HARRISON PROPERTY JOINT VENTURE AGREEMENT
XXXXXXXX PROPERTY
JOINT VENTURE AGREEMENT
THIS AGREEMENT is entered into this 27th day of August, 2003
BETWEEN:
INTERNATIONAL MILLENNIUM MINING CORP. a company incorporated under the laws of the Province of British Columbia having an office at Suite 502 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter "IMMC")
OF THE FIRST PART;
AND:
SUTCLIFFE RESOURCES LTD. a company incorporated under the laws of the Province of British Columbia having an office at Suite 420 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter "Sutcliffe")
OF THE SECOND PART;
WHEREAS:
A. | Pursuant to terms of the Xxxxxxxx Property Sale and
Purchase Agreement between IMMC and 606896 B.C. Ltd. made effective as
of the 7th day of March, 2003, IMMC is the recorded and beneficial
owner of an undivided fifty percent (50%) interest in certain mineral
claims situated near Harrison Lake B.C. defined herein as the Properties,
subject to the Leader Option, to certain Royalty Interests reserved for
6006896 B.C. Ltd. and to a Production Share Payment as set out therein;
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B. | Pursuant to terms of the Xxxxxxxx Property Sale Purchase
and Assignment Agreement between Sutcliffe, 606896 B.C. Ltd. and IMMC
made effective as of the 7th day of March, 2003, Sutcliffe
is the recorded and beneficial owner of an undivided fifty percent (50%)
interest in the Properties subject to the Leader Option, to certain Royalty
Interests reserved for 6006896 B.C. Ltd. and to a Production Share Payment
as set out therein; |
C. | IMMC and Sutcliffe now wish to participate jointly
in the further Exploration, evaluation and, if warranted, Development
and Mining of the Properties. |
NOW THEREFORE, this Agreement witnesses that, in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the parties hereto covenant and agree each with the other as follows
ARTICLE 1 - DEFINITIONS
1.1 In this Agreement:
"Accounting Procedures" means the procedures set forth in Schedule “II” attached hereto;
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"Affiliate" means any person, partnership, joint venture, corporation or other form of enterprise which directly or indirectly controls, is controlled by, or is under common control with, a Participant. For purposes of the preceding sentence, “control” means possession, directly or indirectly, of the power to direct or cause direction of management and policies through ownership of voting securities, contract, voting trust or otherwise;
"Agreement" means this Xxxxxxxx Property Joint Venture Agreement, including all amendments and modifications thereof, and all attached schedules, which are incorporated herein by this reference;
"Area of Interest" means the area within the black border on the map which forms part of Schedule “IV” attached hereto;
"Assets" means the Properties, Products and all other real and personal property, tangible and intangible, held for the benefit of the Participants hereunder;
"Budget" means a detailed estimate of all costs to be incurred by the Participants with respect to a particular Program and a schedule of cash advances to be made by the Participants. All references related to monetary funds in this Agreement shall be deemed to refer to the currency of Canada;
"Closing Date" means the date set forth in Section 3.6;
"Development" means all preparation for the removal and recovery of Products, including the construction or installation of a mill or any other improvements to be used for the Mining, handling, milling, processing or other beneficiation of Products;
"Exploration" means all activities directed towards ascertaining the existence, location, quantity, quality, or commercial value of deposits of Products;
"Feasibility Study" means a bankable
report showing the feasibility of placing a prospective ore body located within
the Properties into production and shall include, without limiting the generality
of the foregoing, mining industry standard:
a) assessments of the size and quality of the mineable ore reserves;
b) assessments of the amenabilities of the ores to metallurgical treatments;
c) descriptions of preproduction work, permits, production equipment and supplies
required to bring the prospective ore body into commercial production and the
estimated cost thereof;
d) bases upon which any assumptions, such as process or Products, have been
made; and
e) conclusions and recommendations in respect of the economic feasibility and
timing for bringing the prospective ore body into commercial production.
Initial Contribution" means the contribution each Participant has made pursuant to Section 5.1;
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"Joint Account" means the account maintained in accordance with the Accounting Procedures showing the charges and credits accruing to the Participants;
"LIBOR" means the rate at which dollar deposits in comparable amounts are offered for the same period to the TD Canada Trust Bank by prime banks in the London Interbank market at or about 11:00 a.m. on the second business day before commencement of the interest period;
"Leader Option" means the option/joint venture agreement with Leader Mining International Inc. (LMN) whereby LMN was granted the right and option to earn up to seventy percent (70%) interest in twelve (12) mineral claims within the Properties more particularly described in Schedule "VII";
"Management Committee" means the committee established under Article 7;
"Manager" means the person or entity appointed under Article 8 to manage Operations, or any successor Manager;
"Mining" means the mining, extracting, producing, handling, milling or other processing of Products;
"Net Profits Royalty" means certain amounts calculated as provided in Schedule “V”, a portion of which may be payable to a Participant under Article 6;
"Operations" means the activities carried out under this Agreement;
"Participant" and "Participants" means the Person, Persons or entities that from time to time have Participating Interests under this Agreement;
"Participating Interest" means the percentage interest representing the ownership interest of a Participant in Assets, and all other rights and obligations arising under this Agreement, as such interest may from time to time be adjusted hereunder. Participating Interests shall be calculated to three (3) decimal places and rounded to two (2) decimal places (e.g. 1.519% rounded to 1.52%) . Decimals of .005 or more shall be rounded up to the next .01, decimals of less that .005 shall be rounded down to the previous .01. The initial Participating Interests of the Participants are set forth in Section 6.1;
"Person" means any individual or entity and the heirs, executors, administrators, legal representatives, successors and assigns of such "Person" where the context so permits;
"Products" means all ores, minerals and mineral resources produced from the Properties under this Agreement;
"Program" means a description in reasonable details of Operations to be conducted and objectives to be accomplished by the Manager during a specified period of time and/or in connection with a significant and customarily distinguished activity;
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"Properties" means those interests in mining or mineral properties, mining or mineral rights or in real property described in Schedule “I” attached hereto and all other interests in mining or mineral properties, mining or mineral rights or in real property within the Area of Interest which are acquired and held subject to this Agreement;
"Royalty Interests" means the Advance Royalty, Production Royalty and Rock Royalty calculated, as provided in Schedule “III” and reserved for 606896 B.C. Ltd. pursuant to the Sales Agreements;
"Sales Agreements" means the Sale and Purchase Agreement between IMMC and 606896 B.C. Ltd., made effective March 7th 2003 and the Sale, Purchase and Assignment Agreement between Sutcliffe, 606896 B.C. Ltd. and IMMC made effective March 7th 2003, attached hereto as Schedules VI (A) and VI (B) respectively;
"Transfer" means sell, grant, assign, encumber, pledge or otherwise commit or dispose of through conveyance; assignment; sale; reduction, combination, subdivision or re-division of corporate stock; corporate merger, reorganization or amalgamation; or otherwise; and
"Venture Company" means the business arrangement of the Participants under this Agreement;
ARTICLE 2 - REPRESENTATIONS; WARRANTIES; COVENANTS
AND
TITLE TO ASSETS
Capacity of Participants
2.1 Each of
the Participants represents and warrants as follows:
a) | that it is a corporation duly incorporated and in
good standing in the Province of British Columbia and that it is qualified
to do business and is in good standing in such Province; |
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b) | that it has the capacity to enter into and perform
this Agreement and all transactions contemplated herein and that all corporate
and other actions required to authorize it to enter into and perform this
Agreement have been properly taken; |
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c) | that it has the corporate power to own its interest
in and to the Properties and to carry on the business presently carried
on by it and is duly qualified or licensed to carry on business in all
places where it presently conducts its business; |
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d) | other than as specified in this Agreement, it has
not entered into any agreement of any nature granting rights to its interest
in and to the Properties to any other Person; |
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e) | the entering into of this Agreement and the performance
of the obligations contemplated hereby shall not conflict with, or shall
not result in the violation of, |
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any of the terms or provisions of the constating
documents of the Participant or any resolutions of its directors or shareholders,
of any indenture or other agreement, written or oral, to which the Participant
is a party and shall not give any Person any right to terminate or cancel
any agreement or any right enjoyed by the Participant or result in the
creation or imposition of any lien, encumbrance or restriction of any
nature whatsoever in favour of a third party upon or against the Participant's
interest in the Properties; |
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f) | subject to the Leader Option and to the Royalty Interests,
the Participant directly or indirectly owns good and marketable title
to its interest in and to the Properties free and clear of any and all
liens, pledges, charges, encumbrances, actions, claims or demands of any
nature whatsoever or howsoever arising, and all of the interests, directly
or indirectly, held by the Participant in and to the Properties are in
good standing and neither the Participant nor any other entity through
which it holds any such interests, is in material default of any agreement
under which it has acquired or is acquiring any such rights; |
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g) | there are no actions, suits or proceedings pending
or threatened against the Participant or its Assets at law or in equity
or before or by any federal, provincial, municipal or other governmental
department, commission, board, bureau, agency or instrumentality and the
Participant is not aware of any existing grounds on which any such action,
suit or proceeding might be commenced; |
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h) | it is not in default under or in breach of any contracts
or agreements, written or oral, or indentures or other instruments to
which it is a party that could negatively affect this Agreement and there
exists no state of facts which after notice or lapse of time or both would
constitute such a default or breach; |
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i) | no proceedings have been taken or authorized by it
to initiate any proceedings for or in respect of bankruptcy, insolvency,
liquidation, dissolution or winding up of the Participant; and |
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j) | that this Agreement has been duly executed and delivered
by it and is valid and binding upon it in accordance with its terms. |
Representations and Warranties
2.2 All
representations, warranties, and covenants related to confidentiality and
indemnification contained in the Sales Agreements survive their termination and
are expressly incorporated herein to the same extent as if set forth in full in
this Agreement. The representations and warranties set forth in this Article 2
shall survive termination of this Agreement for a period of three (3) years.
Disclosures
2.3 Each of the
Participants represents and warrants that it is unaware of any mineral facts or
circumstances which have not been disclosed in this Agreement but should be
disclosed to the other Participant in order to prevent the representation in
this Article 2 from being materially misleading.
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Covenants
2.4 The
Participants covenant each with the other that they shall:
a) | perform or cause to be performed all such acts and
deeds as may be required to achieve or to give full force and effect to
the terms and conditions of this Agreement, including obtaining all necessary
consents from third parties necessary to complete the transactions contemplated
hereunder; |
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b) | obtain the approval of their directors for an ordinary
resolution authorizing two officers or directors of the Participant to
negotiate the transaction anticipated hereunder, conclude such negotiations
and execute the Agreement; |
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c) | if required, diligently seek and obtain the appropriate
regulatory approval of the Agreement and the transactions anticipated
thereunder; and |
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d) | on the Closing Date, deliver or cause to be delivered
to the other Participant or its solicitors, the documents and items listed
in Section 3.8. |
Record Title
2.5 IMMC
holds an undivided fifty percent (50%) interest in record title to the
Properties and Sutcliffe holds an undivided fifty percent (50%) interest in
record title to the Properties. Record title to all Assets other than the
Properties shall be held by the Manager for the benefit of the Venture Company.
Joint Loss of Title
2.6 Subject
to Section 2.2, any failure or loss of title to the Assets, and all costs of
defending title, shall be charged to the Joint Account, except that all costs
and losses arising out of or resulting from breach of the representations and
warranties of a Participant shall be charged exclusively to the Participant
breaching a representation or warranty.
ARTICLE 3 - NAME; PURPOSE; CLOSING AND TERM
General
3.1 IMMC and
Sutcliffe hereby enter into this Agreement for the purposes hereinafter stated,
and they agree that all of their rights and all of the Operations on or in
connection with the Properties and the Area of Interest shall be subject to and
governed by this Agreement.
Name
3.2 The name
of the Venture Company shall be the Xxxxxxxx Property Joint Venture Company or
such other name as shall be agreed by the Participants. The Manager shall
incorporate the Venture Company in British Columbia and maintain the records of
the Venture Company in good standing.
Transactions
3.3 From and
after the Closing Date of this Agreement, all transactions, contracts,
employments, purchases, operations, negotiations and third parties and any other
matter or
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act undertaken by the Participants in connection with the Properties shall be done, transacted, undertaken or performed in the name of the Venture Company.
Purposes
3.4 This
Agreement is entered into for the following purposes and for no others, and
shall serve as the exclusive means by which the Participants, or either of them
accomplish such purposes:
a) | to conduct Exploration on the Properties, |
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b) | to acquire additional properties within the Area
of Interest, |
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c) | to evaluate the possible Development of the Properties,
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d) | to engage in Development and Mining Operations on
the Properties, |
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e) | to engage in the disposition of Products, to the
extent permitted by Article 11; and |
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f) | to perform any other operation or activity necessary,
appropriate, or incidental to any of the foregoing. |
Limitation
3.5 Unless
the Participants otherwise agree in writing, the Operations shall be limited to
the purposes described in Section 3.4, and nothing in this Agreement shall be
construed to enlarge such purposes.
Closing Date
3.6 The
closing of this Agreement shall occur at the office of IMMC on the Closing Date.
The Closing Date shall be no later than March 31, 2004, or such later date as
the parties may agree upon in writing.
Termination
3.7 The
parties hereto forthwith following execution of the Sales Agreements and the
Agreement shall proceed with due dispatch and using their best efforts to each
obtain, if required, regulatory acceptance of the Agreement. In the event that
on or before sixty (60) days after the parties execute this Agreement, or such
later date as the parties may agree to in writing, either party fails to obtain
such approval of this Agreement, this Agreement shall terminate without further
obligation by or on the part of either party. Except as set forth in the
immediately proceeding sentence and in Article 12, neither party shall have any
right to terminate this Agreement. The parties each undertake and agree to
forthwith notify the other with respect to any regulatory acceptance of the
Agreement.
