Exhibit 10.1

AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT

OF

AMBLER METALS LLC

EFFECTIVE AS OF FEBRUARY 11, 2020

THE INTERESTS DESCRIBED AND REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS (THE “SECURITIES LAWS”) AND MAY BE RESTRICTED SECURITIES AS THAT TERM IS DEFINED IN RULE 144 UNDER THE SECURITIES LAWS. TO THE EXTENT THE INTERESTS CONSTITUTE SECURITIES UNDER THE SECURITIES LAWS, THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR QUALIFICATION UNDER THE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES LAWS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.

TABLE OF CONTENTS

SCHEDULE AND exhibits

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

AMBLER METALS LLC

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT is adopted and entered into as of this 11th day of February, 2020 (the “Effective Date”), by and among Ambler Metals LLC, a Delaware limited liability company (the “Company”), South32 USA Exploration Inc., a Delaware corporation (“South32”), and NovaCopper US Inc., a Delaware corporation (“NovaCopper”), and amends and restates in its entirety the Limited Liability Company Agreement of the Company, dated as of January 2, 2020 (the "Original LLC Agreement"), in accordance with the terms of the Original LLC Agreement.

RECITALS

AGREEMENT

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, South32, NovaCopper and the Company agree as follows:

Article 1
DEFINITIONS

1.1          Certain Defined Terms. As used herein, the following terms shall have the following meanings (such meanings to be applicable equally to the singular as well as the plural forms of the terms defined and defined verbs to include all verb forms):

“Abandonment Date” has the meaning set forth in Section 13.1.

“Abandonment Property” has the meaning set forth in Section 13.1.

“Abandonment Property Interest” has the meaning set forth in Section 13.2.

“Accounting Procedure” means the financial and accounting procedures to be prepared by the VPF at the direction of the Board which if approved by the Board shall be adopted and applied by the President, the Company, and the Members under this Agreement.

“Act” has the meaning set forth in the Recitals.

“Affiliate” means any Person which directly or indirectly controls, is controlled by, or is under common control with, a Member. For purposes of the preceding sentence, a Person “controls” means possession, directly or indirectly, of the power to direct or cause direction of management and policies through ownership of voting securities, contract, voting trust or otherwise.

“Agreement” means this Agreement, including all amendments and modifications thereof, and all exhibits, which are incorporated herein by this reference.

“Ambler Lands” means the State of Alaska mineral claims, patented mining claims, and interests therein held by the Company, as more particularly described in Exhibit A.

“AMDIAP” means the Alaska Industrial Development and Export Authority proposed industrial road access project known as the Ambler Mining District Industrial Access Project.

“ANCSA Lands” means the lands now owned by NANA or which after the date hereof may be conveyed to or acquired by NANA within that certain area, as more particularly described in Exhibit A.

“AOI Property” means any interest or right (direct or indirect) in any property which is all or partly within the Area of Interest.

“Applicable Anti-corruption Laws” means any anti-corruption Law applicable to either Member (including any Affiliate) or this Agreement, and includes (but is not limited to) the Criminal Code Act 1995 and other applicable Laws of Australia, Canadian Corruption of Foreign Public Officials Act, the Canadian Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Criminal Code of Canada, Federal and applicable state law of the United States of America regarding corruption and the U.S. Foreign Corrupt Practices Act.

“Arctic Project” means that part of the Properties that as at the Effective Date consists of the volcanogenic massive sulfide deposit commonly referred to as Arctic, all as more particularly described in Exhibit A.

“Area of Interest” means the area depicted in Exhibit A.

“Assets” means the Properties and interests therein, Products, and all other real and personal property, tangible and intangible, held by the Company.

“Assumed Obligations” has the meaning set forth in the Contribution Agreement.

“BCICAC” means the British Columbia International Commercial Arbitration Centre and includes any entity which replaces the BCICAC or which substantially succeeds to its powers or functions.

“Board” means the board established under Article 6.

“Bornite Lands” means the patented mining claims held by NANA, as more particularly described in Exhibit A.

“Bornite Project” means that part of the Properties that as at the Effective Date consists of zones of mineralization proximal and distal to the two mineralized zones known as the Ruby Creek Zone and the South Reef Zone, all as more particularly described in Exhibit A.

“Bribery” means the offering, authorizing, giving, soliciting or accepting any monetary or other benefit to influence action of a Government Official in an official capacity, or to otherwise influence any person to act improperly. Bribery includes the making of facilitation payments, which are improper payments made to induce required routine official action.

“Budget” means a detailed estimate of all Expenditures to be incurred by the Company with respect to a Program and a schedule of cash contributions to be made by the Members with respect to such Program.

“Business Account” means one or more separate bank accounts established and maintained by the Company for the payment of all expenses and the deposit of all cash receipts for the Company.

“Business Day” means any day other than a Saturday, Sunday or statutory holiday in any of Anchorage, Alaska, Perth, Australia or Vancouver, Canada.

“Capital Account” means the capital account maintained for each Member in accordance with Treas. Reg. § 1.704-1(b)(2)(iv).

“CC Member” has the meaning set forth in Section 14.10.

“CC Option” has the meaning set forth in Section 14.10.

