exv10w2



 





EXHIBIT 10.2




ROYALTY FOR TECHNICAL EXPERTISE AGREEMENT



Pursuant
to the Asset Purchase Agreement between Minera San Augusto, S.A. de
C.V. (“MSA”), O. N.
C. de Mexico S.A de C.V. (“ONCM”) and National Gold
Corporation (“National Gold”) dated as of
December 21, 2000, as amended (the “Agreement”), and for the sum of $1.00 now delivered each party
unto the other and for the good and valuable consideration (the receipt and sufficiency of which
is hereby acknowledged) Tenedoramex S. A. de C. V. and Kennecott
Minerals Company, as Assignees of
MSA, and ONCM wish to enter into this Royalty for Technical Expertise
Agreement (the “RTE
Agreement”) as follows:





	1.	 	From the date of Commencement of Commercial Production until such time as the first
2,000,000 ounces of gold have been mined, processed and sold (or deemed sold) from the
Property, ONCM shall pay to MSA or its Assignee (the
“Holder”) a royalty for technical
expertise (“RTE”) as a result of MSA providing geological and technical information on the
Mulatos Project to ONCM at the time of Closing, equal to:






	 	(a)	 	2% of the Net Smelter Returns in respect of all Products mined and sold (or
deemed sold) by ONCM from the Property; and
	 
	 	(b)	 	the applicable percentage based upon the Gold Price as published in the Wall
Street Journal for the calendar quarter in which the royalty is payable of the Net
Smelter Returns in respect of all Silver and Gold Products mined and sold (or deemed
sold) by ONCM from the Property as follows:





	 	 	 	 	 
	Gold Price Range	 	Net Smelter Return Royalty
	
	 	100% Basis
	US$0.00/oz
to US$299.99/oz
	 	 	1.0	%
	US$300.00/oz to US$324.99/oz
	 	 	1.5	%
	US$325.00/oz to US$349.99/oz
	 	 	2.0	%
	US$350.00/oz to US$374.99/oz
	 	 	3.0	%
	US$375.00/oz to US$399.99/oz
	 	 	4.0	%
	US$400.00/oz or higher
	 	 	5.0	%







	1.1	 	(a) ONCM shall pay to the Holder on or before the fifth calendar day of the month following the
end of the prior quarter a royalty reserve quarterly payment (the
“Royalty Reserve”) based upon the
Gold Price in the prior quarter as set out below:










 



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	Gold Price Range	 	Royalty Reserve
	
	 	(C$)
	US$0.00/oz
to US$274.99/oz
	 	$	25,000	 
	US$275.00/oz
to US$324.99/oz
	 	$	75,000	 
	US$325.00/oz to US$349.99/oz
	 	$	112,500	 
	US$350.00/oz to higher
	 	$	150,000	 







	 	(b)	 	The Royalty Reserve will be credited towards (i) firstly, any amounts then owing
in respect of the RTE; and (ii) secondly, at ONCM’s election towards outstanding
obligations under the Promissory Notes or Debentures. Any portion not
so credited shall be retained by the Holder without interest and may at the election
of ONCM be credited against future amounts owing from ONCM to the Holder, provided that
the Royalty Reserve may not be credited against future amounts owing in respect of the
Royalty Reserve;
	 
	 	(c)	 	The Royalty Reserve will be paid by ONCM commencing on April 5, 2002 in respect
of the first calendar quarter of 2002 and shall continue until all financial obligations
of ONCM and National Gold pursuant to the Asset Purchase Agreement, the Promissory Notes
and the Debentures as amended from time to time have been satisfied in full;
	 
	 	(d)	 	The Holder will hold the Royalty Reserve for its own benefit and not as agent or
trustee for ONCM. The Royalty Reserve shall not be refunded or returned to ONCM in any
circumstances whatsoever but may be credited against outstanding obligations of ONCM to
the Holder as set out in paragraph (b) above.






	2.	 	For the purposes of this RTE Agreement:






	 	(a)	 	“Allowable Deductions” means the following
costs incurred after the doré or
concentrate stage:






	 	(i)	 	all smelting and refining costs, sampling, assaying and
treatment charges and penalties including, but not limited to, metal losses,
penalties for impurities and charges for refining, selling and handling by the
smelter, refinery or other purchaser (including price participation charges by
smelters and/or refiners);
	 
	 	(ii)	 	costs of handling, transporting, securing (security costs) and
insuring such material from the Property or from a concentrator, whether
situated on or off the Property, to the place of sale;











 



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	 	(iii)	 	taxes based upon sales or production which cannot be recovered by ONCM, but not income taxes; and
	 
	 	(iv)	 	marketing costs, including sales commissions, incurred in selling
ore, concentrate and metal produced from the Property,






provided that if Products are deemed to have been
sold, Allowable Deductions shall include amounts
representing the items enumerated above to the
extent that they would have been borne by ONCM had
the Products actually been sold.




