Exhibit 10.8
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OPERATING AGREEMENT OF
TONKIN SPRINGS LLC
A Delaware Limited Liability Company
TABLE OF CONTENTS
Page
No.
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ARTICLE I. DEFINITIONS AND CROSS-REFERENCES................................ 1
1.1 Definitions........................................................... 1
1.2 Cross References...................................................... 1
ARTICLE II. NAME, PURPOSES AND TERM........................................ 1
2.1 Formation............................................................. 1
2.2 Name.................................................................. 2
2.3 Purposes.............................................................. 2
2.4 Limitation............................................................ 2
2.5 Term.................................................................. 2
2.6 Registered Agent; Offices............................................. 2
2.7 Record Title.......................................................... 2
ARTICLE III. INTERESTS OF MEMBERS.......................................... 2
3.1 Initial Ownership Interests........................................... 2
3.2 Changes in Ownership Interests........................................ 2
3.3 Documentation of Adjustments to Ownership Interests................... 3
ARTICLE IV. ADJUSTMENTS OF MEMBERS' INTERESTS AND RELATED LIABILITIES;
TREATMENT OF CASHFLOW AND CERTAIN PAYMENTS................................. 3
4.1 Voluntary Reduction in Ownership Interests............................ 3
4.2 Default in Making Agreed Contributions................................ 4
4.3 Elimination of Minority Interest...................................... 5
4.4 Evidence of Changes in Ownership Interests............................ 5
4.5 Distributions......................................................... 5
4.6 Excluded Assets....................................................... 6
ARTICLE V. RELATIONSHIP OF THE MEMBERS..................................... 6
5.1 Limitation on Authority of Members.................................... 6
5.2 Federal Tax Elections and Allocations................................. 6
5.3 State Income Tax...................................................... 6
5.4 Tax Returns........................................................... 6
5.5 Other Business Opportunities.......................................... 6
5.6 Waiver of Rights to Partition or Other Division of Assets............. 7
5.7 Bankruptcy of a Member................................................ 7
5.8 Implied Covenants..................................................... 7
5.9 No Certificate........................................................ 7
5.10 Limitation of Liability............................................... 7
5.11 Indemnities........................................................... 7
5.12 No Third Party Beneficiary Rights..................................... 7
ARTICLE VI. REPRESENTATIONS AND WARRANTIES................................. 7
6.1 Capacity of the Members............................................... 7
ARTICLE VII. TRANSFER OF INTEREST; PREEMPTIVE RIGHT........................ 8
7.1 General............................................................... 8
7.2 Limitations on Free Transferability................................... 8
7.3 Preemptive Right...................................................... 9
ARTICLE VIII. MANAGEMENT COMMITTEE......................................... 9
8.1 Organization and Composition.......................................... 9
8.2 Decisions............................................................. 9
8.3 Meetings.............................................................. 10
8.4 Action Without Meeting................................................ 10
8.5 Matters Requiring Approval............................................ 10
ARTICLE IX. MANAGER........................................................ 10
9.1 Appointment........................................................... 10
9.2 Powers and Duties of Manager.......................................... 10
9.3 Standard of Care; Indemnification..................................... 13
9.4 Resignation; Deemed Offer to Resign................................... 13
9.5 Payments To Manager................................................... 14
9.6 Transactions With Affiliates.......................................... 14
9.7 Activities During Deadlock............................................ 14
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ARTICLE X. PROGRAMS AND BUDGETS............................................ 14
10.1 Initial Program and Budget............................................ 14
10.2 Operations Pursuant to Programs and Budgets........................... 14
10.3 Presentation of Programs and Budgets.................................. 14
10.4 Review and Adoption of Proposed Programs and Budgets.................. 14
10.5 Election to Participate............................................... 15
10.6 Deadlock on Proposed Programs and Budgets; Decision of
a Member not to Fund other Member's Share............................. 15
10.7 Budget Overruns; Program Changes...................................... 15
10.8 Emergency or Unexpected Expenditures.................................. 15
10.9 Amendments to Programs and Budgets.................................... 15
ARTICLE XI. ACCOUNTS AND SETTLEMENTS....................................... 15
11.1 Monthly Statements.................................................... 15
11.2 Cash Calls............................................................ 15
11.3 Failure to Meet Cash Calls............................................ 16
11.4 Audits................................................................ 16
ARTICLE XII. PROPERTIES.................................................... 16
12.1 Royalties, Production Taxes and Other Payments Based on Production.... 16
12.2 Abandonment and Surrender............................................. 16
ARTICLE XIII. CONFIDENTIALITY, OWNERSHIP, USEAND DISCLOSURE OF
INFORMATION................................................................ 16
13.1 Business Information.................................................. 16
13.2 Member Information.................................................... 17
13.3 Permitted Disclosure of Confidential Business Information............. 17
13.4 Disclosure Required By Law............................................ 17
13.5 Public Announcements.................................................. 17
13.6 Duration of Confidentiality........................................... 18
ARTICLE XIV. RESIGNATION AND DISSOLUTION.................................. 18
14.1 Events of Dissolution................................................. 18
14.2 Resignation........................................................... 18
14.3 Disposition of Assets on Dissolution.................................. 18
14.4 Filing of Certificate of Cancellation................................. 18
14.5 Right to Data After Dissolution....................................... 18
14.6 Continuing Authority.................................................. 18
ARTICLE XV. GOVERNING LAW ................................................. 19
15.1 Governing Law......................................................... 19
ARTICLE XVI. GENERAL PROVISIONS............................................ 19
16.1 Notices............................................................... 19
16.2 Gender................................................................ 19
16.3 Currency.............................................................. 20
16.4 Headings.............................................................. 20
16.5 Waiver................................................................ 20
16.6 Modification.......................................................... 20
16.7 Force Majeure......................................................... 20
16.8 Rule Against Perpetuities............................................. 20
16.9 Further Assurances.................................................... 20
16.10 Entire Agreement; Successors and Assigns............................. 20
16.11 Counterparts......................................................... 21
EXHIBITS
A. Assets
B. Accounting Procedures
C. Tax Matters
D. Definitions
E. Net Smelter Royalty
F. Environmental Matters
G. Permits and Bonds
H. Preemptive Rights
I. [Intentionally Left Blank]
J. Breaches and Defects Relating to Leases and Contracts
K. [Intentionally Left Blank]
L. Contracts
M. Litigation
N. [Intentionally Left Blank]
O. [Intentionally Left Blank]
P. Initial Program and Budget
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OPERATING AGREEMENT OF
TONKIN SPRINGS LLC
A Delaware Limited Liability Company
This Operating Agreement of Tonkin Springs LLC (this "Agreement") is made as of
February 26, 1999, ("Effective Date") between TONKIN SPRINGS VENTURE LIMITED
PARTNERSHIP, a Nevada limited partnership ("TSVLP"), the address of which is ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and TONKIN SPRINGS HOLDING
INC., a Colorado corporation ("TSHI"), the address of which is ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇.
RECITALS
A. Gold Capital Corporation, a Colorado corporation ("GCC") and TSVLP were
parties to a Mining Venture Agreement dated December 31, 1993, as amended
on March 7, 1997 and July 7, 1997 (the "1993 Agreement"). Pursuant to the
1993 Agreement, GCC and TSVLP formed the Venture. GCC at all times while
the 1993 Agreement remained in effect, was Manager of the Venture and had
overall management responsibility for, and control of Operations. GCC and
TSVLP owned as tenants in common certain assets which were subject to the
1993 Agreement and included certain Assets, including certain properties
situated in Eureka County, Nevada, these Properties and Assets are
described in Exhibit A and defined in Exhibit D. The 1993 Agreement has
been terminated, with GCC being assigned and retaining an undivided sixty
percent (60%) interest and TSVLP being assigned and retaining an undivided
forty percent (40%) interest in the Properties and Assets, free and clear
of the 1993 Agreement and any and all Liens of GCC, TSVLP or their
respective Affiliates.
B. Immediately following termination of the 1993 Agreement and immediately
prior to execution of this Agreement, TSHI acquired GCC's undivided sixty
percent (60%) interest in the Properties and Assets.
C. TSVLP and TSHI desire to participate in the exploration, evaluation and, if
justified, the development and mining of mineral resources within the
Properties or any other properties acquired pursuant to the terms of this
Agreement.
D. TSVLP and TSHI wish to form and operate a limited liability company under
the Delaware Limited Liability Company Act, 6 Del.C. 18-101 et seq. (the
"Act") to own and operate the Properties and Assets in accordance with the
terms set forth in this Agreement. Such company (the "Company") shall be
named Tonkin Springs LLC. Simultaneously with the execution of this
Agreement, TSVLP and TSHI have also entered into a Members' Agreement and
contributed, conveyed and transferred their respective interests in the
Properties and Assets to the Company.
NOW THEREFORE, in consideration of the covenants and conditions contained
herein, TSVLP and TSHI agree as follows:
ARTICLE I
DEFINITIONS AND CROSS-REFERENCES
1.1 Definitions. The terms defined in Exhibit D and elsewhere herein shall have
the defined meaning wherever used in this Agreement, including in Exhibits.
