MANAGEMENT AGREEMENT Between COPR ENTERPRISES, LLC And STWC HOLDINGS, INC. MANAGEMENT AGREEMENT

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Between

COPR ENTERPRISES, LLC

And

STWC HOLDINGS, INC.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THIS MANAGEMENT AGREEMENT ("Agreement") is entered into this ____ day of ________________________, 2018 ("Effective Date"), by and between, COPR Enterprises, LLC ("COPR"), a Puerto Rico limited liability company and STWC Holdings, Inc. ("Strainwise"), a Colorado corporation located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (for purposes of this Agreement, Strainwise shall be referred to as the "Manager")

WITNESSETH:

WHEREAS, COPR has acquired several provisional licenses to operate medical marijuana dispensaries in the Commonwealth of Puerto Rico (each a "Facility") (collectively, the "Enterprise");

WHEREAS, Strainwise provides branding, marketing, employee training and compliant dispensary management services; and

WHEREAS, COPR desires for Strainwise to (a) manage, operate, maintain and service the Enterprise on behalf of COPR subject to the terms of this Agreement and (b) provide other management services to COPR subject to the terms and provisions of this Agreement, and Manager desires to accept and assume such responsibilities upon the terms and conditions herein set forth.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and of other good and valuable consideration, the parties hereto agree as follows:

 

Article 1

COPR appoints Manager to provide those services described in this Agreement on behalf of COPR and undertakes to pay the Management Fee set forth herein, on the terms and conditions set forth herein.  Manager accepts such appointment and undertakes to perform such duties during the Term (as hereinafter defined) on the terms and conditions set forth herein.

Article 2

 

 

The provisions of this Article 2 shall survive the expiration or termination of this Agreement.

Article 3

 

 

Management Services, then upon the consent of Manager and COPR, each acting in its sole and absolute discretion, this Agreement may be amended to expand the scope of the Management Services and to reflect additional but under no circumstances less, remuneration, if any, to be paid therefor.  Manager shall provide the Management Services in accordance with the requirements of this Agreement.  Manager shall comply with all licensing and similar requirements of the applicable governmental authorities to which Manager is subject relating to performance by Manager.

 

 

the budget included as part of the Annual Plan (the "Budget").  Within ten (10) business days after receipt of an Annual Plan, COPR shall review such Annual Plan, providing any comments in COPR's reasonable discretion.  Manager may incorporate such changes as Manager reasonably deems appropriate and re-submit the Annual Plan within ten (10) business days following Manager's receipt of comments.  An Annual Plan shall not become effective until such Annual Plan has been accepted by COPR.  An Annual Plan that has been accepted by COPR pursuant to this Section 3.3 shall be referred to as an "Annual Plan."  The Budget that is included in an Approved Annual Plan shall be referred to as the "Accepted Budget".  In the event COPR has not accepted the Annual Plan prior to January 1st of any calendar year, Manager shall continue to manage the Enterprise in accordance with the prior calendar year's Annual Plan.

 

 

 

 

 

 

 

 

 

 

 

 

 

Article 4

 

 

Manager shall exercise good faith efforts to negotiate provisions for all Service or Product Contracts that will be substantially in the form provided by COPR (if provided previously by COPR to Manager) or provided by Manager and approved in advance by COPR.  Notwithstanding the foregoing, Managers execution of a Service Contract shall be deemed an approval of all the terms and conditions contained in such Service Contract.

Article 5

Notwithstanding anything to the contrary contained in this Agreement, each insurance policy obtained by COPR shall be primary and non-contributory to any insurance otherwise carried by Manager.  Manager shall furnish all information requested by COPR for the purpose of establishing the placement of insurance coverages and shall aid and cooperate in every reasonable way with respect to such insurance and any loss covered thereunder.  If requested in writing by Manager, COPR shall provide Manager a certificate evidencing the insurance required under this Section 5.1.

 

 

Article 6

Manager shall cooperate with and give reasonable assistance to any independent public accountant retained by COPR or a Subsidiary to examine any and all reports, books and records pertaining to the Enterprise.

 

 

The provisions of this Article 6 shall survive the expiration or termination of this Agreement.

Article 7

 

Article 8

Article 9

COPR shall use its commercially reasonable efforts to respond promptly to all inquiries and requests for COPR's consent made by Manager pursuant to this Agreement.

Article 10

 

 

