and the Closing Date any damage
to or alteration in or to that portion of the Assets as set forth in
Schedule "A" Part I (including, without limitation, an amendment to
any agreement or instrument forming a part thereof) which, in MASA's
reasonable opinion, would materially adversely affect the value of the
that the portion of Assets as set forth in Schedule "A" Part I and
Xxxxxxxxxx shall, on the Closing Date, has delivered to MASA a
certificate of a senior officer of Xxxxxxxxxx, dated as of the Closing
Date, stating that, except as has been approved in writing by MASA, no
damage or alteration has occurred during such period;
(c) no action or proceeding shall have been instituted or threatened by
any one before any court or governmental agency to obtain damages in
respect of this Agreement or to restrain or prohibit the consummation
of the transactions contemplated herein;
(d) MASA shall have received the approval of its board of directors to the
execution and delivery of this Agreement and to the transactions
contemplated herein;
(e) as at the Closing Date, there shall have been obtained the written
consents and approvals, in form and substance satisfactory MASA,
acting reasonably, of any governmental or regulatory agency or person
whose consent to the transactions, contemplated herein is required;
(f) that portion of the Assets as set forth in Schedule "A" of Part I
shall be free of any and all encumbrances, liens, charges and demands
of whatsoever nature save and except Permitted Encumbrances.
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(g) MASA shall have received, a favourable report in respect of
Xxxxxxxxxx'x title to and interest in that portion of the Assets as
set forth in Schedule "A" Part I and in respect of matters pertaining
to Xxxxxxxxxx, which matters, in the sole opinion of MASA's counsel,
acting reasonably, are material to give effect to the transaction
herein contemplated or which affect the value of that portion of the
Assets as set forth in Schedule "A" Part I, or any part or portion
thereof; and,
(h) Xxxxxxxxxx shall deliver to MASA, or make arrangements satisfactory to
MASA, to deliver in organized form, all records, files and documents
as described in Article 10.
22.02 The foregoing conditions contained in clause 22.01 shall be for the
benefit of MASA and may, without prejudice to any of the rights of MASA
hereunder, be waived by MASA in writing, in whole or in part, at any time,
provided MASA may not waive the existence and operation of any preferential
right to purchase any portion of the Assets as set forth in Schedule "A" Part I.
In case any of the said conditions shall not be complied with through no act,
default or omission of MASA or waived by MASA at or before the Closing Date,
MASA may rescind and terminate this Agreement by written notice to Xxxxxxxxxx.
ARTICLE 23.
NAD'S CLOSING CONDITIONS
23.01 The obligation of NAD to complete the purchase of that portion of the
Assets as set forth in Schedule "A" Part II from Xxxxxxxxxx pursuant to this
Agreement is subject to the satisfaction at or prior to the Closing Date of the
following conditions precedent:
(a) all covenants, representations and warranties of Xxxxxxxxxx contained
in this Agreement shall be true and have been complied with in all
material respects at and as of the Effective Date, the date hereof and
the Closing Date, Xxxxxxxxxx shall have tendered to NAD a certificate
of a senior officer of Xxxxxxxxxx dated as of the Closing Date to such
effect, and Xxxxxxxxxx shall have performed and satisfied all
covenants required by this Agreement to be performed and satisfied by
Degerstrom at or prior to the Closing Date;
(b) except as shall have been approved in writing by NAD, there shall not
have occurred between the date hereof and the Closing Date any damage
to or alteration in or to that portion of the Assets as set forth in
Schedule "A" Part II (including, without limitation, an amendment to
any agreement or instrument forming a part thereof) which, in NAD's
reasonable opinion, would materially adversely affect the value of
that portion of the Assets as set forth in Schedule "A" Part II and
Xxxxxxxxxx shall, on the Closing Date, has delivered to NAD a
certificate of a senior officer of Xxxxxxxxxx, dated as of the Closing
Date, stating
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that, except as has been approved in writing by NAD, no damage or
alteration has occurred during such period;
(c) no action or proceeding shall have been instituted or threatened by
any one before any court or governmental agency to obtain damages in
respect of this Agreement or to restrain or prohibit the consummation
of the transactions contemplated herein;
(d) NAD shall have received the approval of its board of directors to the
execution and delivery of this Agreement and to the transactions
contemplated herein;
(e) as at the Closing Date, there shall have been obtained the written
consents and approvals, in form and substance satisfactory NAD, acting
reasonably, of any governmental or regulatory agency or person whose
consent to the transactions, contemplated herein is required;
(f) That portion of the Assets as set forth in Schedule "A" Part II shall
be free of any and all encumbrances, liens, charges and demands of
whatsoever nature save and except Permitted Encumbrances.
(g) NAD shall have received, a favourable report in respect of
Xxxxxxxxxx'x title to and interest in that portion of the Assets as
set forth in Schedule "A" Part II and in respect of matters pertaining
to Xxxxxxxxxx, which matters, in the sole opinion of NAD's counsel,
acting reasonably, are material to give effect to the transaction
herein contemplated or which affect the value of that portion of the
Assets as set forth in Schedule "A" Part II, or any part or portion
thereof; and,
(h) Xxxxxxxxxx shall deliver to NAD, or make arrangements satisfactory to
NAD, to deliver in organized form, all records, files and documents as
described in Article 10.
