EXHIBIT 4.11
made among
TECK COMINCO AMERICAN
INCORPORATED
and
and
WHITE KNIGHT GOLD
(U.S.) INC.
in respect of
the Celt Property,
Nevada
Effective as of
December 1, 2004
This Property Acquisition Agreement
(hereafter “Agreement”) is entered into and effective this 1st day of
December 2004 by and between Teck Cominco American Incorporated, a Washington corporation,
(hereafter “TCAI”) of 00000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000,
White Knight Resources Ltd., a British Columbia corporation, of 922 — 000 Xxxxxxxx
Xx. X., Xxxxxxxxx X.X. Xxxxxx X0X 0X0, and White Knight Gold (U.S.) Inc., a Delaware
corporation of Xxxxx 000, 000 Xxxxxxxx Xxx., Xxxx, Xxxxxx, XXX 00000 (hereafter
collectively referred to as “WKR”).
RECITALS
WHEREAS:
(A)
WKR is engaged in the acquisition and exploration of mineral properties in the
State of Nevada; and
(B)
WKR and TCAI entered into a Financing and Acquisition Agreement with respect to
the Fye Canyon Property dated October 20, 2004 (the “Financing
Agreement”); and
(C)
Under the Financing Agreement WKR provided TCAI the right to enter into an
option agreement to earn a direct ownership interest in the Celt property
located in Nevada; and
(D)
WKR is agreeable to providing to TCAI certain rights to earn a direct ownership
interest in the Celt property located in Nevada as provided for in this
Agreement; and
(E)
TCAI is desirous of exercising its rights to the Celt property under the
Financing Agreement and securing rights to earn a direct ownership interest in
the Celt property located in Eureka County in the State of Nevada, USA and more
particularly described in Schedule “A1” (the “Celt
Property”), all as provided for in this Agreement; and
(F)
Upon and subject to the terms and conditions herein WKR has agreed to grant TCAI
an option to earn an initial 51% interest in the Celt Property; and
(G)
Upon TCAI exercising the option with respect to the Celt Property a joint
venture shall be formed amongst TCAI and WKR; and
(H)
WKR has agreed to grant TCAI an additional option to increase its interest in
the Celt Property after the earlier of $8 million in expenditures by the joint
venture or the delivery of a preliminary feasibility study by the joint venture.
NOW THEREFORE, in
consideration of the premises and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
| 1.1 |
|
Subject
as hereinafter provided, WKR hereby grants TCAI an option (the “Option”)
to earn an initial 51% undivided right, title and interest in and to the Celt Property. |
| 1.2 |
|
As
consideration for the granting of the Option, TCAI shall make the following optional
cash payments, for an aggregate of $750,000, to White Knight Gold (U.S.) Inc.
as follows: |
2
| |
(a) |
|
on
the first anniversary of this Agreement, $50,000; |
| |
(b) |
|
on
or before December 31, 2006, an additional $100,000; |
| |
(c) |
|
on
or before December 31, 2007, an additional $250,000; and |
| |
(d) |
|
on
or before December 31, 2008, an additional $350,000. |
| 1.3 |
|
TCAI
may exercise the Option by incurring the following expenditures (the “Expenditures”) on
the Celt Property: |
| |
(a) |
|
on
or before December 31, 2005, TCAI shall incur a minimum of $500,000 in
Expenditures (note that, subject only to §22.1, this first
amount is a guaranteed Expenditure under this Agreement and the
balance of the Expenditures are optional); |
| |
(b) |
|
on
or before December 31, 2006, TCAI shall incur a minimum of $1,250,000 in
Expenditures in the aggregate; |
| |
(c) |
|
on
or before December 31, 2007, TCAI shall incur a minimum of $2,500,000 in
Expenditures in the aggregate; and |
| |
(d) |
|
on
or before December 31, 2008, TCAI shall incur a minimum of $4,000,000 in
Expenditures in the aggregate. |
| |
The
amounts required to be spent within the periods referred to in §1.3(a) to
§1.3(d) hereof are cumulative, aggregate amounts and accordingly, all Expenditures
incurred in a particular period, including any excess in the amount of Expenditures
required to be incurred to maintain the Option to the end of such period, shall be carried
over and included in the aggregate amount of Expenditures for the subsequent period. |
| 1.4 |
|
If TCAI terminates the Option prior to December 31, 2005 then any shortfall between the
actual Expenditures incurred and the guaranteed Expenditure requirement of $500,000
contemplated in §1.3(a) shall be due and owing in cash within 30 days of the date of
such termination. If that shortfall is not paid by that date it shall accrue interest from
the original date due at a rate of prime, for the period of calculation, as quoted by the
Bank of America, as being charged by it on United States Dollar demand loans to its most
creditworthy domestic commercial customers (the “Prime Rate”) plus 2%,
calculated monthly, until paid. |
| 1.5 |
|
Upon TCAI making the cash payments under §1.2 and expending an aggregate of
$4,000,000 in Expenditures under §1.3, TCAI shall forthwith provide WKR written
notice of such Expenditures (the “Earn-in Notice”), which shall include a
statement in reasonable detail evidencing such Expenditures and a technical report on the
results obtained from such Expenditures. |
| 2. |
|
Deficiencies
in Expenditures |
| 2.1 |
|
If TCAI has not incurred the requisite Expenditures under §1.3 to maintain the Option
in good standing, TCAI may pay to WKR, within 30 days following the Expenditure due date,
the amount of the deficiency and the amount of such deficiency shall thereupon be deemed
to have been Expenditures incurred by TCAI. |
3
| 3.1 |
|
“Expenditures” include: |
| |
(a) |
|
all
costs, expenses, charges and outlays, direct and indirect, funded or
incurred by or on behalf of TCAI on or in respect of the Celt
Property from the date hereof until the formation of the JV, and
thereafter during the term of the JV by the Operator, including,
without limiting generality, all costs, including but not limited to,
costs for prospecting, claim staking, tenure obligations, taxes,
mapping, surveying, permitting, geochemical surveys, geophysical surveys,
sampling, assaying, trenching, drilling, geochemical analyses, road
building, drill site preparation, drafting, report writing,
consultants, all costs related to the preparation of a Feasibility
Study and production program, all costs spent or incurred directly or
indirectly in connection with a production program in order to equip
the Celt Property or a part thereof for commercial production, all
costs, incurred or chargeable, directly or indirectly, by the Operator in
connection with operating the Celt Property as a mine and all other
project expenditures; and |
| |
(b) |
|
a
fee for administrative services and head office services overhead provided by
or on behalf of TCAI during the term of the Option and thereafter by
the Operator and not recovered directly in §3.1(a) above, which
charge shall be as follows: |
| |
|
(i) |
|
10%
of costs incurred prior to a production decision; and |
| |
|
(ii) |
|
3%
of mine construction costs; and |
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|
(iii) |
|
2%
of mine operating costs. |
| |
The
charges set out in §3.1(b) are intended as a reimbursement of the direct costs for
the time incurred by TCAI’s or the Operator’s, as the case may be, head office
management and support functions in respect of work carried out on or in respect of the
Celt Property. It is intended that TCAI or the Operator, as the case may be, shall not
profit nor suffer loss by virtue of providing the services. This charge shall not be
subject to audit but may be reviewed, in good faith, by the parties from time to time, at
the election of either party. |
| 4. |
|
Holding
of the Celt Property |
| 4.1 |
|
Initially WKR shall hold title to the Celt Property in trust for the parties. TCAI may
register this Agreement against title to the Celt Property. TCAI may request that WKR and,
if so requested, WKR shall promptly execute and deliver to TCAI a transfer of the portions
of the Celt Property held by WKR in recordable form. TCAI shall then hold such portions of
the Celt Property in trust for the parties as their interests may appear as provided for
herein. On the formation of any JV under §8, the Operator shall then hold such
portions of the Celt Property in trust for the parties as their interests may appear as
provided for herein. |
| 5. |
|
TCAI’s
Obligations During the Currency of the Option |
| 5.1 |
|
During the currency of the Option TCAI and its employees, agents and contractors shall
have the right and option, as between TCAI and WKR, to: |
| |
(a) |
|
enter
upon the Celt Property; |
4
| |
(b) |
|
have
exclusive and quiet possession thereof; |
| |
(c) |
|
do
such prospecting, exploration, development or other mining work thereon and
thereunder as TCAI in its sole discretion may consider advisable and
including, without limitations, the removal of ores, minerals and
metals from the Celt Property but only for the purpose of testing;
and |
| |
(d) |
|
bring
upon and erect upon the Celt Property such facilities and workings
(whether fixed or moveable) as TCAI may consider advisable. |
| 5.2 |
|
During the currency of the Option TCAI shall, prior to January 31st of each
year beginning in 2006, deliver to WKR a statement showing in reasonable detail the
Expenditures incurred by TCAI during the period, under §1.3, last expired and the
aggregate Expenditures incurred to the end of such period. WKR shall have 45 days from the
time of receipt of such statement to question the accuracy thereof in writing, failing
which such statement shall be deemed to be correct and unimpeachable thereafter. If WKR
questions any statement delivered pursuant to §5.2, WKR shall have 3 months from the
time of delivery of any statement to request that TCAI’s independent external
auditors review the accounts and provide their audit opinion as to the correctness of the
statement, and: |
| |
(a) |
|
the
audit opinion shall be final and determinative of the amount of Expenditures
incurred for the audited period; provided that, if such audit opinion
discloses a deficiency in the amount of Expenditures required to be
incurred to maintain its Option in good standing, TCAI may pay to WKR
the amount of such deficiency within 15 days following receipt of
notice of such audited results, whereupon such amount shall be deemed
to have been Expenditures incurred during the audited period; and |
| |
(b) |
|
the
costs of the audit opinion shall be borne by WKR if TCAI’s statement
understated Expenditures or if it overstated Expenditures by not more
than 3% and shall be borne by TCAI if such statement overstated
Expenditures by greater than 3%. |
| 5.3 |
|
During
the currency of the Option TCAI shall: |
| |
(a) |
|
keep
the Celt Property free and clear of all liens, charges and encumbrances
arising from its operations hereunder (except liens for taxes not yet
due, other inchoate liens and liens contested in good faith by TCAI)
and shall proceed with all diligence to contest and discharge any
such lien that is filed and shall keep the Celt Property in good
standing by the doing and filing of all necessary work and by the
doing of all other acts and things and making all other payments
(said payments being considered Expenditures), which may be necessary
in that regard, in connection with the above and while WKR holds
title to the Celt Property WKR shall provide timely support to TCAI
in the processing of filings and payments on the Celt Property; |
| |
(b) |
|
permit
WKR, or its representatives duly authorized by it in writing, at their
own risk and expense, access to the Celt Property at all reasonable
times and access to all factual records in the possession of TCAI,
its servants and agents in connection with work done on or with
respect to the Celt Property; |
| |
(c) |
|
furnish
WKR with annual reports by January 31st of each year during
the conduct of the work carried out by TCAI on or with respect to the
Celt Property and results obtained, together with regular progress
updates, during periods of active work, on the status of |
5
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exploration,
and immediately or as soon as practicable furnish WKR with any results obtained
which reasonably may be considered to be material to WKR for the
purpose of its meeting applicable public disclosure requirements; |
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(d) |
|
conduct
all work on or with respect to the Celt Property in a manner consistent
with good exploration, engineering and mining practices and in
compliance with all applicable laws, rules, orders and regulations,
and indemnify and save WKR harmless from any and all claims, suits or
actions made or brought against it as a result of work done by or on
behalf of TCAI on or with respect to the Celt Property; |
| |
(e) |
|
provide
insurance in accordance with TCAI’s ongoing business practices.
Such insurance shall include, but shall not be limited to,
comprehensive general liability, with coverage of at least $5 million
and automobile liability insurance, having a limit of not less than
$2 million inclusive for any one occurrence, and insuring against
claims for bodily injury, including death, and for property damage
arising out of the use of TCAI ‘s owned, leased and non-owned
vehicles for the performance of any activities under this Agreement.