THAT THE MANAGER INDEMNITEES BE INDEMNIFIED AGAINST THEIR OWN NEGLIGENCE (BUT NOT FOR THEIR GROSS NEGLIGENCE, MATERIAL WILLFUL MISCONDUCT OR FRAUD).  SUCH INDEMNITY FOR MANAGER INDEMNITEES' NEGLIGENCE SHALL BE LIMITED TO THE PROCEEDS OF THE INSURANCE COPR AND THE APPLICABLE SUBSIDIARY OR AFFILIATE MAINTAIN PURSUANT TO SECTION 5.1 (OR WHICH COPR AND THE APPLICABLE OR AFFILIATE SUBSIDIARY OR AFFILIATE SHOULD HAVE MAINTAINED PURSUANT TO SECTION 5.1 IF COPR AND THE APPLICABLE SUBSIDIARY OR AFFILIATE COMPLIED WITH SECTION 5.1).  TO THE EXTENT COPR AND/OR A SUBSIDIARY OR AFFILIATE USES ANY DEDUCTIBLES TO REDUCE OR MITIGATE PREMIUM OR RISK COST, SUCH DEDUCTIBLES WILL BE WHOLLY FOR THE ACCOUNT OF COPR OR SUCH SUBSIDIARY OR AFFILIATE (i.e., ANY DEDUCTIBLES PAID BY COPR AND THE APPLICABLE SUBSIDIARY OR AFFILIATE SHALL BE TREATED AS THOUGH IT WERE FIRST DOLLAR INSURANCE (i.e., ANY AMOUNTS PAID BY COPR AND/OR A SUBSIDIARY OR AFFILIATE AS A DEDUCTIBLE IN CONNECTION WITH A CLAIM RESULTING FROM THE NEGLIGENCE OF MANAGER INDEMNITEE SHALL BE PAYABLE TO THE APPLICABLE MANAGER INDEMNITEE).  COPR SHALL ASSUME ON BEHALF OF THE MANAGER INDEMNITEES THE DEFENSE OF ANY ACTION AT LAW OR IN EQUITY WHICH MAY BE BROUGHT AGAINST THE MANAGER INDEMNITEES BASED ON A CLAIM FOR WHICH INDEMNIFICATION IS PERMITTED HEREUNDER.  NOTWITHSTANDING THE FOREGOING, COPR SHALL NOT BE LIABLE UNDER THIS SECTION 10.2 IN RESPECT OF ANY AMOUNTS PAID TO THIRD PARTIES BY ANY MANAGER INDEMNITEES PURSUANT TO ANY SETTLEMENT OR COMPROMISE MADE OR PAID BY ANY MANAGER INDEMNITEES WITHOUT THE PRIOR WRITTEN CONSENT OF COPR UNLESS SUCH CONSENT HAS BEEN UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.  THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT WITH RESPECT TO ANY MATTERS OCCURRING BEFORE SUCH EXPIRATION OR TERMINATION.

 

 

provided and subject also to the obligation to cooperate with the other party as hereinabove set forth, each party shall be entitled to participate in the defense of any such Claim, initially at its own expense but with the benefit of subsequent indemnification pursuant to Section 10.1 (if the Protected Party is a COPR Indemnitee) or Section 10.2 (if the Protected Party is a Manager Indemnitee).  Even if the Indemnifying Party has assumed the defense of any Claim and has acknowledged its indemnification obligations with respect thereto, the Protected Party nevertheless shall be entitled to participate in such defense on its own behalf and at its own expense, subject to non-interference with insurance defense and the duty to cooperate with the Indemnifying Party as hereinabove provided.

Article 11

COPR shall pay to Manager, as remuneration for its services in accordance with the terms of this Agreement, a management fee (the "Management Fee") in the amount of Ten Thousand Dollars ($10,000) per month.

12.1                Permissible Activities of Manager: include but are not limited to (i) management of the Enterprise (ii) training, (iii) collections, (iv) cash management, (v) payment to itself of the Management Fees (and any other amounts due and owing to the Manager hereunder), (vi) payment to itself of other fees and amounts due and owing under any other agreements between Manager and COPR; and (vii) safety management and other roles as may be required by the COPR.

Article 12

 

Article 13

 

 

 

 

 

 

Article 14

If to COPR:

 

[________________________]

[________________________]

Attention: [_____________]

Telephone Number:  [___________]

Fax Number:  [___________]

If to Manager:

STWC Holdings, Inc.

Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, President and CEO

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The parties hereto may change their addresses by giving notice thereof to the other in conformity with this provision.

Article 15

15.10             No Recording.  Neither this Agreement nor any amendment hereto, nor any memorandum or short form thereof, shall be recorded or filed.  Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall not be a covenant running with any asset.

Remainder of Page Intentionally Blank.

Signature Page(s) Follows.

 

 

 

 

IN WITNESS WHEREOF, COPR and Manager have executed this Agreement as of the Effective Date.

STWC HOLDINGS, INC.:

STWC Holdings, Inc.

a Colorado corporation

By: _______________________________________

 

COPR ENTERPRISES, LLC

By:________________________________________

 

 

 

 

ITEMS TO BE INCLUDED IN ANNUAL PLAN

The Annual Plan shall include, without limitation, the following items:

1.

a detailed estimate of the gross projected revenues for the forthcoming fiscal year, including amounts and supporting schedules as applicable;

2.

a detailed operating budget for the forthcoming fiscal year, including debt service payments and a statement authorizing the Manager to pay down debt from the COPR operating account and all other operating accounts relating to the Enterprise;

3.

analysis of the sales in the market in which the Enterprise and/or Facility is located, including, without limitation, a detailed discussion of the general market and the applicable submarket, existing rates and trends, concessions, and all competitive properties, and a schedule of rates charged and operating costs incurred by similar properties in the market in which the Enterprise is located;

4.

a statement as to the projected balances of the working capital and replacement reserve accounts as of the first day of the forthcoming fiscal year;