23.02 The foregoing conditions contained in clause 23.01 shall be for the
benefit of NAD and may, without prejudice to any of the rights of NAD hereunder,
be waived by NAD in writing, in whole or in part, at any time, provided NAD may
not waive the existence and operation of any preferential right to purchase any
portion of the Assets as set forth in Schedule "A" Part II. In case any of the
said conditions shall not be complied with through no act, default or omission
of NAD or waived by NAD at or before the Closing Date, NAD may rescind and
terminate this Agreement by written notice to Xxxxxxxxxx.
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ARTICLE 24.
MINERA'S CLOSING CONDITIONS
24.01 The obligation of Minera to complete the transfer of the NAD Shares and
MASA Shares from the Vendors pursuant to this Agreement is subject to the
satisfaction at or prior to the Closing Date of the following conditions
precedent:
(a) all covenants, representations and warranties of the Vendors contained
in this Agreement shall be true and have been complied with in all
material respects at and as of the date hereof and the Closing Date
and each of the Vendors shall have tendered to Minera a certificate
(in the case of a corporation a certificate of a senior officer) of
the Vendors dated as of the Closing Date to such effect, and the
Vendors shall have performed and satisfied all covenants required by
this Agreement to be performed and satisfied by the Vendors at or
prior to the Closing Date;
(b) except as shall have been approved in writing by Minera, there shall
not have occurred between the date hereof and the Closing Date any
damage to or alteration in or to the NAD Assets and MASA Assets
(including, without limitation, an amendment to any agreement or
instrument forming a part thereof) which, in Minera's reasonable
opinion, would materially adversely affect the value of the NAD Assets
and MASA Assets and the Vendors shall, on the Closing Date, has
delivered to Minera a certificate of a senior officer of each of the
Vendors, where a corporation, or a certificate from any individuals,
dated as of the Closing Date, stating that, except as has been
approved in writing by Minera, no damage or alteration has occurred
during such period;
(c) no action or proceeding shall have been instituted or threatened by
any one before any court or governmental agency to obtain damages in
respect of this Agreement or to restrain or prohibit the consummation
of the transactions contemplated herein;
(d) Minera shall have received the approval of its board of directors to
the execution and delivery of this Agreement and to the transactions
contemplated herein;
(e) as at the Closing Date, there shall have been obtained the written
consents and approvals, in form and substance satisfactory Minera,
acting reasonably, of any governmental or regulatory agency or person
whose consent to the transactions, contemplated herein is required;
(f) the NAD Assets and MASA Assets shall be free of any and all
encumbrances, liens, charges and demands of whatsoever nature save and
except Permitted Encumbrances;
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(g) the Asset Closing will have closed;
(h) Minera shall have received, a favourable report in respect of the
NAD's title to and interest in the NAD Assets including that portion
of the Assets transferred from Xxxxxxxxxx, MASA's title and interest
in the MASA Assets including that portion of the Assets transferred
from Xxxxxxxxxx and in respect of matters pertaining to the Vendors,
which matters, in the sole opinion of Minera's counsel, acting
reasonably, are material to give effect to the transaction herein
contemplated or which affect the value of the NAD Assets and MASA
Assets, or any part or portion thereof; and,
(i) the concurrent execution and delivery of the Operating Agreement.
24.02 The foregoing conditions contained in clause 24.01 shall be for the
benefit of Minera and may, without prejudice to any of the rights of Minera
hereunder, be waived by Minera in writing, in whole or in part, at any time,
provided Minera may not waive the existence and operation of any preferential
right to purchase any of the NAD Assets and MASA Assets. In case any of the said
conditions shall not be complied with through no act, default or omission of
Minera or waived by Minera at or before the Closing Date, Minera may rescind and
terminate this Agreement by written notice to the Vendors.
ARTICLE 25.
TERMINATION
25.01 In the event that this Agreement is terminated pursuant to any of clauses
19.02, 20.02, 21.02, 22.02, 23.02 or 24.02, each party hereto shall be released
from all obligations hereunder and each party hereto shall take all reasonable
action to return each of the other parties hereto to the position relative to
the Assets and NAD Shares and MASA Shares which such party occupied prior to the
execution hereof, it being understood that the Vendors, MASA, NAD and Minera
will each bear all costs incurred by it prior to such termination.
ARTICLE 26.
POST COMPLETION OBLIGATIONS
26.01 If the purchase and sale contemplated hereby is completed, and if, for any
reason, the parties hereto are unable on or before the Closing Date to cause
MASA or NAD, as the case may be, to become the registered holder of any of the
Assets in the place and stead of Xxxxxxxxxx, then, until such time as MASA and
NAD, as the case may be, becomes the registered holder of such Assets,
Xxxxxxxxxx shall:
(a) hold such Assets fully on behalf of MASA and NAD, as the case may be,
as trustee, and receive and hold all proceeds, benefits and advantages
accruing in
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respect of the Assets fully for the benefit, use and ownership of MASA
and NAD, as the case may be, without entitlement at any time to
commingle any of the same with its own or any other assets and keep
same in a separate trust account;
(b) within thirty Business Days of the date of receipt thereof, deliver to
MASA and NAD all revenues, proceeds and other benefits of any nature
received by it in respect of that portion of the Assets to be
transferred to MASA and NAD, as the case may be;
(c) in a timely manner, deliver to MASA and NAD, as the case may be, all
third party notices and communications received by it in respect of
such Assets;
(d) in a timely manner, deliver to third parties all such notices and
communications as MASA and NAD may reasonably request and all such
monies and other items as MASA and NAD may reasonably provide in
respect of such Assets; and
(e) as agent of MASA and NAD, as the case may be, do and perform all such
acts and things and execute and deliver all such agreements, notices
and other documents and instruments as MASA and NAD may reasonably
request in writing for purposes of facilitating the exercise of rights
incidental to the ownership of that portion of the Assets being
transferred to NAD and MASA.
