EXHIBIT 10.07
MINERAL LEASE AGREEMENT
BETWEEN
IDAHO GOLD CORPORATION
AND
IDAHO CONSOLIDATED METALS CORP.
(THE FRIDAY PROPERTY)
THIS MINERAL LEASE AGREEMENT, dated this 9th day of July, 1996
("Effective Date"), is between IDAHO GOLD CORPORATION, a Nevada corporation,
(hereinafter referred to as "OWNER") and IDAHO CONSOLIDATED METALS CORP., a
Idaho corporation, (hereinafter referred to as "ICMC"). OWNER and ICMC are each
hereafter sometimes referred to individually as "Party" and collectively as
"Parties".
RECITALS
OWNER owns or controls certain patented mining claims located in Idaho
County, State of Idaho. The mining claims are more particularly described in
Exhibit A hereto (hereinafter called the "Property").
OWNER is desirous of leasing the Property to ICMC for the purpose of
ICMC Exploring, Developing and mining the same.
ICMC is desirous of leasing the Property for such purposes.
In consideration of Sixty Thousand (60,000) shares of common stock of
ICMC (the ICMC "Stock") paid or to be paid by ICMC to OWNER, the receipt and
sufficiency of which are hereby acknowledged and in consideration of the mutual
covenants and agreements of the Parties herein contained, OWNER and ICMC agree
as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement certain terms and provisions used herein are
defined as follows:
1.01 "Affiliate" means, with respect to any Party, 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 Party.
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1.02 "Agreement" means this Mineral Lease Agreement, as it may be
amended, together with Exhibits A - Property and B - Royalty.
1.03 "Anniversary Date" shall mean the day and month indicated in the
first paragraph of this Agreement occurring in each year subsequent to the
Effective Date of this Agreement, so long as this Agreement shall continue in
force and effect.
1.04 "Commencement of Commercial Production" means the first day
following the first period of ninety (90) consecutive days during which Products
are produced from the Property at an average rate equal to at least fifty
percent (50%) of the design capacity of the production facilities established
for producing Products from the Property.
1.05 "Control" means possession, directly or indirectly, of the power
to direct or cause direction of management and policies through ownership of
voting securities, contracts, voting trusts, or otherwise. Grammatical
variations of "Control" have a like meaning.
1.06 "Development" means all preparation for the removal of Ore for the
commercial recovery of Products from such Ore, including surveying, development
drilling and geological, geochemical and engineering analysis thereof, sampling,
prestripping and stripping, 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. The active pursuit of obtaining any federal,
state or local authorization or permit related to any of the foregoing
activities included in this definition shall also be considered to be an act of
Development. Grammatical variations of "Development" have a like meaning.
1.07 "Exploration" means all activities directed toward ascertaining
the existence, location, quantity or quality of a commercial deposit of Ore on,
in or under the Property, which activities are conducted prior to the
commencement of Development
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of such deposit. Such activities include but are not limited to investigating,
prospecting, surveying, sampling and drilling. The (active pursuit of obtaining
any federal, state or local authorization or permit related to any of the
foregoing activities included in this definition shall also be considered to be
an act of Exploration. Grammatical variations of "Exploration" have a like
meaning.
1.08 "ICMC Stock" means Sixty Thousand (60,000) shares of the common
shares of ICMC which are free and clear of any assessments but which are subject
to a one (1) year trading restriction, which restriction shall commence as of
the Effective Date of this Agreement. In addition, Thirty Thousand (30,000)
shares shall be issued to OWNER on execution of this Agreement and the remaining
Thirty Thousand (30,000) shares shall be issued to OWNER One (1) year from the
Effective Date.
1.09 "IGC Data" means that information and data described in Section
2.03 in This Agreement.
1.10 "Mining" means the extraction of ore and associated waste rock
from the Property. Grammatical variations of "Mining" have a like meaning.
1.11 "Ore" means any and all metallic and non-metallic minerals of
every kind (excluding only oil, gas, casinghead gas and associated liquid and
gaseous hydrocarbon substances), including, without limitation, deposits,
concentrates and solutions containing such minerals in all forms in which such
minerals may be found, extracted or produced, as well as any by-products
thereof.
1.12 "OWNER" includes any subsidiary, parent company, subsidiary of
parent company, division or Affiliate of OWNER (as the term "OWNER" is used
above).
1.13 "Production Royalty" means the payments provided for in Section
4.02.
1.14 "Products" means all commercial minerals produced from the ore
Mined from the Property.
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1.15 "Property" means all right, title and interest of OWNER, as such
right, title and interest are represented and warranted in this Agreement, in
and to the surface estate and the mineral estate (specifically including any and
all subsurface rights) of the lands described in Exhibit A, attached hereto and
by this reference made a part hereof.
ARTICLE II
GRANT OF AGREEMENT
2.01 Lease of the Property. Subject to the terms and conditions
contained in this Agreement, OWNER hereby leases exclusively unto ICMC, its
successors and assigns, the Property. The leasehold rights granted to ICMC by
OWNER include all of OWNER's rights and privileges (including but not limited to
easements, rights-of-way, licenses, options and contracts, plans of operation,
environmental permits and licenses, but not forms of security for closure and
reclamation), whether now owned or hereafter acquired, that are appurtenant to
the Property. The Property is leased to ICMC for the purpose of Exploring,
Developing, Mining, producing, processing, consuming, transporting and marketing
all grades and types of Ore and their constituent Products and all other
substances associated or commingled therewith, by any method or methods deemed
desirable by ICMC, whether the same is now or hereafter becomes known to ICMC.
2.02 Mining Rights. The rights leased exclusively to ICMC pursuant to
this Article II expressly include, without limitation, the following:
(a) the right to Mine the Ore and remove waste rock by open
pit, underground, auger, borehole, drilling, combustion, insitu
solution methods, or any other method now known or hereafter developed;
(b) the right to store, save, and stockpile Ore and Products;
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(c) the right to mill, concentrate, refine and otherwise
[illegible text] Ore;
(d) the right to transport and market Ore and Products;
(e) the right to construct, use, maintain, repair, replace and
relocate any and all facilities and structures on and [illegible text]
as may be necessary, useful or convenient in connection with ICMC's
operations on the Property and/or operations on other lands owned (in
whole or in part), controlled, leased or operated by ICMC; such
facilities and structures include, but are not limited to, buildings,
roads, railroads, shafts, inclines, tunnels, adits, earth, waste dumps,
ditches, drains, pumping stations, boreholes, alterations, Ore
stockpiles, pipelines, telephone lines, utility lines, power lines,
processing facilities, plants, shops and transportation facilities and
other utilities, and the maintenance thereof;
(f) all rights-of-way, easements and servitudes as may be
necessary, useful or convenient for the purposes set forth in (a)
through (e) above, and the right of ingress and egress therefore;
(g) the right to use or consume so much of the surface and
subsurface of the Property as may be found necessary, useful,
convenient or incidental to carrying out the purposes of this
Agreement, in accordance with the methods adopted by ICMC, such right
to be carried out in ICMC's sole discretion without any requirement to
leave or provide subjacent or lateral support for the overlying strata
or surface or anything thereon, therein or thereunder; OWNER hereby
waives and releases all surface damages arising from all operations in
and the removal of Ore and waste rock from the Property by ICMC, its
successors or assigns, or arising from any and all physical conditions
now present or which may hereafter develop in or upon the Property;
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(h) the right to possess and use all or any part of the
Property and any or all structures, facilities, tunnels, adits, winzes,
shafts, pits, openings, ditches, roads, haulageways and other
improvements or appurtenances existing thereon or thereunder to
Explore, Develop, mine, produce, stockpile, store, market and transport
Ore, Products, rock, waste, water or materials from all or any portion
of the Property and/or from other properties, whether contiguous or
not, owned (in whole or in part), controlled, leased or operated by
ICMC, and for all other purposes, including, but not limited to, all
rights-of-way, easements and servitudes as may be necessary, useful or
convenient therefor and rights of ingress to and egress from such other
properties which ICMC, in its sole discretion, determines to be
necessary, useful or convenient for Exploration, Development, Mining or
production operations on such other properties;
(i) the right to use the surface of the Property, during the
term of this Agreement, for access across, and facilities related to
any lands in which ICMC has an interest and which lands are being
explored, developed or mined by ICMC or by an agent, partner or joint
venturer of ICMC, as well as to use the surface of the Property for any
other purposes related to such exploration, development or mining
activities being conducted on such other lands;
(j) the right to use and consume, in compliance with
applicable laws, all water rights relating to water within, upon or
under the Property and all water rights, the point of diversion or
place of use of which is on the Property; and
(k) the right to commingle (for all purposes including, but
not limited to, Mining, storing, transporting, marketing, or selling)
any Ore or Products produced from the Property or any portion thereof
with any material or ore produced from any other lands which are owned
(in whole or in part), controlled, operated, or leased by ICMC.
