AMENDED AND RESTATED MATERIAL SUPPLY AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED MATERIAL SUPPLY AGREEMENT
THIS AMENDED AND RESTATED MATERIAL SUPPLY AGREEMENT (hereinafter the “Amended Material Supply Agreement”) is made and entered into as of this 3rd day of March, 2014, by and between Can-Cal Resources, Ltd., a Nevada corporation, as supplier (hereinafter referred to as “Can-Cal”) and Candeo Lava Products Inc., an Alberta corporation, as customer, (hereinafter referred to as “Candeo”) and amends, replaces and supersedes that Material Supply Agreement made and entered into as of the 9th day of April, 2013 between Can-Cal and Candeo (the “Original Material Supply Agreement”).
WHEREAS, Candeo desires to enter this Amended Material Supply Agreement for the supply of Material from Can-Cal;
1. REMOVAL OF MATERIAL. Can-Cal does hereby agree to allow Candeo to remove Material during the Term and upon the covenants and conditions set forth in this Material Supply Agreement for the purposes of subsequent sale by Candeo for use in earth mineralization, both organic and inorganic, for rural and urban distribution in various industry sectors, including but not limited to construction, gardening, lawns and fields, agriculture and other uses to be determined by Candeo in accordance with market demand. Notwithstanding the foregoing, Candeo agrees that it shall not attempt to extract or cause to have extracted precious metals from Material or otherwise receive compensation, directly or indirectly, from the sale or use of Material for precious metal purposes. The parties agree that the anticipated removal of Material will not commence until the second year of the initial Term. Candeo hereby agrees that it will provide three (3) months prior written notice to Can-Cal of the commencement of the operations on the Property, which notice will state the anticipated amount of Material to be removed, the period of time during which the removal will occur and the means that will be used to effect such removal.
2. DEFINITIONS. The following words and terms wherever used in this Material Supply Agreement are defined as follows:
“Environmental Laws” means all federal, state, county, territorial, regional, municipal and local laws, statutes, ordinances, codes, rules and regulations related to protection of the environment or the handling, use, generation, treatment, storage, transportation or disposal of Hazardous Materials.
“Hazardous Materials” means any hazardous or toxic substance, material or waste that is regulated by any federal, state, county, territorial, regional, municipal or local governmental authority under any Environmental Law now or hereafter effective, including, without limitation, any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, or any constituent of any such substance or waste.
“Material” means the volcanic lava or cinders on the Property, but specifically excludes the Ore;
“Ore” means the gravel, rock, sediments, and other materials currently stockpiled on the Property, at the location as shown on the mining map attached hereto;
“Net Sales Margins” means the actual gross sale revenue of Material made by Candeo or its assignee or assignees to third party purchasers, less (a) all reasonable direct costs, fees and expenses of such sales, (b) all sales, use, and other similar taxes paid or payable in connection with the particular transaction involved and not reimbursed or reimbursable by the purchaser, and (c) amounts credited or refunded to the purchaser for returned or defective goods.
“Term” shall mean the initial term of this Material Supply Agreement and any extension and renewal thereof.
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(a) The exclusive right and privilege during the Term to remove an initial amount of up to 1,000,000 tons (the “Initial Amount”) of Material from the Property, in such manner as Candeo, in its sole discretion but in compliance with all Environmental Laws, deems advisable;
(b) Provided that Candeo has removed the Initial Amount during the Primary Term, Candeo shall have the exclusive right and privilege during the Term to remove additional incremental amounts (the “Additional Amounts”) of 1,000,000 tons each of Material from the Property, on the basis that once Candeo has removed the first Additional Amount of Material from the Property, it shall automatically have the right to remove a second Additional Amount of Material from the Property, and so on, such that it shall have the continuing right to remove further Additional Amounts as long as it removes its then current Additional Amount of Material from the property, all in such manner as Candeo, in its sole discretion but in compliance with all Environmental Laws, deems advisable;
(c) The non-exclusive right to use and affect the surface of the Property, as may be necessary or incidental to the exercise of the rights herein granted;
(d) The non-exclusive right, to construct, assemble, erect, use, maintain, improve, repair, replace, rebuild, remove and relocate in or upon the Property such machinery, equipment, and such other improvements and services, including roads, inclines, drifts, entry ways, or conveyors, as may be necessary or incidental to the removal of Material and the subsequent sale of Material;
(e) The non-exclusive right to use, subject to applicable laws, rules and regulations and in compliance with all Environmental Laws, any surface or ground water situated within or upon the Property in connection with Candeo's operations hereunder; provided, however, that Candeo shall not take water from Can-Cal's existing ▇▇▇▇▇, tanks or surface reservoirs without the written consent of Can-Cal, which consent shall not be unreasonably withheld;
(f) All other rights and privileges which are necessary to Candeo in the exercise of any or all of the rights hereinabove set forth which are not in conflict with Can-Cal’s rights under this Material Supply Agreement or with applicable state, federal or local laws, ordinances and regulations including, without limitation, all Environmental Laws; and
(g) The exclusive right of Candeo to require Can-Cal to mine any or all of the Material that is the subject hereof for and on behalf of Candeo (and as Candeo shall direct from time to time) and to remove and deliver such mined Material to Candeo F.O.B. at a point on the exterior boundary of the Property to be determined by Candeo; provided that Candeo shall pay to Can-Cal all of Can-Cal’s reasonable costs and expenses in conducting such mining and removal operations plus a fee of 15% of such reasonable costs and expenses; and further provided that in conducting any such mining and removal operations on behalf of Candeo, Can-Cal shall observe all applicable state, federal or local laws, ordinances and regulations including, without limitation, all Environmental Laws.