26.02 Nothing contained in clause 26.01 shall be construed as restricting or
limiting in any manner any of the other covenants, warranties, representations
and other obligations of the parties hereto hereunder.
26.03 At the Asset Closing, the Closing and thereafter, as may be necessary or
desirable and without further consideration, the parties hereto shall execute,
acknowledge and deliver such other deeds, documents and assurances and shall
take or refrain from taking such other action as may be necessary to fully
assure the completion of the transactions contemplated herein in accordance with
the provisions of this Agreement and otherwise assure the carrying out of the
intent and purpose of this Agreement.
ARTICLE 27.
ATTORNMENT AND PROPER LAW
27.01 This Agreement shall be exclusively subject to and be interpreted,
construed and enforced in accordance with the laws in effect in the State of
Washington. Each party hereto irrevocably attorns to the exclusive jurisdiction
of the courts of the State of Washington and all courts of appeal therefrom.
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ARTICLE 28.
COVENANTS OF MINERA
28.01 Minera covenants and agrees with Xxxxxxxxxx, until the purchase and sale
of the NAD Shares and MASA Shares Xxxxxxxxxx holds to Minera becomes effective,
and except with the prior written approval of Xxxxxxxxxx;
(a) not to declare, pay or set aside in respect of its capital any
dividends or other distribution or payment by way of return of
capital, and not to pay any stock dividend or make any
reclassification in respect of its outstanding shares;
(b) not to purchase or otherwise acquire for any consideration any
outstanding shares of its capital stock;
(c) not to alter or amend, in any way, its articles as the same existed at
the date of this Agreement, and to maintain its corporate existence
under the laws of Alberta;
(d) to use its best efforts to obtain all necessary consents, assignments,
waivers or amendments or terminations to any instruments or take such
other measures as may be appropriate to fulfil its obligations under
and to carry out the transactions contemplated by this Agreement; and
(e) not to engage in any business, enterprise or other activity materially
different from that carried on by it at the date of this Agreement or
to enter into any transaction or incur any obligation not in the
ordinary course of business or any transaction with a party or parties
with whom Minera does not deal at arm's length.
ARTICLE 29.
NOTICES
29.01 Any notification, payment, consent or other writing (collectively, a
"Notice") required or permitted to be given by a party hereto to the other shall
be given in writing and addressed:
(a) if to Degerstrom at:
X.X. Xxxxxxxxxx, Inc.
North 0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx
00000 X.X.X.
Attention: Xxxxx Xxxxxxx
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(b) if to Gavin at:
Minera Andes X.X.
Xxxxx Xxxxxx 000
0000 Xxxxxxx
Xxxxxxxx of Argentina
Attention: Xxxxx Xxxxx
(c) if to Xxxxxx at:
Peru, 000 - 0xx Xxxxx
0000 Xxxxxxx
Xxxxxxxx of Argentina
Telephone: 0000 000 000
(d) if to Xxxxxxxx at:
Peru, 000 - 0xx Xxxxx
0000 Xxxxxxx
Xxxxxxxx of Argentina
Telephone: 0000 000 000
(e) if to MASA:
Minera Andes X.X.
Xxxxx Xxxxxx 000
0000 Xxxxxxx
Xxxxxxxx of Argentina
Attention: Xxxxx Xxxxx
(f) if to Minera:
Minera Andes Inc.
North 0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx
00000 X.X.X.
Attention: Xxxxx Xxxxxxx
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(g) if to NAD:
Minera Andes X.X.
Xxxxx Xxxxxx 000
0000 Xxxxxxx
Xxxxxxxx of Argentina
Attention: Xxxxx Xxxxx
Any notice shall be delivered. Any notice delivered as aforesaid shall be deemed
to have been received by the party hereto which it is so delivered at the time
on the date of its being so delivered. Any party may change its address for
notice by giving notice to that effect.
ARTICLE 30.
CONFIDENTIAL
30.01 The parties to this Agreement shall keep confidential all books, records,
files and other information supplied by any party to one of the other parties or
to their employees, agents or representative in connection with this Agreement
or in respect of the activities carried out on the Property, NAD Property or
MASA Property by a party, or related to the sale of minerals, or other products
derived from the Property, NAD Property and MASA Property, including all
analyses, reports, studies or other documents prepared by a party or its
employees, agents or representatives, which contain information from, or
otherwise reflects such books, records, files or other information. The parties
shall not and shall ensure that their employees, agents or representatives do
not disclose, divulge, publish, transcribe, or transfer such information, all or
in part, without the prior written consent of the other parties, which may not
be arbitrarily withheld and which shall not apply to such information or any
part thereof to the extent that:
(a) prior to its receipt by a party such information was already in the
possession of such party or its employees, agents or representatives;
or
(b) in respect of such information required to be publicly disclosed
pursuant to applicable securities or corporate laws.
ARTICLE 31.
MISCELLANEOUS
31.01 This Agreement shall supersede and replace any and all prior agreements
between the parties hereto relating to the sale and purchase of the Assets, NAD
Shares and MASA Shares and may be amended only by written instrument signed by
all parties hereto.