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2.03 OWNER's Information and Data. Upon execution of this Agreement,
OWNER shall deliver to ICMC all records, data and information in its possession
or reasonably available to it relating to title in the Property, and all maps,
surveys, technical reports, core and drill cuttings, drill logs, and all
metallurgical, geological, geophysical, geochemical and other technical data
pertaining to the Property in its possession or reasonably available to it (the
"IGC Data"). OWNER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO THE COMPLETENESS OR ACCURACY OF ANY INFORMATION OR DATA MADE AVAILABLE TO
ICMC HEREUNDER OR TO THE FITNESS OR SUITABILITY OF SUCH INFORMATION OR DATA FOR
ANY PURPOSE.
2.04 Title to After-Acauired and Additional Interests. This Agreement
will cover and extend to any further or additional right, title, interest or
estate heretofore or hereafter acquired by OWNER in or to the Property or any
part thereof.
2.05 OWNER's Cooperation with ICMC. OWNER recognizes that ICMC may,
among other things, apply for zoning and land use changes, enlarge existing
roads, construct new roads, or facilities, file environmental assessment or
impact statements or similar documents with local, state and federal
governmental agencies and perform all other actions necessary to carry out
ICMC's Exploration, Development or Mining operations on the Property. OWNER
agrees that it will cooperate fully with ICMC and it will not file opposition or
objections with any governmental entity regarding ICMC's Exploration,
Development or Mining of the Property pursuant to this Agreement. Nothing in
this Section 2.05 limits rights otherwise granted to ICMC under this Agreement.
ARTICLE III
TERM: NO IMPLIED OBLIGATIONS
3.01 Term. The primary term of this Agreement shall be Five (5) years,
beginning on the Effective Date, unless sooner terminated or surrendered as
hereinafter provided. This Agreement
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shall remain in effect after the expiration of the primary term for so long
thereafter as substantial Exploration, Development or Mining operations shall be
conducted on the Property.
3.02 Waiver of Implied Obllgations. ICMC shall have no obligation to
begin or perform prospecting, Exploration, Development, mining, processing,
transporting or other operations on the Property, nor to mine and remove all or
any portion of the ore thereon, therein or thereunder, nor is there any implied
covenant to do so. OWNER expressly acknowledges and agrees that no Mining of ore
may occur which would entitle OWNER to receive payment of Production Royalty and
OWNER further acknowledges and agrees that ICMC, subject to ICMC's standard of
operations set forth in Section 5.01, may waste or consume portions of any ore
and ICMC shall not be required to pay any Production Royalty on any such ore
which may be so wasted or consumed. OWNER expressly acknowledges and agrees that
the consideration for the grant of this Agreement may therefore constitute the
sole consideration for all rights of ICMC hereunder and that the same
constitutes full, reasonable, fair and adequate consideration for the rights
granted to ICMC by OWNER for the entire term of this Agreement. If ICMC shall
conduct Exploration, Development, Mining, processing, transporting, and other
operations or activities hereunder, such operations and activities shall be
performed only to the extent, at such times and locations, and by or with such
methods as ICMC, in ICMC's sole discretion, shall deem desirable. ICMC shall not
be required to mine or protect in its mining operations any Ore which cannot be
Mined, processed, shipped, and marketed at a reasonable profit to ICMC at the
time encountered as determined in the reasonable judgment of ICMC.
ARTICLE IV
PRODUCTION ROYALTIES
4.01 Production Royalty. Beginning with the Commencement of Commercial
Production and continuing thereafter, ICMC shall pay to
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OWNER a royalty as provided in Exhibit B, attached hereto and incorporated
herein. No Production Royalty shall be due with regard to samples of ore which
ICMC deems necessary to test or evaluate the technical or economic feasibility
of extraction, milling or processing methods which may be used to enjoy the
benefits and rights granted hereunder. ICMC shall have the right to remove such
samples free of any Production Royalty whatsoever.
4.02 Manner of Payment. All payments of Production Royalty due or
payable to OWNER under this Article IV may be made by check or draft mailed or
delivered on or before the due date to OWNER in the name of the person
designated and at the address provided in Section 15.06 below.
ARTICLE V
ICMC'S OPERATIONS
5.01 Standard of Care. ICMC shall perform or cause to be performed its
Exploration, Development and mining and other operations upon the Property and
under this Agreement in a good and workmanlike manner and in accordance with
sound mining and engineering practices.
5.02 Compliance with Law. All work performed or caused to be performed
by ICMC upon the Property shall be in compliance with all applicable federal,
state and local laws, rules and regulations. With regard to closure and
reclamation, ICMC shall reclaim, in accordance with state and federal laws and
regulations, any disturbance on the Property. It is specifically agreed that
ICMC assumes the responsibility to reclaim or otherwise cure all disturbances of
the Property whether made before and after the Effective Date of this Agreement.
It is agreed that prior to any Exploration, Development or mining, ICMC
(in cooperation with OWNER) shall obtain release of all licenses, permits and
lands related to the Property that are in the name of OWNER.
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5.03 Books. ICMC shall keep accurate books and records on the accrual
basis in accordance with generally accepted accounting principles. OWNER's sole
inspection and audit rights as to ICMC's books and records are as set forth in
Exhibit B.
5.04 Reports. ICMC shall furnish to OWNER, within sixty (60) days
following the effective date of termination of this Agreement, copies of all
factual, non-interpretative geologic data produced by ICMC with respect to the
Property. ICMC MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
THE COMPLETENESS OR ACCURACY OF ANY INFORMATION OR DATA MADE AVAILABLE TO OWNER
HEREUNDER OR TO THE FITNESS OR SUITABILITY OF SUCH INFORMATION OR DATA FOR ANY
PURPOSE.
5.05 Inspections. ICMC shall allow OWNER, as well as qualified
engineers and geologists representing OWNER, to enter into any adits, winzes and
shafts or upon the surface excavations and appurtenant structures operated by or
on behalf of ICMC, at reasonable times and hours, for the purpose of visually
inspecting the operations pertaining to this Agreement, upon at least five (5)
days' written notice; provided, however, OWNER shall indemnify and hold ICMC
harmless, and such representatives shall execute, if requested by ICMC, written
waivers releasing ICMC from liability for personal injury or property damage
while in or upon the Property, resulting otherwise than by the sole negligence
of ICMC, its employees, contractors and agents. Whether or not a written waiver
is executed by OWNER or its representatives, OWNER indemnifies and holds ICMC
harmless from liability while OWNER and/or such representatives are in or upon
the Property.
5.06 Minimum Exploration and Maintenance Expenditures. As a condition
only to the continuation of this Agreement, and subject to ICMC's right to
terminate this Agreement as set forth in Article X, ICMC hereby agrees to
commence 'an Exploration program with respect to the Property and to incur the
following minimum amounts of Exploration and Maintenance Expenditures (as
defined below) on the Property on or before the dates set opposite such amounts:
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Minimum
Exploration and Maintenance To Be Incurred
Expenditures Upon or Before
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$15,000 The first Anniversary Date of the Effective
Date of this Agreement;
$30,000 The second Anniversary Date of the Effective
Date of this Agreement;
$65,000 The third Anniversary Date of the Effective
Date of this Agreement;
100,000 The fourth Anniversary Date of the Effective
Date of this Agreement;
$135,000 The fifth Anniversary Date of the Effective
Date of this Agreement;
It is understood and agreed by the Parties that the above Exploration
and Maintenance Expenditures are cumulative. For example, a total of $100,000 in
Exploration and Maintenance Expenditures must be spent on the Property by the
fourth Anniversary Date.
If Exploration and Maintenance Expenditures in any year exceed the
minimum amount required for such year as set forth in the above schedule, ICMC
shall be entitled to credit the excess amount against Exploration and
Maintenance Expenditures required for any subsequent Agreement Year or Years. It
is further agreed that ICMC has not expended any Exploration or Maintenance
Expenditures as of the Effective Date of this Agreement.