TCAI shall pay the full deductible amounts if there is a claim
against any policy of insurance to be provided by TCAI under §5.3(e)
of this Agreement; |
| |
(f) |
|
be
responsible for providing health, accident, and employment insurance and
worker’s compensation coverage for its personnel; and |
| |
(g) |
|
indemnify
and save harmless WKR and its respective directors, officers,
employees and agents from and against any liability whatsoever for
any loss (other than loss of profits), damage, claim, demand, lien,
action or suit, charge or expense, including legal fees, on account
of injury to or the death of any person, damage to or loss of any
property, or infringement or interference of patent, any of which
arises directly or indirectly from TCAI’s negligence or willful
misconduct in relation to or connection with any work done by or for
TCAI on or in respect of the Celt Property save and except that TCAI
shall not be liable for special or consequential damages, or indirect
damages or for acts or omissions of WKR. Any other liabilities will
be shared by the parties in proportion to their interest in the Celt
Property. |
| 5.4 |
|
Prior
to the Participation Date TCAI may recommend the abandonment of up to 20% of the initial
lands comprising the Celt Property in a given year. If WKR, within 30 days of receiving a
notice of abandonment, notifies TCAI that they wish to acquire the claims in question,
then TCAI shall cause a transfer of the claims to be abandoned to WKR, with at least 90
days good standing from the date of TCAI’s notice recommending the abandonment, as
soon as practicable thereafter and such claims shall cease to form part of the Celt
Property or be subject to this Agreement. |
| 6. |
|
TCAI’s
Obligations on Termination |
| 6.1 |
|
TCAI
may terminate the Option at any time prior to the delivery of the Earn-in Notice by
giving notice in writing to that effect to WKR. Subject to §2.1, the Option shall
also terminate if TCAI fails to make the requisite cash payments under, and before the
dates set forth in, §1.2 or fails to make the requisite Expenditures under, and
before the dates set forth in §1.3. On termination, the Option shall be of no
further force or effect and TCAI shall have no interest in the Celt Property. However on
termination of the Option TCAI shall: |
| |
(a) |
|
leave
the Celt Property in good standing with respect to the filing of
assessment work for a period of 90 days from the date of termination,
free and clear of all liens, charges and |
6
| |
encumbrances
arising from operations hereunder (except for taxes not yet due, other inchoate liens and
liens contested in good faith by TCAI during the period of such contest, such liens to be
removed by TCAI if such contest is unsuccessful) and in good standing with respect to all
applicable environmental, safety and other statutory rules, regulations and orders
arising from or applicable to work done on the Celt Property by TCAI; |
| |
(b) |
|
if
the Agreement is terminated after June 1st in any given year TCAI
shall be responsible for making payment with respect to the BLM and
county holding costs for the Property that are due in such calendar
year; |
| |
(c) |
|
upon
a written request made by WKR within 60 days of termination of the Option,
remove from the Celt Property, within 180 days of said request, such
equipment, facilities and workings (whether fixed or moveable)
brought on to, or erected on the Celt Property by TCAI, or arising
from work done on the Celt Property by TCAI; and |
| |
(d) |
|
deliver
to WKR, within 60 days of a written request made by WKR, a comprehensive
report on all work carried out by TCAI on the Celt Property (limited
to factual matters only), together with all drill cores, assay
samples, copies of all maps, drill logs, assay results and other
factual technical data compiled by TCAI with respect to the Celt
Property which were not previously delivered to WKR; and |
| |
(e) |
|
if
TCAI holds title to the Celt Property, promptly execute and deliver to WKR a
transfer of the Celt Property in recordable form. |
| 7. |
|
Interest
to be Earned by TCAI |
| 7.1 |
|
Upon TCAI exercising the Option, by making the cash payments referred to in §1.2
within the time referred to therein, incurring the Expenditures referred to in §1.3
within the time referred to therein or paying any deficiencies as provided for in
§2.1, and delivering to WKR the Earn-in Notice under §1.5, (the
“Participation Date”) TCAI shall have earned a 51% undivided right, title
and interest in and to the Celt Property and WKR shall retain a 49% interest in the Celt
Property and the parties shall form a joint venture under §8. |
| 8. |
|
Formation,
Funding and Dilution of the JV |
| 8.1 |
|
On the Participation Date, a joint venture (“JV”) shall be formed between
TCAI and WKR with the JV interests being 51% TCAI – 49% WKR and the JV shall be
governed by the terms outlined under §8 through §13. |
| 8.2 |
|
On the Participation Date each parties initial deemed Expenditure for the purposes of the
JV shall be based on their pro rata share of total Expenditures (“TE”),
where the pro rata share of TE shall be $4,000,000 in the case of TCAI and the pro rata
share of TE shall be $3,840,000 for WKR. Subsequent to the Participation Date, the
respective interests of the parties shall be determined from time to time as being equal
to the product obtained by: |
| |
(b) |
|
the
respective parties initial deemed Expenditures on the Participation Date
plus the amount of the respective parties’ contributions to
Expenditures subsequent to the Participation Date; |
7
| |
(c) |
|
divided
by the TE plus the amount of all contributions to Expenditures made
subsequent to the Participation Date by all parties. |
| 8.3 |
|
From formation of the JV each party shall be liable for its pro rata share of costs in
accordance with its interest in the JV. |
| 8.4 |
|
If a party elects not to contribute its pro rata share of Expenditures of a work program
or Feasibility Study (and the other party contributes to the shortfall thereby created),
the interests of the parties shall be adjusted according to §8.2 so that each party
holds an interest proportionate to its deemed and actual contributions. If any party
dilutes its interest to less than 10% in the JV, its interest shall then be converted to a
2% net smelter returns royalty (the “NSR”), as further defined in
Schedule “B”. However, if any program is completed with less than 80% of
the budgeted Expenditures having been incurred, the non-contributing party may contribute,
within 30 days, its proportionate share of the actual Expenditures incurred and thereby
maintain its interest. |
| 8.5 |
|
A party shall be entitled to surrender its interest to the other party on notice to it. A
surrender of interest shall not release a party from liabilities accrued prior to the
effective surrender date. Should the other party not consent to receive the interest
offered for surrender under this §8.5 then the JV shall be terminated and the assets
shall be liquidated or sold and the assets or proceeds from the sale thereof distributed
to the parties, net of liabilities hereunder or related thereto, in accordance with their
interests in the JV. Each party shall be responsible for its share of all costs and
expenses related to such termination and liquidation. |
| 8.6 |
|
Upon payment for Expenditures incurred by the Operator under the JV a party contributing
to those Expenditures shall be entitled to all tax benefits with respect thereto. |
| 9. |
|
Management
Committee, Operator and Programs Under the JV |
| 9.1 |
|
Upon the formation of a JV, a management committee (the “Management
Committee”) shall be formed to manage all exploration, development and operating
programs on the Celt Property. The Management Committee shall be comprised of two
representatives from each party having an interest in the Celt Property. Each party’s
representatives shall have a collective vote equal to the interest held by the party they
represent and the Operator shall have the deciding vote in the case of a tie. |
| 9.2 |
|
Except as otherwise specifically provided for herein to the contrary, TCAI shall be the
initial operator (the “Operator”) of all programs on the Celt Property,
and shall remain as Operator so long as TCAI holds at least a 51% interest in the JV. If
TCAI holds less than a 51% interest in the JV WKR shall be entitled to elect to become
Operator. |
| 9.3 |
|
Prior to a production decision the Operator shall propose draft work programs, by February
28th of each year, for Management Committee approval and carry out approved
programs. Any Feasibility Study or Preliminary Feasibility Study shall be prepared under a
separate program and budget. |
| 9.4 |
|
Each party may, within 30 days of Management Committee approval, elect to contribute its
proportionate share of the Expenditures required to conduct each program. If a party (for
the purposes hereof a “Non-Contributor”) elects or is deemed to have
elected not to contribute its cost share of a program, each other party (for the purposes
hereof a “Contributor”) that has elected to contribute its cost share of
the program may give notice in writing to the Operator and |
8
| |
the
Non-Contributor stating that it will contribute, in addition to its own cost share, the
cost share of the Non-Contributor. |
| 9.5 |
|
Except as provided for in §9.7, the Operator will not proceed with any program which
is not fully subscribed. If the parties fully subscribe to a program, the Operator will
proceed with such program. |
| 9.6 |
|
The Operator may invoice for exploration Expenditures incurred or to cash call reasonably
in advance of requirements. If a party has approved a program and does not pay the amount
invoiced for said program within 30 days, the Operator may demand payment. If payment is
not made within 30 days of demand, and subject to §9.7, the other party may elect to
either: |
| |
(a) |
|
advance
all of the unpaid cost share of the defaulting party. If the other party
advances such unpaid share, then they or it will be entitled to
recover the amount so paid, together with interest thereon from the
date so paid at a per annum rate equal to Prime Rate plus 4%. The
party making the advance shall have a lien against the defaulting
party’s interest, which it may enforce by selling the defaulting
party’s interest; or |
| |
(b) |
|
pay
the amount of the defaulted payment and the defaulting party shall be deemed
to have incurred dilution at a rate equal to twice the standard
dilution rate, their interest shall be adjusted and the deemed total
Expenditures of each party shall be adjusted to reflect the interest
held; provided that if a party’s interest is reduced to less
than 10% it shall be deemed to have assigned and conveyed its
interest to the other party and be entitled to a 2% NSR. |
| 9.7 |
|
If in any year there is no approved program and circumstances are such that the Operator
must incur costs in order to maintain tenure to the Celt Property, to satisfy contractual
obligations or obligations imposed by law or to prevent waste or protect life and
property, the Operator shall be entitled to propose a program (the “mandatory
program”) of Expenditures to maintain tenure to the Celt Property, to satisfy
contractual obligations that have been entered into as the result of a previously approved
program and to satisfy obligations imposed by law or to prevent waste or protect life and
property. The mandatory program shall be deemed to be approved and each of the parties
shall be obligated to contribute its proportionate share of Expenditures. If payment is
not made within 30 days of written demand, the other party may elect to advance the amount
of the defaulted payment and the defaulting party shall be deemed to have forfeited its
rights to participate in future programs and its interest shall then be converted to a 2%
NSR. If a written demand is made as aforesaid, it shall contain a reminder to the party
upon which demand is being made that its interests under this Agreement will be converted
to a NSR interest if payment of its proportionate share is not made as demanded. |
| 9.8 |
|
If the Management Committee elects to abandon any claim comprising the Celt Property and
one party (the “Contesting Party”) has voted against such abandonment,
then each party shall be notified of such abandonment at least 60 days prior to the
anniversary of the recording date for the claim to be abandoned. If the Contesting Party,
within 30 days of receiving a notice of abandonment, notifies the Management Committee
that the Contesting Party wishes to acquire the abandoned claim, then the parties shall
cause a transfer of the claim to be abandoned to the Contesting Party as soon as
practicable thereafter without any payment to the other parties, however the Contesting
Party shall be responsible for the costs of the transfer. |
9
| 10. |
|
Additional
TCAI Option |
| 10.1 |
|
Upon
the earlier of the JV completing: |
| |
(a) |
|
$8.0
million in Expenditures from the formation of the JV; or |
| |
(b) |
|
a
Preliminary Feasibility Study on the Celt Property, |
| |
the
Operator shall forthwith provide the parties written notice (the “Additional
Rights Notice”) which shall include a copy of the Expenditures incurred to date
and, if applicable, a copy of the Preliminary Feasibility Study. |
| |
“Preliminary
Feasibility Study” means a comprehensive study, prepared in good faith, of the
viability of exploiting a mineral deposit on the Celt Property that has advanced to a
stage where the mining method, in the case of underground mining, or the pit
configuration, in the case of an open pit, has been established, and includes an effective
method of mineral processing and a financial analysis based on reasonable assumptions of
technical, engineering, operating, economic factors and the evaluation of other relevant
factors which are sufficient for a Qualified Person, as defined in §11.2, acting
reasonably, to determine that all or part of the mineral resource may be classified as a
mineral reserve. |
| 10.2 |
|
TCAI will have a one-time option to elect to earn an additional 9% interest in the JV and
Celt Property (“Additional Interest”) by sole funding and completing a
Feasibility Study within 4 years of the Additional Rights Notice (the “Additional
Earn-in Right”). |
| 10.3 |
|
TCAI may elect to invoke the Additional Earn-in Right with respect to the Celt Property by
delivering written notice to WKR, at any time up to 60 days after the delivery by the
Operator of the Additional Rights Notice. If TCAI fails to deliver such notice within such
applicable 60 day period the Additional Earn-in Right shall terminate. |
| 10.4 |
|
After electing to invoke the Additional Earn-in Right TCAI shall commence a Feasibility
Study and incur a minimum of $500,000 in Expenditures per calendar year until the
completion of such Feasibility Study or earlier termination of the Additional Earn-in
Right under §10.5. If TCAI fails to meet the minimum annual expenditure requirement
