UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 6-K

REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

For the month of May 2024.

Commission File Number 001-31722

New Gold Inc.

Suite 3320 - 181 Bay Street

Toronto, Ontario M5J 2T3

Canada

(Address of principal executive office)

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F ¨ Form 40-F x

INCORPORATION BY REFERENCE

Exhibits 99.1, 99.2 and 99.3 of this Form 6-K are incorporated by reference as additional exhibits to the registrant’s Registration Statement on Form F-10 (File No. 333-279369).

DOCUMENTS FILED AS PART OF THIS FORM 6-K

SIGNATURES

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, thereunto duly authorized.

Exhibit 99.1

EXECUTION VERSION

UNDERWRITING AGREEMENT

May 14, 2024

New Gold Inc.

Suite 3320, 181 Bay Street

Toronto, Ontario M5J 2T3

Attention:      Patrick Godin, President and Chief Executive Officer

Dear Sir:

CIBC World Markets Inc. (the “Lead Underwriter”), BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., Scotia Capital Inc., National Bank Financial Inc., TD Securities Inc., Merrill Lynch Canada Inc., Canaccord Genuity Corp., Laurentian Bank Securities Inc. and Raymond James Ltd. (together with the Lead Underwriter, the “Underwriters” and each individually an “Underwriter”) hereby severally, and not jointly nor jointly and severally, agree to purchase from New Gold Inc. (the “Company”) in the respective percentages set forth in Section 21, and the Company hereby agrees to issue and sell to the Underwriters, upon and subject to the terms hereof, an aggregate of 87,300,000 common shares of the Company (the “Firm Shares”) on an underwritten “bought deal” basis at a price of US$1.72 per Firm Share (the “Offering Price”) for aggregate gross proceeds of US$150,156,000.

Upon and subject to the terms and conditions contained herein, the Company hereby grants to the Underwriters an option (the “Over-Allotment Option”) to purchase severally, and not jointly nor jointly and severally, in the respective percentages set forth in Section 21 hereof, up to an additional 13,095,000 common shares of the Company (the “Additional Shares”) at a price of US$1.72 per Additional Share for the purpose of covering over-allotments, if any. The Over-Allotment Option may be exercised in accordance with Section 15 hereof. The Firm Shares and the Additional Shares are collectively referred to herein as the “Offered Shares”.

The Underwriters understand that the Company has prepared and filed with each of the Canadian Securities Commissions (as hereinafter defined) the Canadian Base Shelf Prospectus (as hereinafter defined) in respect of common shares, debt securities, subscription receipts, warrants and units of the Company, omitting the Shelf Information (as hereinafter defined) in accordance with the Shelf Procedures (as hereinafter defined) and that the Company has received a Receipt (as hereinafter defined) for the Canadian Base Shelf Prospectus on May 13, 2024. The term “Canadian Base Shelf Prospectus” means the (final) short form base shelf prospectus dated May 13, 2024 at the time the Receipt was issued with respect thereto in accordance with Canadian Securities Laws (as hereinafter defined), including the Shelf Procedures (as hereinafter defined), CSA Staff Notice 44-306 – Blanket Orders Exempting Well-known Seasoned Issuers from Certain Prospectus Requirements (“CSA Staff Notice 44-306”), the Ontario WKSI Blanket Order and the equivalent blanket orders adopted by the other Canadian Securities Commissions (together with CSA Staff Notice 44-306 and the Ontario WKSI Blanket Order, the “WKSI Blanket Orders”) and includes all Documents Incorporated by Reference therein and the documents otherwise deemed to be a part thereof or included therein pursuant to Canadian Securities Laws. The Company has also prepared and filed a preliminary prospectus supplement relating to the Offering (as hereinafter defined), which excluded certain Shelf Information, with the Canadian Securities Commissions (including the Documents Incorporated by Reference therein, the “Canadian Preliminary Prospectus Supplement”). The Canadian Preliminary Prospectus Supplement, together with the Canadian Base Shelf Prospectus, is hereinafter called the “Canadian Preliminary Prospectus”.

The Underwriters also understand that the Company has prepared and filed with the United States Securities and Exchange Commission (the “SEC”) pursuant to the Canada/U.S. Multijurisdictional Disclosure System adopted by the SEC, a registration statement on Form F-10 (File No. 333-279369) covering the public offering and sale of the securities qualified under Applicable Securities Laws (as hereinafter defined) by the Canadian Base Shelf Prospectus, including the Offered Shares, under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), and the rules and regulations of the SEC thereunder (the Canadian Base Shelf Prospectus, together with any Documents Incorporated by Reference therein, any supplements or amendments thereto and with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC, in the form included in such Form F-10, the “U.S. Base Prospectus” and such registration statement, including the prospectus contained therein at the time it become effective, as amended or supplemented, and the exhibits thereto and the Documents Incorporated by Reference therein, in the form in which it became effective, is herein called the “Registration Statement”). The Company has also prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X (the “Form F-X”) in conjunction with the filing of the Registration Statement. The Company has also prepared and filed with the SEC, in accordance with General Instruction II.L of Form F-10, the Canadian Preliminary Prospectus Supplement, with such deletions therefrom and additions or changes thereto, as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC (the “U.S. Preliminary Prospectus Supplement”). The U.S. Preliminary Prospectus Supplement, together with the U.S. Base Shelf Prospectus, is hereinafter called the “U.S. Preliminary Prospectus”. The U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus are hereinafter collectively referred to as the “Preliminary Prospectuses”.

In addition, the Underwriters also understand that the Company will (i) prepare and file, as promptly as practicable and in any event by 5:00 p.m. (Eastern time) on May 14, 2024, with the Canadian Securities Commissions, in accordance with the Shelf Procedures, a (final) prospectus supplement setting forth the Shelf Information (including any Documents Incorporated by Reference therein and any supplements or amendments thereto, the “Canadian Prospectus Supplement”, and, together with the Canadian Base Shelf Prospectus, the “Canadian Prospectus”), and (ii) prepare and file with the SEC, within one Business Day following the filing of the Canadian Prospectus Supplement with the Canadian Securities Commissions, in accordance with General Instruction II.L of Form F-10, the Canadian Prospectus Supplement, with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC (the “U.S. Prospectus Supplement”, and together with the U.S. Base Prospectus, the “U.S. Prospectus”). The information, if any, included in the Canadian Prospectus Supplement that is omitted from the Canadian Base Shelf Prospectus for which a Receipt has been obtained, but that is deemed under the Shelf Procedures to be incorporated by reference into the Canadian Base Shelf Prospectus as of the date of the Canadian Prospectus Supplement, is referred to herein as the “Shelf Information”. The U.S. Prospectus Supplement and the Canadian Prospectus Supplement are hereinafter collectively referred to as the “Prospectus Supplements” and the U.S. Prospectus and the Canadian Prospectus are hereinafter collectively sometimes referred to as the “Prospectuses”.

Any reference herein to any “amendment” or “supplement” to the U.S. Base Prospectus, the U.S. Prospectus, the Canadian Base Shelf Prospectus or the Canadian Prospectus shall be deemed to refer to and include (i) the filing of any document with the Canadian Securities Commissions or the SEC after the date of such U.S. Base Prospectus, U.S. Prospectus, Canadian Base Shelf Prospectus or Canadian Prospectus, as the case may be, which is incorporated therein by reference or is otherwise deemed to be a part thereof or included therein by the U.S. Securities Act or Canadian Securities Laws, as applicable, and (ii) any such document so filed.

The U.S. Preliminary Prospectus, as supplemented by the Issuer Free Writing Prospectuses (as hereinafter defined), if any, and the information listed in Schedule “B” hereto, taken together, are hereinafter referred to as the “Pricing Disclosure Package”. For purposes of this Agreement, the “Applicable Time” is 4:30 p.m. (Eastern time) on May 13, 2024.

The Company understands that: (i) any offers or sales of the Offered Shares in Canada (other than other than Québec) will be conducted through the Underwriters, or one or more affiliates of the Underwriters, duly registered in compliance with applicable Canadian Securities Laws; and (ii) any offers or sales of the Offered Shares in the United States will be conducted through the Underwriters, or one or more affiliates of the Underwriters, duly registered as a broker-dealer in compliance with applicable U.S. Securities Laws (as hereinafter defined) and the requirements of the Financial Industry Regulatory Authority, Inc.

In consideration of the services rendered and to be rendered by the Underwriters hereunder, the Company hereby agrees to pay to the Lead Underwriter, on behalf of the Underwriters, at the Closing Time (as hereinafter defined), and at the Option Closing Time (as hereinafter defined), if any, a cash fee equal to 4.0% of the aggregate gross proceeds of the Offering (the “Underwriting Commission”), the payment of such fee by the Company to be reflected by the Underwriters making payment of the gross proceeds of the sale of the Firm Shares or the Additional Shares, as the case may be, to the Company, less the amount of the Underwriting Commission paid by the Company.

This Agreement shall be subject to the following terms and conditions.

Where used in this Agreement or in any amendment hereto, the following terms shall have the following meanings, respectively:

“Additional Shares” has the meaning given to it in the second paragraph of this Agreement;

“affiliate” has the meaning given to it in the BCBCA;

“Agreement” means the agreement resulting from the acceptance by the Company of the offer made by the Underwriters by this underwriting agreement;

“Applicable Securities Laws” means the Canadian Securities Laws and the U.S. Securities Laws;

“Applicable Time” has the meaning given to it in the seventh paragraph of this Agreement;

“Authorization” means any certificate, consent, order, permit, approval, waiver, licence, qualification, registration or similar authorization of any Governmental Authority having jurisdiction over a Person;

“BCBCA” means the Business Corporations Act (British Columbia);

“Business Day” means any day, other than a Saturday or Sunday, on which banks are open for business in Toronto, Ontario, and New York, New York;

“Canadian Base Shelf Prospectus” has the meaning given to it in the third paragraph of this Agreement;

“Canadian Offering Documents” means each of the Canadian Prospectus and any Canadian Prospectus Amendment, including the Documents Incorporated by Reference and any Marketing Documents;

“Canadian Preliminary Prospectus” has the meaning given to it in the third paragraph of this Agreement;

“Canadian Preliminary Prospectus Supplement” has the meaning given to it in the third paragraph of this Agreement;

“Canadian Prospectus” has the meaning given to it in the fifth paragraph of this Agreement;

“Canadian Prospectus Amendment” means any amendment to the Canadian Prospectus, including the Documents Incorporated by Reference;

“Canadian Prospectus Supplement” has the meaning given to it in the fifth paragraph of this Agreement;

“Canadian Securities Commissions” means the securities regulatory authorities in each of the Qualifying Jurisdictions;

“Canadian Securities Laws” means all applicable securities laws of each of the Qualifying Jurisdictions and the respective rules and regulations under such laws together with applicable published national, multilateral and local instruments, blanket orders and rulings of the securities regulatory authorities in the Qualifying Jurisdictions including, but not limited to, the WKSI Blanket Orders;

“CDS” means CDS Clearing and Depository Services Inc.;

“Claims” has the meaning given to it in Section 9;

“Closing Date” has the meaning given to it in Section 13;

“Closing Time” has the meaning given to it in Section 13;

“Commission” means the Ontario Securities Commission;

“Common Shares” means the common shares in the capital of the Company;

“Company” means New Gold Inc.;

“Company Contract” has the meaning given to it in Section 7(16);

“Credit Facility” means the credit facility established pursuant to the Fourth Amended and Restated Credit Agreement (as may be amended, modified, amended and restated, revised or supplemented from time to time);

“CSA Staff Notice 44-306” has the meaning given to it in the third paragraph of this Agreement;

“CSP Mine” means the Cerro San Pedro gold-silver mine in San Luis Potosi, Mexico;

“Debt Instrument” means any material loan, bond, debenture, promissory note or other instrument evidencing indebtedness (demand or otherwise) for borrowed money, to which the Company or any of its subsidiaries is a party or by which any of their property or assets are bound;

“Distribution” means “distribution” or “distribution to the public” as those terms are defined in the Canadian Securities Laws, except for where otherwise specified in this Agreement;

“Documents Incorporated by Reference” means all interim and annual financial statements, management’s discussion and analysis, business acquisition reports, management information circulars, annual information forms, material change reports, Marketing Documents and other documents that are or are required by Applicable Securities Laws to be incorporated by reference into the Offering Documents, as applicable, except to the extent that such documents, or certain parts thereof, are modified or superseded by a statement contained in the Prospectuses or Prospectus Supplements or any other document subsequently filed that is also incorporated by reference with the Prospectuses;

“EDGAR” means the SEC’s Electronic Document Gathering and Retrieval System;

“Employee Plans” has the meaning given to it in Section 7(46);