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31.02 This Agreement (including all Schedules hereto) comprises the entire
agreement between the parties hereto. There is no representation, warranty or
collateral agreement relating to the sale and purchase of the Assets, NAD Shares
and MASA Shares except as expressly set forth herein.
31.03 The Vendors, MASA, NAD and Minera, shall cooperate with each other in
releasing information concerning this Agreement and the transactions
contemplated herein, and shall furnish to and discuss with the other party
drafts of all press and other releases prior to publication. Nothing contained
herein shall prevent any party at any time from furnishing information to any
governmental agency or regulatory authority or to the public if required by
applicable law. Nothing herein contained shall prevent the Vendors from
furnishing information relating to the said transaction nor the identity of
MASA, NAD and Minera in connection with preferential rights of purchase, rights
of first refusal and similar restrictions.
31.04 Time shall, in all respects, be of the essence in this Agreement.
Notwithstanding that time is of the essence, should the parties fix new dates
for the performance of any of their respective obligations hereunder, time shall
again be of the essence of this Agreement.
31.05 This Agreement shall be binding upon and shall enure to the benefit of the
parties hereto and their respective successors, receivers, receiver managers,
trustees and permitted assigns.
31.06 Until immediately after the Asset Closing and the Closing, as the case may
be, all documents and information received by MASA, NAD and Minera from the
Vendors, and their respective auditors and solicitors, shall be treated by MASA,
NAD and Minera as confidential information and will not be disclosed to others
by MASA, NAD and Minera except to its solicitors, auditors and bankers, and
except as required by applicable securities legislation.
31.07 No party may assign its rights or obligations under this Agreement without
the prior written consent of all other parties hereto, which consent will not be
unreasonably withheld.
31.08 Should any provision or condition of this Agreement become illegal or not
enforceable, it or they shall be considered separate and severable from the
Agreement and the remaining provisions and conditions of this Agreement shall
remain force and be binding upon the parties hereto as though the provisions or
conditions had never been included.
31.09 This Agreement may be executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts together shall
constitute one and the same instrument and, notwithstanding their date of
execution, shall be deemed to bear the date as of the date above written.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
X.X. XXXXXXXXXX, INC.
Per: /s/ XXXX X. XXXXXXXXXX
-----------------------------------
/s/ XXXXXX XXXXXXX /s/ XXXXX XXXXXX
----------------------------------- ---------------------------------------
WITNESS XXXXX XXXXXX
/s/ XXXXXX XXXXXXX /s/ XXXXX XXXXX
----------------------------------- ---------------------------------------
WITNESS XXXXX XXXXX
/s/ XXXXXX XXXXXXX /s/ X.X. XXXXXXX
----------------------------------- ---------------------------------------
WITNESS XXXXXXX XXXXXX XXXXXXX XXXXXXXX
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MINERA ANDES S.A.
Per: /s/ XXXXX XXXXX
-----------------------------------
MINERA ANDES INC.
Per: /s/ XXXXX XXXXXXX
-----------------------------------
NAD (S.A.)
Per: /s/ XXXXX XXXXXX
-----------------------------------
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SCHEDULE "D" TO ASSET AND SHARE ACQUISITION
AGREEMENT DATED MARCH 8, 1995, AMONG X.X.
XXXXXXXXXX, INC., XXXXX XXXXX, XXXXX XXXXXX,
XXXXXXX XXXXXX XXXXXXX ELIZALDE, MINERA
ANDES S.A., MINERA ANDES INC. AND NAD (S.A.)
NET SMELTER RETURN ROYALTY
In this Schedule the terms which are defined in the Asset and Share
Acquisition Agreement referred to above and to which this Schedule "D" is
annexed and comprises an integral part thereof shall have the same meanings.
1. Net Smelter Return Royalty
1.01 If ores are mined from the Properties, NAD Properties, MASA Properties or
Future Properties, the party holding that particular property shall pay to
Degerstrom from the date of commencement of Commercial Production a Royalty as
set forth in Article 4 of the Agreement, as a percentage of the net smelter
returns realized, or deemed to be realized as hereinafter provided, from the
sale or other disposition of ores or concentrates produced from the Properties,
NAD Properties, MASA Properties or Future Properties. For purposes hereof
"Commercial Production" shall be deemed to have been achieved when the
concentrator processing ores from the Properties, NAD Properties, MASA
Properties or Future Properties for other than testing purposes has operated for
a period of thirty (30) consecutive production days at not less than sixty per
cent (60%) of design capacity or, in the event a concentrator is not erected on
the Properties, NAD Properties, MASA Properties or Future Properties, when ores
from the Properties, NAD Properties, MASA Properties or Future Properties have
been produced for a period of thirty (30) consecutive production days at not
less than sixty per cent (60%) of the mining rate specified in the feasibility
study recommending placing the Properties, NAD Properties, MASA Properties or
Future Properties in Commercial Production.
