Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof. (b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant: (1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3, then to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default. (2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement.
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Samples: Mining Venture Agreement (Crested Corp), Mining Venture Agreement (Us Energy Corp)
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.310.03. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees fees, and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a6.04(a) or under 6.4(b), Section 6.04(b) or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file file, and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, contribution or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant mayParticipant, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies may elect, by giving notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s 's Participating Interest permanently reduced by twice the reduction that would have resulted under Section 6.03. Amounts treated as provided a loan pursuant to Section 6.04(a) and interest thereon shall be included in Section 6.3, then to the extent the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account's reduced Participating Interest. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced 's Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions AGREEMENT-Page 20 shall be effective as of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement.
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Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any any, accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect in writing to have the defaulting Participant’s 's Participating Interest permanently reduced as provided in Section 6.3, then to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement.
Appears in 1 contract
Default in Making Contributions. (a) If a Participant elects to contribute to an approved Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program and Budgethereunder, the non-Manager, by notice to the defaulting Participant Participant, may advance the defaulted at any time, but shall not be obligated to, elect to make such contribution or meet such cash call on behalf of the defaulting Participant (a “Cover Payment”). If more than one Cover Payment is made, the Cover Payment shall be aggregated and treat the samerights and remedies described herein pertaining to an individual Cover Payment shall be read to apply to the aggregated Cover Payments.
(b) Each Cover Payment shall constitute indebtedness due from the defaulting Participant to the Manager, together with any accrued interest, as a which indebtedness shall be payable upon demand loan bearing and shall bear interest from the date incurred to the date of the advance payment at the rate provided specified in Section 10.3. The failure to repay said loan upon demand shall be a default. 9.3.
(c) Each Participant other than the Manager hereby grants to the other a lien upon its interest Manager, as security for repayment of the indebtedness referred to in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including Section 9.4(b) above together with interest thereon, reasonable attorneys legal fees and all other reasonable costs and expenses incurred in recovering the loan with interest collecting payment of such indebtedness and in enforcing such lien or security interest, a mortgage of and security interest in such Participant’s right, title and interest in, whenever acquired or both. A non-defaulting Participant may elect arising, the applicable remedy under this Section 6.4(a) or under 6.4(b), or, Assets together with all proceeds of and accessions to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remediesforegoing. Each Participant hereby represents and warrants to the Manager that such mortgage and security interest ranks and will rank at all times prior to any and all other mortgages and security interests. Each Participant hereby agrees to take all action necessary to perfect such mortgage and security interest and irrevocably appoints the other Manager as its attorney-in-fact to execute, file and record all instruments financing statements and any other documents necessary to perfect or effectuate maintain such mortgage and security interest or otherwise give effect to the provisions hereof.
(b. Upon default being made in the payment of the indebtedness referred to in Section 9.4(b) The Participants acknowledge when due the Manager for itself and any other Participant which contributed to the Cover Payment may exercise any or all of the rights and remedies available to it at common law, by statute or hereunder. Without limiting the generality of the foregoing, to the extent permitted by applicable law each Participant grants to the Manager a power of sale as to any property that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required is subject to the mortgage and security interest granted hereunder, it will such power to be difficult to measure exercised in the damages resulting from such defaultmanner provided by applicable law or otherwise in a commercially reasonable manner and upon reasonable notice. In the event the Manager enforces the mortgage or security interest pursuant to the terms of such default, as reasonable liquidated damagesthis Section, the non-defaulting Participant waives any available right of redemption from and after the date of judgment, any required valuation or appraisement of the mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets and any required bond in the event a receiver is appointed and the defaulting Participant agrees that it will be liable for any continuing deficiency.
(d) If a Cover Payment shall have been made, upon the giving of not less than 10 days’ prior notice to the defaulting Participant, the Manager may, but shall not be obligated to, elect to effect an adjustment of its Participating Interest pursuant to this Section 9.4; provided, however, that if within such ten day period the defaulting Participant pays all indebtedness owing by the defaulting Participant to the Manager, then such adjustment of interest shall not be effected. Upon such election, an amount equal to 125% times the Cover Payment shall be deducted from the total previous expenditures incurred by the defaulting Participant and added to the total previous expenditures incurred of the Manager and the Participating Interest of the defaulting Participant and the other Participant shall be recalculated in accordance with Section 5.3(b). If a Participant’s Participating Interest is reduced to less than a 10% Participating Interest pursuant to Section 9.4 that Participant shall be deemed to and shall have relinquished its Participating Interest and its right to receive a Net Profits Royalty as provided in Article 10, and this Agreement shall thereupon terminate in respect to any such default of that Participant.
(e) If a Cover Payment and the indebtedness arising therefrom shall not cured within have been discharged then upon not less than 30 days after days’ notice to the defaulting Participant of such defaultthe Manager may but shall not be obligated to, elect one to purchase all the right, title and interest, whenever acquired or arising, of the following remedies defaulting Participant in the Assets, this Agreement and the Products together with all proceeds and accessions of the foregoing at a purchase price equal to 80% of the fair market value thereof as determined by giving an independent appraiser appointed by the Manager (or, if the defaulting Participant objects to the person so appointed within 10 days of receiving notice to thereof, then by an independent appraiser appointed by joint action of independent appraisers appointed by each of the Manager and the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, provided, however, that if the non-defaulting Participant may elect fails to have the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3designate an independent appraiser for such purpose within 10 days of such objection, then to the extent person originally designated by the other Participant makes up Manager shall serve as the defaulting Participant’s shortfall, the funding Participant’s account independent appraiser). There shall be credited with three times withheld from the amount coveredpurchase price payable, upon transfer of such rights, title and twice interest, the amount of covered default shall be deducted from indebtedness of the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account Participant owing to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of Manager together with unpaid interest accrued thereon to the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s electionsuch transfer. Upon payment of such purchase price, the defaulting Participant shall be deemed to have withdrawn from relinquished all such right, title and interest in the Venture Assets, this Agreement and to have automatically relinquished its Participating Interest the Product to the non-defaulting Participant; providedManager.
(f) Upon a default of the type referred to in Section 9.4(a) above, however, the right of the defaulting Participant to take delivery in kind under Article 11 shall have cease. The Manager if it elected to make the right to receive only from 3% of the Net Milling ReturnsCover Payment, if any, and not from any other source, an amount equal to may sell the defaulting Participant’s Initial share of Products in any commercially reasonable manner. If the Manager elects to sell the defaulting Participant’s share of Products, it shall apply the proceeds thereof first, to make any contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount or meet any cash call not made or met by the defaulting Participant or made or met, on its behalf, and second to pay the indebtedness and unpaid and accrued interest thereon then owing by the defaulting Participant to the Manager. The right of a defaulting Participant to take in kind its share of Products shall thereafter have no further right title be reinstated at the first time when such Participant is not in default in its obligation to make a contribution or meet a cash call and all indebtedness and interest thereon arising out of the making by the Manager of Cover Payments has been paid in Assets full.
