This Royalty Agreement involves
Title: NET SMELTER ROYALTY AGREEMENT
Industry: Gold and Silver Sector: Basic Materials
NET SMELTER ROYALTY AGREEMENT
THIS AGREEMENT made the 3rd day of April, 2003,
BARRICK GOLD CORPORATION, a corporation existing under the laws of the Province of Ontario,
(hereinafter referred to as the “Holder”),
— and —
MCWATTERS MINING INC., a corporation existing under the laws of Quebec,
(hereinafter referred to as the “Owner”).
WHEREAS the Owner has entered into a purchase and sale agreement (the “Purchase Agreement”) dated February 21, 2003 with the Holder providing for the purchase by the Owner of the East Malartic Properties (as hereinafter defined) from the Holder on the terms set out in the Purchase Agreement;
AND WHEREAS, as part of the consideration for the purchase of the East Malartic Properties, the Owner has agreed to grant to the Holder a Royalty (as hereinafter defined) on all Products (as hereinafter defined) mined or otherwise recovered on or after the date hereof from the East Malartic Properties;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants and agreements herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each party), the parties agree as follows:
1.1 Defined Terms. For purposes of this Agreement (including the recitals and Schedules hereto), the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:
“affiliate” has the meaning given to such term in the Business Corporations Act (Ontario), as in effect on the date hereof;
“Average Gold Price” during any period means the result obtained by dividing the sum of the Spot Price of Gold on each day during that period by the number of days that prices were posted during that period;
“Bullion Value” in any quarter means the product of (i) the number of troy ounces of Gold Bullion refined from Product and returned or credited to the Owner or its affiliates by the applicable refinery or refineries during that quarter, multiplied by (ii) the Average Gold Price during that quarter;
“Business Day” means a day, other than a Saturday or a Sunday, on which banks are open for ordinary banking business in each of Toronto, Ontario; Montreal, Quebec; and London, England;
“Commercial Production” means the date upon which Product from any portion of the East Malartic Properties is first delivered to a purchaser on a commercial basis, it being agreed that deliveries of such Products resulting from pilot or test operations shall not be considered as deliveries on a commercial basis. The Owner shall deliver to the Holder notice indicating said date as soon as practicable after the occurrence thereof;
“Dispute” has the meaning set out in Section 3.1;
“East Malartic Properties” means the interests of the Holder in the mining claims described in Schedule “A” hereto and acquired by the Owner pursuant to the Purchase Agreement or any replacements, substitutions or modifications of any of said claims held by the Owner or any of its affiliates which may arise in the future covering the same area, together with all applications, surveys, easements, rights of way, rights, titles or interests of every kind and description which the Owner or its affiliates has rights with respect to, or otherwise owns or controls, relating to or acquired in connection with one or more of said claims;
“Gold Bullion” means gold refined from Products to a form that meets good delivery standards in the London Bullion Market, or a comparable terminal market;
“Holder” has the meaning set out in the first recital hereto;
“Net Smelter Return” in any quarter means the amount, if any, by which the Bullion Value in such quarter exceeds the sum of the Refining Costs and Taxes in such quarter (it being agreed that the foregoing shall control, notwithstanding any intervening transfer of any intermediate Product from the Owner to any affiliate. The Owner and the Holder acknowledge that the purpose of this clause is to ensure that the Net Smelter Return is determined in a timely manner for Gold Bullion mined and removed from the East Malartic Properties, regardless of whether an actual sale of such Gold Bullion is made by the Owner).