1.02 Net smelter returns shall mean any and all amounts received by each of NAD,
MASA, Minera or any affiliate thereof for product mined from the Properties, NAD
Properties, MASA Properties or Future Properties, as the case may be, deducting
therefrom:
(a) if the product is treated by an arm's length party at a smelter,
refinery or mint, all expenses relating thereto, including all costs
and charges for the treatment, tolling, smelting, refining or minting
of such product and all costs associated therewith such as
transporting, insuring, handling, weighing, sampling and assaying, as
well as all penalties, representation charges, referee's fees and
expenses, import taxes and export taxes, that is to say the net amount
received by each of NAD, MASA, Minera or any affiliate thereof from
the smelter, refinery or mint, as the case may be, less all costs
associated therewith; or,
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(b) if the product is treated at a smelter, refinery or mint owned,
operated or controlled by each of NAD, MASA, Minera or any affiliate
thereof, all costs, charges and expense relating thereto or associated
therewith, excluding any capital costs incurred in the mining of the
product but including the expenses in above, such charges, costs and
expenses to be equivalent to the prevailing rates charged by similar
smelters, refineries or mints, as the case may be, in arm's length
transactions for the treatment of like quantities and quality of
product, that is to say the net smelter returns realized shall be
deemed to be equal to the fair market value of such ores or
concentrates F.O.B. the minehead or concentrator, as the case may be,
which shall be determined using the prices and terms quoted by
smelters, refineries or mints dealing at arm's length with NAD, MASA,
Minera or any affiliate thereof and making due allowances for the cost
of delivering such ores or concentrates from the minehead or
concentrator, as the case may be, to such melter, refinery or mint.
1.03 If ores or concentrates produced from the Properties, NAD Properties, MASA
Properties or Future Properties are processed in facilities owned by NAD, MASA,
Minera or any affiliate thereof which are also used for processing ores from
other lands, a fair and equitable allocation of the costs of operating,
constructing, renting or obtaining the use of such jointly used facilities shall
be made.
1.04 NAD, MASA, Minera or any affiliate thereof may remove reasonable quantities
of ore (any such bulk sample is not to exceed 10,000 tonnes) from any mineral
deposit on Properties, NAD Properties, MASA Properties or Future Properties for
the purposes of metallurgical testing, and there shall be no royalty payable to
Degerstrom in respect of such bulk sample except to the extent that the revenues
realized therefrom exceed the aggregate of the cost of extracting such bulk
sample and the cost of such metallurgical testing in respect thereof.
1.05 Each of NAD, MASA, Minera or any affiliate thereof shall have the right to
commingle ore mined from any orebody located on the Properties, NAD Properties,
MASA Properties or Future Properties, as the case may be, or concentrates
derived therefrom, with ores or concentrates produced from other lands provided
that NAD, MASA, Minera or any affiliate thereof shall:
(a) adopt and employ reasonable practices and procedures for weighing,
determination of moisture content, sampling and assaying such ores or
concentrates and recording such data; and,
(b) utilize reasonably accurate recovery factors in order to determine the
amount of economically recoverable minerals contained in such ores or
concentrates.
1.06 Each of NAD, MASA, Minera or any affiliate thereof shall keep separate
records consistent with accepted mining practice and relating to its operations
of the mining of ores from
-56-
the Properties, NAD Properties, MASA Properties or Future Properties, as the
case may be, and, to the extent possible, the processing of such ores through a
mill whether or not such mill is owned by NAD, MASA, Minera or any affiliate
thereof. Upon the prior written request of Degerstrom duly authorized
representatives of Degerstrom may have access to such records for the purpose of
confirming any information contained in any statement delivered to Degerstrom by
NAD, MASA, Minera or any affiliate thereof, provided always that such access
shall not interfere with the affairs or operations of NAD, MASA, Minera or any
affiliate thereof. Degerstrom shall have the right to make copies of or take
extracts from such records for its own use. The figures contained in such
records shall, in the absence of bad faith on the part of each of NAD, MASA,
Minera or any affiliate thereof, be conclusive evidence of the number of tonnes
of ores mined from the Properties, NAD Properties, MASA Properties or Future
Properties and processed as aforesaid.
1.07 Net smelter returns shall be calculated by each of NAD, MASA, Minera or any
affiliate thereof, as the case maybe, at the end of the calendar quarter in
which ores or concentrates mined from the Properties, NAD Properties, MASA
Properties or Future Properties, as the case may be, are sold or otherwise
deemed to be disposed of, and payments of net smelter returns royalty shall be
made quarterly within thirty (30) days after such calendar quarter. Each payment
shall be accompanied by reasonable details concerning the basis on which it was
computed. The amount of any quarterly royalty payment may be estimated; provided
that payment for the final quarter of the calendar year shall be reconciled to
the annual production figures for the mine, and the aggregate royalty payment
for the calendar year shall be subject to adjustment, further payments or
repayments of royalty as the case may be by the party affected. The statement of
net smelter returns royalty for the calendar year shall be audited at the
expense of NAD, MASA, Minera or any affiliate thereof, as the case maybe, within
one hundred and eighty (180) days of the calendar year end by a national firm of
chartered accountants, which may be a firm used otherwise by NAD, MASA, Minera
or any affiliate thereof. Degerstrom shall have ninety (90) days after the
receipt of the audited statement for the calendar year to object thereto and
failing such objection the audited statement shall be final and binding. In the
event any objection so raised by Degerstrom cannot be amicably resolved with
sixty (60) days Degerstrom shall have the right to conduct, at its expense, an
independent audit by another national firm of chartered accountants, and if any
objection remains after such audit has been conducted the matter in dispute
shall be submitted to arbitration as provided in Schedule "E" to the Agreement.
Any payments or repayments of royalty required by any final audit shall be made
immediately by the party affected.
