UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):    September 29, 2020


CONTANGO ORE, INC.
(Exact name of Registrant as specified in its charter)


Delaware 001-35770 27-3431051
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number)
Identification No.)
     
3700 Buffalo Speedway, Suite 925    
Houston, Texas   77098
(Address of principal executive offices)
  (Zip Code)

 
Registrant’s Telephone Number, including area code:  (713) 877-1311
 
                                 

Not Applicable
(Former name, former address and former fiscal year, if changed since last report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.):

☐   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, Par Value $0.01 per share
CTGO
OTCQB

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
 
Emerging growth company  
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  
 



Item 1.01.
Entry into a Material Definitive Agreement.

Purchase Agreement

On September 29, 2020, Contango ORE, Inc., a Delaware corporation (the “Company”), CORE Alaska, LLC (“CORE Alaska”), a Delaware limited liability company and a wholly-owned subsidiary of the Company, and Skip Sub, Inc., a Delaware corporation (“Skip Sub”) and an indirect wholly-owned subsidiary of Kinross Gold Corporation, a corporation formed under the laws of Ontario, Canada (“Kinross”), entered into a Purchase Agreement (the “Purchase Agreement”) pursuant to which CORE Alaska sold a thirty percent (30%) membership interest (the “JV Interest”) in Peak Gold, LLC, a Delaware limited liability company (the “Joint Venture Company”), to Skip Sub (the “CORE Transactions”). The CORE Transactions closed on September 30, 2020.

In consideration for the JV Interest, the Company received $32.4 million in cash and 809,744 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The 809,744 shares of Common Stock were acquired by Skip Sub from Royal Gold, Inc., a Delaware corporation (“Royal Gold”), as part of the Royal Gold Transactions (discussed below) and were subsequently cancelled by the Company. Of the $32.4 million cash consideration, $1.2 million constituted a prepayment to the Company as a reimbursement of its proportionate share of certain silver royalty payments that the Joint Venture Company may be obligated to pay to Royal Gold, with the understanding that Skip Sub will bear the entire impact of those royalty payments net to its interest in the Joint Venture Company.

The Purchase Agreement contains customary representations, warranties and covenants.

Concurrently with the Purchase Agreement, Skip Sub, in a separate transaction, acquired from Royal Gold (i) one hundred percent (100%) of the equity of Royal Alaska, LLC (“Royal Alaska”), a Delaware limited liability company, which held a forty percent (40%) interest in the Joint Venture Company and (ii) 809,744 shares of Common Stock held by Royal Gold (the “Royal Gold Transactions” and, together with the CORE Transactions, the “Transactions”).

After the consummation of the Transactions, CORE Alaska retains a thirty percent (30%) membership interest in the Joint Venture Company. Skip Sub now holds a seventy percent (70%) membership interest in the Joint Venture Company and serves as the manager and operator of the Joint Venture Company. Skip Sub and CORE Alaska entered into an Amended and Restated Limited Liability Company Agreement of the Joint Venture Company (the “A&R JV LLCA”) on October 1, 2020 to address the new ownership arrangements and to incorporate additional terms that will permit the Joint Venture Company to further develop and produce its properties.

The foregoing is a summary only and does not purport to be a complete description of all of the terms, provisions, covenants and agreements contained in the Purchase Agreement, and is subject to and qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed herewith as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.

The Purchase Agreement has been attached as an exhibit to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company or Kinross or any of their respective affiliates or businesses. The representations, warranties, covenants and agreements contained in the Purchase Agreement were made only for the purposes of such agreement and as of specified dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors and security holders are not third-party beneficiaries under the Purchase Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, CORE Alaska, Kinross, Skip Sub or any of their respective affiliates or businesses.



Separation and Distribution Agreement

Prior to the Transactions, the Joint Venture Company, Contango Minerals Alaska, LLC, an Alaska limited liability company formed by the Joint Venture Company (“Contango Minerals”), the Company, CORE Alaska, Royal Gold and Royal Alaska entered into a Separation and Distribution Agreement, dated as of September 29, 2020 (the “Separation Agreement”). Pursuant to the Separation Agreement, the Joint Venture Company formed Contango Minerals, contributed approximately 170,000 acres of Alaska State mining claims to it, subject to the Option Agreement (defined below), and retained an additional 1% net smelter returns royalty interest on certain of the Alaska state mining claims that were contributed. After the formation and contribution to Contango Minerals, the Joint Venture Company made simultaneous distributions to Royal Alaska and CORE Alaska by (i) granting a new 28% net smelter returns silver royalty on all silver produced from a defined area within the Tetlin Lease (defined below) and transferring the additional 1% net smelter returns royalty described above to Royal Gold and (ii) assigning one hundred percent (100%) of the membership interests in Contango Minerals to CORE Alaska, which were in turn distributed to the Company, resulting in Contango Minerals becoming a wholly-owned subsidiary of the Company. The Separation Agreement contains customary representations, warranties and covenants.

The foregoing is a summary only and does not purport to be a complete description of all of the terms, provisions, covenants and agreements contained in the Separation Agreement, and is subject to and qualified in its entirety by reference to the full text of the Separation Agreement, which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.

Option Agreement

In connection with the Separation Agreement, the Joint Venture Company and Contango Minerals entered into an Option Agreement, dated as of September 29, 2020 (the “Option Agreement”). Under the Option Agreement, Contango Minerals granted to the Joint Venture Company the option, subject to certain conditions contained in the Option Agreement, to purchase approximately 13,000 acres of the Alaska state mining claims, together with all extralateral rights, water and water rights, and easements and rights of way in connection therewith, that are held by Contango Minerals, and which were transferred to Contango Minerals pursuant to the Separation Agreement.

Subject to the conditions in the Option Agreement, the Joint Venture Company may exercise the option to purchase the Alaska state mining claims, in whole or in part, at an exercise price of $50,000. The Joint Venture Company’s option to purchase the Alaska state mining claims from the Company expires and is of no further force and effect upon the earlier of (i) eighteen months after the date of the Option Agreement, or (ii) the termination of the Option Agreement pursuant to its terms. The Option Agreement may be terminated (i) by the Joint Venture Company at any time upon written notice to Contango Minerals, (ii) if the Joint Venture Company fails to timely pay certain fees, including taxes and certain other fees necessary to maintain the Alaska state mining claims in good standing under applicable laws, or (iii) in the event the Alaska state mining claims are subject to a condemnation under eminent domain.

The foregoing is a summary only and does not purport to be a complete description of all of the terms, provisions, covenants and agreements contained in the Option Agreement, and is subject to and qualified in its entirety by reference to the full text of the Option Agreement, which is filed herewith as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.



Amended and Restated Limited Liability Company Agreement of the Joint Venture Company

As noted above, on October 1, 2020, CORE Alaska and Skip Sub entered into the A&R JV LLCA. The A&R JV LLCA supersedes and replaces in its entirety the prior Limited Liability Company Agreement of the Joint Venture Company, as amended. The A&R JV LLCA is the operating agreement for the Joint Venture Company and provides for understandings between the members with respect to matters regarding percentage ownership interests, governance, transfers of ownership interests and other operational matters.

As of October 1, 2020, and as stated in the A&R JV LLCA, the capital contributions and capital account balance of CORE Alaska was $39.6 million and the capital contributions and capital account balance of Skip Sub was $92.5 million. CORE Alaska and Skip Sub will be required, subject to the terms of the A&R JV LLCA, to make additional capital contributions to the Joint Venture Company for any approved programs budgets in accordance with their respective percentage membership interests.

After the consummation of the Transactions, Kinross, through Skip Sub, replaced Royal Gold as the Company’s joint venture partner and as Manager (defined below) of the Joint Venture Company. After consummation of the Transactions, CORE Alaska holds a thirty percent (30%) membership interest in the Joint Venture Company and Skip Sub holds a seventy percent (70%) membership interest in the Joint Venture Company. The A&R JV LLCA establishes a management committee (the “Management Committee”) to determine the overall policies, objectives, procedures, methods and actions of the Joint Venture Company. Initially, the Management Committee consists of one representative designated by CORE Alaska and two representatives designated by Skip Sub (each a “Representative”). The Representatives designated by each member of the Joint Venture Company shall vote as a group, and in accordance with their respective membership interests in the Joint Venture Company. Except in the case of certain key actions that require approval by unanimous vote of the Representatives, the affirmative vote of a majority of the interests in the Joint Venture Company shall be the action of the Management Committee.

Except for matters that require the approval of the Management Committee under the terms of the A&R JV LLCA, the manager of the Joint Venture Company (the “Manager”) has the power and authority to make any other decision for and on behalf of the Joint Venture Company. Specifically, the Manager will implement the decisions of the Management Committee and manage, direct and control the operation of the Joint Venture Company in accordance with approved programs and budgets. Skip Sub is appointed as the initial Manager with overall management responsibility for operations of the Joint Venture Company. Skip Sub may resign as Manager and can be removed as Manager under certain circumstances as provided in the A&R JV LLCA.

The programs and budgets for each calendar year are prepared by the Manager and must be approved by the Management Committee. On a quarterly basis, subject to provisions of the A&R JV LLCA, the members are required contribute funds to approved programs and budgets in proportion to their respective membership interests in the Joint Venture Company. If a member elects not to contribute to an approved program and budget or elects to contribute less than its share in proportion to its interest, then each member’s proportionate membership interest in the Joint Venture Company will be recalculated by dividing (i) the sum of (a) the value of its contribution to the current year’s approved program and budget plus (b) the additional amount, if any, the member has agreed to contribute to the approved program and budget, plus (c) if the member is not the member who elects to contribute less than its proportionate share of the approved program and budget, then the amount, if any, in excess of the contributions required by such member’s its proportionate membership interest, by (ii) the sum of (a), (b) and (c) above for all members. In the event a member’s membership interest falls below five percent (5%), such member shall be deemed to have resigned as a member from the Joint Venture Company, and such member must sell its remaining interest to the other member at price determined in accordance with provisions of the A&R JV LLCA.

The members have the right to transfer each of their respective membership interests in the Joint Venture Company to certain permitted transferees, including to their respective affiliates and subsidiaries. The members may also transfer each of their respective membership interests to a third party, subject to certain terms and conditions set forth in the A&R JV LLCA. In the event that either member intends to transfer all or part of its membership interest to a bona fide third party, the A&R JV LLCA provides that the other member will have a right of first offer, whereupon the member shall first offer the other member the right to purchase the membership interest in the Joint Venture Company on the same terms and conditions that it intends to sell to a bona fide third party.

The A&R JV LLCA provides that the Joint Venture Company may, at the Manager’s discretion, enter into a toll milling agreement (“Toll Milling Agreement”) with Fairbanks Gold Mining, Inc. (“FGMI”). The A&R JV LLCA provides a form of Toll Milling Agreement that sets forth a framework for the terms and conditions pursuant to which FGMI would process the Joint Venture Company’s ore using the Fort Knox Mill and other processing facilities. The A&R JV LLCA permits the Manager to negotiate the final terms and conditions of the Toll Milling Agreement on behalf of the Joint Venture Company, without any further approval from the Management Committee, subject to certain restrictions set forth in the A&R JV LLCA.

The foregoing is a summary only and does not purport to be a complete description of all of the terms, provisions, covenants and agreements contained in the A&R JV LLCA, and is subject to and qualified in its entirety by reference to the full text of the A&R JV LLCA, which is filed herewith as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.



Relationships

Immediately prior to the consummation of the Transactions, Royal Gold held 809,744 shares of Common Stock, representing approximately 11.9% of the issued and outstanding shares of Common Stock immediately prior to the Transactions. On September 30, 2020, Royal Gold filed with the Securities and Exchange Commission an Amendment no. 5 to its statement on Schedule 13D, reporting ownership of 0 shares of Common Stock.

Item 2.01.
Completion of Acquisition or Disposition of Assets.

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

Item 8.01.
Other Events.


Royalty on State Mining Claims

In connection with the Transactions and pursuant to the Separation Agreement, on September 29, 2020 Contango Minerals entered into an Omnibus Second Amendment and Restatement of Royalty Deeds (the “Contango Minerals Royalty Agreement”) with Royal Gold. Under the terms of the Contango Minerals Royalty Agreement, in addition to certain existing 2% royalties (the "2% Royalties") and 3% royalties in favor of Royal Gold on the Alaska State mining claims, Contango Minerals granted an additional 1% net smelter returns royalty on those Alaska State mining claims that were already subject to the 2% Royalties, increasing the royalty rate on those Alaska State mining claims to 3%. These Alaska state mining claims were transferred to Contango Minerals pursuant to the Separation Agreement. As a result of the Contango Minerals Royalty Agreement, Contango Minerals will be obligated to pay Royal Gold a 3% net smelter returns royalty on all properties subject to the Contango Minerals Royalty Agreement, subject to the terms and conditions of the Contango Minerals Royalty Agreement.

JV Royalty Agreement

In connection with the  Transactions and pursuant to the Separation Agreement, on September 29, 2020 the Joint Venture Company entered into an Omnibus Second Amendment and Restatement of Royalty Deeds and Grant of Additional Royalty (the “JV Royalty Agreement”) with Royal Gold. Pursuant to the JV Royalty Agreement, in addition to Royal Gold’s existing  3% net smelter returns royalty interest over property defined as the “Tetlin Lease”, the Joint Venture Company (i) granted to Royal Gold a 28% net smelter returns royalty interest on all silver produced from a defined area within the Tetlin Lease and (ii) transferred to Royal Gold the additional 1% net smelter returns royalty that it had retained on the Alaska State mining properties which were transferred to Contango Minerals, all subject to the terms of the JV Royalty Agreement.

CORE Alaska and Skip Sub will be required to fund any royalty payments the Joint Venture Company is obligated to make to Royal Gold under the JV Royalty Agreement in proportion to their respective membership interests in the Joint Venture Company. CORE Alaska’s proportionate share of the additional royalty granted to Royal Gold pursuant to the JV Royalty Agreement has been partially offset. Of the cash consideration paid under the Purchase Agreement, $1.2 million was designated as a prepayment by Skip Sub of CORE Alaska’s estimated proportionate share of the additional silver royalty, in proportion to CORE Alaska’s membership interest in the Joint Venture Company after the consummation of the Transactions.

Cautionary Note Regarding Forward-Looking Statements

Many of the statements included or incorporated in this Current Report on Form 8-K and the furnished exhibit constitute “forward-looking statements.” In particular, they include statements relating to future actions, strategies, future operating and financial performance, and the Company’s future financial results. These forward-looking statements are based on current expectations and projections about future events. Readers are cautioned that forward-looking statements are not guarantees of future operating and financial performance or results and involve substantial risks and uncertainties that cannot be predicted or quantified, and, consequently, the actual performance of the Company may differ materially from those expressed or implied by such forward-looking statements. Such risks and uncertainties include, but are not limited to, factors described from time to time in the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q filed with the Securities and Exchange Commission (including the sections entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained therein).



Item 9.01.
Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.
Description of Exhibit
   
2.1

*            Exhibits and schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule will be furnished supplementally to the SEC upon request.



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


  CONTANGO ORE, INC.  
       

By:
/s/ Leah Gaines  
  Leah Gaines  
  Vice President, Chief Financial Officer, Chief Accounting  
  Officer, Treasurer and Secretary  

Dated: October 5, 2020

Exhibit 2.1














PURCHASE AGREEMENT

by and among

CORE ALASKA, LLC,

CONTANGO ORE, INC.,

and

SKIP SUB, INC.

Dated as of September 29, 2020





1

TABLE OF CONTENTS

ARTICLE I DEFINITIONS AND CERTAIN INTERPRETATIONS
2
Section 1.1
Definitions
 2
Section 1.2
Other Interpretive Provisions
 12
Section 1.3
Exhibits
 13
 

 
ARTICLE II PURCHASE AND SALE
 13
Section 2.1
Purchase and Sale of the Purchased Interests
 13
Section 2.2
Consideration
 13
Section 2.3
Closing
 13
Section 2.4
Closing Deliveries of Seller
 14
Section 2.5
Closing Deliveries of Buyer
 14
Section 2.6
Withholding Taxes
 14
Section 2.7
Allocation for U.S. Federal Income Tax Purposes
 15
 
 
 
ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
 15
Section 3.1
Authority and Enforceability
 15
Section 3.2
No Conflict; Consents and Approvals.
 15
Section 3.3
Organization and Qualification
 16
Section 3.4
Capitalization
 16
Section 3.5
Subsidiaries
 16
Section 3.6
Financial Information
 17
Section 3.7
Absence of Undisclosed Liabilities
 17
Section 3.8
Absence of Certain Changes or Events
 17
Section 3.9
Legal Proceedings
 19
Section 3.10
Compliance with Laws
 19
Section 3.11
Permits
 19
Section 3.12
Material Contracts
 19
Section 3.13
Real Property
 20
Section 3.14
Tangible Assets
 21
Section 3.15
Intellectual Property
 21
Section 3.16
Environmental Matters
 22
Section 3.17
Employee Matters
 22
Section 3.18
Taxes
 23

i


Section 3.19
Insurance
 24
Section 3.20
No Expropriation
 25
Section 3.21
Bank Accounts and Powers of Attorney
 25
Section 3.22
Anticorruption
 25
Section 3.23
Affiliate Transactions
 25
Section 3.24
Brokers
 25
     
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER AND CORE 26
Section 4.1
Organization
 26
Section 4.1
Authority and Enforceability
 26
Section 4.1
No Conflict; Consents and Approvals
 26
Section 4.1
Purchased Interests
 27
Section 4.1
Litigation
 27
Section 4.1
Solvency
 27
Section 4.1
Brokers
 28
Section 4.1
No Other Representations and Warranties
 28
     
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER  28
Section 5.1
Organization
 28
Section 5.2
Authority and Enforceability
 28
Section 5.3
No Conflict; Governmental Consents and Approvals
 29
Section 5.4
Litigation
 29
Section 5.5
CORE Shares
 29
Section 5.6
Brokers
 30
Section 5.7
Curative Title Work
 30
Section 5.8
Investment Intent
 30
Section 5.9
Non-Reliance of Buyer
 30
Section 5.10
Financial Ability
 30
 
   
ARTICLE VI ADDITIONAL AGREEMENTS  
 30
Section 6.1
Public Disclosure
 30
Section 6.2
Commercially Reasonable Efforts
 31
Section 6.3
Regulatory Filings
 31
Section 6.4
Tax Matters
 31
Section 6.5
Post-Closing Actions
 32






 

 

 














 
ii


ARTICLE VII SURVIVAL; INDEMNIFICATION 
32
Section 7.1 Survival of Representations and Warranties
 32
Section 7.2 Indemnification by Seller and CORE
 33
Section 7.3 Indemnification by Buyer
 34
Section 7.4 Determination of Indemnification Amounts
 35
Section 7.5 Indemnification Procedures
 35
Section 7.6 Treatment of Indemnification Payments
 37
Section 7.7 Prior Knowledge of Breach
 37
Section 7.8 Exclusive Remedies
 37
Section 7.9 Fraud
 38
     
ARTICLE VIII MISCELLANEOUS  38
Section 8.1 Notices
 38
Section 8.2 Expenses
 39
Section 8.3 Severability
 39
Section 8.4 Entire Agreement
 39
Section 8.5 Assignment
 40
Section 8.6 No Third Party Beneficiaries
 40
Section 8.7 Specific Performance
 40
Section 8.8 Governing Law
 40
Section 8.9 Jurisdiction
 40
Section 8.10 WAIVER OF JURY TRIAL
 40
Section 8.11 No Presumption Against Drafting Party
 41
Section 8.12 Counterparts
 41
Section 8.13 Amendments and Waivers
 41
     
EXHIBITS
   
     
Exhibit A
List of State Claims
 
Exhibit B
Form of Amended and Restated Limited Liability Company Agreement
 









 






 

iii

PURCHASE AGREEMENT
This Purchase Agreement (this “Agreement”) is made and entered into as of September 29, 2020 (the “Effective Date”), by and among CORE ALASKA, LLC, a Delaware limited liability company (“Seller”), CONTANGO ORE, INC., a Delaware corporation (“CORE”), SKIP SUB, INC., a Delaware corporation (“Buyer”).  CORE, Seller and Buyer sometimes are referred to in this Agreement collectively as the “Parties” and each individually as a “Party.”
RECITALS
A. Seller is a wholly-owned subsidiary of CORE.  Seller owns 60% of the issued and outstanding membership interests (such 60% interest, the “CORE Interests”) of Peak Gold, LLC, a Delaware limited liability company (the “Company”).
B. Royal Alaska, LLC, a Delaware limited liability company (“Royal Alaska”) and wholly-owned subsidiary of Royal Gold, Inc., a Delaware corporation (“Royal Gold”), owns the remaining 40% of the issued and outstanding membership interests of the Company (the “Royal Interests” and, together with the CORE Interests, the “Membership Interests”) and has served as the sole manager of the Company and had overall management responsibility for operations of the Company since its inception.
C. The activities of the Company are governed by the Company LLC Agreement.  Pursuant to the Company LLC Agreement, the Company conducts mineral exploration and development and related activities at the Peak Gold Project in the Fairbanks Mining District of Alaska.
D. Concurrent with the execution of this Agreement, Buyer has entered into a purchase agreement with Royal Gold (together with the schedules thereto, as may be amended, restated, or supplemented from time to time, the “Royal Purchase Agreement”), pursuant to which Buyer will purchase from Royal Gold, and Royal Gold will sell to Buyer, (i) 100% of Royal Alaska, which owns the Royal Interests and (ii) 809,744 shares of CORE common stock, par value US$0.01 per share (the “CORE Shares”) (collectively, the “Royal Transaction”).
E. Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, 30% of the Membership Interests (the “Purchased Interests”), on the terms and conditions set forth in this Agreement.
F. Prior to the execution of this Agreement, Royal Gold, Royal Alaska, CORE, Seller, the Company and Contango Minerals Alaska, LLC, an Alaska limited liability company (“NewCo LLC”) entered into that certain Separation and Distribution Agreement, dated September 29, 2020 (the “Distribution Agreement”). Pursuant to the terms of the Distribution Agreement, Royal Gold, Royal Alaska, CORE, Seller, the Company and NewCo LLC consummated the transactions contemplated by the Distribution Agreement, including the following: (a) the assets and liabilities identified in the Distribution Agreement were contributed by the Company to NewCo LLC, subject to the Option Agreement, (b) the Company distributed to Seller, which in turn distributed to CORE, all of the membership interests of NewCo LLC then held by the Company, and (c) the Company granted to Royal Gold the New Silver Royalty pursuant to the Restated Royalty Agreement (such transaction described in clauses (a) through (c) undertaken in accordance with the terms of this Agreement and the Distribution Agreement, the “Distribution”).
1

G. The Distribution occurred immediately prior to the consummation of the Royal Transaction, which is expected to occur concurrent with the Closing under this Agreement.
H. Buyer desires to prepay US$1,200,000 to Seller to compensate it for its share of future royalty payments the Company will be obligated to make pursuant to the New Silver Royalty that are attributable to Seller’s remaining interest in the Company after the sale of the Purchased Interests (the “Prepayment”).
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises and recitals, and the representations, warranties, covenants and other agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted by the Parties, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CERTAIN INTERPRETATIONS
Section 1.1 Definitions.  Unless the context otherwise requires, the following capitalized and other terms, when used in this Agreement, shall have the respective meanings specified below:
1933 Act” means the Securities Act of 1933, as amended.
 “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person; provided, however, that for clarity, neither Royal Gold nor Royal Alaska shall be considered an Affiliate of Seller or CORE for any purpose.
Agreement” is defined in the preamble.
Allocation Schedule” is defined in Section 2.7.
Balance Sheet Date” is defined in Section 3.6.
Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in Toronto, Ontario or Denver, Colorado.
Buyer” is defined in the preamble.
Buyer Indemnified Parties” means Buyer and its Affiliates and their respective Representatives, successors and assigns.
2

Claim” means a claim, demand, action, suit, litigation, charge, plea, complaint, petition, appeal, proceeding, arbitration or assessment, an investigation of which the target has been notified, a dispute commenced, or a demand or other proceeding, in each case at Law or in equity (whether civil, criminal or administrative).
Claim Response” is defined in Section 7.5(a).
Claims Notice” is defined in Section 7.5(a).
Closing” is defined in Section 2.3.
Closing Date” is defined in Section 2.3.
Code” means the Internal Revenue Code of 1986, as amended, and all regulations and guidance promulgated or issued pursuant thereto.
Company” is defined in the recitals.
Company Intellectual Property” is defined in Section 3.15(a).
Company LLC Agreement” means that Limited Liability Company Agreement between Seller and Royal Alaska dated January 8, 2015, as amended by (a) that Amendment No. 1 to Limited Liability Company Agreement dated as of November 10, 2017, and (b) that Amendment No. 2 to Limited Liability Company Agreement dated as of January 18, 2019.
Company Owned IP” means Intellectual Property owned by or exclusively licensed to the Company.
Company Owned Registered IP” means all Company Owned IP that is registered or issued by a Governmental Authority or subject to a pending application for registration or issuance with a Governmental Authority.
Confidentiality Agreement” means the Confidentiality Agreement dated as of April 30, 2020, by and between Kinross Gold Corporation, a corporation existing under the Business Corporations Act (Ontario) and CORE.
Consent” means any consent, approval, order or authorization of, or any declaration, filing or registration with, or any applicable notice or report to, or any waiver by, or any other action (whether similar or dissimilar to any of the foregoing), of, by or with, any Person or Governmental Authority, which is necessary in order to take a specified action or actions in a specified manner and/or to achieve a specified result.
Contract” means any legally binding mortgage, indenture, lease, contract, covenant, agreement, right, obligation, instrument, commitment, concession, franchise or license, whether written or oral.
CORE” is defined in the preamble.
3

