Exhibit 10.1
RMMI AUSTRALIA PTY LTD
and
EAGLE BAY RESOURCES N.L.
and
AUDAX RESOURCES LTD
________________________________________________________________________________
CARR BOYD FARMIN
and
JOINT VENTURE HEADS OF AGREEMENT
________________________________________________________________________________
DECEMBER 2006
________________________________________________________________________________
CARR BOYD FARMIN AND JOINT VENTURE HEADS OF AGREEMENT
THIS AGREEMENT is dated 6th December 2006
BETWEEN:
RMMI AUSTRALIA PTY LTD (ACN 122 077 105)
Level 25, 500 Collins Street, Melbourne Vic 3000 ("RMMI")
AND
EAGLE BAY RESOURCES N.L. (ACN 051 212 429) of
Level 1, 14 Outram St, West Perth WA 6005 ("EBR")
AND
AUDAX RESOURCES LTD (ACN 009 058 646)
125 Edward St, East Perth WA 6000 ("ADX")
RECITALS:
A. ADX is the beneficial owner and is, or is entitled to be, the registered
holder of a 100% interest in the Tenements.
B. RMMI and EBR wish to earn interests in the Tenements and the parties have
agreed that RMMI and EBR may earn such interest on the terms and conditions
set out in this Agreement.
AGREED as follows
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"ASX" means Australian Stock Exchange Limited;
"Bankable Feasibility Study" means a positive Feasibility Study for
which project financing can be made available from a financial
position;
"Commencement Date" means 30 September 2006;
"Decision to Mine" means a decision by the Manager to recommend to the
Participants that they undertake mining following a positive
Feasibility Study, and being a decision communicated by the Manager by
notice to the other Participant;
"Earning Period" means the period commencing on the Commencement Date
and ending as provided in clause 3.3;
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"Expert" means an independent expert appointed by the Participants,
or, in the absence of agreement, by the President of AusIMM;
"Farmin Interest" means all of RMMI and EBR's rights and interests
pursuant to this Agreement to earn a beneficial interest in the
Tenements;
"Feasibility Study" means, in relation to any proposed mining
operations, a study of all aspects of the proposed mining operations
which;
(a) from appropriate sampling programmes provide estimates of the
tonnes of proved and probable reserves of ore and the grades
thereof;
(b) contains estimates of both capital costs and operating costs
likely to be incurred in establishing and conducting mining
operations, including costs to be incurred in mine development,
pre-production, crushing, treatment and environmental management;
(c) analyses how to proceed with mining operations to economically
and commercially extract minerals;
(d) includes reference to relevant marketing and financial aspects;
(e) states whether or not establishment of the proposed mining
operations is commercially viable for a Participant;
(f) in the case of mine operations using a standalone processing
plant, is of such detail and scope as would be acceptable to a
bank or other financial institution for the purpose of providing
financing for the establishment and carrying out of the proposed
mining operations;
(g) includes a schedule of relevant approvals necessary before
production may commence; and
(h) includes all Joint Venture Operations for the purpose of
producing such a study.
"Joint Venture" means the joint venture constituted under clause 2.1
of this Agreement;
"Joint Venture Expenditure" means all Outgoings and the costs of all
Joint Venture Operations including (without limitation) all costs,
expenses and liabilities incurred in connection with the exploration,
development and mining of the Tenements for minerals, accounted for in
accordance with accounting principles accepted in Australia;
"Joint Venture Interest" means in relation to a Participant:
(a) its interest (from time to time) as tenant in common in the Joint
Venture Property and in all other rights conferred by this
Agreement; and
(b) its right to take in kind a share of minerals derived from the
Tenements
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subject to the liabilities and obligations attaching to the foregoing
and imposed by this Agreement;
"Joint Venture Operations" means all activities as are necessary or
desirable in order to implement and give full effect to the provisions
and purposes of this Agreement;
"Joint Venture Property" means all property of whatsoever kind held,
developed, acquired or created by or on behalf of the Participants for
the purpose of the Joint Venture including (without limitations):
(a) the Tenements;
(b) Mining information; and
(c) minerals, concentrate and ore prior to their being taken in kind
by the Participants;
"Manager" means the Participant appointed to conduct Joint Venture
Operations pursuant to clause 6.1 but reference to the Manager do not
include references to that Participant in any other capacity;
"Mining Act" means the Mining Act 1978 (W.A.) as amended;
"Mining Information" means all technical and other information
including (without limitation) geological, geochemical and geophysical
reports, surveys, mosaics, aerial photographs, samples, drill core,
drill logs, drill pulp, assay results, maps and plans relating to the
Tenements or to Joint Venture Operations, whether in physical, written
or electronic form;
"Operating Committee" means the Operating Committee formed under
clause 7.1 of this Agreement;
"Outgoings" means all rents, rates, survey fees and other fees and
charges under the Mining Act or otherwise in connection with the
Tenements;
"Participants" means RMMI, EBR and ADX and or their permitted
successors and assigns holding a joint venture interest;
"Related Body Corporate" means with respect to any Participant a
related body corporate of that Participant within the meaning of the
Corporations Act;
"Tenement Area" means the land over which the relevant tenements have
been granted.
