Dollars.
SECTION 1.2
DEFINITIONS FROM PURCHASE AND SALE AGREEMENT.
UNDEFINED CAPITALIZED TERMS USED HEREIN HAVE THE RESPECTIVE MEANINGS SET FORTH
IN THE PURCHASE AND SALE AGREEMENT.
ARTICLE II
GENERAL
SECTION 2.1
ACTIVE AND RESERVE ASSETS.
(A)
APPENDICES A AND B ATTACHED HERETO SET FORTH THE OWNERSHIP RIGHTS
(THE "RIGHTS") OF APEX (OR ITS SUBSIDIARIES) WITH RESPECT TO EACH ACTIVE ASSET
OR RESERVE ASSET SET FORTH THEREIN (EACH AN "EXPLORATION PROPERTY").
APEX
REPRESENTS AND WARRANTS THAT IT, OR ITS SUBSIDIARY, OWN SUCH RIGHTS.
SUMITOMO
ACKNOWLEDGES THAT THE RIGHTS MAY BE SUBJECT TO TRANSFER RESTRICTIONS OR OTHER
LIMITATIONS (I.E. RIGHTS OF FIRST REFUSAL) AND IN CONNECTION THEREWITH,
SUMITOMO'S RIGHTS UNDER THIS AGREEMENT ARE SUBJECT THERETO.
SUBJECT TO SECTION
3.6 AND SECTION 4.6, APEX FURTHER COVENANTS, REPRESENTS AND WARRANTS THAT, TO
THE EXTENT WITHIN THE CONTROL OF APEX, NEITHER APEX NOR ANY APPLICABLE AFFILIATE
OF APEX SHALL GRANT ANY ACQUISITION RIGHTS TO THIRD-PARTIES WITH RESPECT TO THE
RIGHTS OR THE EXPLORATION PROPERTIES OTHER THAN SUMITOMO DURING THE TERM.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE OPTION
RIGHTS GRANTED HEREUNDER APPLY TO ANY PROPERTY RIGHT OR CONTRACT TO WHICH APEX
(OR ANY OF ITS SUBSIDIARIES) IS A PARTY OR ANY OF ITS RIGHTS OR INTERESTS
THEREUNDER IF, AND FOR SO LONG AS, THE GRANT OF SUCH RIGHTS SHALL CONSTITUTE OR
RESULT IN (I) THE ABANDONMENT, INVALIDATION, OR ENFORCEABILITY OF ANY RIGHT OR
INTEREST OF APEX (OR ITS SUBSIDIARIES) THEREIN OR (II) A BREACH OR TERMINATION
PURSUANT TO THE TERMS OF, OR A DEFAULT UNDER, ANY SUCH PROPERTY RIGHT OR
CONTRACT; PROVIDED, HOWEVER, THAT SUCH GRANT SHALL APPLY IMMEDIATELY AT SUCH
TIME AS THE CONDITION CAUSING SUCH ABANDONMENT, INVALIDATION, OR
UNENFORCEABILITY SHALL BE REMEDIED, AND TO THE EXTENT SEVERABLE, SHALL APPLY
IMMEDIATELY TO ANY PORTION OF SUCH PROPERTY RIGHT OR CONTRACT THAT DOES NOT
RESULT IN THE CONSEQUENCES SPECIFIED IN CLAUSE (I) OR (II) OF THIS SECTION
2.1(A).
(B)
APEX SHALL HAVE THE RIGHT AT ANY TIME, AND FROM TIME TO TIME PRIOR
TO THE COMMENCEMENT OF AN ACTIVE ASSET OPTION TERM RELATING TO A SPECIFIED
ACTIVE ASSET, TO RECLASSIFY SUCH ACTIVE ASSET AS A RESERVE ASSET AND VICE VERSA
AND APPENDICES A AND B SHALL BE AMENDED ACCORDINGLY BY APEX WITHOUT FURTHER
ACTION OF THE PARTIES UNDER SECTION 7.8; PROVIDED, HOWEVER, THAT NO SUCH
RECLASSIFICATION SHALL BE MADE ON OR AFTER 18 MONTHS AFTER THE EFFECTIVE DATE OR
WITH RESPECT TO AN ASSET IF AN ACTIVE ASSET OPTION NOTICE OR A RESERVE ASSET
OPTION NOTICE, AS APPLICABLE, HAS BEEN DELIVERED WITH RESPECT TO SUCH ASSET IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
6
ARTICLE III
ACTIVE ASSET OPTION
SECTION 3.1
GRANT OF ACTIVE ASSET OPTION.
APEX HEREBY GRANTS TO
SUMITOMO THE OPTION (THE "ACTIVE ASSET OPTION") TO ACQUIRE FROM TIME TO TIME
DURING THE TERM AND ON THE TERMS AND CONDITIONS SET FORTH IN THIS ARTICLE III,
AN UNDIVIDED INTEREST OF NOT LESS THAN 20% BUT NOT MORE THAN 35% (AN "INTEREST")
IN ONE OR MORE OF THE