1.2 Cross References. References to "Exhibits," "Articles," "Sections" and
"Subsections" refer to Exhibits, Articles, Sections and Subsections of this
Agreement. References to "Paragraphs" and "Subparagraphs" refer to paragraphs
and subparagraphs of the referenced Exhibits.
ARTICLE II
NAME, PURPOSES AND TERM
2.1 Formation. The Company has been duly organized pursuant to the Act and the
provisions of this Agreement as a Delaware limited liability company by the
filing of its Certificate of Formation (as defined in the Act) in the Office of
the Secretary of the State of Delaware
2.2 Name. The name of the Company is "Tonkin Springs LLC" and such other name or
names complying with the Act as the Manager shall determine. The Manager shall
accomplish any filings or registrations required by jurisdictions in which the
Company conducts its Business.
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2.3 Purposes. The Company is formed for the following purposes and for no
others, and shall serve as the exclusive means by which each of the Members
accomplishes such purposes:
(a) to conduct Exploration within the Area of Interest,
(b) to acquire additional real property and other interests within the Area
of Interest,
(c) to evaluate the possible Development and Mining of the Properties, and,
if justified, to engage in Development and Mining
(d) to engage in marketing Products, and
(e) to perform any other activity necessary, appropriate, or incidental to
any of the foregoing, including but not limited to permitting, reclamation,
closure and other environmental compliance activities.
2.4 Limitation. Unless the Members otherwise agree in writing, the Business of
the Company shall be limited to the purposes described in Section 2.3, and
nothing in this Agreement shall be construed to enlarge such purposes.
2.5 Term. The term of the Company shall begin on the Effective Date and shall
continue for twenty (20) years from the Effective Date and for so long
thereafter as the Manger is continuing to maintain the Properties or Products
are produced from the Properties on a continuous basis, and thereafter until all
materials, supplies, equipment and infrastructure have been salvaged and
disposed of, and any required Environmental Compliance is completed and
accepted, unless the Company is earlier terminated as herein provided. For
purposes hereof, Products shall be deemed to be produced from the Properties on
a "continuous basis" so long as production in commercial quantities is not
halted for more than 24 months.
2.6 Registered Agent; Offices. The name of the Company's registered agent in the
State of Delaware is The Corporation Trust Company or such other person as the
Manager may select in compliance with the Act from time to time. The registered
office of the Company in the State of Delaware shall be located at c/o The
Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at any
other place within the State of Delaware which the Manager shall select. The
principal office of the Company shall be at any other location which the Manager
shall select.
2.7 Record Title. Title to the Assets shall be held by the Company.
ARTICLE III
INTERESTS OF MEMBERS
3.1 Initial Ownership Interests. The Members shall have the following initial
Ownership Interests:
TSVLP - forty percent (40%)
TSHI - sixty percent (60%)
The Ownership Interests of the Members shall have no relationship to their
Capital Accounts, which shall be determined solely as stated in the Members'
Agreement and Exhibit C.
3.2 Changes in Ownership Interests. The Ownership Interests shall be eliminated
or adjusted as follows:
(a) Upon a default in the timely repayment of any part of an Elected Loan
(following an election by either Member pursuant to Section 4.1 to
contribute less to an adopted Program and Budget than the percentage equal
to its Ownership Interest, or to contribute nothing to an adopted Program
and Budget, and the making of an Elected Loan by the other Member);
(b) In the event of default by either Member in making its agreed-upon
contribution to an adopted Program and Budget, followed by an election by
the other Member to invoke Section 4.2(b);
(c) As provided in the Members' Agreement or in Section 4.3 of this
Agreement;
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(d) Upon Transfer by either Member of part or all of its Ownership Interest
in accordance with Article VII; or
(e) Upon acquisition by either Member of part or all of the Ownership
Interest of the other Member, however arising.
3.3 Documentation of Adjustments to Ownership Interests. Each Member's Ownership
Interest and related Capital Account balance shall be shown in the accounting
records of the Company, as maintained by the Manager, and any adjustments
thereto, including adjustments made under Article IV, shall be made monthly and
shall be preceded by a notice to both Members with a written explanation of the
basis such adjustments.
ARTICLE IV
ADJUSTMENTS OF MEMBERS' INTERESTS AND RELATED
LIABILITIES; TREATMENT OF CASHFLOW AND CERTAIN PAYMENTS.
4.1 Voluntary Reduction in Ownership Interests.
(a) After the Cut-Off Date, a Member may elect, as provided in Section
10.5, to limit its contributions to an adopted Program and Budget as
follows:
(i) To some lesser dollar amount than is proportionate to its
respective Ownership Interest; or
(ii) Not at all.
If a Member elects to contribute to an adopted Program and Budget some
lesser amount than its respective Ownership Interest, or not at all, the
non-electing Member may advance to the electing Member funds sufficient to
fulfill the electing Member's required contribution to an agreed Program
and Budget and treat the same, together with any accrued interest, as a
loan repayable within one year of the anniversary of the advance of such
loan bearing interest from the date of the advance at the rate provided in
Section 11.3 (an "Elected Loan); provided, however, that TSHI must advance
to TSVLP the amount of any Elected Loan unless TSHI's Ownership Interest
drops to fifty percent (50%) or lower by operation of dilution pursuant to
Section 4.1(b) or Section 4.2. In connection with any such Elected Loan,
the electing Member hereby grants to the non-electing Member a lien upon
its Ownership Interest and a security interest in its rights under this
Agreement, under the Members' Agreement and with respect to the Company,
and the proceeds therefrom, provided, however, that in the event of any
default under an Elected Loan, the non-electing Member agrees that its sole
remedy shall be adjustment of the electing Member's Ownership Interest
through dilution as provided in Section 4.1(b) below.
Each of the Members hereby agree to take all action necessary to preserve,
protect and perfect such liens and security interests and hereby
irrevocably nominates, constitutes and appoints the non-electing Member and
each of its officers holding office from time to time as the true and
lawful attorney-in-fact and agent of the electing Member with power of
substitution in the name of the electing Member to do any and all such acts
and things or execute and deliver all such agreements, documents and
instruments as the non-electing Member reasonably considers necessary for
that purpose. Without in any way limiting the generality of the foregoing,
the non-electing Member shall have the right to execute for and in the name
of the electing Member all financing statements, financing or continuation
change statements, conveyances, transfers, assignments, consents and other
instruments as may be required for such purposes. This power of attorney
shall not be revoked or terminated by any act or thing other than the
termination of this Agreement pursuant to Section 14.1 or the withdrawal or
deemed withdrawal of a Member pursuant to Section 2.3 of the Members'
Agreement, or Section 4.3 of this Agreement, or the resignation of a Member
pursuant to Section 14.2.
(b) In the event any advance under any Elected Loan, together with all
interest accrued thereon, has not been recouped and repaid in full out of
the electing Member's share of Cash Flow or otherwise repaid in full within
one year after the date such advance was made, then said advance, together
with all interest accrued thereon, and all other advances then outstanding
under the same Elected Loan or any other Elected Loan, together with all
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interest accrued thereon (collectively and in the aggregate the "Default
Amount") shall be in default if that Elected Loan, plus all interest
accrued thereon, has not been repaid in full within five (5) business days
of TSVLP's receipt of written notice of default from TSHI, and the electing
Member's Ownership Interest shall immediately be recalculated by dividing:
(i) the sum of (a) the deemed value of the electing Member's Initial
Contribution under Section 2.1 of the Members' Agreement, and (b) the
total of all of the electing Member's contributions under Section 2.2
of the Members' Agreement made subsequent to the Cut-Off Date, which
contributions shall include, without limitation, the amount of all
repayments of principal (but not interest) made on any Elected Loan or
Demand Loan prior to the relevant date of default by:
(ii) the sum of (a) Five Million Dollars ($5,000,000) (representing
the aggregate deemed value of both Members' Initial Contributions
under Section 2.1 of the Members' Agreement); (b) the amount of the
electing Member's contributions calculated under clause 4.1(b)(i)(b)
above; and (c) the total of the non-electing Member's contributions
under Section 2.2 of the Members' Agreement made subsequent to the
Cut-Off Date, which contributions shall include, without limitation,
any Default Amount (including both the principal amount of all
defaulted advances and all interest accruing thereon through the
default date) plus the amount of any Demand Loan in default, together
with interest accrued on such Demand Loan through the related default
date;
and then multiplying the result by one hundred,
provided, however, that if the Ownership Interest of any Member falls to
ten percent (10%) or less as a result of the foregoing calculation, then
the provisions of Section 4.3. shall apply. The Ownership Interest of the
other Member shall thereupon become the difference between one hundred
percent (100%) and the recalculated Ownership Interest.
For greater certainty, TSVLP will not be in breach or default of any
obligation of this Agreement solely by reason of the fact that TSHI fails
to advance to TSVLP the amount of an Elected Loan required by Section
4.1(a).