CORE Interests is defined in the recitals.
CORE Representatives” is defined in Section 3.22.
CORE Shares is defined in the recitals.
Data Room” means the electronic data room hosted at ansarada.com labeled “Project Ptarmigan” the index of documents of which is appended to the Disclosure Schedule. When used in any representation in Article III, references to information being made available in the “Data Room” means that such information has been made available in the Data Room as of the day prior to the date of this Agreement.
Deductible” is defined in Section 7.2(b).
Disclosure Schedule” means that document identified as the Disclosure Schedule, dated as of the date of this Agreement, delivered by Seller and CORE to Buyer in connection with this Agreement.
Distribution” is defined in the recitals.
Distribution Agreement” is defined in the recitals.
“Domain Names” means rights or licenses to internet domain names and applications and registrations therefor.
Effective Date” is defined in the preamble.
Employee Plan” means (a) an employee benefit plan within the meaning of Section 3(3) of ERISA whether or not subject to ERISA; and (b) each stock option plan, stock purchase plan, restricted stock plan, equity based plan, phantom stock plan, bonus or incentive award plan, profit sharing plan, severance pay or separation plan, program or arrangement, deferred compensation arrangement or agreement, retirement plan, program or arrangement, employment, termination or other agreement, executive compensation plan, program, agreement or arrangements, change in control or retention plan, program or arrangement, supplemental income arrangement, vacation and paid time off plan, medical, dental, life or disability plan, program or arrangement, and any other employee benefit plan, agreement, and arrangement, not described in (a) above, in each case which the Company, sponsors, contributes to or has any obligation to contribute to with respect to any current or former employee of the Company (or their spouses, dependents, or beneficiaries) or under which the Company has or may have any liability, whether direct or indirect (including any such plan or other arrangement previously maintained by the Company under which liabilities remain outstanding).
Encumbrance” means any security interest, pledge, mortgage, lien (including any Tax lien), charge, encumbrance, adverse Claim, option, right of first refusal, easement, encroachment, reserve, servitude, indenture, deed of trust, right of way, license, lease, security agreement or restriction on transfer, excluding licenses of Intellectual Property.
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Environmental Claim” means any written Claim by any Governmental Authority or any Person made under or in accordance or connection with any Environmental Law.
Environmental Law” means any Law relating to reclamation or restoration of property; abatement of pollution; protection of the environment; protection of wildlife, including endangered species and public health and safety (as it relates to exposure to Hazardous Materials); protection of cultural or historic resources; management, treatment, storage, disposal, or exposure to, Hazardous Materials; releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or Hazardous Materials, to air, surface water and groundwater; and all other Laws relating to manufacturing, processing, distribution, use, treatment, storage, disposal, handling or transport of pollutants, contaminants, chemicals or industrial, toxic or Hazardous Materials.
Environmental Permit” means any Permit, letter, clearance, consent, waiver, closure, or exemption by a Governmental Authority required under or issued, granted, given, authorized by or made pursuant to any Environmental Law.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate” means any person or entity treated as a single employer with the Company pursuant to Section 414(b), (c), (m) or (o) of the Code and the regulations issued thereunder.
Estoppel Agreement” means that certain estoppel and agreement, dated September 29, 2020, obtained from Tetlin pursuant to Section 4.3 of the Tetlin Mineral Lease.
Financial Statements” is defined in Section 3.6.
GAAP” means United States generally accepted accounting principles.
Governmental Authority” means any federal, state, local or any foreign or other government, governmental, regulatory, judicial or administrative authority, agency or commission or any court, tribunal or other judicial body; provided that Tetlin shall not be a Governmental Authority for any purpose under this Agreement.
Governmental Fees” means all location fees, mining claim rental fees required under AS 38.05.211, payments in lieu of assessment work (if and to the extent required assessment work is not performed under AS 38.05.210), production royalty payments required under AS 38.05.212, and similar payments required by applicable Laws to locate and hold state mining claims, leasehold locations, and upland mining leases.
Governmental Order” means any legally binding order, writ, judgment, award, injunction, decree, stipulation or determination of any Governmental Authority, magistrate, arbitrator or arbitration panel, including any bankruptcy court or judge.
Hazardous Materials” means any chemical, material or substance defined or regulated as toxic, hazardous, infectious, explosive, radioactive, carcinogenic or mutagenic, or as a pollutant or contaminant, or as a waste, under any applicable Environmental Law and includes petroleum and petroleum products, asbestos containing materials and polychlorinated biphenyls, but excludes commercial cleaning products.
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Indebtedness” means (without duplication) the sum of all amounts owing by the Company to repay in full all amounts due and terminate all obligations (other than indemnity obligations that are not owing or outstanding) with respect to (a) all obligations for the payment of principal, interest, penalties, fees or other liabilities for borrowed money (including guarantees and notes payable) and collection costs thereof, incurred or assumed, (b) all obligations to reimburse the issuer of any letter of credit, surety bond, debentures, promissory notes, performance bond or other guarantee of contractual performance, in each case to the extent drawn or otherwise not contingent, (c) the capitalized portion of all obligations under direct financing leases and purchase money and/or vendor financing (in each case other than with respect to trade payables, accrued expenses, current accounts and similar obligations incurred in the ordinary course of business), (d) all obligations under any leases constituting capitalized leases in accordance with GAAP, (e) all indebtedness for the deferred purchase price of property or services and all earnouts and contingent payment obligations arising pursuant to any acquisition or divestiture, (f) all liabilities pursuant to or under any interest rate protection agreement and all hedging, derivative and swap liabilities, (g) all obligations secured by an Encumbrance on property owned or acquired by the Company, and (h) all guarantee or keep well obligations, including those in respect of obligations of the kind referred to in clauses (a) through (g) above.
Indemnification Claim” is defined in Section 7.5(a).
Indemnitee” is defined in Section 7.5(a).
Indemnitor” is defined in Section 7.5(a).
Insurance Policies” is defined in Section 3.19.
Intellectual Property” means (a) patents, patent applications, and statutory invention registrations (including any continuations, continuations-in-part, divisions, extensions, provisionals, reexaminations, reissues, renewals and revisions), inventions, invention disclosures, moral and economic rights of authors and inventors (however denominated), discoveries, improvements, methods and processes; (b) copyrights, copyright registrations and applications for registration thereof, and other published and unpublished works of authorship, including audiovisual works, collective works, software, compilations, databases, derivative works, literary works, mask works, and sound recordings; (c) trademarks, service marks, trade dress, trade names, and other indicia of origin, trademark and service mark registrations and applications for registrations thereof, corporate and business names and other source identifiers, trade names, trade dress, logos, and brand names, together with all goodwill associated therewith; (d) trade secrets to the extent protected by Law, technical data, customer lists, know-how, mask works, formulae, methods (whether or not patentable), designs, processes and procedures, and databases and data collections; and (e) Domain Names, uniform resource locators and other unique digital properties, including social media accounts, screen names, avatars, handles, and followers and the internet sites corresponding thereto.
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Knowledge of Seller” or “Knowledge” means the actual knowledge of the persons set forth in Section 1.1(a) of the Disclosure Schedule.
Law” means any constitution, treaty, statute, law, ordinance, regulation, rule, code, or other requirement of any Governmental Authority.
Leased Real Property” means the real property covered by the Tetlin Mineral Lease.
Liability” means, with respect to any Person, any liability, obligation, debt, commitment or guaranty of such Person of any kind or nature, whether known or unknown, accrued or unaccrued, absolute or contingent, asserted or unasserted.
Losses” means all losses, Liabilities, damages, costs, awards, penalties, fines, fees, settlement amounts, and expenses (including reasonable attorneys’ fees and expenses), including but not limited to interest which may be imposed in connection therewith, expenses of investigation, reasonable fees and disbursements of experts.
Material Contract” means each of the following Contracts:
(a) any Contract that (i) involves unpaid amounts to or from the Company in excess of US$100,000 in any 12-month period, (ii) involves aggregate unpaid payments to or from the Company in excess of US$250,000, or (iii) cannot be cancelled by the Company without penalty on not more than 60 days’ notice;
(b) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts to which the Company is a party or by which the Company is bound relating to the borrowing of money that is outstanding or may be incurred on the terms thereof, including any Contracts evidencing or otherwise relating to Indebtedness, other than accounts receivables and payables in the ordinary course of business;
(c) any Contract relating to the disposition or acquisition by the Company of any asset not in the ordinary course of business;
(d) any Contract creating an Encumbrance (other than Permitted Encumbrances) on any assets of the Company;
(e) any Contract for the grant of any option, right of first refusal or similar preferential right to purchase any material assets or properties of the Company;
(f) any partnership, joint venture or similar Contract;
(g) any lease (whether of real or personal property) involving payments by the Company in excess of US$10,000 in any 12-month period;
(h) any Contract that contains a “requirements” provision or other provision obligating a Person to purchase a minimum amount of any product or service from any other Person;
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(i) any Contract that limits or restricts the freedom of the Company to compete in any line of business or with any Person or in any geographic area or to solicit for employment or hire any Person, including any Contract containing an “area of interest” or similar geographic limitation on the acquisition of property by the Company;
(j) any Contract under which the Company is obligated to guaranty obligations of any Person;
(k) any staffing service agreement by which any Person provides personnel to the Company;
(l) any Contract that provides for any severance, change of control or retention arrangement, including with any independent contractor to the Company;
(m) any outstanding general or special powers of attorney executed by or on behalf of the Company;
(n) any Contract relating to the settlement of any pending Claim;
(o) any Contract with any Governmental Authority (excluding any Permits);
(p) shareholder agreements, voting agreements or other agreements relating to the transfer or voting of shares or other equity interests of the Company (excluding the Company LLC Agreement);
(q) any Contract between the Company and any Affiliate of the Company (excluding confidentiality agreements executed by Royal Alaska or Seller on behalf of the Company);
(r) any hedging, futures, options or other derivative Contract;
(s) any Contract with Tetlin, including the Tetlin Mineral Lease;
(t) the Royalty Agreement; and
(u) all easements or rights-of-way granted to the Company by any third party (excluding any lease for Leased Real Property).
Membership Interests” is defined in the recitals.
NewCo Assets” means the Transferred Assets other than the State Claims.
NewCo LLC” is defined in the recitals.
New Silver Royalty” means the additional production royalty on silver payable to Royal Gold pursuant to the Restated Royalty Agreement.
Option Agreement” means that certain Option Agreement, dated the date hereof, between NewCo LLC and the Company.
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Parties” and “Party” are defined in the preamble.
Permit” means any permit (including occupancy permit), certificate, license, franchise, registration, variance, exemption, order, consent or authorization issued or granted by any Governmental Authority.
Permitted Encumbrances” means (a) Encumbrances for Taxes, assessments, charges, levies or other Claims not yet due and payable; (b) Encumbrances for Taxes, assessments, charges, levies or other Claims the validity of which are being contested in good faith and which are described in Section 1.1(b) of the Disclosure Schedule; (c) mechanics, carriers’, workmen’s, repairmen’s and other statutory liens or similar Encumbrances that do not materially detract from the value of, or impair the use of, any of the assets of the Company; (d) easements, rights of way, and Encumbrances arising under applicable Laws, including by-laws, regulations, ordinances and similar instruments relating to development and zoning; (e) rights reserved to any Governmental Authority to regulate any assets or property of the Company, including all existing Permits; (f) the Royalties; (g) rights reserved by or granted to Tetlin under the Tetlin Mineral Lease; (h) rights and other Encumbrances reserved to or granted by Seller or Royal Alaska under the Company LLC Agreement; (i) Encumbrances created by this Agreement or any Related Agreement; (j) the Reclamation Bonds; (k) Encumbrances granted in the ordinary course of business to a public utility; (l) all rights reserved to or vested in any Governmental Authority by the terms of any mineral rights or other real property rights (including the right to terminate such mineral rights or real property rights or to require annual or periodic payments as a condition of the continuance thereof); (m) matters of public record on file in the Fairbanks Recording District as of the Effective Date; and (n) other imperfections of title or Encumbrances that do not materially detract from the value of, or materially impair the use of, any of the assets of the Company (other than the Tetlin Mineral Lease, but without limiting the application of clauses (a) through (l) to the Tetlin Mineral Lease).
Person” means any individual, entity, association, trust, unincorporated organization, Governmental Authority, Tetlin or other entity.
Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and the portion of any Straddle Period up to and including the Closing Date.
Prepayment” is defined in the recitals.
Prior Estoppel Agreement” is defined in Section 3.9(b).
Proceeding” is defined in Section 8.9.
Proportionate Share” means the percentage obtained by dividing the Purchased Interests by the total Membership Interests to be purchased by the Buyer pursuant to this Agreement and the Royal Purchase Agreement.
Purchased Interests” is defined in the recitals.
Real Property” means (a) the Leased Real Property, (b) the State Claims, (c) any other real property currently owned, leased or operated by the Company, and (d) any other real property owned, leased or operated by the Company as of immediately prior to the transactions contemplated by the Distribution Agreement.
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Reclamation Bonds” is defined in Section 3.16(b).
Related Agreements” means the Royalty Agreement, the Restated Royalty Agreement, the Distribution Agreement, and the Option Agreement.
Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata).
Representative” means, with respect to any Person, any and all directors, officers, managers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.
Response Period” is defined in Section 7.5(a).
Responsible Party” is defined in Section 7.5(b).
Restated Royalty Agreement” means that Omnibus Second Amendment and Restatement of Royalty Deeds and Grant and Deed of Additional Royalty between the Company and Royal Gold, dated September 29, 2020.
Royalty” or “Royalties” is defined in Section 3.13(e).
Royalty Agreement” means the Omnibus Amendment and Restatement of Royalty Deeds and Grant and Deed of Additional Royalty between the Company and Royal Gold, as amended.
Royal Alaska” is defined in the recitals.
Royal Gold” is defined in the recitals.
Royal Interests” is defined in the recitals.
Royal Purchase Agreement” is defined in the recitals.
Royal Transaction” is defined in the recitals.
Seller” is defined in the preamble.
Seller Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Authority and Enforceability); Section 3.3 (Organization and Qualification); Section 3.4 (Capitalization); Section 3.5 (Subsidiaries); Section 3.24 (Brokers); Section 4.1 (Organization); Section 4.2 (Authority and Enforceability); Section 4.4 (Purchased Interests) and Section 4.7 (Brokers).
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Seller Indemnified Parties” means Seller and its Affiliates and their respective Representatives, successors and assigns.
Seller Material Adverse Effect” means any event, occurrence, fact, condition, development, change or circumstance that, individually or in the aggregate, has resulted, or would reasonably be expected to result, in a material adverse effect on the condition (financial or otherwise), assets, liabilities, or results of operations of the Company, CORE, or Seller, or the value of the Purchased Interests; provided that “Seller Material Adverse Effect” shall not include any event, occurrence, fact, condition, development, change or circumstance arising out of or attributable to: (A) general economic or political conditions in the United States; (B) changes or developments that affect generally the mining business (including changes in commodity prices, general market prices and regulatory changes affecting the industry); (C) any changes in financial, banking or securities markets generally, including changes in interest rates and changes in exchange rates for the currencies of any countries; (D) any act of war by or against, or an escalation of hostilities involving, or an act of terrorism against, the United States; (E) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other weather conditions or epidemic, pandemic or disease outbreak (including the COVID-19 virus); (F) the announcement of this Agreement or the pendency or consummation of the transactions contemplated hereby (other than with respect to any representation or warranty that is intended to address the consequences of the execution or delivery of this Agreement or the announcement or consummation of the transactions contemplated hereby); (G) compliance with the terms of, or the taking of any action expressly required by this Agreement; or (H) changes in Law or other legal or regulatory conditions, or the interpretation thereof, or changes in GAAP or other accounting standards (or the interpretation thereof); provided further, however, that in the cases of the foregoing clauses (A) through (E) and clause (H), to the extent such matters disproportionately adversely affect the Company and its subsidiaries, taken as a whole, as compared to other similarly situated participants in the mining or mine finance industry, such adverse effects may be taken into account when determining whether a “Seller Material Adverse Effect” has occurred.
Seller Taxes” means (a) any and all forms of income Taxes of Seller or CORE imposed under applicable law as a result of the ownership of the CORE Interests for any Pre-Closing Tax Period (with the portion of any Straddle Period treated as a Pre-Closing Tax Period determined in accordance with Section 6.4(d)); (b) any and all income taxes imposed on the Company, or for which the Company may otherwise be liable, for any Pre-Closing Tax Period (with the portion of any Straddle Period treated as a Pre-Closing Tax Period determined in accordance with Section 6.4(d)); (c) any and all Taxes relating to Transfer Taxes allocated to Seller or CORE as provided for in Section 6.4(e); (d) any and all forms of income Taxes of any affiliated, consolidated, combined or unitary group (or any member thereof, other than the Company) of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date by reason of Treasury Regulations Section 1.1502-6 or any analogous or similar foreign, state or local Law; (e) any and all forms of income Taxes of any other Person for any Pre-Closing Tax Period (with the portion of any Straddle Period treated as a Pre-Closing Tax Period determined in accordance with Section 6.4(d)) for which the Company is or has been liable as a transferee or successor, by contract, or otherwise; provided, however, that with respect to clauses (b), (d) and (e) above, only the Tax Proportionate Share of any Tax described in such clause will constitute Seller Taxes.
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State Claims” means those State of Alaska unpatented mining claims described in Exhibit A attached hereto.
Straddle Period” means a Tax period that commences on or before the Closing Date and that ends after the Closing Date.
Survival Date” is defined in Section 7.1.
Tax Proportionate Share” means the percentage obtained by dividing the CORE Interests by the total Membership Interests immediately prior to the Closing.
Tax Returns” means any report, return, election, document, estimated Tax filing, declaration, claim for refund, information return, or other form filed or required to be filed with respect to Taxes.
Taxes” means any and all taxes, duties and other assessments in the nature of a tax and imposed by any Governmental Authority, including net income, gross income, license, payroll, employment, excise, severance, occupation, premium, windfall profits, ad valorem, environmental, capital stock, franchise, profits, payroll or employment or other withholding, health insurance, social security (or similar), unemployment, disability, real property, personal property, abandoned property, forfeitures, escheat, alternative or add-on minimum or estimated taxes, including any related interest, fines or penalties.
Tetlin” means the Native Village of Tetlin, a federally recognized Indian tribe organized pursuant to the Indian Reorganization Act, 25 U.S.C. § 476, under a Constitution and By-Laws approved on May 15, 1939, and ratified on March 20, 1940.
Tetlin Mineral Lease” means the Mineral Lease between Tetlin and the Company dated as of July 15, 2008, as amended by (a) that Amendment No. 1 to Mineral Lease dated effective October 1, 2009, (b) that Amendment No. 2 to Mineral Lease dated effective June 1, 2011, (c) that Amendment No. 3 to Mineral Lease dated effective July 1, 2011, (d) that Amendment No. 4 to Mineral Lease dated effective December 3, 2012, and (e) that Amendment No. 5 to Mineral Lease dated effective April 1, 2013.
Third Party Claim” is defined in Section 7.5(b).
Transfer Taxes” is defined in Section 6.4(e).
Transferred Assets” is defined in the Distribution Agreement.
Treasury Regulations” means the regulations promulgated by the U.S. Department of the Treasury under the Code.
Section 1.2   Other Interpretive Provisions.  With reference to this Agreement, unless otherwise specified herein, the following interpretive provisions shall apply: (a) the meanings of defined terms are equally applicable to the singular and plural forms of such defined terms; (b) the words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision hereof; (c) Article, Section and Exhibit references are references to the articles, sections and exhibits of this Agreement; (d) the term “including” is by way of example and not a limitation; (e) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form; (f) in the computation of periods of time from a specified date to a later specified date, (i) the word “from” means “from and including;” (ii) the words “to” and “until” each mean “to but excluding;” (iii) the word “through” means “to and including” and (iv) the word “within” means “from and through” the specified days; (g) Article and Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement; (h) references to any agreement or instrument referred to herein means such agreement or instrument as amended, modified, replaced or supplemented from time to time to the extent permitted by the applicable provisions thereof; (i) references to any Governmental Authority include any successor to that Governmental Authority; (j) references to any Law are to the Law as amended, modified, supplemented or replaced from time to time, and to any section of any Law are to any successor to the section; and (k) references to “US$” and “USD” are references to United States dollars.  Notwithstanding anything herein to the contrary, if the date on which any action is to be taken, performance or payment is to be made, or notice is to be delivered, pursuant to this Agreement is not a Business Day, then the action shall be taken, payment or performance shall be made, or the notice shall be delivered, on the next succeeding Business Day with the same force and effect as if made on such preceding Business Day without breach or other penalty hereunder.
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Section 1.3   Exhibits.  The Exhibits to this Agreement are incorporated herein and form an integral part hereof.  If an Exhibit is a form of agreement, such agreement, when executed and delivered by the parties thereto, shall constitute a document independent of this Agreement.
ARTICLE II
PURCHASE AND SALE
Section 2.1   Purchase and Sale of the Purchased Interests.  At the Closing, Seller shall sell and transfer to Buyer, free and clear of any and all Encumbrances (other than restrictions on subsequent transfer by Buyer under applicable state and federal securities Laws and rights and other Encumbrances reserved or granted under the Company LLC Agreement), and Buyer shall purchase from Seller, the Purchased Interests.
Section 2.2   Consideration.  At the Closing, Buyer shall (a) pay to Seller the cash amount equal to US$31,200,000, by wire transfer of immediately available funds, (b) cause the CORE Shares to be delivered to Seller, who will immediately distribute them to CORE to be held in treasury, and (c) deliver to Seller the Prepayment cash amount equal to US$1,200,000 by wire transfer of immediately available funds, for the Prepayment, subject to adjustment in accordance with Section 4.13 of the Amended and Restated Limited Liability Company Agreement of the Company.
Section 2.3   Closing.  The consummation of the transactions contemplated hereby (the “Closing”) shall occur simultaneously with the execution of this Agreement (the day on which the Closing takes place being referred to herein as the “Closing Date”) through the delivery and exchange by electronic mail in PDF or similar format between the Parties of all documents required to close the transactions contemplated by this Agreement on such date.
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Section 2.4   Closing Deliveries of Seller.  At the Closing, Seller shall deliver, or cause to be delivered, to Buyer or its designee:
(a) an instrument of transfer in respect of the Purchased Interests duly executed by Seller;
(b) good standing certificate (or its equivalent) of the Company as of a recent date from the Secretary of State of the State of Delaware;
(c) a non-foreign affidavit from Seller and CORE, in form and substance reasonably acceptable to Buyer, dated as of the Closing Date, sworn under penalty of perjury and in form and substance required by Sections 1445 and 1446(f) of the Code and the related Treasury Regulations stating that Seller is not a “foreign person” as defined in Sections 1445 and 1446(f) of the Code;
(d) executed certificates of the secretaries or assistant secretaries (or other authorized Person) of Seller and CORE, dated as of the Closing Date, which certify that attached thereto are true and complete copies of all resolutions adopted by the governing bodies of Seller and CORE authorizing the execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby; and
(e) the Estoppel Agreement, duly executed by Tetlin.
Section 2.5   Closing Deliveries of Buyer.  At the Closing, Buyer shall deliver, or cause to be delivered to Seller, or at its direction to CORE:
(a) a cash amount equal to US$31,200,000 by wire transfer of immediately available funds;
(b) evidence of the transfer of the CORE Shares reasonably acceptable to Seller;
(c) a cash amount equal to US$1,200,000 by wire transfer of immediately available funds; and
(d) an executed certificate of the secretary or an assistant secretary (or equivalent officer) of Buyer, dated as of the Closing Date, which certifies that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the other agreements and documents to be entered into by Buyer pursuant to this Agreement and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby.
Section 2.6    Withholding Taxes. Subject to Seller providing to Buyer at least one (1) day before the Closing the non-foreign affidavit described and required to be delivered pursuant to Section 2.4(c), above, Buyer, Seller and CORE agree that no withholding shall be required under the Code with respect to the payment of consideration pursuant to Section 2.2.
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Section 2.7   Allocation for U.S. Federal Income Tax Purposes. Buyer, Seller and CORE agree that any amounts treated as consideration for U.S. federal income Tax purposes shall be allocated among the assets of the Company in accordance with Section 751(a) of the Code and substantially as described in Section 2.7 of the Disclosure Schedule, as such schedule may be updated with the mutual consent of the Parties (the “Allocation Schedule”).  The Parties shall agree to a final Allocation Schedule within ninety (90) days following the Closing, and any dispute with respect to the final Allocation Schedule shall be submitted to an independent accountant whose fees shall be paid equally by the parties.  The Allocation Schedule shall be revised in a manner consistent with Section 751(a) of the Code to take into account any adjustments to the consideration under this Agreement, including any indemnification payments under Article VII.  The Parties shall not take any U.S. income Tax position (whether in audits, on Tax Returns, or otherwise) that is inconsistent with the Allocation Schedule unless required to do so by applicable Law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
Seller and CORE, jointly and severally, hereby represent and warrant to Buyer in respect of the Company as follows:
Section 3.1   Authority and Enforceability.  Subject to the valid approval by Royal Alaska of the Company’s entry into each Related Agreement: (a) the Company has all requisite limited liability company power and authority to execute, deliver and perform the Related Agreements and to consummate the transactions contemplated thereby, (b) the execution, delivery and performance by the Company of the Related Agreements and the consummation of the transactions contemplated thereby have been duly authorized by all necessary action on the part of the Company and no further action is required on the part of the Company to authorize the execution, delivery and performance by the Company of the Related Agreements and the consummation of the transactions contemplated thereby, and  (c)  each of the Related Agreements has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the other parties thereto, constitutes the valid and binding obligations of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and general principles of equity.
Section 3.2   No Conflict; Consents and Approvals.
(a) Subject to the valid approval by Royal Alaska of the Company’s entry into each Related Agreement, the execution, delivery and performance by the Company of each Related Agreement and the consummation of the transactions contemplated thereby, do not and will not: (i) conflict with or violate the Company LLC Agreement or other organizational documents of the Company; (ii) conflict with or violate any Law applicable to the Company or its businesses or by which the Company or any of its assets are bound; (iii) result in a breach of, constitute a default (or an event that with notice or lapse of time or both would become a default) under, impair the Company’s rights or alter the rights or obligations of any third party under, result in or give to others any rights of termination, suspension, revocation, amendment, or cancellation of, or acceleration of the performance required by, any Material Contract; or (iv) result in the creation of an Encumbrance other than a Permitted Encumbrance on any of the assets of the Company.
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(b) Except as set forth in Section 3.2(b) of the Disclosure Schedule, no Consent from any Governmental Authority is required to be obtained or made by the Company in connection with the execution, delivery and performance by Seller or CORE of this Agreement or the consummation of the transactions contemplated hereby.
(c) Except as set forth in Section 3.2(c) of the Disclosure Schedule, the Company will not be required to make any filing with or give any notice, or obtain any Consent, pursuant to any Material Contract in connection with the execution, delivery and performance by Seller or CORE of this Agreement or the consummation of the transactions contemplated hereby.
Section 3.3   Organization and Qualification.  The Company is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware.  Copies of the organizational documents of the Company, including each amendment thereto, are in the Data Room and are true, complete and in effect as of the date hereof.  The Company is not in violation of its organizational documents in any material respect.  The Company (a) has all necessary limited liability company power and authority to own its assets and to carry on its business as conducted on the date hereof and (b) is duly qualified to conduct its business and is in good standing in each jurisdiction in which the assets owned or leased by it or the operation of its business makes such qualification necessary, except where the failure to be so qualified or in good standing would not have a Seller Material Adverse Effect.
Section 3.4   Capitalization.
(a) Seller holds 60% of the Membership Interests, subject to all terms and conditions of the Company LLC Agreement.  Except for the CORE Interests and the Royal Interests, there are no other issued and outstanding membership interests, profits interest or other equity interests of the Company.
(b) There are no pre-emptive or other outstanding rights, options, warrants, conversion rights, unit appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments under which the Company is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or dispose of, any equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any equity interests, of the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(c) The Purchased Interests are not subject to any voting trust agreement or similar arrangement relating to the voting of such Purchased Interests other than the Company LLC Agreement.
Section 3.5   Subsidiaries.  The Company does not have and has never had any subsidiaries, other than NewCo LLC.
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Section 3.6   Financial Information.  Attached as Section 3.6 of the Disclosure Schedule are copies of (a) the unaudited balance sheet of the Company as of December 31, 2019 (the “Balance Sheet Date”) and related unaudited statements on income and cash flows for the period then ended, and (b) the audited balance sheet of the Company as of June 30, 2020 and the related audited statements on income and cash flows (collectively, the “Financial Statements”).  The Financial Statements have been prepared in accordance with the books and records of the Company and GAAP (other than the existence of notes and year-end adjustments, which will not individually or in the aggregate be material) applied on a consistent basis throughout the periods indicated. The Financial Statements present fairly, in all material respects, the consolidated financial condition and operating results of the Company as of the dates, and for the periods, indicated therein.  All of the books, records, and accounts of the Company are maintained in accordance with good business practice and all applicable Laws, accurately present and reflect in all material respects all of the transactions therein described, and are reflected accurately in the Financial Statements.
Section 3.7   Absence of Undisclosed Liabilities.  The Company does not have any Liabilities that are required to be recorded or reflected on its balance sheet under GAAP, other than Liabilities (a) reflected in, reserved against or described in the Financial Statements; (b) set forth in Section 3.7 of the Disclosure Schedule; or (c) incurred in the ordinary course of business subsequent to the Balance Sheet Date and which (i) are not and would not reasonably be expected to be material to the Company and (ii) are not liabilities for breach of contract, breach of warranty, tort, violation of Law or lawsuit.
Section 3.8   Absence of Certain Changes or Events.  Since the Balance Sheet Date, (a) there has not been any Seller Material Adverse Effect, and (b) except as set forth in Section 3.8 of the Disclosure Schedule or as contemplated in this Agreement or the Related Agreements, the Company has (i) conducted its businesses only in the ordinary course of business in all material respects and (ii) not taken or had occur any of the following actions or events:
(a) authorized for issuance, issued, sold, granted, pledged, delivered, transferred or assigned or agreed or committed to issue, sell, grant, pledge, deliver, transfer or assign any Membership Interests or other form of ownership interests of the Company or any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire any of the foregoing, or permit any Encumbrance to be imposed on any Purchased Interests or other form of ownership interests of the Company;
(b) split, combined, redeemed, subdivided, reclassified, purchased or otherwise acquired directly, or indirectly, any Membership Interests or any other ownership interests of the Company;
(c) acquired by merger or consolidation with, or purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person;
(d) made, declared, set aside or paid any distribution (whether in cash, stock or property) in respect of, any equity securities of the Company;
(e) sold, transferred, leased, licensed, assigned, pledged, encumbered or otherwise disposed of any of the assets of the Company, other than dispositions of obsolete equipment with not more than de minimis value or any other disposition in the ordinary course of business; provided, however, that, except as described in Section 3.8 of the Disclosure Schedule, and as contemplated pursuant to the Distribution Agreement, there have been no dispositions of all or any portion of the State Claims or the Tetlin Mineral Lease;
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(f) acquired properties or assets outside the ordinary course of business;
(g) purchased or leased (as lessor or lessee), or entered into any Contract for the purchase or lease (as lessor or lessee) of, any real property;
(h) made any change in any method of accounting or accounting practice or principle of the Company other than those required by GAAP or applicable Law;
(i) made or changed any material Tax election, filed any material Tax Return other than on a basis consistent with past practice, filed any amended Tax Return, adopted or changed any material accounting method for Tax purposes (unless required by Law), settled any material Tax claim or assessment relating to the Company, or surrendered any material right to claim a refund for Taxes;
(j) hired any Person as an employee or appointed any person as an officer;
(k) entered into or renewed any Contracts containing, or otherwise subjecting the Company to, any material restrictions on the operation of the business of the Company in the ordinary course of business following the Closing;
(l) made any loans, advances or capital contributions to, or investments in, any other Person;
(m) amended the Company LLC Agreement or other organizational documents of the Company;
(n) adopted a plan of complete or partial liquidation or dissolution;
(o) filed a petition in bankruptcy under any provisions of bankruptcy Law on behalf of the Company or consent to the filing of any bankruptcy petition against the Company;
(p) created, incurred, assumed, guaranteed, endorsed or otherwise became liable for any Indebtedness for borrowed money or guaranteed any such Indebtedness of another Person other than in connection with the financing of the operations of the Company in the ordinary course of business;
(q) mortgaged, pledged, or subjected to any Encumbrance (other than Permitted Encumbrances) any Real Property or other assets or properties of the Company; or
(r) entered into any Contract or binding letter of intent with respect to, or otherwise committed or agreed, whether or not in writing, to do any of the actions described in Section 3.8(a)-(q).
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Section 3.9       Legal Proceedings.