The Owner acknowledges and agrees that it shall not deduct the costs of mining, milling, leaching or any other on-site processing costs (other than Refining Costs) incurred by the Owner or its affiliates in the determination of the Net Smelter Return. If smelting or refining is carried out in facilities owned or controlled, in whole or in part, by the Owner or its affiliates, then the Refining Costs shall be the amount that the Owner would have incurred if such smelting or refining were carried out at facilities not owned or controlled by the Owner then offering comparable services for comparable products on prevailing terms;
“Processor” means, collectively, any Third Party smelter, refiner, processor, purchaser or other user of Products other than the Owner or its affiliates;
“Product” means ores mined from the East Malartic Properties and any concentrates or other materials or products derived therefrom as part of the operations relating to the East Malartic Properties and carried out hereunder, provided, however, that if any such ores, concentrates or other materials or products are subjected to further treatment as part of such operations, such ores, concentrates or other materials or products shall not be considered to be “Product” until after they have been so treated;
“Purchase Agreement” has the meaning set out in the first recital hereto;
“quarter” means a calendar quarter;
“Refining Costs” in any quarter means all costs and expenses of smelting and refining, including all costs of assaying, sampling, custom-smelting and refining, all independent representative and umpire charges, and the costs of transporting, handling and insuring the material from the East Malartic Properties to the refinery or smelter, as the case may be;
“Royalty” means the net smelter royalty granted by the Owner to the Holder, pursuant to Section 2.1;
“Spot Price of Gold” at any date means the price for refined gold in U.S. dollars as established pursuant to the London Bullion Brokers Association P.M. Gold Fix on that date, as quoted in the Wall Street Journal, Reuters or another reliable source selected by the Owner. If the London Bullion Brokers Association P.M. Gold Fix ceases to be published, the Spot Price of Gold as at any date shall be determined on such basis as may be agreed to in writing at that time by the Holder and the Owner or, failing such agreement, shall be the price of gold in U.S. dollars as quoted by and at the closing of the New York Commodity Exchange (COMEX) (or any successor thereto) on that date, as determined by the Owner;
“Taxes” shall mean all imposts, royalties, duties, assessments, ad valorem and other taxes (other than income and capital taxes) imposed upon or in connection with producing, transporting and selling Products, by any federal, state or local governmental entity or subdivision thereof;
“Third Party”, in relation to any party, means a person with whom such party deals at arm’s length (within the meaning of the Income Tax Act (Canada), as in effect on the date hereof); and
“Trading Activities” means any and all price hedging and price protection activities undertaken by the Owner or its affiliates with respect to any Products or currency exchanges, including any forward sale and/or purchase contracts, spot-deferred contracts, option contracts, speculative purchases and sales of forward, futures and option contracts, both on and off commodity exchanges.
1.2 Currency. Unless otherwise indicated, all dollar amounts referred to in this Agreement are expressed in United States dollars.
1.3 Sections and Headings. The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Section or other portion
hereof and include any agreement or instrument supplemental or ancillary hereto. Unless otherwise specified, any reference herein to a Section or Schedule refer to the specified Section of or Schedule to this Agreement.
1.4 Rules of Construction. Unless the context otherwise requires, in this Agreement:
(a) words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine and neutral genders and vice versa;
(b) the words “include”, “includes” and “including” mean “include”, “includes” or “including”, in each case, “without limitation”;
(c) reference to any agreement, indenture or other instrument in writing means such agreement, indenture or other instrument in writing as amended, modified, replaced or supplemented from time to time;
(d) if there is any conflict or inconsistency between the provisions contained in the body of this Agreement and those of any Schedule hereto, the provisions contained in the body of this Agreement shall prevail;
(e) time periods within which a payment is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences and including the day on which the period ends; and
(f) whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next following Business Day.
1.5 Accounting Principles. Any reference in this Agreement to generally accepted accounting principles refers to generally accepted accounting principles that have been established in Canada, including those approved from time to time by the Canadian Institute of Chartered Accountants or any successor body thereto.
1.6 Entire Agreement. This Agreement, together with the other documents executed and delivered in connection herewith, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral, including the letter of intent dated January 31, 2003 between the Holder and the Owner. There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter hereof except as herein provided or as provided in other documents executed and delivered by the parties in connection herewith.
1.7 Time of Essence. Time shall be of the essence of this Agreement.
1.8 Applicable Law. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
1.9 Amendments and Waivers. No amendment or waiver of any provision of this Agreement shall be binding on any party unless consented to in writing by that party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless otherwise provided.
1.10 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the parties hereto shall act in good faith to substitute for such provision, to the extent possible, a new provision with content and purpose as close as possible to the provision so determined to be invalid, illegal or unenforceable.