Delivery of Documents on Closing
3.8 On or
before the Closing Date:
a) | IMMC shall make available to Sutcliffe or its solicitors:
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i) |
a certified true copy of the resolutions of the directors
of IMMC approving the Agreement; |
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ii) |
if applicable, a certified true copy of correspondence
from regulatory authorities to Sutcliffe accepting the transaction; and,
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iii) |
all such other documents and items that Sutcliffe
may request in order to give effect to the terms and conditions of this
Agreement, including any legal opinions as may be requested by Sutcliffe
acting reasonably. |
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b) | Sutcliffe shall make available to IMMC
or its solicitors: |
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i) |
a certified true copy of the resolutions of the directors
of Sutcliffe approving the Agreement; |
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ii) |
if applicable, a certified true copy of correspondence
from regulatory authorities to Sutcliffe accepting the transaction; and,
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iii) |
all such other documents and items that IMMC may
request in order to give effect to the terms and conditions of this Agreement,
including any legal opinions as may be requested by IMMC acting reasonably.
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Effective Date and Term
3.9 The
effective date of this Agreement shall be the date first recited above. The term
of this Agreement shall be for fifty (50) years from the effective date hereof
and for so long thereafter as Products are produced by or on behalf of the
Participants from the Properties or any portion thereof, or activities related
to Exploration, Development or Mining are underway, whichever is later, unless
this Agreement is earlier terminated as herein provided.
ARTICLE 4 - RELATIONSHIP OF THE PARTICIPANTS
No Partnership
4.1 Nothing
contained in this Agreement shall be deemed to constitute either Participant the
partner of the other, nor, except as otherwise herein expressly provided, to
constitute either Participant the agent or legal representative of the other,
nor to create any fiduciary relationship between them. It is not the intention
of the Participants to create, nor shall this Agreement be construed to create,
any mining, commercial, or other partnership. Neither Participant shall have any
authority to act for or to assume any obligation or responsibility on behalf of
the other Participant except as otherwise expressly provided herein. The rights,
duties, obligations, and liabilities of the Participants shall be several and
not joint or collective. Each Participant hereto shall be responsible only for
its obligation as herein set out and shall be liable only for its share of the
costs and expenses as provided herein, it being the express purpose and
intention of the Participants that their ownership of Assets and the rights
acquired hereunder shall be as tenants in common. Each Participant shall
indemnify, defend, and hold harmless the other Participant, its directors,
officers, employees, agents, attorneys and Affiliates from and against any and
all losses, claims, damages, and liabilities arising out of any act or any
assumption of liability by the indemnifying Participant, or any of its
directors, officers, employees, agents, attorneys or
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Affiliates done or undertaken, or apparently done or undertaken, on behalf of the other Participant, except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Participants.
Tax Election
4.2 The
Participants hereby elect to register the Venture Company as a corporation under
the Canada Income Tax Act and to have the arrangement evidenced by this
Agreement. Each of the Participants shall be solely responsible for preparation
and filing of its own income tax returns and reports.
Other Business Opportunities
4.3 Except
as expressly provided to the contrary in this Agreement, each Participant shall
have the right independently to engage in and receive full benefits from
business activities, whether or not competitive with the Operations, without
consulting the other. The doctrines of “corporate opportunity” or “business
opportunity” shall not be applied to any other activity, venture, or operation
of either Participant and, except as otherwise provided in Section 12.7, neither
Participant shall have any obligation to the other with respect to any
opportunity to acquire any interest in mineral rights, property or real property
outside the Area of Interest at any time, or inside the Area of Interest after
termination of this Agreement. Unless otherwise agreed in writing, no
Participant shall have any obligation to mill, beneficiate or otherwise treat
any Products or any other Participant's share of Products in any facility owned
or controlled by the former Participant.
Waiver of Right to Partition
4.4 The
Participants hereby waive and release all rights of partition, or of sale in
lieu thereof, or other division of Assets, including any such rights provided by
statute.
Transfer or Termination of Rights to Properties
4.5 Except
as otherwise provided in this Agreement, neither Participant shall Transfer all
or any part of its interests in the Assets or this Agreement or otherwise permit
or cause such interests to terminate.
Implied Covenants
4.6 No
implied covenants whatsoever are contained in this Agreement other than the
implied covenant of good faith and fair dealing.
ARTICLE 5 - CONTRIBUTIONS PARTICIPANTS
Participants' Initial Contributions
5.1 As its
Initial Contribution, each of the Participants hereby contribute all of their
respective interests in the Properties for the purpose of this Agreement. The
deemed value of the Initial Contribution by IMMC is five hundred eighty five
thousand dollars ($585,000.00) and the deemed value of the Initial Contribution
by Sutcliffe is five hundred eighty five thousand dollars ($585,000.00) .
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Additional Cash Contributions
5.2 Subject
to any election permitted by Section 6.3 or Section 9.6, the Participants shall
contribute funds to adopted Programs in direct proportion to their respective
Participating Interests.
ARTICLE 6 - INTEREST OF PARTICIPANTS
Initial Participating Interests
6.1 The Participants
shall have the following initial Participating Interests:
IMMC – fifty percent (50%)
Sutcliffe - fifty percent (50%)
Change in Participating Interests
6.2 A
Participant's Participating Interest shall be changed as follows:
a) | Upon an election by a Participant pursuant to Section
6.3, to contribute less to an adopted Program and Budget than the percentage
reflected by its Participating Interest; or |
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b) | As provided in paragraph (b) or (c) of Section 6.4;
or |
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c) | As provided in Section 6.5; or |
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d) | By acquisition of less than all of the Participating
Interest of the other Participant, however arising. |
Voluntary Reduction of Participation
6.3 | Subject to the provisions of paragraph (a) of Section
6.4, a Participant may elect, as provided in Section 9.6, to limit its
contribution to an adopted Program and Budget as follows: |
a) | To some lesser amount than its respective Participating Interest; or | |
b) | Not at all. |
If a Participant elects to contribute to an adopted Program and Budget some lesser amount than its respective Participating Interest, or not at all, the Participating Interest of that Participant shall be recalculated as of the time the Program and Budget as to which the election applies becomes effective then, subject to Section 6.5, by dividing: (i) the sum of (a) the deemed value of the Initial Contribution by that Participant under Section 5.1, plus (b) the total prior contributions by that Participant under Section 5.2, plus (c) the amount, if any, which that Participant has elected to contribute to the adopted Program and Budget; by (ii) the sum of (a), (b) and (c) above for both Participants; and then multiplying the result by one hundred (100). The Participating Interest of the other Participant shall thereupon become the difference between one hundred percent (100%) and the recalculated Participating Interest; however, if the contributing Participant expends less than the
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budgeted amount of that adopted Program and Budget during the specified period, the Participating Interests shall be recalculated accordingly.
Default in Making Contributions
6.4 | a) | The Participants acknowledge that if a Participant
defaults in making a contribution, or a cash call, as required hereunder,
it will be difficult to measure the damages resulting from such default.
In the event of such default not cured by payment of all amounts due,
including applicable interest at LIBOR plus two percent (2%), within thirty
(30) days after written notice from the Manager to the defaulting Participant,
the defaulting Participant shall be deemed to have elected to limit its
contributions to the extent it has made contributions prior to the occurrence
of the default and its Participating Interest shall be diluted and reduced
in accordance with Section 6.3, thereby curing the default. |
b) | If due to default of one Participant in making a
required contribution or cash call, the non-defaulting Participant determines
that it is necessary to revise an approved Program and Budget or implement
an alternative Program and Budget, the non-defaulting Participant may
do so without the approval or consent of the defaulting Participant, and
without affecting its rights hereunder as against the defaulting Participant.
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c) | If the Manager defaults in making a contribution
or cash call, the Manager shall be deemed to have resigned as Manager
pursuant to Section 8.4, and the Participating Interests of the parties
shall be readjusted in accordance with Section 6.3, hereof. |
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d) | After completion of a Feasibility Study, if a Participant
defaults in making a contribution, or meeting a cash call, or in repaying
a loan, as required hereunder, at the non-defaulting Participant's election,
the defaulting Participant shall be deemed to have withdrawn from the
Venture Company and to have automatically relinquished its entire Participating
Interest to the non-defaulting Participant. Within thirty (30) days thereafter,
the other Participant shall quitclaim the interest in Net Profits Royalty
to the withdrawn Participant as provided under Section 6.7, and the withdrawn
Participant shall thereafter have no other right, title or interest in
the Assets or under this Agreement. |
Relinquishment of Minority Interest
6.5 If
during the term of the Agreement, a Participant's Participating Interest is
reduced to twenty percent (20%) or less and if a Feasibility Study is completed
and finalized by or on behalf of the participating Participant or upon the
reduction of a Participant's Participating Interest to less than ten percent
(10%) through dilution as specified in Section 6.3, or paragraph (b) of Section
6.4, whichever event occurs first (the "Relinquishment Event"), the
non-participating Participant shall have the right, on a one time basis only, to
reacquire up to thirty- five percent (35%) Participating Interest in the Venture
Company (the "Buy Back Right"). Upon occurrence of the Relinquishment Event set
forth in this Section 6.5, the participating Participant shall deliver to the
non-participating Participant a Notice of Relinquishment granting the
non-participating Participant one hundred twenty (120) days to exercise the Buy
Back Right to increase the non-participant's Participating Interest in the
Venture Company to a maximum of thirty-five percent (35%) by making a
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payment to the participating Participant equal to one and one half (1.5) times the amount over and above the Initial Contribution that the non-participating Participant would have had to expend in order to maintain a fifty percent (50%) interest in the Venture Company, less the total of all prior contributions, excluding the Initial Contribution, by the non-participating Participant to adopted Programs and Budgets pursuant to Section 5.2 hereof. Failure of the non-participating Participant to make the buy back payment set forth in this Section 6.5 shall result in the non-participating Participant being deemed to have withdrawn from the Venture Company and to have automatically relinquished its entire Participating Interest to the other Participant. Within thirty (30) days thereafter, the other Participant shall quitclaim an interest in Net Profits Royalty to the withdrawn Participant as provided under Section 6.7, and the withdrawn Participant shall thereafter have no other right, title or interest in the Assets or under this Agreement. During the one hundred twenty (120) days notice period specified in this Section 6.5, the participating Participant and the Manager shall make available to the non-participating Participant and its accountants, geologists, and other advisors, during normal business hours, all accounting, Exploration and Development data and information, including the Feasibility Study, if completed, required by the non-participating Participant in order to make the buy back decision set forth in this Section 6.5.
Continuing Liabilities Upon Adjustments of Participating
Interests
6.6 No
reduction of a Participant's Participating Interest under this Article 6 shall
relieve such Participant of its share of any liability, whether it accrues
before or after such reduction, arising out of Operations conducted prior to
such reduction. For purposes of this Article 6, such Participant's share of such
liability shall be equal to its Participating Interest at the time such
liability was incurred. The increased Participating Interest accruing to a
Participant as a result of the reduction of the other Participant's
Participating Interest shall be free of encumbrances arising by, through, or
under such other Participant, other than those existing at the time the
Properties were acquired or those to which both Participants have given their
written consent. An adjustment to a Participating Interest need not be evidenced
during the term of this Agreement by the execution and recording of appropriate
instruments. However, either Participant, at any time upon the request of the
other Participant, shall execute and acknowledge instruments necessary to
evidence such adjustment in form sufficient for recording in the Province of
British Columbia.
Net Profits Royalty
6.7 Upon
relinquishment of a Participant's entire Participating Interest as provided
under paragraph (d) of Section 6.4 or Section 6.5, or Section 12.3, the
remaining Participant shall quitclaim the interest in Net Profits Royalty to the
withdrawn Participant.
ARTICLE 7 - MANAGEMENT COMMITTEE
Organization and Composition
7.1 The
Participants hereby establish a Board of Directors (the "Management Committee")
to determine overall policies, objectives, procedures, methods and actions under
this Agreement. The Management Committee shall consist of two members appointed
by IMMC and two members appointed by Sutcliffe. Appointments shall be made or
changed by notice to the other Participant.
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Decisions
7.2 Each
Participant, acting through its appointed members, shall have two votes on the
Management Committee. Subject only to the provisions of Section 9.4 and Section
9.5, the votes of the Participant with a Participating Interest over fifty
percent (50%) shall determine the decisions of the Management Committee and in
the event of a tie vote the Manager, unless the Manager has been appointed by
the arbitration procedure set out in Section 8.1, shall make the decision in
question and the Manager's decision shall be final, conclusive and binding on
the Management Committee and the Participants. In the event the Manger has been
appointed by arbitration procedure and is thus unable to make the decision in
question, the Management Committee shall manage the Properties on a care and
maintenance basis until such time as the Participants have either agreed upon
the appointment of a Manager or have otherwise resolved the tie vote on the
decision in question.
Meetings
7.3 The
Management Committee shall hold regular meetings at the conclusion of each
Program at mutually acceptable locations, but not less frequently than annually
before completion of a Feasibility Study and not less frequently than quarterly
thereafter. The Manager shall give ten (10) days' prior notice to the
Participants of such regular meetings. Additionally, either Participant may call
a special meeting upon thirty (30) days' notice to the Manager and other
Participant. In case of emergency, reasonable notice of a special meeting shall
suffice. There shall be a quorum if at least the Manager and one member
representing each Participant is present. If a quorum is not present within
thirty (30) minutes after the time fixed for holding a meeting, the meeting
shall be adjourned to the same day of the next following week (unless such day
is a non-business day in which case it shall be adjourned to the next following
business day thereafter) at the same time and place. Each notice of a meeting
shall include an itemized agenda prepared by the Manager in the case of a
regular meeting, or by the Participant calling the meeting in the case of a
special meeting, but any matters may be considered with the consent of all
Participants. Members may waive in writing the giving of such notice before or
at such meeting. The Manager shall prepare minutes of all meetings and shall
distribute copies of such minutes to the Participants within thirty (30) days of
the meeting. The minutes, when signed by all Participants, shall be the official
record of the decisions made by the Management Committee and shall be binding on
the Manager and the Participants. If personnel employed in Operations are
required to attend a Management Committee meeting, reasonable costs incurred in
connection with such attendance shall be a Venture Company cost. All other costs
shall be paid for by the Participants individually.