(g) A defaulting Participant, by paying all indebtedness and interest thereon then owing to the Manager, if it elected to make the Cover Payment, may cure such default at any time prior to: (i) consummation of an action to execute or under this Agreementforeclose on a security interest granted pursuant to Section 9.4(c); or (ii) an adjustment of Participating Interest being effected pursuant to 9.4(d).
Appears in 1 contract
Samples: Property Option Agreement
Default in Making Contributions. (a) If a Participant elects to contribute to an approved Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program and Budgethereunder, the non-Operator, by notice to the defaulting Participant Participant, may advance the defaulted at any time, but shall not be obligated to, elect to make such contribution or meet such cash call on behalf of the defaulting Participant (a "Cover Payment"). If more than one Cover Payment is made, the Cover Payments shall be aggregated and treat the samerights and remedies described herein pertaining to an individual Cover Payment shall be made to apply to the aggregated Cover Payments.
(b) Each Cover Payment shall constitute indebtedness due from the defaulting Participant to the Operator, together with any accrued interest, as a which indebtedness shall be payable upon demand loan bearing and shall bear interest from the date incurred to the date of the advance payment at the rate provided specified in Section 10.3. The failure to repay said loan upon demand shall be a default. 8.03.
(c) Each Participant hereby grants to the other a lien upon its interest Operator, as security for repayment of the indebtedness referred to in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including Section 8.4(b) together with interest thereon, ,
(d) 8-2 reasonable attorneys legal fees and all other reasonable costs and expenses incurred in recovering the loan with interest collecting payment of such indebtedness and in enforcing such lien or security interest, a mortgage of and security interest in such Participant's right, title and interest in, whenever acquired or both. A non-defaulting Participant may elect arising, the applicable remedy under this Section 6.4(a) or under 6.4(b), or, Assets together with all proceeds of and accession's to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remediesforegoing. Each Participant hereby represents and warrants to the Operator that such mortgage and security interest ranks and will rank at all times prior to any and all other mortgages and security interests. Each Participant hereby agrees to take all action necessary to perfect such mortgage and security interest and irrevocably appoints the other Operator as its attorney-in-fact to execute, file and record all instruments financing statements and any other documents necessary to perfect or effectuate maintain such mortgage and security interest or otherwise give effect to the provisions hereof.
(b. Upon default being made in the payment of the indebtedness referred to in Section 8.04(b) The Participants acknowledge when due the Operator may exercise any or all of the rights and remedies available to it at common law, by statute or hereunder. Without limiting the generality of the foregoing, to the extent permitted by applicable law each Participant grants to the Operator a power of sale as to any property that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required is subject to the mortgage and security interest granted hereunder, it will such power to be difficult to measure exercised in the damages resulting from such defaultmanner provided by applicable law--or otherwise in a commercially reasonable manner and upon reasonable notice. In the event the Operator enforces the mortgage or security interest pursuant to the terms of such defaultthis section, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant waives any available right of such defaultredemption from and after the date of judgment, elect one any required valuation or appraisement of the following remedies by mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets and any required bond in the event a receiver is appointed and the defaulting Participant agrees that it will be liable for any continuing deficiency.
(a) If a Cover Payment shall have been made, upon the giving of not less than 10 days' prior notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-Operator may, but shall not be obligated to, elect to effect an adjustment of its Participating Interest pursuant to this Section 8.04; provided, however, that if within such 10 day period the defaulting Participant may elect to have pays all indebtedness owing by the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3Participant to the Operator, then such adjustment of interest shall not be effected. Upon such election, an amount equal to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three 125% times the amount covered, and twice the amount of covered default Cover Payment shall be deducted from the defaulting Participant’s account. In other words, in addition 's Equity Account and added to being credited for the amount actually funded, twice that amount Equity Account of the Operator and the Participating Interests of the defaulting Participant and of the Operator shall be transferred from recalculated based on the adjusted Equity Accounts.
(b) If a Cover Payment and the indebtedness arising therefrom shall not have been discharged then upon not less than 30 days' notice to the defaulting Participant the Operator may, but shall not be obligated to, elect to purchase all the right, title and interest, whenever acquired or arising, of the defaulting Participant in the Assets, this Agreement and the Products together with all proceeds and accessions of the foregoing at a purchase price equal to 80% of the fair market value thereof as determined by an independent appraiser appointed by the Operator (or, if the
(c) defaulting Participant objects to the person so appointed within 10 days of receiving notice thereof, then by an independent appraiser appointed by joint action of independent appraisers appointed by each of the Operator and the defaulting Participant’s account ; provided, however, that if the defaulting Participant fails to designate' an independent appraiser for such purpose within 10 days of such objection, then the person originally designated by the Operator shall serve as the independent appraiser). There shall be withheld from the purchase price payable, upon transfer of such rights, title and interest, the amount of indebtedness of the defaulting Participant owing to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of Operator together with unpaid interest accrued thereon to the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s electionsuch transfer. Upon payment of such purchase price, the defaulting Participant shall be deemed to have withdrawn from the Venture relinquished all such right, title and to have automatically relinquished its Participating Interest interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this AgreementOperator.
Appears in 1 contract
Samples: Subscription & Option Agreement (Fronteer Development Group)
Default in Making Contributions. (a) If a Participant defaults Venturer Defaults in making a contribution or cash call required by an approved Program and Budgetpursuant to Sections 5.1(b) or 5.2, the nonNon-defaulting Participant Defaulting Venturer may advance the defaulted contribution on behalf of the defaulting Participant and Defaulting Venturer. The Non-Defaulting Venturer may at its election treat the samesuch advance, together with any accrued interest, as a demand loan to the Defaulting Venturer bearing interest from the date of the advance at the rate provided in Section 10.310.2(b)(ii). The failure to repay said loan upon within thirty (30) days of notice of demand shall be a default. an event of Default pursuant to Article X. Each Participant Venturer hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other the Assets, and the proceeds therefrom, to secure any loan made hereunder, including the interest thereon, reasonable attorneys attorney's fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant Venturer hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.. No later than the end of the fiscal year in which such advance was made the Non-Defaulting Venturer shall be entitled to receive the amount of such advance plus interest from the Defaulting Venturer. At its election, the Non-Defaulting Venturer may, in lieu of receiving repayment of the advance plus interest from the Defaulting Venturer, instruct the Joint Venture to make a preferential cash distribution equal to the amount of such advance plus a 10% rate of return. No distributions (other than amounts required to pay income taxes on Joint Venture income if any cash is available) shall be made to a Defaulting Venturer until such advance has been repaid. In addition, the amount of such advance, plus interest thereon, shall be credited to the Non-Defaulting Venturer's Capital Account. Upon return of such advance, the amount of such repaid advance, plus interest or other return, shall be deducted from the Non- Defaulting Venturer's Capital Account. 92
(b) The Participants Venturers acknowledge that if a Participant defaults Venturer Defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such defaultDefault whether or not a Non-Defaulting Venturer makes an advance under Section 10.3(a). In the event of such defaultDefault and in addition to, and not in lieu of, provisions of Section 10.3(a), as reasonable liquidated damages, the nonNon-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3, then to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account Defaulting Venturer shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other wordsentitled to receive a preferential cash distribution, in addition to being credited any distribution made under Section 9. 1, equal to the Adjusted Percent of the Joint Venture's Net Proceeds for the amount actually funded, twice that amount year (which distribution shall be transferred from paid out of the defaulting Participant’s account Defaulting Venturer's share of Joint Venture Net Proceeds) and each additional year for which the advance referred to in Section 10.3(a) is outstanding. Any such distribution shall be made at the end of the fiscal year in which any such advance has been outstanding. For purposes of this Section, the "Adjusted Percent" means a percentage equal to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become excess of (a) the difference between 100% and quotient calculated by dividing (i) the further reduced Participating Interest shall, at such time, become sum of (x) the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as value of the date Non-Defaulting Venturer' s initial contribution under Section 5.1, and (y) the total of all of the default.