then WKR may by providing Notice to TCAI, revoke the Additional Earn-in Right, in which
case, TCAI shall: |
| |
(a) |
|
have
no further obligation to sole fund Expenditures to earn the Additional
Interest; |
| |
(b) |
|
pay
WKR any shortfall between the actual Expenditures incurred and the
requirement of $500,000 per calendar year contemplated above, which
shall be due and owing in cash within 30 days of the date of
termination of the Additional Earn-in Right; and |
| |
(c) |
|
retain
the interest it held prior to invoking the Additional Earn-in Right and
the provisions of the JV shall apply to further funding. |
| |
However,
if TCAI has been diligent in carrying out the Feasibility Study but has been prevented or
delayed from being able to expend funds effectively or efficiently to meet the minimum
annual expenditure requirement by events of force majeure or by technical, engineering,
permitting, local or social issues, or country/global financing issues that are outside
the control of TCAI, acting reasonably, then WKR may not revoke the Additional Interest
Earn-in Right. |
10
| 10.5 |
|
After electing to invoke the Additional Earn-in Right TCAI may at any time notify WKR that
TCAI does not wish to earn the Additional Interest, in which case, TCAI shall have no
further obligation to sole fund Expenditures to earn the Additional Interest, TCAI shall
retain the interest it held prior to invoking the Additional Earn-in Right and the
provisions of the JV shall apply to further funding. |
| 10.6 |
|
If TCAI invokes the Additional Earn-in Right and completes a Feasibility Study within the
time referred to in §10.2, subject to any extensions under §10.8, TCAI shall
have earned the Additional Interest. |
| 10.7 |
|
If TCAI earns the Additional Interest, if a positive production decision is made and if
requested by WKR under §12.1, TCAI shall arrange project financing on behalf of WKR
as provided for in §12.1. |
| 10.8 |
|
If TCAI has initiated but not completed a Feasibility Study within 4 years of the
Additional Rights Notice (subject to force majeure and permitting issues) it may elect to
extend the time limit to complete Feasibility Study (so long as it is in good faith
diligently working to complete such feasibility study) for additional annual periods of 12
months by making cash payments to WKR of one million dollars ($1,000,000) for each 12
month extension. |
| 10.9 |
|
If TCAI invokes the Additional Earn-in Right and does not complete a Feasibility Study
within the time referred to in §10.2, subject to any extensions under §10.8, it
shall lose the right to earn the Additional Interest, it shall retain the interest it held
prior to invoking the Additional Earn-in Right and the provisions of the JV shall apply to
further funding. |
| 11. |
|
Feasibility
Study Defined |
| 11.1 |
|
“Feasibility Study” means a comprehensive report, prepared in good faith
and signed by a Qualified Person, that shows the feasibility of placing the Celt Property
or part thereof into commercial production. The Feasibility Study shall contain all
geological, engineering, operating, economic and other relevant factors which are to be
considered in sufficient detail that, in the opinion of a Qualified Person, the
Feasibility Study could reasonably serve as the basis for a decision by an independent
commercial financial institution to finance the development of the Celt Property for
commercial production. The Feasibility Study shall examine the following matters: ore
reserves; mining methods; metallurgy and processing (including metal recovery);
environment, tailings and waste disposal; capital and operating cost estimates; manpower,
social and community affairs; transportation methods and costs; marketing; project
financing alternatives; a sensitivity analysis; such other matters as are appropriate. The
Feasibility Study shall include at least the following information: |
| |
(a) |
|
a
description of that part of the Celt Property to be covered by the proposed
mine; |
| |
(b) |
|
the
estimated recoverable reserves of minerals and the estimated composition and
content thereof; |
| |
(c) |
|
the
proposed procedure for development, mining and production; |
| |
(d) |
|
results
of ore amenability tests; |
11
| |
(e) |
|
the
nature and extent of the facilities proposed to be acquired which may
include mill facilities, if the size, extent and location of the ore
body makes such mill facilities feasible, in which event the study
shall also include a preliminary design for such mill; |
| |
(f) |
|
the
total costs, including capital budget, which are reasonably required to
purchase, construct and install all structures, machinery and
equipment required for the proposed mine, including a schedule of
timing of such requirements; |
| |
(g) |
|
all
environmental impact studies prepared to date and the anticipated future
costs of reclamation; |
| |
(h) |
|
the
period in which it is proposed the Celt Property shall be brought to
commercial production; |
| |
(i) |
|
such
other data and information as are reasonably necessary to substantiate the
existence of an ore deposit of sufficient size and grade to justify
development of a mine, taking into account all relevant business, tax
and other economic considerations; and |
| |
(j) |
|
working
capital requirements for the initial four months of operation of the
Property as a mine or such longer period as may be reasonably
justified in the circumstances. |
| 11.2 |
|
“Qualified
Person” means an individual who: |
| |
(a) |
|
is
an engineer or geoscientist with at least five years relevant experience and
expertise in mineral exploration, mine development or operation or
mineral project assessment, or any combination of these; |
| |
(b) |
|
has
experience relevant to the subject matter of the mineral project and the
technical report; and |
| |
(c) |
|
is
a member in good standing of a professional association. |
| 12.1 |
|
If TCAI has earned the Additional Interest, upon the Management Committee approving a
production plan under §00.0, XXX will have the option to request that TCAI arrange
financing for WKR’s share of the capital costs required to develop the Celt Property.
WKR may exercise this option by providing notice to TCAI within 45 days of the Management
Committee approving a production plan under §13.2. TCAI shall then commit to either: |
| |
(a) |
|
use
its best efforts to arrange or provide project debt financing for not less
than 60% of the projected capital costs on a limited recourse basis
after technical completion (the “Debt Financing”),
and in connection therewith TCAI shall be entitled to arrange such
Debt Financing on such terms as it deems fit and may commit, on
behalf of WKR, the whole of the Celt Property as security for such
financing. For greater clarity TCAI shall not be obliged to agree to
project loan rates higher than those that would be payable if TCAI
remained liable in respect of such financing after technical
completion and, if Debt Financing is provided by a third party, the
terms of any financing arranged for WKR shall be on terms no less
favorable than those arranged for TCAI; and |
12
| |
|
(i) |
|
if
TCAI elects to arrange the Debt Financing, and if project costs exceed the
amount available for Debt Financing and the parties elect nonetheless to put
the Celt Property into commercial production, then at WKR’s election, TCAI
shall also arrange or provide WKR’s portion of equity financing on a
subordinate loan basis at LIBOR (“LIBOR” means the average London
Inter Bank Offered Rate, for three-month US dollar borrowings, posted by the
British Bankers Association, currently at their website xxx.xxx.xxx.xx but at
such other locations as they may post if this website changes, two business
days prior to the commencement of the calendar quarter.) plus 4% per annum,
calculated monthly. |
| |
|
(ii) |
|
even
if third party project debt financing is available at acceptable rates, TCAI
may nevertheless, itself, elect to use its best efforts to arrange or provide
project financing for 100% of the projected capital costs, through other means,
and shall provide such financing to WKR on a subordinate loan basis at Prime
Rate plus 2% per annum, calculated monthly and in connection therewith TCAI
shall be entitled to arrange such financing on such terms as it deems fit and
may commit, on behalf of WKR, the whole of the Celt Property as security for
such financing; |
| 12.2 |
|
For greater clarity if TCAI is able to raise financing on commercially reasonable terms
and does not arrange the financing, then the Additional Interest earned shall be returned
to WKR. |
| 12.3 |
|
TCAI’s obligation to arrange or provide project financing on WKR’s behalf, is
non-assignable by WKR and WKR’s option to elect to have TCAI provide such project
financing shall terminate if: |
| |
For
clarity in such a case TCAI shall have no obligation to return any of the Additional
Interest earned. |
| 12.4 |
|
If TCAI provides financing for WKR under §12.1, the available free cash flows from
the project, after deduction of operating costs, shall be used, firstly, to retire Debt
Financing (including principal, interest and a charge (to cover TCAI’s direct costs)
attributable to any guarantees provided by TCAI (the “Project Debt”)) and
the balance shall be divided and paid as follows: |
| |
|
(i) |
|
100%
of the free cash flow attributable to TCAI’s interest shall be paid to
TCAI; and |
| |
|
(ii) |
|
until
any subordinated loan provided under under 12.1(a)(i) or 12.1(a)(ii) has been
repaid, 85% of the free cash flow attributable to WKR’s interest shall be
paid to TCAI, to recover the principal and interest of such subordinated loan,
and 15% shall be paid to WKR, and |
| |
|
(iii) |
|
after
any subordinated loan provided under 12.1(a)(i) or 12.1(a)(ii) has been repaid,
100% of the free cash flow attributable to WKR’s interest shall be paid to
WKR, |
13
| 12.5 |
|
In connection with and as security for the financing, WKR shall also provide TCAI with the
right (but not the obligation) to market WKR’s share of production until the payback
of the initial development cost (the Project Debt and the subordinated loan). TCAI may
have the right to charge a competitive marketing fee. |
| 13. |
|
Developing
and Operating the Celt Property as a Mine |
| 13.1 |
|
Any decision to place the Celt Property into production is to be based on a production
plan approved by the Management Committee and based on an approved Feasibility Study with
such modifications, if any, as the Management Committee considers necessary or desirable
and which do not have a material negative impact upon either party. |
| 13.2 |
|
Upon delivery of a production plan on the Celt Property the Management Committee may
approve a production plan (including a cost estimate, with reasonable allowance for
contingencies, which the Management Committee considers necessary to implement the
production plan, together with a schedule of advances which the parties shall be required
to make in respect of Expenditures required to construct and to operate the mine) and the
giving of a notice to each of the parties that a decision has been made to construct a
mine on the Celt Property. |
| 13.3 |
|
Each party may, by notice within 60 days of receipt of an approved production plan, elect
to participate in placing the Celt Property into production by committing to contribute
its proportionate share of the capital Expenditures required to construct and to operate
the mine in proportion to its interest, or some lesser share but at least 10%. If a party
so elects to contribute, it shall be deemed to hold an interest equivalent to that
percentage it elected to contribute. If either TCAI or WKR elects not to contribute, it
shall be deemed to have assigned its interest to the other party, in consideration for a
2% NSR, if that other party elects to increase its contribution thereby. If a party elects
to fund some lesser share than its entire interest percentage, but at least 10%, the
interest that was forgone in the election shall be deemed to have been assigned to the
other party, for no consideration, if that other party elects to increase its contribution
thereby. No party shall be required to provide any completion guarantees, unless
completion guarantees are required by lenders providing project financing, in which case
each party shall provide guarantees acceptable to those lenders. No party may mortgage its
interest in the Celt Property except to a lender that provides project financing and which
agrees that upon any realization of its security it shall observe all of the terms of the
JV and Agreement including right of first offer provisions in the Agreement to the same
extent as if its borrower proposed to sell its interest in the Celt Property. If elections
have not been made to fully fund the capital Expenditures then the production plan shall
be deemed withdrawn. |
| 13.4 |
|
A mine shall be constructed substantially in conformity with the production plan approved
under §13.2, but subject to the right of the Management Committee to approve such
reasonable variations in construction as it may deem advisable. |
| 13.5 |
|
A mine shall be operated on the basis of annual operating plans approved by the Management
Committee; provided that the Management Committee may temporarily suspend or permanently
terminate operations pursuant to a suspension or closure plan approved by it. |
| 13.6 |
|
The Operator may invoice for mine capital Expenditures or operating Expenditures incurred
or to cash call reasonably in advance of requirements. If a party does not pay the amount
invoiced within 30 days, the Operator may demand payment. If payment is not made within 30
days of demand the other party may elect to pay all or a portion of the unpaid cost share
of the defaulting |
14
| |
participant. If
the other party advances such unpaid share, then they or it shall be entitled
to recover the amount so paid, together with interest thereon from the
date so paid at a per annum rate equal to Prime Rate plus 4%. The party
making the advance shall have a lien against the defaulting participants
interest and shall have: |
| |
(a) |
|
the
right to take possession of all or a portion of the defaulting
participant’s interest in the Celt Property and to sell, or
purchase, such interest to recover the amount of such default;
provided that |
| |
(b) |
|
if
the Celt Property is in production the party making the advance may, in the
interim of proceeding under §13.6(a) above, have a prior and a
first right, after retirement of project debt, to receive the share
of mineral products of the defaulting party until such party has
received mineral products in kind of a value equal to (after the
costs of sale and costs of enforcement of the lien) the amount
advanced, together with interest thereon at the rate specified. |
| 13.7 |
|
The definitive option joint venture agreement contemplated under §25.3 shall provide
for suspension of operations during sustained periods of negative operating cash flow and
for resumption of suspended operations. |
| 13.8 |
|
Subject to §12.5, a party contributing to mine costs shall take, in kind, its