Action Without Meeting
7.4 In lieu
of meetings, the Management Committee may hold telephone conferences, so long as
all decisions are immediately confirmed in writing by Participants. Any
resolutions by the Participants may be signed in one or more counterparts and
shall be legal and binding as if passed at a duly called and conducted meeting
of the Management Committee.
Matters Requiring Approval
7.5 Except
as otherwise delegated to the Manager in Section 8.2, the Management Committee
shall have exclusive authority to determine all management matters related to
this Agreement.
14
ARTICLE 8 – MANAGER
Appointment
8.1 The
Participants shall appoint the Manager with overall management responsibility
for Operations at the initial meeting of the Management Committee which shall
take place within thirty (30) days of Sutcliffe completing the terms of the
Sales, Purchase and Assignment Agreement with 606896 B.C. Ltd., but in any event
not later than May 31, 2004. If the Participants cannot agree upon the
appointment of a Manager, such appointment shall be arbitrated pursuant to
Section 16.2. The initial Manager shall remain as Manager until the
Participating Interest of one of the Participants becomes less than fifty
percent (50%), at which time the Manager, if not the majority Participant, shall
resign and be replaced by the Participant whose Participating Interest becomes
greater than fifty percent (50%). The new Manager agrees to serve until his or
her resignation or deemed resignation pursuant to Section 8.4 .
Powers and Duties of Manager
8.2 Subject
to the terms and provisions of this Agreement, the Manager shall have the
following powers and duties which shall be discharged in accordance with adopted
Programs and Budgets:
a) |
The Manager shall manage, direct, and control
Operations. |
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b) |
The Manager shall implement the decisions
of the Management Committee, shall make all expenditures necessary to
carry out adopted Programs, and shall promptly advise the Management Committee
if it lacks sufficient funds to carry out its responsibilities under this
Agreement. |
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c) |
The Manager shall: |
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i) |
purchase or otherwise acquire all materials, supplies,
equipment, water, utility and transportation services required for Operations,
such purchases and acquisitions to be made on the best terms available,
taking into account all of the circumstances; |
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ii) |
obtain such customary warranties and guarantees as
are available in connection with such purchases and acquisitions; and
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iii) |
keep the Assets free and clear of all liens and encumbrances,
except for those existing at the time of, or created concurrent with,
the acquisition of such Assets, or mechanic's or materialmen's liens which
shall be released or discharged in a diligent manner, or liens and encumbrances
specifically approved by the Management Committee. |
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d) |
The Manager shall conduct such title examinations
and cure such title defects as may be advisable in the reasonable judgement
of the Manager. |
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e) |
The Manager shall: |
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i) |
make or arrange for all payments required by leases,
licenses, permits, contracts, and other agreements related the Assets;
|
15
ii) |
pay all taxes, assessments, and like charges on Operations
and Assets except taxes determined or measured by a Participant's sales
review or net income. If authorized by the Management Committee, the Manager
shall have the right to contest in the courts or otherwise, the validity
or amount of any taxes, assessments or charges if the Manager deems them
to be unlawful, unjust, unequal or excessive, or to undertake such other
steps or proceedings as the Manager may deep reasonably necessary to secure
a cancellation, reduction, readjustment, or equalization thereof before
the Manager shall be required to pay them, but in no event shall the Manager
permit or allow title to the Assets to be lost as the result of the nonpayment
of any taxes, assessments or like charges; |
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iii) |
on the first day following thirty (30) days of continuous
production of a commercially saleable mineral product from the Properties
(the Commencement of Commercial Production) calculate the proportional
obligation of each Participant with respect to the Production Share Payment
set out in Sections 9 and 10 of the respective Sales Agreements attached
as Schedules VI (A) and VI (B) hereto; |
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iv) |
make or arrange for the calculation and payment of
all Royalty Interests pursuant to and as more particularly described in
Schedule “III” attached hereto; and |
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(v) |
shall do all other acts reasonably necessary to maintain
the Assets in good order and standing. |
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f) | The Manager shall: |
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i) |
apply for all necessary permits, licenses and approvals;
|
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ii) |
comply with applicable federal, provincial and local
laws and regulations; |
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iii) |
promptly notify the Management Committee of any allegations
of substantial violation thereof; and |
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iv) |
prepare and file all reports or notices required
for Operations. |
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The Manager shall not be in breach of this
provision if a violation has occurred in spite of the Manager's good faith
effort to comply, and the Manager has timely cured or disposed of such
violation through performance, or payment of fines and penalties. |
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g) |
Any and all claims and suits
by third parties arising out of Operations conducted on behalf of the
parties pursuant to this Agreement and brought against the Manager and
any or all of the Participants may, to the extent not covered by insurance,
be compromised and settled or defended by the Manager; PROVIDED HOWEVER,
that the Manager shall not pay more than one hundred thousand dollars
($100,000) in the settlement of any such claim or suit without first obtaining
the unanimous approval of the Management Committee. When the |
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16
amount of any such claim or suit brought
against the Manager and any or all of the Participants exceeds one hundred
thousand dollars ($100,000), the Manager shall promptly seek the advice
of the Management Committee and shall comply with any directions given
by the unanimous consent of the Management Committee with respect thereto.
Each Participant shall have the right to participate through its own counsel,
at its own expense, in the settlement, compromise or defense of any claims
and suits as aforesaid in amounts in excess of one hundred thousand dollars
($100,000); PROVIDED HOWEVER, that all expenditures incurred by the Manager
in prosecuting, defending, compromising or settling any such claims and
suits shall be borne by the Participants in proportion to their Participating
Interests. |
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h) | The Manager shall provide insurance for
the benefit of the Participants consistent with sound business practice.
|
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i) | The Manager may dispose of Assets, whether
by abandonment, surrender or Transfer in the ordinary course of business,
except that the Properties may be abandoned or surrendered only as provided
in Article 14. However, without prior authorization from the Management
Committee, the Manager shall not: |
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i) |
enter into any sales contracts or commitments for
Product except as permitted in Section 11.2; |
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ii) |
dispose of any assets in one transaction or in a
related series of transactions having a value in excess of one hundred
thousand dollars ($100,000); or |
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iii) |
begin a liquidation of the Venture Company. |
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j) | The Manager shall have the right to carry
out its responsibilities hereunder through agents, Affiliates or independent
contractors. |
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k) | The Manager shall make all payments and
perform all acts which provincial law and regulations require in order
to maintain any unpatented mining claims included within the Properties
including, without limitation, payment of the mining claims assessment
fees. |
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l) | The Manager may locate, amend or relocate
any unpatented mining claims or mill site or tunnel site, and locate any
fractions resulting from such amendment or relocation. In addition, the
Manager may, if authorized by the Management Committee: |
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i) |
apply for patents or mining leases or other forms
of mineral tenure for any such unpatented claims or sites; |
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ii) |
abandon any unpatented mining claims for the purpose
of locating mill sites or otherwise acquire rights to the ground covered
thereby; |
17
iii) |
exchange with or convey to the Province of British
Columbia any of the mineral claims within the Properties for the purpose
of acquiring rights to the ground covered thereby or other adjacent ground;
and, |
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iv) |
convert any unpatented claims or mill sites into
one or more lease or other forms of mineral tenure pursuant to provincial
law hereafter enacted. |
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m) | The Manager shall keep and maintain all
required accounting and financial records pursuant to the Accounting Procedures
and in accordance with customary financial and cost accounting practices
in the mining industry. |
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n) | The Manager shall keep the Management Committee
advised of all Operations by submitting in writing to the Management Committee:
|
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i) |
monthly progress reports which include reports of
activities undertaken and statements of expenditures and comparisons of
such activities and expenditures to the adopted Program and Budget; |
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ii) |
periodic summaries of data acquired including drilling
logs, geologysics reports and assays; |
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iii) |
copies of all reports concerning Operations; and
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iv) |
a detailed final report within forty-five (45) days
after completion of each Program and Budget, which shall include comparisons
between actual and budgeted expenditures. |
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At all reasonable times, the Manager shall
provide the Management Committee or the representative of any Participant,
upon the request of any member of the Management Committee, access to,
and the right to inspect and copy Exploration, Development and Mining
data including but not limited to all maps, drill logs, core tests, reports,
surveys, assays, analyses, production reports, operations, technical,
feasibility studies, accounting, Mill reports, smelter reports and financial
records, and other information acquired in Operations. In addition, the
Manager shall allow the non-managing Participant, at the latter's sole
risk and expense, and subject to reasonable safety regulations, to inspect
the Assets and Operations at all reasonable times, so long as the inspecting
Participant does not unreasonably interfere with Operations. |
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o) | The Manager shall undertake all other activities
reasonably necessary to fulfil the foregoing. The Manager shall not be
in default of any duty under this Section 8.2, if its failure to perform
results from the failure of the non-managing Participant to perform acts
or to contribute amounts required of it by this Agreement. |
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p) | The Manager agrees to indemnify the non-managing
Participant and save the non-managing Participant harmless from and against
all actions, suits, claims, and demands whatsoever by any Person or Persons
whomever in respect of any loss, injury, damage or obligation to compensate
arising out of or connected with |
18
or resulting from any willful misconduct in violation of local, provincial or federal laws engaged in by the Manager, its servants, agents and employees in carrying out any of its functions or duties pursuant to this Agreement; PROVIDED HOWEVER, that no act or omission is done or omitted at the instruction of or with the concurrence of the non-managing Participant or the Management Committee.
Standard of Care
8.3 The
Manager shall conduct all Operations in a good, workmanlike, and efficient
manner, in accordance with sound mining and other applicable industry standards
and practices, and in accordance with the terms and provisions of leases,
licenses, permits, contracts, and other agreements pertaining to the Assets. The
Manager shall not be liable to the non-managing Participant for any act or
omission resulting in damage or loss except to the extent caused by or
attributed to the Manager's willful misconduct or gross negligence.
Resignation; Deemed Offer to Resign
8.4 A
Manager, who is not a Participant, may resign upon three (3) months prior notice
to the Management Committee, whereupon the Management Committee shall appoint
another Manager as set out in Section 8.1. A Manager, who is a Participant, may
resign upon three (3) months prior notice to the other Participant, in which
case the other Participant may elect to become a new Manager by notice to the
resigning Participant within twenty-five (25) days after notice of resignation.
If the Manager is a Participant and any of the following shall occur, the
Manager shall be deemed to have offered to resign, which offer shall be accepted
by the other Participant, if at all, within ninety (90) days following such
deemed offer:
a) | The Participating Interest attributable to the Manager
becomes less than fifty percent (50%); or |
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b) | The Manager fails to perform a material obligation
imposed upon it under this Agreement and such failure continues for a
period of sixty (60) days after notice from the other Participant demanding
performance; or |
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c) | The Manager fails to pay or contest in good faith
the Venture Company's invoices within sixty (60) days after they are due;
or |
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d) | The Manager fails to propose a Program and Budget
in excess of one hundred and fifty thousand dollars ($150,000) in any
year without the mutual written agreement of the Participants. |
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e) | A receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for a substantial part of its assets
is appointed and such appointment is neither made ineffective nor discharged
within sixty (60) days after notice from the other Participant demanding
performance; or |
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f) | The Manager commences a voluntary case under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect;
or consents to the entry of an order for relief in an involuntary case
under any such law or to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, |
19
sequestrator or other similar official of any substantial
part of its assets; or makes a general assignment for the benefit of creditors;
or takes corporate or other action in furtherance of any of the foregoing;
or |
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g) | Entry is made against the Manager of a judgment,
decree or order for relief affecting a substantial part of the Manager's
assets by a court of competent jurisdiction in an involuntary case commenced
under any applicable bankruptcy, insolvency or other similar law of any
jurisdiction now or hereafter in effect. |
Any Manager that is replaced shall turn over to its successor all control and possession of the Property, all documents, books, records and accounts relating to the Operations together with all monies held by it as Manager and the new Manager can complete the Program that is in progress. In the event said remaining Participant elects not to become the new Manager this Agreement shall terminate in accordance with Article 12.
Payments to Manager
8.5 The
Manager shall be compensated for its services and reimbursed for its costs
hereunder in accordance with the Accounting Procedures.
Transactions With Affiliates
8.6 If the
Manager engages Affiliates to provide services hereunder, it shall do so on
terms no less favourable than would be the case with unrelated persons in
arm's-length transactions.
Activities During a Deadlock
8.7 If the
Management Committee for any reason fails to adopt a Program and Budget, then
subject to the contrary direction of the Management Committee and to the receipt
of necessary funds, the Manager shall continue Operations at levels comparable
with the last adopted Program and Budget. For purposes of determining the
required contributions of the Participants and their respective Participating
Interests, the last adopted Program and Budget shall be deemed extended. In any
event, the Manager shall have the right to protect, care for and maintain the
Properties and Assets and to receive from the Participants, the funds necessary
for such protection, care and maintenance.
ARTICLE 9 - PROGRAMS AND BUDGETS
Initial Program and Budget
9.1 The
initial Program and Budget shall be prepared by the Manager for adoption by the
Management Committee within sixty (60) days of the initial Management Committee
meeting set forth in Section 8.1.
Operations Pursuant to Programs and Budgets
9.2 Except
as otherwise provided in Section 9.7 and Article 13, Operations shall be
conducted, expenses shall be incurred, and Assets shall be acquired only
pursuant to adopted Programs and Budgets, which Programs and Budgets if over one
million dollars ($1,000,000) shall be for a period of no less than one (1) year.
20
Presentation of Programs and Budgets
9.3 Each
adopted Program and Budget, regardless of length, shall be reviewed at least
twice per year at the semi-annual meeting of the Management Committee. Within
sixty (60) days after completion of each adopted Program and Budget, a proposed
Program and Budget for the succeeding period shall be prepared by the Manager
and submitted to the Participants. Each such proposed Program and Budget shall
be in a form and degree of detail accepted as standard by the mineral
exploration and mining industry.
