Powers and Duties of Manager. Subject to the terms and provisions of this Agreement, the Manager shall have the following powers and duties which, except as provided in Section 9.1, shall be discharged in accordance with adopted Programs and Budgets: (a) The Manager shall manage, direct and control Operations. (b) The Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement. (c) The Manager shall: (i) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for Operations, such purchases and acquisitions to be made on the best terms available, taking into account all of the circumstances; (ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and (iii) keep the Assets free and clear of all liens and encumbrances, except for those existing at the time of, or created concurrent with, the acquisition of such Assets, or mechanic’s or materialmen’s liens which shall be released or discharged in a diligent manner, or liens and encumbrances specifically approved by the Management Committee. (d) The Manager shall conduct such title examinations and cure such title defects as may be advisable in the reasonable judgment of the Manager. (e) The Manager shall: (i) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets; (ii) pay all taxes, assessments and like charges on Operations and Assets except taxes determined or measured by a Participant’s sales revenue or net income. If authorized by the Management Committee, the Manager shall have the right to contest in the courts or otherwise, the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment of any taxes, assessments or like charges; and (iii) shall do all other acts reasonably necessary to maintain the Assets. (f) The Manager shall: (i) apply for all necessary permits, licenses and approvals; (ii) comply with applicable federal, state and local laws and regulations; (iii) notify promptly the Management Committee of any allegations of substantial violation thereof; and (iv) prepare and file all reports or notices required for Operations. The Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s good faith efforts to comply, and the Manager has timely cured or disposed of such violation through performance, or payment of fines and penalties. (g) The Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, all litigation or administrative proceedings arising out of Operations. The non-managing Participant shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant shall approve in advance any settlement involving payments, commitments or obligations in excess of $50,000 in cash or value. (h) The Manager shall provide insurance for the benefit of the Participants as provided in Exhibit E. (i) The Manager may dispose of Assets, whether by abandonment, surrender or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIV. However, without prior authorization from the Management Committee, the Manager shall not: (i) dispose of Assets in any one transaction having a value in excess of $50,000; (ii) enter into any sales commitments for Product, except as permitted in Article XI; (iii) begin a liquidation of the Venture; or (iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the Venture. (j) The Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates or independent contractors. (k) The Manager shall perform or cause to be performed during the term of this Agreement all assessment and other work and shall pay all rentals fees and assessments required by law in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or site. (l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted. (m) The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure and in accordance with customary cost accounting practices in the mining industry. (n) The Manager shall keep the Management Committee advised of all Operations by submitting in writing to the Management Committee: (i) monthly progress reports which include statements of expenditures and comparisons of such expenditures to the adopted Budget; (ii) periodic summaries of data acquired; (iii) copies of reports concerning Operations; (iv) a detailed final report within 60 days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and (v) such other reports as the Management Committee may reasonably request. At all reasonable times the Manager shall provide the Management Committee or the representative of any Participant, upon the request of any member of the Management Committee, access to, and the right to inspect and copy all maps, drill logs, core tests, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, and other information acquired in Operations. In addition, the Manager shall allow the non-managing Participant, at the latter’s sole risk and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant does not unreasonably interfere with Operations. (o) The Manager shall undertake all other activities reasonably necessary to fulfill the foregoing. (p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.
Appears in 2 contracts
Samples: Mining Venture Agreement (Us Energy Corp), Mining Venture Agreement (Crested Corp)
Powers and Duties of Manager. Subject to the terms and provisions of this AgreementAgreement including without limitation Article 11 and the general oversight and direction of the Management Committee, the Manager shall have the following powers and duties whichduties, except as provided in Section 9.1, which shall be discharged in accordance with adopted Programs and Budgets:
(a) The the Manager shall manage, direct and control Operations., and shall prepare and present to the Management Committee proposed Programs and Budgets as provided in Article 8;
(b) The the Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement.;
(c) The the Manager shall: shall use reasonable efforts to:
(i) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for Operations, such purchases and acquisitions to be made to the extent reasonably possible on the best terms available, taking into account all of the circumstances; ;
(ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and and
(iii) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for any such Encumbrances listed in Paragraph 1.1 of Exhibit A and those existing at the time of, or created concurrent with, the acquisition of such Assets, or mechanic’s 's or materialmen’s 's liens (which shall be contested, released or discharged in a diligent manner, matter) or liens and encumbrances Encumbrances specifically approved by the Management Committee.
(d) The the Manager shall conduct such title examinations of the Properties and cure such title defects pertaining to the Properties as may be advisable in the its reasonable judgment of the Manager.judgment;
(e) The the Manager shall: :
(i) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets; ,
(ii) pay all taxes, assessments and like charges on Operations and Assets except taxes determined or measured by a Participant’s 's sales revenue or net income. If income and taxes, including production taxes, attributable to a Participant's share of Products, and shall otherwise promptly pay and discharge expenses incurred in Operations; provided, however, that if authorized by the Management Committee, the Manager shall have the right to contest (in the courts or otherwise, ) the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment non-payment of any taxes, assessments or like charges; and , and
(iii) shall do all other acts reasonably necessary to maintain the Assets.;
(f) The the Manager shall: :
(i) apply for all necessary permits, licenses and approvals; ,
(ii) comply with applicable federal, state and local laws and regulations; all Laws,
(iii) notify promptly the Management Committee of any allegations of substantial violation thereof; and , and
(iv) prepare and file all reports or notices notices; required for or as a result of Operations. The Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s 's good faith efforts to complycomply consistent with its standard of care under Section 7.3. In the event of any such violation, and the Manager has shall timely cured cure or disposed dispose of such violation on behalf of both Participants through performance, or payment of fines and penalties, or both, and the cost thereof shall be charged to the Business Account.