Non-Defaulting Venturer's contributions under Sections 5.2 (2including amounts advanced pursuant to Section 10.3(4);) by (ii) For the sum of (x) and (y) above for all Venturers (with amounts advanced by a default relating Venturer; pursuant to Section 10.3 (a) being treated as a Program contribution of such Venturer); and Budget covering in whole or in part Development or Miningthen multiplied the result by one hundred, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participantover (b) fifty (50); provided, however, that in no event shall the defaulting Participant Adjusted Percent exceed ten (10). Such distribution shall have the right to receive only from 3% not be deemed a repayment of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or advance under this AgreementSection 10.3(a).
Appears in 1 contract
Default in Making Contributions. (a) If The Parties acknowledge that if a Participant Party defaults in making a contribution or meeting a cash call required by an approved Program and BudgetBudget for a Joint Venture in respect of which such Party is required to provide funding in accordance with Section 10.5 or has elected, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure or is deemed to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefromhave elected, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred provide funding in recovering the loan accordance with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, 10.6 or in repaying a loan, as required hereunderloan made pursuant to Sections 9.4(a) or 11.5, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant nondefaulting Party may, with respect to any such default not cured within 30 days after notice to the defaulting Participant Party of such default, elect one of the following remedies by giving notice to the defaulting ParticipantParty:
(1a) For a default relating exclusively to a Program and Budget, the Thc non-defaulting Participant Party may elect to have advance the defaulted contribution on behalf of the defaulting Participant’s Participating Interest permanently reduced Party and treat the same, together with any accrued interest, as provided in Section 6.3, then a demand loan to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted Party bearing interest from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the defaultadvance at the Prime Rate plus three percent. The failure of the defaulting Party to repay said loan upon demand shall be a material default under this Agreement and shall be subject to the provisions of Section 9.3.
(2b) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-The defaulting Participant’s election, the defaulting Participant Party shall be deemed to have withdrawn from the Venture related Joint Venture, Holding Vehicle, and associated Business and to have automatically relinquished its Participating Ownership Interest to the non-defaulting Participant; provided, however, Party. Thereafter the defaulting Participant Party shall have no further interest of any kind with respect to such Holding Vehicle or Mineral Entitlement(s).
(c) Each Party shall grant to the right other a lien upon its Ownership Interest and a security interest in all of its rights under the related Holding Company and Mineral Entitlement(s), and any proceeds, distributions, payments or dividends therefrom, to receive only from 3% secure every obligation or liability of the Net Milling ReturnsParty granting such lien or security interest created under this Agreement, if anyincluding but not limited to any advance or loan made under this Agreement (whether or not a Loan), including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the Loan with interest and in enforcing such lien or security interest, or both.
(d) A non-defaulting Party may elect the applicable remedy under this Section 9.4 or, to the extent a Party has a lien or security interest under applicable law, it shall be entitled to such rights and remedies at law and in equity. All such remedies shall be cumulative, and shall be in addition to, and not from in substitution of, other remedies available to the non- defaulting Party under Article 23. The election of one or more remedies shall not waive the election of any other sourceremedies. Each Party shall appoint the other its attorney-in-fact to execute, an amount equal file and record all instruments necessary to perfect or effectuate the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement.provisions hereof
Appears in 1 contract
Samples: Earn In, Exploration, and Joint Venture Agreement (Fx Energy Inc)
Default in Making Contributions. (a) If a Participant elects to contribute to an approved Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program and Budgethereunder, the non-Operator, by notice to the defaulting Participant Participant, may advance the defaulted at any time, but shall not be obligated to, elect to make such contribution or meet such cash call on behalf of the defaulting Participant (a "Cover Payment"). If more than one Cover Payment is made, the Cover Payments shall be aggregated and treat the same, together with rights and remedies described herein pertaining to an individual Cover Payment shall be made to apply to the aggregated Cover Payments. It is specifically acknowledged that any accrued interest, payments due to the Operator as a result of Budget overruns as provided for in Section 7.07 are not subject to the provisions of this Section 8.04.
(b) Each Cover Payment shall constitute indebtedness due from the defaulting Participant to the Operator, which indebtedness shall be payable upon demand loan bearing and shall bear interest from the date incurred to the date of the advance payment at the rate provided specified in Section 10.3. The failure to repay said loan upon demand shall be a default. 8.03.
(c) Each Participant hereby grants to the other a lien upon its interest Operator, as security for repayment of the indebtedness referred to in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including Section 8.04(b) together with interest thereon, reasonable attorneys legal fees and all other reasonable costs and expenses incurred in recovering the loan with interest collecting payment of such indebtedness and in enforcing such lien or security interest, a mortgage of and security interest in such Participant's right, title and interest in, whenever acquired or both. A non-defaulting Participant may elect arising, the applicable remedy under this Section 6.4(a) or under 6.4(b), or, Assets together with all proceeds of and accessions to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remediesforegoing. Each Participant hereby represents and warrants to the Operator that such mortgage and security interest ranks and will rank at all times prior to any and all other mortgages and security interests. Each Participant hereby agrees to take all action necessary to perfect such mortgage and security interest and irrevocably appoints the other Operator as its attorney-in-fact to execute, file and record all instruments financing statements and any other documents necessary to perfect or effectuate maintain such mortgage and security interest or otherwise give effect to the provisions hereof.
(b. Upon default being made in the payment of the indebtedness referred to in Section 8.04(b) The Participants acknowledge when due the Operator may exercise any or all of the rights and remedies available to it at common law, by statute or hereunder. Without limiting the generality of the foregoing, to the extent permitted by applicable law each Participant grants to the Operator a power of sale as to any property that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required is subject to the mortgage and security interest granted hereunder, it will such power to be difficult to measure exercised in the damages resulting from such defaultmanner provided by applicable law or otherwise in a commercially reasonable manner and upon reasonable notice. In the event the Operator enforces the mortgage or security interest pursuant to the terms of such defaultthis section, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant waives any available right of such defaultredemption from and after the date of judgment, elect one any required valuation or appraisement of the following remedies by mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets and any required bond in the event a receiver is appointed and the defaulting Participant agrees that it will be liable for any continuing deficiency.