proportionate share of any minerals produced and to separately dispose of the same. |
| 14. |
|
Restrictions
On Alienation and Right of First Offer |
| 14.1 |
|
Except in accordance with this Agreement no party shall transfer, sell, dispose or
encumber its interest in the Celt Property. Subject to §14.4, this Agreement may not
be assigned by either party without the written consent of the other party, and any
attempt to assign this Agreement or delegate performance hereunder without such consent
shall be void. |
| 14.2 |
|
No
party shall institute any proceedings to partition the Celt Property. |
| 14.3 |
|
A party (including a party with respect to its NSR) wishing to dispose of any interest or
rights under this Agreement shall, by notice, first offer to sell it to the other party
for a price (payable in work commitments and/or cash and/or marketable securities or a
combination of the three) and on terms which the disposing party establishes. If TCAI
and/or WKR as the case may be does not accept the offer within 30 days the disposing party
shall then have 180 days, from the earlier of notice of rejection of the offer or the end
of the 30 day period, to dispose of its interest to a third party for the same or greater
price and on the same terms or terms no more favourable to the third party, provided that
the incoming party delivers, in a form acceptable to the other parties, a document whereby
it agrees to be bound by, and comply with, the terms of this Agreement. For the purposes
of this §14.3 marketable securities means common stock of a company with a market
capitalization of at least $50,000,000.00 and at least 10 million common shares issued and
outstanding that is traded on a recognized stock exchange. The per share value of the
marketable security used in any transaction hereunder for purposes of determining the
price and market capitalization of the issuer shall be the average of the closing price
for such security on its principal stock exchange for the 60 trading days that end 10 days
before the closing of the transaction. In determining the price of a transaction
hereunder, work commitments shall be valued at the amount required to be expended to meet
the work commitment without discounting or other adjustments. |
15
| 14.4 |
|
The right of first offer shall not apply to transfers to affiliated corporations provided
that the incoming party delivers, in a form acceptable to the other parties, a document
whereby it agrees to be bound by, and comply with, the terms of this Agreement. However if
the transferee ceases to be an affiliate within 2 years of the transfer it shall offer the
interest to the remaining party at fair market value under §14.3. |
| 15. |
|
Area
of Interest and Use of Data |
| 15.1 |
|
Both during the term of the Option and subsequently, there shall be an area of interest
which shall be comprised of those lands included within the outer boundaries of the Celt
Property, Schedule A1 (the “Area of Interest”). If either party stakes or
acquires any surface or water rights or mineral property within the Area of Interest, it
shall offer to have those rights or property included in this Agreement. The other party
shall have 30 days to elect whether to accept that offer and, where appropriate, pay its
share of the costs of acquisition (for clarity if acquired during the term of the Option
costs shall be to TCAI’s account and be considered Expenditures and if acquired
during the JV each party shall be responsible for their cost share of such Expenditures);
failing which election and payment, the acquiring party may retain the rights or property
so acquired free of the terms of this Agreement. |
| 15.2 |
|
Neither party will have any obligation to the other with respect to the acquisition of
properties or interests in minerals, surface or water rights, whether directly or
indirectly, which are outside the Area of Interest. |
| 16. |
|
Representations
and Warranties |
| |
(a) |
|
White
Knight Gold (U.S.) Inc. owns or has the right to earn a 100% interest in
the Celt Property, as set out on Schedule “A1"; |
| |
(b) |
|
the
Celt Property is recorded in the name of White Knight Gold (U.S.) Inc.; |
| |
(c) |
|
White
Knight Gold (U.S.) Inc. has the exclusive right and necessary lawful
authority to explore for minerals on the Celt Property and that
evidence of such right is or shall be recorded against title to the
Celt Property; |
| |
(d) |
|
White
Knight Gold (U.S.) Inc. has the right to enter into this Agreement, to
assign all or a portion of the interest in the Celt Property free of
any consent or preferential purchase right held by other parties, and
to dispose of the Celt Property in accordance with the terms of this
Agreement; |
| |
(e) |
|
there
are no adverse claims or challenges against or to the ownership of or
title to any of the mineral claims and other interests comprising the
Celt Property, nor to its knowledge is there any basis therefor, and
there are no outstanding agreements or options to acquire or purchase
the Celt Property or any portion thereof or any production therefrom
granted by it and no person has any royalty or other interest
whatsoever in the Celt Property or in production therefrom except as
herein defined; |
| |
(f) |
|
WKR’s
transfer of the Celt Property to TCAI will be free of all liens,
mortgages, pledges, encumbrances and charges of every kind and
nature; |
16
| |
(g) |
|
WKR
has not committed and will not commit any act or acts which would reasonably
be expected to encumber or cause any lien to be placed against the
Celt Property, including without limitation, by reason of any
Environmental Law; |
| |
(h) |
|
all
required permits, authorizations, approvals and consents to the transfer and
conveyance of the Celt Property will be obtained by WKR; |
| |
(i) |
|
the
mineral claims and other rights (land, water etc.) that comprise the Celt
Property are presently in good standing and are free and clear of all
liens, charges and encumbrances and subject to the provisions of this
Agreement it shall maintain them in that condition so long as TCAI
has any right to earn an interest therein hereunder; |
| |
(j) |
|
the
Celt Property and its existing and prior uses by WKR comply and have, to its
knowledge, at all times complied with, and WKR is not in violation
of, and have not violated, in connection with the ownership, use,
maintenance or operation of the Celt Property, any applicable federal
or local laws, regulations, rules, orders or approvals relating to
its operations on the Celt Property; |
| |
(k) |
|
without
limiting the generality of §16.1(j), WKR has operated the Celt
Property and has at all times received, handled, used, stored,
treated, shipped and disposed of all Hazardous Materials or Hazardous
Substances in strict compliance with all Environmental Laws and
applicable health or safety laws, regulations, orders or approvals; |
| |
(l) |
|
no
Hazardous Materials or Hazardous Substances have been released into the
environment, or deposited, discharged, placed or disposed of at, on
or near the Celt Property as a result of its operations carried out
on the Celt Property, nor, to the best of its knowledge, have any of
the above occurred nor has the Celt Property been used at any time by
any person as a landfill or waste disposal site; |
| |
(m) |
|
no
notices of any violation or apparent violation of any of the matters referred
to in §16.1(j) through §16.1(l) relating to the Celt
Property or its use have been received by WKR; |
| |
(n) |
|
to
the best of its knowledge, there are no writs, injunctions, orders or
judgments outstanding, no lawsuits, claims, proceedings or
investigations pending or threatened, relating to the use,
maintenance or operation of the Celt Property, whether related to
environmental, archaeological or similar matters, or otherwise, nor,
to the knowledge of WKR, is there any basis for such lawsuits,
claims, proceedings or investigations being instituted or filed; |
| |
(o) |
|
to
the best of its knowledge, there are no active treaty negotiations in respect
of native land claims affecting the Celt Property, nor is WKR aware
of pending native land claims that may affect the Celt Property; and |
| |
(p) |
|
the
Celt Property does not comprise all or substantially all of the assets of
White Knight Resources Ltd or White Knight Gold (U.S.) Inc. |
| 16.2 |
|
Each
party represents and warrants to the other party that: |
17
| |
(a) |
|
it
is a corporation, duly incorporated, organized, validly existing, and in good
standing under the laws of its incorporating jurisdiction and has the
full corporate power and authority to carry on its business and to
enter this Agreement and any agreement or instrument referred to or
contemplated by this Agreement; |
| |
(b) |
|
the
execution, delivery and performance of this Agreement and the other
instruments to be executed and delivered by it have been authorized
by all necessary corporate action of it, including approval by its
board of directors and shareholders if required, and do not and will
not: (a) contravene it’s charter or bylaws or other constating
documents; (b) violate any material provision of law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to it; or (c)
result in a material breach of or constitute a material default under
any agreement to which it is a party which would have a material
adverse effect upon the right, power and authority of it to perform
its obligations hereunder; |
| |
(c) |
|
no
civil or criminal actions, proceedings or investigations exist or have been
or are threatened by or before any court, governmental agency,
regulatory authority, or arbitrator with respect to or affecting it
which would restrain or prohibit the execution, delivery or
performance of this Agreement; |
| |
(d) |
|
no
agent, broker, investment banker, person or firm acting on behalf or under
the authority of it is or will be entitled to any broker’s or
finder’s fee or any other similar commission or fee in
connection with the execution, delivery, or performance of this
Agreement; and |
| |
(e) |
|
neither
the execution and delivery of this Agreement nor any of the agreements
referred to herein or contemplated hereby, nor the consummation of
the transactions hereby contemplated conflict with, result in the
breach of or accelerate the performance required by any agreement to
which it is a party. |
| 16.3 |
|
The warranties herein shall survive the execution of this Agreement and shall be
unaffected by any examinations undertaken by TCAI or its counsel. |
| 17.1 |
|
Until
the expiry of the Option, WKR covenants, subject toss.5.3(a): |
| |
(a) |
|
to
pay any costs incurred in defending its existing title to the Celt Property;
and |
| |
(b) |
|
not
to dispose of any part or portion of the Celt Property except in accord with
the terms of this Agreement or enter into any agreement or do
anything that would create a lien or encumbrance on the Celt Property
except as permitted herein; not to enter into any contract or
agreement with respect to the Celt Property which would in any away
negatively impact TCAI’s rights to exercise its Option as
provided for herein; and that it will comply with all governmental
requirements and laws respecting WKR’s use and operation of the
Celt Property, including the Environmental Laws. |
| 17.2 |
|
TCAI
shall perform its work on the Celt Property in conformity with all environmental and
other applicable requirements. |
18
| 18.1 |
|
White Knight Resources Ltd and White Knight Gold (U.S.) Inc. agree to jointly and
severally indemnify, hold harmless and release TCAI and its officers, directors,
employees, shareholders, authorized agents, representatives, parent and affiliated
companies from and against any and all claims, causes of action, liabilities, obligations,
losses, damages, penalties, fines, settlements, costs or expenses of any nature
whatsoever, including without limitation reasonable attorneys’ fees and disbursements
arising from: |
| |
(a) |
|
Any
of the WKR’s representations or warranties set forth in §16 of
this Agreement being incorrect or untrue or any state of facts
contrary to any such representation or warranty; and |
| |
(b) |
|
Any
of WKR’s covenants, duties, obligations or agreements contained in this
Agreement being breached. |
| 18.2 |
|
TCAI agrees to indemnify and hold harmless and release WKR and its officers, directors,
employees, shareholders, authorized agents and representatives from and against any and
all claims, causes of action, liabilities, obligations, losses, damages, penalties, fines,
settlements, costs or expenses of any nature whatsoever, including without limitation
reasonable attorneys’ fees and disbursements, arising from: |
| |
(a) |
|
Any
of TCAI’s representations or warranties set forth in §16 of this
Agreement being incorrect or untrue or any state of facts contrary to
any such representation or warranty; |
| |
(b) |
|
Any
of TCAI’s covenants, duties, obligations or agreements contained in
this Agreement being breached. |
| 19. |
|
Environmental
Law(s) Defined |
| 19.1 |
|
“Environmental Law(s)” means any federal, state, or municipal law, code,
ordinance, rule, regulation, policy, guidelines, permit, consent, approval, license,
judgment, order, writ, decree, injunction or other authorization, relating to: |
| |
(a) |
|
emissions,
discharges, releases or threatened releases of Hazardous Materials or
Hazardous Substances into the natural or human environment,
including, without limitation, air, soil, sediments, land surface or
subsurface, surface water, ground water, buildings or facilities,
treatment works, drainage systems or septic systems; or |
| |
(b) |
|
the
generation, treatment, storage, disposal, recycling, use, handling,
manufacturing, processing, reprocessing, transportation or shipment
or arrangement for transportation or shipment of any Hazardous
Materials or Hazardous Substances; or |
| |
(c) |
|
otherwise
concerning pollution or protection of the environment, public health
and safety or exposure to Hazardous Materials, Hazardous Substances
or other hazardous or toxic substances alleged to be harmful
including without limitation, the laws described in the definition of
“Hazardous Materials” below, the Clean Water Act, and all
amendments to the foregoing and all state and local variations of the
same. |
| 19.2 |
|
“Hazardous
Materials” and “Hazardous Substances” means: |
19
| |
(a) |
|
any
and all contaminants, pollutants, constituents, wastes and substances that
are listed or defined as hazardous in the following statutes and
their implementing federal and state regulations: |
| |
|
(i) |
|
the
Hazardous Materials Xxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq.; |
| |
|
(ii) |
|
the
Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq. (“RCRA”); |
| |
|
(iii) |
|
the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00
X.X.X. §0000 et seq. (“CERCLA”); |
| |
|
(iv) |
|
the
Federal Water Pollution Xxxxxxx Xxx, 00 X.X.X. §0000 et seq.; |
| |
|
(v) |
|
the
Clean Air Act, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C.