5.

a statement as to the projected additions to or disbursements from such reserve accounts for the forthcoming fiscal year;

6.

an estimate of the projected net cash flow for the forthcoming fiscal year;

7.

a detailed description of the renovations, major repairs or other capital improvements, if any, proposed to be undertaken during the forthcoming fiscal year;

8.

a capital budget covering the renovations, major repairs or other capital improvements, if any, proposed to be undertaken during the forthcoming fiscal year;

9.

a description of the terms and conditions proposed sales contracts for the forthcoming fiscal year which serve as the basis for the gross projected revenues;

10.

a description of the terms and conditions proposed with respect to material contracts for the forthcoming fiscal year;

11.

a description of the significant maintenance and repair schedules for the fiscal year; and

12.

standard operating procedures for the operation of the Enterprise.

 

 

 

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DEVELOPMENT AGREEMENT

between

COPR Enterprises, LLC

And

STWC Holdings, Inc.

DEVELOPMENT AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This Development Agreement is made as of the ____ day of ______________ by and between COPR Enterprises, LLC, a Puerto Rico limited liability company with an address of _____________________________________("COPR") and STWC Holdings, Inc., a Colorado corporation with an address of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("STWC").  COPR and STWC are each individually referred to herein as a "Party" and are collectively referred to herein as the "Parties".

  

RECITALS

 

NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises herein contained the receipt and sufficiency of which are expressly acknowledged, COPR and STWC hereby agree as follows:

ARTICLE 1

DEFINITIONS, OBJECTIVES, MANAGEMENT AND PRE-CONSTRUCTION ACTIVITIES

 

 

"Affiliate" means, with respect to any Person (defined below), (i) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, 10% or more of the equity interests having ordinary voting power in the election of directors or managers of such Person, (ii) each Person that controls, is controlled by or is under common control with such Person, (iii) each of such Person's officers, directors, joint ventures and partners, (iv) any trust or beneficiary of a trust of which such Person is the sole trustee or (v) any lineal descendants, ancestors, spouse or former spouses (as part of a marital dissolution) of such Person (or any trust for the benefit of such Person). For the purpose of this definition, "control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.  Notwithstanding the foregoing, no lender(s) that make any development or construction loans to COPR for purposes of the Project or the Enterprise shall be deemed an "Affiliate" of STWC solely by virtue of being under common control with STWC or having a director or minority of directors in common.

"Agreement" shall mean this Development Agreement.

"Applicable Law" shall mean all laws of the United States, the Commonwealth and any political subdivision thereof or any other Governmental Authority which apply to any transaction or activity contemplated under the terms and provisions of this Agreement. Notwithstanding the foregoing, Applicable Law shall not include the U.S. Controlled Substances Act, 21 U.S.C. Ch. 13 et. seq. and corresponding federal laws.

"Commencement Date" shall mean the first date that the Facility is complete and operations begin.

"Completion Date" shall mean the date upon which COPR receives:

"Concept Design" shall have the meaning set forth in Section 3.3.

 

"Confidential Information" shall have the meaning set forth in Section 13.3.

 

"Construction and Development Costs" shall mean any and all costs and expenses incurred in connection with: (i) the design, development, construction and start-up of the Facility, including, without limitation: (a) all fees and expenses payable pursuant to the terms and provisions of the Design Agreements, (b) all fees and expenses incurred for architectural, engineering, environmental, interior design work, site work, construction costs, material and labor expenses, and planning and professional fees not otherwise included in the Design Agreement, (c) infrastructure improvements, utility installations and hook-up fees, (d) construction permits, certificates and bonds and (e) any payments or expenditures required under the terms of the Commonwealth or any other governmental entity, related to impact mitigation or costs of providing services, (ii) the acquisition, installation and initial testing of the Furnishing and Equipment within the Facility, (iii) Start-Up Expenses, (iv) STWC Fee, payable and (v) all costs, fees and expenses, however designated, incurred in connection with or pursuant to any construction or development-related borrowings by COPR relating to the Project or the Enterprise.

"Construction Documents" shall have the meaning set forth in Section 4.4.

"Construction Manager" shall mean the individual employed by STWC as such pursuant to Section 4.1.

"Design Agreement" shall have the meaning set forth in Section 3.1.

"Design Packages" shall have the meaning set forth in Section 3.1.

"Development Budget" shall have the meaning set forth in Section 3.2.

"Development Fee" shall have the meaning set forth in Section 6.1.

"Development Committee" shall have the meaning set forth in Section 1.4.

"Dispute" shall mean any threatened, pending or completed claims of damage or loss of any kind or nature, including actions, suits or proceedings, whether civil, criminal, administrative, arbitrative or investigative, or any appeal in connection with such proceeding.

"Enterprise" has the meaning set forth in the Recitals.

"Execution Date" shall mean the date upon which both Parties have executed this Agreement.

"Facility" or "Facilities" shall mean the buildings, structures and improvements located on the Property used by COPR in connection with the conduct of the Enterprise, or the operation, maintenance or management of the Project, and all fixtures, Furnishings and Equipment attached thereto, forming a part of, or necessary for the operation of the Facility. It is expected and contemplated that there will be multiple Facilities and Properties as part of the Enterprise.