4.2 Default in Making Agreed Contributions.
(a) If a Member elects or is deemed to have elected to contribute to an
approved Program and Budget in accordance with Article X and then defaults
in making a contribution or cash call required in connection therewith, the
non-defaulting Member may advance the defaulted contribution on behalf of
the defaulting Member and treat the same, together with any accrued
interest, as a demand loan bearing interest from the date of the advance at
the rate provided in Section 11.3 (a "Demand Loan"). The failure to repay a
Demand Loan with five (5) business days after borrower's receipt of written
notice of default from lender shall be a default. Each Member hereby grants
to the other a lien upon its Ownership Interest and a security interest in
its rights under this Agreement, under the Members' Agreement and with
respect to the Company, and the proceeds therefrom, to secure any Demand
Loan made hereunder, including interest thereon, reasonable attorneys fees
and all other reasonable costs and expenses incurred in recovering the loan
with interest and in enforcing such lien or security interest, or both. A
non-defaulting Member may elect the applicable remedy under this Section
4.2(a) or under Section 4.2(b), or, to the extent a Member has a lien or
security interest under applicable law, it shall be entitled to its rights
and remedies at law and in equity. All such remedies shall be cumulative.
The election of one or more remedies shall not waive the election of any
other remedies. Each Member hereby irrevocably appoints the other its
attorney-in-fact to execute, file and record all instruments necessary to
perfect or effectuate the provisions hereof.
(b) The Members acknowledge that if a Member elects or is deemed to have
elected to contribute to an approved Program and Budget in accordance with
Article X and then defaults in making a contribution or Cash Call required
in connection therewith, or if a Member defaults in repaying a Demand Loan,
as required hereunder, it will be difficult to measure the damages
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resulting from such default. In the event of such default, as reasonable
liquidated damages, the non-defaulting Member may, with respect to any such
default not cured within 30 days after notice to the defaulting Member of
such default, elect the following remedy by giving notice to the defaulting
Member:
(i) The non-defaulting Member may elect to have the defaulting
Member's Ownership Interest permanently reduced in accordance with the
mechanism and formula set forth in Section 4.1 (with respect to
defaults under Elected Loans), and further reduced by multiplying the
result by fifty percent (50%). The amount of Demand Loans which are in
default, together with all interest accrued thereon, shall be added to
the non-defaulting Member's contributions under Section 2.2 of the
Members' Agreement when calculating the defaulting Member's reduced
Ownership Interest. The non-defaulting Member's Ownership Interest
shall, at such time, become the difference between one hundred percent
(100%) and the further reduced Ownership Interest. Such reductions
shall be effective as of the date of the default.
(c) At the election of the Member providing an Elected Loan or a Demand
Loan, a default under a Demand Loan shall constitute a default under an
Elected Loan and vice versa.
4.3 Elimination of Minority Interest. Upon a reduction of a Member's Ownership
Interest to ten percent (10%) or less pursuant to Section 4.1 or 4.2 (b)(i),
such Member shall be deemed to have withdrawn from this Agreement and from the
Company and to have automatically relinquished and transferred its entire
Ownership Interest to the other Member. Upon such relinquishment, the
withdrawing Member shall be granted an overriding two percent (2%) net smelter
royalty (the "NSR", as defined in Exhibit E on Products subsequently extracted,
removed and sold from the Properties, to be calculated and paid to the
withdrawing Member in accordance with Exhibit E. The NSR shall be transferable
by the withdrawing Member, subject to Article VII, and such Transfer shall be
binding upon and inure to the benefit of such Member and their respective
successors, heirs and assigns and shall be deemed to run with the Properties.
4.4 Evidence of Changes in Ownership Interests. An adjustment to an Ownership
Interest shall not be evidenced by the execution, issuance or recording of
certificates or other instruments, but each Member's Ownership Interest shall be
shown in the books of the Company, as maintained by the Manager. Each Member
shall be provided with appropriately detailed information regarding the basis
and method of each such adjustments.
4.5 Distributions.
(a) Prior to the Cut-off Date, proceeds from the sale of Products (if any)
shall be distributed to TSHI until the Recoupment Amount balance of TSHI is
zero, after which proceeds from the sale of Products shall be accounted for
and distributed as provided in Section 4.5(b) of this Agreement and in
Article II of Exhibit B.
(b) After the Cut-Off Date, provided that no Member's initial Ownership
Interest has been recalculated pursuant to Section 4.1 or Section 4.2,
sixty percent (60%) of one hundred percent (100%) of positive Cash Flow
shall be distributed to TSHI until TSHI has recovered the Recoupment Amount
in full, without interest, from those distributions. While TSHI is so
recovering the Recoupment Amount, the remaining forty percent (40%) of one
hundred percent (100%) of positive Cash Flow shall be distributed to TSHI
and TSVLP on a calendar quarter basis in proportion to their respective
Ownership Interests. After TSHI has so recovered the Recoupment Amount, one
hundred percent (100%) of positive Cash Flow shall be distributed to TSHI
and TSVLP in proportion to their respective Ownership Interests. If a
Member's Ownership Interest has been recalculated pursuant to Sections 4.1
or 4.2, all references in this Subsection 4.5(b) to "sixty percent (60%)"
shall be converted into the percentage representing the recalculated
Ownership Interest of TSHI and all references to "forty percent (40%)"
shall be converted into the percentage representing the recalculated
Ownership Interest of TSVLP.
For greater certainty, and provided that no Member's Ownership Interest has
been recalculated pursuant to Section 4.1 or 4.2, it is the intent of the
Members that the effect of the foregoing provisions of this Section 4.5
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shall be that (i) after the Cut-off Date and until TSHI has so recovered
the Recoupment Amount (out of sixty percent (60%) of one hundred percent
(100%) of positive Cash Flow), TSVLP shall receive sixteen percent (16%) of
one hundred percent (100%) of Cash Flow, and TSHI shall receive eighty-four
percent (84%) of one hundred percent (100%) of Cash Flow; and (ii) after
TSHI has so recovered the Recoupment Amount (out of sixty percent (60%) of
one hundred percent (100%) of positive Cash Flow ), TSVLP shall receive
forty percent (40%) of one hundred percent (100%) of Cash Flow , and TSHI
shall receive sixty percent (60%) of one hundred percent (100%) of Cash
Flow .
(c) Notwithstanding any provision of this Agreement to the contrary, Cash
Flow (and any other distributions) otherwise due a Member receiving an
Elected Loan or Demand Loan under this Agreement will first be used to
pay-off and discharge all outstanding Elected Loan or Demand Loan
obligations, including any accrued interest thereon, before any Cash Flow
(or other distributions) is paid to the Member obligated under such loan.
Amounts so distributed to pay-off or discharge Elected Loans or Demand
Loans shall be deemed amounts distributed to the borrower thereunder for
all purposes, including allocation of income for tax purposes.
4.6 Excluded Assets. Neither TSHI nor the Company shall have any ownership
interest in the Excluded Assets, which are owned exclusively by TSVLP. The
Company shall provide, free of charge to TSVLP, adequate outdoor space to
continue to store and use the Excluded Assets until TSVLP removes them from the
Properties. If, however, the Manager in good faith determines that the use or
storage of the Excluded Assets will interfere with Operations, TSVLP shall
promptly, and in no event later than 60 days after the Manager's notice in
writing to TSVLP of such determination, relocate such Excluded Assets to a
location reasonably designated by the Manager. With respect to the
Champion/▇▇▇▇▇▇▇▇▇ house trailer, model year 1989, serial no. 1694706906 ▇▇▇
098337, the Company shall provide, at the Company's cost, electrical, gas, water
and phone utilities and services at the recreational vehicle park currently
being utilized, until TSVLP removes the trailer therefrom. TSVLP shall be
responsible for all property tax, insurance, and any other costs related to its
use or ownership of the Excluded Assets. TSVLP also shall indemnify and hold
harmless the Company, TSHI, the Manager, and their respective officers,
employees and agents any liabilities, obligations, claims, responsibilities,
actions, demands, losses, costs or expenses, including but not limited to costs
of litigation and reasonable attorneys fees, arising out of or relating to the
Excluded Assets, the use thereof or any damage thereto or loss thereof.
ARTICLE V
RELATIONSHIP OF THE MEMBERS
5.1 Limitation on Authority of Members. No Member is an agent of the Company
solely by virtue of being a Member, and no Member has authority to act for the
Company solely by virtue of being a Member. This Section 5.1 supersedes any
authority granted to the Members pursuant to the Act. Any Member that takes any
action or binds the Company in violation of this Section 5.1 shall be solely
responsible for any loss or expense incurred by the Company, the other Member or
the Manager as a result of the unauthorized action and shall indemnify and hold
harmless the Company, the other Member and the Manager with respect to all such
losses and expenses.
5.2 Federal Tax Elections and Allocations. The Company shall be treated as a
partnership for federal income tax purposes, and no Member shall take any action
to alter such treatment. Tax elections and allocations shall be made as set
forth in Exhibit C.
5.3 State Income Tax. To the extent permissible under applicable law, the
relationship of the Members shall be treated for state income tax purposes in
the same manner as it is for federal income tax purposes.
5.4 Tax Returns. After approval of the Management Committee, any tax returns or
other required tax forms shall be filed in accordance with Exhibit C.