(d) If a Cover Payment shall have been made, upon the giving of not less than 10 days' prior notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-Operator may, but shall not be obligated to, elect to effect an adjustment of its Participating Interest pursuant to this Section 8.04; provided, however, that if within such 10 day period the defaulting Participant may elect to have pays all indebtedness owing by the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3Participant to the Operator, then to such adjustment of interest shall not be effected. Upon such election, the extent the other Participant makes up indebtedness of the defaulting Participant’s shortfallparticipant is extinguished. If the payment is not made, the funding Participant’s account shall be credited with three an amount equal to 125% times the amount covered, and twice the amount of covered default Cover Payment shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account 's Equity Account and added to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become Equity Account of the difference between 100% Operator and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as Interests of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant and of the Operator shall be deemed to have withdrawn from recalculated based on the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreementadjusted Equity Accounts.
Appears in 1 contract
Samples: Joint Venture Agreement (Fronteer Development Group Inc)
Default in Making Contributions. (a) If a Participant Party defaults in making a contribution or cash call required by an approved adopted Program and Budget, the non-defaulting Participant Party may advance the defaulted contribution on behalf of the defaulting Participant Party (a "Cover Payment"). Each and treat the same, together with any accrued interest, as every Cover Payment will constitute a demand loan bearing interest from the date of the advance at the rate provided in Section 10.312.3. If more than one Cover Payment is made, the Cover Payments shall be aggregated and the rights and remedies described herein pertaining to an individual Cover Payment shall apply to the aggregated Cover Payments. The failure to repay said loan upon demand shall be a defaultdefault under this Agreement. Each Participant Party hereby grants to the other a mortgage of and lien upon its right, title and interest in the Properties Assets and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assetswhenever acquired or arising, and the proceeds therefromfrom and accessions to the foregoing, to secure any loan made hereunderthereby, including interest thereon, reasonable attorneys attorneys' fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. Each Party hereby covenants with the other that such mortgage and security interest will rank at all times prior to any and all other mortgages and security interests affecting its interests in the Assets, or its Participating Interest. Each Party hereby agrees to take all necessary action to perfect such mortgage and security interest and irrevocably appoints the non-defaulting Party as its attorney-in-fact to execute, file, and record all financing statements and any other documents necessary to perfect or maintain such mortgage and security interest or otherwise give effect to the provisions hereof. Upon default being made in the payment of the indebtedness referred to herein when due, the non-defaulting Party may exercise any or all of the rights and remedies available to it at common law, by statute or hereunder. Without limiting the generality of the foregoing, to the extent permitted by applicable law, each Party grants to the non-defaulting Party a power of sale as to its undivided interest in all parts of the Assets or Participating Interest that is subject to the mortgage and security interest granted hereunder, such power to be exercised in the manner provided by applicable law or otherwise in a commercially reasonable manner and upon reasonable notice. If the non-defaulting Participant enforces the mortgage or security interest pursuant to the terms of this section, the defaulting Party waives any available right of redemption from and after the date of judgment, any required valuation or appraisement of the mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets, and any required bond in the event a receiver is appointed, and the defaulting Party agrees that it will be liable for any continuing deficiency. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. A non-defaulting Participant Party may elect the applicable remedy under this Section 6.4(aSubsection 8.4(a) or under 6.4(bSubsection 8.4(b), or, to the extent a Participant Party has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive be considered a waiver of the election of any other remedies. Each Participant Party hereby irrevocably appoints covenants with the other its attorney-in-fact Party to execute, file and record deliver all instruments necessary such documentation as may be required to perfect or effectuate the applicable provisions hereof.of Section 8.4;
(b) The Participants Parties acknowledge that if a Participant Party defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, or a Cover Payment made pursuant to Section 8.4(a) above, it will be difficult to measure the damages resulting from such defaultdefault (it being hereby understood and agreed that the Parties have attempted to determine such damages in advance and determined that the calculation of such damages cannot be ascertained with reasonable certainty). Notwithstanding this, each Party acknowledges and recognizes that the damage to the non-defaulting Party could be significant. In the event of such default, or the making of a Cover Payment, as reasonable liquidated damagesdamages and not as a penalty, the non-defaulting Participant Party may, with respect to any such default not cured within 30 sixty (60) days after notice to the defaulting Participant Party of such default, elect one of the following remedies by giving notice to the defaulting ParticipantParty:
(1i) For a default relating exclusively to a an Exploration Program and corresponding Budget, the non-defaulting Participant Party may elect to have the defaulting Participant’s Party's Participating Interest permanently reduced as provided in Section 6.3Subsection 8.3(b), then and further reduced by multiplying the result by 90%. Amounts previously treated as a loan pursuant to Subsection 8.4(a) and interest thereon shall be treated as actual contributions to Programs and Budgets by the extent non-defaulting Party in the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s accountParty's reduced Participating Interest. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Party's Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.; and
(2ii) For a default relating to a Development Program or Mining Program and Budget covering in whole or in part Development or Miningcorresponding Budget, at the non-defaulting Participant’s Party's election, the defaulting Participant Party shall be deemed to have withdrawn from the Joint Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreementaccordance with Section 14.2.
Appears in 1 contract
Samples: Exploration Option and Operating Joint Venture Agreement (Uranium Power Corp)
Default in Making Contributions. (a) If on or after the Funding Commencement Date a Participant Member defaults in making a contribution or cash call under Section 9.2 as required by an approved Program and BudgetBudget in respect of which as provided in Section 8.8 it has elected, or is deemed to have elected, to contribute, the non-defaulting Participant may Member may, in addition to all other rights and remedies available to it, advance the defaulted contribution on behalf of the defaulting Participant Member and treat the same, together with any accrued interest, as a demand loan to the defaulting Member bearing interest from the date of the advance at the rate provided in Section 10.39.3 (“Cover Loan”). The failure to repay said loan the Cover Loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant Member may elect the any applicable remedy under this Section 6.4(a5.75.7(b) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its any other rights and remedies available to such Member at law and or in equity. All such remedies shall be cumulative. The cumulative and, except as otherwise provided herein, the election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints On or at any time after a non-defaulting Member has advanced a Cover Loan, the defaulting Member shall, when requested in writing by the non-defaulting Member, grant to the non-defaulting Member a first-ranking charge, mortgage, security agreement, debenture or other its attorneyform of security interest specified by the non-indefaulting Member over the defaulting Member’s Membership Interest (including the defaulting Member’s share of Products or cash entitlements in accordance with Article 10) on terms satisfactory to the non-fact defaulting Member to executesecure the repayment by the defaulting Member of the Cover Loan. The defaulting Member covenants and agrees with the non-defaulting Member that it shall, file promptly at any time and record from time to time at the request and cost of the defaulting Member, execute and deliver to the non-defaulting Member all deeds, instruments necessary to perfect or effectuate and other documents and do all acts and things which the provisions hereofnon-defaulting Member may require for the purpose of granting such charge, mortgage, security agreement, debenture and other forms of security interest over the defaulting Member’s Membership Interest and for the purpose of registering such security interests.