“Encumbrance” means any encumbrance of whatever kind or nature, regardless of form, whether or not registered or registrable and whether or not consensual or arising by law (statutory or otherwise), including any mortgage, lien, charge, pledge or security interest, whether fixed or floating, or any assignment, lease, option, right of pre-emption, right of first refusal, acquisition right, privilege, easement, right of way, servitude, restrictive covenant, right of use or any other right or claim of any kind or nature whatsoever which affects ownership or possession of, or title to, any interest in, or right to use or occupy property or assets;

“Environmental Laws” has the meaning given to it in Section 7(29)(a);

“Financial Statements” means, collectively (i) the audited consolidated financial statements of the Company as of and for the year ended December 31, 2023, the related notes thereto and the independent auditors’ report thereon; and (ii) the unaudited condensed interim consolidated financial statements of the Company as of and for the three months ended March 31, 2024 and the related notes thereto;

“Firm Shares” has the meaning given to it in the first paragraph of this Agreement;

“Foreign Corruption Laws” has the meaning given to it in Section 7(52);

“Form F-X” has the meaning given to it in the fourth paragraph of this Agreement;

“Fourth Amended and Restated Credit Agreement” means the fourth amended and restated credit agreement dated as of April 26, 2023 among the Company (as borrower), The Bank of Nova Scotia and RBC Capital Markets (as co-lead arrangers and joint bookrunners), The Bank of Nova Scotia (as administrative agent), Royal Bank of Canada (as syndication agent), The Toronto-Dominion Bank and Canadian Imperial Bank of Commerce (as co-documentation agents), and The Bank of Nova Scotia, Royal Bank of Canada, The Toronto-Dominion Bank, Canadian Imperial Bank of Commerce, Bank of Montreal, Bank of America, N.A., Canada Branch, and National Bank of Canada (as lenders);

“Governmental Authority” means federal, provincial, state or local, domestic or foreign, governments, regulatory authorities, governmental departments, agencies, stock exchanges, commissions, bureaus, officials, ministers, crown corporations, courts, bodies, boards, tribunals or dispute settlement panels or other law, rule or regulation-making organizations or entities (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them, or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;

“Hazardous Materials” has the meaning given to it in Section 7(29)(a);

“IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board, as the same may be amended or supplemented from time to time;

“Indemnified Party” or “Indemnified Parties” has the meaning given to it in Section 9;

“Indenture” means the indenture dated as of June 24, 2020 among the Company (as issuer), Minera San Xavier S.A. de C.V. and New Gold CSP Ltd. (as guarantors) and Computershare Trust Company, N.A. (as trustee) relating to the aggregate principal amount of $400 million 7.50% senior notes due July 15, 2027;

“Intellectual Property” has the meaning given to it in Section 7(25);

“Issuer Free Writing Prospectus” means an “issuer free writing prospectus” as defined in Rule 433 under the U.S. Securities Act relating to the Offered Shares that (i) is required to be filed with the SEC by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) under the U.S. Securities Act whether or not required to be filed with the SEC or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) under the U.S. Securities Act because it contains a description of the Offered Shares or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with the SEC or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the U.S. Securities Act;

“IT Systems and Data” has the meaning given to it in Section 7(56);

“ITA” means the Income Tax Act (Canada), as amended;

“Lead Underwriter” has the meaning given to it in the first paragraph of this Agreement;

“Marketing Documents” means any marketing materials approved in accordance with Section 3(2);

“marketing materials” has the meaning given to it in NI 41-101;

“Material Adverse Effect” or “Material Adverse Change” means any change, effect, event, occurrence, circumstance, violation or inaccuracy, as the case may be, that: (i) has or would reasonably be expected to have a material and adverse effect on the business, assets, properties, affairs, liabilities (absolute, accrued, contingent or otherwise), capitalization, condition (financial or otherwise), results of operations, cash flows or prospects of the Company and its subsidiaries (on a consolidated basis); or (ii) would result in any Offering Document containing a misrepresentation;

“Material Agreement” means any Debt Instrument, contract, commitment, agreement (written or oral), instrument, lease or license to which the Company or its subsidiaries are a party and which is material to the Company and its subsidiaries (on a consolidated basis), including, but not limited to, the Indenture, the Fourth Amended and Restated Credit Agreement, the New Afton PA Agreement, the New Afton Royalty Agreement, the New Afton Royalty Amending Agreement and any document filed as a material contract on SEDAR+ or EDGAR;

“material change” means a material change in or relating to the Company for the purposes of Applicable Securities Laws or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means a change in or relating to the business, operations or capital of the Company and its subsidiaries taken as a whole that would reasonably be expected to have a significant effect on the market price or value of any securities of the Company and includes a decision to implement such a change made by the board of directors of the Company or by senior management who believe that confirmation of the decision by the board of directors of the Company is probable;

“material fact means a material fact for the purposes of Applicable Securities Laws or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means a fact that would reasonably be expected to have a significant effect on the market price or value of any securities of the Company;

“Material Properties” means all of the tenements, concessions and claims associated with the New Afton Mine and the Rainy River Mine, as described, in all material respects, in the Technical Reports and the Offering Documents;

“Mining Rights” means all interests in mining claims, concessions, mining leases, leases of occupation, prospecting, exploration, exploitation, mining or extraction rights, participating interests or other property interests or rights or similar rights, as applicable, relating to the Material Properties;

“misrepresentation” means a misrepresentation for the purposes of the Applicable Securities Laws of an Offering Jurisdiction or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means: (i) an untrue statement of a material fact, or (ii) an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made;

“New Afton Mine” means the New Afton gold-copper mine in British Columbia, Canada;

“New Afton PA” means the purchase agreement between the Company and 2742150 Ontario Limited, an affiliate of OTPPB, dated February 24, 2020 in respect of certain interests in the New Afton Mine;

“New Afton Royalty Amending Agreement” means the partial repurchase and royalty amending agreement dated May 13, 2024 between the Company and an affiliate of OTPPB, pursuant to which the parties have agreed to amend the New Afton Royalty Agreement to reflect amendments with respect to certain interests OTPPB indirectly holds in New Afton;

“New Afton Royalty Agreement” means the free cash flow royalty agreement dated as of March 31, 2020 between the Company and an affiliate of OTPPB;

“Money Laundering Laws” has the meaning given to it in Section 7(52);

“NI 41-101” means National Instrument 41-101 – General Prospectus Requirements;

“NI 43-101” means National Instrument 43-101 – Standards for Disclosure for Mineral Projects;

“NI 44-101” means National Instrument 44-101 – Short Form Prospectus Distributions;

“NI 44-102” means National Instrument 44-102 – Shelf Distributions;

“NI 51-102” means National Instrument 51-102 – Continuous Disclosure Obligations;

“NYSE American” means the NYSE American LLC;

“OFAC” has the meaning given to it in Section 7(53);

“Offered Shares” has the meaning given to it in the second paragraph of this Agreement;

“Offering” means the sale of Offered Shares pursuant to this Agreement;

“Offering Documents” means the Canadian Offering Documents and the U.S. Offering Documents;

“Offering Jurisdictions” means the United States and the Qualifying Jurisdictions;

“Offering Price” has the meaning given to it in the first paragraph of this Agreement;

“Ontario WKSI Blanket Order” means Ontario Instrument 44-501 – Exemption from Certain Prospectus Requirements for Well-known Seasoned Issuers (Interim Class Order), as extended by OSC Rule 44-502 – Extension to Ontario Instrument 44-501 - Certain Prospectus Requirements for Well-Known Seasoned Issuers;

“Option Closing Date” has the meaning given to it in Section 15(1);

“Option Closing Time” has the meaning given to it in Section 15(1);

“OTPPB” means Ontario Teachers’ Pension Plan Board;

“Over-Allotment Option” has the meaning given to it in the second paragraph of this Agreement;

“Person” shall be interpreted broadly and include any individual (whether acting as an executor, trustee administrator, legal representative or otherwise), partnership, limited partnership, limited liability partnership, corporation, limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or any other entity;

“Preliminary Prospectuses” has the meaning given to it in the fourth paragraph of this Agreement;

“Pricing Disclosure Package” has the meaning given to it in the seventh paragraph of this Agreement;

“Prospectus Supplements” has the meaning given to it in the fifth paragraph of this Agreement;

“Prospectuses” has the meaning given to it in the fifth paragraph of this Agreement;

“Purchasers” means, collectively, each of the purchasers of the Offered Shares arranged by the Underwriters pursuant to the Offering;

“Qualifying Jurisdictions” means each of the provinces and territories of Canada other than Québec, and such other jurisdictions to which the Underwriters and the Company may agree;

“Rainy River Mine” means the Rainy River gold-silver mine in Ontario, Canada;

“Receipt” means the receipt issued by the Commission, which is deemed to also be a receipt of the other Canadian Securities Commissions pursuant to Multilateral Instrument 11-102 — Passport System and National Policy 11-202 — Process for Prospectus Reviews in Multiple Jurisdictions, for the Canadian Base Shelf Prospectus and any Canadian Prospectus Amendment, as the case may be;

“Registration Statement” has the meaning given to it in the fourth paragraph of this Agreement;

“Returns” has the meaning given to it in Section 7(37);

“SEC” has the meaning given to it in the fourth paragraph of this Agreement;

“SEDAR+” means the System for Electronic Document Analysis and Retrieval +;

“Selling Firm” has the meaning given to it in Section 2(1);

“Shelf Information” has the meaning given to it in the fifth paragraph of this Agreement;

“Shelf Procedures” means NI 44-101 and NI 44-102;

“Standard Listing Conditions” has the meaning given to it in Section 14(1)(f);

“subsidiary” has the meaning given to it in the BCBCA;

“Supplementary Material” means, collectively, any amendment to the Offering Documents and any amendment or supplemental prospectus or ancillary materials that may be filed by or on behalf of the Company under Applicable Securities Laws relating to the Offering and/or the distribution of the Offered Shares;

“Technical Reports” means, collectively, the following technical reports of the Company: (i) “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28, 2022; and (ii) “Technical Report on the New Afton Mine, British Columbia, Canada” dated February 28, 2020;

“template version” has the meaning ascribed to such term in NI 41-101 and includes any revised template version of marketing materials as contemplated by NI 41-101;

“TSX” means the Toronto Stock Exchange;

“Underwriters” has the meaning given to it in the first paragraph of this Agreement;

“Underwriting Commission” has the meaning given to it in the ninth paragraph of this Agreement;

“United States” means the United States of America, its territories and possessions, any State of the United States and the District of Columbia;

“U.S. Amended Prospectus” means any amendment or supplement to the U.S. Prospectus;

“U.S. Base Prospectus” has the meaning given to it in the fourth paragraph of this Agreement;

“U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended;

“U.S. Offering Documents” means the Registration Statement, any U.S. Registration Statement Amendment, the U.S. Prospectus, any U.S. Amended Prospectus and the Pricing Disclosure Package;

“U.S. Preliminary Prospectus” has the meaning given to it in the fourth paragraph of this Agreement;

“U.S. Preliminary Prospectus Supplement” has the meaning given to it in the fourth paragraph of this Agreement;

“U.S. Prospectus” has the meaning given to it in the fifth paragraph of this Agreement;

“U.S. Prospectus Supplement” has the meaning given to it in the fifth paragraph of this Agreement;

“U.S. Registration Statement Amendment” means any amendment to the Registration Statement and any post- effective amendment to the Registration Statement filed with the SEC during the Distribution of the Offered Shares;

“U.S. Securities Act” has the meaning given to it in the fourth paragraph of this Agreement;

“U.S. Securities Laws” means all applicable United States securities laws, including, without limitation, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations promulgated thereunder; and

“WKSI Blanket Orders” has the meaning given to it in the third paragraph of this Agreement.

The following are the schedules to this Agreement, which schedules are deemed to be a part hereof and are hereby incorporated by reference herein

Schedule “A” – Matters to be Addressed in the Company’s Canadian Counsel Opinion

Schedule “B” – Pricing Terms Included in the Pricing Disclosure Package

Schedule “C” – Form of Lock-Up Agreement

in each case, which fact or change is, or may reasonably be expected to be, of such a nature as (x) to render any statement in such Canadian Offering Documents, as they exist taken together in their entirety immediately prior to such change, misleading or untrue in any material respect, (y) which would result in the Canadian Offering Documents, as they exist immediately prior to such change, containing a misrepresentation or which would result in the Canadian Offering Documents, as they exist immediately prior to such change, not complying in any material respect with the laws of any Qualifying Jurisdiction in which the Offered Shares are to be offered for sale, or (z) which change would reasonably be expected to have a significant effect on the market price or value of any securities of the Company; or

provided, that with respect to (i) clauses (a) and (c) of this Section 5(1), if the documents are publicly available on SEDAR+, they shall be deemed to have been delivered to the Underwriters as required by this Section 5(1); and (ii) clauses (b) and (d) of this Section 5(1), if the documents are publicly available on EDGAR, they shall be deemed to have been delivered to the Underwriters as required by this Section 5(1).