5.5 Other Business Opportunities. Each Member shall have the right to engage in
and receive full benefits from any independent business activities or operations
outside of the Area of Interest, whether or not competitive with the Company,
without consulting with, or obligation to, the other Member or the Company. The
doctrines of "corporate opportunity" or "business opportunity" shall not be
applied to the Business nor to any other activity or operation of any Member
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outside the Area of Interest. Except as otherwise provided in Section 6.5 of the
Members' Agreement, no Member shall have any obligation to the Company or any
other Member with respect to any opportunity to acquire any property outside the
Area of Interest at any time, or within the Area of Interest after the
termination of the Company. Unless otherwise agreed in writing, neither the
Manager nor any Member shall have any obligation to mill, beneficiate or
otherwise treat any Products in any facility owned or controlled by the Manager
or such Member.
5.6 Waiver of Rights to Partition or Other Division of Assets. The Members
hereby waive and release all rights of partition, or of sale in lieu thereof, or
other division of Assets, including any such rights provided by Law.
5.7 Bankruptcy of a Member. A Member shall cease to have any power as a Member
or Manager or any voting rights or rights of approval hereunder upon bankruptcy,
insolvency, dissolution or assignment for the benefit of creditors of such
Member, and its successor upon the occurrence of any such event shall have only
the rights, powers and privileges of a transferee enumerated in Section 7.2, and
shall be liable for all obligations of the Member under this Agreement. In no
event, however, shall a personal representative or successor become a substitute
Member unless the requirements of Section 7.2 are satisfied.
5.8 Implied Covenants. There are no implied covenants (including without
limitation any implied covenants relating to the conduct of Exploration,
Development, Mining or other activities upon or with respect to the Properties)
contained in this Agreement other than those of good faith and fair dealing.
5.9 No Certificate. The Company shall not issue certificates representing
Ownership Interests in the Company.
5.10 Limitation of Liability. The Members shall not be required to make any
contribution to the capital of the Company except as otherwise provided in this
Agreement, nor shall the Members in their capacity as Members or Manager be
bound by, or liable for, any debt, liability or obligation of the Company
whether arising in contract, tort, or otherwise, except as expressly provided by
this Agreement.
5.11 Indemnities. The Company may, and shall have the power to, indemnify and
hold harmless any Member , the Manager or any other person from and against any
and all claims and demands whatsoever arising from or related to the Business,
the Company, the Assets, Operations or a Member's membership in the Company.
5.12 No Third Party Beneficiary Rights. This Agreement shall be construed to
benefit the Members and their respective successors and assigns only, and shall
not be construed to create third party beneficiary rights in any other party or
in any governmental organization or agency.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Capacity of the Members. As of the Effective Date, each Member warrants and
represents to the other that:
(a) it is a corporation or limited partnership, as the case may be, duly
organized and in good standing in its state of incorporation or partnership
organization and is qualified to do business and is in good standing in
those states where necessary in order to carry out the purposes of this
Agreement;
(b) it has the capacity to enter into and perform this Agreement and all
transactions contemplated herein and all corporate, partnership and other
actions and consents required to authorize it to enter into and perform
this Agreement have been properly taken or obtained;
(c) it will not breach any other agreement or arrangement by entering into
or performing this Agreement; and
(d) this Agreement has been duly executed and delivered by it and is valid
and binding upon it in accordance with its terms.
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ARTICLE VII
TRANSFER OF INTEREST; PREEMPTIVE RIGHT
7.1 General. A Member shall have the right to Transfer to a third party, its
Ownership Interest, or any beneficial interest therein (including without
limitation any right or interest created pursuant to this Agreement or the
Members' Agreement), solely as provided in this Article VII.
7.2 Limitations on Free Transferability. In addition to being subject to
preemptive rights as described in Section 7.4 and Exhibit H, any Transfer by
either Member under Section 7.1 shall be subject to the following limitations:
(a) No Member shall Transfer any legal or beneficial right, title or
interest (i) in or to the Company, the Properties or the Assets, or (ii)
arising under this Agreement or the Members' Agreement (including, but not
limited to, any royalty, profits, or other interest in the Products) except
in conjunction with the Transfer of part or all of its Ownership Interest
(provided that such restriction shall not apply to any NSR interest held by
a former Member subsequent to its resignation or withdrawal from the
Company and the relinquishment of its entire Ownership Interest);
(b) So long as TSHI has not recovered all of the Recoupment Amount pursuant
to Section 4.5 and so long as any Elected Loan or Demand Loan to TSVLP is
outstanding, TSVLP shall not Transfer any interest in its Ownership
Interest unless and until the transferee has executed and delivered a
written subrogation agreement in favor of TSHI and the Company by which the
Transferee assumes and becomes subject to all of the obligations, loans,
defects, Liens and Encumbrances affecting TSVLP, its Ownership Interest or
its rights under this Agreement or the Members' Agreement in a form
approved by TSHI. No transferee of all or any part of a Member's Ownership
Interest shall have the rights of a Member unless and until the
transferring Member has provided to the other Member notice of the
Transfer, and, except as provided in Subsections 7.2(f) and 7.2(g), the
transferee, as of the effective date of the Transfer, has committed in
writing to assume and be bound by this Agreement and the Members' Agreement
to the same extent as the transferring Member;
(c) Neither Member, without the consent of the other Member, shall make a
Transfer that violates any Law, or results in the cancellation of any
permits, licenses, or other similar authorization;
(d) No Transfer permitted by this Article shall relieve the transferring
Member of any liability of such transferring Member under this Agreement or
under the Members' Agreement , whether accruing before or after such
Transfer;
(e) Any Member that makes a Transfer that shall cause termination of the
tax partnership established by Section 5.2 shall indemnify the other Member
for, from and against any and all loss, cost, expense, damage, liability or
claim therefore arising from the Transfer, including without limitation any
increase in taxes, interest and penalties or decrease in credits caused by
such termination and any tax on indemnification proceeds received by the
indemnified Member;
(f) In the event of a Transfer of less than all of an Ownership Interest,
the transferring Member and its transferee shall act and be treated as one
Member under this Agreement; provided however, that in order for such
Transfer to be effective, the transferring Member and its transferee must
first:
(i) agree, as between themselves, that one of them is authorized to
act as the sole agent ("Agent") on their behalf with respect to all
matters pertaining to this Agreement, the Members' Agreement and the
Company; and
(ii) provide written notice to the other Member, the Manager and the
Company of the designation of the Agent, and in such notice warrant
and represent to the other Member, the Manager and the Company that:
(A) the Agent has the sole authority to act on behalf of, and to
bind, the transferring Member and its transferee with respect to
all matters pertaining to this Agreement, the Members' Agreement
and the Company;
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(B) the other Member, the Manager and the Company may rely on all
decisions of, notices and other communications from, and failures
to respond by, the Agent, as if given (or not given) by the
transferring Member and its transferee; and
(C) all decisions of, notices and other communications from, and
failures to respond by, the other Member , the Manager or the
Company to the Agent shall be deemed to have been given (or not
given) to the transferring Member and its transferee.
The transferring Member and its transferee may change the Agent (but such
replacement must be one of them) by giving written notice to the other
Member, the Manager and the Company, which notice must conform to
Subsection 7.2(f)(ii).
(g) TSVLP shall not grant any Encumbrance or allow any Lien to arise on or
with respect to its Ownership Interest (or any other right, title or
interest of TSVLP arising under this Agreement or the Members' Agreement),
except for Encumbrances authorized by this Agreement or the Members'
Agreement.
7.3 Preemptive Right. Any Transfer by either Member under Section 7.1 and any
Transfer by an Affiliate in Control of either Member shall be subject to a
preemptive right of the other Member to the extent provided in Exhibit H.
Failure of a Member's Affiliate to comply with this Section and Exhibit H shall
be a breach by such Member of this Agreement.
ARTICLE VIII
MANAGEMENT COMMITTEE
8.1 Organization and Composition. The Members hereby establish a Management
Committee to determine overall policies, objectives, procedures, methods and
actions under this Agreement. Except in the case of an emergency as provided for
in Section 10.8, all Programs, Budgets, Project Financings and other significant
matters concerning the Operations will be subject to the supervision of the
Management Committee. The Management Committee shall consist of one (1) member
appointed by TSHI and one (1) member appointed by TSVLP. Each Member may appoint
one or more alternates to act in the absence of a regular member. Any alternate
so acting shall be deemed a member. Appointments shall be made or changed by
notice to the other Member and to the Manager.
8.2 Decisions. Each Member, acting through its appointed members shall have one
vote on the Management Committee. Unless otherwise provided in this Agreement,
the vote of the Member with an Ownership Interest over fifty percent (50%) shall
determine all decisions of the Management Committee, except with respect to the
matters listed expressly below, which shall require unanimous approval.