(b) The Participants acknowledge that if If a Participant defaults default in making a contribution, or a cash call, contribution or in repaying a loan, Cover Loan as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant Member may, on not less than thirty (30) days prior Notice to the defaulting Member of its intention to exercise its rights under this Section 5.7(b), elect, as its sole and exclusive remedy, with respect to any such default not cured within 30 days after such thirty (30) day notice to the defaulting Participant of such defaultperiod, elect one of the following remedies by giving notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting ParticipantMember’s Participating Percentage Interest permanently reduced as provided in Section 6.3, then by a percentage equal to: (A – ((B)/(D+C))) * Default Rate Where:
A = the defaulting Member’s Percentage Interest immediately prior to the extent adjustment B = the other Participant makes up sum of (a) the agreed value of the defaulting ParticipantMember’s shortfallInitial Contribution under Section 5.1, plus (b) the funding Participanttotal of all of the defaulting Member’s account shall be credited with three times the amount covered, and twice additional contributions C = the amount of covered the Cover Loan default (including accrued but unpaid interest), if any D = the sum of (a) the agreed value of the all of the Members’ Initial Contribution under Section 5.1, plus (b) the total of all of the Members’ additional contributions (through the date of the contribution default under Section 5.7(a)) The “Default Rate” is one and one-half (1.5) for the first and second such default and two (2.0) for the third and each subsequent such default. See Exhibit F for examples of adjustments to a defaulting Member’s Percentage Interest pursuant to this Section 5.7. Amounts treated as a Cover Loan pursuant to Section 5.7(a) and interest thereon shall be deducted from included in the calculation of the defaulting ParticipantMember’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s accountreduced Percentage Interest. The non-defaulting ParticipantMember’s Participating Percentage Interest shall, at such time, become the difference between one hundred percent (100% %) and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Percentage Interest. Such reductions shall be effective as of the date of the default.
(2) For a default relating . Appropriate adjustments to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, number of Units held by the defaulting Participant Members shall be deemed made to have withdrawn from reflect the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% adjusted Percentage Interests of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this AgreementMembers.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Trilogy Metals Inc.)
Default in Making Contributions. (a) If a Participant ParticipantSubject to an election properly made under Section 6.3, if a Member defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant ParticipantMember may advance the defaulted contribution on behalf of the defaulting Participant ParticipantMember and treat the same, together with any accrued interest, as a demand loan to the defaulting Member bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant ParticipantA non-defaulting Member may elect the theany applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its itsb) or Section 6.7 or any other rights and remedies available to such Member at law and andor in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants ParticipantsMembers acknowledge that if a Participant ParticipantMember defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant ParticipantMember may, with respect to any such default not cured within 30 days after notice to the defaulting Participant ParticipantMember of such default, elect one of the following remedies by giving notice to the defaulting ParticipantParticipantMember:
(1i) For a default relating exclusively to a an Exploration Program and Budget, the non-defaulting Participant ParticipantMember may elect to have the defaulting Participant's ParticipatingMember’s Participating Percentage Interest permanently reduced as provided in Section 6.3, then and further reduced by multiplying the result by the following percentageby a percentage equal to the extent percentage that otherwise would apply under Section 6.3, multiplied by the other Participant makes up following factor: . Amounts treated as a loan pursuant to Section 6.4(a) and interest thereon shall be included in the calculation of the defaulting ParticipantParticipant'Member’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s accountreduced ParticipatingPercentage Interest. The non-defaulting Participant's ParticipatingMember’s Participating Percentage Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating ParticipatingPercentage Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting ParticipantParticipant'Member’s election, the defaulting Participant ParticipantMember shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; resigned from the Company in breach of Sections 10.2 and 10.3 of this Agreement within the meaning of Section 18- 306(2) and 18-502(c) of the Act and, as a consequence, shall have its entire Membership Interest cancelled for no consideration as provided in Section 12.2 of this Agreement21; [provided, however, the defaulting Participant ParticipantMember shall have the right to receive only from 3% of the Net Milling ReturnsProceeds, if any, and not from any other source, an amount equal to the defaulting ParticipantParticipant'Member’s Initial aggregate contribution pursuant to Sections 5.1 and 5.55.3. Upon receipt of such amount the defaulting Participant ParticipantMember shall thereafter have no further right Membership Interest or other right, title or interest in Assets or under this Agreement.Agreement.the Company.22]
Appears in 1 contract
Samples: Limited Liability Company Agreement
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Adopted Program and Budget, the non-defaulting nondefaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties Property and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys attorneys' fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting nondefaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1i) For a default relating exclusively to a an Adopted Program and BudgetBudget for Exploration, the non-defaulting nondefaulting Participant may elect to have the defaulting Participant’s 's Participating Interest permanently reduced as provided in Section 6.3, then and further reduced by multiplying that recalculated percentage by 50% to produce a final recalculated Participating Interest. Amounts treated as a loan pursuant to Section 6.4(a) and interest thereon shall be included in the extent the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account's reduced Participating Interest. The non-defaulting nondefaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced 's Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a an Adopted Program and Budget covering in whole or in part Development or Mining, at the non-defaulting nondefaulting Participant’s 's election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-nondefaulting Participant. The relinquishment of the defaulting Participant; provided's Participating Interest shall be effective as of the date on which the Manager, howeverpursuant to Section 10.2, first submitted the billing for each Participant's contribution or cash call required by an Adopted Program and Budget, for which the defaulting Participant failed to make payment. The defaulting Participant shall thereafter have the right to recover from 5% of Net Proceeds (to be defined, calculated and paid as set forth in Exhibit G), but from no other source, the defaulting balance remaining in its Equity Account as of the effective date of such withdrawal, but shall have no other right, title or interest in the Assets or under this Agreement. In the event of a deemed withdrawal under this Section 6.4(b)(ii), the nonwithdrawing Participant shall have the right to receive only offset any payments owing to the withdrawing Participant from 35% of Net Proceeds against the Net Milling Returns, if any, withdrawing Participant's share of Continuing Obligations and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this AgreementEnvironmental Liabilities.
Appears in 1 contract
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved adopted Program and BudgetBudget to which that Participant has elected to contribute under Section 9.6, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive constitute a wavier of the election of right to elect any other remedies. At any time at the request of either Participant, the Participants shall prepare, execute and deliver and file or record such instrument or instruments as are necessary to perfect such liens and security interests. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereofof this Section 6.4(a).
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 60 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1i) For a default relating exclusively to a an Exploration Program and corresponding Budget, the non-defaulting Participant may elect to have the defaulting Participant’s 's Participating Interest in the Exploration Area permanently reduced as provided in Section 6.36.3(b), then and further reduced by multiplying the result by 90%. Amounts treated as a loan pursuant to Section 6.4(a) and interest thereon shall be included in the extent the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account's reduced Participating Interest. The non-defaulting Participant’s 's Participating Interest shall, at such time, become in the difference between 100% and the further reduced Participating Interest Exploration Area shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a Development or Mining Program and Budget covering in whole or in part Development or Miningcorresponding Budget, at the non-defaulting Participant’s 's election, the defaulting Participant shall be deemed to have withdrawn from the Venture relevant Production Area under Section 12.2, and to have automatically relinquished its Participating Interest to in the non-defaulting Participant; provided, however, the defaulting Participant Production Area shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement.be converted to
Appears in 1 contract
Default in Making Contributions. (a) If a Participant elects to contribute to an adopted Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program hereunder, it shall thereupon be a defaulting Participant and Budget, the non-defaulting Participant may advance at any time, by Notice to the defaulted defaulting Participant, elect to make such contribution or meet such cash call on behalf of the defaulting Participant and treat the same, together with any accrued interest, as (“Cover Payment”). If a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect makes more than one Cover Payment, the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to non- defaulting Participant shall aggregate the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its Cover Payments and the rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive described herein pertaining to an individual Cover Payment apply to the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereofaggregated Cover Payments.