 

"Furnishings and Equipment" shall mean all furniture, furnishings and equipment required for the operation of the Facility in accordance with the standards set forth in this Agreement or as may be necessary to satisfy any Legal Requirement or Applicable Laws.

"Governmental Authority" shall mean any Commonwealth or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

"Legal Requirements" shall mean any and all approvals, consents, authorizations, permits, licenses, certifications of any nature from any Governmental Authority pursuant to Applicable Law necessary for: (i) this Agreement to constitute valid, binding obligations of the Parties enforceable pursuant to the terms and provisions hereof or thereof, (ii) the consummation of any transaction contemplated under this Agreement, or the performance of any obligation either Party has assumed and agreed to perform hereunder or thereunder, and (iii) the design, development, financing, construction, maintenance, management and operation of the Facility and the Project in compliance with all Applicable Laws.

"Manager" shall mean STWC, or such subsidiary of STWC as it shall designate.

"Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity, or a Governmental Authority.

"Plans and Specifications" shall mean the final Plans and Specifications approved for the Facility pursuant to and in accordance with the terms and provisions of Section 3.6 of this Agreement.

"Project" shall mean the design, development, construction, financing and initial equipping of the Enterprise and related Facility and other improvements related to the Enterprise.

"Property" or "Properties" shall mean land identified in Exhibit E hereof.

"Reimbursable Project Costs" has the meaning set forth in Section 1.8.

"STWC Fee" shall mean the fees payable to STWC under Section 6.1.

"Start-Up Expenses" shall mean expenses which STWC anticipates to be necessary or desirable in order to prepare the Facility for the Commencement Date, including without limitation, cash for disbursements, Furnishing and Equipment, hiring, training, relocation and temporary lodging of employees,  office overhead, and reasonable travel and business entertainment (including opening celebrations and ceremonies); provided, however, Start-Up Expenses shall not include any costs or expenses of STWC or its Affiliates, or their employees, such as, without limitation overhead or general and administrative expenses, attorneys' fees, all of which shall be paid and borne only by STWC and its Affiliates, except as specifically set forth in this Agreement.

"Commonwealth" shall refer to the Commonwealth of Puerto Rico.

 

 

"Tax" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under IRS Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other taxes, fees, duties, tariff, licenses or other similar charges of any kind whatsoever (whether or not specifically called a "tax"), including any interest, penalty, or addition thereto, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

 

"Term" shall mean the term of this Agreement as set forth in Article 5.

The Parties acknowledge and agree that nothing contained herein is intended or shall be construed to grant STWC or any Affiliate any proprietary interest whatsoever in the Properties, the Facilities, or any the Enterprise activities conducted within the Facilities, or have any right to possess or control the Properties, the Facilities, any employee thereof, or any Enterprise activities conducted thereby, or the Furnishing and Equipment unless such proprietary interest is approved by the members of COPR and such ownership is permitted under applicable Commonwealth law.

(1)

Any agreement or understanding, and any amendment, modification or alteration thereof, with any Governmental Authority, relating to the transactions contemplated hereunder and under this Agreement or any other agreement to which COPR and STWC are parties.

(2)

Approval of the Development Plan pursuant to Section 1.4, and any material amendment, modification or alteration of the Development Plan.

(3)

Selection of each member of the Design Team pursuant to Section 2.1, and any change of Design Team members.

(4)

Approval of the Design Agreements pursuant to Section 2.1, and any material amendment, modification or alteration of any of the Design Agreements.

 

 

 

(5)

Approval of the Design Packages pursuant to Section 2.1, and any material amendment, modification or alteration of any Design Package.

(6)

The Development Budget pursuant to Section 2.2, and any material amendment, modification or alteration of the Development Budget.

(7)

Approval of the Concept Design pursuant to Section 2.3, and any material amendment, modification or alteration of the Concept Design.

(8)

Approval of the Program Evaluation of the Project pursuant to Section 2.4, and any material amendment, modification or alteration of the preliminary evaluation.

(9)

Approval of the Schematic Design Documents pursuant to Section 2.4, and any material amendment, modification or alteration to any of the Schematic Design Documents.

(10)

Approval of the Design Development Documents pursuant to Section 2.5, and any material amendment, modification or alteration of any of the Design Development Document.

(11)

Any changes to this Agreement.

(12)

The Plans and Specifications pursuant to Section 2.6, and all material amendment, modification or alteration of the Plans and Specifications or design elements therein.

(13)

Approval of the Construction Manager, if required, pursuant to Section 3.1, and any change in the Construction Manager.

(14)

Approval of the Construction Documents pursuant to Section 3.4, and any material amendment, modification or alteration of the Construction Documents.

(15)

Specifications of and selection of vendors for Furnishings and Equipment pursuant to Section 4.1.

(16)

Any agreement requiring execution by, or otherwise binding COPR, including, without limitation, the Design Agreements and the Construction Documents, and any amendment or modification thereof, including any change order affecting the price by Ten Thousand Dollars ($10,000) or more.

COPR shall respond to any request for approval as to any matter within seven (7) business days of receiving a written request specifying the request in reasonable detail.