§7401 et seq.; |
| |
|
(vi) |
|
the
Emergency Planning and Community Right-to-Know Act of 1986, as amended, 42
U.S.C. §11001 et seq.; and |
| |
|
(vii) |
|
any
amendments to any of the foregoing and any state or local variation thereto. |
| |
(b) |
|
petroleum,
including crude oil and any fractions thereof; |
| |
(c) |
|
natural
gas, synthetic gas and any mixtures thereof; |
| |
(d) |
|
asbestos
and/or asbestos-containing materials |
| |
(e) |
|
PCBs
or PCB-containing materials or fluids; |
| |
(f) |
|
any
other substance with respect to which any federal, state or local agency or
other governmental authority may require either an environmental
investigation or environmental remediation; and |
| |
(g) |
|
any
other hazardous or noxious material, contaminant, pollutant, constituent,
substance, or solid or liquid waste that is or may be regulated by,
or forms a basis of liability under, any Environmental Laws. |
| 20. |
|
Confidentiality
and Press Releases |
| 20.1 |
|
Each party agrees that until the termination of this Agreement all information obtained
hereunder shall be the exclusive property of the parties and shall not be publicly
disclosed or used other than for the activities contemplated hereunder, except as required
by law or by the rules and regulations of any regulatory authority or stock exchange
having jurisdiction or in connection with the filing of an annual information form,
prospectus or similar document, or with the written consent of the other parties, such
consent not to be unreasonably withheld, provided that the provisions of this section do
not apply to information which is or becomes part of the public domain other than through
a breach of the terms hereof or which would not otherwise be considered as material to the
parties, acting reasonably. |
20
| 20.2 |
|
Consent to disclosure of information hereunder shall not be unreasonably withheld where a
party wishes to disclose any such information to a third party for the purpose of
arranging financing for its contributions hereunder or, where permitted by this Agreement,
for the purpose of selling its interest in the Celt Property or its interest in this
Agreement, provided that such third party gives its undertaking to the parties that any
such information not theretofore publicly disclosed shall be kept confidential and not
disclosed to others for a period agreed upon by the parties, which shall not be less than
one year in duration. |
| 20.3 |
|
A party proposing a press release relating to the Celt Property, or the terms of this
Agreement, work thereon or the activities of the parties or their affiliates with respect
thereto, shall provide a copy to the other party for its information and comments using
its best efforts, in light of its timely disclosure obligations under applicable law, to
ensure it is provided at least 2 business days prior to release. Any comments that the
receiving party may make shall not be considered certification by the other party of the
accuracy of the information in such press release, or a confirmation by it that the
content of such press release complies with the disclosure standards of the applicable
regulatory authorities. If the receiving party fails to provide comments within said time
period the providing party may, subject to §20.4 make the proposed press release. |
| 20.4 |
|
Each party shall obtain prior approval of the other party before issuing any press
release or public statement using the other party’s name, the name of any of the
officers, directors or employees of the other party, or the name of any of its
subsidiaries. The foregoing prohibition shall not apply if disclosure of the other
party’s name is required, in the written opinion of counsel to a party, by applicable
public disclosure requirements however in such a case the party wishing to make the
disclosure must provide a copy to the other party for its information and comments using
its best efforts to ensure it is provided at least 2 Business Days prior to release.
However, such approval shall not be considered certification by the other party of the
accuracy of the information in such press release, or a confirmation by it that the
content of such press release complies with the rules, policies, by-laws and disclosure
standards of the applicable regulatory authorities or stock exchanges. |
| 21.1 |
|
Any notices, requests, demands or other communication required or permitted to be given
under this Agreement shall be in writing and shall be given in the manner provided below
addressed as follows: |
| |
Teck Cominco American Incorporated
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Fax: 000-000-0000 |
| |
Teck Cominco American Incorporated
c/o Teck Cominco Limited
500 - 000 Xxxxxxx Xx.
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Corporate Secretary |
21
| |
All
notices shall be given (i) by personal delivery, (ii) by commercial courier, (iii) by
certified mail, return receipt requested, or (iv) by sending it by facsimile or other
similar form of telecommunication. All notices shall be effective and shall be deemed
delivered on the date of delivery if delivered during normal business hours. If not
delivered during normal business hours, delivery shall be deemed effective on the next
business day following delivery. A party may change its address by notice to the other
parties. |
| 22.1 |
|
This Agreement is subject to the acceptance of the Financing Agreement by the TSX Venture
Exchange. If such acceptance is not obtained within 30 days of the date hereof, this
Agreement, at TCAI’s sole discretion, shall terminate and have no force or effect. |
| 23.1 |
|
This
Agreement shall terminate upon the occurrence of the following: |
| |
(a) |
|
a
termination of the Option or subsequent JV formed with respect to the Celt
Property. |
| 23.2 |
|
The
JV with respect to the Celt Property shall terminate upon the occurrence of the earliest
of: |
| |
(a) |
|
sale
or other disposition of the Celt Property following the written agreement
by the parties to terminate the JV; |
| |
(b) |
|
a
termination pursuant to §8.5 or §13.6(a); |
| |
(c) |
|
except
with respect to its NSR, the conversion of a party’s entire interest
to a NSR pursuant to §8.4, §9.6(b), §9.7 or §13.3;
or |
| |
(d) |
|
abandonment
of the entire Celt Property under §9.8. |
| 24.1 |
|
A party may claim force majeure if such party is prevented from or delayed in
performing any obligation under this Agreement by any cause beyond its reasonable control,
whether foreseeable or unforeseeable, excluding only lack of finances, but including,
without limitation, acts of God, strikes, lockouts, or other industrial disputes, laws,
rules and regulations or orders of any duly constituted court or governmental authority,
acts of terrorism, acts of the public enemy, war, insurrection, riots, fire, storm, flood,
unusually harsh weather causing delay, explosion, government restriction, failure to
obtain any approvals required from regulatory authorities or unavailability of equipment,
materials or transportation (provided the approvals were properly |
22
| |
applied
for and pursued in good faith and on a timely basis or the equipment, materials or
transportation were sought in a timely way), interference by third party interests groups
(including environmental lobbyists and First Nations or indigenous peoples’groups)
or other causes whether of the kind enumerated above or otherwise, then the time for the
performance of that obligation shall be extended for a period equivalent to the total
period the cause of the prevention or delay persists regardless of the length of such
total period. A party may also claim force majeure, if such party, acting
reasonably, believes that social or political unrest in the region of the Celt Property
or the threat of that unrest will endanger the safety of its employees or the employees
of its contractors if the party were to continue with the work program unless such social
or political unrest is caused by action or inaction by that party. The party that claims
force majeure shall promptly notify the other party and shall take all reasonable
steps to remove or remedy the cause of the prevention or delay insofar as it is
reasonably able to do so and as soon as possible. The party claiming force majeure will
provide the other party with a regular a written report summarizing events that have
occurred and prospects for resolution. |
| 25. |
|
Miscellaneous
Provisions |
| 25.1 |
|
The
obligations of TCAI under this Agreement will be subject to the satisfaction of the
following conditions: |
| |
(a) |
|
White
Knight Resources Ltd. will have received, within 30 days of execution or
this Agreement, all required approvals from the TSX Venture Exchange
for White Knight Resources Ltd. entering into the Financing Agreement
and completing the transactions contemplated thereby. |
| 25.2 |
|
This Agreement shall be a binding agreement between the parties, until such time, if any,
as a definitive agreement contemplated under §25.3 is executed, that shall govern
joint operations on the Celt Property. |
| 25.3 |
|
After the execution of this Agreement, and prior to TCAI exercising the Option,
TCAI’s solicitors shall prepare, and the parties shall endeavor to settle, a
definitive joint venture agreement, which incorporates the terms of this Agreement and
which contains such other provisions for the joint operation of the Celt Property as the
parties may otherwise agree. |
| 25.4 |
|
This Agreement, and the Schedules and instruments to be delivered in connection herewith,
contains the entire understanding of the parties and supersedes all prior agreements and
understandings between the parties relating to the subject matter hereof. In the event of
any conflict between this Agreement and any Schedule attached hereto, the terms of this
Agreement shall be controlling. No modification of this Agreement shall be valid unless
made in writing and duly executed by the parties. |
| 25.5 |
|
The rights and obligations of the parties shall be several, the parties shall hold their
interests as tenants in common, and nothing contained in the Agreement shall be construed
as creating a partnership or in imposing any fiduciary duty on any party. |
| 25.6 |
|
Nothing expressed or implied in this Agreement is intended by the parties or shall be
construed to confer upon or to give to any person or entity other than the parties to this
Agreement or their successors or assigns any rights or remedies under or by reason of this
Agreement. |
23
| 25.7 |
|
Each of the parties agrees that it shall take such actions and execute such additional
instruments as counsel to any party deems reasonably necessary or convenient to implement
and carry out the intent and purpose of this Agreement. |
| 25.8 |
|
Each of the parties shall have the right from time to time to register or record notice of
this Agreement against title to the Celt Property, and the other parties shall co-operate
with all such registrations and recordings and provide its written consent or signature to
any documents and do such other things from time to time as are necessary or desirable to
effect all such registrations or recordings or otherwise to protect the interests of the
parties hereunder. |
| 25.9 |
|
Each
party shall have all remedies provided at law or in equity with respect to the
obligations hereunder. |
| 25.10 |
|
Except as otherwise specifically provided in this Agreement, all fees, costs and expenses
incurred by WKR or TCAI in negotiating this Agreement or in consummating this transaction
shall be paid by the party incurring the same, including without limitation, legal,
brokerage and accounting fees, costs and expenses. |
| 25.11 |
|
If any legal action or any arbitration or other proceeding is brought for the enforcement
of this Agreement, or because of an alleged dispute, breach, default or misrepresentation
in connection with any of the provisions, representations or warranties in this Agreement,
the successful or prevailing party shall be entitled to recover reasonable attorney’s
fees and other costs incurred in that action or proceeding, in addition to any other
relief to which it may be entitled. |
| 25.12 |
|
The failure of a party to insist on the strict performance of any provision of this
Agreement or to exercise any right, power or remedy upon a breach hereof shall not
constitute a waiver of any provision of this Agreement or limit the party’s right
thereafter to enforce any provision or exercise any right. |
| 25.13 |
|
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall be ineffective in such jurisdiction only to the extent of such prohibition or
unenforceability without affecting the remaining provisions of this Agreement. |
| 25.14 |
|
Unless
otherwise specified, all dollar amounts referred to herein shall be in the currency of
the United States of America. |
| 25.15 |
|
This
Agreement shall be governed by and interpreted in accordance with the laws of the State
of Nevada. |
| 25.16 |
|
This Agreement may be executed in counterparts, each of which when so executed shall be
deemed an original, and such counterparts shall together constitute but one and the same
instrument. |
| 25.17 |
|
This
Agreement shall be read with such changes in gender or number as the context shall
require. |
| 25.18 |
|
The headings to the articles, paragraphs, parts or clauses of this Agreement are inserted
for convenience only and shall not affect the construction hereof. |
| 25.19 |
|
The
Schedules to this Agreement are an integral part of this Agreement and are incorporated
into this Agreement. |
24
| 25.20 |
|
Unless otherwise stated, a reference to an Article means an Article of this Agreement and
the symbol “§” followed by a number or some combination of numbers and
letters refers to the provision of this Agreement so designated and the symbol
Ҥ" followed by a letter within a provision refers to a clause within such
provision. A reference to “this Agreement”, “hereof”,
“hereunder”, “herein” or words of similar meaning, means this
agreement including the schedules hereto, together with any amendments thereof. |
| 25.21 |
|
Time is of the essence in this Agreement and the performance by the parties of their
respective duties and obligations hereunder. |
If the foregoing terms are
acceptable, please confirm your acceptance of the terms set out above by kindly executing
in the space provided below and returning it to TCAI, whereupon it shall form a binding
agreement between us in consideration for the mutual covenants herein.
TECK COMINCO AMERICAN INCORPORATED
By: “Xxxx X. Xxxxx”
Xxxx X. Xxxxx
Its: Vice President Exploration
WHITE KNIGHT RESOURCES LTD.
By: “Xxxx X. Xxxxx”
Its: President
WHITE KNIGHT GOLD (U.S.) INC.
By: “Xxxx X. Xxxxx”
Its: President
This is SCHEDULE
“A1” to the Letter Agreement between
TECK COMINCO AMERICAN INCORPORATED,
WHITE KNIGHT RESOURCES LTD. and WHITE KNIGHT GOLD (U.S.) INC.
dated for reference December 1, 2004
Celt Property
The Celt Property consists of the
following mining claims owned by White Knight Gold (US) Inc. All are located in portions
of Townships 22 and 23 North, Ranges 49 and 50 East, Mount Diablo Base and Meridian, all
in Eureka County, Nevada.
A 100% interest in KILT 1-47, 50-64:
consisting of 62 Claims, CELT 1-70: consisting of 70 Claims, COT 001-121: consisting of
121 Claims, KEL 001-136, and 141-148: consisting of 144 Claims, AMT 1 to 69, and 76 to 77:
consisting of 71 Claims, and CSAMT 67 -78 and 87- 91: consisting of 17 Claims, all of
which are listed below.