	 	(b)	 	“Commencement of Commercial
Production” means the first day following the first
thirty (30) consecutive days of the operation of any
mill or other processing facility located on the
Property, which mill or other processing facility has
operated at an average rate of at least 60% of its
monthly design capacity (or other lesser rate or
quantity of production as specified in an operating
plan as constituting the Commencement of Commercial
Production) and, if no mill or other processing
facility is located on the Property, after the end of
the first period of 30 consecutive days during which
ore or concentrate has been shipped from the Property
on a reasonably regular basis for the purpose of
earning revenues; provided however, that no period of
time during which ore or concentrate is shipped from
the Property for sampling, assaying, testing, analysis
or evaluation purposes, and no period of time during
which milling operations are undertaken as initial
tune-up, or milling by pilot or test plant or test
mining operations will be taken into account in
determining the date of Commencement of Commercial
Production.
	 
	 	(c)	 	“Final Settlement Date” means the
date on which refined gold or silver is available to
ONCM.
	 
	 	(d)	 	“Gold and Silver Products” means
ores, minerals, or other commercially valuable products
containing gold or silver mined from the Property,
provided that where such products contain a combination
of gold or silver and other commercially valuable
metals or minerals, Gold and Silver Products shall be
deemed to comprise only that fraction of such products
as represents the proportionate commercial value of the
gold and silver contained in such products, with the
remaining fraction of such products deemed to be
Products.”
	 
	 	(e)	 	“Gold Price” means the price per
ounce equal to the average London p.m. gold price fix
as published in The Wall Street Journal for the
calendar quarter in which the royalty is payable;
	 
	 	(f)	 	“Net Smelter Returns” means:






	 	(i)	 	in the case of gold or silver processed by a refinery, an amount equal to the number of ounces
credited to ONCM by the refinery on the Final Settlement Date multiplied by the price per ounce
equal to the average 










 



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	 	 	 	London P.M. gold price fix (for gold) and the Handy and Harman base price (for
silver) as published in The Wall Street Journal for the calendar quarter in which the
royalty is payable (which gold or silver shall be deemed to have been sold by ONCM), less Allowable
Deductions; and






	 	(ii)	 	in all other cases, the amount received by ONCM from the buyer of
the Products (or, if such Products are deemed to be sold, an amount equal to the
market value thereof f.o.b. the plant producing the same (which amount shall be
deemed to have been received by ONCM)), less Allowable Deductions.






	 	(g)	 	“Products” means ores, minerals, or other commercially valuable products, except
any fraction thereof comprising or deemed to comprise Gold and Silver Products, mined
from the Property.
	 
	 	(h)	 	“Property” means the property covered by the Concessions (as defined in the
Agreement) and including renewals and restaking of the area encompassed by those
Concessions.






	3.	 	For the purposes of determining Net Smelter Returns, all receipts and disbursements in
currency other than United States currency shall be converted into United States currency on
the day of receipt or disbursement, as the case may be.
	 
	4.	 	Net Smelter Returns shall be calculated by ONCM at the end of each calendar quarter in which
Products from the Property are sold or deemed to be sold. Quarterly calculations of Net
Smelter Returns, together with payment of the applicable RTE in United States currency, or in
kind if requested by the Holder before the end of the applicable quarter, and calculated using
the same basis of valuation and with all additional costs for payment in kind being borne by
the Holder, and copies of all net smelter receipts, shall be delivered to the Holder within
forty-five (45) days after the end of the applicable quarter. ONCM shall cause the Net Smelter
Returns and the records relating thereto to be audited within the first quarter of each
calendar year by a national firm of chartered accountants designated and paid by ONCM (which
may be the auditor of ONCM) and:






	 	(a)	 	copies of the audited reports shall be delivered to ONCM and the Holder by the
chartered accounting firm;
	 
	 	(b)	 	each party shall have three months after receipt of any audited report to object
thereto in writing to the other party, and failing such objection, such report shall be
deemed correct; and
	 
	 	(c)	 	in the event of a reaudit, all costs relating to such reaudit shall be paid by ONCM
unless the reaudit differs from the original audit by an amount equivalent to less than
1% of the amount of the original audit and the reaudit was requested by a Holder, in
which case all costs relating to such reaudit shall by paid by the Holder that requested
the reaudit.











 



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	5.	 	ONCM may, but shall not be under any duty to, engage in price protection (hedging) or
speculative transactions such as futures contracts and commodity options in its sole
discretion covering all or part of production from the Property and neither the profits nor
the losses from such transactions shall be taken into account in calculating Net Smelter
Returns.
	 