 

Section 1.4.     Development Plan.  As soon as reasonably practical after the Execution Date, the parties will work together to develop a Development Plan for each Facility.  The Development Plan shall address, among other things, all of the Legal Requirements which must be satisfied prior to the effective date, including, without limitation: (i) written approval of this Agreement, (ii) COPR's receipt of all applicable licenses required from any Governmental Authority pursuant to Applicable Law for or related to development and construction of the Facility or Facilities, and (iii) Proof of receipt of any and all necessary licenses, permits and approvals required from any Governmental Authority under Applicable Law in connection with the design, development, financing, construction, of the Facility or Facilities pursuant to and in accordance with this Agreement.  The Development Plan shall detail the steps the parties believe are reasonably necessary to satisfy each of foregoing, as well as reasonable timelines for the satisfaction of each of the foregoing.  The parties shall revise the Development Plan as frequently as the parties deem necessary and appropriate.

 

Section 1.5.     Reimbursable Project Costs.  "Reimbursable Project Costs" shall include those costs, fees and expenses directly related to the design, development and construction of the Facility or Facilities incurred in connection with the performance of this Agreement, including, without limitation, costs and expenses incurred in connection with: (i) satisfaction of all of the conditions to the Effective date and of all Legal Requirements for the design, development, financing, construction, operation and management of the Facility or Facilities pursuant to and in accordance with the terms and provisions of this Agreement, (ii) site and Facility planning, (iii) architectural renderings, plans and working documents, (iv) engineering and environmental services, (v) working drawings, (vi) construction contract bidding, (vii)  COPR legal and consultant costs, (viii) Project management costs, and (ix) all other pre-construction professional costs.

Except as specifically set forth in this Agreement to the contrary, no costs or expenses of STWC or its Affiliates, or their employees, such as, without limitation, overhead or general and administrative expenses, or attorneys' fees shall be included as Reimbursable Project Costs, all such costs or expenses shall be paid and borne only by STWC and its Affiliates.

Section 1.6.     Project Budget.  Upon receipt of the Development Plan, the Parties shall prepare a project budget for the purpose of undertaking the performance of the Project (the "Project Budget").  The Project Budget shall include reasonably specific line items for all costs and expenses reasonably anticipated in connection with performance of the Project, including, without limitation, (i) projections of all Reimbursable Project Costs.  In the event that the Parties fail to jointly approve a Project Budget, until such deadlock is resolved, the most recent jointly approved Project Budget shall remain effective, and then costs, fees or expenses that are actually incurred by STWC and are within the projected total costs of the last approved Project Budget shall be Reimbursable Project Costs.  The initial Project Budget is attached hereto and incorporated herein as Exhibit B, and is hereby deemed approved.

 

 

ARTICLE 2

DESIGN PHASE

 

As portions of the detailed Plans and Specifications are completed for segments of the Project, the Design Team shall be required to submit duplicate copies of those portions of the Plans and Specifications to STWC and STWC shall review said plans with COPR for approval by both STWC and COPR prior to release of such documents to prospective bidders for bidding, if applicable.

 

ARTICLE 3

CONSTRUCTION PHASE

 

ARTICLE 4

FURNISHINGS AND EQUIPMENT

ARTICLE 5

TERM

 

ARTICLE 6

STWC FEES

d)  Construction Fee: An amount, payable in cash, equal to five percent (5%) of the total amount of the Construction and Development Costs, (but exclusive of the fees set forth in (a) – (d) above), not to exceed five hundred thousand dollars ($500,000) in the aggregate.  The Construction Fee shall be paid incrementally:  each time that any Construction and Development Costs are paid, an amount equal to 5% of such paid Construction and Development Costs shall be paid by COPR to STWC, subject to the aggregate $500,000 limit set forth above. 

The Development Fee shall be the only compensation to STWC for its services under this Agreement.  Notwithstanding the generality of the foregoing, COPR may unanimously approve fees, costs and expenses, in addition to those fees either before or after they are incurred in which event such costs, fees or expenses shall be Reimbursable Project Costs. Any costs, fees or expenses reasonably incurred by STWC for Project purposes or for COPR in response to unanticipated demands or emergencies shall be Reimbursable Project Costs.

ARTICLE 7

EXCLUSIVITY

ARTICLE 8

REPRESENTATIONS, WARRANTIES, AND COVENANTS

 

(i)

COPR's execution, delivery and performance of this Agreement, and all other instruments and agreements executed in connection with this Agreement, has been properly authorized by COPR's members.

 

 

 

(ii)

This Agreement, subject to satisfaction of all Legal Requirements, have been properly executed, and once approved in accordance with Legal Requirements constitute COPR's legal, valid and binding obligations, enforceable against COPR  in accordance with their terms.

(iii)

Except as set forth in Exhibit C attached hereto and incorporated herein, there are no actions, suits or proceedings, pending or threatened, against or affecting COPR  before any court or Governmental Authority of which STWC has not been advised of in writing by COPR  and which STWC has acknowledged.