(i) fifteen US dollars (US$15.00) per ton; and
(ii) the Net Sales Margins per ton removed from the Property by Candeo (or its assign or assigns) realized as follows:
| (a) | during the first year of mining, 35% of the Net Sales Margins; and |
| (b) | thereafter, 50% of the Net Sales Margins. |
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Candeo (or its assign or assigns) shall pay such Production Payment to Can-Cal from time to time no later than 120 days after the subject Material has been removed from the Property.
8. BOOKS AND RECORDS: INSPECTION
(a) Candeo shall keep books and records necessary to document the quantity of Material removed from the Property and the Net Sales Margins.
(b) Candeo shall install and maintain a bucket scale or truck scale to weigh all Material removed immediately prior to its removal from the Property. Candeo shall weigh all Material removed from the Property by use of such bucket scale or truck scale to determine and record the weight of all Material that has been removed from the Property. Scale tickets or other automatic means shall be used to record the weight of all such Material.
(c) For the purpose of permitting verification by Can-Cal of any amounts due hereunder, Candeo will keep and preserve supporting documentation and records which shall disclose in reasonable detail all information required to permit Can-Cal to verify the Production Payment calculations under this Amended Material Supply Agreement. Upon reasonable advance notice to Candeo, Can-Cal or its agents shall have the right, during Candeo’s regular business hours, to examine or audit such supporting documentation and records. Candeo shall retain such supporting documentation and records for a period of one (1) year following the termination or expiration of this Amended Material Supply Agreement.
(d) On or before the 25th day of the month following commencement of operations by Candeo and for each full month of this Amended Material Supply Agreement, Candeo shall forward to Can-Cal, at the address herein given or at such other place or places as Can-Cal shall from time to time designate in writing, monthly reports indicating thereof the quantity of Material removed from the Property during the previous month, the Net Sales Margins, as well as a computation of the Production Payment due thereon. Payment of the Production Payment shall be made in accordance with Paragraph 6 hereof.
(e) In the event that Can-Cal and Candeo cannot agree as to the accuracy of the calculation of the Production Payment, then either party may refer the matter to arbitration under Paragraph 19 hereof.
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(a) Candeo shall pay prior to delinquency all personal property taxes applicable to Candeo’s personal property, fixtures, furnishing and equipment located on the Property, as well as all production or severance taxes computed or based upon removal by Candeo of Material from the Property. If Candeo shall in good faith desire to contest the validity or amount of any tax, assessment, levy, or other governmental charge herein agreed to be paid by Candeo, Candeo shall be permitted to do so, and to defer payment of such tax or charge, until final determination of the contest. If the outcome of such contest is unfavorable to Candeo, Candeo shall immediately pay all taxes, charges, interest and penalties determined to be due.
(b) Candeo agrees to pay all expenses for heat, electricity, lighting, telephone, waste management fees and charges for water assessed against the Property, arising from Candeo’s activities thereon, at such time as said charges become due.
(a) Candeo shall use its good faith efforts to cause all permits associated with its operations on the Property to be issued in the names of Candeo and Can-Cal provided, however, that the parties agree and acknowledge that such permit obligations are only applicable for activities associated with the removal and sale of Material. Candeo shall pay for any fees or costs associated with obtaining and maintaining such permits.
(b) In the event that Candeo's permits are terminated or not renewed as a result of Can-Cal's actions, Candeo may, in its sole discretion, either (i) terminate this Amended Material Supply Agreement with no further obligations hereunder; or (ii) suspend the Term of this Amended Material Supply Agreement until Candeo reinstates such permits, up to a maximum period of two (2) years. In the event Candeo's permits are not reinstated prior to the expiration of such two (2) year period, or in the event Candeo notifies Can-Cal that it has abandoned its efforts to reinstate such permits, this Amended Material Supply Agreement shall terminate, and Candeo shall have no further obligations hereunder. In the event that Candeo reinstates such permits within such two (2) year period, the applicable Term of this Amended Material Supply Agreement shall be extended for the period of suspension.