(g) The the Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, all litigation or administrative proceedings arising out of Operations. The non-managing Participant shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant shall approve in advance any settlement involving payments, commitments or obligations in excess of Five Hundred Thousand Dollars ($50,000 500,000) in cash or value.;
(h) The the Manager shall provide insurance for the benefit of the Participants as provided in Exhibit E.F or as may otherwise be determined from time to time by the Management Committee;
(i) The the Manager may dispose of Assets, whether by abandonment, surrender surrender, or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIV15. However, without Without prior authorization from the Management Committee, however, the Manager shall not: :
(i) dispose of Assets in any one transaction (or in any series of related transactions) having a value in excess of Five Hundred Thousand Dollars ($50,000; 500,000),
(ii) enter into any sales contracts or commitments for Product, except as permitted in Article XI; Section 12.2,
(iii) begin a liquidation of the Venture; or Business, or
(iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the Venture.Business;
(j) The the Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates or independent contractors.;
(k) The the Manager shall perform or cause to be performed during the term of this Agreement any and all assessment work and make any and all filings and do all such other work lawful things, and shall pay all rentals fees and assessments Governmental Fees required by law Law, in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or site.good standing;
(l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted.
(m) The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure procedures described in Exhibit B and in accordance with customary cost accounting practices in the mining industry., and shall ensure appropriate separation of accounts unless otherwise agreed by the Participants;
(m) the Manager shall maintain Equity Accounts for each Participant. Each Participant's Equity Account shall be credited with the value of its Initial Contribution under Sections 5.2 and shall be credited with amounts contributed by such Participant under Section 5.4. Each Participant's Equity Account shall be charged with the cash and the fair market value of property distributed to such Participant (net of liabilities assumed by such Participant and liabilities to which such distributed property is subject). Contributions and distributions shall include all cash contributions or distributions plus the agreed value (expressed in dollars) of all in-kind contributions or distributions. Solely for purposes of determining the Equity Account balances of the Participants, the Manager shall reasonably estimate the fair market value of all Products distributed to the Participants, and such estimated value shall be used regardless of the actual amount received by each Participant upon disposition of such Products;
(n) The the Manager shall keep the Management Committee advised of all Operations by submitting in writing to the members of the Management Committee: :
(i) monthly progress reports which that include statements of expenditures and comparisons of such expenditures to the adopted Budget; ,
(ii) periodic quarterly summaries of data acquired; ,
(iii) copies of reports concerning Operations; ,
(iv) a detailed final report within 60 sixty (60) days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and , and
(v) such other reports as any member of the Management Committee may reasonably request. At Subject to Article 19, at all reasonable times the Manager shall keep the other Participant fully informed of Operations and shall provide the Management Committee Committee, or the other representative of any Participant, a Participant upon the request of any such Participant's member of the Management Committee, access to, and the right to inspect and, at such Participant's cost and copy expense, copies of the Existing Data and all maps, drill logslogs and other drilling data, core testscore, pulps, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, and other information acquired in OperationsConfidential Information, to the extent preserved or kept by the Manager, subject to Article 19. In addition, the Manager shall allow the non-managing Participant, at the latter’s 's sole risk risk, cost and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting non-managing Participant does not unreasonably interfere with Operations.; All reports and summaries will be accompanied by copies of all internal memoranda, maps, plans, photographs, electromagnetic surveys, test results, reports, drill logs and other information and data including electronic data and the Manager’s analyses, interpretations, compilations, studies and evaluations of such information, data and knowledge. All such information will be deemed to be Confidential Information. If requested, the Manager will consult with the non-managing Participant to assist the non-managing Participant to fully understand the information provided and the implications of it for the value and prospectivity of the Properties;
(o) the Manager shall prepare an Environmental Compliance plan for all Operations consistent with the requirements of any applicable Laws or contractual obligations and shall include in each Program and Budget sufficient funding to implement the Environmental Compliance plan and to satisfy the financial assurance requirements of any applicable Law or contractual obligation pertaining to Environmental Compliance. To the extent practical, the Environmental Compliance plan shall incorporate concurrent reclamation of Properties disturbed by Operations;
(p) the Manager shall undertake to perform Continuing Obligations when and as economic and appropriate, whether before or after termination of the Business. The Manager shall have the right to delegate performance of Continuing Obligations to persons having demonstrated skill and experience in relevant disciplines. As part of each Program and Budget submittal, the Manager shall specify in such Program and Budget the measures to be taken for performance of Continuing Obligations and the cost of such measures. The Manager shall keep the other Participant reasonably informed about the Manager's efforts to discharge Continuing Obligations. Authorized representatives of each Participant shall have the right from time to time to enter the Properties to inspect work directed toward satisfaction of Continuing Obligations and audit books, records, and accounts related thereto;
(q) the funds that are to be deposited into the Environmental Compliance Fund shall be maintained by the Manager in a separate, interest bearing cash management account, which may include, but is not limited to, money market investments and money market funds, and/or in longer term investments if approved by the Management Committee. Such funds shall be used solely for Environmental Compliance and Continuing Obligations, including the committing of such funds, interests in property, insurance or bond policies, or other security to satisfy Laws regarding financial assurance for the reclamation or restoration of the Properties, and for other Environmental Compliance requirements;
(r) if Participating Interests are adjusted in accordance with this Agreement the Manager shall propose from time to time one or more methods for fairly allocating costs for Continuing Obligations;
(s) the Manager shall undertake all other activities reasonably necessary to fulfill fulfil the foregoing, and to implement the policies, objectives, procedures, methods and actions determined by the Management Committee pursuant to Section 6.1.
(p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.
Appears in 2 contracts
Samples: Equity Participation and Earn in Agreement (Entree Gold Inc), Equity Participation and Earn in Agreement (Entree Gold Inc)
Powers and Duties of Manager. Subject to the terms and provisions of this the Agreement, the Manager (i) shall have the following powers and duties whichduties, except as provided in Section 9.1, which shall be discharged in accordance with adopted approved Programs and Budgets, and (ii) may delegate any or all of such powers and duties to officers, employees, agents or representatives:
(a) The Manager shall To manage, direct and control Operations.Business and Operations and prepare and present proposed Programs and Budgets to the Management Committee pursuant to Article X.
(b) The Manager shall To implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this the Agreement.