As used herein "Exploration and Maintenance Expenditures" means: (i)
Exploration Expenditures and Maintenance Expenditures as each is defined below,
plus eight percent (8%) of such amounts as an allowance for administrative
services, except with respect to administration of single-third party contracts
where the overhead charge shall be five percent (5%), and (ii) all amounts
deemed to constitute Exploration Expenditures and Maintenance Expenditures under
this Exploration Agreement.
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(a) "Exploration Expenditures" means all costs or other expenditures
incurred by or on behalf of ICMC in connection with the evaluation, Exploration
and Development of the Property, which expenditures may include, in ICMC's sole
discretion and without limitation, the cost of or expenditures for geological
mapping, geophysical surveying, geochemical assaying, drilling, sampling and
other work on the Property.
(b) "Maintenance Expenditures" means all costs or expenditures incurred
by or on behalf of ICMC to preserve in good standing the status and title that
the Property has on the Effective Date and to cure any defects in the title of
the Property, specifically including administration and judicial proceedings.
ARTICLE VI OWNERSHIP;TITLE
6.01 Ownership; Title. OWNER hereby represents and warrants as follows:
(a) OWNER is incorporated under the business corporations act of the
state of Nevada and represents that it exists and is in good standing in that
state as those terms might be construed under the state's business corporations
act; further, OWNER represents that it is qualified to conduct business in the
state in which the Property is located and is in good standing as that term
might be construed under the business corporations act of that state;
(b) this Agreement has been duly authorized by all necessary corporate
action on the part of OWNER and has been duly executed and delivered by OWNER;
(c) the Property is not the whole or substantially the whole of the
business, property, assets or undertaking of OWNER;
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(d) there are no royalties, fees or monies payable or required to be
paid to any person or entity with regard to the Property and there are no
outstanding agreements, options or purchase rights to acquire any part of or all
the Property;
(e) OWNER has not engaged or employed any broker or finder in
connection with the negotiation, execution or delivery of this Agreement or the
Property; and
(f) OWNER has not made any assignment for the benefit of creditors,
filed any petition in bankruptcy, been adjudicated insolvent or bankrupt,
petitioned or applied to any tribunal for any receiver, conservator or trustee
of it under any reorganization arrangement, readjustment of debt, conservation,
dissolution or liquidation law or statue of any jurisdiction, and no such action
or proceeding has been commenced against OWNER by any creditor, claimant,
governmental agency or other person and OWNER has no present plans or intentions
to undertake any of the foregoing; and
6.02 Survival. The representations and warranties contained in Section
6.01 shall survive the execution and delivery of this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF ICMC
7.01 Representations and Warranties. ICMC represents and warrants to
OWNER as follows:
(a) ICMC is incorporated under the business corporations act of the
Province of British Columbia, Canada, and represents that it exists and is in
good standing in that Province as those terms might be construed under its
business corporations act; further, ICMC represents that it is qualified to do
business in the state in which the Property is located and is in good standing
as that term might be construed under the business corporations act of that
state;
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(b) this Agreement has been duly authorized by all necessary corporate
action on the part of ICMC and has been duly executed and delivered by ICMC;
(c) ICMC has not engaged or employed any broker or finder in connection
with the negotiation, execution or delivery of this Agreement or the Property;
(d) ICMC has not made any assignment for the benefit of creditors,
filed any petition in bankruptcy, been adjudicated insolvent or bankrupt,
petitioned or applied to any tribunal for any receiver, conservator or trustee
of it under any reorganization arrangement, readjustment of debt, conservation,
dissolution or liquidation law or statue of any jurisdiction, and no such action
or proceeding has been commenced against ICMC by any creditor, claimant,
governmental agency or other person and ICMC has no present plans or intentions
to undertake any of the foregoing; and
7.02 Survival. The representations and warranties contained in Section
7.01 shall survive the execution and delivery of this Agreement.
ARTICLE VIII
TAXES
8.01 Taxes Paid by ICMC. ICMC agrees to pay the following:
(a) all taxes levied and assessed on improvements on the Property
during the term of this Agreement; and
(b) all tax levied upon the interest of OWNER in the Property during
the term of this Agreement.
ICMC's obligation to pay the aforesaid taxes shall commence with taxes
payable for the year of execution of this Agreement. ICMC agrees to make payment
thereof, as required by federal, state and local statutes, rules and
regulations, so that no default in taxes upon the interest of OWNER shall occur;
provided, however, that ICMC shall have the right to contest by judicial
proceeding or otherwise the validity of any assessment or levy of any of the
aforesaid taxes and to take such action as ICMC deems necessary or
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desirable to secure cancellation, reduction, adjustment or equalization thereof
before ICMC shall be required to pay and discharge the same. OWNER shall
cooperate and assist ICMC as necessary in any judicial or other proceeding
contesting the validity of any assessment or levy of any of the aforesaid taxes.
ICMC shall require that taxes be assessed to OWNER in care of ICMC in
order to assure that the taxes are timely paid. It is agreed that should OWNER
receive tax bills or claims that are the responsibility of ICMC hereunder, the
same shall be promptly forwarded to ICMC for appropriate action and if not so
forwarded, ICMC shall not be responsible for any delinquent payment charges or
interest charges resulting from the late payment of such taxes.
ICMC shall not be obligated to pay any tax imposed upon any payment it
makes to OWNER under this Agreement, nor shall ICMC be compelled to discharge
any liens upon the Property not arising by reasons of its activities under this
Agreement.
ARTICLE IX
LIABILITY AND INSURANCE
9.01 Liens. ICMC shall promptly pay all wages due its workmen and
employees and pay for all materials and supplies furnished for its operations
hereunder and shall defend and protect OWNER from and against all claims, liens
and liabilities which may arise as a result of ICMC's failure so to do. In the
event that any mechanic's, materialmen's or laborer's liens may arise and are
filed against the Property as a result of ICMC's operations hereunder, ICMC
shall take all steps to obtain the discharge thereof.
9.02 Insurance. ICMC shall maintain at all times during the term of
this Agreement insurance of the type and in an amount adequate to satisfy
employer's liability and workers' compensation obligations under applicable
federal and state laws; provided, however, that ICMC may self-insure against
such liability to the extent so permitted by applicable law.
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9.03 Liability. ICMC will, at its sole expense, save, protect and hold
OWNER harmless against any and all claims, demands or judgments whatsoever for
loss or damage to personal property and death or injury to persons arising out
of ICMC's activities or operations on the Property with regard to the ICMC
Stock, except those claims of OWNER, its assigns, contractors, employees,
successors or agents which are barred by the provision of Section 5.05. ICMC's
responsibilities under this Section 9.03 shall terminate upon termination of
this Agreement, except for causes of action accruing before the date of
termination.
ARTICLE X TERMINATION
10.01 Termination by ICMC. ICMC may terminate this Agreement as to all
or any portion of the Property at any time upon giving ten (10) days' written
notice to OWNER and thereafter ICMC shall have no liability (specifically
including Exploration and Maintenance Expenditure) to OWNER under or in relation
to this Agreement except as provided in Section 10.04. Any partial of this
Agreement by ICMC shall not reduce the and maintenance Expenditures provided for
in this termination Exploration Agreement.
10.02 Default
(a) Defaults as to Tax Payments. If ICMC fails to pay taxes required to
be paid by ICMC pursuant to Article VIII, OWNER may give written notice thereof
to ICMC specifying the particulars of such failure. within thirty (30) days
after delivery of the notice, ICMC may:
(i) remedy the failure, or in the case of a failure which
cannot be remedied within the thirty (30) day period, commence and
diligently proceed in good faith with action to remedy the failure; or
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(ii) pay to OWNER the amount of taxes required to be paid by
ICMC pursuant to Article VIII that are the subject of OWNER's written
notice,
failing either of the above, OWNER may terminate this Agreement by
further written notice to ICMC and ICMC shall have no liability to OWNER under
or in relation to this Agreement except as provided in Section 10.06.
(b) Other Defaults - In the event OWNER believes ICMC to be in default
in the observance or performance of any of ICMC's covenants, agreements or
obligations under this Agreement, other than defaults relating to the payment of
taxes required to be paid by ICMC pursuant to Article VIII, which defaults are
to be handled in accordance with Section 10.02(a) above, OWNER may give written
notice of such alleged default, specifying the details of the same. ICMC shall
have thirty (30) days following said notice within which to remedy any such
default described therein, or to commence action in good faith to remedy such
default or, in the case of Exploration and maintenance Expenditures, pay to
OWNER the amount of Exploration and Maintenance Expenditures required to be
incurred under Article V that are the subject of OWNER's written notice. Any
such payment shall be deemed to be Exploration and Maintenance Expenditures
under Article V.