(b) The Participants acknowledge that if Each Cover Payment made by a non-defaulting Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult shall constitute indebtedness due from the defaulting Participant to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant mayParticipant, with respect to any such default which indebtedness is payable upon the giving of not cured within 30 days after notice less than 7 days' prior Notice to the defaulting Participant and bears interest from the date incurred to the date of such defaultpayment at the rate specified in Section 9.4. Any payment by or on behalf of a defaulting Participant of a Cover Payment shall be first applied to accrued but unpaid interest and then to repay each Cover Payment in chronological order beginning with the first made Cover Payment.
(c) If a Cover Payment is made by a non-defaulting Participant, elect one upon the giving of the following remedies by giving notice not less than 30 days' prior Notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s adjust its Participating Interest permanently reduced as provided in pursuant to this Section 6.3, then to the extent the other Participant makes up the defaulting Participant’s shortfall9.5. Upon such election, the funding Participant’s account Manager shall be credited with three deduct an amount equal to 125% times the amount covered, and twice the amount of covered default shall be deducted Cover Payment from the defaulting Participant’s account. In other words, in addition to being credited for the 's Equity Account and add such amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as Equity Account of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, Participant and recalculate the Participating Interests of the defaulting Participant shall be deemed to have withdrawn from and the Venture non-defaulting Participant based on the adjusted Equity Accounts.
(d) A defaulting Participant, by paying all indebtedness and to have automatically relinquished its Participating Interest interest thereon then owing to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if anyit elected to make the Cover Payment, and not from may cure such default at any other source, time prior to (i) consummation of an amount equal action to the defaulting Participant’s Initial contribution enforce or foreclose on a security interest granted pursuant to Sections 5.1 and 5.5. Upon receipt Section 9.6; or (ii) an adjustment of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this AgreementParticipating Interests being effected pursuant to Section 9.5(c).
Appears in 1 contract
Samples: Joint Venture Agreement
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties Property and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1i) For a default relating exclusively to a an Exploration Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s 's Participating Interest permanently reduced as provided in Section 6.3, then 6.3 and further reduced by multiplying the result by the following percentage: 60%. Amounts treated as a loan pursuant to Section 6.4(a) and interest thereon shall be included in the extent the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the 's reduced Participating Interest. The non- defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced 's Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s 's election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-non- defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 310% of the Net Milling ReturnsProceeds, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution 's aggregate contributions pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement5.
Appears in 1 contract
Default in Making Contributions. (a) If during the Period of Joint Operations a Participant elects to contribute to an approved Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program and Budgethereunder, the non-other Participant, by notice to the defaulting Participant Participant, may advance the defaulted at any time, but shall not be obligated to, elect to make such contribution or meet such cash call on behalf of the defaulting Participant (a "Cover Payment"). If more than one Cover Payment is made by the other Participant, such Cover Payments shall be aggregated and treat the samerights and remedies described herein pertaining to an individual Cover Payment shall be read to apply to the aggregated Cover Payments. Each Cover Payment shall constitute indebtedness due from the defaulting Participant to the non-defaulting Participant, together with any accrued interest, as a which indebtedness shall be payable upon demand loan bearing and shall bear interest from the date incurred, payable upon demand or, in the absence of any demand, on the advance last day of each calendar month, at the rate provided specified in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in Participant, as security for the Properties and a security interest in its rights performance of all obligations arising under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunderAgreement, including the repayment of the indebtedness referred to in Section 6.4(b) above (together with interest thereon, reasonable attorneys attorneys' fees and all other reasonable costs and expenses incurred in recovering the loan with interest collecting payment of such indebtedness and in enforcing such lien or security interest), a security interest, mortgage and lien (hereinafter a "security interest") in and on such Participant's right, title and interest in, whenever acquired or both. A non-defaulting Participant may elect arising, (i) the applicable remedy Assets, (ii) its rights under this Section 6.4(aAgreement, and (iii) or under 6.4(b)its Participating Interest, ortogether with all products, to proceeds and accessions of the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remediesforegoing. Each Participant hereby represents and warrants to the other Participant that such security interest ranks prior to any and all other security interests. Each Participant hereby agrees to take all action necessary to perfect such security interest and irrevocably appoints the other Participant as its attorney-in-fact to execute, file and record all instruments financing statements and any other documents necessary to perfect or effectuate maintain such security interest or otherwise give effect to the provisions hereof.
(b) The Participants acknowledge . Each Participant hereby agrees that if a Participant defaults in making a contributionit shall not execute, foreclose or a cash call, or in repaying a loan, as required hereunder, it will be difficult otherwise take action to measure the damages resulting from enforce such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within security interest except upon 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving days' prior notice to the defaulting Participant:
(1) For , provided that the foregoing shall not prohibit the taking of any action to make, prove or protect a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have claim in any bankruptcy or insolvency proceeding of the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3. Upon completion of execution, then foreclosure or other action to enforce the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s electionsecurity interest described herein, the defaulting Participant shall be deemed to have withdrawn from this Agreement and shall relinquish its entire Participating Interest. In the Venture event the defaulting Participant is subjected to execution or foreclosure proceedings pursuant to the terms of this Section, to the extent allowed by applicable law the defaulting Participant waives any available right of redemption from and after the date of judgment, any required valuation or appraisal of the mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets and any required bond in the event a receiver is appointed. In addition, to the extent permitted by applicable law, each Participant grants to the other Participant a power of sale as to any property that is subject to the security interest granted hereunder, such power to be exercised in the manner provided by applicable law or otherwise in a commercially reasonable manner and upon reasonable notice. If a Cover Payment shall have automatically relinquished its been made, upon the giving of not less than 5 days' prior notice to the defaulting Participant, the non-defaulting Participant may, but shall not be obligated to, elect to effect an adjustment of the defaulting Participant's Participating Interest pursuant to this Section 6.4(d); provided, however, that if within such 5 day period the defaulting Participant shall evidence to the reasonable satisfaction of the non-defaulting Participant that it will have the funds to, and will, within 10 days of the expiry of such 5 day period, pay all indebtedness owing by the defaulting Participant to the non-defaulting Participant, then such adjustment of interest may not be effected until the end of such additional 10 day period. Upon such election, or, if applicable, at the end of such additional 10 day period, an amount equal to 125% times the Cover Payment shall be deducted from the defaulting Participant's Equity Account and added to the Equity Account of the non-defaulting Participant and the Participating Interests of the Participants shall be recalculated based on the adjusted Equity Accounts. If a Cover Payment and the indebtedness arising therefrom shall not have been discharged, upon not less than 30 days' notice to the defaulting Participant, the non-defaulting Participant may, but shall not be obligated to, elect to purchase the whole of the Participating Interest of the defaulting Participant, at a purchase price equal to the fair market value of such Participating Interest as determined by an independent appraiser appointed by such non-defaulting Participant (or, if the defaulting Participant objects to the person so appointed, within 10 days of receiving notice thereof, then by an independent appraiser appointed by joint action of independent appraisers appointed by each of the non-defaulting