(c) The Manager shall: To use reasonable efforts to (i) purchase or otherwise acquire all material, supplies, equipment, water, and utility and transportation services required for Operations, such purchases and acquisitions to be made to the extent feasible and practicable on the best terms reasonably available, taking into account all of the circumstances; (ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and (iii) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for those any Encumbrances (A) listed in Paragraph 1.1 of Exhibit A, (B) any Encumbrances existing at the time of, or created concurrent concurrently with, the acquisition of such Assets, or (C) mechanic’s 's or materialmen’s 's liens (which shall be contested, released or discharged in a diligent mannermatter), or liens and encumbrances (D) Encumbrances specifically approved by the Management Committee.
(d) The Manager shall To conduct such title examinations of the Properties and cure such title defects pertaining to the Properties as may be advisable in the its reasonable judgment of the Managerjudgment.
(e) The Manager shall: To (i) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets; (ii) pay all taxes, assessments and like charges on Operations and Assets Assets, except taxes determined or measured by a Participant’s Member's sales revenue or net income. If , but including severance, resources, processor's and other production taxes due with respect to Products, and otherwise promptly pay and discharge expenses incurred in Operations; provided, however, that if so authorized by the Management Committee, the Manager shall have the right to may contest (in the courts or otherwise, ) the validity or amount of any taxestax, assessments assessment or charges charge if the Manager deems them the same to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay themthereof, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment of any taxestax, assessments assessment or like chargescharge; and (iii) shall do all other acts reasonably necessary to maintain the Assets.
(f) The Manager shall: To (i) apply for all necessary permits, licenses and approvals; (ii) comply in material respects with applicable federal, state and local laws and regulationsLaw; (iii) promptly notify promptly the Management Committee of any allegations relating to the Business, Operations or the Properties of substantial material violation thereofof Law; and (iv) prepare and file all reports or notices required for or as a result of Operations. The Manager shall not be in breach of this provision Section 9.2(f) if a violation has occurred in spite of occurs despite the Manager’s 's good faith efforts efforts, consistent with its standard of care provided for in Section 9.3, to comply. In the event of any such violation, and the Manager has shall timely cured cure or disposed dispose of such violation on behalf of both Members through performance, or payment of fines and penalties, or otherwise, and the costs of cure or disposition shall be charged to the Business Account.
(g) The Manager shall To prosecute and defend, but shall not initiate without consent of the Management Committee, all litigation or administrative proceedings arising out of relating to Business or Operations. The non-managing Participant Any Member shall (i) have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant shall proceedings and (ii) approve in advance any settlement involving payments, commitments or obligations in excess of One Hundred Thousand Dollars ($50,000 100,000.00) in cash or value.
(h) The Manager shall provide Subject to Section 8.12 of the LLC Members' Agreement, to obtain insurance for the benefit of the Participants Company as provided in Exhibit E.F or as may otherwise be determined from time to time by the Management Committee.
(i) The Manager may To dispose of Assets, whether by abandonment, surrender or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIVSection 12.2. However, without Without prior authorization from the Management Committee, however, the Manager shall not: not (i) dispose of Assets in any one transaction (or in any series of related transactions) having a value in excess of Two Hundred Fifty Thousand Dollars ($50,000250,000.00); (ii) enter into any sales contracts or commitments for ProductProducts, except as permitted in Article XISection 5.9; (iii) begin a the dissolution or liquidation of the VentureCompany; or (iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the VentureCompany.
(j) The Manager shall have the right to To carry out its responsibilities hereunder through officers, employees, agents, Affiliates or and independent contractors.
(k) The Manager shall perform or cause to be performed during the term of this Agreement all assessment and other work and shall pay all rentals fees and assessments required by law in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or site.
(l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted.
(m) The Manager shall To keep and maintain all required accounting and financial records pursuant to the Accounting Procedure and procedures described in Exhibit B and, unless otherwise agreed by the Members, in accordance with customary cost accounting practices in the mining industryindustry and to ensure appropriate separation of accounts.
(l) To keep and maintain all required records, make elections, prepare and file all federal and state tax returns or other required tax forms and perform the other duties of the Manager provided for in Exhibit C.
(m) To maintain Equity Accounts for each Member. Each Member's Equity Account shall be (i) credited with the value of such Member's contributions under Section 3.1 and with any additional amounts contributed by such Member to the Company and (ii) charged with the cash and the fair market value of property distributed to such Member (net of liabilities assumed by such Member and liabilities to which such distributed property is subject). Contributions and distributions shall include all cash contributions and distributions and the agreed value (expressed in dollars) of all in-kind contributions and distributions. Solely for purposes of determining Equity Account balances, the Manager shall reasonably estimate the fair market value of any Products distributed to the Members and such estimated value shall be used regardless of the actual amount received by a Member upon disposition of such Products.
(n) The Manager shall To keep the Management Committee advised of all Operations by submitting in writing to the members of the Management Committee: Committee (i) monthly progress reports which that include statements of expenditures and comparisons of such expenditures to the adopted Budget; (ii) periodic summaries of data acquired; (iii) copies of reports concerning Operations; (iv) a detailed final report within 60 forty-five (45) days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and (v) such other reports as the Management Committee may reasonably request. At Subject to Article XIII, at all reasonable times the Manager shall provide the Management Committee or the representative of any Participant, upon the request of any member of the Management CommitteeCommittee or any other representative of a Member, at the Member's request, cost and expense, with access to, to and the right to inspect and copy all of the following, to the extent preserved or kept by the Manager: Existing Data, maps, drill logslogs and other drilling data, core testscores, pulps, reports, surveys, assays, analyses, production reports, operations, records relating to operations and to technical, accounting and financial recordsmatters, and other information acquired in OperationsBusiness Information. In addition, the Manager shall allow the non-managing Participantany Member, at the latter’s sole risk its risk, cost and expense, and subject to reasonable safety regulations, and without interfering with Operations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant does not unreasonably interfere with Operations.
(o) Consistent with the requirements of Law and contractual obligations, to prepare an Environmental Compliance plan, which shall be approved by the Management Committee, for all Operations and include in each Program and Budget sufficient funding to implement such plan and satisfy the financial assurance requirements of any Law or contractual obligation pertaining to Environmental Compliance.