The Company will make all necessary filings, obtain all necessary consents and approvals (if any) and pay all filing fees required to be paid in connection with the transactions contemplated by this Agreement. The Company will qualify the Offered Shares for offer and sale under the Applicable Securities Laws of the Offering Jurisdictions and maintain such qualifications in effect for so long as required for the Distribution of the Offered Shares; provided, however, that (i) the Company shall not be obligated to make any material filing, file any prospectus, registration statement or similar document, consent to service of process, or qualify as a foreign corporation or as a dealer in securities in any of such other jurisdictions, or subject itself to taxation in respect of doing business in any of such other jurisdictions in which it is not otherwise so subject, or become subject to any additional periodic reporting or continuous disclosure obligations in such other jurisdictions and (ii) the Underwriters and the Selling Firms shall comply in all material respects with the applicable laws in any such designated jurisdiction in making offers and sales of Offered Shares therein.

The Company represents and warrants to each of the Underwriters as set forth below and acknowledges that the Underwriters are relying on such representations and warranties in entering into this Agreement.

and to reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with any Claim; except that, if and to the extent that a court of competent jurisdiction in a final judgement that has become non-appealable determines that a Claim was caused by or resulted from an Indemnified Party’s breach of this Agreement or breach of applicable laws, or the fraud, gross negligence or wilful misconduct of the Indemnified Party claiming indemnity, such Indemnified Party shall reimburse any funds advanced by the Company to such Indemnified Party in respect of such Claim and thereafter such Indemnified Party shall be disentitled to indemnification pursuant to this Section 9(1) shall cease to apply to such Indemnified Party in respect of such Claim. For greater certainty, the Company and the Underwriters agree that they do not intend that any failure by the Underwriters to conduct such reasonable investigation as necessary to provide the Underwriters with reasonable grounds for believing the Prospectuses contained no misrepresentation shall constitute “gross negligence” or “wilful misconduct” for purposes of this Section 9 or otherwise disentitle the Underwriters from indemnification hereunder.

provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriting Commission or any portion thereof actually received.

The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same ratio as the total proceeds from the offering of the Firm Shares and Additional Shares, if any, (net of the Underwriting Commission payable to the Underwriters but before deducting expenses) received by the Company is to the Underwriting Commission received by the Underwriters.

The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the matters or things referred to in this Section 9 which resulted in such liabilities, claims, demands, losses, costs, damages and expenses relate to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Company or to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Underwriters and the relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or misrepresentation, or other matter or thing referred to in this Section 9. The amount paid or payable by an Indemnified Party as a result of the liabilities, claims, demands, losses, costs, damages and expenses referred to above shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such liabilities, claims, demands, losses, costs, damages and expenses, whether or not resulting in an action, suit, proceeding or claim.

The parties agree that it would not be just and equitable if contribution pursuant to this Section 9(4) were determined by any method of allocation which does not take into account the equitable considerations referred to in this Section 9(4).

and the Company will use its reasonable best efforts to prevent the issuance of any order referred to in subparagraph (b)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof at the earliest possible time;

The Company agrees that the conditions contained in this Agreement will be complied with insofar as the same relate to acts to be performed or caused to be performed by the Company. It is understood that the Underwriters may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters in respect of any such terms and conditions or any other or subsequent breach or non- compliance, provided that to be binding on the Underwriters any such waiver or extension must be in writing and signed by the Underwriters.

The Company will be solely responsible for all expenses related to the Offering, including all fees and disbursements of its counsel, its “out of pocket” costs, printing costs and filing fees, whether or not the Offering is completed. For the avoidance of doubt, the Underwriters shall pay all of their own costs and expenses, including the fees of their counsel, and any experts or consultants retained by them, in connection with the transactions contemplated by this Agreement. If the Offering is not completed due to a breach of this Agreement by the Company, the Company will reimburse the Underwriters for their reasonable expenses incurred pursuant to this Agreement.

The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including the determination of the Offering Price of the Offered Shares and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the Offering and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its shareholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favour of the Company with respect to the Offering or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the Offering except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the Offering and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deems appropriate.

Any notice to be given hereunder shall be in writing and may be given by email or by hand delivery and shall, in the case of notice to the Company, be addressed and emailed or delivered to:

New Gold Inc.

Suite 3320, 181 Bay Street

Toronto, Ontario M5J 2T3

with a copy to (such copy not to constitute notice)

Davies Ward Phillips & Vineberg LLP

155 Wellington Street West, 40^th Floor
Toronto, ON M5V 3J7

-and-

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Toronto-Dominion Centre
77 King Street West, Suite 3100
P.O. Box 226
Toronto, ON M5K 1J3

and in the case of the Lead Underwriter (on behalf of the Underwriters), be addressed and emailed or delivered to:

CIBC World Markets Inc.

161 Bay Street
Toronto, Ontario M5J 2S8

with a copy to (such copy not to constitute notice)

Borden Ladner Gervais LLP

Suite 3400, 22 Adelaide Street West

Toronto, Ontario M5H 4E3

-and-

Skadden, Arps, Slate, Meagher & Flom LLP

222 Bay Street, Suite 1750

Toronto, Ontario M5K 1J5

The Company and the Lead Underwriter may change their respective addresses for notice by notice given in the manner referred to above.

All steps which must or may be taken by the Underwriters in connection with this Underwriting Agreement, with the exception of the matters contemplated by Section 9 and Section 12, shall be taken by the Lead Underwriter on the Underwriters’ behalf and the execution of the Agreement by the Underwriters shall constitute the Company’s authority for accepting notification of any such steps from, and for giving notice to, for delivering any electronic deposits or definitive certificate(s) representing the Offered Shares and for paying the Underwriting Commission to, or to the order of, the Lead Underwriter.

The representations, warranties, obligations and agreements of the Company and of the Underwriters contained herein or delivered pursuant to this Agreement shall survive the purchase by the Underwriters of the Offered Shares for a period of three years following the Closing Date and shall continue in full force and effect notwithstanding any subsequent disposition by the Underwriters of the Offered Shares and the Underwriters shall be entitled to rely on the representations and warranties of the Company contained in or delivered pursuant to this Agreement notwithstanding any investigation which the Underwriters may undertake or which may be undertaken on the Underwriters’ behalf.

(1) Sole Bookrunner. 5% work fee payable to CIBC World Markets Inc.

(2) Co-lead Manager.

In connection with the distribution of the Offered Shares, the Underwriters (or any of them) may effect transactions which stabilize or maintain the market price of the Common Shares at levels other than those which might otherwise prevail in the open market, but in each case as permitted by Applicable Securities Laws. Such stabilizing transactions, if any, may be discontinued by the Underwriters at any time.

Any and all previous agreements with respect to the purchase and sale of the Offered Shares, whether written or oral, including for the avoidance of doubt, the bid letter dated May 13, 2024 between the Company and the Lead Underwriter, are terminated and this Agreement constitutes the entire agreement between the Company and the Underwriters with respect to the purchase and sale of the Offered Shares.

This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Ontario and the federal laws of Canada applicable therein.

Certain of the Underwriters or affiliates thereof, each own or control an equity interest in TMX Group Limited (“TMX Group”) and may have a nominee director serving on the TMX Group’s board of directors. As such, such investment dealers may be considered to have an economic interest in the listing of securities on any exchange owned or operated by TMX Group, including the Toronto Stock Exchange. No Person is required to obtain products or services from TMX Group or its affiliates as a condition of any such dealer supplying or continuing to supply a product or service.

Time shall be of the essence of this Agreement. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.

[Signature page follows]

If the foregoing is in accordance with your understanding and is agreed to by you, will you please confirm your acceptance by signing the enclosed copies of this Agreement at the place indicated and returning the same to us.

Yours truly,

The foregoing is in accordance with our understanding and is accepted by us.

Schedule “A”
MATTERS TO BE ADDRESSED IN THE COMPANY’S CANADIAN COUNSEL OPINION

(a)            the Company is an amalgamated company and validly existing under the laws of British Columbia and is in good standing with respect to the filing of annual reports;

(b)            the Company has all necessary corporate power and capacity to own and lease assets and to carry on business as described in the Canadian Prospectus and the Company has the necessary corporate power and capacity to execute and deliver this Agreement and to carry out the transactions contemplated hereby;

(c)            the authorized and issued capital of the Company;

(d)            all necessary corporate action having been taken by Company to authorize: (i) the execution and delivery of this Agreement and the performance by the Company of its obligations hereunder including the issue, sale and delivery of the Firm Shares, the grant of the Over-Allotment Option and the issue, sale and delivery of the Additional Shares upon exercise of the Over-Allotment Option; and (ii) to authorize the issuance, sale and delivery to the Underwriters the Firm Shares and the Additional Shares, if any, pursuant to this Agreement;

(e)            the Firm Shares have been duly authorized and when issued, delivered and paid for in accordance with the terms of the this Agreement, will be validly issued as fully paid and non-assessable Common Shares;

(f)            the Additional Shares, if any, have been duly authorized and when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued as fully paid and non-assessable Common Shares;

(g)            the Company has all necessary corporate power and capacity to execute and deliver this Agreement and perform its obligations under this Agreement;

(h)            all necessary corporate action has been taken by or on behalf of the Company to authorize the execution of each of the Canadian Base Shelf Prospectus, the Canadian Prospectus Supplement and, if applicable, any Supplementary Material thereto and the filing thereof with the Canadian Securities Commissions;

(i)            this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms;

(j)            the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations under this Agreement (including the issue, sale and delivery of the Firm Shares and, if any, the Additional Shares) do not and will not result in a breach (whether after notice or lapse of time or both) of any of the terms, conditions or provisions of the articles or notice of articles of the Company;

(k)            Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the common shares of the Company;

(l)            all necessary documents have been filed, all necessary proceedings have been taken and all necessary approvals, permits, consents and authorizations of the Canadian Securities Commissions have been obtained, in each case by the Corporation under Canadian Securities Laws, to qualify the distribution of the Offered Shares to the public in the Qualifying Jurisdictions by or through persons or companies who are registered in an appropriate category of registration under Canadian Securities Laws and who have complied with the relevant provisions of such Canadian Securities Laws and the terms and conditions of their registration; and

(m)          subject to the qualifications, assumptions, limitations, exceptions and understandings set out in the Canadian Prospectus Supplement under the headings “Certain Canadian Federal Income Tax Considerations” and “Eligibility For Investment”, insofar as the statements under such headings constitute statements of law, such statements are an accurate summary, in all material respects, of the matters described therein.

Schedule “B”
PRICING TERMS INCLUDED IN PRICING DISCLOSURE PACKAGE

The price per share for the Common Shares is US$1.72.

The number of Common Shares purchased by the Underwriters is 87,300,000.

The Company has granted the Underwriters an option, exercisable, in whole or in part, at any time until and including 30 days following the closing of the Offering, to purchase up to an additional 13,095,000 Common Shares at US$1.72 per Common Share to cover over-allotments, if any.

The Underwriters receive 4.0% cash commission.

Issuer Free Writing Prospectuses: Press release dated May 13, 2024 announcing the Offering

Schedule “C”
FORM OF Lock-Up Agreement

___, 2024

CIBC World Markets Inc.

BMO Nesbitt Burns Inc.

RBC Dominion Securities Inc.

Scotia Capital Inc.

National Bank Financial Inc.

TD Securities Inc.

Merrill Lynch Canada Inc.

Canaccord Genuity Corp.

Laurentian Bank Securities Inc.

Raymond James Ltd.

Re: New Gold Inc. – Lock-Up Agreement

The undersigned, a director or executive officer of New Gold Inc. (the “Corporation”), understands that CIBC World Markets Inc. (the “Lead Underwriter”) and BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., Scotia Capital Inc., National Bank Financial Inc., TD Securities Inc., Merrill Lynch Canada Inc., Canaccord Genuity Corp., Laurentian Bank Securities Inc. and Raymond James Ltd. (together with the Lead Underwriter, the “Underwriters” and each individually an “Underwriter”) have entered into an underwriting agreement, dated May 14, 2024, with the Corporation providing for a public offering in Canada and the United States (the “Offering”) of common shares of the Corporation. The undersigned also acknowledges that the Underwriters have requested that the undersigned enter into this agreement as a condition to the completion of the Offering and that, in consideration of the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged by the undersigned, the undersigned has agreed to enter into this agreement (the “Lock-Up Agreement”) in favour of the Underwriters.