1.08 Any dispute involving accounting matters or calculation of production
royalties shall be finally settled by arbitration. It shall be a condition
precedent to the right of Degerstrom to submit any matter to arbitration
pursuant to the provisions hereof that Degerstrom shall have given not less than
ten (10) days' prior written notice of its intention to do so to NAD, MASA or
Minera, as the case may be. On the expiration of such ten (10) days the Vendor
may proceed to refer the dispute to arbitration as herein provided in Schedule
"E".
-57-
1.09 Any payment of production royalties made by NAD, MASA, Minera or any
affiliate thereof to Degerstom shall be deemed to have been well and truly made
if a cheque payable to Degerstrom has been delivered to Degerstrom in accordance
with the provisions of Article 29 of the Agreement, the provisions of which
shall apply, mutatis mutandis, as if such cheque was a notice given thereunder.
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SCHEDULE "E" TO ASSET AND SHARE ACQUISITION
AGREEMENT DATED MARCH 8, 1995, AMONG X.X.
XXXXXXXXXX, INC., XXXXX XXXXX, XXXXX XXXXXX,
XXXXXXX XXXXXX XXXXXXX ELIZALDE, MINERA
ANDES S.A., MINERA ANDES INC. AND NAD (S.A.)
ADJUSTMENT PROCEDURE
1. FOR CLOSING
On or before the third (3rd) day prior to the Closing Date, or as
otherwise agreed between the parties, Degerstrom shall deliver to MASA, NAD and
Minera, as the case may be, a written interim statement of all adjustments and
payments to be made pursuant to the provisions of this Agreement and shall make
available to representatives of MASA, NAD and Minera, as the case may be, all
information necessary for such representatives to understand and confirm the
calculations in such statement. Xxxxxxxxxx, XXXX, NAD and Minera, as the case
may be, shall cooperate in settling and agreeing to the amounts of the
adjustments and payments to be made pursuant to the provisions hereof on an
interim basis and the amounts so agreed shall be employed for the purposes of
Closing and the Asset Closing.
2. POST CLOSING
On or before ninety (90) days following the Closing Date, Xxxxxxxxxx,
XXXX, NAD and Minera, shall cause their representatives to co-operate in
preparing on the basis of information available within such period a final
statement of all adjustments and payments to be made pursuant to the provisions
of the Agreement and upon agreement as to the amounts of all such adjustments
and payments to be made pursuant to the Agreement, the net amount thereof shall
be remitted by the party to the Agreement who in the net result is obliged to
make payment.
3. DELAYED MATTERS
The parties to the Agreement foresee that certain adjustments will be
necessary from time to time after the ninety (90) day period referred to in
Clause 1 of this Schedule and each of the parties hereto agrees to co-operate in
calculating and confirming the amount of any payment as may be necessary as a
result thereof and agrees to make payment in the event of becoming obliged
thereby to make payment.
4. LIMITATION
Notwithstanding the provisions of Clauses 1 and 2 of this Schedule, no
adjustments shall be made pursuant to the provisions of this Schedule with
respect to any matter with respect to which a party hereto has not given to the
other applicable party hereto a written notice requesting an adjustment within
two (2) years following the Closing Date.
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5. PAYMENT
All payments determined to be payable pursuant hereto subsequent to
the Closing Date shall be paid within fifteen (15) days of such determination
and if not paid within such fifteen (15) day period each such payment shall
thereafter bear interest until paid at a rate which is the sum of two percent
(2%) plus the prime lending rate, from time to time, of HongKong Bank of Canada
for loans in Canada in Canadian funds to such bank's preferred commercial
borrowers.
6. CASH ADVANCES
Degerstrom will be reimbursed in cash for any cash and all advances,
on the assets which are transferred to MASA and NAD, as the case may be, on or
after the Asset Closing Date.
8. RIGHT TO AUDIT
Any party has the right, exercisable within one (1) year of the
Closing Date, to examine, copy and audit the records of the other party relative
to the Assets and the adjustments pursuant hereto. The costs of any such audit
shall be borne by the party initiating the audit.
9. ARBITRATION
Any controversy arising under or out of this Schedule may be submitted
to arbitration by either Degerstrom or any one or more of the following MASA,
NAD or Minera, as the case may be, by written notice to the other and the
following principles shall apply to any and each such arbitration:
(a) Appointment of Arbitrator(s)
Upon written demand of either Degerstrom or any one or more of the
following, MASA, NAD or Minera, as the case may be, representatives of
MASA, NAD or Minera, as the case may be, and Degerstrom shall meet and
attempt to appoint a single arbitrator. In the event that such
representatives are unable to agree on a single arbitrator then upon
written demand by either Degerstrom or any one or more of the
following MASA, NAD or Minera, as the case may be, each shall, within
ten (10) days of such demand, name an arbitrator and the two
arbitrators so named shall promptly thereafter choose a third. If
either Degerstrom or any one or more of the following MASA, NAD or
Minera, as the case may be, shall fail to name an arbitrator within
ten (10) days from such demand, then the second arbitrator shall be
appointed by any Justice of the Court of Queen's Bench of Alberta. If
the two arbitrators shall fail within ten (10) days from their
appointment to agree upon and appoint the third arbitrator, then such
third
-60-
arbitrator shall be appointed by any Justice of the Court of Queen's
Bench of Alberta.
(b) Qualification of Arbitrator(s)
The arbitrator or arbitrators selected to act hereunder shall be
qualified by education, experience and training to pass upon the
particular question in dispute.