A 100% interest in CS AMT 1-66,
79-86, and 92-95, consisting of 78 claims, which have been legally located and will be
filed with the BLM and recorded in Eureka County within 2 weeks of the effective date of
this Agreement.
Total of 563 claims.
|
Claim Name |
BLM Serial No. |
Book |
Page |
| KILT 1 |
|
852265 |
|
367 |
|
298 |
|
| KILT 2 | |
852266 | |
367 | |
299 | |
| KILT 3 | |
852267 | |
367 | |
300 | |
| KILT 4 | |
852268 | |
367 | |
301 | |
| KILT 5 | |
852269 | |
367 | |
302 | |
| KILT 6 | |
852270 | |
367 | |
303 | |
| KILT 7 | |
852271 | |
367 | |
304 | |
| KILT 8 | |
852272 | |
367 | |
305 | |
| KILT 9 | |
852273 | |
367 | |
306 | |
| KILT 10 | |
852274 | |
367 | |
307 | |
| KILT 11 | |
852275 | |
367 | |
308 | |
| KILT 12 | |
852276 | |
367 | |
309 | |
| KILT 13 | |
852277 | |
367 | |
310 | |
| KILT 14 | |
852278 | |
367 | |
311 | |
| KILT 15 | |
852279 | |
367 | |
312 | |
| KILT 16 | |
852280 | |
367 | |
313 | |
| KILT 17 | |
852281 | |
367 | |
314 | |
| KILT 18 | |
852282 | |
367 | |
315 | |
| KILT 19 | |
852283 | |
367 | |
316 | |
| KILT 20 Amended | |
852284 | |
367 | |
317 | |
| KILT 21 | |
852285 | |
367 | |
318 | |
| KILT 22 | |
852286 | |
367 | |
319 | |
| KILT 23 | |
852287 | |
367 | |
320 | |
| KILT 24 | |
852288 | |
367 | |
321 | |
| KILT 25 | |
852289 | |
367 | |
322 | |
| KILT 26 | |
852290 | |
367 | |
323 | |
| KILT 27 | |
852291 | |
367 | |
324 | |
A-2
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| KILT 28 | |
852292 | |
367 | |
325 | |
| KILT 29 | |
852293 | |
367 | |
326 | |
| KILT 30 | |
852294 | |
367 | |
327 | |
| KILT 31 | |
852295 | |
367 | |
328 | |
| KILT 32 | |
852296 | |
367 | |
329 | |
| KILT 33 | |
852297 | |
367 | |
330 | |
| KILT 34 | |
852298 | |
367 | |
331 | |
| KILT 35 | |
852299 | |
367 | |
332 | |
| KILT 36 | |
852300 | |
367 | |
333 | |
| KILT 37 | |
852301 | |
367 | |
334 | |
| KILT 38 | |
852302 | |
367 | |
335 | |
| KILT 39 | |
852303 | |
367 | |
336 | |
| KILT 40 | |
852304 | |
367 | |
337 | |
| KILT 41 | |
852305 | |
367 | |
338 | |
| KILT 42 | |
852306 | |
367 | |
339 | |
| KILT 43 | |
852307 | |
367 | |
340 | |
| KILT 44 | |
852308 | |
367 | |
341 | |
| KILT 45 | |
852309 | |
367 | |
342 | |
| KILT 46 | |
852310 | |
367 | |
343 | |
| KILT 47 | |
852311 | |
367 | |
344 | |
| KILT 50 | |
852314 | |
367 | |
347 | |
| KILT 51 | |
852315 | |
367 | |
348 | |
| KILT 52 | |
852316 | |
367 | |
349 | |
| KILT 53 | |
852317 | |
367 | |
350 | |
| KILT 54 | |
852318 | |
367 | |
351 | |
| KILT 55 | |
852319 | |
367 | |
352 | |
| KILT 56 | |
852320 | |
367 | |
353 | |
| KILT 57 | |
852321 | |
367 | |
354 | |
| KILT 58 | |
852322 | |
367 | |
355 | |
| KILT 59 | |
852323 | |
367 | |
356 | |
| KILT 60 | |
852324 | |
367 | |
357 | |
| KILT 61 | |
852325 | |
367 | |
358 | |
| KILT 62 | |
852326 | |
367 | |
359 | |
| KILT 63 | |
852327 | |
367 | |
360 | |
| KILT 64 | |
852328 | |
367 | |
361 | |
| CELT 1 | |
852329 | |
367 | |
228 | |
| CELT 2 | |
852330 | |
367 | |
229 | |
| CELT 3 | |
852331 | |
367 | |
230 | |
| CELT 4 | |
852332 | |
367 | |
231 | |
| CELT 5 | |
852333 | |
367 | |
232 | |
| CELT 6 | |
852334 | |
367 | |
233 | |
| CELT 7 | |
852335 | |
367 | |
234 | |
| CELT 8 | |
852336 | |
367 | |
235 | |
| CELT 9 | |
852337 | |
367 | |
236 | |
| CELT 10 | |
852338 | |
367 | |
237 | |
| CELT 11 | |
852339 | |
367 | |
238 | |
| CELT 12 | |
852340 | |
367 | |
239 | |
| CELT 13 | |
852341 | |
367 | |
240 | |
| CELT 14 | |
852342 | |
367 | |
241 | |
A-3
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| CELT 15 | |
852343 | |
367 | |
242 | |
| CELT 16 | |
852344 | |
367 | |
243 | |
| CELT 17 | |
852345 | |
367 | |
244 | |
| CELT 18 | |
852346 | |
367 | |
245 | |
| CELT 19 | |
852347 | |
367 | |
246 | |
| CELT 20 Amended | |
852348 | |
367 | |
247 | |
| CELT 21 | |
852349 | |
367 | |
248 | |
| CELT 22 | |
852350 | |
367 | |
249 | |
| CELT 23 | |
852351 | |
367 | |
250 | |
| CELT 24 | |
852352 | |
367 | |
251 | |
| CELT 25 | |
852353 | |
367 | |
252 | |
| CELT 26 | |
852354 | |
367 | |
253 | |
| CELT 27 | |
852355 | |
367 | |
254 | |
| CELT 28 | |
852356 | |
367 | |
255 | |
| CELT 29 | |
852357 | |
367 | |
256 | |
| CELT 30 | |
852358 | |
367 | |
257 | |
| CELT 31 | |
852359 | |
367 | |
258 | |
| CELT 32 | |
852360 | |
367 | |
259 | |
| CELT 33 | |
852361 | |
367 | |
260 | |
| CELT 34 | |
852362 | |
367 | |
261 | |
| CELT 35 | |
852363 | |
367 | |
262 | |
| CELT 36 | |
852364 | |
367 | |
263 | |
| CELT 37 | |
852365 | |
367 | |
264 | |
| CELT 38 | |
852366 | |
367 | |
265 | |
| CELT 39 | |
852367 | |
367 | |
266 | |
| CELT 40 | |
852368 | |
367 | |
267 | |
| CELT 41 | |
852369 | |
367 | |
268 | |
| CELT 42 | |
852370 | |
367 | |
269 | |
| CELT 43 | |
852371 | |
367 | |
270 | |
| CELT 44 | |
852372 | |
367 | |
271 | |
| CELT 45 | |
852373 | |
367 | |
272 | |
| CELT 46 | |
852374 | |
367 | |
273 | |
| CELT 47 | |
852375 | |
367 | |
274 | |
| CELT 48 | |
852376 | |
367 | |
275 | |
| CELT 49 | |
852377 | |
367 | |
276 | |
| CELT 50 | |
852378 | |
367 | |
277 | |
| CELT 51 | |
852379 | |
367 | |
278 | |
| CELT 52 | |
852380 | |
367 | |
279 | |
| CELT 53 | |
852381 | |
367 | |
280 | |
| CELT 54 | |
852382 | |
367 | |
281 | |
| CELT 55 | |
852383 | |
367 | |
282 | |
| CELT 56 | |
852384 | |
367 | |
283 | |
| CELT 57 | |
852385 | |
367 | |
284 | |
| CELT 58 | |
852386 | |
367 | |
285 | |
| CELT 59 | |
852387 | |
367 | |
286 | |
| CELT 60 | |
852388 | |
367 | |
287 | |
| CELT 61 | |
852389 | |
367 | |
288 | |
| CELT 62 | |
852390 | |
367 | |
289 | |
| CELT 63 | |
852391 | |
367 | |
290 | |
A-4
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| CELT 64 | |
852392 | |
367 | |
291 | |
| CELT 65 | |
852393 | |
367 | |
292 | |
| CELT 66 | |
852394 | |
367 | |
293 | |
| CELT 67 | |
852395 | |
367 | |
294 | |
| CELT 68 | |
852396 | |
367 | |
295 | |
| CELT 69 | |
852397 | |
367 | |
296 | |
| CELT 70 | |
852398 | |
367 | |
297 | |
| COT 1 | |
872489 | |
383 | |
374 | |
| COT 2 | |
872490 | |
383 | |
375 | |
| COT 3 | |
872491 | |
383 | |
376 | |
| COT 4 | |
872492 | |
383 | |
377 | |
| COT 5 | |
872493 | |
383 | |
378 | |
| COT 6 | |
872494 | |
383 | |
379 | |
| COT 7 | |
872495 | |
383 | |
380 | |
| COT 8 | |
872496 | |
383 | |
381 | |
| COT 9 | |
872497 | |
383 | |
382 | |
| COT 10 | |
872498 | |
383 | |
383 | |
| COT 11 | |
872499 | |
383 | |
384 | |
| COT 12 | |
872500 | |
383 | |
385 | |
| COT 13 | |
872501 | |
383 | |
386 | |
| COT 14 | |
872502 | |
383 | |
387 | |
| COT 15 | |
872503 | |
383 | |
388 | |
| COT 16 | |
872504 | |
383 | |
389 | |
| COT 17 | |
872505 | |
383 | |
390 | |
| COT 18 | |
872506 | |
383 | |
391 | |
| COT 19 | |
872507 | |
383 | |
392 | |
| COT 20 | |
872508 | |
383 | |
393 | |
| COT 21 | |
872509 | |
383 | |
394 | |
| COT 22 | |
872510 | |
383 | |
395 | |
| COT 23 | |
872511 | |
383 | |
396 | |
| COT 24 | |
872512 | |
383 | |
397 | |
| COT 25 | |
872513 | |
383 | |
398 | |
| COT 26 | |
872514 | |
383 | |
399 | |
| COT 27 | |
872515 | |
383 | |
400 | |
| COT 28 | |
872516 | |
383 | |
401 | |
| COT 29 | |
872517 | |
383 | |
402 | |
| COT 30 | |
872518 | |
383 | |
403 | |
| COT 31 | |
872519 | |
383 | |
404 | |
| COT 32 | |
872520 | |
383 | |
405 | |
| COT 33 | |
872521 | |
383 | |
406 | |
| COT 34 | |
872522 | |
383 | |
407 | |
| COT 35 | |
872523 | |
383 | |
408 | |
| COT 36 | |
872524 | |
383 | |
409 | |
| COT 37 | |
872525 | |
383 | |
410 | |
| COT 38 | |
872526 | |
383 | |
411 | |
| COT 39 | |
872527 | |
383 | |
412 | |
| COT 40 | |
872528 | |
383 | |
413 | |
| COT 41 | |
872529 | |
383 | |
414 | |
| COT 42 | |
872530 | |
383 | |
415 | |
| COT 43 | |
872531 | |
383 | |
416 | |
A-5
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| COT 44 | |
872532 | |
383 | |
417 | |
| COT 45 | |
872533 | |
383 | |
418 | |
| COT 46 | |
872534 | |
383 | |
419 | |
| COT 47 | |
872535 | |
383 | |
420 | |
| COT 48 | |
872536 | |
383 | |
421 | |
| COT 49 | |
872537 | |
383 | |
422 | |
| COT 50 | |
872538 | |
383 | |
423 | |
| COT 51 | |
872539 | |
383 | |
424 | |
| COT 52 | |
872540 | |
383 | |
425 | |
| COT 53 | |
872541 | |
383 | |
426 | |
| COT 54 | |
872542 | |
383 | |
427 | |
| COT 55 | |
872543 | |
383 | |
428 | |
| COT 56 | |
872544 | |
383 | |
429 | |
| COT 57 | |
872545 | |
383 | |
430 | |
| COT 58 | |
872546 | |
383 | |
431 | |
| COT 59 | |
872547 | |
383 | |
432 | |
| COT 60 | |
872548 | |
383 | |
433 | |
| COT 61 | |
872549 | |
383 | |
434 | |
| COT 62 | |
872550 | |
383 | |
435 | |
| COT 63 | |
872551 | |
383 | |
436 | |
| COT 64 | |
872552 | |
383 | |
437 | |
| COT 65 | |
872553 | |
383 | |
438 | |
| COT 66 | |
872554 | |
383 | |
439 | |
| COT 67 | |
872555 | |
383 | |
440 | |
| COT 68 | |
872556 | |
383 | |
441 | |
| COT 69 | |
872557 | |
383 | |
442 | |
| COT 70 | |
872558 | |
383 | |
443 | |
| COT 71 | |
872559 | |
383 | |
444 | |
| COT 72 | |
872560 | |
383 | |
445 | |
| COT 73 | |
872561 | |
383 | |
446 | |
| COT 74 | |
872562 | |
383 | |
447 | |
| COT 75 | |
872563 | |
383 | |
448 | |
| COT 76 | |
872564 | |
383 | |
449 | |
| COT 77 | |
872565 | |
383 | |
450 | |
| COT 78 | |
872566 | |
383 | |
451 | |
| COT 79 | |
872567 | |
383 | |
452 | |
| COT 80 | |
872568 | |
383 | |
453 | |
| COT 81 | |
872569 | |
383 | |
454 | |
| COT 82 | |
872570 | |
383 | |
455 | |
| COT 83 | |
872571 | |
383 | |
456 | |
| COT 84 | |
872572 | |
383 | |
457 | |
| COT 85 | |