The undersigned represents and agrees that during the period beginning from the date hereof and ending 90 days from the closing date of the Offering (the “Lock-Up Period”), he, she or it shall not (and shall cause its affiliates not to) directly or indirectly, offer, sell, contract to sell, transfer, assign, pledge, grant any option to purchase, make any short sale or otherwise dispose of or monetize any common shares of the Corporation, or any options or warrants to purchase any common shares of the Corporation, or any securities convertible into, exchangeable for, or that represent the right to receive, common shares of the Corporation, now owned directly or indirectly by the undersigned, or under control or direction of the undersigned or with respect to which the undersigned has beneficial ownership (collectively, the “Undersigned’s Securities”), or subsequently acquired, directly or indirectly by the undersigned, or under control or direction of the undersigned or with respect to which the undersigned acquires beneficial ownership (together with the Undersigned’s Securities, the “Locked-up Securities”) or enter into any swap, forward or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Locked-up Securities (regardless of whether any such arrangement is to be settled by the delivery of securities of the Corporation, securities of another person, cash or otherwise) or agree to do any of the foregoing or publicly announce any intention to do any of the foregoing.

Notwithstanding the foregoing, the undersigned may offer, sell, contract to sell, transfer, assign, pledge, grant an option to purchase, make any short sale or otherwise dispose of any of the Locked-up Securities, or enter into any swap, forward or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Locked-up Securities, whether directly or indirectly, during the Lock- Up Period:

The undersigned understands that the Corporation and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s legal representatives, successors, and assigns, and shall enure to the benefit of the Corporation, the Underwriters and their legal representatives, successors and assigns. This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the parties hereto hereby agree to attorn to the non-exclusive jurisdictions of the court of the Province of Ontario in connection with any dispute or claim hereunder.

DATED as of the date first written above.

Exhibit 99.2

155 Wellington Street West Toronto, ON M5V 3J7 Canada   dwpv.com

May 14, 2024

BY EDGAR

New Gold Inc.

We refer to the prospectus supplement dated May 13, 2024 (the “Prospectus Supplement”) to the short form base shelf prospectus of New Gold Inc. dated May 13, 2024, forming part of the Registration Statement on Form F-10 (Registration No. 333-279369) filed by New Gold Inc. with the U.S. Securities and Exchange Commission.

We hereby consent to the use of our firm name on the inside cover page of the Prospectus Supplement and under the heading “Legal Matters” in the Prospectus Supplement and consent to the use of our firm name and the reference to our legal opinions under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement, which legal opinions are provided as of the date of the Prospectus Supplement.

In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under the U.S. Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.

Yours very truly,

/s/ Davies Ward Phillips & Vineberg LLP

Davies Ward Phillips & Vineberg LLP

Exhibit 99.3

May 14, 2024

730 Fountain Street North

Building 3

Cambridge, Ontario

N3H 4R7

Dear Sirs/Mesdames:

Re: New Gold Inc. – Registration Statement on Form F-10

We refer to the prospectus supplement dated May 13, 2024 (the “Prospectus Supplement”) to the short form base shelf prospectus dated May 13, 2024, forming part of the registration statement on Form F-10 (Registration No. 333-279369) dated May 13, 2024 (the “Registration Statement”) of New Gold Inc. We hereby consent to the use of our firm name on the inside cover page of the Prospectus Supplement and under the heading “Legal Matters” and consent to the use of our opinion under the heading “Certain Canadian Federal Income Tax Considerations”.

In giving such consent we do not hereby admit that we are in the category of persons whose consent is required by the United States Securities Act 1933, as amended or the rules and regulations promulgated thereunder.

Sincerely,

Exhibit 99.4 

EXECUTION VERSION

PARTIAL ROYALTY REPURCHASE AND AMENDING AGREEMENT

NEW GOLD INC.

- and -

BEAR HOLDINGS LP

May 13, 2024

TABLE OF CONTENTS

PARTIAL ROYALTY REPURCHASE AND AMENDING AGREEMENT dated the 13th day of May, 2024.

B E T W E E N:

new gold inc.,

a corporation existing under the Laws
of the Province of British Columbia,

(hereinafter referred to as the “Purchaser”),

- and -

bear holdings lp,

a limited partnership formed under the Laws of the
Province of Ontario by 3336050 NOVA SCOTIA
LIMITED as general partner for and on behalf of
Bear Holdings LP,

(hereinafter referred to as the “Seller”).

WHEREAS the Purchaser and the Seller entered into a free cash flow royalty agreement dated March 31, 2020, providing for the grant by the Purchaser to the Seller of the FCF Royalty, as defined in the Amended and Restated FCF Royalty Agreement, and setting out the parties’ respective rights and obligations with respect to the FCF Royalty (the “Original Royalty Agreement”);

AND WHEREAS the Purchaser wishes to repurchase, and the Seller wishes to sell, the Repurchased FCF Royalty, as defined herein, and in connection therewith the parties have agreed to amend and restate the Original Royalty Agreement on and subject to the terms and conditions set out herein;

NOW THEREFORE, THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants, agreements, representations and warranties contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each party), the parties covenant and agree as follows:

Article 1
INTERPRETATION

For the purposes of this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:

“Affiliate” means, with respect to any Person, any other Person who directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, such Person, and includes any Person in like relation to an Affiliate;

“Agreement” means this Partial Royalty Repurchase and Amending Agreement and the schedules hereto, as the same may be further amended or supplemented from time to time in accordance with the terms hereof;

“Amended and Restated FCF Royalty Agreement” means the amended and restated Original Royalty Agreement between the Purchaser and the Seller in the form attached as Schedule A;

“Business Day” means any day except Saturday, Sunday or any day on which major banks are generally not open for business in the City of Kamloops, British Columbia or in the City of Toronto, Ontario;

“Charter Documents” means Articles, Articles of incorporation, notice of Articles, certificates or articles of formation, memoranda, constitutions, limited partnership agreement, by-laws or any similar constating document of a corporation or other legal entity;

“Closing” has the meaning given to it in Section 7.1;

“Closing Date” has the meaning given to it in Section 7.1;

“Contracts” means all written contracts, agreements, instruments, leases, indentures, deeds, deeds of trust, mortgages, royalties, licenses, options, arrangements, engagements, transactions and commitments;

“Control” (including, with correlative meanings, the terms “Controlling”, “Controlled by” and “under common Control with”) as applied to any Person, means the possession, directly or indirectly of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract, voting trust or otherwise;

“Encumbrance” means, whether or not registered or registrable or recorded or recordable, and regardless of how created or arising:

“Governmental Authority” means:

in each case having jurisdiction over the applicable Person.

For greater certainty, for purposes of this Agreement “Governmental Authority” shall not include any form of Indigenous government, including chiefs, tribal councils, band councils or any other governing body.

“Law” means any international, national, provincial, state, municipal and local laws (including common and civil law), treaties, statutes, codes, ordinances, judgments, decrees, injunctions, writs, certificates and orders, by-laws, rules, regulations, formal interpretations or other requirements enacted, adopted, promulgated or applied by any Governmental Authority in each case having the force of law, and the term “applicable” with respect to such Laws and in a context that refers to one or more parties, means such Laws as are applicable to such party or its business, undertaking, property or securities and emanate from a Person having jurisdiction over the party or parties or its or their business, undertaking, property or securities;

“Losses”, in respect of any matter, means all claims, demands, Proceedings, fines, losses, damages, liabilities, taxes, deficiencies, costs and expenses (including all reasonable out-of-pocket legal and other professional fees and disbursements, interest, penalties and amounts incurred in defending any claim or paid in settlement) arising directly or indirectly as a consequence of such matter;

“Offering” means the cross-border public offering of common shares of the Purchaser for gross aggregate proceeds of at least $150,000,000;

“Offering Documents” has the meaning given to it in Section 5.2(b);

“Original Royalty Agreement” has the meaning given to it in the recitals;

“Outside Date” has the meaning given to it in Section 7.1;

“Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, Governmental Authority and, where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative;

“Proceeding” means any action, claim, demand, lawsuit, assessment, hearing, arbitration, judgment, award, decree, order, injunction, prosecution and investigation, or other similar proceeding;

“Purchase Price” has the meaning given to it in Section 2.1;

“Purchaser” has the meaning given to it in the recitals;

“Repurchased FCF Royalty” means that portion of the FCF Royalty equal to the right to receive payments of 26.1% of Free Cash Flow, as defined in the Amended and Restated FCF Royalty Agreement, on and after the Closing Date;

“Seller” has the meaning given to it in the recitals;

“Transaction” has the meaning given to it in Section 2.1; and

“Transaction Documents” has the meaning given to it in Section 3.1(a).

Except as may be otherwise specifically provided in this Agreement and unless the context otherwise requires, in this Agreement:

The parties waive the application of any rule of law which otherwise would be applicable in connection with the construction of this Agreement that ambiguous or conflicting terms or provisions should be construed against the party who (or whose counsel) prepared the executed agreement or any earlier draft of the same.

Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in United States currency.

(a)            This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the Laws of the Province of Ontario and the federal Laws of Canada applicable therein.

(b)            Each of the parties irrevocably and unconditionally: (i) submits to the exclusive jurisdiction of the courts of the Province of Ontario over any Proceeding arising out of or relating to this Agreement; (ii) agrees to commence such a Proceeding in Toronto, Ontario, and to cooperate and use its commercially reasonable efforts to bring the Proceeding before the Ontario Superior Court of Justice (Commercial List); (iii) waives any objection that it might otherwise be entitled to assert to the jurisdiction of such courts; and (iv) agrees not to assert that such courts are not a convenient forum for the determination of any such Proceeding.

The following Schedules are attached to and form an integral part of this Agreement:

Schedule A     –     Amended and Restated FCF Royalty Agreement

Schedule B     –     Payment Instructions

Article 2
PURCHASE AND SALE OF Transferable ROYALTIES

On Closing, (i) the Seller agrees to sell, assign and transfer to the Purchaser, and the Purchaser agrees to purchase from the Seller, the Repurchased FCF Royalty free and clear of all Encumbrances, in consideration for $255 million in cash (the “Purchase Price”) and (ii) the parties shall concurrently therewith each execute and deliver the Amended and Restated FCF Royalty Agreement.

The Purchase Price shall be satisfied by the Purchaser on the Closing Date by payment of the Purchase Price to the Seller by wire transfer in accordance with the wire transfer instructions specified in Schedule B.

Article 3
REPRESENTATIONS AND WARRANTIES OF the PURCHASER

The Purchaser represents and warrants to the Seller as follows and acknowledges that the Seller is relying on the following representations and warranties in connection with the consummation of the transactions contemplated by this Agreement:

Article 4
REPRESENTATIONS AND WARRANTIES OF the seller

The Seller represents and warrants to the Purchaser as follows and acknowledges that the Purchaser is relying on the following representations and warranties in connection with the consummation of the transactions contemplated by this Agreement:

Article 5
COVENANTS

Except as otherwise provided in this Agreement, as required by applicable Laws or as otherwise agreed in writing by the Purchaser and the Seller, from the date hereof until the Closing Date:

(a)            Each of the Purchaser and the Seller shall: (i) take all reasonable actions as are within its power and otherwise use all commercially reasonable efforts to (A) ensure that the conditions to Closing in Article 6 are satisfied and (B) cause the Closing to occur as promptly as reasonably practicable following the date of this Agreement; and (ii) not take or agree to take any action that would reasonably be expected to delay or prevent the consummation of the transactions contemplated by this Agreement.

(b)            Seller shall promptly provide the Purchaser with all information regarding the Seller reasonably requested by the Purchaser for inclusion in the offering documents used in connection with the Offering (the “Offering Documents”) and such other assistance as the Purchaser may reasonably request in connection with the Offering. The Purchaser shall use commercially reasonable efforts to give the Seller and its counsel a reasonable opportunity to review a draft of the Offering Documents prior to the public filing of the Offering Documents and the Purchaser shall in good faith consider any comments provided by the Seller or its counsel with respect to the Purchaser, any of the transactions contemplated in this Agreement and/or the Amended and Restated FCF Royalty Agreement in a timely manner.

(c)            Each party shall promptly notify the other party in writing (with email being sufficient) upon becoming aware that a condition to Closing in Article 6 has been satisfied.

(d)            If at any time any party becomes aware of a fact or circumstance that might prevent or materially delay any of the conditions to Closing in Article 6 from being satisfied, it shall promptly notify the other party of such fact or circumstance in writing (with email being sufficient).

As soon as reasonably practicable following the Closing Date, the Seller shall do, execute and deliver or cause to be done, executed or delivered, all acts, documents and things as may be required for the purpose of assisting the Purchaser with the discharge of the Original Royalty Agreement and the registration of the Amended and Restated FCF Royalty Agreement in accordance with and subject to Section 19 of the Amended and Restated FCF Royalty Agreement, to the extent permissible under applicable Law, against the Property (as defined in the Amended and Restated FCF Royalty Agreement). The Seller hereby irrevocably authorizes and directs the Purchaser to undertake the foregoing discharge, registration and recording, and the Seller will cooperate with all such discharges, registrations and recordings and provide its written consent or signature to any documents and do such other things from time to time as are necessary or desirable to effect all such discharges, registrations or recordings or otherwise.