Unless ICMC shall so comply or commence to comply, this Agreement may
be terminated at the option of OWNER; provided, however, that in the event ICMC
believes that it is not in default, ICMC may give written notice to OWNER within
the thirty (30) day period setting forth such fact. OWNER must then secure a
final judicial determination (including all appeals concerning the same) by a
court of competent jurisdiction that such default in fact exists; provided,
however, that OWNER expressly agrees that ICMC shall not be liable for any
incidental, consequential or punitive damages claimed by OWNER and no judgment
shall award to OWNER indirect, consequential or punitive damages. In the event
there is such a judicial determination, this Agreement shall not be
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terminable by OWNER if ICMC shall (i) satisfy such judgment within thirty (30)
days following its entry (or if an appeal of such judgment is taken, following
its affirmance by the highest court to which such an appeal is made) and (ii)
reimburse OWNER for all of its reasonable costs and expenses in obtaining such
judgment, including attorney's fees; and provided, further, that OWNER shall not
be entitled to terminate this Agreement for any default which by its nature is
not retroactively curable if ICMC has used its reasonable efforts to cure such a
default to the extent practicable or if ICMC has paid OWNER damages for ICMC's
default where damages are an appropriate remedy.
(c) Disputes Not to Interrupt Operations. Subject to OWNER's right to
terminate this Agreement as set forth in this Section 10.02, disputes or
differences between the parties shall not interrupt performance of or the
continuation of operations under this Agreement. with regard to Production
Royalties or any other sums payable hereunder or any part thereof, ICMC shall
have the right to escrow the portion of any such payment that is in dispute as
provided in Section 10.02(d) below. In the event of any dispute or difference,
operations may be continued in the same manner as prior to such dispute or
difference, until the matters in dispute have been finally determined between
the parties. Upon final determination, such payments or restitutions shall be
made as may be required under the terms of the settlement or final determination
of the dispute.
(c) Escrow Deposit. In the event dispute or litigation as to Production
Royalties or any other sums payable hereunder or any part thereof, any such
Production Royalties or other payments may be deposited in escrow with a
depository bank selected by ICMC to be held until such dispute or litigation is
finally resolved or terminated. Any sums so deposited in escrow by ICMC
hereunder shall be deemed payment of Production Royalties or other sums due
hereunder for purposes of compliance by ICMC with its obligations under this
Agreement.
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10.03 Termination by Either Party. This Agreement may not be terminated
by either party except as expressly provided in sections 10.01 or 10.02.
10.04 Obligations upon Termination.
(a) Upon Termination of the Agreement. If this Agreement is
terminated under Sections 10.01 or 10.02:
(i) ICMC shall comply with the provisions of Section
5.02 regarding closure and reclamation of the Property;
(ii) ICMC shall, as set forth in Section 9.01, remain
liable to OWNER for wages to workmen and ICMC's employees and
payments for materials and supplies provided to ICMC for its
operations on the Property;
(iv) ICMC shall, as set forth in Section 9.03, remain
liable to OWNER for causes of action accruing prior to
termination of this Agreement;
(v) ICMC shall remain liable to OWNER for the payment
of the ICMC Stock and for the payment of any Production
Royalties which accrue and are payable prior to termination of
this Agreement;
(vi) The duty to arbitrate as set forth in Section
11.09 shall survive termination of this Agreement;
(vii) ICMC shall deliver promptly to OWNER executed
recordable transfer documents transferring its interest in and
to the Property to OWNER free and clear of any claims of those
claiming by, through or under ICMC; and
(viii) ICMC shall have the right for a period of one
(1) year to remove its buildings, structures, machinery,
casings, tools, equipment and other personal property,
permanent improvements and fixtures erected or placed upon the
Property by ICMC after the date hereof, except only track,
pipe, timber, shaft guides, sheave wheels, air gates,
ventilation ducts, chutes and ladders in place and protective
devices (fences, caps, plugs or otherwise), which ICMC shall
leave in good condition for safety and underground support and
entry. All such buildings, structures,
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machinery, casings, tools, equipment or other personal
property, permanent improvements and fixtures not removed
(unless such items are needed to fulfill ICMC's closure and
reclamation obligations) prior to the expiration of such one
(1) year following the termination of this Agreement shall
then, at the election of OWNER, be deemed affixed to the
Property and shall become and remain the sole property of
OWNER.
(b) Upon Termination of Part of the Property. If part of the
Property is being released from the terms of this Agreement under
Section 10.01:
(i) ICMC shall comply with the provisions of Section
5.02 regarding closure and reclamation of the part of the
Property that is being released from the terms of this
Agreement;
(ii) ICMC shall remain liable to OWNER for the
payment of the ICMC Stock and for the payment of any
Production Royalties which accrue and are payable as to
production from that part of the Property that is being
released from the terms of this Agreement;
(iv) ICMC shall promptly deliver to OWNER executed,
recordable transfer documents transferring to OWNER that part
of the Property that is being released from the terms of this
Agreement, free and clear of any claims of those claiming by,
through or under ICMC; and
(v) ICMC shall have the right for a period of one (1)
year to remove its buildings, structures, machinery, casings,
tools, equipment and other personal property, permanent
improvements and fixtures erected or placed by ICMC after the
date hereof upon the part of the Property that is being
released from the terms of this Agreement except only track,
pipe, timber, shaft guides, sheave wheels, air gates,
ventilation ducts, chutes and ladders in place and protective
devices (fences, caps, plugs or otherwise), which ICMC shall
leave in good condition for safety and underground support and
entry. All such buildings, structures, machinery, casings,
tools, equipment or other personal property,
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permanent improvements and fixtures not removed (unless such
items are needed to fulfill ICMS's closure and reclamation
obligations) prior to the expiration of such one (1) year
shall then, at the election of OWNER, be deemed affixed to the
Property and shall become the sole property of OWNER.
(c) Limitation of Liability. OWNER expressly agrees that ICMC
shall not be liable for any incidental, consequential or punitive
damages claimed by OWNER.
(d) Cross Indemnities. Upon termination of this Agreement,
ICMC and OWNER shall continue to have the indemnity responsibilities
set forth in Section 15.04.
ARTICLE XI
TRANSFER RIGHTS AND RESTRICTIONS
11.01 Transfers by OWNER. OWNER shall not sell, transfer, convey,
assign, pledge, mortgage, charge or otherwise dispose of (specifically including
but not limited to a non-arm's length transaction or gift) or encumber all or
any part of its right, title and interest in and to the Property as represented
in this Agreement or in and to this Agreement (collectively the "Interest")
except as permitted by this Article XI.
11.02 ICMC's Rights as to OWNER Transfers. If OWNER: (a) receives a
bona fide offer from a person or entity with whom OWNER deals at arm's length to
purchase all or any part of its Interest, which OWNER is willing to accept, or
(b) intends to make an offer to a person or entity with whom OWNER deals at arms
length to sell all or any part of its Interest (both instances of which are
hereinafter referred to as the "Offer"), then OWNER shall promptly deliver,
after receipt of an offer to purchase or before making an offer to sell, as the
case may be, to ICMC written notice (the "Offer Notice") of the offer to
purchase or intended offer to sell, as the case may be, accompanied by a copy of
the offer and all information in the possession of OWNER regarding the person or
entity (the "Offeror") from whom the Offer, if an offer to
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purchase, was received, or to whom the offer, if an intended offer to sell, is
intended to be given. If the Offer is for a price payable wholly in money, the
Offer Notice will constitute an offer by OWNER to ICMC to sell OWNER's Interest
or part thereof included in the Offer, as the case may be (the "Offered
Interest") to ICMC at the same price and on the same terms and conditions as are
specified in the Offer and ICMC may accept the offer constituted by the offer
Notice by giving to OWNER written notice (the "Acceptance Notice") of ICMC's
acceptance within sixty (60) days after the delivery of the offer Notice.
