OFFER.
(C)
IF SILVER WHEATON REJECTS THE MMI OFFER OR FAILS TO PROVIDE
WRITTEN NOTICE OF ACCEPTANCE TO MMI WITHIN THE ELECTION PERIOD, THEN THE RIGHTS
OF SILVER WHEATON WITH RESPECT TO THIS SPECIFIC MMI OFFER SHALL AUTOMATICALLY
TERMINATE AND MMI OR ITS AFFILIATE SHALL BE FREE TO SELL SUCH MMI SILVER TO THE
APPLICABLE THIRD PARTY PURSUANT TO THE THIRD PARTY OFFER. IN THE EVENT THAT MMI
OR ITS AFFILIATE AND THE THIRD PARTY HAVE NOT ENTERED INTO A WRITTEN AGREEMENT
PERTAINING TO SUCH THIRD PARTY OFFER WITHIN 30 DAYS OF THE EXPIRY OF THE
ELECTION PERIOD, THE RIGHT OF FIRST REFUSAL HEREIN CONTAINED SHALL BE DEEMED TO
BE REVIVED AND MMI SHALL BE REQUIRED TO COMPLY WITH THE TERMS OF THIS SECTION 3
WITH RESPECT TO ANY THIRD PARTY OFFER.
(D)
FOR THE AVOIDANCE OF DOUBT, THIS AGREEMENT AND THE RIGHT OF FIRST
REFUSAL GRANTED HEREBY DO NOT APPLY TO, AND SUCH RIGHT OF FIRST REFUSAL SHALL
NOT BE TRIGGERED BY:
(I) TRADE SALES AND SPOT SALES OF MMI SILVER IN THE
ORDINARY COURSE OF BUSINESS; (II) SALES OR TRANSFERS OF CONCENTRATES CONTAINING
OR INCLUDING MMI SILVER TO SMELTERS AND REFINERS IN THE ORDINARY COURSE OF
BUSINESS; (III) FORWARD SALES, OTHER HEDGING ARRANGEMENTS OR DERIVATIVES BASED
ON OR RELATED TO MMI SILVER OR THE DELIVERY THEREOF; OR (IV) SECURITY INTERESTS,
ASSIGNMENTS OF PRODUCTION OR OTHER LIENS OR ENCUMBRANCES ON OR RELATED TO MMI
SILVER FOR THE PURPOSE OF OBTAINING DEBT FINANCING OR OTHER FINANCING OR THE
CONSTRUCTION OR OPERATION OF A MINE THAT IS EXPECTED TO PRODUCE MMI SILVER. FOR
GREATER CERTAINTY, CLAUSES (I), (II) AND (III) ABOVE ARE LIMITED TO TRANSACTION
IN WHICH NO UPFRONT PAYMENT IS TO BE RECEIVED BY MMI OR ONE OF ITS AFFILIATES.
3
4.
TERM
THIS AGREEMENT SHALL HAVE A TERM OF 20 YEARS AND SHALL REMAIN IN EFFECT FROM THE
DATE HEREOF TO THE DATE THAT IS THE 20TH ANNIVERSARY OF THIS AGREEMENT.
5.
NOTICES AND COMMUNICATIONS
ALL NOTICES, DEMANDS AND COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER WILL BE
IN WRITING AND WILL BE DELIVERED PERSONALLY, BY FACSIMILE, BY COURIER OR BY
REGISTERED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED TO THE RESPECTIVE
REPRESENTATIVES AT SILVER WHEATON AND MMI SET FORTH BELOW. NOTICES, DEMANDS AND
COMMUNICATIONS HEREUNDER WILL BE EFFECTIVE:
(I) IF DELIVERED PERSONALLY, ON
DELIVERY; (II) IF DELIVERED BY FACSIMILE OR BY COURIER, UPON RECEIPT; OR (III)
IF DELIVERED BY REGISTERED MAIL, FORTY-EIGHT (48) HOURS AFTER DEPOSIT THEREOF IN
THE MAIL ADDRESSED TO THE PARTY TO WHOM SUCH NOTICE, DEMAND OR COMMUNICATION IS
GIVEN. UNTIL CHANGED BY WRITTEN NOTICE, ALL SUCH NOTICES, DEMANDS AND
COMMUNICATIONS WILL BE ADDRESSED AS FOLLOWS:
If to Silver Wheaton:
Suite 3150, 666 Burrard Street
Vancouver, British Columbia V6C 2X8
Attention:
Chief Financial Officer
Fax:
(604) 684-3123
If to MMI:
905 West Riverside Avenue, Suite 311
Spokane, Washington 99201
Attention:
Chief Financial Officer
Fax:
(509) 838-0486
6.
ENTIRE AGREEMENT
THIS AGREEMENT AND THE SUBSCRIPTION AGREEMENT CONSTITUTE THE ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES HERETO AND WILL