Article 6
CONDITIONS OF CLOSING

(a)            The obligation of the Seller to complete the transactions contemplated by this Agreement is subject to the following conditions being fulfilled or performed at or prior to the Closing Date:

(b)            The conditions in Section 6.1(a) are for the exclusive benefit of the Seller and the Seller may waive compliance with any such condition.

(a)            The obligation of the Purchaser to complete the transactions contemplated by this Agreement is subject to the following conditions being fulfilled or performed at or prior to the Closing Date:

(b)            The conditions in Section 6.2(a) are for the exclusive benefit of the Purchaser and the Purchaser may waive compliance with any such condition.

Article 7
CLOSING ARRANGEMENTS

The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the earlier of: (a) June 30, 2024; and (b) the second Business Day after the date on which all of the conditions of closing set out in Article 6 have been satisfied or waived (other than such conditions which are only capable of being satisfied at Closing), or such other date as may be mutually agreed upon in writing by the parties (the “Closing Date”). The Closing shall take place via electronic exchange of signatures at 9:00 a.m. (Toronto time) on the Closing Date, or such other time or manner agreed to in writing by the parties.

At the Closing, the Purchaser shall deliver the following to the Seller:

At the Closing, the Seller shall deliver the following to the Purchaser:

It shall be a condition of the Closing that all matters of payment and the execution and delivery of documents by a party to the other party pursuant to the terms of this Agreement shall be concurrent requirements and that nothing will be complete at the Closing until everything required as a condition precedent to the Closing has been paid, executed and delivered, as the case may be.

(a)            The representations and warranties of:

shall survive the Closing and shall continue in full force and effect for a period of 18 months from the Closing Date.

(b)            The covenants and obligations of the parties pursuant to this Agreement, to the extent required to be performed after the Closing, shall survive the Closing and shall not merge.

Article 8
Termination

This Agreement may be terminated at any time prior to the Closing:

(a)            Notwithstanding termination of this Agreement in accordance with Sections 8.1(b) or 8.1(d), the Seller may bring an action against the Purchaser for Losses suffered by the Seller where the event giving rise to the right of termination is a result of a breach of a covenant, obligation, representation or warranty of the Purchaser under this Agreement.

(b)            Notwithstanding termination of this Agreement in accordance with Sections 8.1(c) or 8.1(d), the Purchaser may bring an action against the Seller for Losses suffered by the Purchaser where the event giving rise to the right of termination is a result of a breach of a covenant, obligation, representation or warranty of the Seller under this Agreement.

Notwithstanding any other provisions of this Agreement, if this Agreement is terminated prior to Closing, the provisions of Sections 1.5, 8.2, 8.3, 9.1, 9.3 and 9.5 (subject to any time limitations referred to therein) shall survive such termination and remain in full force and effect, along with any other provisions of this Agreement which expressly or by their nature survive the termination hereof.

The Purchaser and the Seller acknowledge and agree that an award of money damages would be an inadequate remedy for any breach of this Agreement by any party or its representatives and any such breach would cause the non-breaching party irreparable harm. Accordingly, the Purchaser and the Seller agree that, in the event of any breach or threatened breach of this Agreement by the Purchaser or the Seller and provided this Agreement shall not have been terminated pursuant to Section 8.1, the non-breaching party shall also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to each of the parties.

Article 9
MISCELLANEOUS

Each party covenants and agrees that, from time to time subsequent to the date hereof, it will, at the request and expense of the requesting party, execute and deliver all such documents, instruments and agreements, including all such conveyances, transfers, consents, assumption documents, deeds and other assurances and do all such other acts and things as the other party, acting reasonably, may from time to time request be executed or done in order to better evidence or perfect or effectuate any provision of this Agreement or any Transaction Document or any of the respective obligations intended to be created hereby or thereby.

The parties will pay their respective legal, accounting and other professional fees and expenses incurred in connection with the negotiation and settlement of this Agreement, the completion of the Transaction and other matters pertaining hereto.

(a)            Any notice, request, demand or other communication required or permitted to be given by any party to another pursuant to this Agreement shall be in writing and shall be delivered in person, transmitted by email, sent by reliable overnight courier for next Business Day delivery or sent by prepaid registered mail, addressed as follows:

New Gold Inc.
181 Bay Street, Suite 3320
Toronto, ON M5J 2T3

Attention:         General Counsel
Email:                 general.counsel@newgold.com

with a copy which shall not constitute notice to:

Davies Ward Phillips &Vineberg LLP
155 Wellington Street West
Toronto, ON M5V 3J7

Attention:         Richard Fridman and Aaron Atkinson
Email:                 [Redacted]

c/o Ontario Teachers’ Pension Plan Board
Investment Division

160 Front Street West, Suite 3200
Toronto, ON M5J 0G4

Attention:         Christopher Metrakos and James Sikora
Email:                 [Redacted]

with a copy which shall not constitute notice to:

Stikeman Elliott LLP
5300 Commerce Court West

199 Bay Street

Toronto, ON M5L 1B9

Attention:         Jeffrey Singer and Steven D. Bennett
Email:                 [Redacted]

(b)            Any such notice or other communication shall be deemed to have been given and received: (i) if personally delivered or transmitted, on the day on which it was delivered; (ii) if sent by reliable overnight courier for next Business Day delivery, on the next Business Day following the date of deposit; (iii) if mailed, on the third Business Day following the date of mailing; or (iv) if transmitted by email or other form of electronic transmission, on the day on which it was delivered; provided, however, that: (A) if any day referred to above is not a Business Day, or if delivery or transmission is made on a Business Day after 5:00 p.m. at the place of receipt, then reference will be deemed to be made to the next following Business Day; and (B) if at the time of mailing or within three Business Days thereafter there is or occurs a labour dispute or other event which might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder shall be delivered or transmitted by means of recorded electronic communication as aforesaid.

(c)            Either party may, at any time and from time to time, change its address for service by giving notice to the other party in accordance with this Section 9.3.

This Agreement, together with each of the Transaction Documents, constitutes the entire agreement between the Purchaser and the Seller pertaining to the subject matter hereof and thereof and supersedes all prior agreements, undertakings, understandings, negotiations and discussions, whether oral or written, of the Purchaser and the Seller, and there are no representations, warranties, conditions, covenants, obligations, agreements or other provisions, express or implied, collateral, statutory or otherwise, between the Purchaser and the Seller except as expressly set forth in this Agreement and the Amended and Restated FCF Royalty Agreement.

(a)            Subject to Sections 9.5(b) and 9.5(c), the existence of this Agreement and the contents hereof and any Transaction Documents, shall be maintained in confidence by the parties and not be disclosed to any other Person, except: (i) as may be required by applicable Law or a securities regulatory authority (in each case, upon notice by the disclosing party to the other party); (ii) as required in accordance with the terms of a Transaction Document; (iii) to the extent such information has come into the public domain through no fault of that party; or (iv) with the prior written approval of the other party (which approval may not be unreasonably withheld, conditioned or delayed).

(b)            Notwithstanding Section 9.5(a), the Seller acknowledges and agrees that the Purchaser will be required to issue and file a press release with respect to this Agreement and the Amended and Restated FCF Royalty Agreement and the transactions contemplated hereby and thereby, and include disclosure of same in the Offering Documents. The Purchaser shall use commercially reasonable efforts to give the Seller a reasonable opportunity to review a draft of such disclosure prior to the making of such disclosure and the Purchaser shall in good faith consider any comments provided by the Seller in a timely manner.

(c)            Notwithstanding Section 9.5(a), the Seller acknowledges and agrees that the Purchaser is required to file this Agreement and the Amended and Restated FCF Royalty Agreement on SEDAR+ and EDGAR under applicable Law and the Purchaser may file a redacted form of this Agreement subject to such reasonable redactions as the Seller may request, provided that such redactions are, in the reasonable opinion of the Purchaser, permitted under applicable Law. Any provision of this Agreement that has been so redacted shall continue to constitute confidential information for purposes of this Agreement and this Section 9.5; provided, however, that if any securities regulatory authority subsequently requires the Purchaser to disclose any such redacted information or such redacted information shall otherwise become publicly available pursuant to applicable Law: (i) such redacted information shall cease to be confidential upon such disclosure; and (ii) the Purchaser shall not be in breach or violation of this Agreement with respect thereto.

This Agreement shall enure to the benefit of and shall be binding on and enforceable by the parties and their respective successors and permitted assigns. Neither party may assign any of its rights, liabilities and obligations under this Agreement without prior written consent of the other party.

If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party.

Except as expressly provided in this Agreement, no amendment or waiver of any provision of this Agreement shall be binding on either party unless consented to by such party in writing specifically referencing the provision so amended or waived. No waiver of any provision, or any portion of any provision, of this Agreement will constitute a waiver of any other part of the provision or any other provision of this Agreement nor a continuing waiver unless otherwise expressly provided.

Nothing in this Agreement shall be construed as giving any Person other than the parties any legal or equitable right, remedy or claim under or in respect of this Agreement.

This Agreement may be executed in any number of counterparts and by the parties on different counterparts. Each of the executed counterparts shall constitute an original of this Agreement but all the counterparts shall together constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic means shall be effective as delivery of a manually executed counterpart to this Agreement.

[Remainder of page intentionally left blank; signature page follows.]

IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.

Signature Page – Partial Royalty Repurchase and Amending Agreement

Schedule A

Amended and Restated FCF Royalty Agreement

(See attached.)

THIS AMENDED AND RESTATED FREE CASH FLOW ROYALTY AGREEMENT (this “Agreement”) dated as of May ■, 2024.

BETWEEN:

NEW GOLD INC., a corporation existing under the laws of the Province of British Columbia

(the “Owner”)

- and -

BEAR HOLDINGS LP, a limited partnership formed under the laws of the Province of Ontario by 3336050 NOVA SCOTIA LIMITED as general partner for and on behalf of Bear Holdings LP

(the “Holder”)

RECITALS:

NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by each of the Parties hereto, the Parties mutually agree as follows:

Subject to the terms of this Agreement, effective as of the Original Date, the Owner hereby grants and agrees to pay to the Holder the FCF Royalty, being the right to receive Free Cash Flow payments calculated in accordance with Schedule “B” (the “FCF Payments”) calculated annually (or for the period from April 1, 2020 to December 31, 2020 for the first calendar year) at the following rates and in the following manner:

(a)           at the rate of 46.0% of Free Cash Flow during the period commencing on April 1, 2020 and terminating at the end of the day on the Rate Adjustment Date;

(b)           the FCF Payments from and after the Rate Adjustment Date shall be calculated at the rate of 19.9% of Free Cash Flow; and

(c)           if, in any calendar year during which the Owner is implementing an Agreed Capital Project(s) the Free Cash Flow for such calendar year is less than zero ($0), the Holder’s proportionate share of such loss up to the value of the total capital expenditure of such Agreed Capital Project(s), being 46.0% or 19.9% (as applicable), shall be set off against either (i) any future FCF Payments paid to the Holder, including without limitation the Guaranteed FCF Amount, or (ii) any amounts payable by the Owner to the Holder hereunder if applicable, including the ROFR Consideration or any payment to be made pursuant to Section 5 (as applicable).

(a)            The FCF Payments shall be calculated on a calendar year basis (except in the first year when they will be calculated for the period from April 1, 2020 to December 31, 2020) and shall become due and payable sixty (60) days following the last day of such calendar year. FCF Payments shall be made by wire transfer of immediately available funds to such account as the Holder may designate to the Owner in writing not less than ten business days prior to the dates upon which such payments are to be made, and shall be accompanied by a settlement sheet showing in reasonable detail the proceeds of sale, costs and other deductions in accordance with the methodology provided in Schedule “B”, together with any other pertinent information in sufficient detail to explain the calculation of the FCF Payments.

(b)            All FCF Payments shall be considered final and in full satisfaction of all obligations of the Owner with respect thereto, unless the Holder gives the Owner written notice describing and setting forth a specific objection to the calculation thereof within sixty (60) days after receipt by the Holder of the annual statement provided for in Section 3(a). If the Holder objects to a particular annual statement as herein provided, the Holder shall, for a period of thirty (30) days after the Owner’s receipt of notice of such objection, have the right, upon reasonable notice and at a reasonable time, to have the Owner’s accounts and records relating to the calculation of the FCF Payments in question audited by a third party accountant acceptable to each of the Holder and the Owner. If such audit determines that there has been a deficiency or an excess in the payment made to the Holder, such deficiency or excess shall be resolved by adjusting the next annual FCF Payment due hereunder. The Holder shall pay all costs of such audit, unless a deficiency of five percent (5%) or more of the amount due is determined to exist. The Owner shall pay the reasonable costs of such audit if a deficiency of five percent (5%) or more of the amount due is determined to exist, together with interest on the amount of such deficiency at the rate of Prime plus two percentage points calculated from the date that such deficient amount was due and payable. The Owner’s books and records shall be kept in accordance with IFRS. Failure on the part of the Holder to deliver written notice of an objection to the calculation in such 60-day period shall establish the correctness of such FCF Payments and preclude the Holder from any objections with respect thereto or making any claims for adjustment thereon, absent manifest error.