1.11 Schedules. The following Schedules are attached to and form part of this Agreement:
Schedule “A” — Description of East Malartic Properties
NET SMELTER ROYALTY
2.1 Grant of Royalty. On the terms and subject to the conditions of this Agreement, the Owner hereby grants, transfers, conveys and agrees to pay to the Holder a net smelter royalty (the “Royalty”) at a variable rate (the “Royalty Rate”) such that for Gold Bullion refined from Product where the Average Gold Price during any applicable quarter is:
(a) $350 or more, the Royalty Rate shall be 3% of the Net Smelter Return; or
(b) less than $350, the Royalty Rate shall be 2% of the Net Smelter Return.
2.2 Calculation and Payment.
(a) Beginning on the date on which any portion of the East Malartic Properties comes into Commercial Production, the Royalty shall be calculated on a quarterly basis and the amount of the Royalty payable to the Holder in respect of any applicable quarter shall be equal to the product of the Net Smelter Return multiplied by the applicable Royalty Rate during such quarter.
(b) The Royalty payment due to the Holder in respect of any quarter shall be paid to the Holder within 30 days after the end of such quarter by the delivery to the Holder of a certified cheque or bank draft in the appropriate amount made payable to or to the order of the Holder. All Royalty payments, including interest, if any, shall be made in United States dollars and will be made subject to withholding or deduction in respect of the Royalty for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any government having power and jurisdiction to tax and
for which a Processor or the Owner is obligated by law to withhold or deduct and remit to such taxing authority having such power and jurisdiction.
(c) In the event that any Royalty payment required to be made to the Holder hereunder is not made when due, that payment shall bear interest at a rate equal to the Prime Rate plus 4.0%, compounded monthly on the last day of each month, until paid. For the purposes hereof, the term “Prime Rate” means the per annum rate quoted or announced from time to time by the principal office of the Royal Bank of Canada in Toronto as its reference rate of interest for United States dollar loans made in Canada. The rate of interest payable on such late payments will change simultaneously with charges in the Prime Rate from time to time.
2.3 Buy Out Option. The Holder hereby grants to the Owner the exclusive option (the “Buy Out Option”) to purchase one-half of the Holder’s right to be paid the Royalty, for an aggregate consideration of (i) $1.5 Million at any time when the Royalty Rate for the preceding quarter was 3%, or (ii) $1 Million at any time when the Royalty Rate for the preceding quarter was 2%, such that after the exercise of the Buy Out Option by the Owner, the Royalty Rate will be reduced by one-half, to (i) 1.5% where the Average Gold Price is $350 or more, or (ii) 1% where the Average Gold Price is less than $350, respectively. The Buy Out Option may be exercised by the Owner delivering a notice to the Holder at any time with the aforesaid payment as determined in this Section 2.3. Payment of the Buy Out Option shall only be made by certified cheque, bank draft or wire transfer payable to the Holder, or as the Holder may direct in writing. Upon the receipt of said payment by the Holder, one-half of the Royalty shall automatically and without action on the part of the Holder (except to acknowledge said exercise of the Buy Out Option if requested by the Owner) and the Owner immediately vest in the Owner and the quantum of the Royalty be reduced accordingly. The parties agree that notwithstanding the immediate and automatic reduction of the Royalty as provided in this Section 2.3, any Royalties accrued but not yet paid to the Holder prior to the exercise of the Buy Out Option shall be paid, as provided in this Agreement, at the Royalty Rate prevailing prior to the exercise.
2.4 Request for Data. If requested by the Holder at the time each Royalty payment is made, the Owner shall provide copies of all relevant data relating to the Royalty calculation (including all settlement sheets used in calculating the Net Smelter Return) to the Holder.
2.5 Accounting Matters.
(a) All calculations and computations relating to the Royalty payments to be made to the Holder hereunder shall be made on the accrual method and shall be carried out on a consistent basis in accordance with generally accepted accounting principles to the extent that such principles are not inconsistent with the provisions of this Agreement. In the event of any inconsistency between such accounting principles and the provisions of this Agreement, this Agreement shall prevail.