(iv)

That COPR shall not act in any way whatsoever, directly or indirectly, to cause this Agreement to be amended, modified, canceled, or terminated, except pursuant to the express terms of this Agreement, and shall take all actions necessary to ensure that this Agreement shall remain in full force and effect at all times.

(i)

STWC's execution, delivery and performance of this Agreement and all other instruments and agreements executed in connection with this Agreement have been properly authorized by STWC and do not require further approval.

(ii)

This Agreement has been properly executed, and once approved in accordance with Legal Requirements, constitutes STWC's legal, valid and binding obligations, enforceable against STWC in accordance with its terms.

(iii)

Except as provided for in Exhibit D hereto, there are no actions, suits or proceedings pending or threatened against or affecting STWC before any court or governmental agency that would in any material way affect STWC's ability to perform this Agreement.

(iv)

That STWC shall not act in any way whatsoever, directly or indirectly, to cause this Agreement to be amended, modified, canceled, or terminated, except pursuant to its express terms, and shall take all actions necessary to ensure that this Agreement shall remain in full force and effect at all times, including acceptance of reasonable notice according to Section 9.

(v)

That STWC has the ability and expertise to perform all requirements of STWC provided for in this Agreement.

 

ARTICLE 9

EVENTS OF DEFAULT

(i)

An Event of Default by COPR occurs under this Agreement, or any other indebtedness to STWC that COPR  owes or has guaranteed and such failure shall remain uncured pursuant to the terms and provisions of Section 9.5 of this Agreement.

(ii)

COPR shall default in the due observance or performance of any of its obligations, representations, warranties or covenants hereunder and shall not have commenced and diligently pursued the cure of such default pursuant to Section 9.5 of this Agreement.

(iii)

Any material representation or warranty that COPR has made under this Agreement shall later prove untrue without notice to STWC of the change in status and written acceptance by STWC of the changed status.

(iv)

COPR violates the provisions of Article 8 of this Agreement.

(v)

COPR fails to take any and all reasonable steps necessary to satisfy all Legal Requirements for any of this Agreement or any contract, agreement, instrument or understanding provided for therein to constitute valid and binding obligations of COPR.

(vi)

COPR shall: (a) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) admit in writing its inability, or be generally unable, to pay its debts as they become due, (c) make a general assignment for the benefit of creditors, (d) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (e) be adjudicated insolvent or be the subject of an order for relief under any chapter of the Bankruptcy Code (11 U.S.C. §101, et. seq.), (f) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, or (g) acquiesce to, or fail to controvert in a timely manner, any petition filed against it in an involuntary case under such bankruptcy laws.

(vii)

A case or other proceeding shall be commenced against, and without the application or consent of COPR in any court of competent jurisdiction, seeking the liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts of COPR, the appointment of a trustee, receiver, custodian, liquidator or the like of COPR, or any similar action with respect to COPR under the federal bankruptcy laws (as now or hereafter in effect) or any other laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty days, or an order for relief against COPR  shall be entered in an involuntary case under such bankruptcy laws.

 

 

(i)

STWC shall default in the due observance or performance of any of its obligations, representations, warranties or covenants hereunder and shall not have commenced and diligently pursued the cure of such default pursuant to Section 9.5 of this Agreement.

(ii)

Any material representation or warranty that STWC has made under this Agreement shall prove to have been untrue when made, or is later untrue without notice to COPR of the change in status and written acceptance by COPR of the changed status.

(iii)

STWC shall be in material breach under this Agreement after any applicable cure periods thereunder.

(iv)

STWC shall: (a) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) admit in writing its inability, or be generally unable, to pay its debts as they become due, (c) make a general assignment for the benefit of creditors, (d) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (e) be adjudicated insolvent or be the subject of an order for relief under any chapter of the Bankruptcy Code (11 U.S.C. §101, et. seq.), (f) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, or (g) acquiesce to, or fail to controvert in a timely manner, any petition filed against it in an involuntary case under such bankruptcy laws.

 

 

 

(v)

A case or other proceeding shall be commenced against, and without the application or consent of STWC in any court of competent jurisdiction, seeking the liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts of STWC, the appointment of a trustee, receiver, custodian, liquidator or the like of STWC, or any similar action with respect to the  STWC under the federal bankruptcy laws (as now or hereafter in effect) or any other laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty days, or an order for relief against STWC  shall be entered in an involuntary case under such bankruptcy laws.

Upon the occurrence of an Event of Default caused by STWC under any subsection of Section 9.3 COPR shall provide STWC with written notice of the Event of Default, which notice shall, among other things, specifically advise STWC of the acts or omissions constituting the Event of Default, the actions STWC must take, or refrain from taking, to cure such Event of Default, and STWC's right to cure such Event of Default pursuant to and in accordance with the terms and provisions of Section 9.5 of this Agreement. If the Event of Default described in the notice provided for above remains uncured under the terms of Section 9.5 hereof, COPR may, upon written notice to STWC terminate this Agreement and its obligations hereunder, and may exercise any other rights and remedies available to COPR pursuant to this Agreement, Applicable Law or in equity.

