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Exhibit 10.1
RMMI AUSTRALIA PTY LTD
and
EAGLE BAY RESOURCES N.L.
and
AUDAX RESOURCES LTD
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
and
JOINT VENTURE HEADS OF AGREEMENT
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DECEMBER 2006
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▇▇▇▇ ▇▇▇▇ FARMIN AND JOINT VENTURE HEADS OF AGREEMENT
THIS AGREEMENT is dated 6th December 2006
BETWEEN:
RMMI AUSTRALIA PTY LTD (ACN 122 077 105)
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("RMMI")
AND
EAGLE BAY RESOURCES N.L. (ACN 051 212 429) of
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ("EBR")
AND
AUDAX RESOURCES LTD (ACN 009 058 646)
▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ("ADX")
RECITALS:
A. ADX is the beneficial owner and is, or is entitled to be, the registered
holder of a 100% interest in the Tenements.
B. RMMI and EBR wish to earn interests in the Tenements and the parties have
agreed that RMMI and EBR may earn such interest on the terms and conditions
set out in this Agreement.
AGREED as follows
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"ASX" means Australian Stock Exchange Limited;
"Bankable Feasibility Study" means a positive Feasibility Study
for which project financing can be made available from a financial
position;
"Commencement Date" means 30 September 2006;
"Decision to Mine" means a decision by the Manager to recommend to
the Participants that they undertake mining following a positive
Feasibility Study, and being a decision communicated by the
Manager by notice to the other Participant;
"Earning Period" means the period commencing on the Commencement
Date and ending as provided in clause 3.3;
"Expert" means an independent expert appointed by the
Participants, or, in the absence of agreement, by the President of
AusIMM;
"Farmin Interest" means all of RMMI and EBR's rights and interests
pursuant to this Agreement to earn a beneficial interest in the
Tenements;
"Feasibility Study" means, in relation to any proposed mining
operations, a study of all aspects of the proposed mining
operations which;
(a) from appropriate sampling programmes provide estimates of
the tonnes of proved and probable reserves of ore and the
grades thereof;
(b) contains estimates of both capital costs and operating
costs likely to be incurred in establishing and conducting
mining operations, including costs to be incurred in mine
development, pre-production, crushing, treatment and
environmental management;
(c) analyses how to proceed with mining operations to
economically and commercially extract minerals;
(d) includes reference to relevant marketing and financial
aspects;
(e) states whether or not establishment of the proposed mining
operations is commercially viable for a Participant;
(f) in the case of mine operations using a standalone
processing plant, is of such detail and scope as would be
acceptable to a bank or other financial institution for the
purpose of providing financing for the establishment and
carrying out of the proposed mining operations;
(g) includes a schedule of relevant approvals necessary before
production may commence; and
(h) includes all Joint Venture Operations for the purpose of
producing such a study.
"Joint Venture" means the joint venture constituted under clause
2.1 of this Agreement;
"Joint Venture Expenditure" means all Outgoings and the costs of
all Joint Venture Operations including (without limitation) all
costs, expenses and liabilities incurred in connection with the
exploration, development and mining of the Tenements for minerals,
accounted for in accordance with accounting principles accepted in
Australia;
"Joint Venture Interest" means in relation to a Participant:
(a) its interest (from time to time) as tenant in common in the
Joint Venture Property and in all other rights conferred by
this Agreement; and
(b) its right to take in kind a share of minerals derived from
the Tenements
subject to the liabilities and obligations attaching to the
foregoing and imposed by this Agreement;
"Joint Venture Operations" means all activities as are necessary
or desirable in order to implement and give full effect to the
provisions and purposes of this Agreement;
"Joint Venture Property" means all property of whatsoever kind
held, developed, acquired or created by or on behalf of the
Participants for the purpose of the Joint Venture including
(without limitations):
(a) the Tenements;
(b) Mining information; and
(c) minerals, concentrate and ore prior to their being taken in
kind by the Participants;
"Manager" means the Participant appointed to conduct Joint Venture
Operations pursuant to clause 6.1 but reference to the Manager do
not include references to that Participant in any other capacity;
"Mining Act" means the Mining ▇▇▇ ▇▇▇▇ (W.A.) as amended;
"Mining Information" means all technical and other information
including (without limitation) geological, geochemical and
geophysical reports, surveys, mosaics, aerial photographs,
samples, drill core, drill logs, drill pulp, assay results, maps
and plans relating to the Tenements or to Joint Venture
Operations, whether in physical, written or electronic form;
"Operating Committee" means the Operating Committee formed under
clause 7.1 of this Agreement;
"Outgoings" means all rents, rates, survey fees and other fees and
charges under the Mining Act or otherwise in connection with the
Tenements;
"Participants" means RMMI, EBR and ADX and or their permitted
successors and assigns holding a joint venture interest;
"Related Body Corporate" means with respect to any Participant a
related body corporate of that Participant within the meaning of
the Corporations Act;
"Tenement Area" means the land over which the relevant tenements
have been granted.