If the Offer is for a price payable in whole or in part
by way of securities or other property, the Offer Notice shall be accompanied by
an opinion of a reputable investment banker in the United States of America of
the cash equivalent value of the securities or other property and the Offer
Notice will constitute an offer by OWNER to sell to ICMC the Offered Interest at
a price payable in cash equal to the cash portion, if any, of the price
specified in the Offer plus the value of the securities or other property and
otherwise on the same terms and conditions as set out in the offer. ICMC may, if
it agrees with the opinion of the investment banker, accept the offer
constituted by the Offer Notice by an Acceptance Notice to OWNER within sixty
(60) days after, the delivery of the Offer Notice and the value of the
securities or other property shall be the value determined by the opinion of the
investment banker. If ICMC disputes the value of the securities or other
property as determined by the opinion of the investment banker, ICMC may give to
OWNER written notice (the "Dispute Notice") within thirty (30) days after
delivery of the Offer Notice stating that it disputes the opinion of the
investment banker, in which case the value of the securities or other property
shall be determined by written agreement between ICMC and OWNER or, failing
agreement within ten (10) days after the delivery of the Dispute Notice, by
arbitration pursuant to Section 11.09, and ICMC may accept the offer constituted
by the Offer Notice by an Acceptance Notice to OWNER within thirty (30) days
after the determination of the value of the securities or other property by
agreement or arbitration, as the case may be.
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The delivery by ICMC to OWNER of an Acceptance Notice will constitute a
binding agreement between ICMC and OWNER for the purchase and sale of the
Offered Interest at the price and on the terms and conditions specified in the
Offer, as modified by agreement or arbitration with respect to the value of the
securities or other property and the provisions of Section 11.10. If there is
any conflict or inconsistency between the terms and conditions set out in the
Offer and those set out in Section 11.10, the terms and conditions of Section
11.10 will prevail.
11.03 ICMC's Failure to Accept Offer. If an Acceptance Notice is not
given by ICMC within the time provided for in Section 11.02, OWNER may for a
period of one hundred and eighty (180) days thereafter transfer the offered
Interest to the Offeror at the price and on the terms and conditions set out in
the Offer, provided that:
(a) OWNER shall not transfer all or any part of the Offered
Interest to any person or entity unless ICMC has given its prior
written approval to the transfer to that person or entity, such
approval not to be withheld or delayed unreasonably;
(b) OWNER shall not sell the offered Interest at a price less
than that specified in the offer or on terms and conditions more
favorable to a purchaser than those specified in the Offer;
(c) OWNER shall not sell the Offered Interest to the Offeror
unless at the time of the sale the Offeror enters into an agreement
with ICMC under which the Offeror shall be bound by and have the
benefit of this Agreement to the same extent and with the same rights
and obligations as OWNER; and
(d) if OWNER has not transferred the Offered Interest within
the one hundred and eighty day period, then the provisions of Section
11.02 shall again become applicable to any sale or transfer of the
Offered Interest.
11.04 Transfers to Affiliates. OWNER may transfer to any of its
Affiliates (as defined in Article I) all or any part of its
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Interest, without complying with Sections 11.02 and 11.03, provided that OWNER
and the Affiliate to which all or a portion of the Interest is transferred have
entered into an agreement with ICMC which provides that:
(a) the Affiliate will remain an Affiliate of OWNER for so
long as the Affiliate holds all or any part of the Interest of OWNER;
(b) prior to the Affiliate ceasing to be an Affiliate of
OWNER, the Affiliate will transfer the Interest back to OWNER or
another Affiliate of OWNER, provided that where the transfer is to
another Affiliate, the other Affiliate first enters into an agreement
with ICMC similar to the agreement entered into by the first Affiliate;
and
(c) the Affiliate will be bound by and have the benefit of
this Agreement as if it had been an original signatory to this
Agreement for so long as it holds all or any part of the Interest.
11.05 No Release of Liability. If OWNER transfers its Interest to any
Affiliate or other person or entity as permitted under this Article XI, OWNER
shall not be released from its liability hereunder for or with respect to any
breach or nonobservance of any covenant, condition or term hereof by any direct
or indirect transferee except if and to the extent expressly agreed to in
writing by ICMC.
11.06 Representations of Offeror or Affiliate. Any Offeror or Affiliate
of OWNER that becomes a party to and bound by this Agreement shall be deemed to
have given to ICMC the representations and warranties, as to itself, set out in
Section 6.01 (a) (except that the business corporations act shall be as to
Offeror's or Affiliate's applicable state of incorporation), (b), (c) and (e)
through (k) as of the date on which it becomes a party to and bound by this
Agreement.
11..07 Joint and Several Liability. If an Interest is at any time held
by OWNER and any one or more direct or indirect transferees of OWNER, OWNER and
all parties holding a portion of their respective Interest shall be jointly and
severally liable with respect to all obligations hereunder of OWNER.
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11.08 Triggering Events - Option to Purchase. If any of the following
events ("Triggering Events") occur:
(a) an Affiliate of OWNER to whom all or any part of its
Interest has been transferred ceases to be an Affiliate of OWNER
without transferring the Interest or the part thereof held by the
Affiliate back to OWNER or another Affiliate of OWNER;
(b) an amalgamation, merger, arrangement or similar proceeding
to which OWNER is a party is commenced;
(c) the bankruptcy or receivership of OWNER occurs or a
resolution is passed for the winding-up or dissolution of OWNER;
(d) a change of Control (as such term is defined in Article I)
of OWNER occurs or any person or entity acting in concert who does not
Control OWNER at the date of this Agreement acquires Control of OWNER;
or
(e) a sale of substantially all of the assets of OWNER occurs,
then OWNER shall promptly give written notice to ICMC of the occurrence
of that Triggering Event. OWNER hereby grants to ICMC the irrevocable
and exclusive option to purchase OWNER's Interest at a price equal to
the fair market value of the Interest. The option shall be exercisable
by written notice (the "Option Notice") from ICMC to OWNER given at any
time after the occurrence of a Triggering Event and before the
expiration of sixty (60) days after the Option Notice has been given to
ICMC by OWNER. Upon exercise of the option, OWNER shall be bound to
sell to ICMC and, except as hereinafter provided, ICMC shall be bound
to purchase from OWNER the Interest at a price equal to the fair market
value of the Interest on the date of the Triggering Event. The purchase
and sale of the Interest shall be completed in accordance with Section
11.10. The fair market value of the Interest shall be determined by
written agreement between OWNER and ICMC within ten (10) days after
delivery of the Option Notice or, failing agreement within that time,
by arbitration pursuant to Section 11.09. Notwithstanding the
foregoing, if the fair market value of the
-25-
Interest is determined by arbitration, ICMC may withdraw the Option
Notice by further notice to OWNER within six (6) days after the
determination by arbitration, failing which there shall remain a
binding agreement between ICMC and OWNER for the purchase and sale of
the Interest on the terms and conditions set out in this Section 11.08.
11.09 Arbitration. The matters to be determined by arbitration pursuant
to this Agreement may be submitted to arbitration by written demand of any
party. To demand arbitration, any party (the "demanding party") shall give
written notice to the other party (the "responding party"). Such notice shall
specify the nature of the issue(s) in dispute, the monetary amount involved, and
the remedy requested. within twenty (20) days of the receipt of the notice, the
responding party shall answer the demand in writing, specifying the issue(s)
that party disputes. If the parties agree on a single arbitrator, the issues
shall be decided by the single arbitrator and his decision shall be final and
binding on the parties.. If, within ten (10) days after the responding party's
answer, the parties are unable to agree on a single arbitrator, each party shall
select one qualified arbitrator and notify the other party of such selection
within fifteen (15) days after the responding party's answer. Each of the
arbitrators shall be a disinterested person qualified by experience to hear and
determine the issues to be arbitrated. The arbitrators so chosen shall select a
neutral arbitrator within ten (10) days of their selection. If the named
arbitrators cannot agree on a neutral arbitrator, the arbitrators shall make
application to the chief judge of the highest trial court for Idaho County,
Idaho, with a copy to both parties, requesting that court to select and appoint
the third arbitrator. The court's selection shall be final and binding on the
parties. If either party does not name an arbitrator, the arbitrator named by
the other party shall serve as sole arbitrator. Immediately upon appointment of
the third arbitrator, each party shall present in writing to the panel of three
arbitrators (with a copy to the other party) their statement
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of the issue(s) in dispute. Only matters expressly authorized by this Agreement
as being subject to arbitration shall be submitted to arbitration hereunder. The
arbitrators, as soon as possible, but not more than thirty (30) days after their
appointment, shall meet at a time and place within Graingville, Idaho,
reasonably convenient for the parties, after giving each party at least ten (10)
days notice. The arbitration hearing shall be conducted in accordance with the
commercial arbitration rules, but not under the auspices of the American
Arbitration Association. In the event of conflict between the provisions of this
Agreement and the provisions of the commercial arbitration rules of the American
Arbitration Association, the provisions of this Agreement shall prevail. The
failure of a party to appear at the hearing shall not operate as a default. The
attendance of all arbitrators shall not be required at all hearings. Actions of
the arbitrators shall be by majority vote. After hearing the parties in regard
to the matter in dispute, taking such evidence and making such other
investigation as justice requires and as the arbitrators deem necessary, they
shall decide the issues submitted to them within ten (10) days thereafter and
serve a written and signed copy of the award upon each party. Such award shall
be final and binding on the parties, and confirmation thereof may be applied for
in a court of competent jurisdiction by any party. If the parties settle the
dispute in the course of arbitration, such settlement shall be approved by the
arbitrators on request of either party and become the award. Each party shall
bear all its own expenses of arbitration. All arbitration proceedings shall be
conducted in the City of Grangeville, State of Idaho. The duty to arbitrate
shall survive the cancellation or termination of this Agreement.