872573 | |
383 | |
458 | |
| COT 86 | |
872574 | |
383 | |
459 | |
| COT 87 | |
872575 | |
383 | |
460 | |
| COT 88 | |
872576 | |
383 | |
461 | |
| COT 89 | |
872577 | |
383 | |
462 | |
| COT 90 | |
872578 | |
383 | |
463 | |
| COT 91 | |
872579 | |
383 | |
464 | |
| COT 92 | |
872580 | |
383 | |
465 | |
| COT 93 | |
872581 | |
383 | |
466 | |
A-6
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| COT 94 | |
872582 | |
383 | |
467 | |
| COT 95 | |
872583 | |
383 | |
468 | |
| COT 96 | |
872584 | |
383 | |
469 | |
| COT 97 | |
872585 | |
383 | |
470 | |
| COT 98 | |
872586 | |
383 | |
471 | |
| COT 99 | |
872587 | |
383 | |
472 | |
| COT 100 | |
872588 | |
383 | |
473 | |
| COT 101 | |
872589 | |
383 | |
474 | |
| COT 102 | |
872590 | |
383 | |
475 | |
| COT 103 | |
872591 | |
383 | |
476 | |
| COT 104 | |
872592 | |
383 | |
477 | |
| COT 105 | |
872593 | |
383 | |
478 | |
| COT 106 | |
872594 | |
383 | |
479 | |
| COT 107 | |
872595 | |
383 | |
480 | |
| COT 108 | |
872596 | |
383 | |
481 | |
| COT 109 | |
872597 | |
383 | |
482 | |
| COT 110 | |
872598 | |
383 | |
483 | |
| COT 111 | |
872599 | |
383 | |
484 | |
| COT 112 | |
872600 | |
383 | |
485 | |
| COT 113 | |
872601 | |
383 | |
486 | |
| COT 114 | |
872602 | |
383 | |
487 | |
| COT 115 | |
872603 | |
383 | |
488 | |
| COT 116 | |
872604 | |
383 | |
489 | |
| COT 117 | |
872605 | |
383 | |
490 | |
| COT 118 | |
872606 | |
383 | |
491 | |
| COT 119 | |
872607 | |
383 | |
492 | |
| COT 120 | |
872608 | |
383 | |
493 | |
| COT 121 | |
872609 | |
383 | |
000 | |
| XXX 1 | |
867814 | |
381 | |
211 | |
| KEL 2 | |
867815 | |
381 | |
212 | |
| KEL 3 | |
867816 | |
381 | |
213 | |
| KEL 4 | |
867817 | |
381 | |
214 | |
| KEL 5 | |
867818 | |
381 | |
215 | |
| KEL 6 | |
867819 | |
381 | |
216 | |
| KEL 7 | |
867820 | |
381 | |
217 | |
| KEL 8 | |
867821 | |
381 | |
218 | |
| KEL 9 | |
867822 | |
381 | |
219 | |
| KEL 10 | |
867823 | |
381 | |
220 | |
| KEL 11 | |
867824 | |
381 | |
221 | |
| KEL 12 | |
867825 | |
381 | |
222 | |
| KEL 13 | |
867826 | |
381 | |
223 | |
| KEL 14 | |
867827 | |
381 | |
224 | |
| KEL 15 | |
867828 | |
381 | |
225 | |
| KEL 16 | |
867829 | |
381 | |
226 | |
| KEL 17 | |
867830 | |
381 | |
227 | |
| KEL 18 | |
867831 | |
381 | |
228 | |
| KEL 19 | |
867832 | |
381 | |
229 | |
| KEL 20 | |
867833 | |
381 | |
230 | |
| KEL 21 | |
867834 | |
381 | |
231 | |
| KEL 22 | |
867835 | |
381 | |
232 | |
A-7
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| KEL 23 | |
867836 | |
381 | |
233 | |
| KEL 24 | |
867837 | |
381 | |
234 | |
| KEL 25 | |
867838 | |
381 | |
235 | |
| KEL 26 | |
867839 | |
381 | |
236 | |
| KEL 27 | |
867840 | |
381 | |
237 | |
| KEL 28 | |
867841 | |
381 | |
238 | |
| KEL 29 | |
867842 | |
381 | |
239 | |
| KEL 30 | |
867843 | |
381 | |
240 | |
| KEL 31 | |
867844 | |
381 | |
241 | |
| KEL 32 | |
867845 | |
381 | |
242 | |
| KEL 33 | |
867846 | |
381 | |
243 | |
| KEL 34 | |
867847 | |
381 | |
244 | |
| KEL 35 | |
867848 | |
381 | |
245 | |
| KEL 36 | |
867849 | |
381 | |
246 | |
| KEL 37 | |
867850 | |
381 | |
247 | |
| KEL 38 | |
867851 | |
381 | |
248 | |
| KEL 39 | |
867852 | |
381 | |
249 | |
| KEL 40 | |
867853 | |
381 | |
250 | |
| KEL 41 | |
867854 | |
381 | |
251 | |
| KEL 42 | |
867855 | |
381 | |
252 | |
| KEL 43 | |
867856 | |
381 | |
253 | |
| KEL 44 | |
867857 | |
381 | |
254 | |
| KEL 45 | |
867858 | |
381 | |
255 | |
| KEL 46 | |
867859 | |
381 | |
256 | |
| KEL 47 | |
867860 | |
381 | |
257 | |
| KEL 48 | |
867861 | |
381 | |
258 | |
| KEL 49 | |
867862 | |
381 | |
259 | |
| KEL 50 | |
867863 | |
381 | |
260 | |
| KEL 51 | |
867864 | |
381 | |
261 | |
| KEL 52 | |
867865 | |
381 | |
262 | |
| KEL 53 | |
867866 | |
381 | |
263 | |
| KEL 54 | |
867867 | |
381 | |
264 | |
| KEL 55 | |
867868 | |
381 | |
265 | |
| KEL 56 | |
867869 | |
381 | |
266 | |
| KEL 57 | |
867870 | |
381 | |
267 | |
| KEL 58 | |
867871 | |
381 | |
268 | |
| KEL 59 | |
867872 | |
381 | |
269 | |
| KEL 60 | |
867873 | |
381 | |
270 | |
| KEL 61 | |
867874 | |
381 | |
271 | |
| KEL 62 | |
867875 | |
381 | |
272 | |
| KEL 63 | |
867876 | |
381 | |
273 | |
| KEL 64 | |
867877 | |
381 | |
274 | |
| KEL 65 | |
867878 | |
381 | |
275 | |
| KEL 66 | |
867879 | |
381 | |
276 | |
| KEL 67 | |
867880 | |
381 | |
277 | |
| KEL 68 | |
867881 | |
381 | |
278 | |
| KEL 69 | |
867882 | |
381 | |
279 | |
| KEL 70 | |
867883 | |
381 | |
280 | |
| KEL 71 | |
867884 | |
381 | |
281 | |
| KEL 72 | |
867885 | |
381 | |
282 | |
A-8
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| KEL 73 | |
867886 | |
381 | |
283 | |
| KEL 74 | |
867887 | |
381 | |
284 | |
| KEL 75 | |
867888 | |
381 | |
285 | |
| KEL 76 | |
867889 | |
381 | |
286 | |
| KEL 77 | |
867890 | |
381 | |
287 | |
| KEL 78 | |
867891 | |
381 | |
288 | |
| KEL 79 | |
867892 | |
381 | |
289 | |
| KEL 80 | |
867893 | |
381 | |
290 | |
| KEL 81 | |
867894 | |
381 | |
291 | |
| KEL 82 | |
867895 | |
381 | |
292 | |
| KEL 83 | |
867896 | |
381 | |
293 | |
| KEL 84 | |
867897 | |
381 | |
294 | |
| KEL 85 | |
867898 | |
381 | |
295 | |
| KEL 86 | |
867899 | |
381 | |
296 | |
| KEL 87 | |
867900 | |
381 | |
297 | |
| KEL 88 | |
867901 | |
381 | |
298 | |
| KEL 89 | |
867902 | |
381 | |
299 | |
| KEL 90 | |
867903 | |
381 | |
300 | |
| KEL 91 | |
867904 | |
381 | |
301 | |
| KEL 92 | |
867905 | |
381 | |
302 | |
| KEL 93 | |
867906 | |
381 | |
303 | |
| KEL 94 | |
867907 | |
381 | |
304 | |
| KEL 95 | |
867908 | |
381 | |
305 | |
| KEL 96 | |
867909 | |
381 | |
306 | |
| KEL 97 | |
867910 | |
381 | |
307 | |
| KEL 98 | |
867911 | |
381 | |
308 | |
| KEL 99 | |
867912 | |
381 | |
309 | |
| KEL 100 | |
867913 | |
381 | |
000 | |
| XXX 101 | |
867914 | |
381 | |
000 | |
| XXX 102 | |
867915 | |
381 | |
000 | |
| XXX 103 | |
867916 | |
381 | |
000 | |
| XXX 104 | |
867917 | |
381 | |
000 | |
| XXX 105 | |
867918 | |
381 | |
000 | |
| XXX 106 | |
867919 | |
381 | |
000 | |
| XXX 107 | |
867920 | |
381 | |
000 | |
| XXX 108 | |
867921 | |
381 | |
000 | |
| XXX 109 | |
867922 | |
381 | |
000 | |
| XXX 110 | |
867923 | |
381 | |
000 | |
| XXX 111 | |
867924 | |
381 | |
000 | |
| XXX 112 | |
867925 | |
381 | |
000 | |
| XXX 113 | |
867926 | |
381 | |
000 | |
| XXX 114 | |
867927 | |
381 | |
000 | |
| XXX 115 | |
867928 | |
381 | |
000 | |
| XXX 116 | |
867929 | |
381 | |
000 | |
| XXX 117 | |
867930 | |
381 | |
000 | |
| XXX 118 | |
867931 | |
381 | |
000 | |
| XXX 119 | |
867932 | |
381 | |
000 | |
| XXX 120 | |
867933 | |
381 | |
000 | |
| XXX 121 | |
867934 | |
381 | |
000 | |
| XXX 122 | |
867935 | |
381 | |
332 | |
A-9
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| KEL 123 | |
867936 | |
381 | |
000 | |
| XXX 124 | |
867937 | |
381 | |
000 | |
| XXX 125 | |
867938 | |
381 | |
000 | |
| XXX 126 | |
867939 | |
381 | |
000 | |
| XXX 127 | |
867940 | |
381 | |
000 | |
| XXX 128 | |
867941 | |
381 | |
000 | |
| XXX 129 | |
867942 | |
381 | |
000 | |
| XXX 130 | |
867943 | |
381 | |
000 | |
| XXX 131 | |
867944 | |
381 | |
000 | |
| XXX 132 | |
867945 | |
381 | |
000 | |
| XXX 133 | |
867946 | |
381 | |
000 | |
| XXX 134 | |
867947 | |
381 | |
000 | |
| XXX 135 | |
867948 | |
381 | |
000 | |
| XXX 136 | |
867949 | |
381 | |
000 | |
| XXX 141 | |
867950 | |
381 | |
000 | |
| XXX 142 | |
867951 | |
381 | |
000 | |
| XXX 143 | |
867952 | |
381 | |
000 | |
| XXX 144 | |
867953 | |
381 | |
000 | |
| XXX 145 | |
867954 | |
381 | |
000 | |
| XXX 146 | |
867955 | |
381 | |
000 | |
| XXX 147 | |
867956 | |
381 | |
000 | |
| XXX 148 | |
867957 | |
381 | |
354 | |
| AMT 1 | |
878790 | |
395 | |
179 | |
| AMT 2 | |
878791 | |
395 | |
180 | |
| AMT 3 | |
878792 | |
395 | |
181 | |
| AMT 4 | |
878793 | |
395 | |
182 | |
| AMT 5 | |
878794 | |
395 | |
183 | |
| AMT 6 | |
878795 | |
395 | |
184 | |
| AMT 7 | |
878796 | |
395 | |
185 | |
| AMT 8 | |
878797 | |
395 | |
186 | |
| AMT 9 | |
878798 | |
395 | |
187 | |
| AMT 10 | |
878799 | |
395 | |
188 | |
| AMT 11 | |
878800 | |
395 | |
189 | |
| AMT 12 | |
878801 | |
395 | |
190 | |
| AMT 13 | |
878802 | |
395 | |
191 | |
| AMT 14 | |
878803 | |
395 | |
192 | |
| AMT 15 | |
878804 | |
395 | |
193 | |
| AMT 16 | |
878805 | |
395 | |
194 | |
| AMT 17 | |
878806 | |
395 | |
195 | |
| AMT 18 | |
878807 | |
395 | |
196 | |
| AMT 19 | |
878808 | |
395 | |
197 | |
| AMT 20 | |
878809 | |
395 | |
198 | |
| AMT 21 | |
878810 | |
395 | |
199 | |
| AMT 22 | |
878811 | |
395 | |
200 | |
| AMT 23 | |
878812 | |
395 | |
201 | |
| AMT 24 | |
878813 | |
395 | |
202 | |
| AMT 25 | |
878814 | |
395 | |
203 | |
| AMT 26 | |
878815 | |
395 | |
204 | |
| AMT 27 | |
878816 | |
395 | |
205 | |
| AMT 28 | |
878817 | |
395 | |
206 | |
A-10
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| AMT 29 | |
878818 | |
395 | |
207 | |
| AMT 30 | |
878819 | |
395 | |
208 | |
| AMT 31 | |
878820 | |
395 | |
209 | |
| AMT 32 | |
878821 | |
395 | |
210 | |
| AMT 33 | |
878822 | |
395 | |
211 | |
| AMT 34 | |
878823 | |
395 | |
212 | |
| AMT 35 | |
878824 | |
395 | |
213 | |
| AMT 36 | |
878825 | |
395 | |
214 | |
| AMT 37 | |
878826 | |
395 | |
215 | |
| AMT 38 | |
878827 | |
395 | |
216 | |
| AMT 39 | |
878828 | |
395 | |
217 | |
| AMT 40 | |
878829 | |
395 | |
218 | |
| AMT 41 | |
878830 | |
395 | |
219 | |
| AMT 42 | |
878831 | |
395 | |
220 | |
| AMT 43 | |
878832 | |
395 | |
221 | |
| AMT 44 | |