"Tenements" means the tenements referred to in the Schedule and
any other tenements acquired pursuant to clause 24, together with
any extensions, renewals, consolidations, replacements or
amendments to those tenements and all rights associated with those
tenements including the right to treat mineral bearing material
located in the tenements.
1.2 In this Agreement, unless the context requires otherwise:
(a) reference to a recital, clause, schedule, annexure or
exhibit is to a recital, clause, schedule, annexure or
exhibit of or to this Agreement;
(b) a reference to this Agreement or another instrument
includes any variation or replacement of any of them;
(c) a reference to any statute shall include any amendment,
replacement or re-enactment thereof for the time being in
force and any by-laws, statutory instruments, rules,
regulations, notices, orders, directions, consents or
permissions made there under and any conditions attaching
thereto;
(d) the singular includes the plural and vice versa;
(e) a reference to any gender includes all genders;
(f) a reference to a person includes a reference to the
person's executors, administrators, substitutes, successors
and permitted assigns;
(g) a covenant, representation or warranty in favour of two or
more persons is for the benefit of them jointly and
severally;
(h) a covenant, representation or warranty on the part of two
or more persons binds them jointly and severally; and
(i) a reference to currency is to the currency of Australia.
2. JOINT VENTURE
2.1 The Participants hereby associate in an unincorporated
joint venture for the purpose of exploring and, if
warranted, developing and mining the Tenements.
2.2 The Joint Venture shall commence on the Commencement Date
and on that date the Joint Venture Interests of the
Participants are:
RMMI 0%
EBR 0%
ADX 100%
2.3 Nothing in this Agreement shall make a Participant a
partner of any other Participant nor, except as expressly
provided in this Agreement, constitute any Participant the
agent or representative of any other Participant or to
create any fiduciary relationship between them.
2.4 No Participant shall have any authority to act on behalf of
any other Participant, except as expressly provided in this
Agreement. Where a Participant acts on behalf of another
without authority, such Participant shall indemnify the
other from any losses, claims, damages and liabilities
arising out of any such act.
2.5 Each Participant has the right to take in kind and
separately dispose of, in proportion to its Joint Venture
Interest, all minerals produced by the Joint Venture.
2.6 The liabilities of the Participants to each other and to
third parties shall be several in proportion to their
respective Joint Venture Interests from time to time and
shall not be either joint or joint and several. Each
Participant hereby indemnifies the other against any claim
or liability incurred by the other in excess of the other's
Joint Venture Interest.
3. EARNING PERIOD
3.1 RMMI and ADX acknowledge that EBR has paid $5,000 by way
of exploration expenditure by EBR
on the Tenements.
3.2 RMMI may contribute $1 million to Joint Venture Expenditure
during the Earning Period, including at least $100,000 in
the first six months of this agreement.
3.3 Subject to clause 3.5, the earning Period will end when
RMMI has contributed $1 million to Joint Venture
Expenditure (including the payment in clause 3.1) and gives
notice of this to ADX, or on 30 September 2010, whichever
comes first.
3.4 RMMI must contribute at least $48,000 to Joint Venture
Expenditure (including the payment in clause 3.1), for each
permit year it enters.
3.5 If RMMI fails to spend the sum of $1 million on Joint
Venture Expenditure during the Earning Period then it and
EBR shall be deemed to have withdrawn from the Joint
Venture unless EBR agrees to meet RMMI's outstanding
commitments pursuant to clause 13 unless this period has
been extended by Force Majeure or by mutual agreement
between the Participants.