Limitations on Proposed Programs and Budgets
9.4 Proposed
Programs and Budgets greater than one million dollars ($1,000,000) or less than
one hundred and fifty thousand dollars ($150,000) shall be subject to certain
limitations and conditions as follows:
a) | If a proposed Program and Budget calls for the expenditure
of one million dollars ($1,000,000) or less, then that proposed Program
and Budget may be approved in accordance with the provisions of Section
7.2 and Section 9.5. Any proposed Program and Budget which involves the
expenditure of more than one million dollars ($1,000,000) shall require
the unanimous consent of all Participants; and |
|
b) | If a Program and Budget are not proposed or if a
proposed Program and Budget calls for the expenditure of less than one
hundred and fifty thousand dollars ($150,000) in any year then the Participant
that is not the Manager shall have the right to propose a Program and
Budget for consideration by the Management Committee. |
Review and Approval of Proposed Programs and Budgets
9.5 Within
forty-five (45) days after submission of a proposed Program and Budget and
receipt of the detailed final report of the previous Program and Budget as
required by paragraph (n) of Section 8.2, each Participant shall submit to the
Management Committee:
a) | Notice that the Participant approves and will participate
in the proposed Program and Budget to the extent of its Participating
Interest; or |
|
b) | Proposed modifications of the proposed Program and
Budget including notice of total amounts a Participant is willing to expend
for a Program and Budget, if different from amounts attributable to its
Participating Interest; or |
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c) | Notice that the Participant disapproves or rejects the proposed Program and Budget. |
If a Participant fails to give any of the foregoing responses within the allotted time, the failure shall be deemed to be an approval by the Participant of the Manager's proposed Program and Budget. If a Participant makes a timely submission within said forty-five (45) days to the Management Committee pursuant to Section 9.5 (b) or (c), then the Management Committee shall seek to develop a Program and Budget acceptable to all Participants taking into account any proposals of a Participant to contribute less than its Participating Interest (including no contribution), and thereby be subject to dilution pursuant to Section 6.3. If the Participants cannot unanimously agree on a new Program and Budget at least forty-five (45) days after the proposed
21
Program and Budget is presented to the Management Committee, the provisions of Section 7.2 shall apply in the Management Committee's approving a Program and Budget and if there is no Program and Budget approved by the Management Committee, the deadlock provisions of Section 9.7 shall apply.
Election to Participate
9.6 Subject
to the provisions of Section 6.3 and paragraph (a) of Section 6.4, by notice to
the Management Committee within twenty (20) days after adoption of a Program and
Budget, a Participant may elect to contribute to such Program and Budget in some
lesser amount than its respective Participating Interests, or not at all, in
which case its Participating Interest shall be recalculated as provided in
Article 6. If a Participant fails to so notify the Management Committee, that
Participant shall be deemed to have elected to contribute to such Program and
Budget in proportion to its respective Participating Interest as of the
beginning of the period covered by the Program and Budget.
Deadlock on Proposed Programs and Budgets
9.7 In the
Participants, acting through the Management Committee, fail to approve a Program
and Budget by the time specified in Section 9.5 ("Review and Approval of
Proposed Programs and Budgets"), the provisions of Section 8.7 ("Activities
During Deadlock") and 12.2 ("Termination of Inactivity") shall apply.
Budget Overruns; Program Changes
9.8 The
Manager shall immediately notify the Management Committee of any material
departure from an adopted Program and Budget. If the Manager fails to expend 90%
of an adopted Budget that a participant elects not to contribute, then such
Participant shall have the right to elect to participate in accordance with
Section 9.6. If the Manager exceeds an adopted Budget by more than five percent
(5%), then the excess over five percent (5%), unless directly caused by an
emergency or unexpected expenditure made pursuant to Section 9.9 or unless
otherwise authorized by the Management Committee, shall be for the sole account
of the Manager and such excess shall not be included in the calculations of the
Participating Interests. Budget overruns of five percent (5%) or less shall be
borne by the Participants in proportion to their respective Participating
Interests as of the time the overrun occurs.
Emergency or Unexpected Expenditures
9.9 In case
of emergency, the Manager may take any reasonable action it deems necessary to
protect life, limb or property, to protect the Assets or to comply with law or
government regulations. The Manager may also make reasonable expenditures for
unexpected events which are beyond its reasonable control and which do not
result from a breach by it of its standard of care. The Manager shall promptly
notify the Participants of the emergency or unexpected expenditure, and the
Manager shall be reimbursed for all resulting costs by the Participants in
proportion to their respective Participating Interests as of the time the
emergency or unexpected expenditures are incurred.
22
ARTICLE 10 - ACCOUNTS AND SETTLEMENTS
Monthly Statements
10.1 The
Manager shall promptly submit to the Management Committee monthly statements of
account reflecting in reasonable detail the charges and credits to the Joint
Account during the preceding month.
Cash Calls
10.2 On or
before the last day of each calendar month, the Manager shall submit to each
Participant a xxxx for estimated cash requirements for the next calendar month.
Within fifteen (15) days after receipt of each billing, each Participant shall
advance to the Manager its proportionate share of the estimated amount. Time is
of the essence of payment of such xxxxxxxx. The Manager shall at all times
maintain a cash balance approximately equal to the anticipated rate of
disbursement for up to thirty (30) days. All funds in excess of immediate cash
requirements shall be maintained in an interest-bearing bank account for the
benefit of the Joint Account.
Failure to Meet Cash Calls
10.3 A
Participant that fails to meet cash calls in the amount and at the times
specified in Section 10.2 shall be in default, and the amounts of the defaulted
cash call shall bear interest from the date due at an annual rate equal to two
(2) percentage points over LIBOR, but in no event shall said rate of interest
exceed the maximum permitted by law. The non-defaulting Participant shall have
those rights, remedies and elections specified in Section 6.4.
Audits
10.4 Upon
request made by any Participant within twelve (12) months following the end of
any calendar year (or, if the Management Committee has adopted an accounting
period other than the calendar year, within twelve (12) months after the end of
such period), the Manager shall order an annual audit of the accounting and
financial records for each calendar year (or other accounting period). All
written exceptions to or claims upon the Manager for discrepancies disclosed by
such audit shall be made not more than three (3) months after receipt of the
audit report. Failure to make any such exception or claim within the three (3)
month period shall mean the audit is correct and binding upon the Participants.
The audits shall be conducted by a firm of chartered or certified general
accountants selected by the Manager. In addition, any Participant may conduct
such an audit at any time at its sole cost and expense, provided that such an
audit does not unreasonably interfere with the Operations and that the results
thereof shall be contained in a written report distributed to all Participants
as soon as the audit is complete.
ARTICLE 11 - DISPOSITION OF PRODUCTION
Taking In Kind
11.1 The
Participants shall share in all Products in accordance with their Participating
Interests. Each Participant shall take in kind or separately dispose of its
share of all Products in accordance with its Participating Interest. Any extra
expenditure incurred in the taking in kind or separate disposition by any
Participant of its proportionate share of Products shall be borne by such
Participant. Nothing in this Agreement shall be construed
23
as providing, directly or indirectly, for any joint or cooperative marketing or selling of Products or permitting the processing of Products of any parties other than the Participants at any processing facilities constructed by the Participants pursuant to this Agreement. The Manager shall give the Participants notice at least ten (10) days in advance of the delivery date upon which their respective shares of Products will be available.
Failure of Participant to Take in Kind
11.2 If a
Participants fails to take in kind, the Manager shall have the right, but not
the obligation, for a period of time consistent with the minimum needs of the
industry, but not to exceed one year, to purchase that Participant's share for
its own account or to sell such share as agent for that Participant at not less
than the prevailing market price in the area. Subject to the terms of any such
contracts of sale then outstanding, during any period that the Manager is
purchasing or selling a Participant's share of Products, the Participant may
elect by notice to the Manager to take in kind. The Manager shall be entitled to
deduct from proceeds of any sale by it for the account of a Participant
reasonable expenses incurred in such a sale.
ARTICLE 12 - WITHDRAWAL AND TERMINATION
Termination by Expiration or Mutual Agreement
12.1 This
Agreement shall expire as expressly provided in Section 3.9, unless sooner
terminated by mutual written agreement of the Participants.
Termination by Inactivity
12.2 If the
Management Committee fails to adopt a Program and Budget for thirty-six (36)
months after the expiration of the latest adopted Program and Budget, either
Participant may elect to terminate this Agreement by giving notice of
termination to the other Participant.
Withdrawal
12.3 A
Participant may elect to withdraw as a Participant from this Agreement by giving
notice to the other Participant of the effective date of withdrawal, which shall
be the later of the end of the then current Program and Budget or at least
thirty (30) days after the date of the notice. Upon such withdrawal, this
Agreement shall terminate, and the withdrawing Participant shall be deemed to
have transferred to the remaining Participant, without cost and free and clear
or liens or other encumbrances arising by, through or under such withdrawing
Participant (except those exceptions to title to which both Participants have
given their written consent after the effective date of this Agreement) all of
its Participating Interest in the Assets and in this Agreement. No withdrawal
under this Section 12.3 or otherwise shall relieve the withdrawing Participant
of its share of liabilities to third persons (whether such accrues before or
after such withdrawal) arising out of Operations conducted prior to such
withdrawal. For purposes of this Section 12.3, the withdrawing Participant's
share of such liabilities shall be equal to its Participating Interest at the
time such liability was incurred. Within thirty (30) days thereafter the
non-withdrawing Participant shall quitclaim the interest in Net Profits Royalty
to the withdrawn Participant, as provided under Section 6.7 and the withdrawn
Participant shall thereafter have no other right, title, or interest in the
Assets or under this Agreement.
24
Continuing Obligations
12.4 On
termination of this Agreement under Section 12.1, the Participants shall remain
liable in accordance with their Participating Interests at the time of such
termination for continuing obligations hereunder until final settlement of all
accounts and for any liability, whether it accrues before or after termination,
if it arises out of Operations during the term of the Agreement.
Disposition of Assets on Termination
12.5
Promptly after termination under Section 12.1, the Manager shall take all action
necessary to wind up the activities of the Venture Company, and all costs and
expenses incurred in connection with the termination of the Venture Company
shall be expenses chargeable to the Venture Company. The Assets shall first be
paid, applied, or distributed in satisfaction of all liabilities of the Venture
Company to third parties and then to satisfy any debts, obligations, or
liabilities owed to the Participants. Before distributing any funds or Assets to
Participants, the Manager shall have the right to segregate amounts which, in
the Manager's reasonable judgement, are necessary to discharge continuing
obligations or to purchase for the account of Participants, bonds or other
securities for the performance of such obligations. Thereafter, any remaining
cash and all other Assets shall be distributed (in undivided interests unless
otherwise agreed) to the Participants in proportion to their respective
Participating Interests, subject to any dilution, reduction, or termination of
such Participating Interests as may have occurred pursuant to the terms of this
Agreement. No Participant shall receive a distribution of any interest in
Products or proceeds from the sale thereof if such Participant's Participating
Interest therein has been terminated pursuant to this Agreement.
Right to Data After Termination
12.6 After
termination of this Agreement pursuant to Section 12.1, each Participant shall
be entitled to copies of all information acquired hereunder before the effective
date of termination not previously furnished to it.
Non-Compete Covenants
12.7 A
Participant that withdraws pursuant to Section 12.3, or is deemed to have
withdrawn pursuant to Section 6.4 or Section 6.5, shall not directly or
indirectly acquire any interest in real property within the Area of Interest for
twenty-four (24) months after the effective date of withdrawal. If a withdrawing
Participant, or the Affiliate of a withdrawing Participant, breaches this
Section 12.7, such Participant or Affiliate shall be obligated to offer to
convey to the non-withdrawing Participant, without cost, any such property or
interest so acquired. Such offer shall be made in writing and can be accepted by
the non-withdrawing Participant at any time within forty-five (45) days after it
is received by such non-withdrawing Participant.
Continuing Authority
12.8 On
termination of this Agreement under Section 12.1 or the deemed withdrawal of a
Participant pursuant to Section 6.4 or Section 6.5 or the withdrawal or a
Participant pursuant to Section 12.2, the Manager shall have the power and
authority to do all things on behalf of the Participants which are reasonably
necessary or convenient to: (a) wind up Operations, and (b) complete any
transaction and satisfy any obligation, unfinished or unsatisfied, at the time
of such termination or withdrawal, if the transaction or obligation arises out
of Operations prior to such termination or withdrawal. The Manager shall have
25
the power and authority to grant or receive extensions of time or change the method of payment of an already existing liability or obligation, prosecute and defend actions on behalf of the Participants and the Venture Company, mortgage Assets, and take any other reasonable action in any matter with respect to which the former Participants continue to have, or appear or are alleged to have, a common interest or a common liability.
ARTICLE 13 - ACQUISITIONS WITHIN THE AREA OF INTEREST
General
13.1 Any
interest or right to acquire any interest in real property within the Area of
Interest, acquired prior to or during the term of this Agreement by or on behalf
of a Participant or any Affiliate shall be subject to the terms and provisions
of this Agreement.
Notice to Nonacquiring Participant
13.2 Within
fifteen (15) days after the acquisition of any interest or the right to acquire
any interest in real property wholly or partially within the Area of Interest
(except real property acquired by the Manager pursuant to a Program for the
Venture Company), the acquiring Participant shall notify the other Participant
of such acquisition. The acquiring Participant's notice shall describe in detail
the acquisition, the lands and minerals covered thereby, the cost thereof and
the reasons why the acquiring Participant believes that the acquisition of the
interest is in the best interests of the Participants under this Agreement. In
addition to such notice, the acquiring Participant shall make any and all
information concerning the acquired interest available for inspection by the
other Participant.
Option Exercised
13.3 If,
within fifteen (15) days after receiving the acquiring Participant's notice, the
other Participant notifies the acquiring Participant of its election to accept a
proportionate interest in the acquired interest equal to its Participating
Interest, the acquiring Participant shall convey to the other Participant, by
special warranty deed, such proportionate undivided interest therein. The
acquired interest shall become a part of the Properties for all purposes of this
Agreement immediately upon the notice of such other Participant's election to
accept the proportionate interest therein. Such other Participant shall promptly
pay to the acquiring Participant its proportionate share of the latter's actual
out-or-pocket cash acquisition costs.
