DUE
DILIGENCE LICENSE AGREEMENT
This Agreement
is made effective as of December 31, 2003
BETWEEN:
ROMARCO MINERALS INC.
,
a corporation incorporated under the laws of Ontario and having an
address of Suite 1500, 885 West Georgia Street, Vancouver, British
Columbia V6C 3E8, facsimile no.: (604) 688-9274
(“ Romarco
”)
AND:
BUCKSKIN NATIONAL MINE LTD.,
a
limited liability partnership formed under the laws of Nevada and
having an address of 1000 Hinkey Summit Road, Paradise Valley,
Nevada 89426 facsimile no.: ____________
(“ Buckskin
”)
WHEREAS:
Buckskin has the
right to conduct mining exploration and related operations on the
Property (as defined below) located in the National District of
Humboldt County, Nevada; and
Buckskin has
determined to grant Romarco an exclusive license to conduct due
diligence relating to existing environmental liabilities and
potential mineralization on the Property.
NOW THEREFORE in
consideration of the mutual promises made to each other in this
Agreement, Buckskin and Romarco (each a “ Party
” and collectively the “ Parties ”) hereby
agree as follows:
1. Representations and
Warranties
1.1 Buckskin represents and warrants to Romarco
that:
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(a)
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Buckskin is a limited partnership duly
organized, validly existing, and in good standing under the laws of
Nevada.
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(b)
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Buckskin has the requisite power and
authority:
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(i)
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to enter into this Agreement and all other
agreements contemplated hereby; and
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(ii)
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to carry out and perform his obligations under
the terms and provisions of this Agreement and all other agreements
contemplated hereby.
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(c)
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All requisite corporate action on the part of
Buckskin, and its officers and directors, necessary for the
execution, delivery and performance of this Agreement and all other
agreements contemplated hereby, has been taken. This Agreement and
all other agreements contemplated hereby, when executed and
delivered by Buckskin, will be legal, valid, and binding
obligations of Buckskin enforceable against Buckskin in accordance
with their terms. The execution, delivery and performance of this
Agreement will not violate any provision of law; any order of any
court or other agency of
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government;
or any provision of any indenture, agreement or other instrument to
which Buckskin is a party or by which his properties or
assets are bound; or be in conflict with, result in a breach
of, or constitute (with due notice and lapse of time) a default
under any such indenture, agreement or other instrument.
There is no law, rule or regulation, or any judgment, decree
or order of any court or governmental authority binding on
Buckskin which would be contravened by the execution,
delivery, performance or enforcement of this Agreement and
all other agreements contemplated hereby. However, no
representation is made as to:
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(i)
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the remedy of
specific performance or other equitable remedies for the
enforcement of this Agreement and all other agreements contemplated
hereby; or
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(ii)
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rights to
indemnity under this Agreement for securities law
liability.
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Additionally,
this representation is limited by applicable bankruptcy,
insolvency, moratorium, and other similar laws affecting generally
the rights and remedies of creditors and secured
parties.
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(d)
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Buckskin has
a 100% interest in the 10 unpatented mining claims (the “
Property ”) held by Buckskin located in the National
District of Humboldt County, Nevada, and which are listed on
Schedule “A” attached hereto.
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(e)
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Buckskin is,
subject to the paramount title of the United States, the sole and
only owner of the unpatented mining claims comprising the
Property.
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(f)
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Buckskin has
the right to grant the License (as defined in Section 2.1) and any
rights given to Romarco in this Agreement and all other agreements
contemplated hereby.
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(g)
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To the best
of his knowledge and belief each of the unpatented claims included
in the Property will have been validly located, filed and recorded
in compliance with the laws of the State of Nevada and of the
United States as they relate to location and recording of such
claims; that Buckskin will have timely complied with all of the
filing provisions of the Federal Land Policy and Management Act (43
U.S.C. Section 1701, et seq.) and other applicable federal laws and
regulations as they pertain to the unpatented claims included
within the Property; and that said claims are valid and subsisting
mining claims.