11.10 Closing for Sale of Interest. Any agreement between the parties
for the purchase and sale of all or any part of an Interest pursuant to the
exercise of the rights under this Article XI shall be completed at 11.:00 a.m.
on the thirtieth (30th) business day after a binding agreement for the purchase
and sale of the Interest has come into effect, or if any determination of value
is required
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by agreement or arbitration, on the tenth (10th) business day after that
determination. Completion shall take place at the offices of ICMC in
Grangeville, Idaho. At the time scheduled for completion, ICMC shall deliver to
OWNER a certified check or bank draft in payment of the purchase price for the
Interest or portion thereof being purchased by ICMC, and OWNER shall deliver to
ICMC executed transfer documents of the Interest, or portion thereof, being
purchased by ICMC in form and substance satisfactory to ICMC and its attorneys.
The Interest, or portion thereof, being purchased by ICMC shall be transferred
by OWNER to ICMC free and clear of all liens, claims, charges and encumbrances
by, through or under OWNER, and if by reason of any lien, claim, charge or
encumbrance on the Interest, or portion thereof, being purchased by ICMC, OWNER
is unable to do so, ICMC may make payment to the holder of the lien, claim,
charge or encumbrance, which payment shall be deemed to be payment to OWNER and
shall be applied in reduction of the unpaid balance of the purchase price for
the Interest or portion thereof being purchased by ICMC.
11.11 No Mortgages, Pledges, Charges or Encumbrances. OWNER shall not
pledge, mortgage, charge or otherwise encumber all or any part of its Interest
without the prior written approval of ICMC.
11.12 Breach of Article XI. OWNER acknowledges that a breach by it of
this Article XI would result in loss to ICMC for which ICMC could not be
adequately compensated in damages by a monetary award. Accordingly, OWNER agrees
that in the event of any breach by it of this Article XI, ICMC shall, in
addition to all remedies available to ICMC at law or in equity, be entitled as a
matter of right to apply to a court of competent and equitable jurisdiction for
such relief by way of specific performance, restraining order, injunction
(including an interim injunction), decree or otherwise, as may be appropriate to
ensure compliance with the provisions of this Article XI.
11.13 Assignment. Subject to ICMC-s rights set forth in Section 11.02
through 11.12 above, the rights and obligations of the Parties hereunder may be
assigned in whole or in part and the
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provisions hereof shall extend to and be binding upon the successors and assigns
of the respective Parties. No change or division in the ownership of the
Property or of the Production Royalties or other monies to be paid under this
Agreement, however accomplished, shall operate to enlarge the obligations or
diminish the rights of ICMC under this Agreement and neither ICMC nor its
assigns shall ever be required to make such payments or render reports or
notices to more than one Party. If OWNER's interest in the Property is now or
hereafter owned by more than two Parties, those Parties shall, within thirty
(30) days of such event, designate in writing to ICMC a single Party to act for
all of them hereunder in all respects, including but not limited to the giving
and receiving of all notices, payments and reports hereunder. No sale or
assignment by OWNER shall be binding upon ICMC for any purpose until thirty (30)
days after such person or entity acquiring any interest has furnished ICMC with
an instrument or instruments or certified copies thereof documenting such
transferee's chain of title from the original OWNER.
11.14 No Release from Obligations. In the event of assignment or
sublease of this Agreement by ICMC, in whole or in part, ICMC shall not be
relieved of its obligations with respect to the assigned or sublet portions
arising after the date of assignment or sublease.
11.15 Transfer by ICMC. Notwithstanding Section 11.13 above, ICMC shall
not assign, sublet or transfer any rights or obligations regarding the Property
or this Agreement (in whole or in part) without first obtaining the prior
written consent of OWNER, which consent shall not be unreasonably withheld.
Additionally, OWNER's consent shall be conditioned upon assignee or sublessee
specifically agreeing, in writing, to be bound by the terms in this Agreement
including the Option and the Production Royalties.
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ARTICLE XII
FORCE MAJEURE
12.01 Force Majeure. All obligations of ICMC and all conditions with
respect to the continuation of this Agreement, specifically including the
payment of Royalty payments as set out in Section 4.01, shall be suspended and
ICMC shall not be deemed in default or liable for damages or other legal or
equitable remedies while, but only as long as, ICMC is prevented from complying
with such obligations or conditions in whole or in part by actions of
environmental pressure groups, strikes, lockouts, labor slowdowns or
disturbances, acts of God, war, explosion, flood, epidemics, unavoidable
accidents, uncontrollable delays in transportation, inability to obtain
necessary materials or services in the open market, unusually severe weather,
inadequate facilities for the transportation of materials, any local, state or
federal law, regulation or order, or any other matters beyond the reasonable
control of ICMC, whether similar to the matters herein specifically enumerated
or not ("Force Majeure"). The time or times specified herein for compliance by
ICMC with all obligations and conditions hereunder, including, without
limitation, obligations or conditions as to the incurring of Exploration and
Maintenance Expenditures, shall thereafter be extended for a period or periods
equal to the duration of the Force Majeure provided, however, that performance
shall be resumed within a reasonable time after such Force Majeure has ceased to
exist; and provided, further, that ICMC shall not be required to compromise or
settle any labor disputes or to question the validity or to refrain from
judicially testing the validity of any local, state or federal order, regulation
or law. without limitation of the above general provision, if ICMC is or becomes
subject, at any time, to environmental regulations or governmental restrictions
("environmental regulations or governmental restrictions" shall include any law,
rule, regulation, order, judgment, policy, proposal, action or inaction or
restriction relating to air pollution, water pollution, surface or subsurface
Exploration or mining and surface or subsurface effects of mining
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or land use) which prohibit or materially affect any operations hereunder or
planned to be carried out hereunder, ICMC shall have the right to declare the
existence of a condition of Force Majeure during the period in which ICMC is in
good faith seeking a feasible method to comply with, be exempted from, modify,
obtain necessary permits or licenses under or prevent the enactment,
promulgation or enforcement of such environmental regulations or governmental
restrictions. OWNER agrees to cooperate with ICMC in prosecuting any such
actions.
ARTICLE XIII
[RESERVED]
ARTICLE XIV
OPTION TO ENTER INTO JOINT VENTURE
14.01 Grant of Option. OWNER hereby reserves and ICMC hereby grants to
OWNER an exclusive option (hereinafter the "Option") to enter into a joint
venture in regard to the Property upon the terms and conditions set forth
herein.
14.02 Consideration. The Parties agree that the consideration contained
in this Agreement shall be sufficient consideration for the grant of this
option.
14.03 Exercise of the Option.
A. OWNER may, subject to the provisions of Section 14.05
below, exercise the Option at any time after the Effective Date hereof
and prior to five (5) years from the Effective Date of this Agreement
by the delivery of written notice to ICMC of OWNER's intent to exercise
the Option, together with two (2) originals of Joint venture Agreement,
dated the date of the notice and executed by OWNER. Within thirty (30)
days after ICMC's receipt of
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OWNER's exercise of the Option, ICMC shall, unless ICMC exercises its
termination right under Section 14.05 below, execute and return to
OWNER one (1) original Joint Venture Agreement.
It is agreed by the Parties that such Joint Venture Agreement
shall generally follow the then current Rocky Mountain Mineral Law Form
of joint venture agreement and shall specifically provide that: (1) the
Mineral Lease Agreement shall remain in effect and shall be the basis
on which the OWNER (as to 49%) and ICMC (as to 51%) shall have rights
and obligations in and with respect to the Property; provided, however,
that OWNER shall not be entitled to the Production Royalty. (2) each
party will fund its proportionate share of ongoing expenditures on the
Property or have its interest deducted; (3) a management committee will
approve all operations and activities of the venture and will consist
of two members from each of ICMC and OWNER, with ICMC to hold the
deciding vote so long as ICMC retains not less than 51% interest in the
joint venture; (4) ICMC will have the right to be operator of the joint
venture so long as it retains not less than a 51% interest in the joint
venture; and (5) in the event of a conflict between OWNER's rights and
obligations as a joint venture and its rights as lessor under the
Mineral Lease Agreement, its rights under the Mineral Lease Agreement
shall be paramount.