3.6 Upon contributing $1 million to Joint Venture Expenditure
during the Earning Period and giving notice thereof to ADX,
RMMI and EBR shall be deemed to have earned a 70% Joint
Venture Interest so that the Joint Venture Interests of the
Participants shall then be:
RMMI 51%
EBR 19%
ADX 30%
3.7 If ADX is not satisfied that RMMI has made an earning
contribution asserted by it under this clause 3 it must
give notice to RMMI within 21 days of receiving a notice
from RMMI under clause 3.3. If the Participants are unable
to resolve any dispute arising under this clause either
party may require the matter to be referred to an auditor.
RMMI may extend the Initial Earning Period of the Further
Earning Period (as the case may be) for such period as may
be agreed between the Participants or determined by the
auditor to be reasonable so as to complete its earning
obligations where it is agreed or determined RMMI has not
made a sufficient contribution.
4. ADX ELECTION UPON EBR EARNING ITS 70% INTEREST
4.1 Upon RMMI giving written notice to ADX that it has earned
its 70% Joint Venture Interest pursuant to clause 3.7, ADX
may elect, by notice in writing to RMMI within 30 days,
that it will:
(a) contribute its 30% share of Joint Venture
Expenditure; or
(b) dilute in accordance with the formula set out in
clause 10. The sole right and responsibility with
respect to the dilution percentage is to be at the
cost of and for the benefit of EBR who shall meet
the additional expenditure with respect to this
dilution.
5. ELECTION UPON EBR COMPLETING A BANKABLE FEASIBILITY STUDY
5.1 Upon completion by RMMI and/or EBR of a Bankable
Feasibility Study (BFS) RMMI and/or EBR must give ADX a
written copy of the Bankable Feasibility Study and ADX must
within 30 days of receipt of the Bankable Feasibility Study
elect to pay its then participating interest or withdraw
from the Joint Venture.
5.2 All parties must offer their respective Joint Venture
Interests as security for project financing of development
and production.
6. MANAGER
6.1 RMMI shall be the Manager while it is the sole contributor
to Joint Venture Expenditure and shall be entitled to
remain the Manager (subject to clause 6.2) while it holds a
Joint Venture Interest of 51% or greater.
6.2 The Manager:
(a) may resign on 30 days' notice to the Participants;
or
(b) may be removed by resolution of the Operating
Committee or if it commits gross negligence or
wilful default; and
upon retirement or removal of the Manager, the Participants
shall appoint a Manager by agreement between them, or,
failing this, by resolution of the Operating Committee.
6.3 While RMMI remains the sole contributor to Joint Venture
Expenditure it shall (as Manager) have the sole
responsibility for determining and carrying out programmes
and budgets. Notwithstanding the foregoing, RMMI shall
provide copies of proposed programmes to ADX and shall
allow EBR and ADX the opportunity to comment upon such
proposed programmes but RMMI shall not be bound to act on
such comments.
6.4 After RMMI ceases to be the sole contributor to Joint
Venture Expenditure the Manager shall prepare programmes
and budgets for consideration by the Operating Committee.
Programmes and budgets shall be prepared for periods each
of 6 months duration commencing on 1 September and 1 March.
6.5 After RMMI ceases to be the sole contributor to Joint Venture
Expenditure the Manager:
(a) shall carry out the Joint Venture activities in
accordance with programmes and budgets approved by
the Operating Committee;
(b) may not exceed an approved budget by more than 15%
without the prior consent of the Operating
Committee, except in relation to emergency
expenditure;
(c) shall be responsible for all day to day operations
of the Joint Venture which shall include managing
and supervising all approved programmes and budgets;
(d) shall carry out Joint Venture activities in
accordance with good mining industry practice, with
reasonable care, skill and diligence and in
accordance with all applicable laws and regulations;
(e) shall promptly carry out the instructions and
directions of the Operating Committee; and
(f) shall maintain complete and accurate books, records
and accounts of all transactions relating to the
Joint Venture which shall be open for inspection and
audit by the Participants.
6.6 The Manager shall furnish concise reports to the
Participants, on a quarterly basis, which shall contain all
relevant technical and financial information concerning the
joint venture. The cost of providing such reports shall be
Joint Venture Expenditure.
6.7 All statutory reports concerning the Tenements released by
the Manager shall be provided to the Participants and the
costs of providing such reports shall be Joint Venture
Expenditure.