(a) the abandonment, release, sale, exchange or other Transfer for value of
any of the Assets, as described in Exhibit A, in any one transaction or
series of related transactions if the value of such Assets or the proceeds
in respect of such transaction or series or related transactions exceeds
Two Hundred Fifty Thousand Dollars ($250,000), except for sales in the
ordinary course of business and the abandonment, release, sale, transfer,
disposition or retirement of obsolete Assets or Assets no longer useful,
efficient or productive in connection with Operations; provided that any
sale or disposition of the mill currently situated on the Properties or any
essential component thereof shall require unanimous approval of the
Management Committee, unless the reclamation and/or removal of the mill or
any portion thereof is required by Law, Permits or regulatory authorities,
in which case the Manager shall be authorized to conduct such reclamation
and/or removal without further action of the Management Committee, and
provided further that the requirements for unanimous approval of the
Management Committee shall not apply with respect to the sale or
disposition of any component added to the mill subsequent to the Effective
Date. This Section 8.2(a) shall not apply to the sale of Products,
including without limitation forward sales, future delivery contracts,
hedging transactions, metals loans and other similar transactions;
(b) the termination of or the winding-up of the Company, other than as
provided in this Agreement; and
(c) any processing of non-Company mineral products or materials through
Company facilities.
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8.3 Meetings. The Management Committee shall hold regular meetings at least
quarterly in Denver, Colorado, or at other mutually agreed places. The Manager
shall give 30 days' written notice to the Members of such regular meetings.
Additionally, either Member may call a special meeting upon 30 days' notice to
the Manager and the other Member. In case of emergency, reasonable notice of a
special meeting shall suffice. There shall be a quorum if one or more members is
present who represent Ownership Interests greater than fifty percent (50%) of
all Ownership Interests. Each notice of a meeting shall include an itemized
agenda prepared by the Manager in the case of a regular meeting, or by the
Member calling the meeting in the case of a special meeting, but any matters may
be considered with the consent of all Members. The Manager shall prepare minutes
of all meetings and shall distribute copies of such minutes to the Members
within 30 days after the meeting. The minutes, when signed by all Members, shall
be the official record of the decisions made by the Management Committee and
shall be binding on the Manager and the Members. If personnel employed in
Operations are required to attend a Management Committee meeting, reasonable
costs incurred in connection with such attendance shall be a Company cost. All
other costs shall be paid for by the Members individually.
8.4 Action Without Meeting. In lieu of meetings, the Management Committee may
hold telephone conferences, so long as all decisions are immediately confirmed
in writing by the Members.
8.5 Matters Requiring Approval. Except as otherwise delegated to the Manager in
Section 9.2, the Management Committee shall have exclusive authority to
determine all management matters related to this Agreement.
ARTICLE IX
MANAGER
9.1 Appointment. TSHI shall have the right to appoint the initial Manager and
hereby appoints Tonkin Springs Management Co., a Colorado corporation ("TSMC",
an Affiliate of TSHI) as the initial Manager with overall management
responsibility for Operations. TSMC shall serve until it resigns as provided in
Section 9.4.
9.2 Powers and Duties of Manager. Subject to the terms and provisions of this
Agreement, the Manager shall have the following powers and duties, which shall
be discharged in accordance with adopted Programs and Budgets:
(a) The Manager shall manage, direct and control Operations.
(b) The Manager shall implement the decisions of the Management Committee,
shall make all expenditures necessary to carry out adopted Programs, and
shall promptly advise the Management Committee if it lacks sufficient funds
to carry out its responsibilities under this Agreement.
(c) The Manager shall:
(i) purchase or otherwise acquire all material, supplies, equipment,
water, utility and transportation services required for Operations,
such purchases and acquisitions to be made on the best terms
available, taking into account all of the circumstances;
(ii) contract for services such as contract services for the
Exploration, Development or Mining of the Properties,
(iii) obtain such customary warranties and guarantees as are available
in connection with such purchases and acquisitions; and
(iv) keep the Assets free and clear of all Liens and Encumbrances,
except for those existing at the time of, or created concurrent with,
the acquisition of such Assets, or mechanic's or materialmen's Liens
which shall be released or discharged in a diligent matter, or Liens
and Encumbrances specifically approved by the Management Committee or
created pursuant to the operation of this Agreement or the Members'
Agreement.
(d) The Manager shall conduct such title examinations and cure such title
defects as may be advisable in the reasonable judgment of the Manager.
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(e) The Manager shall:
(i) make or arrange for all payments required by leases, licenses,
permits, authorities, contracts and other agreements related to the
Assets;
(ii) pay all taxes, assessments and like charges on Operations and
Assets except taxes determined or measured by a Member's sales revenue
or net income. If authorized by the Management Committee, the Manager
shall have the right to contest in the courts or otherwise, the
validity or amount of any taxes, assessments or charges if the Manager
deems them to be unlawful, unjust, unequal or excessive, or to
undertake such other steps or proceedings as the Manager may deem
reasonably necessary to secure a cancellation, reduction, readjustment
or equalization thereof before the Manager shall be required to pay
them, but in no event shall the Manager permit or allow title to the
Assets to be lost as the result of the nonpayment of any taxes,
assessments or like charges; and
(iii) shall do all other acts reasonably necessary to maintain the
Assets.
(f) The Manager shall:
(i) apply for all necessary permits, licenses and approvals;
(ii) comply with applicable federal, state and local laws and
regulations;
(iii) notify promptly the Management Committee of any allegations of
substantial violation thereof;
(iv) prepare and file all reports or notices required for Operations;
and
(v) arrange for bonds and reclamation for both pre-existing and new
conditions and disturbances of the Properties, at the Company's cost;
The Manager shall not be in breach of this provision if a violation has
occurred in spite of the Manager's good faith efforts to comply, and the
Manager has timely cured or disposed of such violation through performance,
or payment of fines and penalties.
(g) The Manager shall prosecute and defend, but shall not initiate without
consent of the Management Committee, all litigation or administrative
proceedings arising out of Operations. The non-managing Member shall have
the right to participate, at its own expense, in such litigation or
administrative proceedings.
(h) The Manager shall provide insurance for the benefit of the Company and
the Members as reasonably determined by the Manager.
(i) The Manager may dispose of Assets, whether through abandonment,
surrender or Transfer, subject to the limitation set forth in Section
8.2(a) and Section 12.2.
(j) The Manager shall have the right to carry out its responsibilities
hereunder through agents, Affiliates or independent contractors.
(k) The Manager shall perform or cause to be performed during the term of
this Agreement all assessment and other work required by law in order to
maintain the unpatented mining claims included within the Properties. The
Manager shall have the right to perform the assessment work required
hereunder pursuant to a common plan of exploration and continued actual
occupancy of such claims and sites shall not be required. The Manager shall
not be liable on account of any determination by any court or governmental
agency that the work performed by the Manager does not constitute the
required annual assessment work or occupancy for the purposes of preserving
or maintaining ownership of the claims, provided that the work done is in
accordance with the adopted Program and Budget. The Manager shall timely
pay all fees and record with the appropriate county and file with the
appropriate United States agency, affidavits or other documents required by
law to maintain all such claims or sites.
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(l) If authorized by the Management Committee, the Manager may:
(i) locate, amend or relocate any unpatented mining claim or mill site
or tunnel site,
(ii) locate any fractions resulting from such amendment or relocation,
(iii) apply for patents or mining leases or other forms of mineral
tenure for any such unpatented claims or sites,
(iv) abandon any unpatented mining claims for the purpose of locating
mill sites or otherwise acquiring from the United States rights to the
ground covered thereby,
(v) abandon any unpatented mill sites for the purpose of locating
mining claims or otherwise acquiring from the United States rights to
the ground covered thereby,
(vi) exchange with or convey to the United States any of the
Properties for the purpose of acquiring rights to the ground covered
thereby or other adjacent ground, and
(vii) convert any unpatented claims or mill sites into one or more
leases or other forms of mineral tenure pursuant to any federal law
hereafter enacted.
(m) The Manager shall keep and maintain all required accounting and
financial records pursuant to the Accounting Procedure and in accordance
with customary cost accounting practices in the mining industry. The
Manager shall respond in a timely manner to all requests from Members for
information necessary to meet filing deadlines imposed by Law.
(n) The Manager shall keep the Management Committee advised of all
Operations by submitting in writing to the Management Committee:
(i) quarterly progress reports which include statements of
expenditures and comparisons of such expenditures to the adopted
Budget;
(ii) periodic summaries of data acquired, reasonably in advance of
Management Committee meetings;
(iii) copies of reports concerning Operations, reasonably in advance
of Management Committee meetings;
(iv) a detailed final report within 30 days after completion of each
Program and Budget, but in no event less often than annually, which
shall include comparisons between actual and budgeted expenditures and
comparisons between the objectives and results of Programs; and
(v) such other reports as the Management Committee may reasonably
request.
At all reasonable times the Manager shall provide the Management Committee
or the duly authorized representative of any Member (including
representatives of any actual or potential lenders, equity investors or
purchasers of a Member's Ownership Interest or NSR royalty that are duly
authorized in writing by a Member) access to, and the right to inspect and
copy all maps, drill logs, core tests, reports, surveys, assays, analyses,
production reports, operations, technical, accounting and financial
records, and other information acquired in Operations, including all
computer files an databases related thereto. In addition, the Manager shall
allow the non-managing Member or that Member's authorized representative or
invitee, at that Member's sole risk and expense, and subject to reasonable
safety regulations, to inspect the Assets and Operations at all reasonable
times, so long as the inspecting Member does not unreasonably interfere
with Operations.