Provided that: (1) ICMC has not exercised its right under
Section 14.05 below to terminate OWNER's exercise of the option, and
(2) ICMC has executed and returned a copy of the Joint venture
Agreement as provided for above, OWNER, within forty-five (45) days
after delivery of the option notice to ICMC, shall pay ICMC the
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amount of One Hundred and Fifteen Percent (115%) of ICMC's
Exploration and Maintenance Expenditures incurred on the Property from
January 1, 1996, until exercise of the Option by OWNER.
14.04 Covenants Running with the Land; Specific Performance.
The covenants and agreements of OWNER and ICMC under this Option are
intended to touch and concern the Property and to be and shall be covenants
running with the land with respect to the Property and shall be binding upon
OWNER and ICMC and OWNER's and ICMC's representatives and permitted successors
and assigns. This Option and the Joint venture Agreement to be entered into
pursuant hereto shall be specifically enforceable by ICMC and by ICMC's
representatives, successors and assigns.
14.05 Termination of Option.
In the event that OWNER does not exercise the Option in the manner
provided herein, then: (i) this Option shall, without further action of any
party, automatically terminate and thereafter be null and void and of no further
force or effect, and (ii) neither Party shall have any further rights or
obligations with respect to the Option. Additionally, ICMC shall have the right
to terminate OWNER's Option by payment to OWNER of Three Hundred Thousand
(Canadian) Dollars (Cdn $300,000) at any time up to twenty-one (21) days after
receipt by ICMC of the Option notice sent by OWNER.
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ARTICLE XV
GENERAL PROVISIONS
15.01 Competition. This Agreement is, and the rights and obligations of
the Parties are, strictly limited to the Property and the Parties shall have the
free and unrestricted right to engage in and independently receive the full
benefits of any and all business ventures of any sort whatsoever, whether or not
competitive with the activities undertaken pursuant hereto, without consulting
the other or inviting or allowing the other to participate therein. Neither of
the Parties shall be under any fiduciary or other duty to the other which will
prevent it from engaging in or enjoying the full benefits of any competing
venture or ventures within the general scope of the activities contemplated by
this Agreement. Without limiting the generality of the foregoing, neither Party
shall be under any duty to disclose to the other Party information and data
relating to the Property which it obtains outside the scope of its activities
under this Agreement.
15.02 Memorandum for Recording. This Agreement shall not be recorded
for, by or on behalf of either Party. OWNER agrees to execute and ICMC shall
record a notice or memorandum of this Agreement, which shall be in a form
suitable for recording under the state and local laws of Idaho, specifying that
the interests of ICMC and OWNER in the Property are subject to the terms and
conditions of this Agreement.
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15.03 Governing Law. This Agreement shall be governed and construed
according to the laws of Idaho and subject to the jurisdiction of the courts of
such state. In addition, this Agreement shall be subject to all applicable laws,
rules and regulations of public bodies having jurisdiction over the development
or operation of the Property.
15.04 Not a Partnership. It is not the purpose or intention of this
Agreement to create a partnership, mining partnership, commercial partnership or
any other partnership relation between the Parties hereto. Each of the Parties
shall be responsible only for its respective obligations and liabilities as set
forth in this Agreement and neither Party shall have any authority to act for or
to assume any obligations or responsibility on behalf of the other Party.
Nothing contained in this Agreement shall be deemed to constitute any Party the
partner of the other or the agent or legal representative of the other or to
create any fiduciary relationship between them. Each Party agrees to indemnify
and hold harmless the other Party, its directors, officers, employees and agents
from and against any and all losses, claims, damages and liabilities arising out
of any act taken or made by or on behalf of the other Party, its directors,
officers, employees or agents under or in relation to this Agreement, except
pursuant to authority expressly granted herein or otherwise agreed to between
the Parties. The provisions of this Section 15.04 shall survive termination of
this Agreement.
15.05 Laws and Regulations. In the conduct of its operations on the
Property, ICMC shall be responsible for compliance with applicable laws and
regulations, including laws and regulations related to Exploration, Mining,
Development and reclamation.
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15.06 Manner of Giving Notices. Any notice, election, proposal,
objection or other document, including any proposed public announcement, press
release or other disclosure, required or permitted to be given hereunder
("Notices") shall be in writing addressed to the Parties as follows:
ICMC: IDAHO CONSOLIDATED METALS CORP.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ Struck
FAX NO: (▇▇▇) ▇▇▇-▇▇▇▇
OWNER: ▇/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
FAX NO: (▇▇▇)▇▇▇-▇▇▇▇
All Notices shall be given: (a) by personal delivery to ICMC, (b) by
electronic communication, with the original Notice sent by registered or
certified mail in the United States of America mail, return receipt requested,
or (c) by registered or certified mail in the United States of America mail,
return receipt requested. All Notices shall be effective and shall be deemed
delivered: (a) 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, (b) if by electronic
communication, on the next business day following receipt of the electronic
communication, and (c) if solely by mail, on the next business day after actual
receipt. A Party may at any time change its address for future Notices hereunder
by Notice in accordance with this Section 15.06.
15.07 Currency. Except as provided for in Section 14.05, all amounts of
money expressed or payable hereunder are expressed and shall be paid in dollars
of the United States of America.
15.08 [RESERVED]
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15.09 Further Assurances. Each of the Parties hereby covenants and
agrees to execute any further and other documents and instruments and to take
any further and other actions that may be necessary to implement and carry out
the intent of this Agreement.
15.10 Binding Effect. This Agreement shall enure to the benefit of and
be binding upon the Parties hereto and their respective successors and permitted
assigns. This Agreement shall be binding upon each Party which has executed and
delivered it, whether or not it has been executed and delivered by all Parties.
15.11 Headings. The articles, sections, titles and other headings of
this Agreement (other` than the definitions) are inserted only for convenience
and shall not control or affect the meaning, construction or interpretation of
the Agreement or affect its terms and provisions.
15.12 Severabilitv. In the event any provision of this Agreement is, or
the operations contemplated hereby are, found to be inconsistent with or
contrary to any law, rule or regulation, the latter shall be deemed to control
and this Agreement shall be regarded as modified accordingly and shall continue
in full force and effect as so modified.
15.13 Perpetuities. The Parties to this Agreement do not intend that
there shall be any violation of the Rule Against Perpetuities or any related
rule pertaining to restraints upon alienation. If any such violation should
inadvertently exist, it is the intent and desire of the Parties hereto that the
appropriate court shall reform such provision or provisions in such a way as to
approximate most closely the intent of the Parties hereto within the limits
permissible under such Rule or related rule.
15.14 Waiver. Modification or Amendment. No failure or delay on the
part of either OWNER or ICMC in exercising any of their respective rights
hereunder upon any failure by the other party to perform or observe any
condition, covenant or provision herein contained shall operate as a waiver
thereof, nor shall any single or partial exercise of any of such rights preclude
any other or further exercise thereof or the exercise of any other right
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hereunder. Neither this Agreement nor any provision hereof may be supplemented,
changed, waived, or discharged orally, or by any course of dealing or trade
usage, but only by an instrument in writing signed by the Party against whom the
enforcement of the supplement, change, waiver, or discharge is sought.
15.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
15.16 Advisors to OWNER. OWNER expressly acknowledges that it has
sought (or had the opportunity to seek) the advice of OWNER'S own advisors,
including but not limited to, legal, tax, financial, geologic, and engineering,
to assist OWNER in reviewing this Agreement. OWNER expressly acknowledges that
OWNER is not relying on any oral or written statement (not expressly set forth
in this Agreement) made by ICMC, its employees or agents regarding any matters
pertaining to this Agreement.
15.17 Acknowledgement and Agreement - ICMC hereby acknowledges receipt
of a copy of the letter dated June 6, 1996 from ▇▇▇▇▇▇▇▇ and wedge, Attorneys to
OWNER, addressed to Arctic Fox Ltd. and ▇▇▇▇ Estates Company discussing the
history of the Property. ICMC agrees with the analysis set out in that letter
and, more specifically, agrees that neither Arctic Fox Ltd. nor ▇▇▇▇ Estates
Company has an operating right of first refusal with respect to the Property.