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(h)
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Buckskin has
fully and timely paid the Land Holding Fees (as defined in Section
5.1) required to maintain the unpatented mining claims to the date
of execution of this Agreement.
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(i)
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Buckskin’s rights in the Property are not
subject to any prior agreement, encumbrance, burden or restriction,
created by any act or instrument of Buckskin; that to the best of
Buckskin’s knowledge, other than the Hatch Adit (as defined
in Section 2.5) the Property is free from liens and encumbrances
and other adverse claims by third parties; and that the Property is
not burdened with any royalties, overriding royalties, net profits
interests or payments on production.
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(j)
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Other than
the Hatch Adit, there are no outstanding pending actions, suits or
claims affecting all or any of the Property, nor, to the best of
Buckskin’s knowledge, has any
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such action,
suit or claim been threatened, either verbally or in writing, nor,
to the best of Buckskin’s knowledge, is there any basis for
any action, suit or claim.
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(k)
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The execution,
delivery and performance of this Agreement by Buckskin and the
consummation of the transactions contemplated herein, including the
lease of the Property to Romarco, does not and will not result in
or constitute any of the following: (i) a default, breach or
violation or an event that, with notice or lapse of time or both,
would be a default, breach or violation of any of the terms,
conditions or provisions of the articles or by-laws of Buckskin, or
any lease, lien, permit, promissory note, security agreement,
commitment, indenture, mortgage, hypothecation, deed of trust or
other agreement, instrument or arrangement to which Buckskin is a
party or by which it or the Property is bound; (ii) an event that
would permit any party to rescind any agreement or accelerate the
maturity of any obligation of Buckskin related to the Property;
(iii) the creation or imposition of any lien on the Property; or
(iv) an event requiring the consent of any other party, including,
without limitation, the shareholders of
Buckskin.
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(l)
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To the best of
Buckskin’s knowledge, other than the Hatch Adit, there are no
outstanding work orders or actions required to be taken relating to
environmental regulatory or reclamation matters, or any existing
condition on the Property which could be the basis therefor, in
respect to the Property or any operations thereon and that it has
no knowledge of any other environmental issues affecting the
Property.
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1.2 Romarco
represents and warrants to Buckskin
that:
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(a)
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Romarco is a
corporation duly organized, validly existing, and in good standing
under the laws of the Province of Ontario,
Canada.
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(b)
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Romarco is
duly registered to do business in the State of
Nevada.
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(c)
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Romarco has
the requisite corporate power and
authority:
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(i)
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to enter into
this Agreement and all other agreements contemplated hereby,
and
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(ii)
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to carry out
and perform its obligations under the terms and provisions of this
Agreement and all agreements contemplated
hereby.
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(d)
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All requisite
corporate action on the part of Romarco, and its officers and
directors, necessary for the execution, delivery and performance of
this Agreement and all other agreements of Romarco contemplated
hereby, have been taken. This Agreement and all agreements and
instruments contemplated hereby, when executed and delivered by
Romarco, will be legal, valid, and binding obligations of Romarco
enforceable against Romarco in accordance with their terms. The
execution, delivery and performance of this Agreement will not
violate any provision of law; any order of any court or other
agency of government; or any provision of any indenture, agreement
or other instrument to which Romarco is a party or by which its
properties or assets are bound; or be in conflict with, result in a
breach of, or constitute (with due notice and lapse of time) a
default under any such indenture, agreement or other instrument.
There is no law, rule or regulation, or any judgment, decree or
order of any court or governmental authority binding on Romarco
which would be contravened by the execution,
delivery,
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performance or
enforcement of this Agreement or any instrument or agreement
required hereunder. However, no representation is made as
to:
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(i)
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the remedy of
specific performance or other equitable remedies for the
enforcement of this Agreement or any other agreement contemplated
hereby; or
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(ii)
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rights to
indemnity under this Agreement for securities law
liability.