(o) The Manager shall undertake all other activities reasonably necessary
to fulfill the foregoing.
(p) The Manager shall have the right to require the Members to fully fund
the Environmental Compliance Fund, in proportion to their respective
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Ownership Interests, and in accordance with Section 3.14 of Exhibit B, with
all reasonably anticipated costs of future reclamation, closure and
Environmental Compliance. No Member who has resigned or withdrawn from the
Company will be required to contribute additional funds to the
Environmental Compliance Fund unless and until all contribution made to
said Environmental Compliance Fund prior to such withdrawal or resignation
have been spent or committed to be spent.
(q) The Manager shall otherwise conduct Operations as it deems appropriate
in its discretion.
The Manager shall not be in default of any duty under this Section 9.2 if
its failure to perform results from the failure of the Members to perform
acts or to contribute amounts required of them by this Agreement.
9.3 Standard of Care; Indemnification. The Manager shall conduct all Operations
in a good, workmanlike and efficient manner, in accordance with sound mining and
other applicable industry standards and practices, and in accordance with the
terms and provisions of leases, licenses, permits, contracts and other
agreements pertaining to the Assets. The Manager shall not be liable to the
non-managing Member for any act or omission resulting in damage or loss except
to the extent caused by or attributable to the Manager's willful misconduct or
gross negligence. The Members shall indemnify and hold harmless the Manager and
its officers, employees and agents from and against any liabilities,
obligations, claims, responsibilities, actions, demands, losses, costs or
expenses, including but not limited to costs of litigation and reasonable
attorneys fees, arising out of or relating to its activities as Manager, except
that any liabilities or obligations arising directly from the Manager's gross
negligence or willful misconduct shall be excluded form this indemnity.
9.4 Resignation; Deemed Offer to Resign. Except during the period following the
Effective Date of this Agreement up to and including the Cut-off Date , the
Manager may resign upon three months' prior notice to the other Member, in which
case the other Member may elect to become the new Manager by notice to the
resigning Member within 30 days after the notice of resignation. In the case of
any resignation as Manager by TSMC, TSVLP shall be deemed to be the "other
Member" and TSHI shall be deemed to be the resigning Member for purposes of this
Section 9.4. If any of the following shall occur, the Manager shall be deemed to
have offered to resign, which offer shall be accepted by the other Member, if at
all, within 90 days following such deemed offer:
(a) The Ownership Interest of the Member who serves as or who appoints the
Manager (which, in the case of TSMC, shall be deemed to by TSHI) becomes
less than fifty percent (50%); or
(b) The Manager fails to perform a material obligation imposed upon it
under this Agreement and such failure continues for a period of 30 days
after notice from the other Member demanding performance; or
(c) The Manager fails to pay or contest in good faith its bills within 60
days after they are due; or
(d) A receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for a substantial part of its assets is appointed and such
appointment is neither made ineffective nor discharged within 60 days after
the making thereof, or such appointment is consented to, requested by, or
acquiesced in by the Manager; or
(e) The Manager commences a voluntary case under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or consents to the
entry of an order for relief in an involuntary case under any such law or
to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or other similar official of any
substantial part of its assets; or makes a general assignment for the
benefit of creditors; or fails generally to pay its or Company debts as
such debts become due; or takes corporate or other action in furtherance of
any of the foregoing; or
(f) Entry is made against the Manager of a judgment, decree or order for
relief affecting a substantial part of its assets by a court of competent
jurisdiction in an involuntary case commenced under any applicable
bankruptcy, insolvency or other similar law of any jurisdiction now or
hereafter in effect.
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9.5 Payments To Manager. The Manager shall be compensated for its services and
reimbursed for its costs hereunder in accordance with the Accounting Procedure.
TSHI and TSVLP agree that all reviews and amendments of the Manager's charges
pursuant to Section 3.13(e) of the Accounting Procedure shall be accomplished
reasonably and in good faith.
9.6 Transactions With Affiliates. If the Manager engages Affiliates to provide
services hereunder including, without limitation, services relating to milling
or beneficiating Products, it shall do so on terms no less favorable to the
Company than would be the case with unrelated persons in arm's-length
transactions.
9.7 Activities During Deadlock. Subject to the contrary direction of the
Management Committee and to the receipt of necessary funds, if
(i) the Management Committee for any reason fails to adopt a Program and
Budget, or if,
(ii) a Member elects to contribute to an adopted Program and Budget in some
lesser amount than its respective Ownership Interest, or not at all, and
the other Member is not required to, and decides not to, advance an Elected
Loan in accordance with Section 4.1,
then, with respect to clause 9.7(ii), the adopted Program and Budget shall be
deemed rescinded, and, with respect to both clauses 9.7(i) and (ii), the Manager
shall continue Operations at levels comparable with the last adopted Program and
Budget but in no event at levels which do not fully provide for the minimum
holding costs of the Properties. For purposes of determining the required
contributions of the Members and their respective Ownership Interests, the last
adopted Program and Budget shall be deemed extended.
ARTICLE X
PROGRAMS AND BUDGETS
10.1 Initial Program and Budget. The Initial Program and Budget to which both
Members have agreed is hereby adopted and is attached as Exhibit P.
10.2 Operations Pursuant to Programs and Budgets. Except as otherwise provided
in Sections 9.7, 10.6, 10.7, 10.8 or 10.9 of this Agreement or in and Article VI
of the Members Agreement, Operations shall be conducted, expenses shall be
incurred, and Assets shall be acquired only pursuant to adopted Programs and
Budgets.
10.3 Presentation of Programs and Budgets. Proposed Programs and Budgets shall
be prepared by the Manager for a period of one (1) year or any longer period.
Each adopted Program and Budget, regardless of length, shall be reviewed at
least once a year at the annual meeting of the Management Committee. During the
period encompassed by any Program and Budget, and at least two months prior to
its expiration, a proposed Program and Budget for the succeeding period shall be
prepared by the Manager and submitted to the Members.
10.4 Review and Adoption of Proposed Programs and Budgets. Within thirty (30)
days after submission of a proposed Program and Budget, or a proposed Amendment
thereto under Section 10.9, each Member shall submit in writing to the
Management Committee:
(a) Notice that the Member approves any or all of the components of the
proposed Program and Budget; or
(b) Modifications proposed by the Member to the components of the proposed
Program and Budget; or
(c) Notice that the Member rejects any or all of the components of the
proposed Program and Budget.
If a Member fails to give any of the foregoing responses within the allotted
time, the failure shall be deemed to be a vote by the Member for adoption of the
Manager's proposed Program and Budget. If a Member makes a timely submission to
the Management Committee pursuant to Subsections 10.4(a), (b) or (c), then the
Management Committee shall consult regarding the possible development of a
Program and Budget acceptable to all Members (provided that no Member shall be
obligated to agree to any actual change to a proposed Program and Budget in
connection with such consultations) failing which the Management Committee shall
determine a Program and Budget by majority vote of Ownership Interests.
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10.5 Election to Participate. By notice to the Manager within 20 days after the
final vote of the Management Committee adopting a Program and Budget for periods
subsequent a Member may elect to contribute to such Program and Budget in some
lesser amount than its respective Ownership Interest, or not at all, subject to
the terms and conditions of Article IV. If a Member fails to so notify the
Manager, the Member shall be deemed to have elected to contribute to such
Program and Budget in proportion to its respective Ownership Interest as of the
beginning of the period covered by the Program and Budget.
10.6 Deadlock on Proposed Programs and Budgets; Decision of a Member not to Fund
other Member's Share. If:
(i) the Members, acting through the Management Committee, fail to approve a
Program and Budget by the beginning of the period to which the proposed
Program and Budget applies, or, if
(ii) a Member elects to contribute to an adopted Program and Budget in some
lesser amount than its respective Ownership Interest, or not at all, and
the other Member is not required to, and decides not to, advance an Elected
Loan in accordance with Section 4.1,
then the provisions of Section 9.7 shall apply.
10.7 Budget Overruns; Program Changes. The Manager shall immediately notify the
Management Committee of any material departure from an adopted Program and
Budget. If the Manager exceeds an adopted Budget by more than twenty percent
(20%) then the excess over twenty percent (20%), unless directly caused by an
emergency or unexpected expenditure made pursuant to Section 10.8 or unless
otherwise authorized by the Management Committee or pursuant to an Amendment
under Section 10.9, shall be for the sole account of the Manager and such excess
shall not be included in calculations relating to the adjustment or dilution of
Ownership Interests. Budget overruns of twenty percent (20%) or less shall be
funded by the Members in the same manner and with the same consequences and
effects as the Member provided funding for the then current Program and Budget.
10.8 Emergency or Unexpected Expenditures. In case of emergency, the Manager may
take any reasonable action it deems necessary to protect life, limb or property,
to protect the Assets or to comply with Environmental Laws or other Laws.. The
Manager may make reasonable expenditures for unexpected events which are beyond
its reasonable control and which do not result from a breach by it of its
standard of care. The Manager shall promptly notify the Members of the emergency
or unexpected expenditure, and the Manager shall be reimbursed for all resulting
costs by the Members in the same manner and with the same consequences and
effects as the Members provided the funding for the then current Program and
Budget.