"Tenements" means the tenements referred to in the Schedule and any
other tenements acquired pursuant to clause 24, together with any
extensions, renewals, consolidations, replacements or amendments to
those tenements and all rights associated with those tenements
including the right to treat mineral bearing material located in the
tenements.
1.2 In this Agreement, unless the context requires otherwise:
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(a) reference to a recital, clause, schedule, annexure or exhibit is
to a recital, clause, schedule, annexure or exhibit of or to this
Agreement;
(b) a reference to this Agreement or another instrument includes any
variation or replacement of any of them;
(c) a reference to any statute shall include any amendment,
replacement or re-enactment thereof for the time being in force
and any by-laws, statutory instruments, rules, regulations,
notices, orders, directions, consents or permissions made
thereunder and any conditions attaching thereto; (d) the singular
includes the plural and vice versa;
(e) a reference to any gender includes all genders;
(f) a reference to a person includes a reference to the person's
executors, administrators, substitutes, successors and permitted
assigns;
(g) a covenant, representation or warranty in favour of two or more
persons is for the benefit of them jointly and severally;
(h) a covenant, representation or warranty on the part of two or more
persons binds them jointly and severally; and
(i) a reference to currency is to the currency of Australia.
2. JOINT VENTURE
2.1 The Participants hereby associate in an unincorporated joint venture
for the purpose of exploring and, if warranted, developing and mining
the Tenements.
2.2 The Joint Venture shall commence on the Commencement Date and on that
date the Joint Venture Interests of the Participants are:
RMMI 0%
EBR 0%
ADX 100%
2.3 Nothing in this Agreement shall make a Participant a partner of any
other Participant nor, except as expressly provided in this Agreement,
constitute any Participant the agent or representative of any other
Participant or to create any fiduciary relationship between them.
2.4 No Participant shall have any authority to act on behalf of any other
Participant, except as expressly provided in this Agreement. Where a
Participant acts on behalf of another without authority, such
Participant shall indemnify the other from any losses, claims, damages
and liabilities arising out of any such act.
2.5 Each Participant has the right to take in kind and separately dispose
of, in proportion to its Joint Venture Interest, all minerals produced
by the Joint Venture.
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2.6 The liabilities of the Participants to each other and to third parties
shall be several in proportion to their respective Joint Venture
Interests from time to time and shall not be either joint or joint and
several. Each Participant hereby indemnifies the other against any
claim or liability incurred by the other in excess of the other's
Joint Venture Interest.
3. EARNING PERIOD
3.1 RMMI and ADX acknowledge that EBR has paid $5,000 by way of
exploration expenditure by EBR on the Tenements.
3.2 RMMI may contribute $1 million to Joint Venture Expenditure during the
Earning Period, including at least $100,000 in the first six months of
this agreement.
3.3 Subject to clause 3.5, the earning Period will end when RMMI has
contributed $1 million to Joint Venture Expenditure (including the
payment in clause 3.1) and gives notice of this to ADX, or on 30
September 2010, whichever comes first.
3.4 RMMI must contribute at least $48,000 to Joint Venture Expenditure
(including the payment in clause 3.1), for each permit year it enters.
3.5 If RMMI fails to spend the sum of $1 million on Joint Venture
Expenditure during the Earning Period then it and EBR shall be deemed
to have withdrawn from the Joint Venture unless EBR agrees to meet
RMMI's outstanding commitments pursuant to clause 13 unless this
period has been extended by Force Majeure or by mutual agreement
between the Participants.