(c)            All FCF Payments, including interest and penalties, if any, will be made subject to withholding or deduction in respect of the FCF Payments for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Tax”) imposed or levied by or on behalf of any government having power and jurisdiction to tax and for which the Owner is obligated in law to withhold or deduct and remit to such taxing authority having such power and jurisdiction.

(d)            Within ninety (90) days of March 31, 2024 (or such other date as is mutually agreed by the Owner and the Holder in writing), the Owner shall deliver to the Holder a statement setting out the aggregate amount of FCF Payments paid or payable to the Holder relating the period from the date hereof to March 31, 2024 and a draft calculation of the Guaranteed FCF Amount based on the Approved Model (together with any other pertinent information in sufficient detail to explain the Owner’s calculation of the Guaranteed FCF Amount).

(e)            The Owner’s calculation of the Guaranteed FCF Amount shall be considered final and in full satisfaction of all obligations of the Owner with respect thereto, unless the Holder gives the Owner written notice describing and setting forth a specific objection to the calculation thereof within thirty (30) days after receipt by the Holder of the draft calculation of the Guaranteed FCF Amount referred to above. If the Holder objects to the draft calculation of the Guaranteed FCF Amount, the Holder shall, for a period of thirty (30) days after the Owner’s receipt of notice of such objection, have the right, upon reasonable notice and at a reasonable time, to have the Owner’s accounts and records relating to the calculation of the Guaranteed FCF Amount audited by a Third Party Valuator who, acting as experts and not arbitrators, shall make any required adjustments to the calculation of the Guaranteed FCF Amount to reflect their determination of the Guaranteed FCF Amount. The Parties hereto agree that all adjustments shall be made without regard to materiality. The Third Party Valuator shall only decide the specific items under dispute by the Owner and the Holder and its decision for any disputed portions of the calculation of the Guaranteed FCF Amount. The Owner and the Holder shall each bear their own fees and expenses in preparing or reviewing, as the case may be, the draft calculation of the Guaranteed FCF Amount. The fees and expenses of the Third Party Valuator shall be paid by the Holder unless a deficiency of five percent (5%) or more of the amount due is determined to exist. The Owner shall pay the reasonable costs of the Third Party Valuator if a deficiency of five percent (5%) or more of the amount due is determined to exist. The Third Party Valuator shall make a determination as soon as practicable within fifteen (15) days (or such other time as the Owner and the Holder shall agree in writing) after their engagement, and its determination of the Guaranteed FCF Amount shall be conclusive and binding upon the Parties hereto and will not be subject to appeal, absent manifest error. The final, binding and conclusive calculation of the Guaranteed FCF Amount based upon the agreement or deemed agreement of the Owner and the Holder or the written determination delivered by the Third Party Valuator, in either case in accordance with this Section 3(e), shall be deemed to be the Guaranteed FCF Amount for purposes of this Agreement.

(f)             If the aggregate amount of FCF Payments paid or payable by the Owner to the Holder on or before March 31, 2024 is less than the Guaranteed FCF Amount, the Owner shall pay to the Holder, contemporaneously with the delivery of such statement, by wire transfer to the account designated by the Holder in writing to the Owner in respect of FCF Payments, the amount of any such shortfall within ten (10) days of the date of the final determination referred to in Section 3(e) above.

(a)            The Holder shall not Transfer, directly or indirectly, the whole or any part of its interest in this Agreement, except as provided in this Section 4 or as otherwise required or permitted by this Agreement. Any non-complying purported Transfer shall be of no effect. A change of Control of the Holder shall be deemed to be a “Transfer” by the Holder prohibited pursuant to this Section 4(a) and such deemed Transfer shall be subject to the restrictions on Transfers set forth in the Agreement, including those set forth in this Section 4.

(b)            If, at any time, the Holder receives a bona fide binding offer in writing from any other Person dealing at arm’s length with the Holder (the “Third Party”) to acquire all, but not less than all, of the Holder’s interest in this Agreement, whether directly or indirectly, (the “Sale Interest”) that the Holder wishes to accept (a “Third Party Offer”), then the Holder shall first offer the Sale Interest to the Owner in the manner set forth below:

(c)            The purchase price payable by the Owner pursuant to the ROFR Offer shall be in cash; provided that if any non-cash consideration is offered as payment of all or any part of the purchase price in the Third Party Offer then the Owner may, at its election, pay up to the same proportion of the purchase price in (i) if the Owner has a class of shares listed on a stock exchange or market at such time, newly issued common shares of the Owner (valued based on the five day volume-weighted average trading price of such shares on the date of the ROFR Acceptance Notice on the exchange having the greatest volume of trading over such period) and/or (ii) non-cash consideration that is reasonably structurally equivalent to the form of non-cash consideration in the Third Party Offer.

(d)            Any sale of the Sale Interest by the Holder to the Owner pursuant to Section 4(b) shall be completed within 30 days following the expiry of the ROFR Acceptance Period. Concurrently upon completion of the sale pursuant to Section 4(b), the FCF Royalty shall be cancelled by the Owner (and not otherwise Transferred to any other Person by the Owner).

(e)            If the Owner does not deliver a ROFR Acceptance Notice to the Holder within the ROFR Acceptance Period, the rights of the Owner to purchase the Sale Interest shall terminate and the Holder may sell the Sale Interest to the Third Party provided that:

(f)            If the Holder does not complete the sale of the Sale Interest to the Third Party within the timeframe provided by Section 4(e)(i), the obligations set out in this Section 4 shall again apply with respect to any such sale.

(g)            If the Holder completes a sale to a Third Party pursuant to this Section 4, the Holder and the Third Party shall provide a certificate to the Owner that the sale of the Sale Interest has been completed, in all respects, in accordance with Section 4, as applicable. For a period of 30 days following receipt of such certificate, the Owner shall be permitted on written request to the Holder and the Third Party to be provided with reasonable access to the closing documentation relating to such third-party sale.

(h)            If the Holder is contemplating a Transfer pursuant to this Section 4, the Holder may, at the Holder’s risk, grant access to the Mine to any Third Party who has made an offer or proposal to the Holder that is, or is reasonably expected to become, a Third Party Offer and who agrees to comply with customary confidentiality obligations in favour of each Party provided that the Holder first provides to the Owner (i) a copy of any such offer or proposal and (ii) reasonable advance notice in writing. Access to such Third Party shall occur during reasonable working hours for the purposes of due diligence in respect of the Properties. The Holder must ensure that such Third Party causes minimal inconvenience to or interference with the Owner or contractors or subcontractors of the Owner in the conduct of Operations and strictly complies with all safety regulations or instructions promulgated or given by or on behalf of the Owner. The Owner shall cooperate with the Holder in connection with such diligence activities and shall cause its personnel to be available during such reasonable working hours for informational sessions with such Third Party.

(a)            If, on or prior to December 31, 2030, an Owner Change of Control is publicly announced which is subsequently completed, the Holder shall, in accordance with Section 5(b), have the right to sell, and the Owner (or its successor) shall be obligated to repurchase all, but not less than all, of the Holder’s interest in this Agreement (the “COC Sale Right”) at a purchase price equal to the midpoint of the FMV of the FCF Royalty as determined by the two Third Party Valuators referred to in Section 5(c) (the “COC Sale Price”).

(b)            The Holder shall have 10 Business Days from the date of first public announcement of an Owner Change of Control to notify the Owner of its intent to exercise the COC Sale Right (a “COC Exercise Notice”) in which event the Holder shall be deemed to have irrevocably agreed to sell, and the Owner shall be bound to purchase, all, but not less than all, of the Holder’s interest in this Agreement at the COC Sale Price on the date that is later of (i) 30 days following completion of the Change of Control and (ii) 30 days after the date of determination of the COC Sale Price. If the Holder does not deliver a COC Exercise Notice to the Owner within such 30-day period, then the Holder shall be deemed to have irrevocably waived its right to exercise the COC Sale Right and the Owner shall have no obligation to repurchase the Holder’s interest in this Agreement pursuant to this Section 5 in connection with any Owner Change of Control.

(c)            If the Holder delivers a COC Exercise Notice, the Parties shall promptly and no later than 14 days following receipt of such COC Exercise Notice, engage two Third Party Valuators who shall each be instructed to independently determine, within 20 days following their respective engagement, the FMV of the FCF Royalty as at the date the third party entered into the definitive written agreement with the Owner to consummate the Owner Change of Control.

(d)            The Owner may satisfy the COC Sale Price in cash, by the issuance of listed securities of the Person that, immediately following completion of the Owner Change of Control, Controls the Owner or is the successor-in-interest of the Owner by amalgamation or otherwise (“Consideration Securities”), or a combination of cash and Consideration Securities; provided that the number of Consideration Securities that may be issued in satisfaction of the COC Sale Price shall not exceed 9.99% of the class of Consideration Securities outstanding immediately following the issuance of such securities to the Holder. The number of Consideration Securities issued shall be calculated by dividing (i) the dollar value of that portion of the COC Sale Price to be paid by the issuance of Consideration Securities by (ii) the five-day volume-weighted average trading price of the Consideration Securities on the Business Day immediately prior to payment of the COC Sale Price (expressed in United States dollars, if applicable, using the Bank of Canada foreign exchange rate then in effect on such Business Day) on the exchange having the greatest volume of trading over such period.

(e)            If at any time prior to ■, 2026¹ an Owner Change of Control is completed, regardless of whether the Holder exercises the COC Sale Right in respect of such Change of Control, the Owner (or its successor) shall pay the Holder a cash payment of $20 million by wire transfer of immediately available funds to an account(s) specified in writing by the Holder within 30 days following completion of the Owner Change of Control. For certainty, the foregoing shall only apply in respect of the first Owner Change of Control that occurs after the Closing (as defined in the Partial Royalty Repurchase and Amending Agreement).

(a)            Notwithstanding any other provision of this Agreement to the contrary, until the New Afton Mine ceases commercial production, the following matters (each such matter, an “Approval Matter”) shall require the approval of the Holder:

¹ Note to Draft: To insert the date that is 20 months following Closing.

(b)            With respect to any Approval Matter, the Owner shall present a detailed description and supporting material (the “Approval Matter Supporting Material”) of such Approval Matter to the Holder, which, in the case of an Additional Capital Project, shall include a detailed description and financial model. Thereafter, the Holder shall consider the Approval Matter Supporting Material and shall provide a decision in writing with respect to the Approval Matter within 45 days of receiving such material in respect of any such Approval Matter. If the Holder does not provide a decision in writing with respect to the Approval Matter within the timeframe provided in this Section 6(b), the Approval Matter shall be deemed to be approved.

(c)            If the Holder approves of an Additional Capital Project in writing, or is deemed to have approved of an Additional Capital Project, such Additional Capital Project shall thereafter be deemed to be an “Agreed Capital Project” with its revenue and costs included in the FCF Payment calculation for the applicable period(s) in accordance with Schedule “B”. In the event that the Holder does not approve an Additional Capital Project in accordance with Section 6(b), the Owner shall be free to implement such Additional Capital Project which is not an Agreed Capital Project (each, an “Unapproved Additional Capital Project”) in its discretion, and the revenue and costs of any such Unapproved Additional Capital Project will not be included in the FCF Payment calculation for the applicable period(s) in accordance with Schedule “B”.

(a)            This Agreement shall continue from the Original Date in perpetuity unless: (i) the Owner delivers a ROFR Acceptance Notice; or (ii) the Holder exercises the COC Sale Right, and, in either case, such transaction is completed in accordance with Section 4(d) or Section 5(b), as applicable, in which case this Agreement shall be cancelled on completion of such transaction.

(b)            If any right, power or interest of either Party under this Agreement would violate the rule against perpetuities, then such right, power or interest will terminate at the expiration of twenty (20) years after the death of the last survivor of all the lineal descendants of Her Majesty, Queen Elizabeth II of England, living on the date of the Original Agreement.

The Owner shall have the right to commingle any ores, Minerals from the Properties with ores, minerals and mineral products produced from other properties, provided that such commingling is accomplished after such Minerals have been weighed or measured and sampled in accordance with sound mining and metallurgical practices (detailed records of which shall be kept by Owner) and further provided that the Owner and the Holder shall agree (each acting reasonably and in good faith) upon a weighing/measurement/sampling protocol prior to any commingling occurring. Any FCF Payment due hereunder shall be determined by equitable allocation between Minerals from the Properties and ores, minerals and mineral products from other properties in accordance with sound accounting and metallurgical practice. As provided in Section 17(b), the Holder will have the right to access the Properties as contemplated therein.