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Additionally,
this representation is limited by applicable bankruptcy,
insolvency, moratorium, and other similar laws
affecting generally the rights and remedies of creditors and
secured parties;
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(e)
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Romarco has
obtained all consents, approvals, authorizations, declarations, or
filings required by any federal, state, local, or other authority
(except the TSX Venture Exchange), or any lenders, creditors, and
other third parties in connection with the valid execution,
delivery, and performance of this Agreement and the consummation of
the transaction contemplated
hereby.
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(f)
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All
negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Romarco in such manner
as not to give rise to any valid claim against Buckskin for a
brokerage commission, finder’s fee or other fee or commission
arising by reason of the transactions contemplated by this
Agreement.
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1.3 The representations and warranties set out in Sections 1.1 and
1.2 are conditions upon which each of Buckskin and Romarco has
relied in entering into this Agreement and will survive the
termination of the Agreement, and each of Buckskin and Romarco
hereby forever indemnifies and saves the other harmless from all
loss, damage, costs, actions and suits arising out of or in
connection with any breach of any representation or warranty made
by it and contained in this
Agreement.
2. The Due Diligence
License
2.1 Grant of Due Diligence License . Buckskin hereby
irrevocably grants to Romarco the sole and exclusive license to
conduct Due Diligence Activities on the Property, (the “
License ”), on the terms set out herein. For the
purposes of this Agreement, “Due Diligence Activities”
means geological, geochemical, geophysical, hydrological and other
examinations and investigations intended to determine the existence
on the Property of any condition which is, or might be construed to
be, a discharge, release, source of contamination or other
condition which violates, or may be deemed to, violate any
applicable Federal, state or local laws, regulations and
ordinances, and any of such activities intended to determine the
existence of minerals on the
Property.
2.2 Maintenance of License . To maintain the License
in good standing, Romarco
must:
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(a)
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incur
Expenditures (as defined in Section 2.3) on the Property or the
Nearby Property (as defined in Section 2.3) in the aggregate of two
hundred thousand dollars ($200,000) on or prior to December 31,
2005;
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(b)
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pay a license
fee to Buckskin of $20,020 on the date of execution of the
Agreement and on each anniversary date of the Agreement, in each
case for the upcoming year, according to the following
schedule:
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(i)
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$20,020 on or before December 31,
2004.
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(ii)
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$20,020 on or before December 31,
2005.
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(iii)
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$23,100 on or before December 31,
2006.
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(iv)
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$26,180 on or before December 31,
2007.
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(v)
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$29,260 on or before December 31,
2008.
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(vi)
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$30,800 on or before December 31, 2009; and on or before December
31, each successive year
thereafter.
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(each a “ License Fee ” and collectively the
“ License Fees
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2.3 Expenditures. For the
purposes of Section 2.2(a), the term “Expenditures”
means:
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(a)
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all Land Holding Fees (as defined in Section 5.1) for the Property
and the Nearby
Property;
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(b)
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those costs incurred to perform work on the Property or the Nearby
Property (as defined below) including, without
limitation:
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(i)
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payments and benefits to personnel engaged in the work program on
the Property (including analysis and reports thereon) and such
persons’ travelling
expenses;
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(ii)
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costs of rehabilitation, reclamation or
remediation;
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(iii)
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disbursements for such third party services as drilling, assaying,
geophysics and the
like;
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(iv)
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staking additional claims which become part of the Property as
provided for herein;
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(v)
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consulting fees and labour
costs;
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(vi)
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costs of supplies and making equipment available, and the
transportation
thereof;
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(vii)
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costs of transporting personnel;
and
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(viii)
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title work and the costs of recording
same.
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(c)
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an amount equal to 10% of the amounts set out in Section 2.3(a) and
(b), in lieu of general and administrative
expenses.
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For greater certainty, except as set
out in Section 2.3(c), Expenditures will not include Romarco
overheads such as executive or directors salaries, fees or
expenses.
For the purposes of this Agreement,
the “ Nearby Property ” means those three (3)
claims held by Mr. John Bell, which are contiguous with the
Property, in respect of which Romarco is signing a similar
agreement on the date
hereof.