15.18 Registration of ICMC Stock. ICMC shall bear all costs and
expenses associated with removing any restrictions on the marketability of the
ICMC Stock.
15.19 Entire Agreement. This Agreement (including Exhibits A and B
shall constitute the complete understanding and agreement of the Parties with
respect to the Property and the subject matter hereof, all previous agreements
with respect thereto being expressly rescinded and replaced hereby. No
modification or alteration of this Agreement shall be effective unless in
writing executed subsequent to the date hereof by both of the Parties. No prior
written or contemporaneous oral promises, representations or agreements shall be
binding upon the Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed
this Agreement as of the date first above written.
IDAHO GOLD CORPORATION IDAHO CONSOLIDATED METALS CORP.
By: [ILLEGIBLE SIGNATURE] By: /S/ WILF STRUCK
Title: Director/Secretary/Treasurer Title: Chief Operating Officer,
Vice President
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State of Idaho )
: ss.
County of Nez Perce )
On this 4th day of February, 1997, before me, the undersigned, a Notary
Public in and for said state, personally appeared WILF STRUCK, known and
identified to me to be person whose name is subscribed to the within instrument,
and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first written above.
Notary Public for the State of Idaho
Residing at Lewiston
My commission expires 9-21-02
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EXHIBIT A
to
MINERAL LEASE AGREEMENT
Between
IDAHO GOLD CORPORATION
and
IDAHO CONSOLIDATED METALS CORP.
"Property"
-1-
SCHEDULE "A"
FRIDAY PATENT CLAIMS
BGSHA.WB2
Claim Patent Survey Acres
Name Number Number
Friday Fraction 41174 1834 20.659
Friday 41174 1834 18.559
▇▇▇▇▇▇ 1833 16.595
Alaska 3 41174 1834 20.653
Alaska 4 41174 1834 20.653
EXHIBIT B
To
MINERAL LEASE AGREEMENT
Between
IDAHO GOLD CORPORATION
and
IDAHO CONSOLIDATED METALS CORP.
NET SMELTER RETURNS
-1-
SCHEDULE "B" - FRIDAY CLAIMS
NET SMELTER RETURNS
1. The royalty which may be payable to Idaho Gold Corporation (hereinafter
called the "Payee") pursuant to paragraph 3(d) of the Assignment of
Interests Agreement by Idaho Consolidated Metals Corp. (hereinafter
called the "Payor") will be 3%, of 100% of the Net Smelter Revenue ( as
hereinafter defined) and will be calculated and paid to the Payee in
accordance with the terms of this Schedule "B". Terms having defined
meanings in the Agreement and used herein will have the same meanings
in this Schedule as assigned to them in the Assignment of Interests
Agreement unless otherwise specified or the context otherwise requires.
2. The Net Smelter Revenue will be calculated on a calendar quarterly
basis and will, subject to paragraph 7 of this Schedule "B", be equal
to Gross Revenue less Permissible Deductions for such quarter.
3. The following words will have the following meanings:
(a) "Gross Revenue" means the aggregate of the following amounts
received in each quarterly period following the commencement
of commercial production from the Mining Properties:
(i) the revenue received by the Payor from arm's length
purchasers of all Product;
(ii) the fair market value of all Product sold by the
Payor in such period to persons not dealing at arm's
length with the Payor; and
iii) any proceeds of insurance on Product;
(b) "Ore" means all materials from the Mining Properties, the
nature and composition of which justifies either:
(i) mining or removing from place and shipping and
selling such material, or delivering such material to
a processing plant for physical or chemical
treatment; or
(ii) leaching such material in place;
(c) "Permissible Deductions" means the aggregate of the following
charges (to the extent that they are not deducted by any
purchaser in computing payment) that are paid in each
quarterly period:
2
(i) sales charges levied by any sales agent on the sale
of Product,
(ii) transportation costs for Product from the Mining
Properties to the place of beneficiation, processing
or treatment and thence to the place of delivery of
Product to a purchaser thereof, including shipping,
freight, handling and forwarding expenses;
(iii) all costs, expenses and charges of any nature
whatsoever which are either paid or incurred by the
Payor in connection with refinement or beneficiation
of Product after leaving the Property, including all
weighing, sampling, assaying and representation
costs, metal losses, any umpire charges and any
penalties charged by the processor, refinery or
smelter, and
(iv) all insurance costs on Product, and any government
royalties, production taxes, severance taxes and
sales and other taxes levied on Ore, Product or on
the production or value thereof (other than any
Federal or Provincial taxes levied on the income or
profit of the Payor);
(d) "Product" means:
(i) all Ore shipped and sold prior to treatment, and
(ii) all concentrates, precipitates and products produced
from Ore.
4. The payment on account of the royalty for each calendar quarter will be
calculated and paid within 60 days after the end of each calendar
quarter. Smelter settlement sheets, if any, and a statement setting
forth calculations in sufficient detail to show the payment's
derivation (the "Statement") must be submitted with the payment.
5. In the event that final amounts required for the calculation of the
payment on account of the royalty are not available within the time
period referred to in section 4 of the Schedule "B", then provisional
amounts will be estimated and such payment will be paid on the basis of
this provisional calculation. Positive or negative adjustments will be
made to the payment on account of the royalty for the succeeding
quarter.
6. All payments on account of the royalty will be considered final and in
full satisfaction of all obligations of the Payor with respect thereto,
unless the Payee delivers to the Payor a written notice (the "Objection
Notice") describing and setting forth a specific objection to the
calculation thereof within 60 days after
3
receipt by the Payee of the Statement. If the Payee objects to a
particular Statement as herein provided, the Payee will, for a period
of 60 days after the Payor's receipt of such Objection Notice, have the
right, upon reasonable notice and at reasonable times, to have the
Payor's accounts and records relating to the calculation of the payment
in question audited by the auditors of the Payee. If such audit
determines that there has been a deficiency or an excess in the payment
made to the Payee, such deficiency or excess will be resolved by
adjusting the next quarterly payment due hereunder. The payee will pay
all the costs and expenses of such audit unless a deficiency of 5 % or
more of the amount due is determined to exist. The Payor will pay the
costs and expenses of such audit if a deficiency of 5 % or more of the
amount due is determined to exist. Failure on the part of the Payee to
made a claim against the Payor for adjustment in such 60 day period by
delivery of an Objection Notice will conclusively establish the
correctness and sufficiency of the Statement and payment on account of
the royalty for such quarter.
7. All profits and losses resulting from the Payor engaging in any
commodity futures trading, option trading, metals trading, gold loans
or any combination thereof, and any other hedging transactions with
respect to Product which is a precious metal (collectively, "Hedging
Transactions") are specifically excluded from calculations of the
payments on account of the royalty pursuant to this Schedule "B" (it
being the intent of the parties that the Payor will have the
unrestricted right to market and sell Product to third parties in any
manner it chooses and that the Payee will not have any right to
participate in such marketing activities or to share in any profits or
losses therefrom. All Hedging Transactions by the Payor and all profits
or losses associated therewith, if any, will be solely for the Payor's
account. The amount of Net Smelter Revenue derived from all Product
subject to Hedging Transactions by the Payor will be determined
pursuant to the provisions of this paragraph 7 and not paragraph 2. As
to precious metals subject to Hedging Transactions by the Payor, Net
Smelter Revenue will be determined without reference to Hedging
Transactions and will be determined by using, for gold, the quarterly
average price of gold, which will be calculated by dividing the sum of
all London Bullion Market Association P.M. Gold Fix prices reported for
the calendar quarter in question by the number of days for which such
prices were quoted. Any Product subject to Hedging Transactions will be
deemed to be sold, and revenues received therefrom, only on the date of
the final settlement of the amount of refined Product allocated to the
account of the Payor by a third party refinery in respect of such
transactions. Furthermore, the Payor will have no obligation to fulfill
any futures contracts, forward sales, gold loans or other Hedging
Transactions which the Payor may hold with Product.
8. If the royalty becomes payable to two or more parties, those parties
will appoint, and will deliver to the Payor a document executed by all
of those parties appointing, a single agent or trustee of all such
parties to whom the
4
Payor will make all payments on account of the royalty. The Payor will
have no responsibility as to the division of the royalty payments
amount such parties, and if the Payor makes a payment or payments on
account of the royalty in accordance with the provisions of this
paragraph 8, it will be conclusively deemed that such payment or
payments have been received by the Payee. All charges of the agent or
trustee will be borne solely by the parties receiving payments on
account of the royalty.
9. Notwithstanding the foregoing, the royalty payable shall be limited to
US$1,000,000.