10.9 Amendments to Programs and Budgets. An adopted Program and Budget may be
amended only prospectively by the Manager (the "Amendment") upon 30 days notice.
The procedures for review and approval of proposed Amendments under this Section
10.9 shall be the same as the procedures for the review and approval of proposed
Budgets and Programs under Section 10.4.
ARTICLE XI
ACCOUNTS AND SETTLEMENTS
11.1 Monthly Statements. The Manager shall promptly submit to the Management
Committee monthly statements of account reflecting in reasonable detail the
charges and credits to the Business Account during the preceding month.
11.2 Cash Calls. On the basis of each adopted or amended Program and Budget and
subject to Sections 4.1 and 10.5 of this Agreement and Section 2.2 of the
Members Agreement and the elections of the respective Members under such
provisions, the Manager shall submit to each Member, a billing (or "cash call")
for estimated cash requirements for each three month period during the term of
such Program. Within ten (10) days after receipt of each such billing, each
Member shall pay to the Manager its share of such estimated requirements. For
greater certainty, costs and expenditures for Operations and working capital in
support of approved Programs and Budgets shall include funding of reasonably
anticipated costs of future reclamation, closure costs and Environmental
Compliance. Time is of the essence of payment of such ▇▇▇▇▇▇▇▇. The Manager
shall at all times maintain a reasonable working capital reserve. All funds in
excess of immediate cash requirements shall be invested in interest-bearing
accounts with the Company's bank, for the benefit of the Business Account.
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11.3 Failure to Meet Cash Calls. A Member that fails to meet cash calls in the
amount and at the times specified in Section 11.2 shall be in default, and the
amounts of the defaulted cash call shall bear interest from the date due at an
annual rate equal to the Interest Rate, but in no event shall said rate of
interest exceed the maximum permitted by Law. The non-defaulting Member shall
have those other rights and remedies specified in Section 4.2. TSVLP shall not
be in default hereunder with respect to any cash call for which TSHI is
obligated to provide an Elected Loan under Section 4.1.
11.4 Audits. Unless waived by all Members in writing, the Manager shall order an
audit of the accounting and financial records for each calendar year (or other
mutually agreed accounting period). All written exceptions to and claims upon
the Manager for discrepancies disclosed by such audit shall be made not more
than 3 months after receipt of the audit report. Failure to make any such
exception or claim within the 3 month period shall mean the audit is correct and
binding upon the Members. The audits shall be conducted by a firm of certified
public accountants selected by the Manager, unless otherwise agreed by the
Management Committee.
ARTICLE XII
PROPERTIES; DISTRIBUTION OF PRODUCTION
12.1 Royalties, Production Taxes and Other Payments Based on Production. All
required payments of production royalties, taxes based on production of
Products, and other payments out of production to private parties and
governmental entities, shall be determined and made by the Company in a timely
manner and otherwise in accordance with applicable laws and agreements. The
Manager shall furnish to the Members evidence of timely payment for all such
required payments. In the event the Company fails to make any such required
payment, any Member shall have the right to make such payment and shall thereby
become subrogated to the rights of such third party; provided, however, that the
making of any such payment on behalf of the Company shall not constitute
acceptance by the paying Member of any liability to such third party for the
underlying obligation.
12.2 Abandonment and Surrender. Either Member may request the Management
Committee to authorize the Manager to surrender or abandon part or all of the
Properties. If the other Member objects to such surrender or abandonment, then
at the option of the objecting Member, the Company shall assign to the objecting
Member or such other Person as the objecting Member specifies, by special
warranty deed and without cost to the surrendering Member, all of the Company's
interest in the Properties sought to be abandoned or surrendered, free and clear
of all Encumbrances created by, through or under the Company or the surrendering
Member, other than those to which both Members have agreed. Upon the assignment,
such properties shall cease to be part of the Properties.
12.3 Reacquisition. If any Properties are abandoned or surrendered under the
provisions of this Article XII, then, unless this Agreement is earlier
terminated, neither Member nor any Affiliate thereof shall acquire any interest
in such Properties or a right to acquire such Properties for a period of two
years following the date of such abandonment or surrender. If a Member
reacquires any Properties in violation of this Section 12.3, the other Member
may elect by notice to the reacquiring Member within 45 days after it has actual
notice of such reacquisition, to have such properties made subject to the terms
of this Agreement and transferred, without charge, to the Company. In the event
such an election is made, the reacquired properties shall thereafter be treated
as Properties, and the costs of reacquisition shall be borne solely by the
reacquiring Member and shall not be included for purposes of calculating the
Members' respective Ownership Interests.
12.4 Disposition of Products by Manager. The Manager shall market and dispose of
Products. Such dispositions by Manager shall be in good faith and in accordance
with good industry practice, with the objective of obtaining the best possible
price for the Products. The Manager shall have the right to enter into forward
sales and hedging arrangements as approved by the Management Committee.
ARTICLE XIII
CONFIDENTIALITY, OWNERSHIP, USE
AND DISCLOSURE OF INFORMATION
13.1 Business Information. All Business Information shall be owned jointly by
the Members as their Ownership Interests are determined pursuant to this
Agreement. Both before and after the termination of the Company, all Business
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Information may be used by either Member for any purpose, whether or not
competitive with the Business, without consulting with, or obligation to, the
other Member. Except as provided in Sections 13.3 and 13.4, or with the prior
written consent of the other Member, each Member shall keep confidential and not
disclose to any third party or the public any portion of the Business
Information that constitutes Confidential Information.
13.2 Member Information. In performing its obligations under this Agreement,
neither Member shall be obligated to disclose any Member Information. If a
Member elects to disclose Member Information in performing its obligations under
this Agreement, such Member Information, together with all improvements,
enhancements, refinements and incremental additions to such Member Information
that are developed, conceived, originated or obtained by either Member in
performing its obligation under this Agreement ("Enhancements"), shall be owned
exclusively by the Member that originally developed, conceived, originated or
obtained such Member Information. Each Member may use and enjoy the benefits of
such Member Information and Enhancements in the conduct of the Business
hereunder, but the Member that did not originally develop, conceive, originate
or obtain such Member Information may not use such Member Information and
Enhancements for any other purpose. Except as provided in Section 13.4, or with
the prior written consent of the other Member, which consent may be withheld in
such Member's sole discretion, each Member shall keep confidential and not
disclose to any third party or the public any portion of Member Information and
Enhancements owned by the other Member that constitutes Confidential
Information.
13.3 Permitted Disclosure of Confidential Business Information. Either Member
may disclose Business Information that is Confidential Information: (a) to a
Member's officers, directors, partners, members, employees, Affiliates,
shareholders, agents, attorneys, accountants, consultants, contractors,
subcontractors or advisors, for the sole purpose of such Member's performance of
its obligations under this Agreement; (b) to any party to whom the disclosing
Member contemplates a Transfer of all or any part of its Ownership Interest, for
the sole purpose of evaluating the proposed Transfer; (c) to any actual or
potential lender, underwriter or investor for the sole purpose of not later than
thirty (30) days evaluating whether to make a loan to or investment in the
disclosing Member; or (d) to a third party with whom the disclosing Member
contemplates any independent business activity or operation.
The Member disclosing Confidential Information pursuant to this Section 13.3,
shall disclose such Confidential Information to only those parties that have a
bona fide need to have access to such Confidential Information for the purpose
for which disclosure to such parties is permitted under this Section 13.3 and
that have agreed in writing supplied to, and enforceable by, the other Member to
protect the Confidential Information from further disclosure, to use such
Confidential Information solely for such purpose and to otherwise be bound by
the provisions of this Article XIII. Such writing shall not preclude parties
described in Subsection 13.3(b) from discussing and completing a Transfer with
the other Member. The Member disclosing Confidential Information shall be
responsible and liable for any use or disclosure of the Confidential Information
by such parties in violation of this Agreement and such other writing.
13.4 Disclosure Required By Law. Notwithstanding anything contained in this
Article, a Member may disclose any Confidential Information if, in the opinion
of the disclosing Member's legal counsel: (a) such disclosure is legally
required to be made in a judicial, administrative or governmental proceeding
pursuant to a valid subpoena or other applicable order; or (b) such disclosure
is legally required to be made pursuant to State or Federal Securities Laws or
the rules or regulations of a stock exchange or similar trading market
applicable to the disclosing Member.
Prior to any disclosure of Confidential Information under this Section 13.4, the
disclosing Member shall give the other Member at least three (3) business days
prior written notice (unless less time is permitted by such rules, regulations
or proceeding) and, in making such disclosure, the disclosing Member shall
disclose only that portion of Confidential Information required to be disclosed
and shall take all reasonable efforts to preserve the confidentiality thereof,
including, without limitation, obtaining protective orders and supporting the
other Member in intervention in any such proceeding.