(a) Except as set forth in Section 3.9 of the Disclosure Schedule, (i) no material Claims by or against the Company are pending, or to the Knowledge of Seller, threatened, and (ii) there are presently no outstanding or unsatisfied Governmental Orders against the Company.  To the Knowledge of Seller, no Claim by or against the Company is pending or threatened, which seeks to delay or prevent the consummation of, or which would reasonably be expected to materially adversely affect, the ability of Seller, CORE or the Company to consummate the transactions contemplated by this Agreement.
(b) (i) In connection with formation of the Company, CORE and Tetlin entered into an Estoppel and Agreement, dated as of October 2, 2014 (the “Prior Estoppel Agreement”), certifying certain matters relating to the validity and good standing of the Tetlin Mineral Lease; and (ii) since entry into the  Prior Estoppel Agreement, the Company has not received from Tetlin any written notices (1) alleging a violation by the Company of any Law or Tetlin law or any Permit or permit issued under Tetlin law, or of any fine or penalty in connection with the same or (2) any assertion of Tetlin authority to condemn or otherwise expropriate any portion of the real property subject to the Tetlin Mineral Lease.
Section 3.10   Compliance with Laws.  The Company is, and has at all times since its formation been, in material compliance with all Laws applicable to the Company or its assets, properties, businesses or operations, and no written notices have been received by Seller, CORE or the Company alleging a material violation of any such Laws.  There are no outstanding fines imposed on the Company by any Governmental Authority, and to the Knowledge of Seller no such fines by any Governmental Authority are pending or threatened.
Section 3.11   PermitsSection 3.11 of the Disclosure Schedule sets forth a true and complete list of all material Permits held by the Company, other than (i) expired Permits and (ii) Permits exclusively related to the NewCo Assets.  All material Permits required for the Company to conduct its business as currently conducted have been obtained by it and are valid and in full force and effect, other than expired Permits which have been replaced or which are no longer required for the conduct of the Company’s business as currently conducted.  To the Knowledge of Seller, no condition exists that, with notice or lapse of time or both, would constitute a default under any such Permit or any continuing obligation under any expired Permit.  None of the representations and warranties contained in Section 3.11 shall be deemed to relate to environmental matters (which are governed by Section 3.16) (except to the extent that certain Permits listed in Section 3.11 of the Disclosure Schedule may constitute Environmental Permits), employment matters (which are governed by Section 3.17) or tax matters (which are governed by Section 3.18).
Section 3.12   Material ContractsSection 3.12 of the Disclosure Schedule sets forth a true, complete and correct list of each Material Contract. True and complete copies of each of the Material Contracts, including each amendment thereto, are in the Data Room. Each Material Contract is valid and in full force and effect, is legal, binding, and enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. The Company has performed all material obligations required to be performed by the Company to date under the Material Contracts, and has not violated any provision of, or committed or failed to perform in any material respect any act which, with or without notice, lapse of time or both would constitute a default under the provisions of, any Material Contract. None of Seller, CORE, or the Company has received notice from any other party to a Material Contract that such party intends to repudiate, cancel, terminate, suspend performance under, or decline to renew a Material Contract.
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Section 3.13   Real Property.
(a) Except as set forth in Section 3.13(a) of the Disclosure Schedule: (i) the Company has a valid leasehold interest that is in full force and effect in each lease included in the Leased Real Property; (ii) the Company’s interest in each lease included in the Leased Real Property is free and clear of all Encumbrances, except for Permitted Encumbrances; (iii) to the Knowledge of Seller, there is no pending or threatened condemnation, eminent domain, taking or similar proceeding with respect to, any of the Leased Real Property; (iv) the Company is not in material default under the Tetlin Mineral Lease and, to the Knowledge of Seller, no event has occurred which, with notice or lapse of time or both, would become a default or breach in any material respect by the Company, or would permit the termination thereof. All ad valorem taxes assessed against the Company with respect to the Leased Real Property have been timely and properly paid.
(b) The Company, subject to the paramount title of the State of Alaska, and except as set forth in Section 3.13(b) of the Disclosure Schedule or as contemplated by this Agreement, the Royalty Agreement, the Restated Royalty Agreement or the Distribution Agreement, as of immediately prior to the transactions contemplated by this Agreement and the Distribution Agreement, (i) was the holder of an undivided 100% legal and beneficial interest in the State Claims; (ii) has not granted or created any Encumbrances, other than the Permitted Encumbrances against the State Claims; (iii) has not granted any Person: (A) the right to use the State Claims or any royalty or other interest whatsoever in production from the State Claims, or (B) other than as described in this Agreement, the Royalty Agreement, the Restated Royalty Agreement or the Distribution Agreement, any back-in rights, earn-in rights, rights of first refusal or similar provisions or rights which would adversely affect the Company’s interest in the State Claims; (iv) has maintained tenure to the State Claims in good standing, including paying, in a timely manner, all Governmental Fees, timely performing qualifying amounts of eligible assessment work as required to maintain tenure in good standing and timely making all required Governmental Authority filings; and (v) has not done or omitted to do anything that might cause any of the State Claims to be liable to forfeiture or abandonment due to any failure to comply with any provisions of AS 38.05 or 11 AAC Chapter 86, and to the extent that assessment work obligations in respect of any part of the State Claims have not been met in full, has paid all Governmental Fees or received all necessary waivers or extensions and has complied with the same.
(c) Except as set forth in Section 3.13(c) of the Disclosure Schedule, the current uses of and the conduct of the business of the Company on the State Claims and the Leased Real Property comply in all material respects with all applicable Laws, including Laws in respect of any zoning and other regulations affecting the State Claims and the Leased Real Property.
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(d) Except as described in Section 3.13(d) of the Disclosure Schedules, there is legal access to and from the State Claims and the Leased Real Property.
(e) Section 3.13(e) of the Disclosure Schedule sets forth a true, complete and correct list of all royalties, overriding royalties, net profit interests, and payments on or out of production in each case, by which any of the State Claims or the Company’s interest in each lease included in the Leased Real Property is burdened to the Knowledge of Seller (each, a “Royalty” and collectively, the “Royalties”).  Except as set forth on Section 3.13(e) of the Disclosure Schedule, all advance minimum royalty obligations under the Tetlin Mineral Lease have been timely and properly paid.
(f) Since its formation, except as contemplated by this Agreement, the Royalty Agreement, the Restated Royalty Agreement or the Distribution Agreement, the Company has not granted any farm-in or earn-in rights, back-in rights, rights of first refusal, rights of first offer, option rights, area of interest rights or similar rights or provisions which could affect the Leased Real Property.
(g) Neither Seller nor CORE has Knowledge of any active oil or gas operations currently being conducted by any third party on or in any of the State Claims or the Leased Real Property.
(h) The Company does not own or hold any water rights, including water leases and water supply agreements, ditch rights or other interests in water conveyance rights.  Each material Permit relating to water usage on the Tetlin Mineral Lease or the State Claims is set forth in Section 3.11 of the Disclosure Schedule.
(i) Except as set forth in Section 3.13(i) of the Disclosure Schedule, as of the Effective Date, the Real Property constitutes all of the real property owned, leased or operated by the Company.
Section 3.14   Tangible Assets.  The Company (a) has good and valid title to the material tangible assets that it owns, free and clear of all Encumbrances other than Permitted Encumbrances, and (b) has a valid leasehold interest in all material tangible assets that it leases, free and clear of all Encumbrances other than Permitted Encumbrances.
Section 3.15   Intellectual Property.
(a) Section 3.15(a) of the Disclosure Schedule sets forth a true, complete and correct list of all (i) Company Owned Registered IP, and (ii) all material Intellectual Property owned, used, filed by or licensed to the Company (the Intellectual Property described in clauses (i) and (ii), collectively, the “Company Intellectual Property”).
(b) To the Seller’s Knowledge, the Company owns or has the right to use all Company Intellectual Property necessary to conduct the business as currently conducted.
(c) To the Seller’s Knowledge: (i) the Company’s use of the Company Intellectual Property does not infringe, violate or misappropriate the Intellectual Property of any Person; and (ii) no Person is infringing, violating or misappropriating any Company Intellectual Property.
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Section 3.16   Environmental Matters.
(a) Except as set forth in Section 3.16(a) of the Disclosure Schedule, (i) the Company is and has been, and its business, assets and properties, including the State Claims and the Leased Real Property and any other Real Property, are and have been owned, leased, and operated, in compliance in all material respects with all applicable Environmental Laws; (ii) none of Seller, CORE or the Company has received (1) from any Person any Environmental Claim related to the Real Property or (2) any written notice alleging that the Company is in material violation of, or is materially liable under, any Environmental Law; and (iii) neither Seller nor CORE has Knowledge of any Environmental Claim related to the Real Property.
(b) Except as set forth in Section 3.16(b)(i) of the Disclosure Schedule, the Company is in material compliance with all of the Environmental Permits listed in Section 3.11 of the Disclosure Schedule, has obtained and provided to or posted with the appropriate Governmental Authority all reclamation bonds or other surety recognized in connection therewith, all of which are listed in Section 3.16(b)(ii) of the Disclosure Schedule (the “Reclamation Bonds”), and all such Environmental Permits and Reclamation Bonds are current and in full force and effect and have not been revoked, suspended, canceled or terminated, and, to the Knowledge of Seller, no notice has been given of any threatened revocation, suspension, cancellation or termination thereof.
(c) Except as set forth in Section 3.16(c) of the Disclosure Schedule, to the Knowledge of Seller (i) there has been no material Release of Hazardous Materials by the Company in contravention of Environmental Laws with respect to the business or assets of the Company or on, at, from, or under the Real Property, and (ii) none of Seller, CORE or the Company has received a written notification, and neither Seller nor CORE has Knowledge, that any Real Property (including soils, groundwater, and surface water located on or within any such Real Property) has been the source of or subject to any Release of or contaminated with any Hazardous Material which would reasonably be expected to result in an Environmental Claim against, or a violation of Environmental Laws or the terms of any Environmental Permit held by, or any material liability to or obligation on the part of, the Company.
(d) All material environmental reports, records, sampling data, site assessments and other similar documents relating to the Real Property prepared by or for the Company are included in the Data Room.
(e) Notwithstanding any other provision of this Agreement, except for Section 3.6 (Financial Information), Section 3.7 (Absence of Undisclosed Liabilities), and Section 3.11 (Permits), the representations and warranties set forth in this Section 3.16 are the sole and exclusive representations and warranties with respect to Environmental Laws, Hazardous Materials, and other environmental matters.
Section 3.17   Employee Matters.  The Company does not have, and has never had, any employees. The Company (i) has never sponsored or maintained, contributed to, or been obligated to contribute to an Employee Plan, and (ii) has not incurred any liability that has not been satisfied in full and is not reasonably likely to incur any liability (including as a result of being an ERISA Affiliate of a person or entity) with respect to any Employee Plan.  Neither the Company nor any ERISA Affiliate has ever contributed to or been obligated to contribute to (i) a “defined benefit plan,” as defined in Section 3(35) of ERISA, that is subject to Title IV of ERISA, (ii) a “multiemployer plan,” as defined in Section 3(37) of ERISA, or (iii) a plan that is subject to the minimum funding standards under Section 302 of ERISA or Section 412 of the Code.
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Section 3.18   Taxes.
(a) Except as set forth in Section 3.18(a) of the Disclosure Schedule, the Company has timely filed or caused to be timely filed (taking into account any applicable extension of time within which to file) with the appropriate taxing authorities all material Tax Returns it was required to file.  Such Tax Returns are true, complete and correct in all material respects.  All material Taxes required to be paid by the Company (whether or not shown on any Tax Return) that have become due and payable have been paid.
(b) Except as set forth in Section 3.18(b) of the Disclosure Schedule, the Company is not the subject of an audit or other examination of Taxes by any taxing authority and has not received written notification that such an audit is contemplated or pending.
(c) The Company (i) has not entered into an agreement or waiver extending any statute of limitations relating to the assessment, payment or collection of any Taxes of the Company that has not expired, (ii) is not presently contesting the Tax liability of the Company before any court, tribunal or agency, (iii) has not granted a power-of-attorney relating to any Tax matters to any Person that is currently in effect, (iv) is not the beneficiary of any extension of time within which to file any Tax Return that has not expired and (v) has not applied for or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company.
(d) All material Taxes which the Company was required by Law to withhold or collect in connection with amounts paid or owing to any member, creditor or other third party have been duly withheld or collected and paid over to the appropriate taxing authority and all Tax Returns (including Forms W-2 and 1099) required with respect thereto have been properly completed and timely filed. The Company has no liability arising since its formation with respect to any employee withholding, payroll, or employment Taxes.
(e) No Claim, that has not been resolved in the Company’s favor, has ever been made by any taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction.
(f) There are no liens for Taxes (other than for Taxes not yet due and payable) on any of the assets of the Company and, to the Knowledge of Seller, there is no basis for the assertion of any Claim relating or attributable to Taxes which, if adversely determined, would result in any lien on the assets of the Company.
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(g) The Company is not a party to any Tax allocation, Tax sharing or similar agreement or other agreement or arrangement with respect to Taxes that could affect the Tax liability of Buyer or its Affiliates.
(h) The Company (i) has at no time been classified as a corporation for federal Tax purposes and therefore has not at any time been a member of an affiliated group of corporations filing a consolidated federal income Tax Return or corporate group filing combined Tax Returns or similar group for state, local or foreign Tax purposes and (ii) has no liability arising since its formation for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee or successor, by contract, or otherwise.
(i) The Company will not be required to include any income or gain or exclude any deduction or loss from taxable income for any taxable period or portion thereof on or after the Closing as a result of any (i) change in method of accounting made prior to the Closing, (ii) closing agreement under Section 7121 of the Code executed prior to the Closing, (or in the case of each of (i) and (ii), under any similar provision of applicable Law), (iii) installment sale or open transaction disposition consummated prior to the Closing, or (iv) prepaid amount received prior to the Closing.
(j) To the Knowledge of the Seller, the Company has not participated in a “reportable transaction” as that term is defined in Treasury Regulations Section 1.6011-4.
(k) The Company has not distributed stock of another Person, or had its stock or equity interests distributed by another Person, in a transaction that was intended to be governed by Section 355 or 361 of the Code.
(l) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in combination with another event) will result in the payment of any amount that would, alone or in combination with another payment, not be deductible by reason of Code Section 280G.
(m) The prices and terms for the provision of any property or services between the Company and any of its Affiliates are arm’s length for purposes of the relevant transfer pricing Laws and have not been determined with a purpose to obtain any reduction in Taxes or other Tax benefit, and the Company has complied with all contemporaneous documentation and disclosure requirements under applicable transfer pricing Laws.
(n) To the Knowledge of the Seller, the Company has been properly treated as a partnership or “disregarded as an entity separate from its owner” within the meaning of Treasury Regulations Section 301.7701-3(b)(1)(ii) for U.S. federal income Tax purposes and for purposes of any applicable state or local Tax that follows U.S. federal income Tax treatment regarding entity classification.
(o) Seller has paid or has made reasonable provision for the payment of any Seller Taxes that are due and owing as of the Closing Date.
Section 3.19   InsuranceSection 3.19 of the Disclosure Schedule contains a true, complete and correct list of (a) all insurance policies covering the assets, business, equipment, properties, employees, officers and operations of the Company (the “Insurance Policies”), and (b) all material claims made against the Insurance Policies in the last three years. Except as set forth in Section 3.19 of the Disclosure Schedule, there is no claim by the Company pending under any of such Insurance Policies as to which coverage has been questioned, denied or disputed by the underwriters of such Insurance Policies.  Such Insurance Policies are in full force and effect, all premiums due and payable under all such policies and bonds have been paid (or if installment payments are due, will be paid if incurred prior to the Closing) and the Company is otherwise in material compliance with the terms of such policies and bonds.  Neither Seller nor CORE has Knowledge of any threatened termination, cancellation, or non-renewal of, or material premium increase with respect to, any of such policies.
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Section 3.20   No Expropriation.  As of the date of this Agreement, no property or asset of the Company has been taken or expropriated by any Governmental Authority, nor does Seller or CORE have Knowledge that any notice or proceeding in respect thereof has been given or commenced, nor does Seller or CORE have Knowledge of any intent or proposal to give any such notice or commence any such proceeding.
Section 3.21   Bank Accounts and Powers of AttorneySection 3.21 of the Disclosure Schedule sets forth a complete and accurate list showing the name of each bank, trust company or similar institution in which the Company has accounts or safety deposit boxes, the number or designation of each such account and safety deposit box and the names of all Persons authorized to draw thereon or to have access thereto and showing the name of each Person holding a general or special power of attorney from the Company and a summary of the terms thereof.
Section 3.22   Anticorruption.  No person serving as a Seller representative on the Management Committee (the “CORE Representatives”), nor, to the Knowledge of Seller, any agent, consultant, representative or other Person engaged by Seller, CORE or the CORE Representatives on behalf of the Company, has, directly or indirectly, in violation of any applicable Law (including without limitation the Foreign Corrupt Practices Act of 1977, as amended): (a) made, offered to make, or authorized any contribution, gift, bribe, rebate, payoff, influence payment, improper payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services, (i) to obtain favorable treatment in securing business, permit(s) or approval(s), or to pay for favorable treatment for business, permit(s) or approval(s) already secured or (ii) to obtain special concessions or to pay for special concessions already obtained; or (b) established or maintained any fund or other asset that has not been properly recorded in the books and records of the Company.
Section 3.23   Affiliate Transactions.  Except as set forth in Section 3.23 of the Disclosure Schedule, none of Seller, CORE, any Affiliate of Seller or CORE (other than the Company), or any CORE Representative or, to the Knowledge of Seller, any other member of the Management Committee (a) is party to any Contract with the Company, or (b) owns or has any interest in any property or right, tangible or intangible, that is used in the businesses of the Company as currently conducted.
Section 3.24   Brokers.  Except as set forth in Section 3.24 of the Disclosure Schedule, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any agreement, arrangement or understanding made by or on behalf of Seller or the Company.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND CORE
Seller and CORE, jointly and severally, hereby represent and warrant to Buyer as follows:
Section 4.1   Organization.
(a) Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Seller (i) has all necessary company power and authority to own its assets and to carry on its business as conducted on the date hereof and (ii) is duly qualified to conduct its business and is in good standing in its jurisdiction of organization.
(b) CORE is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. CORE (i) has all necessary corporate power and authority to own its assets and to carry on its business as conducted on the date hereof and (ii) is duly qualified to conduct its business and is in good standing in its jurisdiction of organization.
Section 4.2   Authority and Enforceability.
(a) Each of Seller and CORE has all requisite company or corporate power, as applicable, and authority to execute, deliver and perform this Agreement and the Distribution Agreement and to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by Seller and CORE, as applicable, of this Agreement and the Distribution Agreement and the consummation of the transactions contemplated hereby and thereby  have been duly authorized by all necessary action on the part of Seller and CORE, as applicable, and no further action is required on the part of Seller or CORE to authorize the execution, delivery and performance by Seller or CORE of this Agreement and the Distribution Agreement and the consummation of the transactions contemplated hereby and thereby. This Agreement and the Distribution Agreement have been duly executed and delivered by Seller and CORE, as applicable, and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of Seller and CORE, as applicable, enforceable against Seller and CORE, as applicable, in accordance with their respective terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and general principles of equity.
Section 4.3   No Conflict; Consents and Approvals.
(a) The execution, delivery and performance by Seller and CORE, as applicable, of this Agreement and the consummation of the transactions contemplated hereby, do not and will not: (i) conflict with or violate the articles of incorporation, bylaws or other organizational documents of Seller or CORE; (ii) conflict with or violate in any material respect any Law applicable to Seller or CORE or the business of Seller or CORE or by which Seller or CORE or any of the assets of Seller or CORE are bound; (iii) result in any breach of, constitute a default (or an event that with notice or lapse of time or both would become a default) under, impair Seller’s rights or CORE’s rights or alter the rights or obligations of any third party under, except as set forth in the Company LLC Agreement result in or give to others any rights of termination, suspension, revocation, amendment, or cancellation of, or acceleration of the performance required by, any Contract to which Seller or CORE is a party or by which it is bound; or (iv) result in the creation of an Encumbrance on the Purchased Interests in favor of any third party (other than Buyer), except, in the case of the foregoing clauses (i) through (iv), to the extent the same would not, individually or in the aggregate, impair or delay, or reasonably be expected to impair or delay, Seller’s or CORE’s ability to consummate the transactions contemplated hereby.
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(b) Except as set forth in Section 4.3(b) of the Disclosure Schedule, no Consent from any Governmental Authority is required to be obtained or made by Seller or CORE in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby.
(c) Except as set forth in Section 4.3(c) of the Disclosure Schedule, neither Seller nor CORE are or will be required to make any filing with or give any notice, or obtain any Consent, pursuant to any material Contract to which Seller or CORE is a party or to which it is bound in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby, except to the extent that the failure to make such filing or to give such notice or to obtain such Consent would not, individually or in the aggregate, impair or delay, or reasonably be expected to impair or delay, Seller’s or CORE’s ability to consummate the transactions contemplated hereby.
Section 4.4   Purchased Interests. Except as set forth in the Company LLC Agreement, the Purchased Interests held by Seller are free and clear of all Encumbrances, other than restrictions on resale or transfer under applicable state and federal securities Laws. Except for the Company LLC Agreement, neither Seller nor CORE is a party to (a) any option, warrant, purchase right or other Contract or commitment (other than this Agreement) that could require Seller to sell, transfer or otherwise dispose of any of the Purchased Interests, or (b) any voting trust, proxy, or other Contract or understanding with respect to the Purchased Interests.
Section 4.5   Litigation.  No Claim is pending or, to the Knowledge of Seller, threatened, which seeks to delay or prevent the consummation of, or which would reasonably be expected to materially adversely affect Seller’s or CORE’s ability to consummate, the transactions contemplated by this Agreement.  None of Seller, CORE or any of their assets is subject to any Governmental Order, nor, to the Knowledge of Seller, are there any Governmental Orders threatened to be imposed by any Governmental Authority that would reasonably be expected to have a material adverse effect on the ability of Seller or CORE to perform their obligations under this Agreement and the consummation of the transactions contemplated hereby or thereby.
Section 4.6   Solvency.  After giving effect to the consummation of the transactions contemplated hereby and any related transaction, each of Seller and CORE (a) will be solvent (in that both the fair value of its assets will not be less than the sum of its debts and that the present fair saleable value of its assets will not be less than the amount required to pay its probable liability on its debts as they become absolute and matured), (b) will have adequate capital with which to engage in its business and (c) will not have incurred and will not plan to incur debts beyond its ability to pay as they become absolute and matured.  No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of Seller, CORE or the Company.
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Section 4.7   Brokers. Except as set forth in Section 4.7 of the Disclosure Schedule, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any agreement, arrangement or understanding made by or on behalf of Seller or CORE.
Section 4.8   No Other Representations and Warranties. Except for the representations and warranties contained in Article III or this Article IV (including the related portions of the Disclosure Schedule), none of Seller, CORE, the Company or any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller, CORE, or the Company, including any representation or warranty as to the accuracy or completeness of any information regarding Seller or CORE furnished or made available to Buyer and its Representatives and any information, documents or material made available to Buyer in the Data Room, management presentations or in any other form in expectation of the transactions contemplated hereby or as to the future revenue, profitability or success of the Company, or the presence of a discovery of valuable minerals on any of the Real Property, or the existence, quantity, quality, developability, recoverability, or value of any minerals or mineral products that might be found on, in or under any of the Real Property or extracted therefrom, or any representation or warranty arising from statute or otherwise in law.  NONE OF SELLER, CORE, THE COMPANY OR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING (I) ANY MATTER IN RESPECT OF TETLIN LAW OR (II)  IN RESPECT OF ANY OF THE NEWCO ASSETS OR ASSUMED LIABILITIES (AS DEFINED IN THE DISTRIBUTION AGREEMENT), AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller and CORE as follows:
Section 5.1   Organization. Buyer is a corporation organized, validly existing and in good standing under the Laws of the State of Delaware. Buyer (a) has all necessary corporate power and authority to own its assets and to carry on its business as conducted on the date hereof and (b) is duly qualified to conduct its business and is in good standing in each jurisdiction in which the assets owned or leased by it or the operation of its business makes such qualification necessary, except, in the case of this clause (b), to the extent that the failure to be so qualified or to be in good standing would not reasonably be expected to have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement and the consummation of the transactions contemplated hereby and thereby.
Section 5.2   Authority and Enforceability.  Buyer has all requisite corporate or other organizational power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other organizational action on the part of Buyer and no further action is required by Buyer to authorize the execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Buyer and assuming the due authorization, execution and delivery by the other parties hereto, constitutes the valid and binding obligations of Buyer enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and general principles of equity.
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Section 5.3   No Conflict; Governmental Consents and Approvals.
(a) The execution, delivery and performance by Buyer of this Agreement, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the articles of incorporation, bylaws or other organizational documents of Buyer; (ii) conflict with or violate in any material respect any Law applicable to Buyer or its business or by which such Buyer or any of its assets are bound; or (iii) result in any material breach of, constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, materially impair Buyer’s rights or alter the rights or obligations of any third party under, result in or give to others any rights of termination, suspension, revocation, amendment, or cancellation of, or acceleration of the performance required by, any Contract to which Buyer is a party or by which it is bound, except, in the case of any of the foregoing, to the extent the same would not, individually or in the aggregate, impair or delay, or reasonably be expected to impair or delay, Buyer’s ability to consummate the transactions contemplated hereby.
(b) No Consent from any Governmental Authority is required to be obtained or made by Buyer in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby.
Section 5.4   Litigation.  No Claim is pending or, to the knowledge of Buyer threatened, which seeks to delay or prevent the consummation of, or which would reasonably be expected to materially adversely affect Buyer’s ability to consummate, the transactions contemplated by this Agreement.  None of Buyer or any of its respective assets are subject to any Governmental Order, nor, to the knowledge of Buyer, are there any Governmental Orders threatened to be imposed by any Governmental Authority that would reasonably be expected to have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement and the consummation of the transactions contemplated hereby.
Section 5.5   CORE Shares. Subject to the closing of the Royal Transaction, Buyer has the sole right to be the beneficial and record owner of the CORE Shares, free and clear of all Encumbrances, other than restrictions on resale or transfer under applicable state and federal securities Laws. Buyer is not a party to (a) any option, warrant, purchase right or other Contract or commitment (other than this Agreement) that could require Buyer to sell, transfer or otherwise dispose of any of the CORE Shares, or (b) any voting trust, proxy, or other Contract or understanding with respect to the CORE Shares.
Section 5.6   Brokers.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any agreement, arrangement or understanding, written or oral, made by or on behalf of Buyer, other than any such agreement or arrangement as would not result in any Liability to Seller or CORE.
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Section 5.7   Curative Title Work.  Buyer acknowledges that the Company has undertaken certain curative title work, as described in Section 5.7 of the Disclosure Schedule, and that such curative title work has been performed in full to Buyer’s satisfaction.
Section 5.8   Investment Intent.  Buyer acknowledges that the Purchased Interests have not been registered under the 1933 Act and that the Purchased Interests may not be resold absent such registration or unless an exemption therefrom is available.  Buyer is an “accredited investor” within the meaning of Rule 501(a) of Regulation D of the 1933 Act and is acquiring the Purchased Interests for its own account, for investment purposes only, and not with a view toward distribution thereof.
Section 5.9   Non-Reliance of Buyer. Buyer has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) and assets of the Company, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company for such purpose.  Except for the specific representations and warranties expressly made by Seller and CORE regarding the Company in Article III and Seller and CORE in Article IV, Buyer acknowledges that (a) none of Seller, CORE or the Company, nor any of their respective Affiliates nor any other Person has made any representation or warranty, express or implied, as to the Company, Seller, CORE or any of their respective businesses, assets, liabilities, operations, prospects, conditions (financial or otherwise), including with respect to the effectiveness or success of the Company’s, Seller’s or CORE’s operations, exploration activities or future capital raising activities and (b) no officer, agent, representative or employee of the Company, Seller or CORE has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in this Agreement. Buyer specifically disclaims that it is relying upon or has relied upon any representations or warranties that may have been made by any Person except specific representations and warranties expressly made by Seller and CORE regarding the Company in Article III and Seller and CORE in Article IV.
Section 5.10   Financial Ability. Buyer’s obligations hereunder are not subject to any conditions regarding its ability to obtain financing for the transactions evidenced by this Agreement.  Buyer has sufficient cash in immediately available funds with which to pay in full the consideration due under this Agreement, consummate the transactions contemplated by this Agreement and perform its obligations hereunder.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1    Public Disclosure.  No public announcement or disclosure will be made by Buyer, on the one hand, or Seller or CORE, on the other hand, with respect to the subject matter of this Agreement or any of the Related Agreements without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed); provided, however, that the provisions of this Section 6.1 will not prohibit any disclosure to the extent required by any applicable Law or stock exchange rule (in which case the disclosing Party will provide the other Party with the opportunity to review in advance of the disclosure), or to the extent any disclosure is required to be made as a result of enforcement of any right or remedy relating to this Agreement, or any of the Related Agreements.
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Section 6.2   Commercially Reasonable Efforts.  Subject to the terms and conditions set forth herein, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement and the Related Agreements, including by executing or delivering any additional instruments reasonably necessary to consummate the transactions and to fully carry out the purposes of this Agreement.
Section 6.3   Regulatory Filings.  Each Party shall coordinate and cooperate with one another and use its commercially reasonable efforts to comply with, and refrain from taking any action that would impede compliance with, all Laws applicable to the transactions contemplated hereby and to seek all approvals of any Governmental Authority that are necessary for such Party, or as applicable the Parties, to consummate the transactions contemplated hereby.
Section 6.4   Tax Matters.
(a) Royal Gold shall prepare and timely file or cause to be prepared and timely filed with the appropriate authorities all Tax Returns required to be filed by the Company on or before the Closing Date. All such Tax Returns shall be prepared on a basis consistent with the past practice of the Company (except as otherwise required by applicable Law).
(b) Buyer shall prepare and timely file or cause to be prepared and timely filed with the appropriate authorities all Tax Returns required to be filed by the Company for all Pre-Closing Tax Periods due after the Closing Date.  All such Tax Returns shall be prepared on a basis consistent with the past practice of the Company (except as otherwise required by applicable Law) and in a manner that does not distort as between taxable periods beginning on or before the Closing Date and taxable periods beginning after the Closing Date or, as to taxable periods beginning before and ending after the Closing Date, between the periods before and after the Closing Date (e.g., by deferring deductions or accelerating income).
(c) Seller shall have the obligation to pay any Seller Taxes shown as due and payable by the Company on Tax Returns filed pursuant to Section 6.4(b) with respect to a Pre-Closing Tax Period.  Seller shall pay to the Company any such Taxes due from the Company (such payment to be made no later than three Business Days before the Company is required to file the applicable Tax Return with the applicable Governmental Authority, taking into account any extensions timely filed by the Company).
(d) For purposes of determining the amount of Taxes that are payable for a Straddle Period, the portion of such Taxes that relates to the portion of the Straddle Period treated as a Pre-Closing Tax Period shall (i) in the case of Taxes that are imposed on a periodic basis with respect to the assets or capital of the Company, be deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of days in the portion of the period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period and (ii) in the case of all other Taxes, be deemed equal to the amount of Taxes that would be payable if the relevant Straddle Period ended on and included the Closing Date (at the end of the day on the Closing Date), provided that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on and including the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period.  For the avoidance of doubt, the share of the Company's income, gain, deduction and loss allocable to Seller for the portion of the Straddle Period ending on and including the Closing Date shall be determined using the interim closing of the books method under Section 706 of the Code.
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(e) All transfer, documentary, filing, recording, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) imposed upon the sale by Seller to Buyer of the Purchased Interests pursuant to this Agreement (the “Transfer Taxes”) shall be borne by equally (50%/50%) by Seller and Buyer.  Seller, CORE and Buyer shall cooperate in timely making all filings, returns, reports and forms as necessary or appropriate to comply with the provisions of all applicable Tax Laws in connection with the payment of such Transfer Taxes.  Buyer, Seller and CORE shall cooperate to file, or cause to be filed, all necessary Tax Returns and other documentation with respect to all Transfer Taxes and shall cooperate in good faith to minimize, to the fullest extent possible, the amount of any such Transfer Taxes.
(f) The Company has in effect (or if not now in effect, will make) an election under Section 754 of the Code for the taxable year that includes the Closing Date.
(g) Buyer shall promptly pay over to Seller any refund or credit that Buyer, the Company or any Affiliate of Buyer or the Company receive after the Closing Date with respect to Seller Taxes.
(h) To the extent any approvals of Seller are required under the Company LLC Agreement to implement the provisions of this Section 6.4, after reasonable written notice to Seller as to such approvals and a reasonable time for Seller to review the approval sought, Seller shall grant such approvals.
Section 6.5   Post-Closing Actions.  On the day immediately following the Closing, Buyer and Seller agree to execute the Amended and Restated Limited Liability Company Agreement in the form attached hereto as Exhibit B.
ARTICLE VII
SURVIVAL; INDEMNIFICATION
Section 7.1   Survival of Representations and Warranties.  All representations and warranties of Seller, CORE and Buyer contained in this Agreement shall survive the Closing and continue in full force and effect (a) in perpetuity, in the case of the Seller Fundamental Representations and Buyer’s representations in Section 5.1 (Organization), Section 5.2 (Authority and Enforceability), Section 5.5 (CORE Shares), Section 5.6 (Brokers) and Section 5.8 (Investment Intent), (b) until the date that is 90 days following the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation, tolling or extension thereof), in the case of the representations and warranties in Section 3.18 (Taxes), (c) until the date that is three years after the Closing Date, in the case of the representations and warranties in Section 3.16 (Environmental Matters) and Section 3.17 (Employee Matters), and (d) until the date that is twelve (12) months after the Closing Date, in the case of all other representations and warranties, after which time such representations and warranties shall terminate (the last day of the applicable period of survival referred to in the immediately preceding sentence is referred to as the “Survival Date”).  Any Claims under this Agreement with respect to a breach of a representation and warranty must be asserted by written notice within the applicable survival period contemplated by this Section 7.1, and if such a notice is given, the survival period (including the Survival Date) for such representation and warranty with respect to the Claim asserted shall continue until the Claim is fully resolved.  All agreements, covenants and obligations contained in this Agreement shall survive in perpetuity unless satisfied earlier in accordance with their terms, and any Claims under this Agreement with respect to a breach of such agreements, covenants and obligations must be asserted by written notice within such periods.  The Parties agree that the survival period and the other limitations for the time period to bring a claim set forth in this Section 7.1 shall serve to shorten any statutes of limitation that would otherwise be applicable.
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Section 7.2   Indemnification by Seller and CORE.
(a) Following the Closing, and subject to the limitations set forth in this Article VII, Seller and CORE, jointly and severally, shall indemnify, defend and hold harmless each Buyer Indemnified Party against all Losses incurred or suffered by such Buyer Indemnified Party arising out of or resulting from:
(i) any breach of or inaccuracy in any representation or warranty of Seller or CORE set forth in Article III or Article IV of this Agreement or in the certificate delivered pursuant to Section 2.4(c);
(ii) any failure by Seller or CORE to perform or comply with any covenant contained in this Agreement; or
(iii) any Seller Taxes.
(b) The Buyer Indemnified Parties shall not be entitled to recover any Losses from Seller or CORE pursuant to Section 7.2(a)(i) until the total of all Losses under Section 7.2(a)(i) incurred by Buyer Indemnified Parties exceeds US$204,500 (the “Deductible”) in the aggregate, at which point Buyer Indemnified Parties shall only be required to pay or be liable for Losses in excess of the Deductible.
(c) With respect to any claim as to which the Buyer Indemnified Parties may be entitled to indemnification under Section 7.2(a)(i), neither Seller nor CORE shall be liable for any individual Loss, or series of related Losses, which do not exceed US$15,000 (which Loss or Losses shall not be counted toward the Deductible).
(d) The Buyer Indemnified Parties shall be indemnified pursuant to Section 7.2(a)(i) with respect to all Losses to an aggregate maximum amount of US$4,090,000.
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(e) With respect to any Losses for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 7.2(a)(i), as a result of any breach of representation or warranty under Article III or the certificate contemplated in Section 2.4(c) with respect to such representations or warranties, Seller and CORE shall only be liable for their Proportionate Share of the Losses, after applying the provisions of Section 7.4.  Neither Seller nor CORE shall be liable for any Losses for which the Buyer Indemnified Parties are entitled to indemnification under Section 7.2(a)(ii) as a result of a breach of (x) Section 6.4 (Tax Matters) or (y) any other covenant contained in this Agreement, in each case, which breach arises from a failure of Seller to provide any consent required under the Company LLC Agreement.
(f) Notwithstanding anything to the contrary contained herein, the limitations described in Section 7.2(b), Section 7.2(c), and Section 7.2(d) shall not apply with respect to any Losses arising from (i) any breach of or inaccuracy in any Seller Fundamental Representation or (ii) fraud; provided, however, that the Buyer Indemnified Parties shall not be indemnified for any Losses arising from any breach of or inaccuracy in any Seller Fundamental Representation with respect to any Loss if the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification exceeds US$40,900,000.
(g) For the avoidance of doubt, Seller shall have no indemnification obligations with respect to any Assumed Liabilities under (and as defined in) the Distribution Agreement.
Section 7.3   Indemnification by Buyer.
(a) Following the Closing, and subject to the limitations set forth in this Article VII, Buyer shall indemnify, defend and hold harmless each Seller Indemnified Party against all Losses incurred or suffered by such Seller Indemnified Party arising out of or resulting from:
(i) any breach of or inaccuracy in any representation or warranty of Buyer set forth in Article V or in the certificate delivered pursuant to Section 2.5(d); and
(ii) any failure by Buyer to perform or comply with any covenant contained in this Agreement.
Notwithstanding the foregoing, Seller Indemnified Parties shall not be indemnified for any Losses arising from Buyer’s failure to deliver the CORE Shares pursuant to Section 2.2 with respect to any Losses in excess of US$12,146,160.
Section 7.4   Determination of Indemnification Amounts.
(a) Except in the case of fraud, no Indemnitee shall be entitled to recover any Losses that constitute punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or any damages based on any type of multiple.
(b) The amount of Losses that any Indemnitee may recover pursuant to Section 7.2 or Section 7.3, respectively, shall be reduced, on a dollar-for-dollar basis, by any amounts actually received in cash by the Indemnitee in respect of the Losses forming the basis of such claim for recovery (y) from a third party pursuant to any indemnification from such third party, or (z) under any insurance policy (net of any costs, expenses, premiums or Taxes incurred in connection therewith (including but not limited to any future increase in insurance premiums or retroactive premiums which are directly attributable to the Loss)).
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(c) In determining whether there has been a breach of or inaccuracy in any representation or warranty, and in calculating the amount of any Loss with respect to any such breach or inaccuracy, all qualifications in such representation or warranty referencing the terms “material,” “materiality,” “material adverse effect”, “Seller Material Adverse Effect” or other terms of similar import or effect shall be disregarded; except that the foregoing shall not apply (i) where any such provision requires disclosure of lists of items of a material nature or above a specified threshold, (ii) to the term “Seller Material Adverse Effect” in Section 3.8, or (iii) to the defined term “Material Contract.”
(d) Each Indemnitee shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.
Section 7.5   Indemnification Procedures.
(a) As soon as reasonably practicable after a Seller Indemnified Party or a Buyer Indemnified Party (each, as applicable, an “Indemnitee”) becomes aware of any Claim that it has under this Article VII that could reasonably be expected to result in an indemnifiable Loss (an “Indemnification Claim”), and in any event within 30 days of any third-party Indemnification Claim being presented in writing to the Indemnitee by the Person making such Indemnification Claim, the Indemnitee shall give written notice thereof (a “Claims Notice”) to Seller and CORE or Buyer, as applicable (such party or parties responsible for the indemnification, the “Indemnitor”).  A Claims Notice must describe the Indemnification Claim in reasonable detail, and indicate the amount (estimated in good faith, as necessary and to the extent feasible) of the Loss that has been or may be suffered by the applicable Indemnitee.  Notwithstanding the foregoing, no delay in or failure to give a Claims Notice pursuant to this Section 7.5 will adversely affect any of the other rights or remedies that the Indemnitee has under this Agreement, or alter or relieve an Indemnitor of its obligation to indemnify the applicable Indemnitee, except (i) to the extent that the Claims Notice is delivered to the Indemnitor after the Survival Date; or (ii) to the extent that such delay or failure results in the forfeiture by the Indemnitor of rights or defenses otherwise available to the Indemnitor with respect to such Indemnification Claim or otherwise materially adversely prejudices the Indemnitor.  The Indemnitor shall respond to the Indemnitee (a “Claim Response”) within 30 days (the “Response Period”) after the date that the Claims Notice is received by the Indemnitor. Any Claim Response must specify whether the Indemnitor disputes the Indemnification Claim described in the Claims Notice.  If the Indemnitor fails to deliver a Claim Response within the Response Period, the Indemnitor will be deemed not to dispute the Indemnification Claim described in the related Claims Notice.  If the Indemnitor elects not to dispute an Indemnification Claim described in a Claims Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of Losses alleged in such Claims Notice will be conclusively deemed to be an obligation of the relevant Indemnitor to the maximum extent permitted by this Article VII, and the Indemnitee shall be entitled to recover the amount of such Losses to the maximum extent permitted by this Article VII.  If the Indemnitor delivers a Claim Response within the Response Period indicating that the Indemnitor disputes one or more of the matters identified in the Claims Notice, Buyer, Seller and CORE shall promptly meet and negotiate in good faith to settle the dispute.  Buyer, Seller and CORE shall cooperate with and make available to the other party and its respective Representatives all information, records and data, and shall permit reasonable access to its facilities and personnel, as may be reasonably required in connection with the resolution of such disputes, except to the extent such disclosure is reasonably likely to, in the disclosing party’s good faith determination, materially compromise the assertion of any attorney-client privilege.  If Buyer, Seller and CORE are unable to reach agreement within 30 days after the conclusion of the Response Period, then either Buyer or Seller and CORE may resort to other legal remedies subject to the limitations set forth in this Article VII.
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(b) In the event of any Claim by a third party against an Indemnitee for which indemnification is available hereunder (a “Third Party Claim”), the Indemnitor has the right to assume and conduct the defense of such Third Party Claim (at the Indemnitor’s sole expenses) with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee, which right shall be exercisable by indicating the assumption and conduct of the defense of such Third Party Claim in writing in the Claim Response; provided that (i) if the named parties to such Third Party Claim include both the Indemnitor and the Indemnitee and the Indemnitee has been advised by counsel that there could be a conflict of interest in the case of joint representation or that there may be a legal defense available to the Indemnitee that is different from those available to the Indemnitor, or (ii) for the period during which the Indemnitor has not assumed the conduct and control of such Third Party Claim in accordance with this Section 7.5(b), the Indemnitee shall be entitled to separate counsel of the Indemnitee’s own choosing whose fees and expenses shall be borne by the Indemnitor; provided further that the Indemnitor shall not be permitted to assume defense of any Third Party Claim against an Indemnitee for which indemnification is available hereunder (without the written consent of the Indemnitee) if (A) the third party claimant is seeking injunctive or equitable or similar relief that, if obtained, could be materially adverse to the Indemnitee, (B) the Claim (1) relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (2) involves any customers or suppliers of the Indemnitee or its Affiliates, or (3) involves a matter beyond the scope or limits of the indemnification obligation of the Indemnitor, or (C) the Indemnitor shall not have assumed the defense against the Claim in a timely fashion (but in any event within 30 days of notice of such Claim).  If the Indemnitor has timely assumed such defense as provided in this Section 7.5(b), the Indemnitee may still participate in, but not control, the defense of such Third Party Claim, but the Indemnitor will not be liable for any legal expenses subsequently incurred by any Indemnitee in connection with the defense of such Third Party Claim so long as the Indemnitor actively, diligently and in good faith defends such Third Party Claim.  If the Indemnitor does not assume the defense of any Third Party Claim in accordance with this Section 7.5(b), the Indemnitee shall continue to defend such Third Party Claim at the sole cost of the Indemnitor (subject to the limitations set forth in this Article VII) and the Indemnitor may still participate in, but not control, the defense of such Third Party Claim at the Indemnitor’s sole cost and expense.  Except with the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), no Indemnitor, in the defense of any such Third Party Claim, will consent to the entry of any judgment or enter into any settlement thereof; provided that the Indemnitee may withhold any such consent in its sole and absolute discretion with respect to any settlement or judgment (x) if it provides for injunctive or other nonmonetary relief affecting the Indemnitee, (y) unless it includes as an unconditional term thereof the giving by each claimant or plaintiff to the Indemnitee and its Affiliates of a release from all liability with respect to such Third Party Claim or litigation, or (z) if it involves a finding or admission of any violation of Law or the rights of any Person or has an effect on any other Third Party Claims that may be made against the Indemnitee. In any such Third Party Claim, the party responsible for the defense of such Third Party Claim (the “Responsible Party”) shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such Third Party Claim, including all settlement negotiations and offers.  Each Indemnitee shall use commercially reasonable efforts to make available to the Indemnitor and its Representatives, all books, records and personnel of the Indemnitee relating to such Third Party Claim and shall reasonably cooperate with the Indemnitor in the defense of the Third Party Claim.
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Section 7.6   Treatment of Indemnification Payments. All indemnification payments made hereunder shall be treated, to the extent permitted by Law, by all parties as an adjustment of the consideration hereunder.
Section 7.7   Prior Knowledge of Breach. The representations, warranties, covenants and agreements of Seller and CORE, and the Buyer Indemnified Parties’ right to indemnification with respect thereto, shall not be waived, limited or otherwise affected by reason of (a) any investigation made by or on behalf of Buyer (including by any of its Representatives) or (b) the fact that Buyer or any of its Representatives had knowledge (whether actual or constructive) that any such representation or warranty is, was or might be inaccurate or that any such covenant or agreement was or might be breached or not fulfilled (regardless of whether such knowledge was obtained before or after the execution and delivery of this Agreement).
Section 7.8   Exclusive Remedies. Subject to Section 8.7, the Parties acknowledge and agree that their sole and exclusive remedy following the Closing with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VII.  In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other Parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article VII. Nothing in this Section 7.8 shall limit any Person’s rights (i) under applicable Law in connection with fraud by the other Party, or (ii) to seek and obtain any equitable relief to which any Person shall be entitled to seek pursuant to Section 8.7.
Section 7.9   Fraud. Buyer hereby acknowledges that Royal Alaska has had overall management responsibility for operations of the Company since January 8, 2015. The representations and warranties regarding the Company set forth in Article III are consistent with the representations and warranties regarding the Company set forth in the Royal Purchase Agreement, and Seller and CORE have made the representations and warranties set forth in Article III without independently verifying the accuracy thereof.  Buyer hereby agrees that it will not argue, in connection with any cause of action for fraud against Seller or CORE arising in connection with this transaction, that the fact that Seller and CORE did not independently verify the representations and warranties in Article III is evidence of their reckless indifference to the truth thereof.   Nothing in this Section 7.9 shall be construed to (a) qualify or otherwise limit any of the representations and warranties set forth in Article III, (b) limit the rights of any Buyer Indemnified Party to be indemnified by Seller and CORE to the fullest extent set forth in this Article VII in the event of a breach of a representation and warranty in Article III, or (c) limit any right that Buyer may have under Delaware law to assert that Seller or CORE committed fraud due to their actual knowledge of the falsity of any representation and warranty set forth in Article III.
37