(a) The rights of Candeo granted hereby shall be subject to Can-Cal's reserved concurrent right to use the Property for the purpose of exploration, development and mining and the use of any surface or underground water or water rights occurring on or appurtenant to the Property; so long as Can-Cal's use does not interfere with the rights granted Candeo herein. Candeo shall be entitled to reasonable compensation for any damages caused to Candeo by Can-Cal's use of the Property.
(b) Can-Cal shall not conduct its operations in any way which would adversely affect Candeo's use of the Property in accordance with this Agreement.
(c) Can-Cal agrees that for so long as this Amended Material Supply Agreement is in effect, it will not use or sell any Material from the Property in any manner or for any use by any party which is in competition with Candeo's business operations or in competition with the type of products that Candeo is selling, or planning to sell, into the market place.
Each party shall, at its sole cost and expense, commencing no later than the date upon which Candeo commences operations on the Property, and continuing throughout the duration of this Amended Material Supply Agreement, obtain, keep, and maintain in full force and effect comprehensive general public liability insurance against claims for personal injury, bodily injury, death, or property damage occurring in, upon, or about the Property in an amount of not less than Five Million United States Dollars (US$5,000,000.00) , or such other amount as the parties may agree, in respect to injury or death of one person and to the limit of not less than Five Million United States Dollars (US$5,000,000.00), or such other amount as the parties may agree, in respect to any one accident, and to the limit of not less than Five Million United States Dollars (US$5,000,000.00) , or such other amount as the parties may agree, in respect to property damage with respect to the use of the Property. Each party shall deliver to the other party certificates of insurance, which shall declare that the respective insurer may not cancel the same, in whole or in part, without giving each party written notice of its intention to do so at least thirty (30) days' prior written notice. In addition, Candeo shall ensure that any contractors or sub-contractors engaged in respect of operations on the Property shall have insurance coverage substantially similar to that required of Candeo, which to the extent that all operations have been contracted by Candeo, can stand in place of the coverage required to be obtained by Candeo.
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(a) Candeo shall pay, defend and indemnify and hold Can-Cal and its officers, directors, shareholders, agents and employees (“Can-Cal Indemnified Parties,” individually a “Can-Cal Indemnified Party”) harmless from and against any and all claims of liability for injury or damage to any person or property arising from the use of the Property by Candeo, or from the conduct of Candeo's business, or from any activity, work or thing done, permitted or suffered by Candeo or Candeo's invitees, licensees, agents, contractors or employees in or about the Property or elsewhere. Candeo shall further pay, defend, indemnify and hold the Can-Cal Indemnified Parties harmless from and against any and all claims arising from any breach of any representation, warranty or covenant hereunder, or default in the performance of any obligation on Candeo's part to be performed under this Amended Material Supply Agreement, or arising from any negligence of Candeo or Candeo's invitees, licensees, agents, contractors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or action or proceeding brought thereon. In the event any action or proceeding is brought against any Can-Cal Indemnified Party by reason of any such claim, Candeo, upon notice from such Can-Cal Indemnified Party, shall defend the same at Candeo's expense by counsel reasonably satisfactory to such Can-Cal Indemnified Party.
(b) Can-Cal shall pay, defend and indemnify and hold Candeo and its officers, directors, shareholders, agents and employees (“Candeo Indemnified Parties,” individually a “Candeo Indemnified Party”) harmless from and against any and all claims of liability for injury or damage to any person or property arising from the use of the Property by Can-Cal, or from the conduct of Can-Cal's business, or from any activity, work or thing done, permitted or suffered by Can-Cal or Can-Cal's invitees, licensees, agents, contractors or employees in or about the Property or elsewhere. Can-Cal shall further pay, defend, indemnify and hold Candeo Indemnified Parties harmless from and against any and all claims arising from any breach of any representation, warranty or covenant hereunder or default in the performance of any obligation on Can-Cal's part to be performed under this Amended Material Supply Agreement, or arising from any negligence of Can-Cal or Can-Cal's invitees, licensees, agents, contractors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim or action or proceeding brought thereon. In the event any action or proceeding is brought against any Candeo Indemnified Party by reason of any such claim, Can-Cal, upon notice from such Candeo Indemnified Party, shall defend the same at Can-Cal's expense by counsel reasonably satisfactory to such Candeo indemnified Party.