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2.4 Lease Option . At any time, at its
sole discretion, Romarco may, upon giving Buckskin written notice,
exercise an option to acquire a 100% leasehold interest in the
Property, according to the terms of the Lease Agreement attached
hereto as Schedule “B” (the “ Lease
Option Exercise
”).
2.5 Limitation of License. During the
term of this Agreement, Romarco will not disturb that area on the
Property which is the subject of an investigation by the United
States Department of Agriculture – Forest Service, and which
has been identified by Buckskin as such (the “ Hatch
Adit ”). Romarco will indemnify and save harmless
Buckskin from and against all suits, claims, demands, losses and
expenses that directly arise as a result of Romarco’s
activities on the Property which may disturb the Hatch
Adit.
3.
Term and Termination of the
Agreement
3.1 This Agreement will have a term of 10 years,
commencing on the date hereof (the “ Term ”),
unless sooner terminated pursuant to the terms of this Agreement.
Romarco will have the option, in its sole discretion, to renew this
Agreement at the end of the Term for one or more additional 10 year
terms, but may not renew this Agreement more than five successive
times.
3.2 The Expenditures and License Fees required
to keep the License in good standing as outlined in Section 2.2 are
optional at the sole discretion of Romarco and Romarco will not be
required to make any such License Fee or incur any such
Expenditures unless it wishes to keep the License in good standing.
This agreement may be terminated at any time by Romarco upon giving
Buckskin 30 days written notice of termination. If termination
occurs between July 1 st and September 1 st
of any year, Romarco will pay the Land Holding Fees for that year.
Until the Lease Option Exercise has occurred, this Agreement will
automatically terminate if Romarco fails
to:
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(a)
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pay the Land Holding Fees (as
defined in Section
5.1);
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(b)
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incur the Expenditures required by
Section 2.2 (a),
or
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(c)
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satisfy the License
Fees,
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when due and Romarco does not cure such failure
within 30 days after notice of such failure from
Buckskin.
4.
Information
Disclosure
Upon execution of this Agreement and throughout
its term, Buckskin will make available to Romarco all information
in his possession or control relating to work done on or with
respect to the
Property.
5.
Rights and Obligations Prior to Lease Option
Exercise
5.1 Land Holding Fees. Until the Lease
Option Exercise or this Agreement is terminated, Romarco will be
responsible for all obligations associated with keeping the
Property in good standing
including:
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(a)
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payment of all mining claim
maintenance fees to the U.S. Bureau of Land Management in
connection with the
Property;
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(b)
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payment of recording fees to
Humboldt County, Nevada, for notices of
intent-to-hold;
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and otherwise
maintaining the Property in good standing (the “ Land
Holding Fees ”), and any costs incurred in connection
therewith will be included as Expenditures pursuant to Section 2.3.
Until the Lease Option Exercise occurs, neither Party will be
entitled to create any liens or encumbrances against title to the
Property or to alter the terms of any agreements affecting title to
the Property without the prior written approval of the other
Party.
5.2 Work
Standards. All work done by Romarco will be done in accordance
with good exploration practice and in compliance with all
applicable laws and regulations including all reclamation
obligations.
5.3
Indemnity. Until the Lease Option Exercise occurs Romarco
will indemnify and save harmless Buckskin from and against all
suits, claims, demands, losses and expenses that directly arise as
a result of Romarco’s activities on the
Property.
5.4 Annual
Reports. During the term of this Agreement, Romarco will
provide Buckskin with annual reports indicating any results and
interpretations obtained or received in connection with exploration
work on the Property and an accounting of expenditures which were
incurred. The annual report will be submitted to Buckskin on or
before 90 days following the anniversary of the effective date of
this Agreement in each successive year. Notwithstanding such
disclosure by Romarco, it will not have any liability or
responsibility to Buckskin in connection with any reports or
results that it provides to Buckskin, or any information contained
therein, and Buckskin agrees that he will rely on his own
appraisals and interpretations related
thereto.