6.8 The Manager shall, on receiving reasonable notice from any
of the Participants, provide that Participant with copies
of any relevant project data, provided that any such report
or relevant project data is provided at the cost of the
Participant requesting it.
6.9 The Manager shall not be liable to any Participant for any
losses sustained or liability incurred by the Joint Venture
and each Participant shall be liable to indemnify the
Manager in proportion to their respective Joint Venture
Interests in respect of the same except where any such loss
or liability arises as a direct result of the Manager's
wilful misconduct or gross negligence.
6.10 Each Participant appoints the Manager and each of its
directors from time to time (severally) its lawful attorney
to sign all forms and documents and do everything necessary
to maintain the Tenements in good standing and in full
force, and to comply with the provisions of the Mining Act.
7. OPERATING COMMITTEE
7.1 As soon as practicable after the completion of the Earning
Period, the Participants shall form and then maintain a
committee which shall meet not less than once in each
calendar quarter unless otherwise agreed.
7.2 Each of the Participants shall be entitled to appoint a
representative as a member of the Operating Committee and
to remove any person so appointed and to appoint another
person in their place. Any appointment or removal is to be
effected by notice in writing to the other Participants.
7.3 The Operating Committee may review and give directions to
the Manager as to Joint Venture Operations and shall
consider and approve (subject to modification or otherwise)
the nature and content of programmes and budgets relating
to Joint Venture Operations as proposed by the Manager.
7.4 The voting power of each Participant's representative at
meetings of the Operating Committee shall be one vote for
each percentage point of that Participant's Joint Venture
Interest as at the date of the meeting.
7.5 In the event of a deadlock in voting on matters requiring
majority vote:
(a) the Participants (through their respective senior
management) shall meet and in good faith attempt to
resolve the deadlock;
(b) while the deadlock continues, operations shall
continue at the same rate as previously; and
(c) after a 3 month period, the decision of whichever
Participant is the Manager shall prevail.
7.6 All matters for decision before the Operating Committee
shall require a majority vote by one or more of the
Participants except for passage of any decision regarding
the ceasing of mining operations that are providing a
positive return on investment for all Participants, which
shall require a 75% majority vote of one or more of the
Participants.
7.7 A decision by the Operating Committee will not be
effective to amend the terms of this Agreement.
8. MAINTENANCE OF TENEMENTS
8.1 During the Earning Period, RMMI shall pay all Outgoings and
maintain the Tenements in good standing (including ensuring
that all Mining act reporting requirements are observed).
9. CASH CALLS
9.1 After the Earning Period:
(a) the Manager shall within 30 days after the end of
each month, issue to each Participant a cash call
for its share of Joint Venture Expenditure paid or
incurred during the preceding month;
(b) the Manager may, not more than 30 days prior to the
commencement of any month issue cash calls for
estimated costs which the Manager anticipates will
be incurred during that month;
(c) all cash calls must be paid within 14 days of
receipt; and
(d) all Participants shall be liable to contribute to
Joint Venture Expenditure in proportion to their
Joint Venture Interests from time to time.
9.2 A Participant that does not pay a cash call by the due date
shall pay interest thereon at a rate equal to 3% above the
Westpac Banking Corporation Indicator Lending Rate from
time to time.
9.3 The Manager shall be entitled to recover moneys owing by
a defaulting party in any court of
competent jurisdiction
9.4 If a Participant defaults in the payment of a cash call
properly issued to it and if default continues for more
that 30 days, the other Participants may elect to dilute
the Joint Venture Interest of the defaulting Participant,
in which case the defaulting Participant's Joint Venture
Interest shall be diluted at the rate of 150% of the rate
prescribed in clause 10.2
10. DILUTION
10.1 The following shall apply in relation to voluntary dilution
by a Participant, which dilution may only occur prior to a
Decision to Mine:
(a) within 21 days after approval by the Operating
Committee of a programme and budget, any Participant
may elect not to contribute to the programme or
budget. If a Participant makes such an election, the
other Participant may amend the approved programmed
and budget to take account of the non-contribution;
(b) the Participant that elected not to contribute
("Diluting Participant") shall have its Joint
Venture Interest diluted in accordance with the
dilution formula set out in clause 10.2;
(c) notwithstanding anything in this clause, voluntary
dilution is not permitted in respect of any
programme and budget which is necessary to maintain
the Tenements.