(b) Any Royalty payment made hereunder shall be considered final and in full satisfaction of all obligations of the Owner hereunder in respect of the Royalty payable for the quarter to which such payment relates unless within 24 months (the “Review Period”) after the receipt by the Holder of a quarterly payment, the
Holder provides a written notice of its objection (describing in detail the specific objection and its basis therefor) to the Owner. In the event that a Dispute (as herein defined) arises that cannot be resolved by the mutual agreement of the parties within 60 days after receipt of such notice of objection by the Owner, any party may elect to have the Dispute arbitrated in accordance with Section 3.1.
(c) Upon not less than 30 Business Days’ prior written request from the Holder, duly authorized representatives of the Holder’s chartered accountants shall be entitled, at the Holder’s cost and expense to inspect and audit, within the Review Period, such books of account, records and supporting materials related to the determination of the Royalty or otherwise confirming the rights and obligations of the Holder and the Owner hereunder. The Holder and the Owner agree to make such adjustments, if any, to Royalty payments previously made as may be required as a result of such audit. In the event that a Dispute arises regarding any adjustment to Royalty payments as provided in this Section 2.5(c) herein which cannot be resolved by the mutual agreement of the parties within 60 days, any party may elect to have the Dispute arbitrated in accordance with Section 3.1. The accounting firm selected by the Holder shall execute and deliver in favour of the Owner a confidentiality agreement that includes the confidentiality provisions of Section 3.3(a).
(d) The Owner shall have the right to commingle any Products with ore, concentrates, minerals and other material mined and removed from other properties, provided, however, that the Owner shall calculate from representative samples the average grade thereof and other measures as are appropriate, and shall weigh (or calculate by volume) the material before commingling. In obtaining representative samples, calculating the average grade of the ore and average recovery percentages, the Owner may use any procedures accepted within the mining and metallurgical industry which it believes are suitable for the type of mining and processing activity being conducted and, in the absence of fraud, its choice of such procedure shall be final and binding on the Holder. In addition, comparable procedures may be used by the Owner to apportion among the commingled materials all penalty and other charges and deductions, if any, imposed by the smelter, refiner or purchaser of such material.
(e) Any Trading Activities engaged in by the Owner or its affiliates in respect of Products, and the profits and losses generated thereby, shall not, in any manner, be taken into account in the calculation of Royalty payments due to the Holder, whether in connection with the determination of price, the date of sale or the date any Royalty payment is due. The Holder acknowledges that the Owner engaging in Trading Activities may result in the Owner realizing from time to time fewer or more dollars for Gold Bullion than does the Holder, as the Holder’s Royalty payment is established by published prices. Similarly, the Holder shall not be obligated to share in any losses generated by any such Trading Activities with respect to Gold Bullion.
(f) For the purpose of determining the amount of the Royalty payments required to be made to the Holder pursuant to Section 2.2, all receipts and disbursements in a non-United States currency will be converted into United States currency on the basis of the noon rate of exchange quoted by the United States Federal Reserve Bank on the last Business Day prior to the date of receipt or disbursement, as the case may be, or, failing such quotation, on the basis of the noon rate of exchange quoted by Bank of America or its successors on that Business Day.
(g) The Owner shall have the right to mine, remove and sell small amounts of Product as is reasonably necessary for sampling, assaying, metallurgical testing and evaluation of the minerals potential of the East Malartic Properties. The Holder shall not be entitled to a Royalty in respect of such sales.
3.1 Cooperation and Dispute Resolution. In the event of any dispute, claim, question or disagreement (each a “Dispute”) arising out of or relating to this Agreement, the parties shall use all reasonable endeavours to settle such Dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a just and equitable solution to the Dispute within a period of 60 days from the matter in dispute being raised by a party. If the parties cannot resolve the Dispute within the 60 day period, a party may refer the Dispute to arbitration pursuant to the commercial arbitration rules of the American Arbitration Association. The arbitration shall be held in the City of Montreal and determined by a single arbitrator and, unless the parties agree to share the costs of the arbitration, the arbitrator shall determine what portion of the costs and expenses incurred in such proceeding shall be borne by each party participating in the arbitration. The award of the arbitrator shall be final and bin