Upon the occurrence of an Event of Default, the Party claiming the Event (the "Non-defaulting Party") shall provide the other Party (the "Defaulting Party") with written notice of such Event of Default which shall, among other things, specifically advise the Defaulting Party of the acts or omissions constituting the Event of Default, the actions the Defaulting Party must take, or refrain from taking, to cure such Event of Default, and the defaulting Party's right to cure such Event of Default pursuant to and in accordance with the terms and provisions of this Section 9.5.  The Defaulting Party shall have thirty (30) days from and after the date of the written notice to cure such Event of Default (the "Cure Period"), provided, however, the Cure Period shall be automatically extended for a reasonable time, in all cases except COPR's  failure to make payments due and payable under this Agreement and when such payments are due and payable pursuant to the terms and provisions of this Agreement, if the Defaulting Party commences to cure such Event of Default within the Cure Period but cannot reasonably cure such Event of Default within such period.  An Event of Default shall be deemed to continue until such Event of Default is cured to the written satisfaction of the Non-defaulting Party, which written instrument shall not be unreasonably withheld.

 

During the period specified in the notice to terminate, a Party may pursue the dispute resolution provisions of this Agreement set forth at Article 11 hereof.  The periods specified by this Section, and the term of this Agreement, shall be tolled, rather than extended, during the pendency of any dispute resolution proceedings under this Section.

 

Under no circumstance shall STWC be liable to COPR for, special, indirect, consequential, exemplary or punitive damages of any kind, including any economic loss, lost profits, or any other losses or damages to COPR or any third parties for any reason.  Under no circumstances shall STWC be obligated to pay to COPR, as damages resulting from any Dispute (including any Disputes involving the same fact and circumstances or otherwise related the such Dispute), any amount greater than the actual aggregate amount paid to STWC for the preceding twelve (12) months prior to determination of such damages relating to such Dispute or related Disputes.

 

ARTICLE 10

TERMINATION

 

(i)

Section 10.4 of this Agreement shall apply if it reasonably appears that the issues can be resolved within the 2 (two) year period specified in that Section;

 

 

 

(ii)

STWC, and COPR shall retain all money previously paid to them pursuant to this Agreement; and

(iii)

COPR  shall retain its interest in the title (and any lease) to all Furnishings and Equipment, subject to the rights of STWC under this Agreement, and any other applicable agreement.

(i)

Either Party may terminate this Agreement if any Governmental Authority whose approvals, consents, authorizations, permits, licenses, certifications of any nature from any Governmental Authority pursuant to Applicable Law necessary for: (a) this Agreement to constitute a valid, binding obligation of the Parties enforceable pursuant to the terms and provisions hereof, and (b) the design, development, financing, construction, maintenance, management and operation of the Project and the Facility in compliance with all Applicable Laws has failed to grant such approval, consent, authorization, permit, license, or certification and it appears that the same cannot be obtained in any reasonable time; provided, however, that this Agreement shall not be terminated pursuant to this Section while either Party pursues such approvals, consents, authorizations, permits, licenses or certifications.

(ii)

STWC may terminate this Agreement if STWC has been notified by any Governmental Authority that the performance by it of any obligation imposed by this Agreement will jeopardize the retention of any license, or approvals granted thereunder, held by STWC or any of its Affiliates in any other jurisdiction, and COPR unreasonably refuses to allow STWC to immediately rectify any such complaint.

(iii)

Either Party may terminate this Agreement if the terminating Party reasonably believes that the performance by the other Party of any obligation imposed under this Agreement may reasonably be expected to result in the breach of any Legal Requirement or Applicable Law and the non-terminating Party has unreasonably failed to agree upon waiver or modification of such performance within ten (10) days written notice by the terminating Party.

(iv)

STWC may terminate this Agreement if, through its own voluntary actions, COPR  fails to pay when due, any portion of the Development Fee or any other fees or payments required of COPR under any other contract to which STWC and COPR is a party.

 

Section 10.4.     Recommencement of Operations.     If the Enterprise, or construction and development of a Facility on a correlating Property, is prohibited by Applicable Law for a period of two (2) years or more, this Agreement may be terminated by either Party with respect to that Facility and Property, and STWC shall be entitled to only so much of the Development Fee as was due and payable at or before the time of cessation of the Enterprise or development. Any such termination shall not affect any other Facilities or Properties covered under this Agreement.

 

 

 

 

Section 10.4.2.     Tolling of the Agreement.  If, after a period of cessation of construction, development or operation of the Facility on the Property, the recommencement of such construction, development or operation is possible, and if neither Party has terminated this Agreement under the provisions of this Agreement for the specific Facility and Property at issue, the period of such cessation shall not be deemed to have been part of the term of this Agreement and the date of expiration of the term of this Agreement shall be extended by the number of days of such cessation period.  Any reasonable payments made to any third Party with the approval of COPR to eliminate rights acquired in the Property or the Facility during the period of cessation shall constitute Reimbursable Project Costs.

 

ARTICLE 11

DISPUTE RESOLUTION

The Parties shall (i) attempt to resolve all Disputes arising hereunder promptly, equitably and in a good faith manner; and (ii) provide each other with reasonable access during normal business hours to any and all non-privileged records, information and data reasonably material to any such Dispute.