5.5 Site
Visits. Until the Lease Option Exercise occurs, Buckskin may
visit the Property and have access to all exploration results from
the Property, provided reasonable notice is given to Romarco and
the costs of any such visits will be borne by Buckskin and Romarco
will be held blameless and will be indemnified by Buckskin for any
claim or liability arising out of any actions by or the presence of
Buckskin or his employees on the Property. Buckskin acknowledges
and agrees that Romarco will not bear any responsibility or
liability for any use of any information so obtained by Buckskin or
as to the accuracy or completeness of such
information.
5.6
Exclusive Possession. Romarco will have full rights of
access to and quiet and exclusive possession of the Property and
have the exclusive right to conduct exploration work on the
Property, with the full right to remove mineral samples and ores
for the purpose of assays and tests, and to have such buildings,
machinery, equipment and supplies on the Property as it deems
necessary. Upon execution of this Agreement, Buckskin shall execute
and deliver to Romarco a deed evidencing rights of Romarco under
this Agreement in the form attached hereto as Schedule
“C” or in such other form as is agreed to by Romarco
and
Buckskin.
6. The
Lease
Agreement
Upon the Lease
Option Exercise occurring, the Lease Agreement in the form attached
hereto as Schedule “B” will be deemed to have been
entered into between Buckskin and Romarco and all rights and
obligations under this Agreement will immediately terminate and be
superseded by the rights and obligations in the Lease Agreement
except that any rights or obligations arising under this Agreement
prior to the Lease Option Exercise occurring will survive this
Agreement.
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GENERAL
7.
Notice
Any notice,
direction or other instrument required or permitted to be given
under this Agreement may be given in the manner prescribed in the
Lease
Agreement.
8.
Confidentiality and Press
Releases
Buckskin
agrees that the entering into of this Agreement and all data and
information provided to or received by Buckskin from Romarco with
respect to the Property will be treated as confidential. Buckskin
will not disclose such information to third parties without
obtaining the prior written consent of Romarco, such consent not to
be unreasonably withheld, unless law or regulatory authority having
jurisdiction requires the
disclosure.
9. Force
Majeure
Other than
cash payments to be made hereunder, no Party hereto will be liable
to the others and no Party hereto will be deemed in default under
this Agreement for any failure or delay to perform any of its
obligations within the times specified under this Agreement if such
failure or delay is caused by or arises out of any act not within
the control of the Party, excluding lack of funds but including,
without limitation, acts of God, strikes, lockouts, or other
industrial disputes, acts of the public enemy, riots, fire, storm,
flood, explosion, government restriction, aboriginal land claims,
failure to obtain any approvals required from regulatory
authorities, including environmental protection agencies,
unavailability of equipment, interference of third party specific
interests groups or other causes whether of the kind enumerated
above or otherwise which is not reasonably within the control of
the Party. No right of a Party will be affected for failure or
delay of the Party to meet any condition of this Agreement, which
failure or delay is caused by one of the events above referred to,
and all times provided for in this Agreement will be extended for a
period commensurate with the period of the delay, and so far as
possible the Party affected will take all reasonable steps to
remedy the delay caused by the events above referred to provided,
however, that nothing contained in this section will require any
Party to settle any industrial dispute or to test the
constitutionality of any law enacted by any State or the Federal
Government. Any Party relying on the provisions of this section
will forthwith give notice to the other Party of the commencement
of such event and of its
termination.
10.
Obligations
Several
The
obligations of each party under this Agreement shall be in every
case several and shall not be construed to be either joint or joint
and several and nothing herein shall be construed as creating a
partnership between the parties. Nothing contained in this
Agreement shall be deemed to constitute a party an agent or legal
representative of the other party or to create any fiduciary
relationship for any purpose whatsoever. Except as otherwise
specifically provided in this Agreement, a party shall not have any
authority to act for, or to assume any obligation or responsibility
on behalf of, any other party. Each party hereby waives its rights
to partition of the Property and, to that end, agrees that it will
not seek or be entitled to partition of the Property whether by way
of physical partition, judicial sale or
otherwise.