Option Not Exercised
13.4 If the
other Participant does not give such notice within the fifteen (15) day period
set forth in Section 13.3, it shall have no interest in the acquired interest,
and the acquired interest shall not be a part of the Properties or be subject to
this Agreement.
ARTICLE 14 - ABANDONMENT AND SURRENDER OF PROPERTIES
Surrender or Abandonment of Properties
14.1 The
Management Committee may authorize the Manager to surrender or abandon part or
all of the Properties and transfer same to 606896 B.C. Ltd. If the Management
Committee authorizes any such surrender or abandonment over the objection of a
Participant, the Participant that desires to abandon or surrender shall assign
to the objecting
26
Participant, by special warranty deed and without cost to the objecting Participant, all of the surrendering Participant's interest in such Properties to be abandoned or surrendered, and the abandoned or surrendered property shall cease to be part of the Properties.
Reacquisition
14.2 If any
part or all of the Properties are abandoned or surrendered under the provisions
of this Article 14 then, unless this Agreement is earlier terminated, neither
Participant nor any Affiliate thereof shall acquire any interest in such
Properties or a right to acquire such Properties for a period of two (2) years
following the date of such abandonment or surrender. If a Participant reacquires
any such Properties in violation of this Section 14.2, the other Participant may
elect by notice to the reacquiring Participant within forty-five (45) days after
it has actual notice of such reacquisition, to have such Properties made subject
to the terms of this Agreement. In the event such an election is made, such
reacquired Properties shall thereafter be treated as fully part of the
Properties, and the costs of reacquisition shall be borne solely by the
reacquiring Participant and shall not be included for purposes of calculating
the Participants' respective Participating Interests.
ARTICLE 15 - TRANSFER OF INTEREST
General
15.1 A
Participant shall have the right to Transfer to any third party (the
“Transferee”) a part or all of its interest in or to this Agreement, its
Participating Interest, or the Assets, but only as provided in this Article 15.
Limitations on Free Transferability
15.2 The
right to Transfer under Section 15.1, shall be subject to the following terms,
conditions and limitations:
a) | No Transferee of a part or all of the interest of
a Participant in this Agreement, a Participating Interest, or the Assets
shall have the rights of a Participant unless and until the transferring
Participant has provided to the other Participant notice of the Transfer,
and except as provided in paragraphs (c) and (d) of this Section 15.2,
the Transferee, as of the effective date of the Transfer, has committed
in writing to be bound by this Agreement to the same extent as the transferring
Participant; |
|
b) | No Transfer permitted by this Article 15 shall relieve
the transferring Participant of its share of any liability, whether accruing
before or after such Transfer, which arises out of Operations conducted
prior to such Transfer; |
|
c) | If the Transfer is the grant of a security interest
by mortgage, deed of trust, pledge, lien or other encumbrance of any interest
in this Agreement, a Participating Interest or the Assets to secure a
loan or other indebtedness of a Participant in a bona fide transaction,
such security interest shall be subordinate to the terms of this Agreement
and the rights and interest of the other Participant hereunder. Upon any
foreclosure or other enforcement of rights in the security interest, the
Transferee shall be deemed to have assumed the position of the |
27
encumbering Participant with respect to this Agreement
and other Participant, and it shall comply with and be bound by the terms
and conditions of this Agreement; |
||
d) | If a sale or other commitment or disposition of Products
or proceeds from the sale of Products by a Participant upon distribution
to it pursuant to Article 11, creates in a third party a security interest
in Products or proceeds therefrom prior to such distribution, such sales,
commitment or disposition shall be subject to the terms and conditions
of this Agreement; and |
|
e) | Only Canadian currency shall be used for Transfers
for consideration. |
Preemptive Right
15.3 Except
as otherwise provided in Section 15.4, if a Participant desires to Transfer a
part or all of its interest in this Agreement, a Participating Interest, or the
Assets, the other Participant shall have a preemptive right to acquire such
interest as provided in this Section 15.3:
a) | A Participant intending to Transfer a part or all
of its interest in this Agreement, a Participating Interest, or the Assets
shall promptly notify the other Participant of its intentions. The notice
shall state the price and all other pertinent terms and conditions of
the intended Transfer, and shall be accompanied by a copy of the offer,
contract or agreement. The other Participant shall have sixty (60) days
from the date such notice is delivered to notify the transferring Participant
whether it elects to acquire the offered interest at the same price and
on the same terms and conditions as set forth in the notice. If it does
so elect, the Transfer shall be consummated within sixty (60) days after
notice of such election is delivered to the transferring Participant.
|
|
b) | If the other Participant fails to so elect within
the period provided for in paragraph (a) of Section 15.3, the transferring
Participant shall have sixty (60) days following the expiration of such
period to consummate the Transfer to a Transferee on the exact terms offered
by the transferring Participant to the other Participant in the notice
required in paragraph (a) of Section 15.3. |
|
c) | If the transferring Participant fails to consummate
the Transfer to a Transferee within the period set forth in paragraph
(b) of Section 15.3, the preemptive right of the other Participant in
such offered interest shall be deemed to be revived. Any subsequent proposal
to Transfer such interest shall be conducted in accordance with all of
the procedures set forth in this Section 15.3. |
In order to prevent collusion on the part of a transferring Participant and a potential Transferee, the transferring Participant shall be required to deliver to the other Participant an opinion letter from the transferring Participants independent external accountant confirming the purchase price the transferring Participant received for its interest in this Agreement, a Participating Interest or the Assets. In addition, such transferring Participant shall be required to produce such opinion letter for the following two (2) years to ensure that no part of the purchase price is returned to the Transferee. Furthermore, and as a condition on becoming Participant, the Transferee
28
agrees to deliver a similar opining letter from its independent external accountant to the other Participant for the following two (2) years.
Exceptions to Preemptive Rights
15.4 Section
15.3 shall not apply to the following:
a) | Transfer pursuant to Section 14.1; |
|
b) | Transfer by a Participant of its entire Participating
Interest to its wholly owned subsidiary; provided, however, that if such
a Transfer to its wholly owned subsidiary is made by a Participant, then
the preemptive right established by Section 15.3 ("Preemptive Right")
shall thereafter not only bind the wholly owned subsidiary but also apply
to the proposed Transfer of any interest in the wholly owned subsidiary,
including the sale of any portion of its shares; |
|
c) | The grant by a Participant of a security interest
in any interest in this Agreement, a Participating Interest, or the Assets
by mortgage, deed of trust, pledge, lien, or other encumbrance; |
|
d) | A sale or other commitment or disposition of Products
or proceeds from sale of Products by a Participant upon distribution to
it pursuant to Article 11; or |
|
e) | Incorporation of a Participant, or corporate merger,
consolidation, amalgamation or reorganization of a Participant by which
the surviving entity shall possess substantially all of the capital stock,
or all of the property rights and interests, and be subject to substantially
all of the liabilities and obligations of the Participant. |
ARTICLE 16 - DISPUTES
Operations
16.1 No
dispute among the Participants shall cause suspension of Operations.
Default and Arbitration
16.2
Notwithstanding Section16.1, any material default by one Participant which
affects the ability of the Venture Company to carry out its purpose or to carry
out an approved Program and Budget shall excuse the non-defaulting Participant
from further performances hereunder until the default is cured. Except as
provided in Section 3.7, in the event of any default or failure by either
Participant to comply with any of the covenants, terms or conditions of this
Agreement, the non-defaulting Participant shall give the defaulting Participant
written notice of the default or failure, specifying details of same. If such
default or failure is not remedied within thirty (30) days after receipt of
notice, provided the same can reasonably be completed within that time, or if
not, if the defaulting Participant has not within that time commenced action to
cure the same or does not after such commencement diligently prosecute such
action to completion, then the dispute shall be settled by arbitration, pursuant
to this Section 16.2. The non-defaulting Participant shall appoint one
arbitrator, and shall notify the defaulting Participant of such appointment and
the defaulting Participant shall, within fifteen (15) days after receiving such
notice either consent to the appointment of such arbitrator which shall then
carry out the arbitration or
29
appointment an arbitrator, and the two arbitrators so named, before proceeding to act, shall, within thirty (30) days of the appointment of the last appointed arbitrator, unanimously agree on the appointment of a third arbitrator to act with them and be chairman of the arbitration herein provided for. If the defaulting Participant shall fail to appoint an arbitrator within fifteen (15) days after receiving notice of the appointment of the first arbitrator, the first arbitrator shall be the only arbitrator, and if the two arbitrators appointed by the Participants shall be unable to agree on the appointment of the chairman, the chairman shall be appointed under the provisions of the arbitration legislation in the Province of British Columbia. Except as specifically provided otherwise in this Section 16.2, the arbitration herein provided for shall be conducted in accordance with such legislation. The chairman, or in the case where only one arbitrator is appointed, the single arbitrator, shall fix a time and place in Vancouver, B.C., for the purpose of hearing the evidence and representation of the Participants, and the chairman shall preside over the arbitration and determine all questions of procedure not provided for under such British Columbia legislation or this Section 16.2. After hearing any evidence and representations that the Participants may submit, the single arbitrator, or the arbitrators, as the case may be, shall make an award and reduce single arbitrator, or the arbitrators, as the case may be, shall make an xxxxx and reduce the same to writing, and deliver one copy thereof of each of the Participants. The expense of the arbitration shall be paid by the losing Participant. The Participants agree that the award of a majority of the arbitrators, or in the case of a single arbitrator, of such arbitrator, shall be final and binding upon each of them.
ARTICLE 17 - CONFIDENTIALLITY
General
17.1 The
financial terms of this Agreement and all information obtained in connection
with the performance of this Agreement shall be exclusive property of the
Participants and, except as provided in Section 17.2, shall not be disclosed to
any third party or the public without the prior written consent of the other
Participant, which consent shall not be unreasonably withheld.
Exceptions
17.2 The
consent required by Section 17.1 shall not apply to a disclosure to:
a) | an Affiliate, consultant, contractor or subcontractor
that has a bona fide need to be informed; |
|
b) | a third party to whom the disclosing Participant
contemplates a Transfer of all of its interest in or to this Agreement,
its Participating Interest, or the Assets; or |
|
c) | a government agency or to the public which the disclosing
Participant believes in good faith is required by pertinent law or regulation
or the rules of any stock exchange. |
In any case to which this Section 17.2 is applicable, the disclosing Participant shall give notice to the other Participant at least two (2) business days before the making of such disclosure. As to any disclosure pursuant to paragraph (a) or (b) of Section 17.2, only such confidential information as such third party shall first agree in writing to protect the
30
confidential information from further disclosure to the same extent as the Participants are obligated under this Article 17.
Duration of Confidentiality
17.3 The
provisions of this Article 17 shall apply during the term of this Agreement and
for two (2) years following termination of this Agreement pursuant to Section
12.1, and shall continue to apply to a Participant who withdraws, who is deemed
to have withdrawn, or who Transfers its Participating Interest, for two (2)
years following the date of such occurrence.
ARTICLE 18 - GENERAL PROVISIONS
Notice
18.1 All
notices, payments, and other required communications ("Notices") to the
Participants shall be in writing, and shall be addressed respectively as
follows:
If to IMMC: | International Millennium Mining Corp. |
000 - 000 Xxxx Xxxxxx | |
Xxxxxxxxx, Xxxxxxx Xxxxxxxx | |
X0X 0X0 | |
Attention: Xx. Xxxx X. Xxxxxxxx | |
If to Sutcliffe: | Sutcliffe Resources Ltd. |
000 - 000 Xxxx Xxxxxx | |
Xxxxxxxxx, Xxxxxxx Xxxxxxxx | |
X0X 0X0 | |
Attention: Mr. Xxxx Indra | |
Fax: 000-000-0000 | |
e-mail: xxxx@xxxxxxxxxxxx.xxx |
All Notices shall be given (i) by personal delivery to the Participant; or (ii) by electronic communications, with a confirmation simultaneously sent by registered or certified mail return receipt requested; or (iii) by registered or certified mail return receipt requested. All Notices shall be effective and shall be deemed delivered (i) if by personal delivery on the date of delivery, if delivered during normal business hours, and if not delivered during normal business hours, on the next business day following delivery; (ii) if by electronic communication on the next business day following receipt of the electronic communication; and (iii) if solely by mail on the next business day after actual receipt. A Participant may change its address by Notice to the other Participant.
Waiver
18.2 The
failure of a Participant 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
Participant’s right thereafter to enforce any provision or exercise any right.
Time is of the Essence
18.3 Time
shall be of the essence in this Agreement.
31
Indemnification
18.4 Each
Participant (the "Indemnifying Participant") hereby agrees to indemnify and hold
the other Participants and the Venture Company and their directors, officers,
employees, agents and attorney, harmless from and against any and all losses,
claims, damages, demands, action, proceedings, investigations and rights of
action (including reasonable attorney's fees and costs, whether a suit is
instituted or not, and if instituted, whether at any trial or appellate level)
which shall or may arise by virtue of: (a) anything done or omitted to be done
by the Indemnifying Participant (through or by its agents, employee or other
representatives) outside the scope or in the breach of the terms of this
Agreement; (b) any breach of warranty or representation contained herein; (c)
any assumption of liability of the Indemnifying Participant; and, (d) any
misrepresentation, omission or inaccuracy in any schedule, instrument or paper
delivered or to be delivered hereunder or in connection with the transactions
herein contemplated, except pursuant to the authority expressly granted herein
or as otherwise agreed in writing between the Participants. The other
Participant shall be notified promptly of the existence of any claim, demand,
action, proceeding, investigation or cause of action and shall be given
reasonable opportunity to participate in the defense thereof.
Modifications
18.5 No
modifications of this Agreement shall be valid unless made in writing and duly
executed by the Participants.