3.6 Upon contributing $1 million to Joint Venture Expenditure during the
Earning Period and giving notice thereof to ADX, RMMI and EBR shall be
deemed to have earned a 70% Joint Venture Interest so that the Joint
Venture Interests of the Participants shall then be:
RMMI 51%
EBR 19%
ADX 30%
3.7 If ADX is not satisfied that RMMI has made an earning contribution
asserted by it under this clause 3 it must give notice to RMMI within
21 days of receiving a notice from RMMI under clause 3.3. If the
Participants are unable to resolve any dispute arising under this
clause either party may require the matter to be referred to an
auditor. RMMI may extend the Initial Earning Period of the Further
Earning Period (as the case may be) for such period as may be agreed
between the Participants or determined by the auditor to be reasonable
so as to complete its earning obligations where it is agreed or
determined RMMI has not made a sufficient contribution.
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4. ADX ELECTION UPON EBR EARNING ITS 70% INTEREST
4.1 Upon RMMI giving written notice to ADX that it has earned its 70%
Joint Venture Interest pursuant to clause 3.7, ADX may elect, by
notice in writing to RMMI within 30 days, that it will:
(a) contribute its 30% share of Joint Venture Expenditure; or
(b) dilute in accordance with the formula set out in clause 10. The
sole right and responsibility with respect to the dilution
percentage is to be at the cost of and for the benefit of EBR who
shall meet the additional expenditure with respect to this
dilution.
5. ELECTION UPON EBR COMPLETING A BANKABLE FEASIBILITY STUDY
5.1 Upon completion by RMMI and/or EBR of a Bankable Feasibility Study
(BFS) RMMI and/or EBR must give ADX a written copy of the Bankable
Feasibility Study and ADX must within 30 days of receipt of the
Bankable Feasibility Study elect to pay its then participating
interest or withdraw from the Joint Venture.
5.2 All parties must offer their respective Joint Venture Interests as
security for project financing of development and production.
6. MANAGER
6.1 RMMI shall be the Manager while it is the sole contributor to Joint
Venture Expenditure and shall be entitled to remain the Manager
(subject to clause 6.2) while it holds a Joint Venture Interest of 51%
or greater.
6.2 The Manager:
(a) may resign on 30 days' notice to the Participants; or
(b) may be removed by resolution of the Operating Committee or if it
commits gross negligence or wilful default; and
upon retirement or removal of the Manager, the Participants shall
appoint a Manager by agreement between them, or, failing this, by
resolution of the Operating Committee.
6.3 While RMMI remains the sole contributor to Joint Venture Expenditure
it shall (as Manager) have the sole responsibility for determining and
carrying out programmes and budgets. Notwithstanding the foregoing,
RMMI shall provide copies of proposed programmes to ADX and shall
allow EBR and ADX the opportunity to comment upon such proposed
programmes but RMMI shall not be bound to act on such comments.
6.4 After RMMI ceases to be the sole contributor to Joint Venture
Expenditure the Manager shall prepare programmes and budgets for
consideration by the Operating Committee. Programmes and budgets shall
be prepared for periods each of 6 months duration commencing on 1
September and 1 March.
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6.5 After RMMI ceases to be the sole contributor to Joint Venture
Expenditure the Manager:
(a) shall carry out the Joint Venture activities in accordance with
programmes and budgets approved by the Operating Committee;
(b) may not exceed an approved budget by more than 15% without the
prior consent of the Operating Committee, except in relation to
emergency expenditure;
(c) shall be responsible for all day to day operations of the Joint
Venture which shall include managing and supervising all approved
programmes and budgets;
(d) shall carry out Joint Venture activities in accordance with good
mining industry practice, with reasonable care, skill and
diligence and in accordance with all applicable laws and
regulations;
(e) shall promptly carry out the instructions and directions of the
Operating Committee; and
(f) shall maintain complete and accurate books, records and accounts
of all transactions relating to the Joint Venture which shall be
open for inspection and audit by the Participants.
6.6 The Manager shall furnish concise reports to the Participants, on a
quarterly basis, which shall contain all relevant technical and
financial information concerning the joint venture. The cost of
providing such reports shall be Joint Venture Expenditure.
6.7 All statutory reports concerning the Tenements released by the Manager
shall be provided to the Participants and the costs of providing such
reports shall be Joint Venture Expenditure.
