Exhibit 10.8
MANAGEMENT SIDE AGREEMENT
RMB RESOURCES LIMITED
RMB INTERNATIONAL (DUBLIN) LIMITED
WESTERN MESQUITE MINES, INC.
and
▇▇▇▇▇▇▇▇ WESTERN CONSTRUCTION CORPORATION
Freehills
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QV.1 Building ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Telephone ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Facsimile ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ DX ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PERTH BRISBANE HANOI HO CHI MINH
CITY SINGAPORE Correspondent Offices JAKARTA KUALA
LUMPUR
Liability limited by the Solicitors' Limitation of
Liability Scheme, approved under the Professional
Standards ▇▇▇ ▇▇▇▇ (NSW) DAW:CEP:80559145
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TABLE OF CONTENTS
Clause Page
1 INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 2
1.3 Business Day 3
1.4 Precedence of obligations 3
2 UNDERTAKINGS OF THE CONTRACTOR 3
2.1 Termination of Management Contract by Principal 3
2.2 Notice of Termination 3
2.3 Amendments to the Management Contract 4
2.4 Information 4
3 STEP-IN AND STEP-OUT RIGHTS 4
3.1 Exercise of step-in rights 4
3.2 Operation of step-in rights 4
3.3 Contractor's obligations during Step-in Period 5
3.4 Step-out rights 5
4 NOTICES 5
4.1 Notices 5
4.2 Governing law 6
4.3 Counterparts 7
4.4 Attorneys 7
4.5 Term 7
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THIS MANAGEMENT SIDE AGREEMENT
is dated as of 5 November 2003 between the following parties:
1. RMB RESOURCES LIMITED
of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(AGENT)
2. RMB INTERNATIONAL (DUBLIN) LIMITED
of ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
(LENDER)
3. WESTERN MESQUITE MINES, INC.
of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ #▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(PRINCIPAL)
4. ▇▇▇▇▇▇▇▇ WESTERN CONSTRUCTION CORPORATION
of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(CONTRACTOR)
RECITALS
A. Under the Management Contract, the Contractor has agreed to
provide operation, maintenance and technical services to the
Principal on the terms and conditions set out in that contract.
B. The parties have agreed to enter into this agreement to record
the agreements between them in relation to the Management
Contract.
THE DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this agreement, the parties agree:
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1 INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless the contrary intention appears:
AUTHORISED OFFICER means:
(a) in relation to the Principal and the Contractor, a chief
executive officer or chief financial officer for the time being;
and
(b) in relation to a Finance Party, a director, an associate
director, a company secretary, president, vice president, an
officer whose title contains the word "director", "manager",
"president" or "executive", or a person performing the functions
of any of them,
or, in any case, a person appointed by a party to act as an Authorised
Officer for the purposes of this agreement;
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BUSINESS DAY means a day on which banks are open for general banking
business in both London, England and Denver, Colorado excluding
Saturdays, Sundays and public holidays;
FINANCE PARTY means each of the following:
(a) the Agent; and
(b) the Lender;
MANAGEMENT CONTRACT means the contract for operation, maintenance and
technical services to be provided by the Contractor in relation to the
Project between the Principal and the Contractor relating to the
operation and development of the Project and includes any variation to
that document;
PROJECT means the Mesquite ▇▇▇▇▇ heap extraction project in Imperial
County, State of California in the United States of America;
STEP-IN DATE means the date specified in the Step-in Notice as the
date for assumption of the obligations of the Principal under the
Management Contract;
STEP-IN NOTICE means a written notice given by the Agent to the
Contractor under clause 3.1;
STEP-IN PERIOD means the period from and including the Step-in Date to
but excluding the Step-out Date;
STEP-OUT DATE has the meaning provided in clause 3.4;
SUSPENSION PERIOD has the meaning provided in clause 2.2(b);
TERMINATION ACTION has the meaning provided in clause 2.2(a); and
TERMINATION NOTICE means a written notice given by the Contractor to
the Agent under clause 2.2(a).