Force Majeure
18.6
Anything to the contrary herein notwithstanding, except for the obligation to
make payments and meet cash calls when due hereunder, the obligations of a
Participant shall be suspended to the extent and for the period that performance
is prevented by any cause, whether foreseeable or unforeseeable, beyond its
reasonable control, including, without limitation, labor disputes (however
arising and whether or not employee demands are reasonable or within the power
of the Participant to grant); acts of God; laws, regulations, orders,
proclamations, instructions or requests of any government or governmental
entity; judgements or orders of any court; inability to obtain on reasonably
acceptable terms any public or private license, permit or other authorization;
curtailment or suspension of activities to remedy or avoid any actual or
alleged, present or prospective violation of federal, provincial, or local
environmental standards; acts of war or conditions arising out of or
attributable to war, earthquake, storm, flood, sink holes, drought or other
adverse weather condition; delay or failure by suppliers or transporters of
materials, parts, supplies, services, or equipment or by contractors’ or
subcontractors’ shortage of, or inability to obtain, labour, transportation,
materials, machinery, equipment, supplies, utilities or services; accidents;
breakdown of equipment, machinery or facilities; or any other cause whether
similar or dissimilar to the foregoing. The affected Participant shall promptly
give notice to the other Participant of the suspension of performance, stating
therein the nature of the suspension, the reasons therefor and the expected
duration thereof. The affected Participant shall resume performance as soon as
reasonably possible. During the period of suspension the obligations of the
Participants to advance funds pursuant to Section 10.2 shall be reduced to
levels consistent with Operations.
Governing Law
18.7 This
Agreement shall be governed by and interpreted in accordance with the laws of
the Province of British Columbia.
32
Rule Against Perpetuities
18.8 Any
right or option to acquire any interest in mineral rights or property or in any
real or personal property under this Agreement must be exercised, if at all, so
as to vest such interest in the acquirer within the term set forth is Section
3.9.
Further Assurances
18.9 Each of
the Participants agrees to take from time to time such actions and execute such
additional instruments as may be reasonably necessary or convenient to implement
and carry out the intent and purpose of this Agreement.
Survival of Terms and Conditions
18.10 The
terms and provisions of this Agreement shall survive its termination to the full
extent necessary for their enforcement and the protection of the Participants in
whose favour they run.
Entire Agreement; Successors and Assigns
18.11 This
Agreement contains the entire understanding of the Participants and supersedes
all prior agreements and understandings between the Participants relating to the
subject matter hereof. This Agreement shall be binding upon and enure to the
benefit of the respective successors and permitted assigns of the Participants.
In the event of any conflict between this Agreement and any Schedule attached
hereto, the terms of this Agreement shall be controlling.
Memorandum
18.12 A
memorandum or short form of this Agreement, as appropriate, which shall not
disclose financial information contained herein, shall be prepared and recorded
by the Manager. This Agreement shall not be recorded.
Counterparts
18.13 This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute a single
agreement.
Severability
18.14
If any provision or section of this Agreement or of any supplements or
modifications hereto should be held invalid by operation of law or by any court
of competent jurisdiction, or if compliance with or enforcement of any provision
or section should be restrained by any such court pending a final determination
as to its validity, the remainder of this Agreement and of any supplements or
modifications hereto, or the application of such provision or section to Persons
or circumstances other than those as to which it has been held invalid or as to
which compliance with or enforcement has been restrained, shall not be affected
thereby.
Number and Gender
18.15 All
references to any party to this Agreement shall be read with such changes in
numbers and gender as the context hereof or reference to the parties hereto may
require.
Approvals
18.16 All
references to approval, authorizations or consent means written approval,
authorization or consent.
33
Delivery by Facsimile
18.17 This
Agreement shall be considered to have been executed and delivered when either an
originally executed copy of the Agreement has been delivered to each party
hereof or when a facsimile copy of the Agreement, whether in counterpart or not,
evidencing the signatures of the parties has been exchanged provided that the
parties in the case of facsimiled copies shall thereafter take steps to cause
originally signed copies of the Agreement to be exchanged between them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first above written.
Signed, Sealed and delivered by | ) | |
INTERNATIONAL MILLENNIUM | ) | |
MINING CORP. | ) | |
) | ||
/s/ Xxxx X. Xxxxxxxx | ) | c/s |
Authorized Signatory | ) | |
) | ||
/s/ Xxx Xxxxxx | ) | |
Authorized Signatory | ) | |
Signed, Sealed and delivered by | ) | |
SUTCLIFFE RESOURCES LTD. | ) | |
) | ||
/s/ Xxxxxxxx Xxxxxxxxxx | ) | c/s |
Authorized Signatory | ) | |
) | ||
/s/ Xxxx Indra | ) | |
Authorized Signatory | ) |
SCHEDULE “I”
to the Xxxxxxxx Property, Joint Venture Agreement between , International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the. ______________________day of ______________, 200_____.
XXXXXXXX PROPERTIES
Being the following 76 Mineral Claims, consisting of 770 claim units, situated in New Westminster Mining District, near Harrison Lake in the Southwestern portion of the Province of British Columbia.
Table 1. Settler Property - Harrison Lake Claims
Status as of: August 27, 2003
Claim Name | Units | Map Sheet | Record # | Expiry Date |
PD
1 PD 2 PD 3 PD 4 PD 5 PD 6 PD 7 PD 8 PD 9 PD 10 PT 10 LS 2 PT 2 LS 5 LS 6 TWO LS 1 LS 3 LS 4 CLIFF JV OLD SETTLER 2 JV 2 |
1 1 1 1 1 1 1 1 1 1 4 18 12 9 6 1 18 6 9 18 18 4 12 |
M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 & 63 M092H052 & 53 M092H053 |
378836 378837 378838 378839 378840 378841 378842 378843 378844 378845 383430 379906 380426 383628 383629 383627 379905 383310 383311 389213 389212 391725 392208 |
06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 |
23 claims | 145 units |
…2
2
Table 2. Buffer Property - Harrison Lake Claims
Status as of: August 27, 2003
Claim Name | Units | Map Sheet | Record # | Expiry Date |
BUFFER 6 BUFFER 7 BUFFER 5 PT 6 BUFFER 4 BUFFER 8 BUFFER 9 BUFFER 10 AO 6 AO 7 OLD FORK 1 OLD FORK 2 OLD FORK 0 XXX XXXX 0 XXX XXXX 0 XXX XXXX 6 VI VIA URQ 1 URQ 2 Xxxxxx 5 DH 1 |
20 15 16 20 14 16 16 14 1 1 1 1 1 1 1 1 15 5 20 20 14 1 |
M092H062 M092H062 M092H062 M092H052 & 62 M092H052 & 62 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 M092H052 & 62 M092H052 & 62 M092H062 M092H062 M092H062 M092H062 |
385458 385459 385457 378834 385456 386339 386340 386140 386848 386849 389892 389893 389894 389895 389896 389897 391726 391939 391940 391941 392613 392968 |
24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 24-Feb-04 |
22 claims | 214 units |
N.B. These claims have been grouped thus the common anniversary date.
…3
3
Table 3. Hornet Property - Harrison Lake Claims
Status as of: August 27, 2003
Claim Name | Units | Map Sheet | Record # | Expiry Date |
AT 2 AT 1 CU 3 CU 1 CU 4 NI 1 NI 2 NI 4 NI 5 CU 2 Duff Duff 1 Duff 2 Duff 3 |
20 6 16 6 18 18 9 20 20 8 15 18 6 8 |
M092H052 & 62 M092H052 & 62 M092H052 & 62 M092H062 M092H062 M092H062 M092H062 M092H062 M092H061, 62 M092H062 M092H062 M092H062 M092H062 M092H062 |
386842 386841 380432 380430 380433 380434 380435 380437 380438 380451 389891 389889 389891 389214 |
06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 |
14 claims | 188 units |
N.B. These claims have been grouped thus the common anniversary date.
…4
4
Table 4. Clear Creek Property - Harrison Lake Claims
Status as of: August 27, 2003
Claim Name | Units | Map Sheet | Record # | Expiry Date |
NI 3 NI 6 CO 1 CO 2 CO 3 CO 4 XXXXX 1 XXXXX 2 XXXXX 1 XXXXX 2 XXXXX 9 XXXXX 6 XXXXX 4 XXXXX 5 CR 1 CR 2 XXXXX 3 |
12
20 12 20 8 16 16 20 15 10 20 14 16 16 1 1 6 |
M092H062
M092H061 & 62 M092H061, 62, 71 & 72 M092H061 & 62 M092H061 M092H061 & 71 M092H071 & 72 M092H071 M092H062 M092H062 M092H062 M092H062 & 72 M092H062 & 72 M092H062 & 72 M092H062 M092H062 M092H062 |
380436
380439 380440 380441 380442 380443 385365 385366 383987 383988 383991 383995 383993 383994 383997 383998 383989 |
06-Dec-03
06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 06-Dec-03 |
17 claims | 223 units |
N.B. These claims have been grouped thus the common anniversary date.
_________________________________*******__________________________________
SCHEDULE "II"
to the Xxxxxxxx Property Joint Venture Agreement between International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the ______day of _______, 200____.
ACCOUNTING PROCEDURES
The financial and accounting procedures to be followed by the Manager and the Participants under the Agreement are set forth below. References in these Accounting Procedures to Sections and Articles are to those located in these Accounting Procedures unless it is expressly stated that they are references to the Agreement.
ARTICLE 1 - GENERAL PROVISIONS
General Accounting Records
1.1 The Manager shall maintain
detailed and comprehensive accounting records in accordance with these Accounting
Procedures, including general ledgers, supporting and subsidiary journals, invoices,
checks and other customary documents, sufficient to provide a record of revenues
and expenditures and periodic statements of financial 0position and the results
of operation for managerial, tax regulatory or other financial reporting purposes.
Such records shall be retained for the duration of the period allowed the Participants
for audit or the period necessary to comply with tax or other regulatory requirements.
The records shall reflect all obligations, advances and credits of the Participants.
Bank Accounts
1.2 The Manager shall maintain
one or more separate bank accounts for the payment of all expenses and the deposit
of all cash receipts for the Venture Company.
Statements and Xxxxxxxx
1.3 The Manager shall prepare
statements and xxxx the Participants as provided in Article 10 of the Agreement.
Payment of any such xxxxxxxx by any Participant shall not prejudice such Participant's
right to protest or question the correctness of the statement and bills for
a period not to exceed twelve (12) months following the date when such statements
and xxxxxxxx were received by the Participant. All written exceptions to and
claims upon the Manager for incorrect charges, xxxxxxxx or statements shall
be made upon the Manager within such twelve (12) month period. The time period
permitted for adjustments hereunder shall not apply to adjustments resulting
from periodic inventories as provided in Article 5 of these Accounting Procedures.
2
ARTICLE 2 - CHARGES TO JOINT ACCOUNT
Subject to the limitations hereinafter set forth, the Manager shall charge the Joint Accounts with the following:
Rental, Royalties and Other Payments
2.1 All property acquisition and
holding costs, including filing and recording fees, license fees, costs of permits
and assessment work, delay rentals, production royalties, including any required
advances, and all other payments made by the Manager which are necessary to
acquire or maintain title of the Assets.
Labour and Employee Benefits
2.2 | a) | Salaries and wages of the Manager's
employees, if any, directly engaged in Operations, including salaries
or wages of employees who are temporarily assigned to and directly employed
by the Manager in Operations, but excluding the Manager’s employees
in the Manager’s home or district offices, if any. |
b) | The Manager's cost of holiday, vacation, sickness
and disability benefits, and other customary allowances applicable to
the salaries and wages chargeable under paragraph (a) of Section 2.2.
Such costs shall be charged on a 'when and as paid basis'. |
|
c) | The Manager's actual cost of established plans for
employee' group life insurance, hospitalization, pension, retirement,
bonus (except production or incentive bonus plans under a union contract
based on actual rates of production, cost savings and other production
factors, and similar non-union bonus plans customary in the industry or
necessary to attract competent employees, which bonus payments shall be
considered salaries and wages under paragraph (a) of Section 2.2 rather
than employee's benefit plan) and other benefit plans of a like nature
applicable to salaries and wages chargeable under paragraph (a) of Section
2.2, provided that the plans are limited to the extent feasible to those
customary in the industry. |
|
d) | Cost of assessments imposed by governmental authority
which are applicable to salaries and wages chargeable under paragraph
(a) of Section 2.2, including all penalties except those resulting from
the willful misconduct or gross negligence of the Manager. |
Materials, Equipment and Supplies
2.3 The cost of materials, equipment
and supplies (herein called "Material") purchased from unaffiliated third parties
or furnished by the Manager or any Participant as provided in Article 3 hereof.
The Manager shall purchase or furnish only so much Material as may be required
for immediate use in efficient and economical Operations. The Manager shall
also maintain inventory levels of Material at reasonable levels to avoid unnecessary
accumulation of surplus stock.
3
Equipment and Facilities Furnished by Manager
2.4 The cost of machinery, equipment
and facilities owned by the Manager and used in Operations or used to provide
support or utility services to Operations charged at rental or lease rates commensurate
with the actual costs of ownership and operations of such machinery, equipment
and facilities. Such rates shall include costs of maintenance, repairs, other
operating expenses, insurance, taxes, and depreciation but shall not be greater
than that which can be provided on a comparable basis by third parties.
Transportation
2.5 Reasonable transportation
costs incurred in connection with the transportation of employees and Material
necessary for the Operations.
Contract Services and Utilities
2.6 The cost of contract services
and utilities procured from outside sources, other, than services described
in Section 2.9 and 2.1.3. If contract services are performed by the Manager
or a Affiliate thereof, the cost charged to the Joint Account shall not be greater
than that for which comparable services and utilities are available in the open
market within the vicinity of the Operations.
Insurance Premiums
2.7 Premiums paid or accrued for
insurance required for the protection of the Participants pursuant to the Agreement.
Damages and Losses
2.8 All costs in excess of insurance
proceeds necessary to repair or replace damage or losses to any Assets resulting
from any cause other than the willful misconduct or gross negligence of the
Manager. The Manager shall furnish the Management Committee with written notice
of damages or losses as soon as practicable after a report thereof has been
received by the Manager.