(p) Subject to Section 4.2 of the LLC Member's Agreement, to perform Continuing Obligations when and as economic and appropriate, whether before or after termination of the Company. The Manager shall have the right to delegate performance of Continuing Obligations to persons having demonstrated skill and experience therein. As part of each proposed Program and Budget, the Manager shall specify the measures to be taken for performance of Continuing Obligations and the cost of such measures. The Manager shall keep the Members reasonably informed about the Manager's efforts to perform Continuing Obligations. Authorized representatives of each Member shall have the right from time to time to enter the Properties to inspect work directed toward satisfaction of Continuing Obligations and to audit books, records and accounts related thereto.
(q) To maintain funds deposited into the Environmental Compliance Fund in a separate income producing account(s), which may include but is not limited to money market accounts. mutual funds and other investments approved by the Management Committee. Funds deposited into the Environmental Compliance Fund shall be used solely for Environmental Compliance and Continuing Obligations. The Manager may commit such funds, property, insurance, bonds and other matters to satisfy financial assurance requirements for reclamation and restoration of the Properties and for other Environmental Compliance.
(r) If and whenever Ownership Interests are adjusted in accordance with the Agreement, to modify the Schedule of Members to properly reflect such adjustments and propose from time to time methods for fairly allocating costs for Continuing Obligations.
(s) To make any limited liability company filings and registrations required in Delaware or in New Mexico.
(t) To undertake all other activities reasonably necessary to fulfill the foregoingforegoing and to implement the policies, objectives, procedures, methods and actions determined by the Management Committee pursuant to Section 8.1.
(p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement (Uranium Energy Corp)
Powers and Duties of Manager. Subject to the terms and provisions of this Agreement, the Manager shall have the following powers and duties whichduties, except as provided in Section 9.1, which shall be discharged in accordance with adopted Programs and Budgets:.
(a) The Manager shall manage, direct and control Operations, and shall prepare and present to the Management Committee proposed Programs and Budgets as provided in Article IX.
(b) The Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted ProgramsPrograms (subject to each Participant’s compliance with Section 10.2), and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement.
(c) The Manager shallshall use reasonable efforts to: (i) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for OperationsOperations (to the extent the same are available to the Manager using commercially reasonable efforts), such purchases and acquisitions to be made to the extent reasonably possible on the best terms available, taking into account all of the circumstances; (ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and (iii) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for any such Encumbrances listed in Paragraph 1.1 of Exhibit A and those existing at the time of, or created concurrent with, the acquisition of such Assets, or mechanic’s or materialmen’s liens (which shall be contested, released or discharged in a diligent manner, matter) or liens and encumbrances Encumbrances specifically approved by the Management Committee.
(d) The Manager shall conduct such title examinations of the Properties and cure such title defects pertaining to the Properties as may be advisable in the its reasonable judgment of the Managerjudgment.
(e) The Manager shall: (i) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets; (ii) pay all taxes, assessments and like charges on Operations and Assets except taxes determined or measured by a Participant’s sales revenue or net income. If income and taxes, including production taxes, attributable to a Participant’s share of Products, and shall otherwise promptly pay and discharge expenses incurred in Operations; provided, however, that if authorized by the Management Committee, the Manager shall have the right to contest (in the courts or otherwise, ) the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment of any taxes, assessments or like charges; and (iii) shall do perform all other acts reasonably necessary to maintain the Assets.
(f) The Manager shall: (i) apply for and maintain all necessary permits, licenses and approvalsapprovals for the conduct of Operations; (ii) comply with applicable federal, state and local laws and regulationsall Laws; (iii) notify promptly the Management Committee of any allegations of substantial violation thereof; and (iv) prepare and file all reports or notices required for Operations. The Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s good faith efforts to comply, and the Manager has timely cured or disposed of such violation through performance, or payment of fines and penalties.
(g) The Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, all litigation or administrative proceedings arising out of Operations. The non-managing Participant shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant shall approve in advance any settlement involving payments, commitments or obligations in excess of $50,000 in cash or value.
(h) The Manager shall provide insurance for the benefit of the Participants as provided in Exhibit E.
(i) The Manager may dispose of Assets, whether by abandonment, surrender or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIV. However, without prior authorization from the Management Committee, the Manager shall not: (i) dispose of Assets in any one transaction having a value in excess of $50,000; (ii) enter into any sales commitments for Product, except as permitted in Article XI; (iii) begin a liquidation of the Venture; or (iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the Venture.
(j) The Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates or independent contractors.
(k) The Manager shall perform or cause to be performed during the term of this Agreement all assessment and other work and shall pay all rentals fees and assessments required by law in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or site.
(l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted.
(m) The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure and in accordance with customary cost accounting practices in the mining industry.
(n) The Manager shall keep the Management Committee advised of all Operations by submitting in writing to the Management Committee: (i) monthly progress reports which include statements of expenditures and comparisons of such expenditures to the adopted Budget; (ii) periodic summaries of data acquired; (iii) copies of reports concerning Operations; (iv) a detailed final report within 60 days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and (v) such other reports as the Management Committee may reasonably request. At all reasonable times the Manager shall provide the Management Committee or the representative of any Participant, upon the request of any member of the Management Committee, access to, and the right to inspect and copy all maps, drill logs, core tests, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, and other information acquired in Operations. In addition, the Manager shall allow the non-managing Participant, at the latter’s sole risk and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant does not unreasonably interfere with Operations.
(o) The Manager shall undertake all other activities reasonably necessary to fulfill the foregoing.