11. Entire
Agreement
This Agreement
including Schedules “A”, “B” and
“C” hereto, constitutes the entire Agreement between
Buckskin and Romarco pertaining to the Property and supersedes all
prior agreements,
understandings,
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negotiations and discussions, whether oral or written between
Buckskin and Romarco, and there are no warranties, representations
or other agreements between Buckskin and Romarco in connection with
the Property except as set forth
herein.
12.
Headings
Headings in this Agreement are for reference and convenience only
with no legal significance and do not expand, amend, alter or
influence in any way the substantive provisions of the sections to
which they
refer.
13.
Currency
References in this Agreement to monetary amounts are expressed in
United States
dollars.
14. Further Assurances and
Agreements
Each of the parties to this Agreement will take all such further
steps and execute all such further and other documentation as may
be necessary in order to more fully give effect to the provisions
of this
Agreement.
15.
Counterparts
This Agreement may be executed in one or more counterparts, or by
facsimile, each of which will be deemed to be an original and all
of which will constitute one and the same
document.
16. Governing
Law
This Agreement will be governed by and construed in accordance with
the laws of the State of
Nevada.
IN WITNESS WHEREOF the parties have executed this agreement as of
the date first written
above.
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ROMARCO
MINERALS
INC.
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BUCKSKIN
NATIONAL MINE
LTD.
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By:
_________________________
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___________________________
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Diane
Garrett
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John
Buckskin
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President
and
CEO
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SCHEDULE
A
THE
PROPERTY
Humboldt County
BLM
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Claim
Name
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Document
No.
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Serial
No.
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Ormand
Bell
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No.
2
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796406
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Rattler
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No.
1
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796407
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Buick
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796408
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Ormand
Bell
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No.
1
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796409
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Hudson
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796410
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Normand
Bell
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No.
2
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796411
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Rambler
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796412
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Normand
Bell
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No.
1
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796413
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Maxwell
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796414
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Reo
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796415
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SCHEDULE
B
MINING LEASE
AGREEMENT
MINING LEASE
AGREEMENT
This Agreement is made effective as of [•]
BETWEEN:
ROMARCO MINERALS
INC.
, a corporation incorporated under the laws of Ontario and having
an address of Suite 1500, 885 West Georgia Street, Vancouver,
British Columbia V6C 3E8, facsimile no.: (604)
688-9274
(“ Romarco
”)
AND:
BUCKSKIN NATIONAL MINE
LTD.,
a limited liability partnership formed under the laws of Nevada and
having an address of 1000 Hinkey Summit Road, Paradise Valley,
Nevada 89426 facsimile no.:
____________
(“ Buckskin ”)
WHEREAS:
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A.
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Buckskin has
the right to conduct mining exploration and related operations on
the Property (as defined below) located in the National District of
Humboldt County, Nevada;
and
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B.
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Buckskin has
determined to grant Romarco an exclusive lease of the
Property.
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NOW
THEREFORE
in consideration of the mutual promises made to each other in this
Agreement, Buckskin and Romarco (each a “ Party
” and collectively the “ Parties ”) hereby
agree as
follows:
1.
Interpretation
1.1 Definitions. For the purposes of this Agreement the
following words and phrases will have the following
meanings:
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(a)
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“Affiliate” means any person,
partnership, limited liability company, joint venture, corporation,
or other form of enterprise which Romarco Controls, is Controlled
by, or is under common Control
with.
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(b)
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“Control” used as a verb means, when
used with respect to an entity, the ability, directly or indirectly
through one or more intermediaries, to direct or cause the
direction of the management and policies of such entity through (i)
the legal or beneficial ownership of voting securities or
membership interests; (ii) the right to appoint managers, directors
or corporate management; (iii) contract; (iv) operating agreement;
(v) voting trust; or otherwise; and “Control” used as a
noun means an interest which gives the holder the ability to
exercise any of the foregoing
powers.
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(c)
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“Effective Date” means the date on
wh
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