ARTICLE VIII
MISCELLANEOUS
Section 8.1  Notices.  All notices, requests, claims, demands and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally, by electronic mail or by nationally recognized overnight courier prepaid, to the Parties at the following respective addresses:
(a) if to Buyer, to:
   
  Kinross Gold U.S.A., Inc.
  5075 S. Syracuse Street, 8th Floor
  Denver, Colorado 80237
  Email:
  Attention: General Counsel
   
  with a copy to (which shall not constitute notice):
   
  Davis Graham & Stubbs LLP
  1550 17th Street, Suite 500
  Denver, Colorado 80202
  Email:
  Attention: Scott Hardt and Brian Boonstra
   
(b) if to Seller or CORE, to:
   
  Contango ORE, Inc.
  3700 Buffalo Speedway, Suite 925
  Houston, Texas 77098
  Email:
  Attention: Rick Van Nieuwenhuyse
   
  with a copy to (which shall not constitute notice):
   
  Thompson & Knight LLP
  811 Main Street, Suite 2500
  Houston, Texas 77002
 
Email:          
                     
 
Attention:    Timothy T. Samson
                      Stephen W. Grant, Jr.


 
38


All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section 8.1, be deemed given upon delivery, (ii) if delivered by electronic mail to the electronic mail address as provided for in this Section 8.1, be deemed given upon successful completion of transmission, and (iii) if delivered by overnight courier to the address as provided in this Section 8.1, be deemed given on the earlier of the first Business Day following the date deposited with such overnight courier with the requisite payment and instructions to effect delivery on the next Business Day or upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 8.1).  Any Party from time to time may change its address, electronic mail address or other information for the purpose of notices to that Party by giving notice specifying such change to the other Parties.
Section 8.2   Expenses.  Except as provided in Section 6.4(e), all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses, whether or not the Closing shall have occurred.
Section 8.3   Severability.  If any term or other provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 8.4   Entire Agreement.  This Agreement, together with the Disclosure Schedule, and the other documents referred to herein which are to be made or delivered under this Agreement, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements, covenants, representations, warranties, undertakings and understandings, written or oral, among the Parties with respect to the subject matter hereof; provided, however, that the Confidentiality Agreement shall continue to have force and effect in accordance with its terms.
Section 8.5   Assignment.  Neither this Agreement nor any of the rights or obligations hereunder may be transferred, assigned, pledged or hypothecated by any Party, by operation of law or otherwise, without the express written consent of each other Party (which consent may be granted or withheld in the sole discretion of each such Party), provided that Buyer may assign all or part of its rights under this Agreement to one or more Affiliates of Buyer without any such consent (it being understood that such assignment shall not release Buyer of any of its obligations hereunder).  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns.
39

Section 8.6   No Third Party Beneficiaries.  Nothing herein, whether express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except as set forth in Article VII with respect to the Seller Indemnified Parties and the Buyer Indemnified Parties.
Section 8.7   Specific Performance.  The Parties agree that irreparable damage may occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
Section 8.8   Governing Law.  This Agreement shall be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware without regard to conflicts of law principles that would apply the Laws of a jurisdiction other than Delaware.
Section 8.9   Jurisdiction.  If any dispute arises under this Agreement, the Parties shall first endeavor to resolve such dispute amicably.  If the Parties are unable to resolve such dispute in such manner, then any judicial proceeding brought against any of the Parties to this Agreement in connection with any dispute arising out of this Agreement or the transactions contemplated hereby (each, a “Proceeding”) shall be brought in the federal or state courts located in Denver, Colorado and, by execution and delivery of this Agreement, each of the Parties accepts the exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement.  The foregoing consent to jurisdiction shall not constitute general consents to service of process in the State of Colorado for any purpose except as provided above and shall not be deemed to confer rights on any Person other than the Parties.  Each Party agrees that service of any process, summons, notice or document pursuant to Section 8.1 shall be effective service of process for any action, suit or proceeding in the State of Colorado with respect to any Proceeding.
Section 8.10   WAIVER OF JURY TRIAL.  EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.  EACH OF THE PARTIES HEREBY AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 8.11   No Presumption Against Drafting Party.  Each of the Parties acknowledges that each Party has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement.  Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
40

Section 8.12   Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (“pdf”) format shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 8.13   Amendments and Waivers. This Agreement may not be amended or modified except by a written instrument signed by each of the Parties. Any provision of this Agreement may be waived by a written instrument signed by the Party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The waiver by any Party of a breach of any provision of this Agreement or its failure to insist on strict compliance with such provision shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure of compliance.

(Remainder of Page Intentionally Left Blank)

41

The Parties have caused this Agreement to be executed as of the date first written above.

 
SELLER:
     
  CORE ALASKA, LLC 
     
     
  By: /s/ Rick Van Nieuwenhuyse 
  Name:
Rick Van Nieuwenhuyse
  Title: President and Chief Executive Officer
     
 
CORE:
     
  CONTANGO ORE, INC. 
     
     
  By: /s/ Rick Van Nieuwenhuyse 
  Name: 
Rick Van Nieuwenhuyse
  Title: 
President and Chief Executive Officer
     
 
BUYER:
     
  SKIP SUB, INC. 
     
     
  By: /s/ Martin D. Litt 
  Name: Martin D. Litt
  Title:
President, Secretary and General Counsel
     
     









[Signature Page to Purchase Agreement]
Exhibit 10.1


SEPARATION AND DISTRIBUTION AGREEMENT
BY AND AMONG
PEAK GOLD, LLC,
CONTANGO MINERALS ALASKA, LLC,
CONTANGO ORE, INC.,
CORE ALASKA, LLC,
ROYAL GOLD, INC.
AND
ROYAL ALASKA, LLC
DATED AS OF SEPTEMBER 29, 2020

TABLE OF CONTENTS

ARTICLE I DEFINITIONS
2
 

 
ARTICLE II THE SEPARATION  10
2.1
Transfer of Assets and Assumption of Liabilities
 10
2.2
Retained Assets; Transferred Assets
 11
2.3
Retained Liabilities; Assumed Liabilities
 12
2.4
Termination of Agreements
 12
2.5
Treatment of Shared Contracts
 13
2.6
Disclaimer of Representations and Warranties
 14
2.7
Company Name and Company Marks
 14
2.8
The Distribution  15
 
 
 
ARTICLE III MUTUAL RELEASES; INDEMNIFICATION
 15
3.1
Release of Pre-Distribution Claims  15
3.2
Indemnification by CORE Minerals
 17
3.3
Indemnification by the Company
 18
3.4
Indemnification Obligations Net of Insurance Proceeds and Other Amounts
 18
3.5
Procedures for Indemnification of Third-Party Claims
 19
3.6
Additional Matters
 21
3.7
Right of Contribution
 22
3.8
Covenant Not to Sue
 17
3.9
Survival of Indemnities
 23
 

 23
ARTICLE IV CERTAIN OTHER MATTERS     
4.1
Late Payments
 23

i


ARTICLE V EXCHANGE OF INFORMATION; CONFIDENTIALITY
23
5.1
Agreement for Exchange of Information
23
5.2
Ownership of Information
 25
5.3
Compensation for Providing Information
 25
5.4
Record Retention
 25
5.5
Limitations of Liability
 25
5.6
Other Agreements Providing for Exchange of Information.
 25
5.7
Production of Witnesses; Records; Cooperation
 26
5.8
Privileged Matters 27
5.9
Confidentiality
29
5.10 Protective Arrangements   30
 
 
 
ARTICLE VI FURTHER ASSURANCES AND ADDITIONAL COVENANTS
 30
6.1
Further Assurances  30
6.2
Tax Matters
 31
6.3
Post-Effective Time Conduct
 32
6.4
Successors
 32
6.5
Tag-Along Right; Drag Right
 32
 

ARTICLE VII RESERVED   
 33
   
ARTICLE VIII MISCELLANEOUS    33
8.1
Counterparts; Entire Agreement; Authorization
33
8.2  Governing Law   33
8.3  Submission to Jurisdiction   33
8.4  Waiver of Jury Trial   34
8.5  Assignability   34
8.6  Third-Party Beneficiaries   35
8.7
Notices   35

ii

8.8
Severability
36
8.9
No Set-Off
 36
8.10
Publicity
 36
8.11
Expenses
 37
8.12
Survival of Covenants
 37
8.13
Waivers of Default
 37
8.14
Specific Performance
 37
8.15
Amendments 37
8.16
Interpretation
37
8.17 Performance  38
8.18
Mutual Drafting
38
     
     
Schedule I
Exploration Properties
 
Schedule II Optioned State Claims
 
Schedule III Transferred Contracts
 

 

iii


SEPARATION AND DISTRIBUTION AGREEMENT
 
This SEPARATION AND DISTRIBUTION AGREEMENT, dated as of September 29, 2020 (this “Agreement”), is by and among Peak Gold, LLC, a Delaware limited liability company (the “Company”), Contango Minerals Alaska, LLC, an Alaska limited liability company and a wholly-owned Subsidiary of the Company (“CORE Minerals”), Contango ORE, Inc., a Delaware corporation (“CORE”), CORE Alaska, LLC, a Delaware limited liability company and wholly-owned Subsidiary of CORE (“CORE Alaska”), Royal Gold, Inc., a Delaware corporation (“Royal Gold”), and Royal Alaska, LLC, a Delaware limited liability company and wholly-owned Subsidiary of Royal Gold (“Royal Alaska”); the Company, CORE Minerals, CORE, CORE Alaska, Royal Gold and Royal Alaska are each a “Party”, and collectively, the “Parties”, to this Agreement. Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in Article I.
 
R E C I T A L S
 
WHEREAS, CORE Alaska and Royal Alaska respectively own 60% and 40% of the limited liability company interests in the Company;
 
WHEREAS, the Company owns certain properties in the State of Alaska;
 
WHEREAS, CORE Minerals is currently a wholly owned Subsidiary of the Company;
 
WHEREAS, in connection with and prior to the consummation of the Acquisitions (as defined below), the Parties desire to undertake the following actions and distributions: (a) the State of Alaska mining claims shown on Schedule I (the “Exploration Properties”) and certain other assets specified herein will be contributed by the Company to CORE Minerals, subject to the Option Agreement and the CORE Minerals Royalty; (b) the Company and Royal Gold will amend and restate the Existing Royalty Agreement pursuant to (i) the Amended and Restated Royalty Agreement, pursuant to which the Company will grant to Royal Gold the New Silver Royalty and ratify certain existing royalty obligations, and (ii) the CORE Minerals Royalty Agreement, pursuant to which CORE Minerals will grant to Royal Gold the CORE Minerals Royalty and ratify certain existing royalty obligations; and (c) the Company will distribute to CORE Alaska 100% of the membership interests in CORE Minerals, with CORE Alaska in turn distributing such membership interests to CORE, such that CORE Minerals will become a wholly-owned Subsidiary of CORE (clauses (b) and (c), the “Distribution”);
 
WHEREAS, each of the Parties desire to take such steps necessary to separate the Exploration Properties from all other properties (the “Retained Properties”) of the Company (the “Separation”), such that the Exploration Properties will be held and operated exclusively by CORE Minerals and the Retained Properties will be held and operated exclusively by the Company;
 
WHEREAS, each of the Parties has determined that it is appropriate and desirable to set forth the principal transactions required to effect the Separation and the Distribution and certain other agreements that will govern certain matters relating to the Separation and the Distribution and the relationship among the parties and the members of their respective Groups following the Separation and the Distribution;
1

WHEREAS, CORE and CORE Alaska are entering into a Purchase Agreement dated as of the date hereof, by and among CORE, CORE Alaska, Skip Sub, Inc., a Delaware corporation (“Skip”), (such agreement as it may be amended from time to time, the “CORE Purchase Agreement”), pursuant to which Skip will acquire 30% of the limited liability company interests in the Company owned by CORE Alaska (the “CORE Acquisition”); and
 
WHEREAS, Royal Gold is entering into a Purchase Agreement dated as of the date hereof, by and between Royal Gold and Skip (such agreement as it may be amended from time to time, the “Royal Purchase Agreement”), pursuant to which Skip will acquire 100% of the limited liability company interests in Royal Alaska, which owns 40% of the limited liability company interests of the Company (the “Royal Gold Acquisition”, and, together with the CORE Acquisition, the “Acquisitions”).
 
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
 
ARTICLE I
DEFINITIONS
 
For the purpose of this Agreement, the following terms shall have the following meanings:
 
Acquisitions” shall have the meaning set forth in the Recitals.
 
Action” shall mean any action, claim, suit, arbitration, inquiry, investigation or other proceeding.
 
Affiliate” of any Person shall mean any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person.  It is expressly agreed that, after the Effective Time, for purposes of this Agreement, (a) no member of the CORE Group shall be deemed to be an Affiliate of any member of the Company Group and (b) no member of the Company Group shall be deemed to be an Affiliate of any member of the CORE Group.
 
Agreement” shall have the meaning set forth in the Preamble.
 
Amended and Restated Royalty Agreement” shall mean that Omnibus Second Amendment and Restatement of Royalty Deeds and Grant of Deed of Additional Royalty, between the Company and Royal Gold, dated as of the date hereof.
 
Approvals or Notifications” shall mean any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any third Person, including any Governmental Entity.
 
2

            Asset Taxes” shall mean all ad valorem, property, excise, severance, production, sales, use and similar Taxes based upon the acquisition, operation or ownership of the Exploration Properties or the receipt of proceeds therefrom, but excluding, for the avoidance of doubt, income Taxes and Transfer Taxes. For purposes of determining the allocations described in Section 2.3(b)(ii), (i) Asset Taxes that are attributable to the severance or production resources from the Exploration Properties shall be allocated to the period in which the severance or production giving rise to such Asset Taxes occurred and (ii) Asset Taxes that are based upon or related to sales or receipts or imposed on a transactional basis (other than such Asset Taxes described in clause (i)), shall be allocated to the period in which the transaction giving rise to such Asset Taxes occurred.
 
Assets” shall mean, with respect to any Person, (i) the assets, properties, claims and rights (including goodwill) of such Person, wherever located (including in the possession of vendors or other third Persons or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of such Person, including rights and benefits pursuant to any contract, license, permit, indenture, note, bond, mortgage, agreement, concession, franchise, instrument, undertaking, commitment, understanding or other arrangement; and (ii) the Contracts, Equipment, Information, Insurance Proceeds, Intellectual Property, Permits, Real Property, Real Property Leases, Registrable IP, Software, Tangible Information and Technology of such Person.
 
Assumed Liabilities” shall have the meaning set forth in Section 2.3(b).
 
Code” shall mean the Internal Revenue Code of 1986, as amended.
 
Company” shall have the meaning set forth in the Preamble.
 
Company Group” shall mean the Company and each Person that is a Subsidiary of the Company, including, prior to the Distribution, CORE Minerals.
 
Company Indemnitees” shall have the meaning set forth in Section 3.2.
 
Company LLC Agreement” shall mean that Limited Liability Company Agreement between CORE Alaska and Royal Alaska dated January 8, 2015, as amended by (a) that Amendment No. 1 to Limited Liability Company Agreement dated as of November 10, 2017, and (b) that Amendment No. 2 to Limited Liability Company Agreement dated as of January 18, 2019.
 
Company Marks” shall mean all logos, names, domains and URLs associated with the Company Name.
 
Company Name” shall mean Peak Gold, LLC.
 
Contract” shall mean any agreement, mortgage, deed, lease, license, contract, undertaking instrument or other legally binding understanding or arrangement, whether written or oral and whether express or implied.
 
Control” (including the terms “Controlled” and “under common Control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
 
3

 
CORE Acquisition” shall have the meaning set forth in the Recitals.
 
CORE Group” shall mean CORE, CORE Alaska and, following the Distribution, CORE Minerals.
 
CORE Indemnitees” shall have the meaning set forth in Section 3.3.
 
CORE Minerals” shall have the meaning set forth in the Recitals.
 
CORE Minerals Royalty” shall mean the additional 1% net smelter returns royalty granted pursuant to the CORE Minerals Royalty Agreement to increase the royalty payable to Royal Gold to 3% on all properties subject to the CORE Minerals Royalty Agreement.
 
CORE Minerals Royalty Agreement means the Omnibus Second Amendment and Restatement of Royalty Deeds between the Company and CORE Minerals and Grant of Deed of Additional Royalty, between CORE Minerals and Royal Gold, substantially in the form of Exhibit C.
 
CORE Purchase Agreement” shall have the meaning set forth in the Recitals.
 
Distribution” shall have the meaning set forth in the Recitals.
 
Effective Time” shall mean the time at which the Distribution occurs, which shall be immediately prior to the consummation of the CORE Acquisition and the Royal Gold Acquisition.
 
Environmental Law” shall mean any Law relating to (i) the protection, preservation or restoration of the environment (including air, surface water, groundwater, drinking water supply, surface and subsurface soils and strata, wetlands, plant and animal life or any other natural resource), or (ii) the exposure to, use, recycling, handling, transportation, treatment, storage, disposal or Release of Hazardous Substances.
 
Environmental Liabilities” shall mean all Liabilities relating to, arising out of or resulting from any Hazardous Substances, Environmental Law or Contract relating to environmental, health or safety matters (including all removal, remediation or cleanup costs, investigatory costs, response costs, natural resources damages, property damages, personal injury damages, costs of compliance with any product take back requirements or with any settlement, judgment or other determination of Liability and indemnity, contribution or similar obligations) and all costs and expenses, interest, fines, penalties or other monetary sanctions in connection therewith.
 
Equipment” shall mean all apparatus, materials, computers and other electronic data processing and communications equipment, furniture, automobiles, trucks, tractors, trailers, motor vehicles, tools and other tangible personal property and fixtures.
 
Exchange Act” shall mean the U.S.  Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
 
4

Existing Royalty Agreement” shall mean that certain Omnibus Amendment and Restatement of Royalty Deeds and Grant and Deed of Additional Royalty dated as of November 10, 2017, and recorded on December 20, 2017 as Instrument Number 2017-021489-0 in the Fairbanks Recording District, Alaska, as amended by that certain First Amendment to Omnibus Amendment and Restatement of Royalty Deeds and Grant and Deed of Additional Royalty dated November 10, 2017, and recorded on August 3, 2018 as Instrument Number 2018-011722-0 in the Fairbanks Recording District, Alaska.
 
Exploration Properties” shall have the meaning set forth in the Recitals.
 
FIRPTA Compliance” shall mean the requirement to withhold and remit Tax or, alternatively obtain the necessary certificates and forms to avoid the withholding and remittance of Tax, pursuant to Section 1445 of the Code and the Treasury Regulations thereunder.
 
Governmental Approvals” shall mean any Approvals or Notifications to be made to, or obtained from, any Governmental Entity.
 
Governmental Entity” shall mean any federal, state, provincial, tribal, village, local or foreign government or subdivision thereof or any other governmental, administrative, judicial, arbitral, legislative, executive, regulatory or self-regulatory authority, instrumentality, agency, commission or body, including any stock exchange.
 
Group” shall mean the Company Group or the CORE Group, as the context requires.
 
Hazardous Substances” shall mean any substance listed, defined, designated, classified or regulated as a waste, pollutant or contaminant or as hazardous, toxic, radioactive or dangerous or any other term of similar import under any Environmental Law, including but not limited to petroleum.
 
Indemnifying Party” shall have the meaning set forth in Section 3.4(a).
 
Indemnitee” shall have the meaning set forth in Section 3.4(a).
 
Indemnity Payment” shall have the meaning set forth in Section 3.4(a).
 
Information” shall mean information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, assay certificates, ore body and geospatial models, development plans, topographical data and aerial imagery, drill hole and assay data, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other Software, marketing plans, customer names and records, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or consultants or under their direction (including attorney work product), and other technical, financial, employee or business information or data, files, papers, tapes, keys, correspondence, plans, invoices, forms, cost information, sales and pricing data, product data and literature, investor records, catalogs, sales, promotional and advertising materials, technical data, operating records, operating manuals, instructional documents, quality records and reports and other printed or written materials, land and title records (including abstracts of title, title opinions, and title curative documents), operations, environmental, production, accounting and regulatory compliance records, and facility and well records; provided, that “Information” shall not include Registrable IP.
 
5

Insurance Proceeds” shall mean those monies:
 
(a)            received by an insured from an insurance carrier; or
 
(b)            paid by an insurance carrier on behalf of the insured;
 
in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) costs and expenses incurred in the collection thereof; provided, however, with respect to a captive insurance arrangement, Insurance Proceeds shall only include amounts received by the captive insurer in respect of any reinsurance arrangement.
 
Intellectual Property” shall mean all intellectual property and other similar proprietary rights in any jurisdiction worldwide, whether registered or unregistered, including such rights in and to: (a) patents (including all reissues, divisions, provisionals, continuations and continuations-in-part, re-examinations, renewals and extensions thereof), patent applications, patent disclosures or other patent rights; (b) copyrights, design, design registration, and all registrations, applications for registration, and renewals for any of the foregoing, and any “moral” rights; (c) trademarks, service marks, trade names, business names, logos, trade dress, certification marks and other indicia of commercial source or origin together with all goodwill associated with the foregoing, and all registrations, applications and renewals for any of the foregoing; (d) trade secrets and business, technical and know-how information, databases (including assay), data collections, and drawings; (e) Software, including data files, source code, object code, application programming interfaces, architecture, files, records, schematics, computerized databases and other Software-related specifications and documentation; (f) Internet domain name registrations; and (g) other intellectual property and related proprietary rights.
 
Law” shall mean any statute, law (including common law), ordinance, regulation, rule, code, injunction, judgment, decree or order of any Governmental Entity, having the force of law and any legal requirements arising under the common law or principles of law or equity and the term “applicable” with respect to such Laws and, in the context that refers to any person, means such Law as is applicable at the relevant time or times to such person or its business, undertaking, property or securities and emanate from a Governmental Entity having jurisdiction over such person or its business, undertaking, property or securities.
 
Liabilities” shall mean all debts, guarantees, assurances, commitments, liabilities, responsibilities, Losses, remediation, deficiencies, damages, fines, penalties, settlements, sanctions, costs, expenses, interest and obligations of any nature or kind, whether accrued or fixed, absolute or contingent, matured or unmatured, accrued or not accrued, asserted or unasserted, liquidated or unliquidated, foreseen or unforeseen, known or unknown, reserved or unreserved, or determined or determinable, including those arising under any Law, claim (including any Third-Party Claim), demand, Action or Order award entered by or with any Governmental Entity or arbitration tribunal, and those arising under any Contract, promise, release, warranty or undertaking, or any fines, damages or equitable relief that is imposed, in each case, including all costs and expenses relating thereto.
 