 

 

 

 

 

Section 11.5.1  Definition.  "Confidential Information" is defined as any information disclosed, whether orally, in writing, or electronically, to the COPR, STWC, or any officer, director, employee, shareholder, affiliate, agent or attorney thereof, by or on behalf of COPR or STWC or any officer, director, employee, shareholder, affiliate, agent or attorney thereof which relates in any way to COPR, STWC, the Facility the Project or the Property or which is identified by the Disclosing Party at the time of disclosure as "confidential."  As used in this Agreement, the term "Disclosing Party" shall be the Party to this Agreement which discloses or causes the disclosure of Confidential Information, and the term "Receiving Party" shall be the Party to this Agreement

 

 

which receives Confidential Information, provided, however, that the Receiving Party and the Disclosing Party with respect to any Confidential Information may not be the same Party.  Confidential Information may include, without limitation: (i) organizational documents of COPR or STWC, or any member or affiliate thereof, (ii) any contracts, instruments, agreements or understandings to which the Tribe, Warm Springs or STWC is a Party and which relates to the Project, the Facility or the Property, and (iii) studies or financial projections relating to the Project or the Facility, regardless of the source of such study or projection.  All Parties acknowledge that no Disclosing Party shall be deemed to make any representation or warranty as to the accuracy or completeness of any Confidential Information provided to any Receiving Party or any other Party and nothing herein shall be deemed to obligate any Party to disclose any Confidential Information to any other Party, or to enter into any transaction with any other Party.

Section 11.3.2  Restrictions.  The Receiving Party shall hold all Confidential Information in strict confidence, shall prevent unauthorized disclosure of the Confidential Information to any third party, in whole or in part, and shall not use any Confidential Information for any purposes other than pursuing consummation of the transactions contemplated hereunder.  The standard of care imposed on the Receiving Party for protecting Confidential Information will be reasonable and prudent care to prevent improper disclosure or use of Confidential Information, including, without limitation, by restricting access to the Confidential Information to only those employees or other persons who need access to it for purposes of the Receiving Party's performance of the obligations the Receiving Party has assumed and agreed to perform hereunder,  and by obligating such persons to comply with the restrictions provided in this Agreement. In the event of loss or theft of any documents, items of work in progress, or any work products embodying Confidential Information, the Receiving Party shall immediately notify the Disclosing Party.

Section 11.3.3  Copying.  The Receiving Party shall not copy or reproduce Confidential Information in any form, without the written consent of the Disclosing Party, and shall keep accurate records of all copies or reproductions of Confidential Information made by the Receiving Party or persons on its behalf, which records shall be made available to the Disclosing Party upon request.

Section 11.3.4  Permissible Disclosures.  A Receiving Party shall not be subject to the obligations of this Agreement with respect to Confidential Information which: (i) is or becomes known publicly through no wrongful act of the Receiving Party or persons acting on its behalf; or (ii) is disclosed to the Receiving Party by a third party under no obligation of secrecy or confidentiality to the Disclosing Party and to whom the Disclosing Party disclosed the Confidential Information voluntarily; or (iii) is approved for release by written authorization of the Disclosing Party; or (iv) is subject to a valid order of a judicial or other Governmental Authority, provided, however, that in the case of a governmental order, the Receiving Party shall notify the Disclosing Party of the order in a reasonable time prior to disclosure in order to allow the Disclosing Party the opportunity to challenge the order or otherwise protect the Confidential Information.

 

Section 11.3.5  No License Granted. No right or license, whether expressed or implied, in the Confidential Information is granted to the Receiving Party other than to use the Confidential Information in the manner and to the extent authorized by this Agreement, for evaluation by the Receiving Party and for the performance of the obligations the Receiving Party has assumed and agreed to perform hereunder.  Upon termination of this Agreement pursuant to the terms and provisions hereof, the Receiving Party shall promptly return to the Disclosing Party, upon request, all Confidential Information and all copies thereof, and notes, extracts or derivative information related thereto, in whatever form of storage or retrieval; provided however, that the Receiving Party may retain one copy of each such piece of Confidential Information for archive purposes. No information, release, public announcement, confirmation or denial concerning any potential transaction, the fact that discussions, negotiations or evaluations are taking place, or the terms, conditions or other facts with respect thereto will be made by any Party without prior coordination with, and express approval of each of the other Parties.

Section 11.3.6  Other Information.  Whether or not it constitutes Confidential Information, STWC shall treat as confidential and, except as necessary to properly carry out its duties hereunder, shall not disclose to any third party any information about the Facility or its business or employees, including financial information.

 

ARTICLE 12

GENERAL

or to such other different address(es) as STWC or COPR  may specify in writing.  Any such notice shall be deemed given two days following deposit in the United States mail or upon actual delivery, whichever first occurs.

 

 

 

Section 12.18.     Execution.  This Agreement may be executed in counterparts, and shall be deemed executed and binding upon all Parties when properly executed.

 

 

 

 

 

 

 

 

REMAINDER OF PAGE LEFT BLANK

 

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first above written.

COPR ENTERPRISES, LLC
By:			Date:
	▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Its:	Managing Member
STWC HOLDINGS, INC.
By:			Date:
	▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:	President and CEO