(p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.and
Appears in 1 contract
Samples: Mine Operating and Improvements Agreement (Americas Gold & Silver Corp)
Powers and Duties of Manager. Subject to the terms and provisions of this AgreementAgreement and to the direction of the Management Committee, on and after the Development Implementation Date the Manager shall have the following powers and duties which, except as provided in Section 9.1, shall be discharged in accordance with adopted Programs and Budgetsduties:
(a) The the Manager shall manage, direct and control Operations., and shall prepare and present to the Management Committee proposed Programs and Budgets;
(b) The the Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement.;
(c) The the Manager shall: shall use reasonable efforts to:
(i) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for Operations, such purchases and acquisitions to be made on the best terms available, taking into account all of the circumstances; ;
(ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and and
(iii) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for for:
(A) those existing at the time of, or created concurrent with, the acquisition of such Assets, or ,
(B) mechanic’s 's or materialmen’s 's liens which shall be released or discharged in a diligent manner, ,
(C) Permitted Encumbrances or
(D) other Encumbrances specifically authorized by this Agreement or liens and encumbrances specifically approved by the Management Committee.Committee or the Participants in accordance with the terms of this Agreement including, without limitation, Sections 8.2(t). 8.2(u) and 13.5 hereof;
(d) The the Manager shall conduct such title examinations and and, subject to Section 3.5, cure such title defects relating to the Properties as may be advisable in the reasonable judgment of the Manager.;
(e) The the Manager shall: :
(i) make or arrange for all payments required by concessions, leases, licenseslicences, permits, contracts and other agreements related to the Assets; and
(ii) pay all taxes, assessments and like charges on Operations and Assets except taxes determined or measured by a Participant’s 's sales revenue or net income. If income and, if authorized by the Management Committee, the Manager shall have the right to contest contest, in the courts or otherwise, the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment non-payment of any taxes, assessments or like charges; and and
(iii) shall do all other acts reasonably necessary to maintain the Assets.;
(f) The the Manager shall: :
(i) apply for all necessary permits, licenses licences and approvals; ;
(ii) comply with all applicable federal, state and local laws and regulations; Laws;
(iii) notify promptly the Management Committee of any allegations of substantial violation thereof; and of any such permits, licences, approvals or applicable Laws, and
(iv) prepare and file all reports or notices required for Operations. The ; and in the event of any violation of permits, licences or approvals, the Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s good faith timely use reasonable commercial efforts to comply, and the Manager has timely cured cure or disposed dispose of such violation violations or non-compliance through performance, or payment of fines and penalties., or both, and the cost thereof shall be charged to the Joint Account;
(g) the Manager shall notify the other Participant promptly of any litigation, arbitration or administrative proceeding commenced against the Joint Venture or affecting Operations or the Assets. The Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, any and all litigation or administrative proceedings arising out of Operations. The non-non- managing Participant shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant Management Committee shall approve in advance any settlement involving payments, commitments or obligations in excess of one hundred thousand dollars ($50,000 100,000) in cash or value.;
(h) The with respect to the Goods and Services Tax including, if applicable, harmonized sales tax (in either case, the “GST”) under Part IX of the Excise Tax Act S.C. 1990, c.45 (the “Act”), the Manager shall account for all GST in respect of any supplies made to or by the Joint Venture. The Participants shall be registrants under the Act and will each execute and provide insurance for to the benefit Manager a joint venture election (the “Election”) pursuant to section 273 of the Participants Act, confirming that the Manager shall account for all GST in respect of any supplies made to or by the Joint Venture and the Manager shall file the Election with Canada Revenue Agency along with the Manager's return as provided and when required under Part IX and section 273 of the Act. Accounting for GST shall include paying GST on all taxable purchases and claiming the corresponding input tax credits on behalf of the Joint Venture; the foregoing provisions of this Section 8.2(h) shall apply mutatis mutandis in Exhibit E.respect of provincial or other governmental sales taxes (including Ontario provincial sales tax);
(i) The the Manager may dispose of Assets, whether by abandonmentsale, surrender assignment, abandonment or Transfer other transfer, in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIVSection 12 hereof. However, without prior authorization from the Management Committee, the Manager shall not: :
(i) dispose of Assets in any one (1) transaction having a value in excess of $50,000; 250,000 prior to the Development Implementation Date and $500,000 thereafter;
(ii) enter into any sales contracts or commitments for ProductProducts, except as permitted in Article XI; Section 8.2(t), 8.2(u), 10.1, 10.3 or 10.4(b) hereof;
(iii) begin a liquidation of the VentureVenture or its Assets; or or
(iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the Joint Venture.;
(j) The the Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates or independent contractors.;
(k) The Manager shall perform or cause to be performed during the term of this Agreement all assessment and other work and shall pay all rentals fees and assessments required by law in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or site.
(l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted.
(m) The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure and in accordance with customary cost generally accepted accounting practices in the mining industry.procedures consistently applied;
(nl) The the Manager shall select and employ at competitive rates all supervision and labour necessary or appropriate to all Operations hereunder. All persons employed hereunder, the number thereof, their hours of labour and their compensation shall be determined by the Manager, and they shall be employees of the Manager;
(m) the Manager shall keep the Management Committee advised of all Operations by submitting in writing to the Management Committee: :
(i) monthly progress reports reports, which include statements of expenditures and comparisons of such expenditures to the adopted Budget; ;
(ii) periodic summaries of data acquired; ;
(iii) copies of reports concerning Operations; ;
(iv) a detailed final report within 60 sixty (60) days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programsexpenditures; and and
(v) such other reports as the Management Committee may reasonably request. At all reasonable times times, the Manager shall provide the Management Committee or the representative of any Participant, upon the request of any member of the Management Committee, access to, and the right to inspect and copy copy, all information acquired in Operations, including but not limited to maps, drill logs, core tests, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, records and other information acquired in Operationsthe Existing Data. In addition, the Manager shall allow the non-managing Participant, at the latter’s its sole risk and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant does not unreasonably interfere with Operations.;
(n) the Manager shall maintain insurance for the benefit of the Joint Venture and the Participants, in such amounts and of such nature as the Manager deems necessary or advisable to protect the Assets and Operations of the Joint Venture;
(o) the Manager shall perform or cause to be performed all assessment and other work, and shall pay all Government Fees required by Law in order to maintain in good standing all mining leases, surface leases, claims and other tenures included within the Properties. The Manager shall undertake all have the right to perform the assessment work required hereunder pursuant to a common plan of exploration on other activities reasonably necessary to fulfill the foregoing.