6.8 The Manager shall, on receiving reasonable notice from any of the
Participants, provide that Participant with copies of any relevant
project data, provided that any such report or relevant project data
is provided at the cost of the Participant requesting it.
6.9 The Manager shall not be liable to any Participant for any losses
sustained or liability incurred by the Joint Venture and each
Participant shall be liable to indemnify the Manager in proportion to
their respective Joint Venture Interests in respect of the same except
where any such loss or liability arises as a direct result of the
Manager's wilful misconduct or gross negligence.
6.10 Each Participant appoints the Manager and each of its directors from
time to time (severally) its lawful attorney to sign all forms and
documents and do everything necessary to maintain the Tenements in
good standing and in full force, and to comply with the provisions of
the Mining Act.
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7. OPERATING COMMITTEE
7.1 As soon as practicable after the completion of the Earning Period, the
Participants shall form and then maintain a committee which shall meet
not less than once in each calendar quarter unless otherwise agreed.
7.2 Each of the Participants shall be entitled to appoint a representative
as a member of the Operating Committee and to remove any person so
appointed and to appoint another person in their place. Any
appointment or removal is to be effected by notice in writing to the
other Participants.
7.3 The Operating Committee may review and give directions to the Manager
as to Joint Venture Operations and shall consider and approve (subject
to modification or otherwise) the nature and content of programmes and
budgets relating to Joint Venture Operations as proposed by the
Manager.
7.4 The voting power of each Participant's representative at meetings of
the Operating Committee shall be one vote for each percentage point of
that Participant's Joint Venture Interest as at the date of the
meeting.
7.5 In the event of a deadlock in voting on matters requiring majority
vote:
(a) the Participants (through their respective senior management)
shall meet and in good faith attempt to resolve the deadlock;
(b) while the deadlock continues, operations shall continue at the
same rate as previously; and
(c) after a 3 month period, the decision of whichever Participant is
the Manager shall prevail.
7.6 All matters for decision before the Operating Committee shall require
a majority vote by one or more of the Participants except for passage
of any decision regarding the ceasing of mining operations that are
providing a positive return on investment for all Participants, which
shall require a 75% majority vote of one or more of the Participants.
7.7 A decision by the Operating Committee will not be effective to amend
the terms of this Agreement.
8. MAINTENANCE OF TENEMENTS
8.1 During the Earning Period, RMMI shall pay all Outgoings and maintain
the Tenements in good standing (including ensuring that all Mining act
reporting requirements are observed).
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9. CASH CALLS
9.1 After the Earning Period:
(a) the Manager shall within 30 days after the end of each month,
issue to each Participant a cash call for its share of Joint
Venture Expenditure paid or incurred during the preceding month;
(b) the Manager may, not more than 30 days prior to the commencement
of any month issue cash calls for estimated costs which the
Manager anticipates will be incurred during that month;
(c) all cash calls must be paid within 14 days of receipt; and
(d) all Participants shall be liable to contribute to Joint Venture
Expenditure in proportion to their Joint Venture Interests from
time to time.
9.2 A Participant that does not pay a cash call by the due date shall pay
interest thereon at a rate equal to 3% above the Westpac Banking
Corporation Indicator Lending Rate from time to time.
9.3 The Manager shall be entitled to recover moneys owing by a defaulting
party in any court of competent jurisdiction
9.4 If a Participant defaults in the payment of a cash call properly
issued to it and if default continues for more that 30 days, the other
Participants may elect to dilute the Joint Venture Interest of the
defaulting Participant, in which case the defaulting Participant's
Joint Venture Interest shall be diluted at the rate of 150% of the
rate prescribed in clause 10.2
10. DILUTION
10.1 The following shall apply in relation to voluntary dilution by a
Participant, which dilution may only occur prior to a Decision to
Mine:
(a) within 21 days after approval by the Operating Committee of a
programme and budget, any Participant may elect not to contribute
to the programme or budget. If a Participant makes such an
election, the other Participant may amend the approved programmed
and budget to take account of the non-contribution;
(b) the Participant that elected not to contribute ("Diluting
Participant") shall have its Joint Venture Interest diluted in
accordance with the dilution formula set out in clause 10.2;
(c) notwithstanding anything in this clause, voluntary dilution is
not permitted in respect of any programme and budget which is
necessary to maintain the Tenements.