(a)            The Holder acknowledges that the Owner shall have the right to market and to sell to third parties the Minerals, and any other minerals and mineral products produced from the Properties in any manner. The Holder further acknowledges that the Owner may from time to time undertake forward sale and/or purchase contracts, spot-deferred contracts, and option and/or other price hedging and price protection arrangements and mechanisms and speculative purchases and sales of forward, futures and option contracts, both on and off commodity exchanges (collectively, “Trading Activities”) in connection with precious metals derived completely from Minerals products produced from the Properties. Except for Concentrate Sales Process Hedges, such Trading Activities and the profits and losses generated thereby, shall not, in any manner, be taken into account in the calculation of FCF Payments due the Holder, whether in connection with the determination of price, the date of sale, or the date any FCF Payments is due.

(b)            Where, in the ordinary course of business and in respect of metals derived completely from Minerals produced from the Properties, a gold or copper swap contract relating to the quantity of a single concentrate shipment and for a period of no more than one year is entered into by the Owner for the purpose of reducing exposure to gold and copper prices in the period between provisional and final assays in the sale of a concentrate shipment (“Concentrate Sales Process Hedges”), the gains or losses from such Concentrate Sales Process Hedges will be included in Treatment and Refining Charges (as such term is defined in Schedule “B”) in the FCF Payments calculation.

(a)            The Owner hereby represents and warrants to the Holder as follows:

(b)            All representations, warranties, covenants and agreements of the Owner set forth in this Agreement shall survive the creation of the FCF Royalty and shall continue in full force and effect for the benefit of the Holder for the duration of the term of the FCF Royalty.

(a)            All information, data, reports, records, analyses, economic and technical studies and test results relating to the Properties and the activities of the Owner or any other party thereon and the terms and conditions of this Agreement (all of which will hereinafter be referred to as “Confidential Information”) will be treated by the Holder as confidential and will not be disclosed to any person not a party to this Agreement, except in the following circumstances:

The Holder shall ensure that its, and its affiliates’, employees, directors, officers and agents and those persons listed in Section 11(a)(i) and Section 11(a)(ii) are made aware of this Section 11 and comply with the provisions of this Section 11. The Holder shall be liable to the Owner for any improper use or disclosure of such terms or information by such persons.

Any Confidential Information that becomes a part of the public domain by no act or omission in breach of this Section 11(a) will cease to be Confidential Information for the purposes of this Section 11(a).

(b)            The Holder acknowledges that Confidential Information may include material non-public information and that applicable securities laws impose restrictions on trading securities when in possession of such information.

(c)            During the term of this Agreement, the Holder agrees that it will not acquire or agree to acquire any interest in any mineral rights (including without limitation any exploration or prospecting permit, mineral lease, mining lease, surface lease or similar tenure) (collectively, “Mineral Rights”) located within five (5) kilometres of the outermost external boundaries of the Properties, and the Holder further agrees that neither the Holder nor any of its Affiliates acting on its behalf or at its direction, will acquire or agree to acquire any interest in an entity that, either directly or through Affiliates, derives more than 20% of its value from the ownership of Mineral Rights located within five (5) kilometers of the outermost external boundaries of the Properties.

All tailings relating to the Minerals shall be subject to the FCF Payments if such tailings are processed by or behalf of the Owner in the future and result in the production of Minerals. If commingling of the tailings occurs, the amount of such tailings subject to the FCF Payments shall be based upon the estimated weight of such tailings multiplied by the estimated grade of such tailings in accordance with sound accounting and metallurgical practice.

(a)            The Owner shall do or cause to be done all things and make all payments necessary or appropriate to maintain the right, title and interest of the Owner in the Properties and to maintain the Properties in good standing, provided that the Owner shall in its sole discretion be: (i) entitled to abandon or surrender or allow to lapse or expire any part or parts of the Properties if the Owner determines, acting reasonably, that such part or parts are not economically viable or otherwise have insufficient value to warrant continued maintenance; and (ii) permitted to Transfer the Properties as permitted under this Agreement. For greater certainty, a Relinquishment Event (as defined below) does not constitute a Transfer and is not subject to Article 4.

(b)            Notwithstanding Section 13(a), if the Owner or an Affiliate of the Owner wishes to abandon surrender, allow to lapse or expire (the “Relinquishment Event”) all or any portion of the Properties (the “Released Properties”), then the Owner shall provide the Holder with a minimum of 30 days’ prior written notice of such intended Relinquishment Event. Upon receipt of the said notice, the Holder shall have a period of 10 days within which to advise the Owner in writing that it desires to acquire the Released Properties, by quitclaim deed or equivalent legal instrument, for consideration equal to $10.00. If the Holder shall forward such written notice to the Owner within the said 10-day period, the Owner shall thereafter do all such acts and things or shall cause all such acts and things to be done, at the Holder’s own sole cost and expense, to assign or convey, as appropriate, the Released Properties to the Holder for the said $10.00 and to have the Released Properties recorded or registered into the name of the Holder (at the sole cost of the Holder). If the Holder does not forward the said written notice to the Owner within the said 10-day period, then the Owner or the Affiliate of the Owner shall have the right to complete the Relinquishment Event with respect to the applicable Released Properties. If a Relinquishment Event is completed and thereafter, the Owner or any Affiliate of the Owner subsequently reacquires a direct or indirect beneficial interest in the Released Properties then such Released Properties will once again be subject to the obligation to pay the FCF Royalty pursuant to this Agreement with respect thereto.

Subject to Section 5, the Owner shall be entitled to Transfer the Properties and its rights and obligations under this Agreement, provided the following conditions are satisfied, and upon such conditions being satisfied in respect of any Transfer only the Owner shall be released from all obligations under this Agreement:

(a)            any purchaser, transferee, lessee or assignee of the Properties or this Agreement (other than a mortgagee, charge, lessee, assignee or encumbrancer) agrees in writing in favour of the Holder to be bound by the terms of this Agreement;

(b)            any purchaser, transferee or assignee of this Agreement (other than a mortgagee, charge, lessee, assignee or encumbrancer) has simultaneously acquired the Owner’s right, title and interest in and to the Properties; and

(c)            any mortgagee, chargee, lessee, assignee or encumbrancer of the Properties or this Agreement agrees in advance in writing in favour of the Holder to be bound by and subject to the terms of this Agreement in the event it takes possession of or forecloses on all or part of the Properties and undertakes to obtain an agreement in writing in favour of the Holder from any subsequent purchaser, lessee, assignee or transferee of such mortgagee, chargeholder, lessee or encumbrancer that such subsequent purchaser, lessee, assignee or transferee will be bound by the terms of this Agreement including, without limitation, this Section 14.

(a)            All decisions concerning methods, the extent, times, procedures and techniques of any exploration, development, mining, milling, processing, extraction treatment, if any, and the materials to be introduced into the Properties or produced therefrom, and all decisions concerning the sale or other disposition of Minerals (including, without limitation, decisions as to buyers, times of sale, whether to store or stockpile Minerals for a reasonable length of time without selling the same) shall be made by the Owner, in its sole discretion, provided that if the Owner determines to stockpile Minerals it shall first take commercially reasonable steps to secure such Minerals from loss, theft, tampering and contamination.

(b)            The Owner shall not be responsible for nor obliged to make any FCF Payments which account for the value of any Minerals lost in any mining or processing of the Minerals.

The Owner shall keep true, complete and accurate books and records of all of its operations and activities with respect to the Properties, including the mining of Minerals therefrom and the mining, treatment, processing, refining and transportation of Minerals, prepared in accordance with IFRS, consistently applied. Subject to complying with the confidentiality provisions in Section 11(a) of this Agreement, the Holder and/or its authorized representatives shall be entitled, upon delivery of thirty (30) business days advance notice, and during the normal business hours of the Owner, to perform audits or other reviews and examinations of the Owner’s books and records relevant to the calculation and payment of the FCF Payments pursuant to this Agreement no more than once per calendar year to confirm compliance with the terms of this Agreement. All expenses of any audit or other examination permitted hereunder shall be paid by the Holder, unless the results of such audit or other examination permitted hereunder disclose a deficiency in respect of any FCF Payments paid to the Holder hereunder in respect of the period being audited or examined in an amount greater than five percent (5%) of the amount of the FCF Payments properly payable with respect to such period, in which event all expenses of such audit or other examination shall be paid by the Owner.

(a)            The Holder shall be entitled to convene a meeting with members of the Owner’s senior management team up to two times per calendar year (or such additional number as the Owner may otherwise agree) for the purpose of keeping the Holder advised of material matters in respect of the Operations and to allow the Holder to make suggestions regarding the Operations, which the Owner will consider in good faith; provided, however, that if the Owner wishes to undertake an Additional Capital Project, the Holder shall be entitled to promptly have convened an additional meeting with members of the Owner’s senior management team in connection with its evaluation of such Additional Capital Project, such meeting to occur no later than 10 days after receipt by the Holder of Approval Matter Supporting Material in respect of such Additional Capital Project in accordance with Section 6(b).

(b)            The Holder may, at the risk of the Holder, have access to the Properties up to two times per calendar year (and such other time(s) as the Owner may agree) for the purposes of inspecting the Operations. The Holder must ensure that its representatives or consultant, as the case may be, cause minimal inconvenience to or interference with the Operations and comply strictly with any safety regulations or instructions promulgated or given by or on behalf of the Owner.

(c)            Subject to the Owner’s obligations and restrictions under applicable securities laws, the Owner shall provide the Holder with:

(d)            For certainty, the Holder shall treat all information provided to it pursuant to this Section 17 (whether disclosed in writing, orally, visually, electronically or by any other means) as Confidential Information in accordance with Section 11.

(a)            The Owner does hereby agree to defend, indemnify, reimburse and hold harmless the Holder, its Affiliates, and their respective officers, directors, employees, agents and their successors and assigns (collectively, “Holder Indemnified Parties”), and each of them, from and against any and all Losses that the Holder Indemnified Parties may sustain, suffer or incur as a result of:

(b)            The Parties acknowledge that the Holder is acting as agent and trustee for and on behalf of each other Holder Indemnified Party with respect to any rights pursuant to Section 18(a) but the Owner and the Holder agree that they may amend, terminate, revise or replace this Agreement at any time and in any manner whatsoever, notwithstanding any such rights granted pursuant hereto to any such Holder Indemnified Party, without notice to, consent of, or any other obligation whatsoever to, such Holder Indemnified Party.

Any matter in this Agreement in dispute between the Parties which has not been resolved by the Parties within thirty (30) days of the delivery of notice by either Party of such dispute shall be referred to binding arbitration. Such referral to binding arbitration shall be to a qualified single arbitrator pursuant to the Arbitrations Act, 1991 (Ontario), which Act shall govern such arbitration proceeding in accordance with its terms except to the extent modified by the rules for arbitration set out in Schedule ”C”. The determination of such arbitrator shall be final and binding upon the Parties hereto and the costs of such arbitration shall be as determined by the arbitrator. The Parties covenant that they shall conduct all aspects of such arbitration having regard at all times to expediting the final resolution of such arbitration.

(a)            Interest in Land; Registration of Interest

(b)            No Partnership, etc.

This Agreement is not intended to, and will not be deemed to, create (expressly or by implication) any partnership relation between the Parties including, without limitation, a joint venture, mining partnership, commercial partnership or other partnership relationship between the Owner and the Holder, and in this regard the Parties acknowledge and agree that the Holder is neither an owner nor operator of the New Afton Mine. The obligations and liabilities of the Parties will be several and not joint and neither of the Parties will have or purport to have any authority to act for or to assume any obligations or responsibility on behalf of another Party. Nothing herein contained will be deemed to constitute a Party the partner, agent, joint venturer or legal representative of another Party, nor shall anything in this Agreement be construed to create, expressly or by implication, a fiduciary relationship between the Parties.

(c)            Further Assurances

Each Party shall with reasonable diligence execute all such further instruments and documents and do all such further actions as may be reasonably necessary or desirable to effectuate the documents and transactions contemplated in this Agreement, in each case at the cost and expense of the Party requesting such further document or action, unless expressly indicated otherwise.

(d)            Binding Effect

All covenants, conditions, and terms of this Agreement shall bind and enure to the benefit of the Parties hereto and their respective successors (including any successor by reason of amalgamation of any Party) and permitted assigns.

(e)            Governing Law

This Agreement shall be governed by and construed under the laws of the Province of Ontario and the federal laws of Canada applicable therein.

(f)            Time of Essence

Time is of the essence in this Agreement.

(g)            Waiver

The failure of a Party to insist on the strict performance of any provision of this Agreement or to exercise any right, power or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit the Party’s right thereafter to enforce any provision or exercise any right.