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Losses” shall mean all losses, liabilities, claims, obligations, interest, awards, damages, penalties, fees, costs and expenses (including all legal fees and accounting fees, expenses and costs incurred in investigating, preparing for or defending any of the foregoing ).
 
New Silver Royalty” shall mean the production royalty payable to Royal Gold pursuant to the Amended and Restated Royalty Agreement.
 
Option Agreement” shall mean that certain Option Agreement granting the option to acquire certain Optioned State Claims held by CORE Minerals, between the Company and CORE Minerals dated as of the date hereof.
 
Optioned State Claims” shall mean those State of Alaska unpatented mining claims described in Schedule II attached hereto.

Order” shall mean any charge, order, writ, injunction, judgment, decree, ruling, determination, directive, award, stipulation or settlement, whether civil, criminal or administrative and whether formal or informal.
 
Parties” shall have the meaning set forth in the preamble to this Agreement.
 
Permits” shall mean all material permits, approvals, authorizations, consents, licenses, operating certificates, variances, exemptions, concessions, franchises, orders and other approvals issued by any Governmental Entity.
 
Person” shall mean an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any Governmental Entity.
 
Prime Rate” shall mean the rate that Bloomberg displays as “Prime Rate by Country United States” at www.bloomberg.com/markets/rates-bonds/key-rates/ or on a Bloomberg terminal at PRIMBB Index.
 
Privileged Information” shall mean any information, in written, oral, electronic or other tangible or intangible forms, including any communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), as to which a Party or any member of its Group would be entitled to assert or have asserted a privilege, including the attorney-client and attorney work product privileges.
 
Real Property” shall mean surface lands, concession rights, and mineral lands, together with all easements, rights and interests arising out of the ownership thereof or appurtenant thereto and all buildings, structures, improvements and fixtures located thereon.
 
Real Property Leases” shall mean leases and subleases of Real Property.
 
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Registrable IP” shall mean all patents, patent applications, statutory invention registrations, registered trademarks, registered service marks, registered Internet domain names and copyright registrations.
 
Release” shall mean any release, spill, emission, discharge, leaking, pumping, pouring, dumping, injection, deposit, disposal, dispersal, leaching or migration of Hazardous Substances into the environment (including, ambient air, surface water, groundwater and surface or subsurface strata and the abandonment or discarding of barrels, containers or other receptacles containing Hazardous Substances).
 
Representatives” shall mean, with respect to any Person, any of such Person’s directors, officers, employees, Affiliates, agents, consultants, advisors, accountants, attorneys, investment bankers, financial advisors or other representatives.
 
Retained Assets” shall have the meaning set forth in Section 2.2.
 
Retained Properties” shall have the meaning set forth in the Recitals.
 
Retained Liabilities” shall have the meaning set forth in Section 2.3(a).
 
Royal Gold Acquisition” shall have the meaning set forth in the Recitals.
 
Royal Purchase Agreement Closing” shall have the meaning set forth in Section 3.3(a).
 
Royal Purchase Agreement” shall have the meaning set forth in the Recitals.
 
SEC” shall mean the U.S. Securities and Exchange Commission.
 
Security Interest” shall mean any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever.
 
Separation” shall have the meaning set forth in the Recitals.
 
Shared Contract” shall have the meaning set forth in Section 2.5.
 
Skip” shall have the meaning set forth in the Recitals.
 
Software” shall mean any and all (a) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form; (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing; (d) screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (e) documentation, including user manuals and other training documentation, relating to any of the foregoing.
 
Stored Information” shall have the meaning set forth in Section 5.1(b)(i).
 
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Subsidiary” shall mean, with respect to any Person, any other Person of which stock or other equity interests having ordinary voting power to elect more than 50% of the board of directors or other governing body are owned, directly or indirectly, by such first Person.
 
Tangible Information” shall mean Information that is contained in written, electronic or other tangible forms.
 
Tax” shall mean (a) all taxes, charges, fees, duties, levies, imposts, or other similar assessments, imposed by any U.S. federal, state or local or foreign governmental authority, including, but not limited to, income, gross receipts, excise, property, sales, use, license, capital stock, transfer, franchise, margin, payroll, withholding, social security, value added and other taxes; (b) any interest, penalties or additions attributable thereto; (c) all liabilities in respect of any items described in clauses (a) or (b) payable by reason of assumption, transferee or successor liability, operation of Law or Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law); and (d) all liabilities in respect of any items described in clauses (a), (b) or (c) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other express or implied agreement to indemnify any other Person.
 
Tax Liabilities” shall mean any Liability arising out of or relating to a Tax.
 
Technology” shall mean all technology, designs, formulae, algorithms, procedures, methods, discoveries, processes, techniques, ideas, know-how, research and development, technical data, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, improvements, works of authorship in any media, confidential, proprietary or nonpublic information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other tangible embodiments of the foregoing in any form whether or not listed herein, in each case, other than Software.
 
Third Party” shall mean any Person other than the Parties or any members of their respective Groups.
 
Third-Party Claim” shall have the meaning set forth in Section 3.5(a).
 
Tok Facility” shall have the meaning set forth in Section 5.1(b)(i).
 
Transfer Documents” shall have the meaning set forth in Section 2.1(b).
 
Transfer Taxes” shall mean all transfer, sales, use, stamp, registration or other similar federal, foreign, tribal, state and local Taxes (but excluding any income Taxes) resulting from the transfer of an asset from one Party to the other pursuant to the terms of this Agreement.
 
Transferred Assets” shall have the meaning set forth in Section 2.2(b).
 
Transferred Contracts” shall mean the Contracts set forth on Schedule III.
 
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ARTICLE II
THE SEPARATION
 
2.1            Transfer of Assets and Assumption of Liabilities
 
(a)            On or prior to the Distribution and the Acquisitions:
 
Transfer and Assignment of Transferred Assets.  The Company shall, and shall cause the applicable members of the Company Group to, contribute, assign, transfer, convey and deliver to CORE Minerals, and CORE Minerals shall accept from the Company and such applicable members of the Company Group, all of the Company’s and such Company Group member’s respective right, title and interest, whether direct or indirect, in and to all of the Transferred Assets; and
 
Acceptance and Assumption of Assumed Liabilities.  CORE Minerals shall accept, assume and agree to faithfully perform, discharge and fulfill all the Assumed Liabilities.
 
(b)            Transfer Documents.  In furtherance of the contribution, assignment, transfer, conveyance and delivery of the Transferred Assets and the assumption of the Assumed Liabilities in accordance with Section 2.1(a), (i) each Party shall execute and deliver, and shall cause the applicable members of its Group to execute and deliver (as applicable), such bills of sale, quitclaim deeds, stock or unit powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of such Party’s and the applicable members of its Group’s (as applicable) right, title and interest in and to such Transferred Assets in accordance with Section 2.1(a), and (ii) each Party shall execute and deliver, and shall cause the applicable members of its Group (as applicable) to execute and deliver, to the other Party such assumptions of contracts and other instruments of assumption as and to the extent reasonably necessary to evidence the valid and effective assumption of the Assumed Liabilities in accordance with Section 2.1(a).  All of the foregoing documents contemplated by this Section 2.1(b) shall be referred to collectively herein as the “Transfer Documents.”
 
(c)            Misallocations.  In the event that at any time, or from time to time (whether prior to, at or after the Effective Time), any Party (or any member of such Party’s respective Group) shall receive or otherwise possess any Asset that is allocated to any other Party (or any member of such Party’s Group) pursuant to this Agreement, such Party shall promptly transfer, or cause to be transferred, such Asset to the Party so entitled thereto (or to any member of such Party’s Group), and such entitled Party (or member of such Party’s Group) shall accept such Asset.  Prior to any such transfer, the Person receiving or possessing such Asset shall hold such Asset in trust for any such other Person.  In the event that at any time, or from time to time (whether prior to, at or after the Effective Time), any Party (or any member of such Party’s respective Group) shall receive or otherwise assume any Liability that is allocated to any other Party (or any member of such Party’s Group) pursuant to this Agreement, such Party shall promptly transfer, or cause to be transferred, such Liability to the Party responsible therefor (or to any member of such Party’s Group), and such responsible Party (or any member of such Party’s Group) shall accept, assume and agree to faithfully perform such Liability.
 
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(d)            Bulk-Sale and Bulk-Transfer Laws.  Each Party hereby acknowledges that the transfer or sale of any or all of the Transferred Assets to any member of the CORE Group and deemed transfer or sale of any or all of the Retained Assets to any member of the Company Group is not subject to any requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction.
 
2.2            Retained Assets; Transferred Assets
 
Retained Assets.  For the purposes of this Agreement, “Retained Assets” shall mean all Assets of any member of the Company Group as of immediately prior to the Effective Time, other than the Transferred Assets.
 
Transferred Assets.  For purposes of this Agreement, “Transferred Assets” shall mean all of the following Assets of the Company or any other member of the Company Group as of immediately prior to the Effective Time:
 
(i)            the Exploration Properties; the Parties acknowledge and agree that certain of the Exploration Properties are subject to the Option Agreement and all of the Exploration Properties are subject to the CORE Minerals Royalty Agreement;
 
(ii)            all Transferred Contracts and all rights, interests or claims of any members of the Company Group thereunder (including rights under or pursuant to all warranties, representations and guarantees, whether express or implied, thereunder);
 
(iii)            [reserved];
 
(iv)            all rights of any member of the Company Group to indemnities and releases from Third Parties to the extent related to the Exploration Properties;
 
(v)            all claims, defenses, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment of any member of the Company Group to the extent attributable to the Exploration Properties;
 
(vi)            all Permits owned or licensed by any member of the Company Group set forth on Schedule 2.2(b)(vi) or that relate solely to the Exploration Properties;
 
(vii)            all Equipment of any member of the Company Group set forth on Schedule 2.2(b)(vii);
 
(viii)            all rights, interests and claims of any member of the Company Group with respect to Information to the extent related to the Exploration Properties;
 
(ix)            all Insurance Proceeds received or receivable by any member of the Company Group under any insurance policy written prior to the Effective Time to the extent in connection with (i) the damage or complete destruction of any assets or properties prior to the Effective Time that would have been included in the Transferred Assets but for such damage or complete destruction, or (ii) any Assumed Liability; and
 
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(x)            all Technology owned or licensed by the Company set forth on Schedule 2.2(b)(x).
 
2.3            Retained Liabilities; Assumed Liabilities
 
Retained Liabilities.  For the purposes of this Agreement, “Retained Liabilities” shall mean all Liabilities of the Company Group, other than the Assumed Liabilities.
 
Assumed Liabilities(c).  For the purposes of this Agreement, “Assumed Liabilities” shall mean the following Liabilities of any member of the Company Group:
 
(i)            all Liabilities other than Tax Liabilities (including Environmental Liabilities and Liabilities related to the Permits included in Transferred Assets) to the extent arising out of, resulting from or related to the Exploration Properties or a Transferred Asset, in each case, regardless of whether such Liabilities arise before, on or after the Effective Time;
 
(ii)            Asset Taxes and all other Taxes to the extent arising out of, resulting from or related to the Exploration Properties or a Transferred Asset, in each case, attributable to any Tax period beginning at or after the Effective Time;
 
(iii)            CORE Minerals’ obligations and the obligations of any member of the CORE Group under this Agreement and any other Contract entered into by CORE Minerals or any member of the CORE Group in connection herewith; and
 
(iv)            all Liabilities arising out of claims made by any Third Party against any member of the Company Group to the extent relating to, arising out of or resulting from the Exploration Properties or the Transferred Assets, in each case, regardless of whether such Liabilities arise before, on or after the Effective Time.
 
2.4            Termination of Agreements
 
(a)            In furtherance of the releases and other provisions of Section 3.1, each member of the Company Group, on the one hand, and CORE, CORE Minerals and each member of the CORE Group, on the other hand, hereby terminate any and all Contracts between or among the Company, on the one hand, and CORE, CORE Minerals and/or any member of the CORE Group, on the other hand, with such termination to be effective as of the Effective Time.  No such terminated Contract (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Effective Time.  Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.
 
(b)            The provisions of Section 2.4(a) shall not apply to any of the following agreements (or to any of the provisions thereof):
 
(i)            this Agreement (and each other agreement expressly contemplated by this Agreement or the CORE Purchase Agreement to be entered into or continued by any of the Parties);
 
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(ii)            the Company LLC Agreement;
 
(iii)            any agreement to which any Person other than the Parties and their respective Affiliates is a party; and
 
(iv)            any confidentiality or non-disclosure agreements among any member of the CORE Group or the Company and any of their respective employees, including any obligation not to disclose proprietary or Privileged Information.
 
2.5            Treatment of Shared Contracts
 
(a)            Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any Contract described in this Section 2.5 are expressly conveyed to the applicable Party pursuant to this Agreement, any Contract, only a portion of which is a Transferred Contract (any such Contract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the CORE Group or the Company, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Exploration Properties or the Retained Properties, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group pursuant to this Section 2.5, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.5.
 
(b)            Each of the Company and CORE Minerals shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as Assets owned by, and/or Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax return or otherwise) inconsistent with such treatment (unless required by applicable Law).
 
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(c)            Nothing in this Section 2.5 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.5.  For purposes of this Section 2.5, “de minimis” shall be determined in reference to customary contracts of similar nature, character and size to the Shared Contracts and not in reference to the value of the transactions contemplated by the CORE Purchase Agreement.
 
2.6            Disclaimer of Representations and Warranties
 
EACH OF THE COMPANY (ON BEHALF OF ITSELF AND EACH MEMBER OF THE COMPANY GROUP) AND CORE (ON BEHALF OF ITSELF AND EACH MEMBER OF THE CORE GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE CORE PURCHASE AGREEMENT, THE ROYAL PURCHASE AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, NO PARTY TO THIS AGREEMENT, THE CORE PURCHASE AGREEMENT, THE ROYAL PURCHASE AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, THE CORE PURCHASE AGREEMENT, THE ROYAL PURCHASE AGREEMENT OR OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR APPROVALS REQUIRED IN CONNECTION THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY CLAIM OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.  EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN, IN THE CORE PURCHASE AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED BY THIS AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM OF DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE WILL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY APPROVALS OR NOTIFICATIONS ARE NOT OBTAINED OR MADE OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.
 
2.7            Company Name and Company Marks
 
(a)            The Company shall retain all its rights and rights to use the Company Name and Company Marks.  For the avoidance of doubt, the Company shall not retain any rights in any name, trade name, trademark, logo or similar rights in and to “Royal Gold” and similar names, logos and marks, including Royal Gold’s registered trademarks.
 
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(b)            Notwithstanding anything to the contrary provided in Section 2.7(a), each member of the CORE Group may use the Company Name and Company Marks, (i) in a neutral, non-trademark manner to describe the historical relationship of the Company and CORE Group, (ii) to the extent required by Law in legal or business documents in existence at the Effective Time or (iii) as necessary in connection with the transactions contemplated by this Agreement.
 
2.8            The Distribution
 
(a)            Immediately prior to the Effective Time, the following transactions shall take place:
 
(i)            the Transferred Assets shall be transferred, and the Assumed Liabilities shall be assumed, as contemplated pursuant to Section 2.1; and
 
(ii)            the Company and CORE Minerals shall enter into the Option Agreement providing for the right of optionee to acquire certain Optioned State Claims held by CORE Minerals pursuant to the terms and conditions of the Option Agreement.
 
(b)            At the Effective Time, and subject to completion of transactions set forth in Section 2.8(a), the following transactions shall take place:
 
(i)            the Company and Royal Gold shall execute the Amended and Restated Royalty Agreement pursuant to which the Company will grant to Royal Gold the New Silver Royalty and ratify certain existing royalty obligations, pursuant to the terms and conditions of the Amended and Restated Royalty Agreement;
 
(ii)            CORE Minerals and Royal Gold shall execute the CORE Minerals Royalty Agreement pursuant to which CORE Minerals will grant to Royal Gold the CORE Minerals Royalty and ratify certain existing royalty obligations; and
 
(iii)            the Company shall distribute to CORE Alaska 100% of the membership interests in CORE Minerals, with CORE Alaska in turn distributing such membership interests to CORE, such that CORE Minerals will become a wholly-owned Subsidiary of CORE.
 
(c)            The Parties acknowledge and agree that the aggregate value of the distributions provided for in this Section 2.8 are being distributed to CORE Alaska and Royal Alaska, respectively, in proportion to their respective ownership interest in the Company, as shown in Schedule 2.8(c).

2.9            CORE Minerals.  Each of CORE and CORE Alaska hereby represent and warrant that from the date of its formation to the date of Distribution, CORE Minerals has conducted no business other than as necessary to consummate the Separation and the Distribution.
 
ARTICLE III
MUTUAL RELEASES; INDEMNIFICATION
 
3.1            Release of Pre-Distribution Claims
 
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CORE Release of the Company Group.  Except as provided in Sections 3.1(c) and 3.1(d), effective as of the Effective Time, each member of the CORE Group and CORE Minerals does hereby, for itself and each of its successors and assigns, and, to the extent permitted by applicable Law, all Persons who at any time prior to the Effective Time have been stockholders, members, directors, managers, officers, agents or employees of any member of the CORE Group (in each case, in their respective capacities as such), remise, release and forever discharge (i) the Company and the members of the Company Group, and their respective successors and assigns, (ii) Skip, (iii) Royal Gold and Royal Alaska, (iv) all Persons who at any time prior to the Effective Time have been managers, stockholders, directors, managers, officers, agents or employees of any member of the Company Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, including, without limitation, Royal Alaska in its capacity as “Manager” under the Company LLC Agreement, and (v) all Persons who at any time prior to the Effective Time are or have been stockholders, members, directors, managers, officers, agents or employees of CORE Minerals and who are not, as of immediately following the Effective Time, stockholders, members, directors, managers, officers, agents or employees of CORE Minerals, in each case from all Assumed Liabilities.
 
Company Release of the CORE Group(c).  Except as provided in Sections 3.1(c) and 3.1(d), effective as of the Effective Time, each member of the Company Group does hereby, for itself and each other member of the Company Group and their respective successors and assigns (including Skip upon consummation of the Acquisitions), and, to the extent permitted by Law, all Persons who at any time prior to the Effective Time have been stockholders, members, directors, managers, officers, agents or employees of any member of the Company Group (in each case, in their respective capacities as such), remise, release and forever discharge CORE and CORE Minerals and its successors and assigns, from all Retained Liabilities.
 
Obligations Not Affected(i).  Nothing contained in Section 3.1(a) or 3.1(b) shall impair any right of any Person to enforce this Agreement, the CORE Purchase Agreement, the Royal Purchase Agreement, or any Contracts that are specified in Section 2.4 as not to terminate as of the Effective Time, in each case, in accordance with its terms and solely to the extent such Person is a party thereto.  Nothing contained in Section 3.1(a) or 3.1(b) shall release any Person from:
 
(i)            any Liability provided in or resulting from any Contract among any members of the Company Group or the CORE Group that is specified in Section 2.4 to terminate as of the Effective Time;
 
(ii)            any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of any Group under, this Agreement, the CORE Purchase Agreement or the Royal Purchase Agreement; and
 
(iii)            any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement, the CORE Purchase Agreement or the Royal Purchase Agreement for claims brought against the Parties by third Persons, which Liability shall be governed by the provisions of this Article III and, if applicable, the appropriate provisions of the CORE Purchase Agreement or the Royal Purchase Agreement.
 
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In addition, nothing contained in Section 3.1(a) shall (i) release any member of the Company Group from honoring its existing obligations to indemnify any manager, member, director, officer or employee of the Company, CORE, CORE Alaska, or CORE Minerals who was a director, officer or employee of any member of the Company Group on or prior to the Effective Time, to the extent such manager, member, director, officer or employee becomes a named defendant in any Action with respect to which such manager, member, director, officer or employee was entitled to such indemnification pursuant to then-existing obligations under the Company LLC Agreement; it being understood that, if the underlying obligation giving rise to such Action is an Assumed Liability, CORE Minerals shall indemnify the Company for such Liability (including the Company’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article III or (ii) release Skip from honoring any of its obligations to indemnify any director, officer or employee in accordance with the CORE Purchase Agreement or the Royal Purchase Agreement.
 
(d)            No Claims. Neither CORE Minerals nor any member of the CORE Group shall make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against the Company or any other member of the Company Group, or any other Person released pursuant to Section 3.1(a), with respect to any Liabilities released pursuant to Section 3.1(a).  The Company shall not make, and shall not permit any other member of the Company Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification against CORE or CORE Minerals, or any other Person released pursuant to Section 3.1(b), with respect to any Liabilities released pursuant to Section 3.1(b).
 
3.2            Indemnification by CORE Minerals
 
Except as otherwise specifically set forth in this Agreement, to the fullest extent permitted by Law, CORE Minerals shall indemnify, defend and hold harmless the Company, each other member of the Company Group and each of their respective past, present and future members, managers, stockholders, directors, officers, employees and agents, in each case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Company Indemnitees”), from and against any and all Liabilities of the Company Indemnitees relating to, arising out of or resulting from, directly or indirectly, any of the following items (without duplication):
 
(a)            any Assumed Liability to the extent such Assumed Liability was not satisfied by the Company prior to the Effective Time;
 
(b)            any failure of CORE Minerals or any other Person to pay, perform or otherwise promptly discharge any Assumed Liabilities in accordance with their terms, whether prior to, on or after the Effective Time;
 
(c)            any breach by CORE Minerals or any member of the CORE Group of this Agreement; and
 
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(d)            except to the extent it relates to a Retained Liability, any guarantee, indemnification or contribution obligation, surety bond or other credit support Contract for the benefit of any member of the CORE Group by any member of the Company Group that survives following the Separation.
 
3.3            Indemnification by the Company
 
(a)            Except as otherwise specifically set forth in this Agreement, to the fullest extent permitted by Law, the Company shall, and shall cause the other members of the Company Group to, jointly and severally, indemnify, defend and hold harmless CORE and CORE Minerals, and each of their respective past, present and future stockholders, directors, officers, employees or agents, in each case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “CORE Indemnitees”), from and against any and all Liabilities of the CORE Indemnitees relating to, arising out of or resulting from, directly or indirectly, any of the following items (without duplication):
 
(i)            any Retained Liability;
 
(ii)            any failure of the Company, any other member of the Company Group or any other Person to pay, perform or otherwise promptly discharge any Retained Liabilities in accordance with their terms after the Effective Time;
 
(iii)            any breach by the Company or any other member of the Company Group of this Agreement after the Effective Time; and
 
(iv)            except to the extent it relates to an Assumed Liability, any guarantee, indemnification or contribution obligation, surety bond or other credit support Contract for the benefit of any member of the Company Group by any member of the CORE Group.
 
For the avoidance of doubt, neither Royal Gold nor Royal Alaska shall have any Liability for indemnification under this Agreement, including with respect to any Liability of the Company or any Liability incurred or assumed by CORE Minerals; provided that the foregoing sentence shall not affect Royal Gold’s or Royal Alaska’s obligations under any other agreement, including, without limitation, liability under the Company LLC Agreement to the extent such Liability arises out of actions or omissions of Royal Gold or Royal Alaska prior to the closing date of the transactions contemplated by the Royal Purchase Agreement (the “Royal Purchase Agreement Closing”).
 
(b)            Notwithstanding any termination, amendment, restatement, or other modification of the Company LLC Agreement after the Effective Time, the Company and each of its successors and assigns (including any such successors or assigns arising by operation of law) shall indemnify Royal Gold and Royal Alaska to the extent provided by Section 4.9 of the Company LLC Agreement as in effect immediately prior to the Effective Time.
 
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3.4            Indemnification Obligations Net of Insurance Proceeds and Other Amounts
 
(a)            The Parties intend that any Liability subject to indemnification, contribution or reimbursement pursuant to this Article III will be net of Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnitee in respect of any indemnifiable Liability.  Accordingly, the amount which either Party (an “Indemnifying Party”) is required to pay to any Person entitled to indemnification or contribution hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnitee in respect of the related Liability.  If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently receives Insurance Proceeds or any other amounts in respect of the related Liability, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or such other amounts (net of any out-of-pocket costs or expenses incurred in the collection thereof) had been received, realized or recovered before the Indemnity Payment was made.
 
(b)            The Parties agree than an insurer that would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of any provisions contained in this Agreement, have any subrogation rights with respect thereto, it being understood that no insurer or any other Third Party shall be entitled to a “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification and contribution provisions hereof.  Each Party shall, and shall cause the members of its Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorneys’ fees and expenses) to collect or recover any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification or contribution may be available under this Article III.
 
3.5            Procedures for Indemnification of Third-Party Claims
 
Notice of Claims.  If, at or following the date of this Agreement, an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Entity) who is not a member of the Company Group or the CORE Group of any claim or of the commencement by any such Person of any Action (collectively, a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to Section 3.2 or 3.3, or any other Section of this Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof as soon as reasonably practicable, but in any event within thirty (30) days (or sooner if applicable Law, statute of limitation or the nature of the Third-Party Claim so requires) after becoming aware of such Third-Party Claim.  Any such notice shall describe the Third-Party Claim in reasonable detail, including the facts and circumstances giving rise to such claim for indemnification, and include copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.  Notwithstanding the foregoing, the failure of an Indemnitee to provide notice in accordance with this Section 3.5(a) shall not relieve an Indemnifying Party of its indemnification obligations under this Agreement, except to the extent to which the Indemnifying Party is actually prejudiced by the Indemnitee’s failure to provide notice in accordance with this Section 3.5(a).
 