10.2 The Joint Venture Interest of a Diluting Participant shall
be diluted and recalculated from time to time in accordance
with the following formula:
New Joint Venture Interest = A x 100
-------
B
Where:
A = the total amount of Joint Venture
Expenditure contributed by the
Diluting Participant at the date
of calculation plus the deemed
contribution of the Diluting Participant;
B = the total amount of Joint Venture
Expenditure contributed by the
Participants at the date of
calculation, plus the deemed
contributions of both Participants.
For the purposes of the formula, where RMMI and EBR
has earned an aggregate 70% Joint Venture Interest
the deemed contribution of ADX shall be $300,000 and
for EBR it shall be $190,000 and for RMMI it shall
be $510,000.
10.3 Other than in the circumstances set in clause 4.1 (b),
the diluted interest shall be distributed to the
Non-Participants pro rata.
11. CONFIDENTIALITY
11.1 Unless otherwise agreed by the Participants or required by
law or the listing Rules of the ASX, all information
obtained in relation to the Joint Venture and which is not
in the public domain shall be kept confidential and shall
not be disclosed by the Participants.
11.2 If required by any Participant, the Manager must give to
the Participants all information the Participant requires
to comply with the Listing Rules of the ASX and the
Participants agree that such information may be given to
the ASX for release to the market if necessary for the
Participants to comply with the Listing Rules, provided
that all Participants have been given a reasonable period
of time, bearing in mind the circumstances, to comment on
the draft announcement to ASX.
12. WARRANTIES
12.1 ADX represents and warrants to RMMI and EBR and that:
(a) it is the sole registered holder and beneficial
owner of the Tenements and has good right and title
to assign an interest therein free from any
mortgages, claims, caveats, pledges, liens, charges
or other encumbrances;
(b) other than any native title claims, of which ADX is
not aware, there is no litigation nor are there any
proceedings of any nature concerning the Tenements
pending or threatened;
(c) the Tenements have been duly and properly applied
for in terms of the Mining Act and all Outgoings due
as at the Commencement Date have been paid;
(d) the Tenements are in all respects valid, effective
and in good standing and not liable to forfeiture or
surrender and, where necessary, appropriate
exemptions from the expenditure conditions attaching
to the Tenements have been applied for or obtained;
(e) it has entered into no other existing agreement
regarding the Tenements and, except for EBR, no
other party holds any rights to explore, prospect or
mine on any part of the Tenements; and
(f) to the best of its knowledge and belief all matters
relating to the Tenements which would reasonably be
regarded as material and proper for disclosure to an
intending purchaser thereof have been disclosed to
EBR.
13. ASSIGNMENT
13.1 Subject to clause 13.4, RMMI and EBR may assign all or any
of its Joint Venture Interest or its Farmin Interest to any
Body Corporate without each other Participant's consent but
subject to the assignee company agreeing to assign the
Joint Venture Interest back to the assignor in the event
that it ceases to for fill its obligations to EBR.
13.2 Subject to clause 13.1, no Participant ("Assigning
Participant") may assign all or any of its Joint Venture
Interest and in the case of RMMI or EBR its Farmin Interest
unless the Assigning Participant first offers to assign
such interest to the other Participants ("Non-Assigning
Participants") pro rata upon the same terms and conditions
(as determined by clause 13.3) as the proposed terms and
conditions of the assignment to the third party and such
offer has not been accepted by the Non-Assigning
Participants within 30 days after the making of the offer.
13.3 For the purposes of clause 13.2, the identity of the
proposed third party assignee, the proposed purchase price
and other terms and conditions upon which the Assigning
Participant is prepared to sell or dispose of all or part
of its Joint Venture Interest shall be furnished to the
Non-Assigning Participants at the time of delivery of the
offer and the proposed consideration must be in cash and or
joint venture expenditure or if not in cash or joint
venture expenditure, be of a value to be agreed between the
Participants. If the Participants cannot agree upon such
value the matter shall be determined by an Expert whose
decision shall be final.
13.4 Where an assignment is made to a Related Body Corporate or
a third party, such assignment shall have no force or
effect whatsoever until such time as the Related Body
Corporate or the third party has entered into a covenant
with the other Participants binding it to observe and
perform all the terms and conditions of this Agreement.