and defaulting Participants; provided, however, that if the defaulting Participant fails to designate an independent appraiser for such purpose within 10 days of such objection, then the person originally designated by such non-defaulting Participant shall serve as the independent appraiser). There shall be withheld from the purchase price payable upon transfer of such Participating Interest the amount of indebtedness of the defaulting Participant owing to the non-defaulting Participant, together with unpaid interest accrued thereon to the date of such transfer. Upon payment of such purchase price, the defaulting Participant shall be deemed to have withdrawn from this Agreement and shall relinquish its entire Participating Interest. Such relinquished Participating Interest shall be deemed to have been assigned automatically to the non-defaulting Participant. Upon a default of the type referred to in Section 6.4(a) above, the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal defaulting Participant to take delivery in kind under Article XI shall cease. The non-defaulting Participant may sell the defaulting Participant’s Initial 's share of Products in any commercially reasonable manner. If such non-defaulting Participant elect to sell the defaulting Participant's share of Products, it shall apply the proceeds thereof first, to make any contribution pursuant to Sections 5.1 and 5.5. Upon receipt of such amount or meet any cash call not made or met by the defaulting Participant or made or met on its behalf, and second, to pay the indebtedness and unpaid and accrued interest thereon then owing by the defaulting Participant to such non-defaulting Participant. The right of a defaulting Participant to take in kind its share of Products shall thereafter have no further right title be reinstated at the first time when such Participant is not in default in its obligation to make a contribution or meet a cash call and all indebtedness and interest thereon arising out of the making by the non-defaulting Participant of Cover Payments has been paid in Assets full. A defaulting Participant, by paying all indebtedness and interest thereon then owing to the non-defaulting Participant may cure such default at any time prior to (i) consummation of an action to execute or under this Agreementforeclose on a security interest granted pursuant to Section 6.4(c), (ii) an adjustment of Participating Interests being effected pursuant to Section 6.4(d), or (iii) consummation of a purchase of its Participating Interest pursuant to Section 6.4(e).
Appears in 1 contract
Samples: Option to Purchase With Exploration Rights (Golden Phoenix Minerals Inc /Fa/)
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.311.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a7.6(a) or under 6.4(b7.6(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other as its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one on of the following remedies by giving notice to the defaulting Participant:
(1i) For a default relating exclusively to a Program and BudgetBudget covering an exploration period that does not cover Development or Mining in whole or in part, the non-defaulting Participant may elect to have the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.37.5, then and further reduced by multiplying the result by the following percentage: 10%. Amounts treated as a loan pursuant to Section 7.6(a) and interest thereon shall be included in the extent the other Participant makes up the calculation of defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s accountreduced Participation Interest. The non-defaulting Participant’s Participating Interest shall, shall at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, time become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Joint Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 35% of the Net Milling ReturnsProceeds, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution aggregate contributions pursuant to Sections 5.1 the applicable section from sections 4.1 to 4.6 and 5.5section 4.7. Upon receipt of such amount amount, the defaulting Participant shall thereafter have no further right right, title or interest in Assets or under this Agreement.
Appears in 1 contract
Samples: Mining Earn in and Joint Venture Agreement (Pan American Lithium Corp)
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties Property and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b), or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other others its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event of such default, as reasonable liquidated damages, the non-defaulting Participant Participants may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1i) For a default relating exclusively to a an Exploration Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s 's Participating Interest permanently reduced as provided in Section 6.3, then 6.3 and further reduced by multiplying the result by the following percentage: 60%. Amounts treated as a loan pursuant to Section 6.4(a) and interest thereon shall be included in the extent the other Participant makes up calculation of the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account's reduced Participating Interest. The non-defaulting Participant’s Participants' combined Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest Interests shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2ii) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s Participants' election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-non- defaulting ParticipantParticipants PRO RATA according to the Participating Interests of the remaining Participants; provided, however, the defaulting Participant shall have the right to receive only from 310% of the Net Milling ReturnsProceeds, if any, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution 's aggregate contributions pursuant to Sections 5.1 and 5.5. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title or interest in Assets or under this Agreement5.
Appears in 1 contract
Default in Making Contributions. (a) If a Participant elects to contribute to an approved Program and Budget and then defaults in making its obligation to pay a contribution or cash call required by an approved Program and Budgethereunder, the non-Manager, by notice to the defaulting Participant Participant, may advance the defaulted at any time, but shall not be obligated to, elect to make such contribution or meet such cash call on behalf of the defaulting Participant (when paid, a “Cover Payment”). If more than one Cover Payment is made, the Cover Payments shall be aggregated and treat the samerights and remedies described herein pertaining to an individual Cover Payment shall be made to apply to the aggregated Cover Payments.
(b) Each Cover Payment shall constitute indebtedness due from the defaulting Participant to the Manager, together with any accrued interest, as a which indebtedness shall be payable upon demand loan bearing and shall bear interest from the date incurred to the date of the advance payment at the rate provided specified in Section 10.3. The failure to repay said loan upon demand shall be a default. 9.3.
(c) Each Participant other than the Manager hereby grants to the other a lien upon its interest Manager, as security for repayment of the indebtedness referred to in the Properties and a security interest in its rights under this Agreement and in its participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including Section 9.4(b) above together with interest thereon, reasonable attorneys legal fees and all other reasonable costs and expenses incurred in recovering the loan with interest collecting payment of such indebtedness and in enforcing such lien or security interest, a mortgage of and security interest in such Participant’s right, title and interest in, whenever acquired or both. A non-defaulting Participant may elect arising, the applicable remedy under Assets and this Section 6.4(a) or under 6.4(b), or, Agreement together with all proceeds of and accessions to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remediesforegoing. Each Participant hereby represents and warrants to the Manager that such mortgage and security interest ranks and will rank at all times prior to any and all other mortgages and security interests. Each Participant hereby agrees to take all action necessary to perfect such mortgage and security interest and irrevocably appoints the other Manager as its attorney-in-fact to execute, file and record all instruments financing statements and any other documents necessary to perfect or effectuate maintain such mortgage and security interest or otherwise give effect to the provisions hereof.
(b. Upon default being made in the payment of the indebtedness referred to in Section 9.4(b) The Participants acknowledge when due the Manager may exercise any or all of the rights and remedies available to it at common law, by statute or hereunder. Without limiting the generality of the foregoing, to the extent permitted by applicable law each Participant grants to the Manager a power of sale as to any property that if a Participant defaults in making a contribution, or a cash call, or in repaying a loan, as required is subject to the mortgage and security interest granted hereunder, it will such power to be difficult to measure exercised in the damages resulting from such defaultmanner provided by applicable law or otherwise in a commercially reasonable manner and upon reasonable notice. In the event the Manager enforces the mortgage or security interest pursuant to the terms of such defaultthis section, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant waives any available right of such defaultredemption from and after the date of judgment, elect one any required valuation or appraisement of the following remedies by mortgaged or secured property prior to sale, any available right to stay execution or to require a marshalling of assets and any required bond in the event a receiver is appointed and the defaulting Participant agrees that it will be liable for any continuing deficiency.