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10.2 The Joint Venture Interest of a Diluting Participant shall be diluted
and recalculated from time to time in accordance with the following
formula:
New Joint Venture Interest = A x 100
-------
B
Where:
A = the total amount of Joint Venture Expenditure
contributed by the Diluting Participant at the
date of calculation plus the deemed
contribution of the Diluting Participant;
B = the total amount of Joint Venture Expenditure
contributed by the Participants at the date of
calculation, plus the deemed contributions of both
Participants.
For the purposes of the formula, where RMMI and EBR has earned an
aggregate 70% Joint Venture Interest the deemed contribution of
ADX shall be $300,000 and for EBR it shall be $190,000 and for
RMMI it shall be $510,000.
10.3 Other than in the circumstances set in clause 4.1 (b), the diluted
interest shall be distributed to the Non-Participants pro rata.
11. CONFIDENTIALITY
11.1 Unless otherwise agreed by the Participants or required by law or the
listing Rules of the ASX, all information obtained in relation to the
Joint Venture and which is not in the public domain shall be kept
confidential and shall not be disclosed by the Participants.
11.2 If required by any Participant, the Manager must give to the
Participants all information the Participant requires to comply with
the Listing Rules of the ASX and the Participants agree that such
information may be given to the ASX for release to the market if
necessary for the Participants to comply with the Listing Rules,
provided that all Participants have been given a reasonable period of
time, bearing in mind the circumstances, to comment on the draft
announcement to ASX.
12. WARRANTIES
12.1 ADX represents and warrants to RMMI and EBR and that:
(a) it is the sole registered holder and beneficial owner of the
Tenements and has good right and title to assign an interest
therein free from any mortgages, claims, caveats, pledges, liens,
charges or other encumbrances;
(b) other than any native title claims, of which ADX is not aware,
there is no litigation nor are there any proceedings of any
nature concerning the Tenements pending or threatened;
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(c) the Tenements have been duly and properly applied for in terms of
the Mining Act and all Outgoings due as at the Commencement Date
have been paid;
(d) the Tenements are in all respects valid, effective and in good
standing and not liable to forfeiture or surrender and, where
necessary, appropriate exemptions from the expenditure conditions
attaching to the Tenements have been applied for or obtained;
(e) it has entered into no other existing agreement regarding the
Tenements and, except for EBR, no other party holds any rights to
explore, prospect or mine on any part of the Tenements; and
(f) to the best of its knowledge and belief all matters relating to
the Tenements which would reasonably be regarded as material and
proper for disclosure to an intending purchaser thereof have been
disclosed to EBR.
13. ASSIGNMENT
13.1 Subject to clause 13.4, RMMI and EBR may assign all or any of its
Joint Venture Interest or its Farmin Interest to any Body Corporate
without each other Participant's consent but subject to the assignee
company agreeing to assign the Joint Venture Interest back to the
assignor in the event that it ceases to for fill its obligations to
EBR.
13.2 Subject to clause 13.1, no Participant ("Assigning Participant") may
assign all or any of its Joint Venture Interest and in the case of
RMMI or EBR its Farmin Interest unless the Assigning Participant first
offers to assign such interest to the other Participants
("Non-Assigning Participants") pro rata upon the same terms and
conditions (as determined by clause 13.3) as the proposed terms and
conditions of the assignment to the third party and such offer has not
been accepted by the Non-Assigning Participants within 30 days after
the making of the offer.
13.3 For the purposes of clause 13.2, the identity of the proposed third
party assignee, the proposed purchase price and other terms and
conditions upon which the Assigning Participant is prepared to sell or
dispose of all or part of its Joint Venture Interest shall be
furnished to the Non-Assigning Participants at the time of delivery of
the offer and the proposed consideration must be in cash and or joint
venture expenditure or if not in cash or joint venture expenditure, be
of a value to be agreed between the Participants. If the Participants
cannot agree upon such value the matter shall be determined by an
Expert whose decision shall be final.
13.4 Where an assignment is made to a Related Body Corporate or a third
party, such assignment shall have no force or effect whatsoever until
such time as the Related Body Corporate or the third party has entered
into a covenant with the other Participants binding it to observe and
perform all the terms and conditions of this Agreement.