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Control of Defense(c).  An Indemnifying Party may elect to defend (and seek to settle or compromise), at its own expense and with its own counsel, any Third-Party Claim; provided, that, prior to the Indemnifying Party assuming and controlling defense of such Third-Party Claim, it shall first confirm to the Indemnitee in writing that, assuming the facts presented to the Indemnifying Party by the Indemnitee being true, the Indemnifying Party shall indemnify the Indemnitee for any such damages to the extent resulting from, or arising out of, such Third-Party Claim.  Notwithstanding the foregoing, if the Indemnifying Party assumes such defense and, in the course of defending such Third-Party Claim, (i) the Indemnifying Party discovers that the facts presented at the time the Indemnifying Party acknowledged its indemnification obligation in respect of such Third-Party Claim were not true in all material respects and (ii) such untruth provides a reasonable basis for asserting that the Indemnifying Party does not have an indemnification obligation in respect of such Third-Party Claim, then (A) the Indemnifying Party shall not be bound by such acknowledgment, (B) the Indemnifying Party shall promptly thereafter provide the Indemnitee written notice of its assertion that it does not have an indemnification obligation in respect of such Third-Party Claim and (C) the Indemnitee shall have the right to assume the defense of such Third-Party Claim.  Within thirty (30) days after the receipt of a notice from an Indemnitee in accordance with Section 3.5(a) (or sooner if applicable Law, statute of limitation or the nature of the Third-Party Claim so requires), the Indemnifying Party shall provide written notice to the Indemnitee indicating whether the Indemnifying Party shall assume responsibility for defending the Third-Party Claim.  If an Indemnifying Party elects not to assume responsibility for defending any Third-Party Claim or fails to notify an Indemnitee of its election within thirty (30) days after receipt of the notice from an Indemnitee as provided in Section 3.5(a), then the Indemnitee that is the subject of such Third-Party Claim shall be entitled to continue to conduct and control the defense of such Third-Party Claim.
 
(c)            Allocation of Defense Costs.  If an Indemnifying Party has elected to assume the defense of a Third-Party Claim, then such Indemnifying Party shall be solely liable for all fees and expenses incurred by it in connection with the defense of such Third-Party Claim and shall not be entitled to seek any indemnification or reimbursement from the Indemnitee for any such fees or expenses incurred by the Indemnifying Party during the course of the defense of such Third-Party Claim by such Indemnifying Party, regardless of any subsequent decision by the Indemnifying Party to reject or otherwise abandon its assumption of such defense.  If an Indemnifying Party elects not to assume responsibility for defending any Third-Party Claim or fails to notify an Indemnitee of its election within thirty (30) days after receipt of a notice from an Indemnitee as provided in Section 3.5(a), and the Indemnitee conducts and controls the defense of such Third-Party Claim and the Indemnifying Party has an indemnification obligation with respect to such Third-Party Claim, then the Indemnifying Party shall be liable for all reasonable fees and expenses incurred by the Indemnitee in connection with the defense of such Third-Party Claim.
 
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(d)            Right to Monitor and Participate.  An Indemnitee that does not conduct and control the defense of any Third-Party Claim, or an Indemnifying Party that has failed to elect to defend any Third-Party Claim as contemplated hereby, nevertheless shall have the right to employ separate counsel (including local counsel as necessary) of its own choosing to monitor and participate in (but not control) the defense of any Third-Party Claim for which it is a potential Indemnitee or Indemnifying Party, but the fees and expenses of such counsel shall be at the expense of such Indemnitee or Indemnifying Party, as the case may be, and the provisions of Section 3.5(c) shall not apply to such fees and expenses.  Notwithstanding the foregoing, but subject to Sections 5.7 and 5.8, such Party shall cooperate with the Party entitled to conduct and control the defense of such Third-Party Claim in such defense and make available to the controlling Party, at the non-controlling Party’s expense, all witnesses, information and materials in such Party’s possession or under such Party’s control relating thereto as are reasonably required by the controlling Party.  In addition to the foregoing, if any Indemnitee shall in good faith determine that such Indemnitee and the Indemnifying Party have actual or potential differing defenses or conflicts of interest between them that make joint representation inappropriate, then the Indemnitee shall have the right to employ separate counsel (including local counsel as necessary) and to participate in (but not control) the defense, compromise, or settlement thereof, and the Indemnifying Party shall bear the reasonable fees and expenses of such counsel for all Indemnitees.
 
(e)            No Settlement.  No Party may settle or compromise any Third-Party Claim for which a Party is seeking to be indemnified hereunder without the prior written consent of the other Parties (which consent may not be unreasonably withheld), unless such settlement or compromise provides for a full, unconditional and irrevocable release of the other Parties from all Liability in connection with the Third-Party Claim.
 
(f)            Mixed Claims.  Notwithstanding anything to the contrary in this Section 3.5, in the event that a Third-Party Claim for which a Party is seeking to be indemnified hereunder involves matters for which the other Party or its indemnitees is also entitled to indemnification hereunder (for example, a Third Party Claim involving both Retained Liabilities and Assumed Liabilities), then the Company shall be entitled to control the defense of such Third Party Claim, and CORE Minerals shall reimburse the Company for its proportionate share of reasonable and documented defense costs associated therewith.
 
3.6            Additional Matters
 
(a)            Timing of Payments.  Indemnification or contribution payments in respect of any Liabilities for which an Indemnitee is entitled to indemnification or contribution under this Article III shall be paid within forty-five (45) days of the final determination of the amount that the Indemnitee is entitled to indemnification or contribution under this Article III by the Indemnifying Party to the Indemnitee as such Liabilities are incurred upon demand by the Indemnitee, including reasonably satisfactory documentation setting forth the basis for the amount of such indemnification or contribution payment, including documentation with respect to calculations made and consideration of any Insurance Proceeds that actually reduce the amount of such Liabilities.  The indemnity and contribution provisions contained in this Article III shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee, or (ii) the knowledge by the Indemnitee of any Liabilities for which it might be entitled to indemnification hereunder.
 
(b)            Notice of Direct Claims.  Any claim for indemnification or contribution under this Agreement that does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnitee to the applicable Indemnifying Party; provided, that the failure by an Indemnitee to so assert any such claim shall not prejudice the ability of the Indemnitee to do so at a later time except to the extent (if any) that the Indemnifying Party is prejudiced thereby.  Such Indemnifying Party shall have a period of thirty (30) days after the receipt of such notice within which to respond thereto.  If such Indemnifying Party does not respond within such thirty (30)-day period or rejects such claim in whole or in part, such Indemnitee shall, subject to the provisions this Agreement, be free to pursue such remedies as may be available to such party as contemplated by this Agreement, as applicable, without prejudice to its continuing rights to pursue indemnification or contribution hereunder.
 
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(c)            Pursuit of Claims Against Third Parties.  If (i) a Party incurs any Liability arising out of this Agreement, (ii) an adequate legal or equitable remedy is not available for any reason against the other Party to satisfy the Liability incurred by the incurring Party, and (iii) a legal or equitable remedy may be available to the other Party against a Third Party for such Liability, then the other Party shall use its commercially reasonable efforts to cooperate with the incurring Party, at the incurring Party’s expense, to permit the incurring Party to obtain the benefits of such legal or equitable remedy against the Third Party.
 
(d)            Subrogation.  In the event of payment by or on behalf of any Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person.  Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.
 
(e)            Substitution.  In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant.  If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Action as set forth in Section 3.5 and this Section 3.6, and the Indemnifying Party shall fully indemnify the named defendant against all costs of defending the Action (including court costs, sanctions imposed by a court, attorneys’ fees, experts fees and all other external expenses), the costs of any judgment or settlement and the cost of any interest or penalties relating to any judgment or settlement.
 
(f)            Remedies Cumulative.  The remedies provided in this Article III shall be cumulative and, subject to the provisions of Article VI, shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.
 
3.7            Right of Contribution
 
If any right of indemnification contained in Section 3.2 or 3.3 is held unenforceable or is unavailable for any reason, or is insufficient to hold harmless an Indemnitee in respect of any Liability for which such Indemnitee is entitled to indemnification hereunder, then the Indemnifying Party shall contribute to the amounts paid or payable by the Indemnitees as a result of such Liability (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the members of its Group, on the one hand, and the Indemnitees entitled to contribution, on the other hand, as well as any other relevant equitable considerations.
 
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Covenant Not to Sue
 
Each Party hereby covenants and agrees that none of it, the members of such Party’s Group or any Person claiming through it shall bring suit or otherwise assert any claim against any Indemnitee, or assert a defense against any claim asserted by any Indemnitee, before any court, arbitrator, mediator or administrative agency anywhere in the world, alleging that: (a) the assumption of any Assumed Liabilities by CORE Minerals or a member of the CORE Group on the terms and conditions set forth in this Agreement is void or unenforceable for any reason; (b) the retention of any Retained Liabilities by the Company or a member of the Company Group on the terms and conditions set forth in this Agreement is void or unenforceable for any reason; or (c) the provisions of this Article III are void or unenforceable for any reason.
 
3.9            Survival of Indemnities
 
The rights and obligations of each of the Company and each member of the Company Group, CORE Minerals and each member of the CORE Group and their respective Indemnitees under this Article III shall survive (a) the sale or other transfer by either Party or any member of its Group of any Assets or businesses or the assignment by it of any liabilities or (b) any merger, consolidation, business combination, sale of all or substantially all of its Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of the members of its Group.
 
ARTICLE IV
CERTAIN OTHER MATTERS
 
4.1            Late Payments
 
Except as expressly provided to the contrary in this Agreement, any amount not paid when due pursuant to this Agreement (and any amounts billed or otherwise invoiced or demanded and properly payable that are not paid within thirty (30) days of such bill, invoice or other demand) shall accrue interest at a rate per annum equal to Prime Rate plus two percent (2%).
 
ARTICLE V
EXCHANGE OF INFORMATION; CONFIDENTIALITY
 
5.1            Agreement for Exchange of Information
 
(a)            Subject to Section 5.9 and any other applicable confidentiality obligations, each Party, on behalf of itself and each member of its Group (as applicable) agrees to use commercially reasonable efforts to provide or make available, or cause to be provided or made available, to any other Party and the members of such other Party’s Group (as applicable) at any time before, on or after the Effective Time, as soon as reasonably practicable after written request therefor, any information (or a copy thereof) in the possession or under the control of such Party or its Group (as applicable) which the requesting Party or its Group (as applicable) has reasonably requested to the extent that (i) such information relates to the Exploration Properties, or any Transferred Asset or Assumed Liability, if CORE Minerals or CORE is the requesting Party, or to the Retained Properties, or any Retained Asset or Retained Liability, if the Company is the requesting Party; (ii) such information is required by the requesting Party to comply with its obligations under this Agreement; or (iii) such information is required by the requesting Party to comply with any obligation imposed by any Governmental Entity; provided, however, that, in the event that the Party to whom the request has been made determines that any such provision of information could violate any Law or Contract, or waive any privilege available under applicable Law, including any attorney-client privilege, then the Parties shall use commercially reasonable efforts to permit compliance with such obligations to the extent and in a manner that avoids any such harm or consequence.  The Party providing information pursuant to this Section 5.1 shall only be obligated to provide such information in the form, condition and format in which it then exists, and in no event shall such Party be required to perform any improvement, modification, conversion, updating or reformatting of any such information, and nothing in this Section 5.1 shall expand the obligations of a Party under Section 5.4.
 
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(b)            Without limiting the generality of the foregoing,
 
(i)            for a period of two years following the Effective Time and as soon as reasonably practicable after written request therefor, the Company and each other member of the Company Group shall, and shall cause its respective Representatives to, permit CORE Minerals, CORE and their respective Representatives to access and remove all information, including drill core and pulp samples (the “Stored Information”) located at Tok Core Facility on land leased from Young’s Timber Inc. (the “Tok Facility”), that relates solely to the Exploration Properties, or any Transferred Asset or Assumed Liability. For the avoidance of doubt, the Parties acknowledge that (A) the Stored Information shall, at all times following the Effective Time constitute Transferred Assets contemplated by Section 2.2(b)(viii), (B) no member of the Company Group shall have any responsibility or liability for any loss of or damage to any Stored Information, and (C) CORE Minerals or CORE shall remove all Stored Information from the Tok Facility upon the earlier of (x) the two-year anniversary of the Effective Time, (y) such time that the Company reasonably determines that there is no longer adequate available space to store the Stored Information at the Tok Facility, and (z) such time that the Company determines to no longer lease the Tok Facility (provided that the Company shall provide CORE Minerals at least 90 days’ notice of such decision); and
 
(ii)            until the first fiscal year end of CORE occurring after the Effective Time (and for a reasonable period of time afterwards as required for each Party to prepare consolidated financial statements or complete a financial statement audit for the fiscal year during which the Effective Time occurs), each Party shall use its commercially reasonable efforts to cooperate with the other Party’s information requests to enable (i) the other Party to meet its timetable for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K promulgated under the Exchange Act; and (ii) the other Party’s accountants to timely complete their review of the quarterly financial statements and audit of the annual financial statements, including, to the extent applicable to such Party, its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002, the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder and any other applicable Laws;
 
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provided, however, that Royal Gold’s only obligations under this Section 5.1(b) shall be the following: Royal Gold shall use its commercially reasonable efforts to cooperate with reasonable information requests by CORE or the auditor selected by CORE relating to periods prior to the Royal Purchase Agreement Closing by (i) responding to such reasonable information requests, (ii) providing access to employees and other representatives on a mutually convenient basis in a manner such as to not unreasonably interfere with the normal operation of Royal Gold’s business, (iii) providing, at CORE’s request, reasonable access to available historical information relating to the Transferred Assets or Assumed Liabilities, and (iv) providing all work papers or similar records under Royal Gold’s control reasonably requested by CORE or the auditor chosen by CORE to prepare financial statements, in each case, to the extent reasonably required in connection with the preparation of audited financial statements relating to the Transferred Assets or Assumed Liabilities (it being understood that CORE is responsible for the preparation of such financial statements, including any adjustments relating to any actions to be taken on or after the Effective Time).  In the event that Royal Gold incurs Third Party expenses in order to provide assistance in accordance with this Section 5.1, CORE shall promptly either reimburse Royal Gold or pay such out-of-pocket expenses directly on Royal Gold’s behalf.
 
5.2            Ownership of Information
 
The provision of any information pursuant to Section 5.1 or 5.7 shall not affect the ownership of such information (which shall be determined solely in accordance with the terms of this Agreement), or constitute a grant of rights in or to any such information.
 
5.3            Compensation for Providing Information
 
The Party requesting information agrees to reimburse the other Party for the reasonable out-of-pocket costs, if any, of copying, and transporting such information.
 
5.4            Record Retention
 
To facilitate the possible exchange of information pursuant to this Article V and other provisions of this Agreement after the Effective Time, the Parties agree to use their commercially reasonable efforts to retain all information in their respective possession or control on the Effective Time in accordance with the policies of the Company as in effect on the Effective Time; provided, however, that in the case of any information relating to Taxes, employee benefits or Environmental Liabilities, such retention period shall be extended to the expiration of the applicable statute of limitations (giving effect to any extensions thereof).
 
5.5            Limitations of Liability
 
No Party shall have any Liability to any other Party in the event that any information exchanged or provided pursuant to this Agreement is found to be inaccurate in the absence of gross negligence or willful misconduct by the Party providing such information.  No Party shall have any Liability to any other Party if any information is destroyed after commercially reasonable efforts by such Party to comply with the provisions of Section 5.4.
 
5.6            Other Agreements Providing for Exchange of Information.
 
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Any Party that receives, pursuant to request for information in accordance with this Article V, Tangible Information that is not relevant to its request shall (i) return it to the providing Party or, at the providing Party’s request, destroy such Tangible Information; and (ii) deliver to the providing Party written confirmation that such Tangible Information was returned or destroyed, as the case may be, which confirmation shall be signed by an authorized representative of the requesting Party.
 
5.7            Production of Witnesses; Records; Cooperation
 
(a)            After the Effective Time, each Party shall use its commercially reasonable efforts to make available to each other Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group (as applicable) as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available without undue burden, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the requesting Party (or member of its Group) may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought hereunder.  The requesting Party shall bear all costs and expenses in connection therewith.
 
(b)            If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third-Party Claim, each other Party shall make available to such Indemnifying Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group  (as applicable) as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available without undue burden, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be.
 
(c)            Without limiting the foregoing, the Parties shall cooperate and consult to the extent reasonably necessary with respect to any Actions.
 
(d)            Without limiting any provision of this Section 5.7, each of the Parties agrees to cooperate, and to cause each member of its respective Group (as applicable) to cooperate, with each other in the defense of any infringement or similar claim with respect any Intellectual Property and shall not claim to acknowledge, or permit any member of its respective Group to claim to acknowledge, the validity or infringing use of any Intellectual Property of a third Person in a manner that would hamper or undermine the defense of such infringement or similar claim.
 
(e)            The obligation of the Parties to provide witnesses pursuant to this Section 5.7 is intended to be interpreted in a manner so as to facilitate cooperation and shall include the obligation to provide as witnesses inventors and other officers without regard to whether the witness or the employer of the witness could assert a possible business conflict (subject to the exception set forth in the first sentence of Section 5.7(a)).
 
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5.8            Privileged Matters
 
(a)            The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the Company Group and the CORE Group, and that each of the members of the Company Group and the CORE Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith.  The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Company Group or the CORE Group, as the case may be.
 
(b)            The Parties agree as follows:
 
(i)            the Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to the Retained Assets and not to the Transferred Assets, whether or not the Privileged Information is in the possession or under the control of any member of the Company Group or any member of the CORE Group.  The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of any member of the Company Group or any member of the CORE Group; and
 
(ii)            CORE and CORE Minerals shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to the Transferred Assets and not to the Retained Assets, whether or not the Privileged Information is in the possession or under the control of any member of the CORE Group or any member of the Company Group.  CORE and CORE Minerals shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Assumed Liabilities, whether or not the Privileged Information is in the possession or under the control of any member of the CORE Group or any member of the Company Group.
 
(iii)            If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information unless the Parties otherwise agree.  The Parties shall use the procedures set forth in Article VIII to resolve any disputes as to whether any information relates solely to the Retained Assets, solely to the Transferred Assets, or to both the Retained Assets and the Transferred Assets.
 
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(c)            Subject to the remaining provisions of this Section 5.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 5.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party.
 
(d)            If any dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, each Party agrees that it shall (i) negotiate with the other Party in good faith; (ii) endeavor to minimize any prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party.  Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests.
 
(e)            In the event of any adversarial Action or dispute between the Company and CORE or CORE Minerals or, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 5.8(c); provided, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party.
 
(f)            Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request that may reasonably be expected to result in the production or disclosure of Privileged Information subject to a shared privilege or immunity or as to which another Party has the sole right hereunder to assert a privilege or immunity, or if either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, such Party shall promptly notify the other Party of the existence of the request within five (5) business days following the receipt of any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section 5.8 or otherwise, to prevent the production or disclosure of such Privileged Information.
 
(g)            Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of the Company and CORE Minerals set forth in this Section 5.8 and in Section 5.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities.  The Parties agree that their respective rights to any access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.
 
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(h)            In connection with any matter contemplated by Section 5.7 or this Section 5.8, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
 
5.9            Confidentiality
 
(a)            Confidentiality.  Subject to Section 5.10, from and after the Effective Time until the five (5) year anniversary of the Effective Time, each of the Parties, on behalf of itself and each member of its respective Group (as applicable), agrees to hold, and to cause its respective Representatives to hold, in strict confidence, with at least the same degree of care that applies to its own confidential and proprietary information pursuant to policies in effect as of the Effective Time, all confidential and proprietary information concerning any other Party or any member of such other Party’s Group or their respective businesses (as applicable) that is either in its possession (including confidential and proprietary information in its possession prior to the date hereof) or furnished by any such other Party or any member of such Party’s Group (as applicable) or their respective Representatives at any time pursuant to this Agreement, the CORE Purchase Agreement or the Royal Purchase Agreement, as applicable, and shall not use any such confidential and proprietary information other than for such purposes as shall be expressly permitted hereunder or thereunder, except, in each case, to the extent that such confidential and proprietary information has been (i) in the public domain or generally available to the public, other than as a result of a disclosure by such Party or any member of such Party’s Group (as applicable) or any of their respective Representatives in violation of this Agreement or any other confidentiality restriction applicable on such Person, (ii) later lawfully acquired from other sources by such Party (or any member of such Party’s Group, as applicable) which sources are not themselves bound by a confidentiality obligation or other contractual, legal or fiduciary obligation of confidentiality with respect to such confidential and proprietary information, or (iii) independently developed or generated without reference to or use of any proprietary or confidential information of the other Party or any member of such Party’s Group.  If any confidential and proprietary information of one Party or any member of its Group (as applicable) is disclosed to any other Party or any member of such other Party’s Group (as applicable) in connection with providing services to such first Party or any member of such first Party’s Group (as applicable) under this Agreement or the CORE Purchase Agreement then such disclosed confidential and proprietary information shall be used only as required to perform such services.
 
(b)            No Release; Return or Destruction.  Each Party agrees not to release or disclose, or permit to be released or disclosed, any information addressed in Section 5.9(a) to any other Person, except its Representatives who need to know such information in their capacities as such (who shall be advised of their obligations hereunder with respect to such information), and except in compliance with Section 5.10.  Without limiting the foregoing, when any such information is no longer needed for the purposes contemplated by this Agreement or the CORE Purchase Agreement, each Party will promptly after request of the other Party either return to the other Party all such information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or notify the other Party in writing that it has destroyed such information (and such copies thereof and such notes, extracts or summaries based thereon).
 
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(c)            Third-Party Information; Privacy or Data Protection Laws.  Each Party acknowledges that it and members of its Group (as applicable) may presently have and, following the Effective Time, may gain access to or possession of confidential or proprietary information of, or personal information relating to, Third Parties (i) that was received under confidentiality or non-disclosure Contracts entered into between such Third Parties, on the one hand, and the other Party or members of such Party’s Group (as applicable), on the other hand, prior to the Effective Time; or (ii) that, as between the Parties, was originally collected by another Party or members of such Party’s Group (as applicable) and that may be subject to and protected by privacy, data protection or other applicable Laws.  Each Party agrees that it shall hold, protect and use, and shall cause the members of its Group (as applicable) and its and their respective Representatives to hold, protect and use, in strict confidence the confidential and proprietary information of, or personal information relating to, Third Parties in accordance with privacy, data protection or other applicable Laws and the terms of any Contracts that were either entered into before the Effective Time or affirmative commitments or representations that were made before the Effective Time by, between or among the other Party or members of the other Party’s Group (as applicable), on the one hand, and such Third Parties, on the other hand.
 
5.10            Protective Arrangements
 
In the event that a Party or any member of its Group (as applicable) either determines on the advice of its counsel that it is required to disclose any information pursuant to applicable Law or receives any request or demand under lawful process or from any Governmental Entity to disclose or provide information of another Party (or any member of the other Party’s Group) that is subject to the confidentiality provisions hereof, such Party shall notify such other Party (to the extent legally permitted) as promptly as practicable under the circumstances prior to disclosing or providing such information and shall cooperate, at the expense of the other Party, in seeking any appropriate protective order requested by the other Party.  In the event that such other Party fails to receive such appropriate protective order in a timely manner and the Party receiving the request or demand reasonably determines that its failure to disclose or provide such information shall actually prejudice the Party receiving the request or demand, then the Party that received such request or demand may thereafter disclose or provide information to the extent required by such Law (as so advised by its counsel) or by lawful process or such Governmental Entity, and the disclosing Party shall promptly provide the other Party with a copy of the information so disclosed, in the same form and format so disclosed, together with a list of all Persons to whom such information was disclosed, in each case to the extent legally permitted.
 
ARTICLE VI
FURTHER ASSURANCES AND ADDITIONAL COVENANTS
 
6.1            Further Assurances
 
(a)            In addition to the actions specifically provided for elsewhere in this Agreement, the CORE Purchase Agreement or the Royal Purchase Agreement, each of the Parties shall use its reasonable best efforts, prior to, on and after the Effective Time, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws, regulations and agreements to consummate and make effective the transactions contemplated by this Agreement.
 
30

(b)            Without limiting the foregoing, prior to, on and after the Effective Time, each Party hereto shall cooperate with each other Party, and without any further consideration, but at the expense of the requesting Party, to execute and deliver, or use its reasonable best efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all Approvals or Notifications of, any Governmental Entity or any other Person under any Permit or Contract (including any consents or Governmental Approvals), and to take all such other actions as such Party may reasonably be requested to take by the other Party from time to time, consistent with the terms of this Agreement in order to effectuate the provisions and purposes of this Agreement and the transfers of the Transferred Assets and the Retained Assets and the assignment and assumption of the Assumed Liabilities and the Retained Liabilities and the other transactions contemplated hereby and thereby.  Without limiting the foregoing, each Party will, at the reasonable request, cost and expense of any other Party, take such other actions as may be reasonably necessary to vest in such other Party good and marketable title to the Assets allocated to such Party under this Agreement, free and clear of any Security Interest, if and to the extent it is practicable to do so.
 
(c)            On or prior to the Effective Time, the Company and CORE in their respective capacities as direct and indirect equityholders of the members of their Groups, shall each ratify any actions which are reasonably necessary or desirable to be taken by the Company, CORE, for themselves and for and on behalf of all members of their respective Groups, as the case may be, to effectuate the transactions contemplated by this Agreement.
 