(p) properties. The Manager shall not be in default liable on account of any duty under this Section 8.2 if its failure to perform results from determination by any court or governmental agency that the failure work performed by the Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the non-managing Participant claims, provided that the work done is pursuant to perform acts or to contribute amounts required an adopted Program and Budget and is performed in accordance with the Manager's standard of it by this Agreementcare under Section 8.
Appears in 1 contract
Samples: Option and Joint Venture Agreement
Powers and Duties of Manager. Subject to the terms and provisions of this Agreement, the Manager shall have the following powers and duties whichduties, except as provided in Section 9.1, which shall be discharged in accordance with adopted Programs and Budgets:, except as otherwise set forth in Subsections 5.1(b) and (c) and Article IX.
(a) The Manager shall manage, direct and control Operations, and shall prepare and present to the Management Committee proposed Programs and Budgets as provided in Article IX.
(b) The Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement.
(c) The Manager shallshall use reasonable efforts to: (i) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for OperationsOperations (to the extent the same are reasonably available to the Manager using commercially reasonable efforts), such purchases and acquisitions to be made to the extent reasonably possible on the best terms available, taking into account all of the circumstances; (ii) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and (iii) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for (A) any such Encumbrances listed in Paragraph 1.1 of Exhibit A, (B) those existing at the time of, or created concurrent with, the acquisition of such Assets, or (C) mechanic’s or materialmen’s liens (which shall be contested, released or discharged in a diligent mannermatter), or liens and encumbrances (D) Encumbrances specifically approved by the Management Committee.
(d) The Manager shall conduct such title examinations of the Properties and cure such title defects pertaining to the Properties as may be advisable in the its reasonable judgment of the Managerjudgment.
(e) The Manager shall: (i) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets, including without limitation the Underlying Agreements; (ii) pay all taxes, assessments and like charges on Operations and Assets (except taxes determined or measured by a Participant’s sales revenue or net income. If income and taxes, including production taxes, attributable to a Participant’s share of proceeds from Products), and shall otherwise promptly pay and discharge expenses incurred in Operations; provided, however, that if authorized by the Management Committee, Committee the Manager shall have the right to contest (in the courts or otherwise, ) the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment of any taxes, assessments or like charges; and (iii) shall do perform all other acts reasonably necessary to maintain the Assets. TABLE OF CONTENTS (continued) Page
(f) The Manager shall establish reasonable cash reserves for Operations and shall use cash received from Operations in the ordinary course of business for funding expenses of the Business.
(fg) The Manager shall: (i) apply for all necessary permits, licenses and approvals; (ii) comply in material respects with applicable federal, state all Laws and local laws and regulations; (iii) promptly notify promptly the Management Committee of any allegations of substantial violation violations thereof; and (iviii) prepare and file all reports or notices required for or as a result of Operations. The Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s good faith efforts to complycomply consistent with its standard of care under Section 7.3. In the event of any such violation, and the Manager has shall timely cured cure or disposed dispose of such violation on behalf of both Participants through performance, or payment of fines and penalties, or both, and the cost thereof shall be charged to the Business Account. In addition, with respect to the posting of any bonds or other surety required to obtain any permits, licenses or approvals, the Manager shall have no obligation to provide any corporate guarantees or make its balance sheet available to ensure that such bonds or other surety are in place.
(gh) The Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, defend all litigation or administrative proceedings arising out of Operations, but shall not initiate any such proceedings, except for emergency actions seeking a preliminary injunction or temporary restraining order when reasonably deemed necessary by the Manager, without the consent of the Management Committee. The non-managing Participant shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant shall approve in advance any settlement involving payments, commitments or obligations obliga-tions in excess of $50,000 25,000 in cash or value.
(hi) The Manager shall provide insurance for the benefit of the Participants as provided in Exhibit E.F or as may otherwise be determined from time to time by the Management Committee.
(ij) The Manager may dispose of Assets, whether by abandonment, surrender surrender, or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIV. However, without Without prior authorization from the Management Committee, however, such authorization not to be unreasonably withheld or delayed, the Manager shall not: (i) dispose of Assets in any one transaction having a value in excess of $50,000Assets; (ii) enter into any sales contracts or commitments for ProductProducts on behalf of both Participants or the Business, except as permitted in Article XISections 11.1 and 11.2; (iii) begin a liquidation of the VentureBusiness (except to the extent provided for in Section 12.4); or (iv) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the Venture.Business. TABLE OF CONTENTS (continued) Page
(jk) The Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates Affiliates, consultants or independent contractors.
(kl) The Manager shall perform or cause to be performed during the term of this Agreement all annual assessment and other work work, and shall pay all rentals fees and assessments Governmental Fees, required by law Law in order to maintain the Properties and the State Lease. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be requiredClaims. The Manager shall not be liable on account of any determination by any court or governmental agency that the annual assessment work performed by the Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claimsClaims, provided that the work done is performed in accordance with the adopted Program and Budget. The Manager shall timely record with the appropriate county and file with the appropriate United States agency, affidavits in proper form attesting to the performance Manager’s standard of assessment work or payment of the required fees or assessments, or notices of intent to hold in proper form, and allocating therein, to or for the benefit of each claim, at least the minimum amount required by law to maintain such claim or sitecare under Section 8.
(l) If authorized by the Management Committee, the Manager may: (i) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii) locate any fractions resulting from such amendment or relocation, (iii) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv) abandon any mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v) abandon any mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii) convert any claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law hereafter enacted.
(m) The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure and in accordance with customary cost accounting practices in the mining industry.
(n) The Manager shall keep the Management Committee advised of all Operations by submitting in writing to the Management Committee: (i) monthly progress reports which include statements of expenditures and comparisons of such expenditures to the adopted Budget; (ii) periodic summaries of data acquired; (iii) copies of reports concerning Operations; (iv) a detailed final report within 60 days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and (v) such other reports as the Management Committee may reasonably request. At all reasonable times the Manager shall provide the Management Committee or the representative of any Participant, upon the request of any member of the Management Committee, access to, and the right to inspect and copy all maps, drill logs, core tests, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, and other information acquired in Operations. In addition, the Manager shall allow the non-managing Participant, at the latter’s sole risk and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant does not unreasonably interfere with Operations.