(d) If a Cover Payment shall have been made, upon the giving of not less than 30 days’ prior notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may Manager may, but shall not be obligated to, elect to have the defaulting Participant’s effect an adjustment of its Participating Interest permanently reduced as provided in pursuant to this Section 6.39.4. Upon such election, then an amount equal to 125% of the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default Cover Payment shall be deducted from the defaulting Participant’s account. In other words, in addition Equity Account and added to being credited for the amount actually funded, twice that amount Equity Account of the Manager and the Participating Interests of the defaulting Participant and of the Manager shall be transferred from recalculated based on the adjusted Equity Accounts; thereupon the debt represented by the Cover Payment shall be extinguished.
(e) If a Cover Payment and the indebtedness arising therefrom shall not have been discharged when due and the option set out in Section 9.4(d) has not been exercised then, upon not less than 30 days’ notice to the defaulting Participant’s account , the Manager may, but shall not be obligated to, elect to purchase all the right, title and interest, whenever acquired or arising, of the defaulting Participant in the Assets and this Agreement together with all proceeds and accessions of the foregoing at a purchase price equal to 80% of the fair market value thereof as determined by an independent appraiser appointed by the Manager (or, if the defaulting Participant objects to the funding Participant’s account. The non-person so appointed within ten days of receiving notice thereof, then by an independent appraiser appointed by joint action of independent appraisers appointed by each of the Manager and the defaulting Participant’s Participating Interest shall; provided, at however, that if the defaulting Participant fails to designate an independent appraiser for such timepurpose within ten days after such objection, become then the difference between 100% and person originally designated by the further reduced Participating Interest shall, at such time, become Manager shall serve as the difference between 100% and the further reduced Participating Interestindependent appraiser). Such reductions There shall be effective as withheld from the purchase price payable, upon transfer of such rights, title and interest, the amount of indebtedness of the defaulting Participant owing to the Manager together with unpaid interest accrued thereon to the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s electionsuch transfer. Upon payment of such purchase price, the defaulting Participant shall be deemed to have withdrawn relinquished all such right, title and interest to the Manager.
(f) A defaulting Participant, by paying all indebtedness and interest thereon then owing to the Manager, if it elected to make the Cover Payment, and any and all costs incurred by the Manager pursuant to this Section 9.4 including costs of an appraisal under Section 9.4(e) and costs to execute or foreclose on a security interest, may cure such default at any time prior to (i) consummation of an action to execute or foreclose on a security interest granted pursuant to Section 9.4(c); (ii) an adjustment of Participating Interests being effected pursuant to Section 9.4(d); or (iii) notification from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% of the Net Milling Returns, if any, and not from any other source, an amount equal to Manager that it will purchase the defaulting Participant’s Initial contribution Interest pursuant to Sections 5.1 and 5.5. Section 9.4(e).
(g) Upon receipt a default of such amount the type referred to in Section 9.4(e) above, the right of the defaulting Participant to take delivery in kind under Article 11 shall thereafter have no further cease. The Manager, if it elected to make the Cover Payment, may sell the defaulting Participant’s share of Products in any commercially reasonable manner determined by the Manager in its discretion. If the Manager elects to sell the defaulting Participant’s share of Products, it shall apply the proceeds thereof first, to make any contribution or meet any cash call not made or met by the defaulting Participant or made or met, on its behalf, and second, to pay the indebtedness and unpaid and accrued interest thereon then owing by the defaulting Participant to the Manager. The right title of a defaulting Participant to take in kind its share of Products shall be reinstated at the first time when such Participant is not in default in its obligation to make a contribution or meet a cash call and all indebtedness and interest thereon arising out of the making by the Manager of Cover Payments has been paid in Assets or under this Agreementfull.
Appears in 1 contract
Samples: Option Agreement (Radius Gold Inc.)
Default in Making Contributions. (a) If a Participant defaults in making a contribution or cash call required by an approved Program and Budget, the non-defaulting Participant may advance the defaulted contribution on behalf of the defaulting Participant and treat the same, together with any accrued interest, as a demand loan bearing interest from the date of the advance at the rate provided in Section 10.3Prime Rate plus two percent (2%) compounded quarterly. The failure to repay said loan upon demand shall be a default. Each Participant hereby grants to the other a lien upon its interest in the Properties Property and a security interest in its rights under this Agreement and in its participating Participating Interest in other Assets, and the proceeds therefrom, to secure any loan made hereunder, including interest thereon, reasonable attorneys attorneys' fees and all other reasonable costs and expenses incurred in recovering the loan with interest and in enforcing enforcing. such lien or security interest, or both. A non-defaulting Participant may elect the applicable remedy under this Section 6.4(a) or under 6.4(b)6.4, or, to the extent a Participant has a lien or security interest under applicable law, it shall be entitled to its rights and remedies at law and in equity. All such remedies shall be cumulative. The election of one or more remedies shall not waive the election of any other remedies. Each Participant hereby irrevocably appoints the other its attorney-in-fact to execute, file and record all instruments necessary to perfect or effectuate the provisions hereof.
(b) The Participants acknowledge that if a Participant defaults in making a contribution, or a cash call, or in repaying a loanloan or any payment, as required hereunder, it will be difficult to measure the damages resulting from such default. In the event such default is not cured by the defaulting Participant within thirty (30) days after receiving notice of such default, as reasonable liquidated damages, the non-defaulting Participant may, with respect to any such default not cured within 30 days after notice to the defaulting Participant of such default, elect one of the following remedies by giving notice to the defaulting Participant:
(1) For a default relating exclusively to a Program and Budget, the non-defaulting Participant may elect to have the defaulting Participant’s Participating Interest permanently reduced as provided in Section 6.3, then to the extent the other Participant makes up the defaulting Participant’s shortfall, the funding Participant’s account shall be credited with three times the amount covered, and twice the amount of covered default shall be deducted from the defaulting Participant’s account. In other words, in addition to being credited for the amount actually funded, twice that amount shall be transferred from the defaulting Participant’s account to the funding Participant’s account. The non-defaulting Participant’s Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest shall, at such time, become the difference between 100% and the further reduced Participating Interest. Such reductions shall be effective as of the date of the default.
(2) For a default relating to a Program and Budget covering in whole or in part Development or Mining, at the non-defaulting Participant’s election, the defaulting Participant shall be deemed to have withdrawn from the Venture and to have automatically relinquished its Participating Interest to the non-defaulting Participant; provided, however, the defaulting Participant shall have the right to receive only from 3% five percent (5%) of the Net Milling ReturnsProceeds of Production Royalty, if anyas set out in Exhibit C, and not from any other source, an amount equal to the defaulting Participant’s Initial contribution pursuant to Sections 5.1 and 5.5's actual expenditures contributed hereunder. Upon receipt of such amount the defaulting Participant shall thereafter have no further right title right, title, or interest in Assets or under this AgreementAgreement or in the Assets.
Appears in 1 contract
Samples: Joint Venture Agreement (Idaho Consolidated Metals Corp)