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13.5 No Participant shall assign, encumber, part with possession of, grant
any power of attorney over or in any other directly or indirectly deal
with its Joint Venture Interest or any part thereof (or any right to
earn a Joint Venture Interest) save as expressly permitted by the
terms of this Agreement.
13.6 A Participant may create or permit the creation of an encumbrance over
the whole or part of its Joint Venture Interest but only if it
complies with each of the following requirements:
(a) the encumbrance is a mortgage, charge or other recognised form of
security;
(b) the encumbrance is to secure moneys borrowed for the purpose of
meeting its obligations under this Agreement; and
(c) the person taking the encumbrance executes a chargee's priority
deed in a form reasonably acceptable to the other Participant,
agreeing that the rights of that person under the encumbrance are
subject to the provisions of this Agreement.
14. WITHDRAWAL
14.1 Subject to clauses 3.4 and 8.1, any Participant may withdraw from the
Joint Venture by giving 12 months' notice in writing to the other
Participants. Where a budget has been approved and is relevant to a
period remaining of less than 12 months, then notice may be given with
such lesser time notice period.
14.2 Upon a withdrawal or deemed withdrawal from the Joint Venture, then,
unless otherwise provided in this Agreement, the withdrawing
Participant shall thereupon assign to the other Participants pro rata
all its Joint Venture Interest for nil consideration.
14.3 Any withdrawal pursuant to this clause 14 shall be without prejudice
to any rights or obligations of the Participants arising prior to the
withdrawal.
15. HOLDING AND TRANSFER OF JOINT VENTURE PROPERTY
15.1 The Joint Venture Property shall be held by the Participant or
Participants for the time being having legal title thereto upon trust
for the Participants as tenants in common in undivided shares in
accordance with their respective Joint Venture Interests.
15.2 Any Participant having a beneficial interest in Joint Venture Property
may at any time and at its expense require a transfer from the other
Participants, of the legal title to that beneficial interest.
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15.3 The transfer of any interest in the Tenements pursuant to this
Agreement is subject to any necessary consent or approval under the
Mining Act or under any other law or regulation and the Participants
shall use all reasonable efforts to promptly obtain all necessary
consents and approvals.
16. CAVEATS
16.1 Any Participant shall be entitled to lodge such caveats pursuant to
the Mining Act as it thinks fit to protect its beneficial interest in
the Tenements from time to time.
17. FURTHER ASSURANCES
17.1 The Participants shall sign all such documents, forms and notices and
do all such things as may be reasonably necessary to give effect to
the terms of this Agreement.
18. NOTICES
18.1 A notice approval, consent or other communication in connection with
this Agreement:
(a) must be in writing;
(b) must be marked for the attention of the person specified in
clause 18.2 or, if a Participant notifies another person, then to
that person; and
(c) must be left at the address of the addressee, or sent by prepaid
ordinary post (airmail if posted to or from a place outside
Australia) to the address of the addressee or sent by facsimile
to the facsimile number of the addressee which is specified in
clause 18.2 or, if the addressee notifies another address or
facsimile number, then to that address of facsimile number.
19.2 The address and facsimile number of, and specified person for, each
Participant is:
(a) RMMI
Attention: Managing Director
Address: 25th Floor, 500 Collins St
Melbourne Vic 3000
Facsimile: (03) 8610 4799
(b) EBR
Attention: Managing Director
Address: 1st Floor, 14 Outram St
West Perth WA 6872
Facsimile: (08) 9481 3330
(b) ADX
Attention: Managing Director
Address: 125 Edward St
East Perth WA 6872
Facsimile: (08) 9328 2869
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18.3 A notice, approval, consent or other communication takes effect from
the time it is received unless a later time is specified in it. A
posted letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if posted
to or from a place outside Australia) Business Day after posting;
and
(b) in the case of facsimile, on production, by the machine from
which the facsimile was sent, of a transmission report which
indicates that the facsimile was sent in its entirety and in an
error free form to the facsimile number of the recipient notified
for the purpose of this clause.
19. NO PARTITION
19.1 Unless otherwise agreed between the Participants, no Participant and
no person claiming through a Participant shall during the life of the
Joint Venture seek partition, whether by any court or otherwise
howsoever of any Joint Venture Property.