Legal and Regulatory Expense
2.9 Except as otherwise provided
in Section 2.14, all legal and regulatory costs and expenses incurred in or
resulting from the Operations or necessary to protect or recover the Assets
of the Venture Company. All attorney's fees and other legal costs to handle,
investigate and settle litigation or claims, including the cost of legal services
provided by the Manager's legal staff, and amounts paid in settlement of such
litigation or claims.
Audit
2.10 Cost of annual audits under
Section 10.4 of the Agreement.
Taxes
2.11 All taxes (except income taxes
of any kind) of every kind and nature assessed or levied upon or in connection
with the Assets, the production of Products or Operations, which have been paid
by the Manager for the benefit of the Participants. Each Participant
4
is separately responsible for income taxes which are attributable to its respective Participating Interest.
Direct Office and Camp Expenses
2.12 The costs of maintaining and operating
a camp and a Venture Company district office if necessary, used for the Operations
including office supplies, equipment, furnishings, food, utilities and other
normal industry miscellaneous expenses.
Administrative Charge
2.13 | a)
Each month, the Manager shall charge the Joint Account a sum for each
phase of Operations as provided below, which shall be a liquidated amount
to reimburse the Manager for its home office and its district office overhead
and general and administrative expenses to conduct each phase of the Operation,
and which shall be in lieu of any management fee: |
|
i) |
Exploration Phase - Ten percent (10%) of Allowable
Costs; |
|
ii) |
Development Phase - Five percent (5%) of Allowable
Costs, but not to exceed a cumulative amount of $500,000; |
|
iii) |
Major Construction Phase - Four percent (4%)
of Allowable Costs, but not to exceed a cumulative amount of $1,000,000;
and |
|
iv) |
Mining Phase - Four percent (4%) of Allowable
Costs. |
|
b)
The term "Allowable Costs" as used in this Section 2.13 shall mean all
charges to the Joint Account excluding (i) the administrative charge referred
to in this Section 2.13; (ii) depreciation, depletion or amortization
of tangible or intangible assets; (iii) amounts charged in accordance
with Section 2.1 and 2.9. The Manager shall attribute such Allowable Costs
to a particular phase of Operations by applying the following guidelines:
|
||
i) |
The Exploration phase shall cover those activities
conducted to ascertain the existence, location, extent or quantity of
any deposit of ore or mineral. Such phase shall cease when a commercially
recoverable reserve is determined to exist. |
|
ii) |
The Development phase shall cover those activities
conducted to access a commercially feasible ore body or to extend production
of an existing ore body, and to construct or install relaxed fixed assets.
|
|
iii) |
The major construction phase shall include all activities
involved in the construction of a mill, smelter or other ore processing
facilities. |
|
iv) |
The Mining phase shall include all other activities
not otherwise covered above, including activities conducted after mining
operations have ceased. |
5
c) | The monthly administration charge shall
be equitably apportioned among all of the properties served during such
monthly period on the basis of a ratio, the numerator of which is the
direct labour costs charged to a particular property and the denominator
of which is the total direct labour costs incurred for all properties
served by the Manager. |
||
d) | The following is a representative list
of items comprising the Manager's business office expenses that are expressly
covered by the administrative charges provided in this Section 2.13: |
||
i) |
Administrative supervision, which included services
rendered by managers, department supervisors, officers and directors of
the Manager for Operations, except to the extent that such services represent
a direct charge to the Joint Account, as provided for in Section 2.2;
|
||
ii) |
Accounting, data processing, personnel administration,
billing and record keeping in accordance with governmental regulations
and the provisions of the Agreement and preparation of non-geology or
non-technical reports; and |
||
iii) |
Rentals and other charges for office and records
storage space, telephone services, office equipment and supplies. |
||
e) | The Participants shall annually review
the administration charges and shall agree to amend the methodology or
rates used to determine such charges if they are found to be insufficient
or excessive. |
Other Expenditures
2.14 Any reasonable direct expenditure,
other than expenditures which are covered by the foregoing provisions, incurred
by the Manager for the necessary and proper conduct of Operations.
ARTICLE 3 - BASIS OF CHARGES TO JOINT ACCOUNT
Purchases
3.1 Materials, equipment and machinery
purchased and services procured from third parties shall be charged to the Joint
Account by the Manager at invoiced cost, including applicable transfer taxes,
less all discounts taken. If any Material is determined to be defective or is
returned to a vendor for any other reason, the Manager shall credit the Joint
Account when an adjustment is received from the vendor.
6
Material Furnished by or Transferred to the Manager or a Participant
3.2 Any Material furnished by
the Manager or Participant from its stocks or transferred to the Manager or
Participant shall be priced and charged or credited to the Joint Account by
the Manager on the following basis:
a) | New Material. New Material transferred
from the Manager or Participant shall be priced F.O.B. the nearest reputable
supply store or railway receiving point, where like Material is available
at the Manager's or Participant's cost. |
|||
b) | Used Material. |
|||
i) |
Used Material in sound and serviceable
condition and suitable for reuse without reconditioning shall be priced
as follows: |
|||
A) |
Used Material transferred by the Manager or Participant
shall be priced at seventy-five percent (75%) of replacement cost or fair
market value, whichever is lower; |
|||
B) |
Used Material transferred to the Manager or Participant
shall be priced (i) at seventy-five percent (75%) of the replacement cost
or fair market value, whichever is lower, if such Material was originally
charged to the Joint Account as new Material, or (ii) at sixty-five percent
(65%) of the replacement cost or fair market value, whichever is lower,
if such Material was originally charged to the Joint Account as good used
Material. |
|||
ii) |
Other used Material which, after reconditioning
will be further serviceable for original function as good secondhand Material,
or which is serviceable for original function but not substantially suitable
for reconditioning shall be priced at fifty percent (50%) of the replacement
cost or fair market value, whichever is lower. The cost of any reconditioning
shall be borne by the transferee. |
|||
iii) |
All other Material, including junk, shall
be priced at a value commensurate with its use or at prevailing market
prices, whichever is less. Material no longer suitable for its original
purpose but usable for some other purpose shall be priced on a basis comparable
with items normally used for such other purposes at fair market value.
|
|||
c) | Obsolete Material. Any Material
valued at or over ten thousand dollars ($10,000) which is serviceable
and usable for its original function, but its condition is not equivalent
to that which would justify a price as provided above shall be priced
by the Management Committee. Such price shall be set at a level which
will result in a charge to the Joint Account equal to the value of the
service to be rendered by such Material. |
7
Premium Prices
3.3 Whenever Material is not readily
obtainable at published or listed prices because of national emergencies, strikes
or other unusual circumstances over which the Manager has no control, the Manager
may charge the Joint Account for the required Material on the basis of the Manager's
direct cost and expenses incurred in procuring such Material and making it suitable
for use. The Manager shall give written notice of the proposed charge to the
Participants prior to the time when such charge is to be billed, whereupon any
Participant shall have the right, by notifying the Manager within ten (10) days
of the delivery of the notice from the Manager, to furnish at the usual receiving
point all or part of its share of Material suitable for use and acceptable to
the Manager.
Warranty of Material Furnished by the Manager or Participants
3.4 Neither the Manager nor any
Participant warrants the Material furnished beyond any dealer's or manufacturer's
warranty and no credits shall be made to the Joint Account for defective Material
until adjustments are received by the Manager from the dealer, manufacturer
or their respective agents.
ARTICLE 4 - DISPOSAL OF MATERIAL
Disposition Generally
4.1 The Manager shall have no
obligation to purchase a Participant's interest in Material. The Manager shall
determine the disposition or major items of surplus Material, provided the Manager
shall have the right to dispose of normal accumulations of junk and scrap Material
either by sale or transfer to the Participants as provided in Section 4.2 below.
Distribution to Participants
4.2 Any Material to be distributed
to the Participants shall be made in proportion to their respective Participating
Interests, and corresponding credit shall be made to the Joint Account on the
basis provided in Section 3.2 hereof.
Sales
4.3 Sales of Material to third
parties shall be credited to the Joint Account at the net amount received. Any
damages or claims by the purchaser shall be charged back to the Joint Account
if and when paid.
ARTICLE 5 - INVENTORIES
Periodic Inventories, Notice and Representations
5.1 At reasonable intervals, inventories
shall be taken by the Manager, which shall include all such Material as is ordinarily
considered controllable by operators of mining properties and the expense of
conducting such periodic inventories shall be charged to the Joint Account.
The Manager shall give written notice to the Participants in accordance with
Article 18 of the Agreement of its intent to take any inventory at least
8
thirty (30) days before such inventory is scheduled to take place. A Participant shall be deemed to have accepted the results of any inventory taken by the Manager if the Participant fails to be represented at such inventory.
Reconciliation and Adjustment of Inventories
5.2 Reconciliation of inventory
with charges to the Joint Account shall be made by the Manager, and a list of
overages and shortages shall be furnished to the Management Committee within
three (3) months after the inventory is taken. Inventory adjustments shall be
made by the Manager to the Joint Account for overages and shortages, but the
Manager shall be held accountable to the Venture Company only for shortages
due to lack of reasonable diligence.
Accounting Terms
5.3 All accounting terms not otherwise
defined have the meanings assigned to them and all calculations to be made hereunder
are to be made in accordance with Canadian generally accepted accounting principles
applied on a consistent basis.
______________________________*******______________________________
SCHEDULE “III”
to the Xxxxxxxx Property, Joint Venture Agreement between, International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the 27th day of August, 2003.
ROYALTY INTERESTS
Advance Royalty
In the event commercial production has not commenced on the Properties,
with the exception of those mineral claims subject to the Leader Option, on
or before July 31, 2008, and if the Venture Company (JVC) continues to hold
any interest in the Properties, the JVC shall pay to 606896 B.C. Ltd. an Advance
Royalty of eighteen thousand dollars ($18,000) and a further eighteen thousand
dollars ($18,000) on July 31st each year thereafter until commercial
production has commenced on the Properties, as long as the JVC continues to
hold any interest in the Properties.
Production Royalty
Net Smelter Return Royalty: means the amount in dollars calculated
by multiplying the two percent (2%) royalty reserved for 606896 B.C. Ltd. times
the Net Smelter Return.
Net Smelter Return means, for any period the difference between:
(a) | the sum of: |
|
(i) the gross proceeds
received by the JVC in that period from the sale of Products produced
from the Properties, excepting those mineral claims subject to the Leader
Option, to a party that is arm’s length to the JVC, or that would
have been received by the JVC if the purchaser of the Products were at
arm’s length to the JVC; and |
||
(ii) in the case
of the sale of Products that are ores that have not been processed in
a Mill, the estimated cost that would have been incurred in crushing and
beneficiating such Products in a Mill as agreed by the parties or otherwise
determined by a competent mining or metallurgical engineer; |
||
and
(b) | the sum of: |
||
(i) |
the sum of any Advance Royalties paid and not subtracted
from the Gross Rock Revenue gross proceeds; |
||
(ii) |
any insurance costs in connection with shipping such
Products; |
||
(iii) |
any costs of transport; |
…page 2
2
(iv) | all costs of the JVC associated
with such sales involving handling, weighing, sampling, determination
of water content, insuring and packaging; |
||
(v) | the costs of marketing, adjusted
for rebates or allowance made or given; |
||
(vi) | any sales, severance, gross
production, privilege or similar taxes (other than income taxes or mining
taxes based on income) assessed on or in connection with the products
or the value thereof; and |
||
(vii) | any treatment, beneficiation
or other charges or penalties deducted by any smelter or refinery to which
such products are shipped that have not been previously deducted in the
computation of gross proceeds. |
||
Payment of the Net Smelter Return Royalty shall be quarterly, on a best estimate basis, within thirty (30) days following the end of each fiscal quarter during which the Properties are in commercial production. The records relating to the calculation of the royalty payments shall be audited annually at the end of each fiscal year and:
a) | any adjustment of payments shall be made forthwith;
|
|
b) | a copy of the audited statements shall be delivered
to 606896 B.C. Ltd.; and |
|
c) | 606896 B.C. Ltd. shall have thirty (30) days after
receipt of such statements to question their accuracy in writing and failing
such objection the statements shall be deemed correct. |
Production Royalty Purchase Option: The Production Royalty Purchase Option described in Section 7 of the Sale, Purchase and Assignment Agreement between 606896 B.C. Ltd. and Sutcliffe and in Section 8 of the Sale and Purchase Agreement between 606896 B.C. Ltd. and IMMC, whereby 606896 B.C. Ltd. granted, collectively to Sutcliffe and IMMC, the irrevocable right and option at any time prior to the end of the second year of commercial production on the Properties, to purchase from 606896 B.C. Ltd., fifty percent (50%) of the Production Royalty (i.e. 1% of Net Smelter Returns) by payment to 606896 B.C. Ltd., of one million dollars ($1,000,000) has, with the assignment by Sutcliffe and IMMC of their respective interests in the Properties to the JVC, become the right and option of the JVC.
The Royalty Purchase Option is exercisable by the JVC at the expense and for the benefit of Sutcliffe and IMMC in proportion to their respective interests in the JVC.
…page 3
3
Rock Royalty
Rock Royalty: means the amount in dollars calculated by multiplying
the seven and one half percent (7.5%) royalty reserved for 606896 B.C. Ltd.
times the Gross Rock Revenue.