	6.	 	None of the provisions of this RTE Agreement shall give the Holder any right to management of
the Property or any mine established thereupon, nor shall the provisions be interpreted to do
so, in particular, but without limiting the generality of the preceding statement, ONCM will
plan, manage, control, conduct and supervise mining and processing operations and any decision
relating to the type, dimensions and location of the mine, its facilities, pits and
service and ancillary establishments, as well as any decision pertaining to the rate of work,
production processes, expansion of the mine and to temporary or final stoppage of commercial
exploitation and mining operations on the Property, provided that ONCM shall conduct all
operations on the Property in a good and workmanlike manner and in accordance with accepted
mining practice.
	 
	7.	 	The parties acknowledge that ONCM is not obligated to maintain in good standing, renew or
otherwise retain any interest in the Property, or application or reapplication therefor, and
that ONCM may, in its sole discretion, without penalty, relinquish, drop, abandon or allow to
lapse any or all of the Property, or the applications or reapplications therefor, without
further obligation to the Holder except as set forth in the Agreement and except as otherwise
provided by the provisions of this RTE Agreement.
	 
	8.	 	Notwithstanding the provisions of Section 7 of this RTE Agreement, if ONCM relinquishes,
drops, abandons, allows any portion of the Property to lapse, and subsequently reacquires a
direct or indirect beneficial interest with respect to such portion of the Property, then such
portion of the Property will once again be subject to the obligation to pay the RTE.
	 
	9.	 	Until payment of the RTE in full ONCM shall not transfer all or any interest in the Property
unless the proposed transferee agrees with the Holder in advance of such transfer and in
writing to be bound by the terms and conditions of this RTE.
	 
	10.	 	Within 90 days following the end of each calendar year, ONCM shall provide the Holder with an
annual report of all activities and operations conducted upon or with respect to the Property
during the preceding calendar year, together with a description of the activities and
operations anticipated during the current year (including estimates of expenditures,
production, remaining ore reserves and the RTE payable).
	 
	11.	 	The Holder or its authorized agent or representative, on not less than seven days’ notice to
ONCM, may enter upon all surface and subsurface portions of the Property under the direction and
control of ONCM for the purpose of inspecting the Property, all improvements thereto and operations
thereon, provided that the Holder and its authorized agents and representatives shall enter the
Property at their own risk and expense and may not unreasonably hinder operations on or
pertaining to the Property.










 



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	12.	 	Subject as hereinafter provided, ONCM shall indemnify and save the Holder
harmless from any loss, cost or liability incurred by it in its capacity as owner of
the RTE (including, without limitation, reasonable attorneys’ fees) as a result of a
claim by a third party and arising from any failure by ONCM at all times to comply
with all applicable federal, provincial and local laws, statutes, rules, regulations,
permits, ordinances, certificates, licences and other regulatory requirements,
policies and guidelines relating to ONCM’s operations and activities on or with
respect to the Property; provided, however, ONCM shall have the right to contest any
of the same.
	 
	13.	 	Before minerals from the Property are commingled with minerals from other properties:






	 	(a)	 	the minerals from the Property shall be measured and sampled in accordance with sound
mining and metallurgical practices for moisture, metal, and other appropriate content;
	 
	 	(b)	 	representative samples of the minerals shall be taken and
retained by ONCM together with the results of assays (including penalty
substances) and other appropriate analyses of the samples to determine metal
and other relevant content of and penalty substances in the minerals, which
samples and results will be produced at the request of the Holder; and
	 
	 	(c)	 	the amount of the RTE due and payable to the Holder from
minerals produced from the Property commingled with minerals from other
properties shall be determined.






	 	 	Following the expiration of the period for objection described in Section 4 of this
RTE Agreement, and absent timely objection by the Holder, ONCM may dispose of the
samples and results required to be kept by this Section.
	 
	14.	 	Time shall be of the essence hereof.
	 
	15.	 	After the Debentures, the Holder’s rights to the RTE shall constitute a
second charge against the Property.
	 
	16.	 	Terms with an initial capital letter which are not defined in this RTE
Agreement will have the meanings assigned to them in the Agreement.
	 
	17.	 	This RTE is assignable by the Holder in whole or in part without the consent of ONCM.
	 
	18.	 	The exchange rate applicable to the conversion of any amounts denominated
in the lawful currency of Mexico to U.S. Dollars under this RTE shall be the exchange rate reported in the
Diario Oficial of Mexico City on the date of the conversion.










 



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IN WITNESS
WHEREOF the Parties hereto have executed this RTE Agreement as of
this 23rd day of March, 2001.




	 	 	 	 	 	 
	 
	 	TENEDORAMEX S.A. de C.V.	 	 

	 
	 	 	 	 
	 

	 	By:
	 	[ILLEGIBLE]
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	KENNECOTT MINERALS COMPANY	 	 

	 
	 	 	 	 
	 

	 	By:
	 	[ILLEGIBLE]
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	O.N.C. de MEXICO S.A. de C.V.	 	 

	 
	 	 	 	 
	 

	 	By:
	 	[ILLEGIBLE]