1.2 INTERPRETATION
In this agreement:
(a) headings and underlinings are for convenience only and do not
affect the interpretation of this agreement;
(b) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
(c) words indicating the singular include the plural and vice versa;
(d) an expression indicating a natural person includes a company,
corporation or other body corporate, firm, partnership, joint
venture, association, authority, trust or governmental agency;
(e) words indicating gender include any gender;
(f) a reference to a clause, party or schedule is a reference to a
clause of, and a party and schedule to, this agreement and a
reference to this agreement includes any schedule;
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(g) a reference to a document includes all amendments or supplements
to, or replacements or novations of, that document;
(h) a reference to a party to a document includes that party's
executors, administrators, substitutes, successors and permitted
assigns; and
(i) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning.
1.3 BUSINESS DAY
If the day on which any act, matter or thing is to be done under or
pursuant to this deed is not a Business Day, the act, matter or thing
may be done on the next Business Day.
1.4 PRECEDENCE OF OBLIGATIONS
If any ambiguity, inconsistency or conflict of obligations exists or
arises between this agreement and the Management Contract relating to
the subject matter of this agreement, the provisions of this agreement
take precedence over the Management Contract and apply to resolve that
ambiguity, inconsistency or conflict.
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2 UNDERTAKINGS OF THE CONTRACTOR
2.1 TERMINATION OF MANAGEMENT CONTRACT BY PRINCIPAL
The Contractor acknowledges and agrees that the Principal may not
terminate the Management Contract without the prior written consent of
the Agent, and each of the Principal and the Contractor acknowledges
and agrees that no termination is valid or effective without the prior
written consent of the Agent.
2.2 NOTICE OF TERMINATION
The Contractor undertakes to the Agent that:
(a) it will not exercise or seek any right of termination of, or
discontinue the performance of any of its obligations under, the
Management Contract (any action of that kind being referred to as
TERMINATION ACTION), without first giving to the Agent a
Termination Notice specifying the event giving rise to the right
of termination; and
(b) for a period of 30 days following receipt by the Agent of a
Termination Notice (SUSPENSION PERIOD), it will not take any
Termination Action. The Suspension Period may run concurrently
with the period of, and the Termination Notice may be served at
the same time as, any notice of default given by the Contractor
under the Management Contract, but the Contractor must not take
any Termination Action until the end of the Suspension Period.
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2.3 AMENDMENTS TO THE MANAGEMENT CONTRACT
The Contractor must not amend or agree with the Principal any
amendments to any of the terms of the Management Contract without the
written consent of the Agent.
2.4 INFORMATION
The Contractor must provide the Agent with details of any breach by
the Principal of any terms of the Management Contract following a
request for this information from the Agent.
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3 STEP-IN AND STEP-OUT RIGHTS
3.1 EXERCISE OF STEP-IN RIGHTS
At any time during the Suspension Period the Agent may give a Step-in
Notice to the Contractor:
(a) requiring the Contractor to continue to perform its obligations
under the Management Contract; and
(b) acknowledging that the Agent is to become a joint and several
obligor with the Principal in respect of the obligations of the
Principal under the Management Contract incurred after the
Step-in Date.
3.2 OPERATION OF STEP-IN RIGHTS
(a) During the Step-in Period the Agent will enjoy all rights of the
Principal under the Management Contract and will be jointly and
severally liable with the Principal for the performance of all
the obligations of the Principal under the Management Contract
which arise during the Step-in Period.
(b) Despite any other provision to the contrary in this agreement,
neither the Lender nor the Agent is liable to the Contractor for:
(1) the Principal's obligation to pay to the Contractor or any
other person any amount found to be payable with respect to
a breach of the Management Contract which occurred before
the Step-in Date; and
(2) the rectification of any breach of the Management Contract
which occurred before the Step-in Date.
(c) During the Step-in Period, as between the Principal and the
Agent, the latter alone (to the exclusion of the Principal) will
have the authority to deal with the Contractor and exercise the
powers and discretions available to the Principal under the
Management Contract.