13.5 No Participant shall assign, encumber, part with possession
of, grant any power of attorney over or in any other
directly or indirectly deal with its Joint Venture Interest
or any part thereof (or any right to earn a Joint Venture
Interest) save as expressly permitted by the terms of this
Agreement.
13.6 A Participant may create or permit the creation of an
encumbrance over the whole or part of its Joint Venture
Interest but only if it complies with each of the following
requirements:
(a) the encumbrance is a mortgage, charge or other
recognised form of security;
(b) the encumbrance is to secure moneys borrowed for the
purpose of meeting its obligations under this
Agreement; and
(c) the person taking the encumbrance executes a
chargee's priority deed in a form reasonably
acceptable to the other Participant, agreeing that
the rights of that person under the encumbrance are
subject to the provisions of this Agreement.
14. WITHDRAWAL
14.1 Subject to clauses 3.4 and 8.1, any Participant may
withdraw from the Joint Venture by giving 12 months' notice
in writing to the other Participants. Where a budget has
been approved and is relevant to a period remaining of less
than 12 months, then notice may be given with such lesser
time notice period.
14.2 Upon a withdrawal or deemed withdrawal from the Joint
Venture, then, unless otherwise provided in this Agreement,
the withdrawing Participant shall thereupon assign to the
other Participants pro rata all its Joint Venture Interest
for nil consideration.
14.3 Any withdrawal pursuant to this clause 14 shall be without
prejudice to any rights or obligations of the Participants
arising prior to the withdrawal.
15. HOLDING AND TRANSFER OF JOINT VENTURE PROPERTY
15.1 The Joint Venture Property shall be held by the Participant
or Participants for the time being having legal title
thereto upon trust for the Participants as tenants in
common in undivided shares in accordance with their
respective Joint Venture Interests.
15.2 Any Participant having a beneficial interest in Joint
Venture Property may at any time and at its expense require
a transfer from the other Participants, of the legal title
to that beneficial interest.
15.3 The transfer of any interest in the Tenements pursuant to
this Agreement is subject to any necessary consent or
approval under the Mining Act or under any other law or
regulation and the Participants shall use all reasonable
efforts to promptly obtain all necessary consents and
approvals.
16. CAVEATS
16.1 Any Participant shall be entitled to lodge such caveats
pursuant to the Mining Act as it thinks fit to protect its
beneficial interest in the Tenements from time to time.
17. FURTHER ASSURANCES
17.1 The Participants shall sign all such documents, forms and
notices and do all such things as may be reasonably
necessary to give effect to the terms of this Agreement.
18. NOTICES
18.1 A notice approval, consent or other communication in
connection with this Agreement:
(a) must be in writing;
(b) must be marked for the attention of the person
specified in clause 18.2 or, if a Participant
notifies another person, then to that person; and
(c) must be left at the address of the addressee, or
sent by prepaid ordinary post (airmail if posted to
or from a place outside Australia) to the address of
the addressee or sent by facsimile to the facsimile
number of the addressee which is specified in clause
18.2 or, if the addressee notifies another address
or facsimile number, then to that address of
facsimile number.
19.2 The address and facsimile number of, and specified person
for, each Participant is:
(a) RMMI
Attention: Managing Director
Address: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
(b) EBR
Attention: Managing Director
Address: ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
(b) ADX
Attention: Managing Director
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
18.3 A notice, approval, consent or other communication takes
effect from the time it is received unless a later time is
specified in it. A posted letter or facsimile is taken to
be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) Business Day after posting; and
(b) in the case of facsimile, on production, by the
machine from which the facsimile was sent, of a
transmission report which indicates that the
facsimile was sent in its entirety and in an error
free form to the facsimile number of the recipient
notified for the purpose of this clause.
19. NO PARTITION
19.1 Unless otherwise agreed between the Participants, no
Participant and no person claiming through a Participant
shall during the life of the Joint Venture seek partition,
whether by any court or otherwise howsoever of any Joint
Venture Property.