20. FORCE MAJEURE
20.1 In this Agreement, Force Majeure means:
(a) declared or undeclared war, revolution, act of public enemies
riots or civil commotions;
(b) strike, lockout, stoppage or restraint of labour or other
industrial disputes;
(c) fire or explosion, Act of God, flood, storm or washaway, in each
case which could not have been reasonably foreseen or with due
diligence avoided;
(d) act or restraint of any Government, Governmental agency or
authority, including expropriation, prohibition, intervention,
direction, embargo, or regulation so that the ability of a party
to perform its obligations is substantially adversely affected;
and
(e) any other cause which by the exercise of reasonable foresight or
due diligence the party is unable to prevent or overcome.
20.2 A party shall be excused from the performance of an obligation under
this Agreement, other than an obligation to pay money, to the extent
and for so long as the failure is caused by Force Majeure. For the
purposes of this clause 20 the words "excused from performance of an
obligation" shall be taken to include the obligations which EBR may
satisfy so as to earn interests during the Earning Period such that
the Initial Earning Period and the Further Earning Period shall be
extended in the event of Force Majeure and EBR giving notice pursuant
to clause 20.3.
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20.3 A party claiming to be excused from performance of an obligation
shall:
(a) within 48 hours give notice to the other party of the event of
Force Majeure relied on; and
(b) use its best endeavours to resume compliance with the obligation
as soon as reasonably possible but no party shall be obliged to
settle an industrial dispute on terms not acceptable to it.
20.4 If a party is excused from performance of an obligation by reason of
Force Majeure, then the time for performance by each party of its
obligations under this Agreement shall be extended by such time as is
reasonable in the circumstances.
21. FORMAL JOINT VENTURE AGREEMENT
21.1 If requested by any Participant at any time after EBR has earned a
Joint Venture Interest, the Manager shall prepare a formal joint
venture agreement setting out the arrangements and commitments herein
contained together with such provisions as are normally found in joint
venture agreements and are not inconsistent with this Agreement will
be negotiated in good faith between the Participants but until such a
formal agreement is executed the Participants shall be bound by the
provisions of this Agreement. If the Participants fail to reach
agreement on any matter, either Participant may require the matter to
be referred to an Expert whose decision shall be final and binding.
22. COSTS
24.1 Each Participant shall be responsible for its own legal costs in
connection with the preparation of this Agreement.
23. GST
23.1 Definitions
For the purposes of this clause 23:
"Consideration" has the same meaning as in the GST Act but does not
include the GST amount payable;
"GST" means a tax, import or duty on goods or services or other things
introduced by the Commonwealth of Australia or any State of Australia
or any similar tax;
"GST Act" means a New Tax System (Goods and Services Tax) Act 1999;
and
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"Supply" has the same meaning as in section 9.10 of the GST Act.
23.2 GST Component
Any Supply pursuant to or arising out of this Agreement and the Joint
Venture shall be upon the basis that the Consideration for that Supply
is increased by the amount of GST payable.
23.3 GST Obligation
The Participants and the Manager shall duly comply with all GST
obligations.
23.4 GST Joint Venture
The Participants will in good faith consider taking action to register
the Joint Venture as a "GST Joint Venture".
24. AREA OF INTEREST
24.1 The Participants acknowledge that any mineral tenement acquired by any
party to this agreement within 50km of EL31/491 are to be included in
this Joint Venture Agreement.
24.2 Audax agrees that it shall allow RMMI and EBR first right of refusal
to enter into individual joint ventures with Audax in any tenement it
acquires within Western Australia during the currency of this Joint
Venture.
25. GOVERNING LAW
25.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of Western Australia and the Participants agree
to submit to the non-exclusive jurisdiction of the courts of that
State.
Executed by the Participants as an Agreement.
EXECUTED for and on behalf of )
RMMI AUSTRALIA PTY LTD )
/s/ M.A. MUZZIN
- ---------------
Director
M.A. MUZZIN
- ---------------
Print name
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EXECUTED by EAGLE BAY RESOURCES N.L. )
/s/ A. RECHNER
- --------------
Director
A. RECHNER
- --------------
Print name
EXECUTED for and on behalf of )
AUDAX RESOURCES LTD )
/s/ GARY ROPER
- --------------
Director
GARY ROPER
- --------------
Print name
SCHEDULE
Tenements and Minimum Government Expenditures
EL 31/491 ($20,000); and
EL 31/492 ($28,000)
(together called "Carr Boyd")
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