(d) The Principal will not be released, nor will its liability be
affected or impaired, as a result of the exercise by the Agent
alone of any authority, powers or discretions or by any other act
or omission on the part of, or
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indulgence or release granted to, the Agent whether or not with
the knowledge or consent of the Principal.
3.3 CONTRACTOR'S OBLIGATIONS DURING STEP-IN PERIOD
During the Step-in Period:
(a) the Contractor owes its obligations, liabilities and duties with
respect to the performance of the Management Contract to the
Principal and the Agent jointly but a receipt given by, or the
performance by the Contractor in favour of, either of them is a
good discharge of the relevant obligation of the Contractor; and
(b) in discharging its obligations, liabilities and duties with
respect to the performance of the Management Contract, the
Contractor must deal only with the Agent.
3.4 STEP-OUT RIGHTS
The Agent on giving the Contractor not less than 10 days' prior
written notice, may terminate its obligations, liabilities and duties
to the Contractor under this agreement and the Management Contract
(but without affecting the continuation of the Principal's obligations
towards the Contractor under the Management Contract) and, from the
date on which the Agent's notice takes effect (STEP-OUT DATE), the
Agent is released from all obligations, liabilities and duties under
this agreement and the Management Contract towards the Contractor,
other than those that arose during the Step-in Period but which have
not been fully performed.
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4 NOTICES
4.1 NOTICES
Any notice or other communication including, but not limited to, a
request, demand, consent or approval, to or by a party to this deed:
(a) must be in legible writing and in English addressed as follows:
(1) if to the Principal:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ #▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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(2) if to a Finance Party:
Address: ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇;
(3) if to the Contractor:
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇,
or as specified to the sender by a party by notice;
(b) must be signed by an Authorised Officer or under the common seal
of the sender;
(c) is regarded as being given by the sender and received by the
addressee:
(1) if by delivery in person, when delivered to the addressee;
(2) if by post, 2 Business Days (if posted within the United
States of America) or 10 Business Days (if posted from one
country to another) as the case may be, from and including
the date of postage; or
(3) if by facsimile transmission, whether or not legibly
received, on receipt of a transmission report confirming
successful transmission, without error or omission,
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am (addressee's time) on the
following Business Day; and
(d) can be relied on by the addressee and the addressee is not liable
to another person for the consequences of that reliance if the
addressee believes it to be genuine, correct and authorised by
the sender.
4.2 GOVERNING LAW
(a) This agreement is governed by the laws of the State of Colorado.
(b) Each party irrevocably and unconditionally:
(1) submits to and accepts the non-exclusive jurisdiction of the
courts of the State of Colorado; and
(2) waives any objection to the venue of any legal process on
the basis that the process has been brought in an
inconvenient forum.
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4.3 COUNTERPARTS
This agreement may be executed in any number of counterparts and all
of those counterparts taken together constitute one and the same
instrument.
4.4 ATTORNEYS
Each attorney who executes this agreement on behalf of a party
declares that the attorney has no notice of the revocation of the
power of attorney under the authority of which the attorney executes
this agreement.
4.5 TERM
This agreement continues in effect until the Agent gives a notice of
termination to the Contractor.
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EXECUTED AS AN AGREEMENT:
SIGNED for
RMB RESOURCES LIMITED
by:
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------- ----------------------------------
Director Director/Secretary
▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------- ----------------------------------
Name (please print) Name (please print)
SIGNED for
RMB INTERNATIONAL (DUBLIN) LIMITED
by:
/s/ ▇. ▇▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
Authorised signatory Authorised signatory
▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
Name (please print) Name (please print)
SIGNED for
WESTERN MESQUITE MINES, INC.
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
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Signature
Secretary
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Title
▇▇▇▇ ▇. ▇▇▇▇
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Name (please print)
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SIGNED for
▇▇▇▇▇▇▇▇ WESTERN CONSTRUCTION CORPORATION
by:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Signature
Pres & CEO
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Title
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name (please print)
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