(o) The Manager shall undertake all other activities reasonably necessary to fulfill the foregoing.
(p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.
Appears in 1 contract
Samples: Mine Development and Operating Agreement (Apollo Gold Corp)
Powers and Duties of Manager. Subject to the terms and provisions of this Agreement, the Manager shall have the following powers and duties whichduties, except as provided in Section 9.1, which shall be discharged in accordance with adopted Programs and Budgets:.
(a) 9.2.1 The Manager shall manage, direct and control Operations, and shall prepare and present to the Management Committee proposed Programs and Budgets as provided in Section 10. The parties acknowledge their intent that the Company will conduct its Operations in a prudent and reasonable manner with the goal of exploring for and identifying minerals on the Properties which support preparation of a pre-Feasibility Study and Feasibility Study, and that the Manager will act in a reasonably diligent manner in its conduct of Operations consistent with the Company’s purpose and goal.
(b) 9.2.2 The Manager shall implement the decisions of the Management Committee, shall make all expenditures necessary to carry out adopted Programs, and shall promptly advise the Management Committee if it lacks sufficient funds to carry out its responsibilities under this Agreement.
(c) 9.2.3 The Manager shallshall use reasonable efforts to: (i1) purchase or otherwise acquire all material, supplies, equipment, water, utility and transportation services required for Operations, such purchases and acquisitions to be made to the extent reasonably possible on the best terms available, taking into account all of the circumstances; (ii2) obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions; and (iii3) keep the Assets free and clear of all liens and encumbrancesEncumbrances, except for any such Encumbrances listed in Section 1.1 of Exhibit A and those existing at the time of, or created concurrent with, the acquisition of such Assets, or mechanic’s or materialmen’s liens (which shall be contested, released or discharged in a diligent manner, matter) or liens and encumbrances Encumbrances specifically approved by the Management Committee.
(d) 9.2.4 The Manager shall conduct such title examinations of the Properties and cure such title defects pertaining to the Properties as may be advisable in the its reasonable judgment of the Managerjudgment.
(e) 9.2.5 The Manager shall: (i1) make or arrange for all payments required by leases, licenses, permits, contracts and other agreements related to the Assets; (ii2) pay all taxes, assessments and like charges on Operations and Assets except taxes determined or measured by a ParticipantMember’s sales revenue or net income. If income and taxes, including production taxes, attributable to a Member’s share of Products, and shall otherwise promptly pay and discharge expenses incurred in Operations; provided, however, that if authorized by the Management Committee, the Manager shall have the right to contest (in the courts or otherwise, ) the validity or amount of any taxes, assessments or charges if the Manager deems them to be unlawful, unjust, unequal or excessive, or to undertake such other steps or proceedings as the Manager may deem reasonably necessary to secure a cancellation, reduction, readjustment or equalization thereof before the Manager shall be required to pay them, but in no event shall the Manager permit or allow title to the Assets to be lost as the result of the nonpayment of any taxes, assessments or like charges; and (iii3) shall do all other acts reasonably necessary to maintain the Assets.
(f) 9.2.6 The Manager shall: (i1) apply for all necessary permits, licenses and approvals; (ii2) comply with applicable federal, state and local laws and regulationsall Laws; (iii3) notify promptly the Management Committee of any allegations of substantial violation thereof; and (iv4) prepare and file all reports or notices required for or as a result of Operations. The Manager shall not be in breach of this provision if a violation has occurred in spite of the Manager’s good faith efforts to complycomply consistent with its standard of care under Section 9.3. In the event of any such violation, and the Manager has shall timely cured cure or disposed dispose of such violation on behalf of both Members through performance, or payment of fines and penalties, or both, and the cost thereof shall be charged to the Business Account.
(g) 9.2.7 The Manager shall prosecute and defend, but shall not initiate without consent of the Management Committee, all litigation or administrative proceedings arising out of Operations. The non-managing Participant Member shall have the right to participate, at its own expense, in such litigation or administrative proceedings. The non-managing Participant Member shall approve in advance any settlement involving payments, commitments or obligations obliga-tions in excess of Fifty Thousand Dollars ($50,000 50,000.00) in cash or value.
(h) 9.2.8 The Manager shall provide obtain insurance for the benefit of the Participants Company as provided in Exhibit E.F or as may otherwise be determined from time to time by the Management Committee.
(i) 9.2.9 The Manager may dispose of Assets, whether by abandonment, surrender surrender, or Transfer in the ordinary course of business, except that Properties may be abandoned or surrendered only as provided in Article XIVSection 12.2. However, without Without prior authorization from the Management Committee, however, the Manager shall not: (i1) dispose of Assets in any one transaction (or in any series of related transactions) having a value in excess of Fifty Thousand Dollars ($50,00050,000.00); (ii2) enter into any sales contracts or commitments for Product, except as permitted in Article XISection 5.10; (iii3) begin a liquidation of the VentureCompany; or (iv4) dispose of all or a substantial part of the Assets necessary to achieve the purposes of the VentureCompany.
(j) 9.2.10 The Manager shall have the right to carry out its responsibilities hereunder through agents, Affiliates or independent contractors.
(k) 9.2.11 The Manager shall perform or cause to be performed during the term of this Agreement all assessment and other work work, and shall pay all rentals fees and assessments Governmental Fees, required by law Law in order to maintain the Properties unpatented mining claims, mill sites and tunnel sites included within the State LeaseProperties. The Manager shall have the right to perform the assessment work required hereunder pursuant to a common plan of exploration and continued actual occupancy of such claims and sites shall not be required. The Manager shall not be liable on account of any determination by any court or governmental agency that the work performed by the Manager does not constitute the required annual assessment work or occupancy for the purposes of preserving or maintaining ownership of the claims, provided that the work done is pursuant to an adopted Program and Budget and is performed in accordance with the adopted Program and BudgetManager’s standard of care under Section 9.3. The Manager shall timely record with the appropriate county and file with the appropriate United States agencyagency any required affidavits, affidavits notices of intent to hold and other documents in proper form attesting to the payment of Governmental Fees, the performance of assessment work or payment of the required fees or assessments, or notices of intent to hold the claims and sites, in proper formeach case in sufficient detail to reflect compliance with the requirements applicable to each claim and site. The Manager shall not be liable on account of any determination by any court or governmental agency that any such document submitted by the Manager does not comply with applicable requirements, provided that such document is prepared and allocating therein, to recorded or for filed in accordance with the benefit Manager’s standard of each claim, at least the minimum amount required by law to maintain such claim or sitecare under Section 9.3.