6.2            Tax Matters
 
(a)            Tax Cooperation.  The Parties shall cooperate in good faith as and to the extent reasonably requested by any other Party, in connection with the filing of Tax returns and any Tax proceeding with respect to Taxes imposed on or with respect to the operations or activities of the Company Group and the CORE Group, or any transaction contemplated in this Agreement.  Such cooperation shall include the retention and (upon the other Party’s request) the provision of records and information which are reasonably relevant to any such Tax return or Tax proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
 
(b)            Tax Treatment.  The Parties agree to treat the transactions contemplated in this Agreement as follows for applicable federal, state, and local Tax purposes (i) (a) any payment required by this Agreement (other than payments with respect to interest accruing after the Effective Time) as either a contribution by the Company to CORE Minerals or a distribution by CORE Minerals to the Company, as the case may be, occurring immediately prior to the Effective Time or as a payment of an Assumed Liability or a Retained Liability; and (b) any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by applicable Law; (ii) the contribution of the Transferred Assets from the Company to CORE Minerals as a transfer between a disregarded entity and its sole owner; (iii) the distribution by the Company to CORE of the 100% of the membership interests in CORE Minerals as a distribution subject to Sections 731, 737, and 751(b) of the Code, and the related provisions of the Code and Treasury Regulations thereunder; and (iv) the distribution by the Company to Royal Alaska of the New Silver Royalty and the CORE Minerals Royalty as a distribution subject to Sections 731, 737, and 751(b) of the Code, and the related provisions of the Code and Treasury Regulations thereunder. No Party or their Affiliates shall take any positions inconsistent with the foregoing unless otherwise required by Law unless there is a final determination pursuant to Section 1313 of the Code to the contrary.

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(c)            Withholding.  Each Party shall be entitled to deduct and withhold from any amounts otherwise payable or deliverable to any other Party or any Affiliate thereof (and such Party and its Affiliates shall indemnify, defend and hold harmless the paying party and its Affiliates against) such amounts as may be required to be deducted or withheld therefrom under Law; provided that a paying Party shall use commercially reasonable efforts to provide to the other Party notice of any amounts otherwise payable that it intends to deduct and withhold at least fifteen (15) days prior to making such withholding, and the Parties shall use commercially reasonable efforts to reduce or eliminate such withholding.  To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes as having been paid to the Person to whom such amounts would otherwise have been paid absent such deduction or withholding.
 
(d)            FIRPTA Compliance.  The transferor of any assets pursuant to the terms of this Agreement shall have the obligation, responsibility and liability for any FIRPTA Compliance that may apply.
 
(e)            Transfer Taxes.  Any Party that is the transferor of an asset pursuant to the terms of this Agreement that results in the imposition of Transfer Taxes shall be liable for the payment of such Transfer Taxes and shall indemnify and hold harmless all other Parties under this Agreement for the liability resulting from the imposition of such Transfer Taxes.
 
6.3            Post-Effective Time Conduct
 
The Parties acknowledge that, after the Effective Time, each Party shall be independent of each other Party, with responsibility for its own actions and inactions and its own Liabilities relating to, arising out of or resulting from the conduct of its business, operations and activities following the Effective Time and each Party shall (except as otherwise provided in Article III) use commercially reasonable efforts to prevent such Liabilities from being inappropriately borne by any other Party.
 
6.4            Successors
 
If CORE Minerals or any of its successors or assigns (a) consolidates with or merges with or into any other Person and is not the continuing or surviving corporation, partnership or other entity of such consolidation or merger, or (b) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision will be made so that the successors and assigns of CORE Minerals assume the obligations set forth in Section 3.2.
 
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6.5            Tag-Along Right; Drag Right
 
If and only if the Royal Purchase Agreement Closing pursuant to the Royal Purchase Agreement occurs, and effective immediately prior to the Royal Purchase Agreement Closing, (i) CORE and CORE Alaska waive the Tag-Along Right, as defined in the Company LLC Agreement solely with respect to the Royal Gold Acquisition, (ii) Royal Gold and Royal Alaska waive the Drag Right, as defined in the Company LLC Agreement and (iii) each of Royal Alaska and CORE Alaska waive compliance with the requirements set forth in Section 15.2(a) of the Company LLC Agreement.  If and only if the CORE Purchase Agreement Closing pursuant to the CORE Purchase Agreement occurs, and effective immediately prior to closing under the CORE Purchase Agreement, Royal Gold and Royal Alaska waive the Tag-Along Right, as defined in the Company LLC Agreement, solely with respect to the CORE Acquisition.
 
ARTICLE VII
RESERVED
 
ARTICLE VIII
MISCELLANEOUS
 
8.1            Counterparts; Entire Agreement; Authorization
 
(a)            This Agreement may be executed and delivered in any number of counterparts (including by facsimile or electronic transmission), each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument. This Agreement will become effective when each Party to this Agreement will have received counterparts signed by all of the other Parties.
 
(b)            This Agreement (including the schedules, exhibits and appendices hereto) constitutes the entire agreement, and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the Parties with respect to the subject matter hereof.
 
(c)            Each of the Parties represents as follows:
 
(i)            each such Person has all necessary corporate or limited liability company power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; and
 
(ii)            this Agreement to which it is a party has been duly authorized by all necessary corporate or limited liability company action on the part of the such Party and no other corporate proceedings on the part of such Party are necessary to approve this Agreement or to consummate the Separation.
 
8.2            Governing Law
 
This Agreement shall be governed by and construed in accordance with, including as to validity, interpretation and effect, the internal Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
 
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8.3            Submission to Jurisdiction
 
Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any Party or its Affiliates against any other Party or its Affiliates shall be brought and determined exclusively in the Court of Chancery of the State of Delaware, provided that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding shall be brought exclusively in any federal court located in the State of Delaware.  Each of the Parties hereby irrevocably submits to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby.  Each of the Parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware.  Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient.  Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
 
8.4            Waiver of Jury Trial
 
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
 
8.5            Assignability
 
Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other party, and any such assignment without the prior written consent of the other parties, and any such assignment without the prior written consent shall be null and void.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
 
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8.6            Third-Party Beneficiaries
 
Other than Skip, and except for the indemnification rights under this Agreement of any the Company Indemnitee or CORE Indemnitee in their respective capacities as such, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
 
8.7            Notices
 
All notices, and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of the receipt, if delivered personally, (b) on the date of receipt, if delivered by facsimile or e-mail during business hours on a business day or, if delivered outside of normal business hours on a business day, on the first business day thereafter, (c) on the first business day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier, or (d) on the earlier of confirmed receipt of the fifth business day following the mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instruments as may be designated in writing by the party to receive such notice be:
 
If to the Company, to:

Peak Gold, LLC
c/o Kinross Gold U.S.A., Inc.
5075 S. Syracuse Street, 8th Floor
Denver, Colorado 80237 Attention:  General Counsel
E-mail:

If to CORE, CORE Alaska, or CORE Minerals, to:

Contango ORE, Inc.
3700 Buffalo Speedway, Suite 925
Houston, Texas, 77098
Attention: Rick Van Nieuwenhuyse, President & Chief Executive Officer
E-mail:

If to Royal Gold, to:

Royal Gold, Inc.
1144 15th Street, Suite 2500
Denver, Colorado 80202
Email: 
Attention: Notices

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If to Royal Alaska prior to the Royal Purchase Agreement Closing, to:

Royal Gold, Inc.
1144 15th Street, Suite 2500
Denver, Colorado 80202
Email: 
Attention: Notices

If to Royal Alaska after the Royal Purchase Agreement Closing, to:

Royal Alaska, LLC
c/o Kinross Gold U.S.A., Inc.
5075 S. Syracuse Street, 8th Floor
Denver, Colorado 80237
Attention: General Counsel
E-mail: 

or to such other persons, addresses or facsimile numbers as may be designated in writing by the person entitled to receive such communication as provided above.

8.8            Severability
 
If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as either the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party or such party waives its rights under this Section 8.8 with respect thereto.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
 
8.9            No Set-Off
 
Except as mutually agreed to in writing by the Parties, no Party nor any member of such Party’s group shall have any right of set-off or other similar rights with respect to (a) any amounts received pursuant to this Agreement; or (b) any other amounts claimed to be owed to the other Party or any member of its Group arising out of this Agreement.
 
8.10            Publicity
 
Prior to the Effective Time, each of CORE and the Company shall, and shall cause each of their respective Affiliates and Representatives to, consult with each other prior to issuing any press releases or otherwise making public statements with respect to the Separation or any of the other transactions contemplated hereby and prior to making any filings with any Governmental Entity with respect thereto, except as may be required by applicable Law.
 
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8.11            Expenses
 
Except as otherwise expressly set forth in this Agreement, and except as otherwise agreed to in writing by the Parties, all costs and expenses, including Taxes, incurred or accrued in connection with the preparation, execution, delivery and implementation and the consummation of the transactions contemplated hereby (including any and all fees and expenses payable to third-party advisors) shall be borne by the Person incurring such costs and expenses.
 
8.12            Survival of Covenants
 
Except as expressly set forth in this Agreement, the covenants, representations or warranties contained in this Agreement or in any instrument delivered pursuant to this Agreement, shall survive the Effective Time and shall remain in full force and effect.
 
8.13            Waivers of Default
 
Waiver by a Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the other Party.  No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege.
 
8.14            Specific Performance
 
The parties agree that irreparable damage would occur in the event that the parties do not perform the provisions of this Agreement in accordance with its terms or otherwise breach such provisions.  Subject to the provisions of this Agreement, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party or Parties who are, or are to be, thereby aggrieved shall have the right to an injunction, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.  Each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security as a prerequisite to obtaining equitable relief.
 
8.15            Amendments
 
No provisions of this Agreement shall be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing and signed on behalf of each of the parties, and, prior to the Effective Time, no Party shall, without the prior written consent of Skip, make any amendment, waiver (including any related determination under Section 3.1(b)), supplement or modification of this Agreement in a manner that is materially adverse to the Company or Skip or that would prevent or materially impede consummation of the CORE Acquisition or the Royal Gold Acquisition.
 
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8.16            Interpretation
 
When a reference is made in this Agreement to an Article, Section, paragraph or clause, such reference shall be to an Article, Section, paragraph or clause of this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  All words used in this Agreement will be construed to be of such gender as the circumstances require, and in the singular or plural as the circumstances require.  The word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified.  The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “or” is not exclusive.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “asset” and “property” shall be deemed to have the same meaning, and to refer to all assets and properties, whether real or personal, tangible or intangible.  Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated.  References to any Law include references to any associated rules, regulations and official guidance with respect thereto.  References to a Person are also to its predecessors, successors and assigns.  Unless otherwise specifically indicated, all references to “dollars” and “$” are references to the lawful money of the United States of America.  References to “days” mean calendar days unless otherwise specified.  Each party hereto has been represented by counsel in connection with this Agreement and the transactions contemplated hereby and, accordingly, any rule of Law or any legal doctrine that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.  References to the “transactions contemplated by this Agreement” or words of similar import shall refer to all transactions contemplated by this Agreement and the Schedules attached hereto, including the Separation.
 
8.17            Performance
 
Each Party (including its permitted successors and assigns) agrees that it will (a) give timely notice of the terms, conditions and continuing obligations contained in this Agreement to all of the other members of its Group and (b) cause all of the other members of its Group not to take any action or fail to take any such action inconsistent with such Party’s obligations under this Agreement or the transactions contemplated hereby or thereby.
 
8.18            Mutual Drafting
 
This Agreement shall be deemed to be the joint work product of the Parties and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.
 
[Remainder of page intentionally left blank]
 
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IN WITNESS WHEREOF, the parties have caused this Separation and Distribution Agreement to be executed by their duly authorized representatives as of the date first written above.
 
 
PEAK GOLD, LLC
By: Royal Alaska, LLC, its Manager
   
     
By:
/s/ William Heissenbuttel
   
 
Name: William Heissenbuttel
Title: President
   

CORE MINERALS ALASKA, LLC
   
     
By:
/s/ Rick Van Nieuwenhuyse
   
 
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
   
       
CONTANGO ORE, INC.
   
     
By:
/s/ Rick Van Nieuwenhuyse
   
 
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
   

CORE ALASKA, LLC
   
     
By:
/s/ Rick Van Nieuwenhuyse
   
 
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
   

ROYAL GOLD, INC.
 
By:
/s/ William Heissenbuttel
   
 
Name: William Heissenbuttel
Title: President and CEO
   


ROYAL ALASKA, LLC
 
By:
/s/ William Heissenbuttel
   
 
Name: William Heissenbuttel
Title: President
   
 



Schedule I - Exploration Properties
 
Copper River Meridian, Fairbanks Recording District, AK


 
ADL
Number
 
 
Claim Name
 
Location Date
MCL,
LL, or
SS MCL
MTRSC
or     Traditional
1/4 or
1/4-1/4
 
 
T
 
 
R
 
 
S
 
 
Q
 
 
Q-Q
 
Date Recorded
 
Document Number
 
Amendment Recorded
Amendment Document Number
614253
TOK 1
2/17/2010
MCL
Trad
 
16N
13E
9
NW
NW
3/1/2010
2010-002885
3/31/2010
2010-005089
614254
TOK 2
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
9
NW
SW
3/1/2010
2010-002886
   
614255
TOK 3
2/17/2010
MCL
Trad
 
16N
13E
9
NW
SE
3/1/2010
2010-002887
3/31/2010
2010-005090
614256
TOK 4
2/17/2010
MCL
Trad
 
16N
13E
9
NE
SW
3/1/2010
2010-002888
3/31/2010
2010-005091
614257
TOK 5
2/17/2010
MCL
MTRSC
1/4
16N
13E
8
SE
 
3/1/2010
2010-002889
   
614258
TOK 6
2/17/2010
MCL
MTRSC
1/4
16N
13E
9
SW
 
3/1/2010
2010-002890
   
614259
TOK 7
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
9
SE
NW
3/1/2010
2010-002891
   
614260
TOK 8
2/17/2010
MCL
Trad
 
16N
13E
9
SE
NE
3/1/2010
2010-002892
3/31/2010
2010-005092
614261
TOK 9
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
9
SE
SW
3/1/2010
2010-002893
   
614262
TOK 10
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
9
SE
SE
3/1/2010
2010-002894
   
614263
TOK 11
2/17/2010
MCL
Trad
 
16N
13E
10
SW
SW
3/1/2010
2010-002895
3/31/2010
2010-005093
614264
TOK 12
2/17/2010
MCL
Trad
 
16N
13E
10
SW
SE
3/1/2010
2010-002896
3/31/2010
2010-005094
614265
TOK 13
2/17/2010
MCL
MTRSC
1/4
16N
12E
13
NE
 
3/1/2010
2010-002897
   
614266
TOK 14
2/17/2010
MCL
MTRSC
1/4
16N
13E
18
NW
 
3/1/2010
2010-002898
   
614267
TOK 15
2/17/2010
MCL
MTRSC
1/4
16N
13E
18
NE
 
3/1/2010
2010-002899
   
614268
TOK 16
2/17/2010
MCL
MTRSC
1/4
16N
13E
17
NW
 
3/1/2010
2010-002900
   
614269
TOK 17
2/17/2010
MCL
MTRSC
1/4
16N
13E
17
NE
 
3/1/2010
2010-002901
   
614270
TOK 18
2/17/2010
MCL
MTRSC
1/4
16N
13E
16
NW
 
3/1/2010
2010-002902
   
614271
TOK 19
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
16
NE
NW
3/1/2010
2010-002903
   
614272
TOK 20
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
16
NE
NE
3/1/2010
2010-002904
   
614273
TOK 21
2/17/2010
MCL
Trad
 
16N
13E
15
NW
NW
3/1/2010
2010-002905
3/31/2010
2010-005095
614274
TOK 22
2/17/2010
MCL
Trad
 
16N
13E
16
NE
SW
3/1/2010
2010-002906
3/31/2010
2010-005096
614275
TOK 23
2/17/2010
MCL
Trad
 
16N
13E
16
NE
SE
3/1/2010
2010-002907
3/31/2010
2010-005097
614276
TOK 24
2/17/2010
MCL
Trad
 
16N
13E
15
NW
SW
3/1/2010
2010-002908
3/31/2010
2010-005098
614277
TOK 25
2/17/2010
MCL
MTRSC
1/4
16N
12E
14
SE
 
3/1/2010
2010-002909
   
614278
TOK 26
2/17/2010
MCL
MTRSC
1/4
16N
12E
13
SW
 
3/1/2010
2010-002910
   
614279
TOK 27
2/17/2010
MCL
MTRSC
1/4
16N
12E
13
SE
 
3/1/2010
2010-002911
   
614280
TOK 28
2/17/2010
MCL
MTRSC
1/4
16N
13E
18
SW
 
3/1/2010
2010-002912
   
614281
TOK 29
2/17/2010
MCL
MTRSC
1/4
16N
13E
18
SE
 
3/1/2010
2010-002913
   
614282
TOK 30
2/17/2010
MCL
MTRSC
1/4
16N
13E
17
SW
 
3/1/2010
2010-002914
   
614283
TOK 31
2/17/2010
MCL
MTRSC
1/4
16N
13E
17
SE
 
3/1/2010
2010-002915
   
614284
TOK 32
2/17/2010
MCL
MTRSC
1/4
16N
13E
16
SW
 
3/1/2010
2010-002916
   
614285
TOK 33
2/17/2010
MCL
Trad
 
16N
13E
16
SE
NW
3/1/2010
2010-002917
3/31/2010
2010-005099
614286
TOK 34
2/17/2010
MCL
Trad
 
16N
13E
16
SE
SW
3/1/2010
2010-002918
3/31/2010
2010-005100
614287
TOK 35
2/17/2010
MCL
MTRSC
1/4
16N
12E
23
NW
 
3/1/2010
2010-002919
   
614288
TOK 36
2/17/2010
MCL
MTRSC
1/4
16N
12E
23
NE
 
3/1/2010
2010-002920
   
614289
TOK 37
2/17/2010
MCL
MTRSC
1/4
16N
12E
24
NW
 
3/1/2010
2010-002921
   
614290
TOK 38
2/17/2010
MCL
MTRSC
1/4
16N
12E
24
NE
 
3/1/2010
2010-002922
   


Page 1 of 30

 
ADL
Number
 
 
Claim Name
 
Location Date
MCL,
LL, or
SS MCL
MTRSC
or     Traditional
1/4 or
1/4-1/4
 
 
T
 
 
R
 
 
S
 
 
Q
 
 
Q-Q
 
Date Recorded
 
Document Number
 
Amendment Recorded
Amendment Document Number
614291
TOK 39
2/17/2010
MCL
MTRSC
1/4
16N
13E
19
NW
 
3/1/2010
2010-002923
   
614292
TOK 40
2/17/2010
MCL
MTRSC
1/4
16N
13E
19
NE
 
3/1/2010
2010-002924
   
614293
TOK 41
2/17/2010
MCL
MTRSC
1/4
16N
13E
20
NW
 
3/1/2010
2010-002925
   
614294
TOK 42
2/17/2010
MCL
MTRSC
1/4
16N
13E
20
NE
 
3/1/2010
2010-002926
   
614295
TOK 43
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
21
NW
NW
3/1/2010
2010-002927
   
614296
TOK 44
2/17/2010
MCL
Trad
 
16N
13E
21
NW
NE
3/1/2010
2010-002928
3/31/2010
2010-005101
614297
TOK 45
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
21
NW
SW
3/1/2010
2010-002929
   
614298
TOK 46
2/17/2010
MCL
Trad
 
16N
13E
21
NW
SE
3/1/2010
2010-002930
3/31/2010
2010-005102
614299
TOK 47
2/17/2010
MCL
MTRSC
1/4
16N
12E
22
SE
 
3/1/2010
2010-002931
   
614300
TOK 48
2/17/2010
MCL
MTRSC
1/4
16N
12E
23
SW
 
3/1/2010
2010-002932
   
614301
TOK 49
2/17/2010
MCL
MTRSC
1/4
16N
12E
23
SE
 
3/1/2010
2010-002933
   
614302
TOK 50
2/17/2010
MCL
MTRSC
1/4
16N
12E
24
SW
 
3/1/2010
2010-002934
   
614303
TOK 51
2/17/2010
MCL
MTRSC
1/4
16N
12E
24
SE
 
3/1/2010
2010-002935
   
614304
TOK 52
2/17/2010
MCL
MTRSC
1/4
16N
13E
19
SW
 
3/1/2010
2010-002936
   
614305
TOK 53
2/17/2010
MCL
MTRSC
1/4
16N
13E
19
SE
 
3/1/2010
2010-002937
   
614306
TOK 54
2/17/2010
MCL
MTRSC
1/4
16N
13E
20
SW
 
3/1/2010
2010-002938
   
614307
TOK 55
2/17/2010
MCL
MTRSC
1/4
16N
13E
20
SE
 
3/1/2010
2010-002939
   
614308
TOK 56
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
21
SW
NW
3/1/2010
2010-002940
   
614309
TOK 57
2/17/2010
MCL
Trad
 
16N
13E
21
SW
NE
3/1/2010
2010-002941
3/31/2010
2010-005103
614310
TOK 58
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
21
SW
SW
3/1/2010
2010-002942
   
614311
TOK 59
2/17/2010
MCL
Trad
 
16N
13E
21
SW
SE
3/1/2010
2010-002943
3/31/2010
2010-005104
614312
TOK 60
2/17/2010
MCL
Trad
 
16N
13E
21
SE
SW
3/1/2010
2010-002944
3/31/2010
2010-005105
614313
TOK 61
2/17/2010
MCL
MTRSC
1/4
16N
12E
27
NW
 
3/1/2010
2010-002945
   
614314
TOK 62
2/17/2010
MCL
MTRSC
1/4
16N
12E
27
NE
 
3/1/2010
2010-002946
   
614315
TOK 63
2/17/2010
MCL
MTRSC
1/4
16N
12E
26
NW
 
3/1/2010
2010-002947
   
614316
TOK 64
2/17/2010
MCL
MTRSC
1/4
16N
12E
26
NE
 
3/1/2010
2010-002948
   
614317
TOK 65
2/17/2010
MCL
MTRSC
1/4
16N
12E
25
NW
 
3/1/2010
2010-002949
   
614318
TOK 66
2/17/2010
MCL
MTRSC
1/4-1/4
16N
12E
25
NE
NW
3/1/2010
2010-002950
   
614319
TOK 67
2/17/2010
MCL
MTRSC
1/4-1/4
16N
12E
25
NE
NE
3/1/2010
2010-002951
   
614320
TOK 68
2/17/2010
MCL
MTRSC
1/4-1/4
16N
12E
25
NE
SW
3/1/2010
2010-002952
   
614321
TOK 69
2/17/2010
MCL
Trad
 
16N
12E
25
NE
SE
3/1/2010
2010-002953
3/31/2010
2010-005106
614322
TOK 70
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
30
NW
NW
3/1/2010
2010-002954
   
614323
TOK 71
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
30
NW
NE
3/1/2010
2010-002955
   
614324
TOK 72
2/17/2010
MCL
Trad
 
16N
13E
30
NW
SW
3/1/2010
2010-002956
3/31/2010
2010-005107
614325
TOK 73
2/17/2010
MCL
Trad
 
16N
13E
30
NW
SE
3/1/2010
2010-002957
3/31/2010
2010-005108
614326
TOK 74
2/17/2010
MCL
MTRSC
1/4
16N
13E
30
NE
 
3/1/2010
2010-002958
   
614327
TOK 75
2/17/2010
MCL
MTRSC
1/4
16N
13E
29
NW
 
3/1/2010
2010-002959
   
614328
TOK 76
2/17/2010
MCL
MTRSC
1/4
16N
13E
29
NE
 
3/1/2010
2010-002960
   
614329
TOK 77
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
28
NW
NW
3/1/2010
2010-002961
   
614330
TOK 78
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
28
NW
NE
3/1/2010
2010-002962
   

Page 2 of 30

 
ADL
Number
 
 
Claim Name
 
Location Date
MCL,
LL, or
SS MCL
MTRSC
or     Traditional
1/4 or
1/4-1/4
 
 
T
 
 
R
 
 
S
 
 
Q
 
 
Q-Q
 
Date Recorded
 
Document Number
 
Amendment Recorded
Amendment Document Number
614331
TOK 79
2/17/2010
MCL
MTRSC
1/4-1/4
16N
13E
28
NW
SW
3/1/2010
2010-002963
   
614332
TOK 80
2/17/2010
MCL
Trad
 
16N
13E
28
NW
SE
3/1/2010
2010-002964
3/31/2010
2010-005109
614333
TOK 81
2/17/2010
MCL
Trad
 
16N
13E
28
NE
NW
3/1/2010
2010-002965
3/31/2010
2010-005110
614334
TOK 82
2/17/2010
MCL
Trad
 
16N
13E
28
NE
SW
3/1/2010
2010-002966
3/31/2010
2010-005111
614335
TOK 83
2/17/2010
MCL
MTRSC
1/4
16N
12E
28
SE
 
3/1/2010
2010-002967
   
614336
TOK 84
2/17/2010
MCL
MTRSC
1/4
16N
12E
27
SW
 
3/1/2010
2010-002968
   
614337
TOK 85
2/17/2010
MCL
MTRSC
1/4
16N
12E
27
SE
 
3/1/2010
2010-002969
   
614338
TOK 86
2/17/2010
MCL
MTRSC
1/4
16N
12E
26
SW
 
3/1/2010
2010-002970
   
614339
TOK 87
2/17/2010
MCL
MTRSC
1/4
16N
12E
26
SE
 
3/1/2010
2010-002971
   
614340
TOK 88
2/17/2010
MCL
MTRSC
1/4
16N
12E
25
SW
 
3/1/2010
2010-002972
   
614341
TOK 89
2/17/2010
MCL
Trad
 
16N
12E
25
SE
NW
3/1/2010
2010-002973
3/31/2010
2010-005112
614342
TOK 90
2/17/2010
MCL
Trad
 
16N
12E
25
SE
SW
3/1/2010
2010-002974
3/31/2010
2010-005113
614343
TOK 91
2/17/2010
MCL
Trad
 
16N
13E
29
SW
NW
3/1/2010