16. CANDEO’S RIGHT TO TERMINATE. Candeo may terminate this Amended Material Supply Agreement:
(i) With the prior written consent of Can-Cal;
(ii) If any court of competent jurisdiction or any governmental, administrative or regulatory authority, agency or body shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Amended Material Supply Agreement;
(iii) In the event that Can-Cal files a petition in bankruptcy or be adjudicated a bankrupt or insolvent, or make an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or discontinue or dissolve its business, or if a receiver is appointed for Can-Cal’s business and such receiver is not discharged within thirty (30) days; or
(iv) If Can-Cal breaches any of its representations or warranties hereof or fails to perform in any material respect any of its covenants, agreements or obligations under this Amended Material Supply Agreement, without curing such failure with ten (10) days written notice thereof (or moving to cure such failure is the event of such failure cannot be feasibly cured within such period).
17. CAN-CAL’S RIGHT TO TERMINATE. Can-Cal may terminate this Amended Material Supply Agreement:
(i) With the written consent of Candeo;
(ii) If Candeo at any time, other than during the first three years of the initial Term, does not remove any Material from the Property for a period of twelve (12) consecutive months;
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(iii) If any court of competent jurisdiction or any governmental, administrative or regulatory authority, agency or body shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Amended Material Supply Agreement;
(iv) If Candeo breaches any of its representations or warranties hereof or fails to perform in any material respect any of its covenants, agreements or obligations under this Amended Material Supply Agreement, without curing such failure with thirty (30) days written notice thereof (or moving to cure such failure is the event of such failure cannot be feasibly cured within such period);
(vi) In the event that Candeo fails to obtain or maintain sufficient property liability insurance, which policies shall be made available to Can-Cal upon Candeo’s commencement of operations on the Property, without curing such failure with thirty (30) days written notice thereof; provided, however, that during such notice period Candeo shall cease any and all activity on the Property until such cure (or termination);
(vii) In the event that Candeo files a petition in bankruptcy or be adjudicated a bankrupt or insolvent, or make an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or discontinue or dissolve its business, or if a receiver is appointed for Candeo’s business and such receiver is not discharged within thirty (30) days.
(a) In the event that all or substantially all of the Property shall be taken by eminent domain for any public or quasi-public purpose such that Candeo's operations are no longer economically feasible, then this Amended Material Supply Agreement shall expire on the date when title to the Property vests in the appropriate authority or on the date possession is required to be surrendered, whichever is earlier. The compensation or damages for this taking shall be apportioned by and between the Can-Cal and Candeo taking into consideration the residual value of the land and surface rights to Can-Cal and the remaining present value of the existing term of this Amended Material Supply Agreement to Candeo.
(b) A voluntary sale or conveyance under threat of expropriation or condemnation but in lieu thereof, shall be deemed an appropriation or taking under the power of eminent domain.
| If to Can-Cal: |
Can-Cal Resources Ltd. 1712 – ▇▇ ▇▇. ▇. ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| If to Candeo: |
Candeo Lava Products Inc. ▇▇▇▇ - ▇▇ ▇▇. ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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24. GOVERNING LAW. This Amended Material Supply Agreement shall be governed by the laws of the State of Nevada.
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Executed effective as of the date first above written.
CANDEO LAVA PRODUCTS INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
CAN-CAL RESOURCES, LTD.
Per: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman
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The Pisgah Mine Project is located in San Bernardino County, 72 kilometers (45 miles) east of the city of Barstow, California, and 307 kilometers (192 miles) south-southeast of Las Vegas, Nevada, United States. Barstow lies near the southwest border of California, east of the junction of ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇. The Project is centered at Latitude 34o 44' 47” North, Longitude 116o 22' 29” West, or UTM (metric) co-ordinates 55700 E/384500 N in ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇ lies within Section 32, Township 8 North, Range 6 East from San Bernardino Meridian. It has an area of 48.4 hectares (120.2 acres). In 1997 Can-Cal Resources Ltd., a Las Vegas, NV based exploration company, gained 100% ownership of the claim which covers the Pisgah property.
Access to the Pisgah Project is by the paved ▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ from the junction of Interstate 15 and Interstate 40 just east of Barstow, California travel east along Interstate 40 for 52 kilometers (32.5 miles). Take the ▇▇▇▇▇▇ Rd. Exit and turn right onto ▇▇▇▇▇▇ Rd. From here turn left onto Historic Route 66 for 7.4 kilometers (4.6 miles), and then turn right (south) onto the Pisgah Crater road. Follow this road for 3.2 kilometers (2.0 miles) to the Pisgah Crater workings.
The Pisgah Mining Property lies near the south end of the Mojave Desert. The region forms the southwestern extent of Precambrian continental North America and rests at the present plate edge formed by the San Andreas transform fault. An oceanic plate has bordered the region since late Precambrian time. Starting in late Miocene time the Mojave Desert area was dissected by NW-trending right-lateral strike-slip faults with local areas of E-trending left-lateral strike-slip faults.
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