(l) 9.2.12 If authorized by the Management Committee, the Manager may: (i1) locate, amend or relocate any unpatented mining claim or mill site or tunnel site, (ii2) locate any fractions resulting from such amendment or relocation, (iii3) apply for patents or mining leases or other forms of mineral tenure for any such unpatented claims or sites, (iv4) abandon any unpatented mining claims for the purpose of locating mill sites or otherwise acquiring from the United States rights to the ground covered thereby, (v5) abandon any unpatented mill sites for the purpose of locating mining claims or otherwise acquiring from the United States rights to the ground covered thereby, (vi6) exchange with or convey to the United States any of the Properties for the purpose of acquiring rights to the ground covered thereby or other adjacent ground, and (vii7) convert any unpatented claims or mill sites into one or more leases or other forms of mineral tenure pursuant to any law Law hereafter enacted.
(m) 9.2.13 The Manager shall keep and maintain all required accounting and financial records pursuant to the Accounting Procedure procedures described in Exhibit B and in accordance with customary cost accounting practices in the mining industry, and shall ensure appropriate separation of accounts unless otherwise agreed by the Members.
9.2.14 The Manager shall keep and maintain all required records, make elections, and prepare and file all federal and state tax returns or other required tax forms, and perform the other duties described in Exhibit C.
9.2.15 The Manager shall maintain Equity Accounts for each Member. Each Member=s Equity Account shall be credited with the value of such Member’s contributions under Sections 3.1.1 and 3.1.2 and shall be credited with any additional amounts contributed by such Member to the Company. Each Member’s Equity Account shall be charged with the cash and the fair market value of property distributed to such Member (nnet of liabilities assumed by such Member and liabilities to which such distributed property is subject). Contributions and distributions shall include all cash contributions or distributions plus the agreed value (expressed in dollars) The of all in-kind contributions or distributions. Solely for purposes of determining the Equity Account balances of the Members, the Manager shall reasonably estimate the fair market value of all Products distributed to the Members, and such estimated value shall be used regardless of the actual amount received by each Member upon disposition of such Products.
9.2.16 Subject to Section 3.1.3, the Manager shall keep the Management Committee advised of all Operations by submitting in writing to the members of the Management Committee: (i1) monthly progress reports which that include statements of expenditures and comparisons of such expenditures to the adopted Budget; (ii2) periodic summaries of data acquired; (iii3) copies of reports concerning Operations; (iv4) a detailed final report within 60 thirty (30) days after completion of each Program and Budget, which shall include comparisons between actual and budgeted expenditures and comparisons between the objectives and results of Programs; and (v5) such other reports as any member of the Management Committee may reasonably request. At Subject to Section 13, at all reasonable times the Manager shall provide the Management Committee Committee, or the other representative of any Participant, a Member upon the request of any such Member’s member of the Management Committee, access to, and the right to inspect and, at such Member’s cost and expense, copy the Existing Data and all maps, drill logslogs and other drilling data, core testscore, pulps, reports, surveys, assays, analyses, production reports, operations, technical, accounting and financial records, and other information acquired in OperationsBusiness Information, to the extent preserved or kept by the Manager. In addition, the Manager shall allow the non-managing ParticipantMember, at the latter’s sole risk risk, cost and expense, and subject to reasonable safety regulations, to inspect the Assets and Operations at all reasonable times, so long as the inspecting Participant non-managing Member does not unreasonably interfere with Operations.
(o) 9.2.17 The Manager shall prepare an Environmental Compliance plan for all Operations consistent with the requirements of any applicable Laws or contractual obligations and shall include in each Program and Budget sufficient funding to implement the Environmental Compliance plan and to satisfy the financial assurance requirements of any applicable Law or contractual obligation pertaining to Environmental Compliance. To the extent practical, the Environmental Compliance plan shall incorporate concurrent reclamation of Properties disturbed by Operations.
9.2.18 The Manager shall undertake to perform Continuing Obligations when and as economic and appropriate, whether before or after termination of the Company. The Manager shall have the right to delegate performance of Continuing Obligations to persons having demonstrated skill and experience in relevant disciplines. As part of each Program and Budget submittal, the Manager shall specify in such Program and Budget the measures to be taken for performance of Continuing Obligations and the cost of such measures. The Manager shall keep the other Member reasonably informed about the Manager’s efforts to discharge Continuing Obligations. Authorized representatives of each Member shall have the right from time to time to enter the Properties to inspect work directed toward satisfaction of Continuing Obligations and audit books, records, and related accounts.
9.2.19 The funds that are to be deposited into the Environmental Compliance Fund shall be maintained by the Manager in a separate, interest bearing cash management account, which may include, but is not limited to, money market investments and money market funds, and/or in longer term investments if approved by the Management Committee. Such funds shall be used solely for Environmental Compliance and Continuing Obligations, including the committing of such funds, interests in property, insurance or bond policies, or other security to satisfy Laws regarding financial assurance for the reclamation or restoration of the Properties, and for other Environmental Compliance requirements.
9.2.20 If Ownership Interests are adjusted in accordance with this Agreement the Manager shall modify the Schedule of Members to properly reflect such adjustment and shall propose from time to time one or more methods for fairly allocating costs for Continuing Obligations.
9.2.21 The Manager shall undertake all other activities reasonably necessary to fulfill the foregoing, and to implement the policies, objectives, procedures, methods and actions determined by the Management Committee pursuant to Section 8.1.
(p) The Manager shall not be in default of any duty under this Section 8.2 if its failure to perform results from the failure of the non-managing Participant to perform acts or to contribute amounts required of it by this Agreement.
Appears in 1 contract