(h)           Amendment

No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by all Parties and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party to be bound thereby.

(i)            Severability

If any provision of this Agreement is wholly or partially invalid, this Agreement shall be interpreted as if the invalid provision had not been a part hereof so that the invalidity shall not affect the validity of the remainder of the agreement which shall be construed as if the agreement had been executed without the invalid portion. It is hereby declared to be the intention of the Parties that this Agreement would have been executed without reference to any portion which may, for any reason, hereafter be declared or held invalid.

(j)            Accounting Principles

All calculations hereunder shall be made in accordance with IFRS.

(k)           Currency

All dollar amounts or references to $ herein are in United States dollars.

(l)            Assignment to Affiliates

Notwithstanding the provisions of Section 4, a Party may at any time Transfer all or any part of its interest in this Agreement (and the corresponding rights contained in the Purchase Agreement) to an Affiliate provided such Affiliate shall agree in advance in writing with the other Party to be bound by any obligations of such Party to be performed hereunder and further provided that such Party shall remain liable for the due performance of any of its obligations hereunder.

(m)          Notices

Any notice, direction, certificate, consent, determination or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be effectively given and made if (a) delivered personally, or (b) sent by e-mail, in each case to the applicable address set out below:

New Gold Inc. 

181 Bay Street, 

Suite 3320 

Toronto, ON M5J 2T3

Attention:     General Counsel 

Email:             general.counsel@newgold.com

with a copy (which shall not constitute notice) to:

Davies Ward Phillips & Vineberg LLP

155 Wellington Street West, Floor 37 

Toronto, Ontario 

M5V 3J7

Email:              [Redacted] 

Attention:      Richard Fridman and Aaron Atkinson

c/o Ontario Teachers’ Pension Plan Board 

Investment Division 

160 Front Street West, Suite 3200 

Toronto, ON M5J 0G4

Attention:      Christopher Metrakos and James Sikora 

Email:              [Redacted]

with a copy (which shall not constitute notice) to:

Stikeman Elliott LLP 

5300 Commerce Court West 

199 Bay Street 

Toronto, ON M5L 1B9

Attention:      Jeffrey Singer and Steven D. Bennett 

Email:              [Redacted]

(n)            Entire Agreement

This Agreement, together with the Purchase Agreement and the Partial Royalty Purchase and Amending Agreement, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties. Except as may be specifically set forth in this Agreement, there are no representations, warranties, conditions, or other agreements or acknowledgments, whether direct or collateral, express or implied, that form part of or affect this Agreement, or which induced any Party to enter into this Agreement or on which reliance is placed by either Party.

(o)            Execution and Delivery

This Agreement may be executed by the Parties in counterparts and may be executed and delivered by facsimile, .pdf or other electronic means, and all such counterparts shall together constitute one and the same agreement.

The Parties agree that the Purchase Agreement is hereby terminated in its entirety effective as of the date hereof and is of no further force or effect, save and except for Section 4.3, Article 7, Section 8.2, Section 8.3, Section 10.2, Section 10.3 and Section 10.12 of the Purchase Agreement, which shall survive in accordance with their terms together with any such other provisions as and to the extent required to give effect to the foregoing.

This Agreement amends and restates the Original Agreement. Without affecting the validity of any action taken in accordance with the Original Agreement prior to the date hereof, this Agreement replaces and supersedes the Original Agreement with respect to all matters arising after the date hereof.

[Remainder of page left intentionally blank.]

IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day and year first above written.

	By:
		Name:
		Title:

	By:
		Name:
		Title:

SCHEDULE “A”

[Descriptions of the Properties Redacted]

SCHEDULE “B”

Determination of Free Cash Flow

(a)            As used herein, “Free Cash Flow” for any period means the following based on incurred or accrued in that period:

Subject to the application of Section 2(c) of the Agreement, in the event that Free Cash Flow is a negative number, “Free Cash Flow” shall be deemed to be one dollar ($1.00).

(b)            “Revenues” means, for any period, the sum of the following revenues:

(c)            “Treatment and Refining Charges” shall mean all costs related to third party smelting, refining, penalty and transport costs of Minerals (except Minerals from Unapproved Additional Capital Projects) and net cash gains/losses from Concentrate Sales Process Hedges.

(d)            “Operating Costs” shall mean all operating costs and expenses related with the mining, processing or treatment of Minerals from the Properties (excluding operating costs and expenses from Unapproved Additional Capital Projects), including without limitation, all of the following (determined without duplication) Mining Costs, Milling and Processing Costs, General and Administrative Costs, Royalties and Selling and Delivery Costs:

For greater certainty, in the event of any Unapproved Additional Capital Projects, the exclusion of operating costs and expenses from Unapproved Additional Capital Projects for purposes of the calculation of Mining Costs, Milling and Processing Costs, General and Administrative Costs, Royalties and Selling and Delivery Costs for purposes of the calculation of Free Cash Flow shall be allocated on a proportionate basis and in accordance with generally accepted practices in the mining industry, and in a manner mutually satisfactory to the Owner and the Holder (each acting reasonably and in good faith).

“Exploration Costs” shall mean exploration costs incurred in respect of the Properties with the objective of identifying new mineralization or additional mineral reserves or mineral resources, or improving confidence in or understanding of existing mineral reserves or mineral resources, within the Properties (excluding exploration costs (i) specifically and directly incurred by the Owner in connection with, and within six months prior to the proposal to the Holder pursuant to Section 6(b) of the Agreement of, an Additional Capital Project (but only if such project becomes an Unapproved Capital Project) and/or (ii) incurred in respect of any project after it becomes an Unapproved Additional Capital Project). For greater certainty, the exclusion of exploration costs referred to in (i) and (ii) above for purposes of the calculation of Exploration Costs for purposes of the calculation of Free Cash Flow shall be allocated on a proportionate basis and in accordance with generally accepted practices in the mining industry, and in a manner mutually satisfactory to the Owner and the Holder (each acting reasonably and in good faith).

(e)            “Interest Costs” shall mean any interest cost actually incurred during the period in respect of the Properties (including but not limited to, interest on instruments issued for reclamation bonding, interest on advance payments receipts and interest on leased assets) net of any interest income earned solely in respect of the Properties during such period.

(f)             “Taxes” shall mean all taxes, levies, duties, royalties, charges, fees and assessments whatsoever, of any federal, provincial, municipal or local government, domestic and foreign, or any subdivision thereof, whether now or in the future that are imposed on or levied against, or allocated to, any mining, milling, or other operations on the Properties, purchases with respect to such operations, and/or any production or sales of products from the Properties, including without limitation, any Tax payable pursuant to a return filed under the Mineral Tax Act [RSBC 1996] Chapter 291, all value added taxes, any payroll taxes, severance taxes, sales and use taxes, customs duties, import fees, government royalties, net proceeds of mines taxes, excluding only federal and provincial income tax payable by the Owner and any value added taxes and sales and use taxes recoverable by the Owner from a Governmental Authority through any refund, rebate, credit or similar means. Taxes shall also include the cost or benefit resulting from an adjustment following the audit and/or reassessment of any Taxes relating to the time period in which the Holder receives FCF Payments.

(g)            “Change in Working Capital” shall mean, for a period, the amount equal to the sum of the accounts receivable, accounts payable, inventory cash costs and prepaid expenses, all in respect of the Properties, as of the end of the period, less the sum of those same amounts at the end of the preceding period, such working capital to be managed by the Owner in good faith.

(h)            “Lease Payments” shall mean all payments, without duplication, related to the leasing of assets for use at the Properties.

(i)             “Capital Costs” shall mean all capitalized costs for the period in respect of the Properties and include capitalized costs related to exploration, development (including construction) or mining of the Properties, permitting and the purchase of equipment, buildings and infrastructure for the Properties, but not including capital costs relating to Unapproved Additional Capital Projects.

(j)             “Allowance for Future Reclamation Costs” shall mean the amortization of assets recognized for a provision for future costs anticipated to be incurred by the Owner in reclaiming the Properties in accordance with applicable laws, regulations and agreements and accretion charges incurred in the period related to the associated liability.

Where any Operating Costs are incurred with respect to the mining, milling, processing, selling, or delivering of ores and Minerals produced from the Properties in conjunction with the mining, milling, processing, selling, or delivering of ores and minerals produced from other properties controlled by the Owner or its Affiliates, such Operating Costs shall be allocated and apportioned in accordance with generally accepted practices in the mining industry and in a manner mutually satisfactory to the Owner and the Holder (each acting reasonably and in good faith).

SCHEDULE “C”

Rules for Arbitration

The following rules and procedures shall apply with respect to any matter to be arbitrated by the Parties under the terms of the Agreement.

(a)            If any Party to this Agreement wishes to have any matter under this Agreement arbitrated in accordance with the provisions of this Agreement, it shall give notice to the other Party hereto specifying particulars of the matter or matters in dispute and proposing the name of the person it wishes to be the single arbitrator. Within five days after receipt of such notice, the other Party to this Agreement shall give return notice to the first party advising whether such Party accepts the arbitrator proposed by the first Party and if such Party does not accept the arbitrator proposed by the first Party, proposing the name of the person it wishes to be the single arbitrator. If such return notice is not given by the other Party within such five-day period, it shall be deemed to have accepted the arbitrator proposed by the first Party. If such return notice is given within such five day period and does not accept the proposed arbitrator of the first Party and proposes another person to be arbitrator, the first Party shall, within five days after receipt of such return notice, give notice to the other Party advising whether such first party accepts the arbitrator proposed by the other Party. If the Parties do not agree upon a single arbitrator within such second five-day period, the single arbitrator shall be chosen in accordance with the Arbitrations Act, 1991 (Ontario).

(b)            The individual selected as Arbitrator shall be qualified by education and experience to decide the matter in dispute. The Arbitrator shall be at arm’s length from both Parties and shall not be a member of the audit or legal firm or firms who advise either Party, nor shall the Arbitrator be a person who is otherwise regularly retained by either of the Parties.

(a)            Within five days of the appointment of the Arbitrator, the Party initiating the arbitration (the “Claimant”) shall send the other Party (the “Respondent”) a statement of claim setting out in sufficient detail the facts and any contentions of law on which it relies, and the relief that it claims.

(b)            Within 10 days of the receipt of the statement of claim, the Respondent shall send the Claimant a statement of defence stating in sufficient detail which of the facts and contentions of law in the statement of claim it admits or denies, on what grounds, and on what other facts and contentions of law he relies.

(c)            Within five days of receipt of the statement of defence, the Claimant may send the Respondent a statement of reply.

(d)            All statements of claim, defence and reply shall be accompanied by copies (or, if they are especially voluminous, lists) of all essential documents on which the Party concerned relies and which have not previously been submitted by any Party, and (where practicable) by any relevant samples.

(e)            After submission of all the statements, the Arbitrator will give directions for the further conduct of the arbitration.

(a)            The arbitration shall take place in the City of Toronto, or in such other place as the Claimant and the Respondent shall agree upon in writing. The arbitration shall be conducted in English. Subject to any adjournments which the Arbitrator allows, the final hearing will be continued on successive working days until it is concluded.

(b)            All meetings and hearings will be in private unless the Parties otherwise agree.

(c)            Any Party may be represented at any meetings or hearings by legal counsel.

(d)            Each Party may examine, cross-examine and re-examine all witnesses at the arbitration.

(a)            The Arbitrator will make a decision in writing and, unless the Parties otherwise agree, will set out reasons for decision in the decision.

(b)            The Arbitrator will send the decision to the Parties as soon as practicable after the conclusion of the final hearing, but in any event no later than 10 days thereafter, unless that time period is extended for a fixed period by the Arbitrator on written notice to each Party because of illness or other cause beyond the Arbitrator’s control.

(c)            The decision shall determine and award costs to the successful Party in the arbitration.

(d)            The decision shall be final and binding on the Parties and shall not be subject to any appeal or review procedure provided that the Arbitrator has followed the rules provided herein in good faith and has proceeded in accordance with the principles of natural justice. In the event either Party initiates any court proceeding in respect of the decision of the Arbitration or the matter arbitrated, such Party shall, if unsuccessful in the court proceeding, pay the other Parties costs on a solicitor/client basis plus all other reasonable expenses incurred by such other Party from the date of delivery of the notice commencing arbitration to the date of determination of such court proceeding.

(a)            By submitting to arbitration under these Rules, the Parties shall be taken to have conferred on the Arbitrator the following jurisdiction and powers, to be exercised at the Arbitrator’s discretion subject only to these Rules and the relevant law with the object of ensuring the just, expeditious, economical and final determination of the dispute referred to arbitration.

(b)            Without limiting the jurisdiction of the Arbitrator at law, the Parties agree that the Arbitrator shall have jurisdiction to:

Schedule B

PAYMENT INSTRUCTIONS

[Payment Instructions Redacted]