(c) Proceedings
The arbitrator or arbitrators chosen as aforesaid shall proceed
immediately to hear and determine the question or questions in
dispute. The decision of the single arbitrator shall be made within
forty-five (45) days after his or her appointment, subject to any
reasonable delay due to unforeseen circumstances. Where there are
three arbitrators, the decision of the arbitrators, or a majority of
them, shall be made within forty-five (45) days after the appointment
of the third arbitrator, subject to any reasonable delay due to
unforeseen circumstances. In the event the single arbitrator or the
arbitrators, or a majority of them, fail to make a decision within the
period herein prescribed, then either party hereto may elect to have a
new single arbitrator or arbitrators chosen in the manner herein
prescribed, as if none had previously been selected.
(d) Decision
The decision of the single arbitrator or the decision of the
arbitrators, or a majority of them, shall be drawn up in writing and
signed by the single arbitrator or by the arbitrators, or a majority
of them, and shall be final and binding upon the parties hereto as to
any question or questions so submitted to arbitration, and the parties
hereto shall be bound by such decision and bound to perform the terms
and conditions thereof.
(e) Compensation
The compensation and expenses of the single arbitrator or the
arbitrators and the liability between the parties involved in such
arbitration for the payment thereof shall be determined by the
arbitrator or arbitrators, as the case may be.
(f) Governing Law
Arbitration pursuant hereto shall be governed in all respects not
addressed herein by the provisions of The Arbitration Act (Alberta)
and regulations thereunder.
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SCHEDULE "F" TO ASSET AND SHARE ACQUISITION
AGREEMENT DATED MARCH 8, 1995, AMONG X.X.
XXXXXXXXXX, INC., XXXXX XXXXX, XXXXX XXXXXX,
XXXXXXX XXXXXX XXXXXXX ELIZALDE, MINERA
ANDES S.A., MINERA ANDES INC. AND NAD (S.A.)
1.01 Subject to Section 1.03, should any of the Properties comprising part of
the Assets, any of the NAD Properties comprising part of the NAD Assets, any of
the MASA Properties comprising part of the MASA Assets or Future Properties
reach the Bankable Feasibility, Minera shall immediately thereafter pay to
Degerstrom a Bonus comprised of a number of common shares to be issued from the
treasury of Minera. The number of common shares to be issued by Minera is as set
forth in Section 1.02.
1.02 The number of common shares to be issued from the treasury of Minera is
equal to 11% of the number of issued and outstanding common shares of Minera
existing immediately after the Amalgamation.
1.03 Degerstrom acknowledges and agrees that:
(a) the issuance of any common shares by Minera may be subject to
obtaining the necessary regulatory approval from any applicable
regulatory body;
(b) that the common shares to be issued by Minera will be issued pursuant
to exemptions contained in the Securities Act (Alberta) and pursuant
to exemptions from the registration requirements of the United States
Securities Act of 1993; and
(c) the issuance of the Minera Shares may be subject to the policies,
rules and by-laws of any regulatory body and the common shares may be
subject to escrow provisions imposed by any regulatory body.
Degerstrom agrees to be bound by and comply with all of the policies,
rules and by-laws of any regulatory body in regard to common shares
issued and comply with all regulatory laws and securities regulations
in respect to the trading of such shares.
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SCHEDULE "L" TO ASSET AND SHARE ACQUISITION
AGREEMENT DATED MARCH 8, 1995, AMONG X.X.
XXXXXXXXXX, INC., XXXXX XXXXX, XXXXX XXXXXX,
XXXXXXX XXXXXX XXXXXXX ELIZALDE, MINERA ANDES
S.A., MINERA ANDES INC. AND NAD (S.A.)
REPAYMENT SCHEDULE
MINERA
Minera costs and expenses as defined in clause 3.03(d) will be paid
within thirty (30) days of the completion of the independent audit for costs and
expenses to December 31, 1994. The post December 31, 1994 to Closing Date costs
and expenses incurred by Degerstrom will be reimbursed when all costs are in and
the audit is completed. Any post Closing Date costs Degerstrom will incur, will
be billed on the Operating Agreement attached hereto as Schedule "C".
MASA AND NAD
Xxxxxxxxxx'x costs and expenses as set forth in Schedule "K", will be
reimbursed to Degerstrom following completion of an independent audit of costs
and expenses incurred by Degerstrom on behalf of MASA and NAD. Degerstrom will
first be reimbursed its costs and expenses to December 31, 1994 and secondly its
January 1, 1995 to Closing Date costs and expenses, when all charges are in and
the independent audit completed. Degerstrom will be reimbursed for MASA and NAD
from Minera when Minera completes its next financing or Degerstrom will be
reimbursed by MASA and NAD directly if the accountants and auditors deem this is
best.
THIS AMENDMENT TO THE ASSET AND SHARE ACQUISITION AGREEMENT made the
19th day of April, 1996.
AMONG:
X.X. XXXXXXXXXX, INC., a corporation having offices at the
City of Spokane in the State of Washington, and a branch
office in the City of Xxxxxxx, in the Republic of Argentina
(hereinafter referred to as "Degerstrom")
OF THE FIRST PART
- AND -
XXXXX XXXXX, an individual residing in the City of Xxxxxxx,
in the Republic of Argentina
(hereinafter referred to as "Gavin")
OF THE SECOND PART
- AND -
XXXXX XXXXXX, an individual residing in the City of Xxxxxxx,
in the Republic of Argentina
(hereinafter referred to as "Xxxxxx")
OF THE THIRD PART
- AND -
XXXXXXX XXXXXX XXXXXXX XXXXXXXX, an individual residing in
the City of Xxxxxxx, in the Republic of Argentina
(hereinafter referred to as "Xxxxxxxx")
OF THE FOURTH PART
- AND -
MINERA ANDES S.A., a corporation having offices at the City of
Xxxxxxx, in the Republic of Argentina.