20. FORCE MAJEURE
20.1 In this Agreement, Force Majeure means:
(a) declared or undeclared war, revolution, act of
public enemies riots or civil commotions;
(b) strike, lockout, stoppage or restraint of labour or
other industrial disputes;
(c) fire or explosion, Act of God, flood, storm or
washaway, in each case which could not have been
reasonably foreseen or with due diligence avoided;
(d) act or restraint of any Government, Governmental
agency or authority, including expropriation,
prohibition, intervention, direction, embargo, or
regulation so that the ability of a party to perform
its obligations is substantially adversely affected;
and
(e) any other cause which by the exercise of reasonable
foresight or due diligence the party is unable to
prevent or overcome.
20.2 A party shall be excused from the performance of an
obligation under this Agreement, other than an obligation
to pay money, to the extent and for so long as the failure
is caused by Force Majeure. For the purposes of this clause
20 the words "excused from performance of an obligation"
shall be taken to include the obligations which EBR may
satisfy so as to earn interests during the Earning Period
such that the Initial Earning Period and the Further
Earning Period shall be extended in the event of Force
Majeure and EBR giving notice pursuant to clause 20.3.
20.3 A party claiming to be excused from performance of an
obligation shall:
(a) within 48 hours give notice to the other party of
the event of Force Majeure relied on; and
(b) use its best endeavours to resume compliance with
the obligation as soon as reasonably possible but no
party shall be obliged to settle an industrial
dispute on terms not acceptable to it.
20.4 If a party is excused from performance of an obligation by
reason of Force Majeure, then the time for performance by
each party of its obligations under this Agreement shall be
extended by such time as is reasonable in the
circumstances.
21. FORMAL JOINT VENTURE AGREEMENT
21.1 If requested by any Participant at any time after EBR has
earned a Joint Venture Interest, the Manager shall prepare
a formal joint venture agreement setting out the
arrangements and commitments herein contained together with
such provisions as are normally found in joint venture
agreements and are not inconsistent with this Agreement
will be negotiated in good faith between the Participants
but until such a formal agreement is executed the
Participants shall be bound by the provisions of this
Agreement. If the Participants fail to reach agreement on
any matter, either Participant may require the matter to be
referred to an Expert whose decision shall be final and
binding.
22. COSTS
24.1 Each Participant shall be responsible for its own legal
costs in connection with the preparation of this Agreement.
23. GST
23.1 Definitions
For the purposes of this clause 23:
"Consideration" has the same meaning as in the GST Act but
does not include the GST amount payable;
"GST" means a tax, import or duty on goods or services or
other things introduced by the Commonwealth of Australia or
any State of Australia or any similar tax;
"GST Act" means a New Tax System (Goods and Services Tax)
▇▇▇ ▇▇▇▇; and
"Supply" has the same meaning as in section 9.10 of the GST
Act.
23.2 GST Component
Any Supply pursuant to or arising out of this Agreement and
the Joint Venture shall be upon the basis that the
Consideration for that Supply is increased by the amount of
GST payable.
23.3 GST Obligation
The Participants and the Manager shall duly comply with all
GST obligations.
23.4 GST Joint Venture
The Participants will in good faith consider taking action
to register the Joint Venture as a "GST Joint Venture".
24. AREA OF INTEREST
24.1 The Participants acknowledge that any mineral tenement
acquired by any party to this agreement within 50km of
EL31/491 are to be included in this Joint Venture
Agreement.
24.2 Audax agrees that it shall allow RMMI and EBR first right
of refusal to enter into individual joint ventures with
Audax in any tenement it acquires within Western Australia
during the currency of this Joint Venture.
25. GOVERNING LAW
25.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of Western Australia
and the Participants agree to submit to the non-exclusive
jurisdiction of the courts of that State.
Executed by the Participants as an Agreement.
EXECUTED for and on behalf of )
RMMI AUSTRALIA PTY LTD )
/s/ M.A. ▇▇▇▇▇▇
------------------------------
Director
M.A. ▇▇▇▇▇▇
Print name
EXECUTED by EAGLE BAY RESOURCES N.L. )
/s/ ▇. ▇▇▇▇▇▇▇
------------------------------
Director
▇. ▇▇▇▇▇▇▇
Print name
EXECUTED for and on behalf of )
AUDAX RESOURCES LTD )
/s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Director
▇▇▇▇ ▇▇▇▇▇
Print name
SCHEDULE
Tenements and Minimum Government Expenditures
EL 31/491 ($20,000); and
EL 31/492 ($28,000)
(together called "▇▇▇▇ ▇▇▇▇")