878833 | |
395 | |
222 | |
| AMT 45 | |
878834 | |
395 | |
223 | |
| AMT 46 | |
878835 | |
395 | |
224 | |
| AMT 47 | |
878836 | |
395 | |
225 | |
| AMT 48 | |
878837 | |
395 | |
226 | |
| AMT 49 | |
878838 | |
395 | |
227 | |
| AMT 50 | |
878839 | |
395 | |
228 | |
| AMT 51 | |
878840 | |
395 | |
229 | |
| AMT 52 | |
878841 | |
395 | |
230 | |
| AMT 53 | |
878842 | |
395 | |
231 | |
| AMT 54 | |
878843 | |
395 | |
232 | |
| AMT 55 | |
878844 | |
395 | |
233 | |
| AMT 56 | |
878845 | |
395 | |
234 | |
| AMT 57 | |
878846 | |
395 | |
235 | |
| AMT 58 | |
878847 | |
395 | |
236 | |
| AMT 59 | |
878848 | |
395 | |
237 | |
| AMT 60 | |
878849 | |
395 | |
238 | |
| AMT 61 | |
878850 | |
395 | |
239 | |
| AMT 62 | |
878851 | |
395 | |
240 | |
| AMT 63 | |
878852 | |
395 | |
241 | |
| AMT 64 | |
878853 | |
395 | |
242 | |
| AMT 65 | |
878854 | |
395 | |
243 | |
| AMT 66 | |
878855 | |
395 | |
244 | |
| AMT 67 | |
878856 | |
395 | |
245 | |
| AMT 68 | |
878857 | |
395 | |
246 | |
| AMT 69 | |
878858 | |
395 | |
247 | |
| AMT 76 | |
878859 | |
395 | |
248 | |
| AMT 77 | |
878860 | |
395 | |
249 | |
| CSAMT 67 | |
876631 | |
393 | |
149 | |
| CSAMT 68 | |
876632 | |
393 | |
150 | |
| CSAMT 69 | |
876633 | |
393 | |
151 | |
| CSAMT 70 | |
876634 | |
393 | |
152 | |
| CSAMT 71 | |
876635 | |
393 | |
153 | |
| CSAMT 72 | |
876636 | |
393 | |
154 | |
| CSAMT 73 | |
876637 | |
393 | |
155 | |
A-11
|
Claim Name |
BLM Serial No. |
Book |
Page |
|
|
|
|
|
|
|
|
| CSAMT 74 |
|
876638 |
|
393 |
|
156 |
|
| CSAMT 75 | |
876639 | |
393 | |
157 | |
| CSAMT 76 | |
876640 | |
393 | |
158 | |
| CSAMT 77 | |
876641 | |
393 | |
159 | |
| CSAMT 78 | |
876642 | |
393 | |
160 | |
| CSAMT 87 | |
876651 | |
393 | |
169 | |
| CSAMT 88 | |
876652 | |
393 | |
170 | |
| CSAMT 89 | |
876653 | |
393 | |
171 | |
| CSAMT 90 | |
876654 | |
393 | |
172 | |
| CSAMT 91 | |
876655 | |
393 | |
173 | |
This is SCHEDULE “B” to the Letter Agreement between
TECK COMINCO AMERICAN INCORPORATED,
WHITE KNIGHT RESOURCES LTD. and WHITE KNIGHT GOLD (U.S.) INC.
dated for reference December 1, 2004
NET SMELTER RETURNS
ROYALTY
1.01 “Net Smelter Returns” for
purposes of the Agreement are defined as follows:
| |
(a) where all or a portion of the ores or concentrates derived from
the Property are sold as ores or concentrates, the Net Smelter
Returns shall be the gross amount received from the purchaser
following sale thereof after deduction of: |
| |
(i) if applicable under the sale contract, of all smelter charges,
penalties and other deductions; |
| |
(ii) all costs of transporting and insuring the ores or concentrates
from the mine to the smelter or other place of final delivery; and |
| |
(iii) sales, use, severance, excise, net proceeds of mine, and ad
valorem taxes and any tax on or measured by mineral production, but
excluding income taxes of the Royaltypayor; and |
| |
(b) where all or a portion of the said ores or concentrates derived
from the Property are treated in a smelter and a portion of the
metals recovered therefrom are delivered to, and sold by
Royaltypayor, the Net Smelter Returns shall be the gross amount
received from the purchaser following sale of the metals so
delivered, after deduction of: |
| |
(i) all smelter charges, penalties and other deductions; |
| |
(ii) all costs of transporting and insuring the ores or concentrates
from the mine to the smelter; and |
| |
(iii) if applicable under the smelter contract, all costs of
transporting and insuring the metals from the smelter to the place of
final delivery by the purchaser; and |
| |
(iv) sales, use, severance, excise, net proceeds of mine, and ad
valorem taxes and any tax on or measured by mineral production, but
excluding income taxes of the Royaltypayor. |
| |
Where
any ores or concentrates are sold to, or treated in, a smelter owned or controlled by
Royaltypayor, the pricing for that sale or treatment will be established by Royaltypayor
on an arms-length basis so as to be fairly competitive with pricing, net of
transportation, insurance, treatment charges and other related costs, then available on
world markets for product of like quantity and quality. |
B-2
| 2 |
|
PAYMENT
OF NET SMELTER RETURNS |
2.01 If a party becomes entitled to a
Net Smelter Returns royalty pursuant to the Agreement, the party paying the Net Smelter
Returns (the “Royaltypayor”) shall calculate the Net Smelter Returns and
the sums to be disbursed to the party receiving the Net Smelter Returns (the
“Royaltyholder”) as at the end of each calendar quarter.
2.02 The Royalty payor shall, within
60 days of the end of each calendar quarter, as and when any Net Smelter Returns are
available for distribution:
| |
(a)
pay or cause to be paid to the Royaltyholder that percentage of the Net Smelter
Returns to which the Royaltyholder are entitled under the Agreement less any
net smelter returns royalty or other royalties; |
| |
(b)
deliver to the Royaltyholder a statement indicating: |
| |
(i)
the gross amounts received from the purchaser contemplated in §1.01of this
Schedule “B”; |
| |
(ii)
the deductions therefrom in accordance with §1.01 of this Schedule “B”; |
| |
(iii)
the amount of Net Smelter Returns remaining; |
| |
(iv)
the amount of any net smelter returns royalty or other royalties; and |
| |
(v)
the amount of the Net Smelter Returns to which the Royaltyholder are entitled; |
| |
supported
by such reasonable information as to the tonnage and grade of ores or concentrates
shipped as will enable the Royaltyholder to verify the gross amount payable by the
smelter or other purchaser. |
| 3 |
|
ADJUSTMENTS
AND VERIFICATION |
3.01 Payment of any Net Smelter
Returns by Royaltypayor shall not prejudice the right of Royaltypayor to adjust any
statement supporting the payment; provided, however, that all statements presented to the
Royaltyholder by Royaltypayor for any quarter shall conclusively be presumed to be true
and correct upon the expiration of 12 months following the end of the quarter to which the
statement relates, unless within that 12-month period Royaltypayor gives notice to the
Royaltyholder claiming an adjustment to the statement which will be reflected in
subsequent payment of Net Smelter Returns.
3.02 Royaltypayor shall not adjust
any statement in favour of itself more than 12 months following the end of the quarter to
which the statement relates.
3.03 The Royaltyholder shall, upon 30
days’ notice in advance to Royaltypayor, have the right to request that Royaltypayor
have its independent external auditors provide their audit certificate for the statement
or adjusted statement, as it may relate to the Agreement and the calculation of Net
Smelter Returns.
3.04 The cost of the audit
certificate shall be solely for the Royaltyholder’ account unless the audit
certificate discloses material error in the calculation of Net Smelter Returns, in which
case Royaltypayor shall reimburse the Royaltyholder the cost of the audit certificate.
Without limiting the generality of the
B-3
foregoing, a discrepancy of one
percent in the calculation of Net Smelter Returns shall be deemed to be material.
| 4 |
|
ROYALTYPAYOR
TO DETERMINE OPERATIONS |
4.01 The Royaltypayor will have
complete discretion concerning the nature, timing and extent of all exploration,
development, mining and other operations conducted on or for the benefit of the Property
and may suspend operations and production on the Property at any time it considers prudent
or appropriate to do so. The Royaltypayor will owe the Royaltyholder no duty to explore,
develop or mine the Property, or to do so at any rate or in any manner other than that
which the Royaltypayor may determine in its sole and unfettered discretion. The
Royaltypayor may, but will not be obligated to treat, mill, heap xxxxx, sort, concentrate,
refine, smelt, or otherwise process, beneficiate or upgrade the ores, concentrates, and
other products at sites located on or off the Property, prior to sale, transfer, or
conveyance to a purchaser, user, or consumer. The Royaltypayor will not be liable for
mineral values lost in processing under sound practices and procedures, and no royalty
will be due on any such lost mineral values.
5.01 Ores, concentrates and
derivatives mined or retrieved from the Property may be commingled with ores, concentrates
or derivatives mined or retrieved from other properties. All determinations required for
calculation of Net Smelter Returns, including without limitation the amount of the metals
contained in or recovered from ores, solutions, concentrates or derivatives mined or
retrieved from the Property, the amount of the metals contained in or recovered from
commingled ores, solutions, concentrates or derivatives shall be made in accordance with
prudent engineering, metallurgical and cost accounting practices.
6.01 The Royaltypayor may, but need
not, engage in forward sales, futures trading or commodity options trading, and other
price hedging, price protection, and speculative arrangements (“Trading
Activities”) which may involve the possible delivery of base or precious metals
produced from the Property. The parties acknowledge and agree that the Royaltyholder shall
not be entitled to participate in the proceeds or be obligated to share in any losses
generated by the Trading Activities.