(hereinafter referred to as "MASA")
OF THE FIFTH PART
- AND -
2
MINERA ANDES INC., a corporation incorporated under the laws of the
Province of Alberta and having offices at the City of Spokane in the
State of Washington
(hereinafter referred to as "Minera")
OF THE SIXTH PART
- AND -
NAD (S.A.), a corporation having offices at the City of
Xxxxxxx, in the Republic of Argentina ("NAD")
WHEREAS:
A. The parties hereto signed an Asset and Share Acquisition Agreement dated
Xxxxx 0, 0000 ("xxx Agreement") and;
B. The parties hereto have determined that a certain amendment is necessary.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby irrevocably acknowledged, the parties agree to
amend the Agreement as set forth below:
1. Interpretation: Unless otherwise stated, section numbers refer to section
numbers in the Agreement and all words in this Amending Agreement shall
bear the meanings ascribed in the Agreement.
2. Amendment: Section 4.02 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"4.02 The Properties, MASA Properties, NAD Properties or Future
Properties, are subject to a Royalty equal to the difference between
3% and the Underlying Royalty, if any, subject to a maximum Royalty of
2% and a minimum Royalty of 0% payable to Xxxxxxxxxx. For the purposes
of calculating the Royalty payable to Xxxxxxxxxx, the buying out of
any Underlying Royalty, or part thereof, by any party or entity shall
not increase or decrease the Royalty payable to Xxxxxxxxxx."
3. Enurement: This Amending Agreement shall be binding upon and shall enure to
the benefit of the parties hereto and their respective successors,
receivers, receiver manager, trustees and permitted assigns.
4. Execution: This Amending Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts
3
together shall constitute one and the same instrument and, notwithstanding
their date of execution, shall be deemed to bear the date as of the date
above written.
5. Other Matters: Save and except as amended herein all other terms,
conditions and provisions of the Agreement shall continue to be in full
force and effect.
IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement as of the date first above written.
X.X. XXXXXXXXXX, INC.
Per: /s/ XXXX X. XXXXXXXXXX
----------------------------------------
/s/ XXXXX XXXXXX
---------------------------------------- ----------------------------------
WITNESS XXXXX XXXXXX
/s/ XXXXX XXXXX
---------------------------------------- ----------------------------------
WITNESS XXXXX XXXXX
/s/ .X.X XXXXXXX
---------------------------------------- ----------------------------------
WITNESS XXXXXXX XXXXXX XXXXXXX XXXXXXXX
XXXXXX XXXXX X.X.
Per: /s/ XXXXX X. XXXXXXX
------------------------------
MINERA ANDES INC.
Per:
------------------------------
NAD (S.A.)
Per:
------------------------------
SCHEDULE K
NAD S.A. AND MINERA ANDES S.A. EXPENSES
JULY 1, 1994 THROUGH DECEMBER 31, 1994
------------------------------------------------------------
PHASES TOTAL
========================== ===========
Analytical 26,952.83
Sample Shipment 2,322.08
Project Overhead 50,039.90
Phone & Mobile Radio 12,749.29
Banking 5,330.53
Accounting 17,981.43
Legal Services 67,454.80
Geological Services 249,483.29
Materials and Supplies 3,712.39
Payments 50.25
Property Acquisition 100,020.16
Travel Expenses 181.09
Travel Lodging 967.38
Travel Meals 1,200.63
Project Living Expenses 2,374.43
Project Lodging 7,826.46
Project Meals 10,000.85
Drill Rental -126.55
Drill Insurance 1,375.37
Imaging 26,436.71
Mapping 3,804.83
Map Supplies 12,964.39
Shipping 3,975.59
Local Labor 12,106.56
Fuel 9,172.82
Vehicle Rental 11,692.88
Vehicle Insurance 9,761.70
Vehicle Maintenance 6,184.26
Vehicle Tax and License 1,346.02
-----------
SUB-TOTAL 657,342.37
-----------
Administration Fee @ 15%* 98,601.36
-----------
GRAND TOTAL $755,943.73
------------------------------------------------------------
* Includes home office overhead (accounting, legal, clerical), interest on
monies, etc.
-1-
SCHEDULE K
MINERA ANDES INC. EXPENSES (Job #9447)
JULY 1, 1994 THROUGH DECEMBER 31, 1994
------------------------------------------------------------
PHASES TOTAL
========================== ===========
Overhead 54,685.33
Telephone 1,968.27
Banking 82.69
Accounting 360.00
Legal Services 35,886.74
Geological Services 9,786.85
Travel Expenses 5,491.30
Project Lodging 700.82
Shipping 510.05
-----------
TOTAL $109,472.05
------------------------------------------------------------
-2-
SCHEDULE K
NAD S.A. AND MINERA ANDES S.A. EXPENSES
POST DECEMBER 31, 1994
These expenses are not available, as they are not in our accounting system and
they will require auditing.
-3-
SCHEDULE K
MINERA ANDES INC. EXPENSES (Job #9447)
POST DECEMBER 31, 1994
These expenses not available, as they are not in our accounting system and they
will require auditing.
-4-