Gross Rock Revenue means, for any period the difference between:
(a) | the sum of: | |
(i) the gross proceeds
received by the JVC in that period from the sale of sand, rock or gravel
(collectively the “Rock”) produced from the Properties, excepting
those mineral claims subject to the Leader Option, to a party that is
arm’s length to the JVC, or that would have been received by the
JVC if the purchaser of rock were at arm’s length to the JVC; |
||
and
(b) | the sum of: |
||
(i) | the sum of any Advance Royalties
paid and not subtracted from the Net Smelter Return gross proceeds; |
||
(ii) | any insurance costs in connection with
shipping such Rock; |
||
(iii) | any costs of transport; |
||
(iv) | all costs of the JVC associated
with such sales involving handling, weighing, sampling, determination
of water content, insuring and packaging; |
||
(v) | the costs of marketing, adjusted
for rebates or allowance made or given; |
||
(vi) | any sales, severance, gross
production, privilege or similar taxes (other than income
taxes or mining taxes based on income) assessed on or
in connection with the Rock or the value thereof; and |
||
(vii) | any treatment, beneficiation
or other charges or penalties deducted by any purchaser to
whom such Rock is shipped that have not been previously deducted
in the computation of gross proceeds. |
||
Payment of the Rock Royalty shall be quarterly, on a best estimate basis, within thirty (30) days following the end of each fiscal quarter during which the Rock on the Properties is recovered and sold commercially. The records relating to the calculation of Rock Royalty payments shall be audited annually at the end of each fiscal year and:
a) | any adjustment of payments shall be made forthwith;
|
…page 4
4
b) | a copy of the audited statements shall be delivered
to 606896 B.C. Ltd.; and |
|
c) | 606896 B.C. Ltd. shall have thirty (30) days after
receipt of such statements to question their accuracy in writing and failing
such objection the statements shall be deemed correct. |
Rock Royalty Purchase Option: the Rock Royalty Purchase Option described in Section 8 of the Sale, Purchase and Assignment Agreement between 606896 B.C. Ltd. and Sutcliffe and in Section 9 of the Sale and Purchase Agreement between 606896 B.C. Ltd. and IMMC, whereby 606896 B.C. Ltd. granted, collectively to Sutcliffe and IMMC, the irrevocable right and option at any time and from time to time, to purchase from 606896 B.C. Ltd., sixty-six and two thirds percent (66.667%) of the Rock Royalty (i.e. five percent (5%) of Gross Rock Revenues) on payment to 606896 B.C. Ltd., of $500,000 for each thirteen and one third percent (13.333%) of the Rock Royalty, (one percent (1%) of Gross Rock Revenues) acquired, to a maximum of two million, five hundred thousand dollars ($2,500,000) to acquire five percent (5%) of Gross Rock Revenues, has, with the assignment by Sutcliffe and IMMC of their respective interests in the Properties to the JVC, become the right and option of the JVC.
*************************
SCHEDULE “IV”
to the Xxxxxxxx Property, Joint Venture Agreement between, International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the 27th day of August, 2003.
AREA OF INTEREST
Any After Acquired Property, any portion of which falls within two (2) kilometres of the boundaries of the area outlined in black on the map below shall for the purposes of this Agreement, constitute the Area of Interest.
SCHEDULE “V”
to the Xxxxxxxx Property Joint Venture Agreement between International Millennium Mining Corp. and Sutcliffe Resources Ltd. made effective as of the 27th day of August, 2003.
NET PROFITS ROYALTY
The purpose of this Schedule “V” is to define “Net Profits Royalty,” and to provide a method for calculating amounts to be paid by a Participant and received by a non-participating party whose interest shall have been converted to a Net Profits Royalty (the “Net Profits Owner”) under the Agreement. The intent herein is that the Net Profits Owner shall be entitled to receive payments hereunder only when the Participant has recouped from Receipts, all costs, expenditures and investment (with interest thereon as provided herein) incurred by the Participant in its efforts to develop, operate, mine and beneficiate minerals in commercial quantities from or for the benefit of the Properties to which the Net Profits Royalty applies.
Definition of Net Profits
1.1 Net Profits of a Participant shall
be any excess of such Participant’s cumulative Receipts over its cumulative
Disbursements, determined as of the date of computation.
Computation of Net Profits Royalty
1.2 The Participant shall compute
its Net Profits as of the end of each calendar quarter by calculating the excess
as of the date of computation, of its cumulative Receipts over its cumulative
Disbursements. On or before the last day of each calendar quarter, the Participant
shall furnish the Net Profits Owner a statement setting forth, in reasonable
detail, the computation of such Net Profits Owner’s pro-rata share of any
Net Profits due to such Net Profits Owner for the previous calendar quarter.
The Net Profits Owner, upon at least thirty (30) days advance written notice
to a Participant, shall have the right, not more often than once per year, at
its sole expense, to audit the records of such Participant relating to the computation
of the Net Profits Royalty for any calendar year or portion thereof within the
twenty-four (24) month period following the end of such calendar year.
Payment of Net Profits Royalty
1.3 The Net Profits Royalty
shall be calculated by multiplying the Net Profits times the Net Profits Royalty
percentage payable to the Net Profits Owner specified in the Agreement. At the
end of each calendar quarter, the Participant shall pay the Net Profits Owner
any excess of the Net Profits Royalty owing and payable as of the end of the
preceding calendar quarter over the cumulative Net Profits Royalty payments
previously made by the Participant.
Calculation of Receipts and Disbursements
1.4 | a) | “Receipts” shall be the value of the Participant’s
share of Products produced (the “Production”) from the Properties
to which the Net Profits Royalty applies (hereinafter called “Net
Profits Lands”), determined as follows: |
2
i) |
If the mineral or concentrate
is sold to a purchaser other than a Participant or an Affiliate of a Participant,
Receipts shall be the sales price at the point of sale, less all costs
of marketing, including rebates or other allowances made or given in connection
with such sale. |
||
ii) |
If the mineral or concentrate is
sold to a Participant or an Affiliate of a Participant, or is processed
beyond the concentrate stage, Receipts shall be the fair market value
of the mineral or concentrate on the date of sale or shipment for further
processing, and shall be deemed realized at the point of sale or shipment
for further processing. In the absence of agreement on the fair market
value, the matter shall be arbitrated pursuant to the Agreement. |
||
b) | “Disbursements” shall
mean all costs and expenditures of whatsoever nature attributable to the
Net Profits Lands which are subject to the Net Profits Royalty specifically
including Net Smelter Royalties to 606896 B.C. Ltd. and all costs and
expenses of Operations conducted with respect thereto, whether or not
located on the Properties, but which are convenient or necessary for the
Development, Mining, Operations, and beneficiation of Products from the
Properties, including all expenditures for Exploration, Feasibility Studies,
Development, Mine Construction, and mine Operations approved and carried
out on such Net Profits Lands, including all joint Operations, purchase
of all equipment, facilities, and construction of all necessary facilities,
and including all land holding costs whether in the form of rentals, options,
or similar payments. In addition to such costs and expenditures, interest
shall be computed quarterly in arrears on the average excess of cumulative
Disbursements over cumulative Receipts as of the end of each quarter at
a rate of two (2) percentage points over the prime rate extended by TD
Canada Trust Bank at the main branch, Vancouver, British Columbia from
time to time, but not in excess of the rate allowed by law, and such interest
shall be added to the cumulative Disbursements. There shall be excluded
from costs and expenses includable in Disbursements only: |
||
i) |
Any Net Profits Royalty payments to a Net Profits
Owner; |
||
ii) |
income taxes and actual interest costs of the Participant
in funding its share of Disbursements, if any; |
||
iii) |
charges for depletion, depreciation, amortization
and other similar periodic write-offs. |
||
c) | Receipts and Disbursements shall be determined
by the accrual method, but shall not include any item arising prior to
the effective date of the Net Profits Royalty for which the computation
is being made except Disbursements arising under a program in effect on
such effective date. |
Attribution of Receipts and Disbursements
1.5 In determining the extent
to which any item of Receipts or Disbursements is attributable to the Net Profits
Lands, the following shall apply:
3
a) |
Any item of Receipts
or Disbursements reasonably attributable solely to the Net Profits Lands
shall be so attributed. |
||
b) |
Any item not so
attributable, shall be attributed as follows: |
||
i)
|
Receipts from commingled Production
shall be attributed to the Net Profits Lands in the same ratio as units
of Production from such Net Profits Lands commingled during the quarter
under consideration bear to total units of Production from all sources
commingled therewith during such quarter. Any commingled units of Production
not so attributed shall be included as units produced as they are commingled
in subsequent periods. |
||
ii)
|
Disbursements which are normally
depreciable shall be attributed to the Net Profits Lands in the same ratio
as the remaining reserves of such Net Profits Lands bears to the total
remaining reserves from all sources benefiting from such disbursement.
The fact that additional Net Profits Lands may subsequently benefit from
such item shall be disregarded. |
||
iii)
|
Disbursements which are normally
depletable or amortizable shall be allocated to the Net Profits Lands
for which the cost was incurred on the ratio which the respective acreage
of such Net Profits Lands bears to the total acreage for which such cost
was incurred. |
||
iv) |
Disbursements which are normally
considered to be operating costs, shall: |
||
c. |
As to Production
costs, be attributed to Net Profits Lands in the same ratio that Production
from such Net Profits Lands covered by the program under which the item
arises bears to Production from the Properties covered thereby. Production
costs shall be considered chargeable costs as incurred, without regard
to any effect of inventories maintained by the Participant. |
||
d.
|
As to Exploration
costs, be attributed to the Net Profits Lands on which the work was performed
in the ratio that the acreage of such Net Profits Lands bears to the total
acreage for which such costs were incurred. |
||
e. |
As to direct cost
items not described in section 1.5 b) iv) a. or b. above, be attributed
to Net Profits Lands and to other Properties on a reasonable basis. |
||
f.
|
As to indirect overhead
costs, first to be attributed, to the extent reasonably applicable, to
one or more of the categories of direct costs described in section 1.5
b) iv) above. Those items not so attributable shall be allocated to all
such categories in the ratio that the total cost of each category before
such allocation bears to the total cost of all such categories before
such allocation. |
SCHEDULE “VI-A”
to the Xxxxxxxx Property, Joint Venture Agreement between, International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the 27th day of August, 2003.
SALE AND PURCHASE AGREEMENT
Between 606896 B.C. Ltd. and International Millennium Mining Corp.
(ATTACHED)
SCHEDULE “VI-B”
to the Xxxxxxxx Property, Joint Venture Agreement between, International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the 27th day of August, 2003.
SALE, PURCHASE AND ASSIGNMENT AGREEMENT
Between 606896 B.C. Ltd., Sutcliffe Resources Ltd. and
International Millennium
Mining Corp.
(ATTACHED)
SCHEDULE “VII”
to the Xxxxxxxx Property, Joint Venture Agreement between, International Millennium Mining Corp. and Sutcliffe Resources Ltd. entered into the 27th day of August, 2003.
LEADER OPTION
(SEE COPY OF LEADER MINING INTERNATIONAL INC.
OPTION/JOINT VENTURE AGREEMENT ATTACHED)
AMENDING AGREEMENT
XXXXXXXX PROPERTY JOINT VENTURE AGREEMENT
THIS AGREEMENT is entered into this 5th day of January, 2004
BETWEEN:
INTERNATIONAL MILLENNIUM MINING CORP. a company incorporated under the laws of the Province of British Columbia having an office at Suite 502 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter "IMMC")
OF THE FIRST PART;
AND:
SUTCLIFFE RESOURCES LTD. a company incorporated under the laws of the Province of British Columbia having an office at Suite 420 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter "Sutcliffe")
OF THE SECOND PART;
WHEREAS:
A. | IMMC and Sutcliffe entered into a Joint Venture Agreement,
made as of the 27th day of August 2003, (the “Joint Venture
Agreement”) a copy of which is attached hereto as Schedule “A”,
wherein IMMC and Sutcliffe acknowledged their respective acquisition of
fifty percent (50%) undivided right, title and interest in and to seventy-six
(76) contiguous mineral claims comprised of 770 claim units, situated
in New Westminster Mining District, in the Province of British Columbia,
near Harrison Lake, (the “Properties”) subject to the
terms and conditions set out in a Sale and Purchase Agreement and a Sale,
Purchase and Assignment Agreement, both made effective the 7th day
of March 2003, (the “Acquisition Agreements”); |
B. | Under terms of the Joint Venture Agreement, IMMC
and Sutcliffe agreed that from and after the Closing Date, as defined
in the Joint Venture Agreement, all transactions, contracts, employments,
purchases, operations, negotiations with third parties and any other matter
or act undertaken by IMMC and Sutcliffe in connection with the Properties
is to be done, transacted, undertaken or performed in the name of the
Venture Company described in the Joint Venture Agreement; |
C. | IMMC and Sutcliffe have each entered into agreements
to amend certain terms of the respective Acquisition Agreements which
affect the Closing Date set out in the Joint Venture Agreement and therefore
IMMC and Sutcliffe now wish to amend the Joint Venture Agreement. |
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises and of the mutual covenants hereinafter contained and in consideration of the
Amending Agreement
January 5, 2004,
Xxxxxxxx Prop. Joint Venture Agreement – page 2
sum of Ten Dollars ($10.00) paid by each party to the other, (the receipt and sufficiency of which is hereby acknowledged) the parties hereto wish to amend the Joint Venture Agreement as follows:
Section 3.6 on page 7 of the Joint Venture Agreement shall be deleted in its entirety and the following Section 3.6, shall be substituted in its place;
“Closing Date
3.6
The closing of this Agreement shall occur at the office of IMMC on the Closing
Date. The Closing Date shall be no later than October 31, 2004, or such later
date as the parties may agree upon in writing.”
In all other respects the Joint Venture Agreement shall, apart from this present amendment, remain unchanged, in good standing and in full force and effect.
This Amending Agreement is hereby acknowledged, accepted and agreed to by the parties as at the date first above written as being fully part of the Joint Venture Agreement.
INTERNATIONAL MILLENNIUM | ) | ||
MINING CORP. | ) | ||
) | |||
By: | /s/ Xxxx X. Xxxxxxxx | ) | c/s |
Xxxx X. Xxxxxxxx, President | ) | ||
) | |||
By: | /s/ D. Xxxx Xxxxxxxx | ) | |
D. Xxxx Xxxxxxxx, Director | ) | ||
SUTCLIFFE RESOURCES LTD. | ) | ||
) | |||
By: | /s/ Xxxxxxxx Xxxxxxxxxx | ) | c/s |
Xxxxxxxx Xxxxxxxxxx, President | ) | ||
) | |||
By: | /s/ Xxxx Xxxxx | ) | |
Xxxx Indra, Director | ) |