13.5 Public Announcements. Prior to making or issuing any press release or other
public announcement or disclosure of Business Information that is not
Confidential Information, a Member shall first consult with the other Member as
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to the content and timing of such announcement or disclosure, unless in the good
faith judgment of such Member, there is not sufficient time to consult with the
other Member before such announcement or disclosure must be made under
applicable Laws; but in such event, the disclosing Member shall notify the other
Member, as soon as possible, of the pendency of such announcement or disclosure,
and it shall notify the other Member before such announcement or disclosure is
made if at all reasonably possible. Any press release or other public
announcement or disclosure to be issued by either Member relating to this
Business shall also identify the other Member.
13.6 Duration of Confidentiality. The provisions of this Article XIII shall
apply during the term of this Agreement and for two years following termination
of this Agreement pursuant to Section 14.1, and shall continue to apply to any
Member who withdraws, who is deemed to have withdrawn, or who Transfers its
Ownership Interest, for two years following the date of such occurrence.
ARTICLE XIV
RESIGNATION AND DISSOLUTION
14.1 Events of Dissolution. The Company shall be dissolved upon the occurrence
of any of the following:
(a) Upon expiration of term of the Company in accordance with Section 2.5;
(b) Upon the unanimous written agreement of the Members; or
(c) as otherwise provided by the Act.
14.2 Resignation. A Member may elect to resign from the Company
(a) as set forth in the Members' Agreement or
(b) by giving notice to the other Member of the effective date of
resignation, which shall be the later of the end of the then current
Program Period or thirty (30) days after the date of the notice. Upon
resignation by a Member, the resigning Member shall be deemed to have
transferred to the remaining Member all of its Ownership Interest,
including all of its interest in the Assets and its Capital Account,
without cost and free and clear of all Encumbrances arising by, through or
under such resigning Member, except those described in Paragraph 1.1 of
Exhibit A and those to which both Members have agreed. The resigning Member
shall execute and deliver all instruments as may be necessary in the
reasonable judgment of the other Member to effect the transfer of its
interests in the Company and the Assets to the other Member. A resigning
Member shall have no right to receive the fair value of his Ownership
Interest pursuant to 18-604 of the Act. If within a sixty (60) day period
both Members elect to withdraw, then the Company shall instead be deemed to
have been terminated by the written agreement of the Members pursuant to
Section 14.1(b).
14.3 Disposition of Assets on Dissolution. Promptly after dissolution under
Section 14.1, the Manager shall take all action necessary to wind up the
activities of the Company, in accordance with Exhibit C. All costs and expenses
incurred in connection with the dissolution of the Company shall be expenses
chargeable to the Business Account.
14.4 Filing of Certificate of Cancellation. Upon completion of the winding up of
the affairs of the Company, the Manager shall promptly file a Certificate of
Cancellation with the Office of the Secretary of State of the State of Delaware.
If the Manager has caused the dissolution of the Company, whether voluntarily or
involuntarily, then a person selected by a majority vote of the Members to wind
up the affairs of the Company shall file the Certificate of Cancellation.
14.5 Right to Data After Dissolution. After dissolution of the Company pursuant
to Subsections 14.1(a), (b), or (c), each Member shall be entitled to make
copies of all applicable information acquired hereunder before the effective
date of termination not previously furnished to it.
14.6 Continuing Authority. On dissolution of the Company under Section 14.1 the
Member that was the Manager or that appointed the Manager prior to such
dissolution (or the other Member in the event of a resignation by the Manager)
shall have the power and authority to do all things on behalf of both Members
that are reasonably necessary or convenient to: (a) wind up Operations (b)
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complete reclamation, closure and other Environmental Compliance activities with
respect to the Properties, and (c) complete any transaction and satisfy any
obligation, unfinished or unsatisfied, at the time of such dissolution, if the
transaction or obligation arises out of Operations prior to such dissolution.
The Manager shall have the power and authority to grant or receive extensions of
time or change the method of payment of an already existing liability or
obligation, prosecute and defend actions on behalf of the Company and either or
both Members, encumber Assets, and take any other reasonable action in any
matter with respect to which the former Members continue to have, or appear or
are alleged to have, a common interest or a common liability.
ARTICLE XV
GOVERNING LAW
15.1 Governing Law. Except for matters of title to the Assets or their Transfer,
which shall be governed by the law of their situs, this Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Delaware, without regard for any conflict of laws or choice of laws principles
that would permit or require the application of the laws of any other
jurisdiction.
ARTICLE XVI
GENERAL PROVISIONS
16.1 Notices. All notices, payments and other required or permitted
communications ("Notices") to either Member shall be in writing, and shall be
addressed respectively as follows:
If to TSVLP: Tonkin Springs Venture Limited
Partnership
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President, U.S. Gold
Corporation
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇ ▇. Parcel, Esq.
▇▇▇▇▇▇▇ Coie LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to TSHI: Tonkin Springs Holdings Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: President, Tonkin Springs
Holdings Inc.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All Notices shall be given (a) by personal delivery to the Member, (b) by
electronic communication, capable of producing a printed transmission and
confirmation, (c) by registered or certified mail return receipt requested, or
(d) by overnight or other express courier service. All Notices shall be
effective and shall be deemed given on the date of receipt at the principal
address if received during normal business hours, and, if not received during
normal business hours, on the next business day following receipt, or if by
electronic communication, on the date of such communication. Either Member may
change its address by Notice to the other Member.
16.2 Gender. The singular shall include the plural, and the plural the singular
wherever the context so requires, and the masculine, the feminine, and the
neuter genders shall be mutually inclusive.
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16.3 Currency. All references to "dollars" or "$" herein shall mean lawful
currency of the United States of America.
16.4 Headings. The subject headings of the Sections and Subsections of this
Agreement and the Paragraphs and Subparagraphs of the Exhibits to this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions. References to
"hereunder" are, unless otherwise stated, references to this entire Agreement.
16.5 Waiver. The failure of either Member 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 such Member's right thereafter to enforce any provision or exercise any
right.
16.6 Modification. No modification of this Agreement shall be valid unless made
in writing and duly executed by both Members.
16.7 Force Majeure. Except for the obligation to make payments when due
hereunder, the obligations of a Member shall be suspended to the extent and for
the period that performance is prevented by any cause, whether foreseeable or
unforeseeable, beyond its reasonable control, including, without limitation,
labor disputes (however arising and whether or not employee demands are
reasonable or within the power of the Member to grant); acts of God; Laws,
instructions or requests of any government or governmental entity; judgments or
orders of any court; inability to obtain on reasonably acceptable terms any
public or private license, permit or other authorization; curtailment or
suspension of activities to remedy or avoid an actual or alleged, present or
prospective violation of Environmental Laws; action or inaction by any federal,
state or local agency that delays or prevents the issuance or granting of any
approval or authorization required to conduct Operations (including, without
limitation, a failure to complete any review and analysis required by the
National Environmental Policy Act or any similar state law); acts of war or
conditions arising out of or attributable to war, whether declared or
undeclared; riot, civil strife, insurrection or rebellion; fire, explosion,
earthquake, storm, flood, sink holes, drought or other adverse weather
condition; delay or failure by suppliers or transporters of materials, parts,
supplies, services or equipment or by contractors' or subcontractors' shortage
of, or inability to obtain, labor, transportation, materials, machinery,
equipment, supplies, utilities or services; accidents; breakdown of equipment,
machinery or facilities; actions by native rights groups, environmental groups,
or other similar special interest groups; or any other cause whether similar or
dissimilar to the foregoing. The affected Member shall promptly give notice to
the other Member of the suspension of performance, stating therein the nature of
the suspension, the reasons therefore, and the expected duration thereof. The
affected Member shall resume performance as soon as reasonably possible. During
the period of suspension the obligations of both Members to advance funds
pursuant to this Agreement shall be reduced to levels consistent with then
current Operations.
16.8 Rule Against Perpetuities. The Members do not intend that there shall be
any violation of the "rule against perpetuities", the "rule against unreasonable
restraints on the alienation of property", or any similar rule. Accordingly, if
any right or option to acquire any interest in the Properties or Assets, in an
Ownership Interest, or the Company, or in any real property exists under this
Agreement, such right or option must be exercised, if at all, so as to vest such
interest within time periods permitted by applicable rules. If, however, any
such violation should inadvertently occur, the Members hereby agree that a court
shall reform that provision in such a way as to approximate most closely the
intent of the Members within the limits permissible under such rules.
16.9 Further Assurances. Each of the Members shall take, from time to time and
without additional consideration, such further actions and execute such
additional instruments as may be reasonably necessary or convenient to implement
and carry out the intent and purposes of this Agreement or as may be reasonably
required by lenders in connection with Project Financing.
16.10 Entire Agreement; Successors and Assigns. This Agreement contains the
entire understanding of the Members and supersedes all prior agreements and
understandings between the Members relating to the subject matter hereof. This
Agreement shall be binding upon and inure to the benefit of the respective
successors and permitted assigns of the Members.
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16.11 Counterparts. This Agreement may be executed in any number of
counterparts, and it shall not be necessary that the signatures of both Members
be contained on any counterpart. Each counterpart shall be deemed an original,
but all counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
TONKIN SPRINGS VENTURE LIMITED PARTNERSHIP
By: Tonkin Springs Gold Mining Company, as its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
TONKIN SPRINGS HOLDINGS INC.
By: /s/ Ebe Scherkus, President
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