“Certificate of Formation” means the Certificate of Formation of the Company as filed with the Secretary of State on January 2, 2020, as amended from time to time.

“Change in Control” means the occurrence of any of the following events:

and for greater certainty, specifically excludes the events contemplated in Section 14.4(a).

“Change in Control Notice” has the meaning set forth in Section 14.10.

“CIM” means the Canadian Institute of Mining, Metallurgy and Petroleum or any successor entity.

“Claim” means any action, claim, demand, interference, injunction, stay, obligation, grievance, suit, dispute, counterclaim, arbitration or other proceeding, or any order, writ, injunction, judgment or decree.

“Code” means the Internal Revenue Code of 1986, as amended from time to time. Any reference in this Agreement to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future Law.

“Commercial Production” means the operation of all or part of the Project Area as a producing mine, but does not include bulk sampling or milling for the purpose of testing or milling by a pilot plant, and will be deemed to have commenced on the date determined by the Board.

“Company” has the meaning set forth in the Introduction.

“Confidential Information” has the meaning set forth in Section 16.1.

“Consent” means consent, waiver, approval, authorization, exemption, registration, declaration, expiration of waiting period, or filing.

“Continuing Obligations” means obligations or responsibilities that are reasonably expected to continue or arise after Operations on a particular area of the Properties have ceased or are suspended, such as future monitoring, stabilization, or Environmental Compliance.

“Continuing Member” has the meaning set forth in Section 14.10.

“Contribution Agreement” means that certain Contribution Agreement among NovaCopper (as Contributor), Trilogy (as Guarantor) and the Company (as Buyer) dated February 11, 2020 pursuant to which NovaCopper agreed to contribute, assign and transfer to the Company and the Company agreed to acquire and accept from NovaCopper the Assets.

“Corrupt Activity” means any activity which would constitute an offense under Applicable Anti-corruption Laws.

“Cover Loan” has the meaning set forth in Section 5.7(a).

“Development” means the construction of a Mine and related activities.

“Development Decision Trigger Date” means the 30th day following the date, if ever, on which, as a result of activities conducted during the Permitting Phase, a Final Environmental Impact Statement for the Project is released for public comment.

“Development Phase”, in respect of any Project, means the phase during which Development is undertaken.

“Development Plan” has the meaning set forth in Section 8.3(a)(iv).

“Dispute” means a dispute, controversy or Claim arising out of or in relation to this Agreement including in relation to its existence, validity, interpretation, performance, breach or termination of this Agreement.

“Dispute Representative” has the meaning set forth in Section 15.2.

“Dollars” or “$” means the official currency of the United States.

“Effective Date” has the meaning set forth in the introductory paragraph to this Agreement.

“Election Period” has the meaning set forth in Section 14.3(c).

“Encumbered Membership Interest” has the meaning set forth in Section 14.5(c).

“Encumbrance” means: (a) any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, deed of trust, title retention, security interest or other encumbrance of any kind securing, or conferring any priority of payment in respect of, any obligation of any Person, including any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security under applicable Law; (b) any lease, sublease, occupancy agreement, easement or covenant granting a right to use or occupancy to any Person; (c) any proxy, power of attorney, voting trust agreement, interest, option, right of first offer, negotiation or refusal or transfer restriction in favor of any Person; and (d) any adverse Claim as to title, possession or use.

“Environmental Compliance” means action performed during or after Operations to comply with the requirements of all Environmental Laws or contractual commitments related to reclamation of the Properties or other compliance with Environmental Laws.

“Environmental Compliance Fund” means the account established pursuant to Section 8.6.

“Environmental Laws” means Laws relating to reclamation or restoration of the Properties; abatement of pollution; protection of the environment; protection of wildlife, including endangered species; ensuring public health, safety or welfare from environmental hazards; protection of cultural or historic resources; management, storage or control of hazardous materials and substances; releases or threatened release of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances as wastes into the environment, including ambient air, surface water and groundwater; and all other Laws relating to the manufacturing, processing, distribution, use, treatment, storage, disposal, handling or transport of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes.

“Environmental Liabilities” means any and all Claims, actions, causes of action, damages, losses, liabilities, obligations, penalties, judgments, amounts paid in settlement, assessments, costs, disbursements, or expenses (including attorneys’ fees and costs, experts’ fees and costs, and consultants’ fees and costs) of any kind or of any nature whatsoever that are asserted against the Company or either Member, by any Person other than the other Member, alleging liability (including liability for studies, testing or investigatory costs, cleanup costs, response costs, removal costs, remediation costs, containment costs, restoration costs, corrective action costs, closure costs, reclamation costs, natural resource damages, property damages, business losses, personal injuries, penalties or fines) arising out of, based on or resulting from: (a) the presence, release, threatened release, discharge or emission into the environment of any hazardous materials or substances existing or arising on, beneath or above the Properties and/or emanating or migrating and/or threatening to emanate or migrate from the Properties to off-site properties; (b) physical disturbance of the environment on or relating to the Properties; or (c) the violation or alleged violation of any Environmental Laws in connection with the Properties.

“Existing Royalty” means the 1% net smelter returns royalty and certain other rights and obligations contemplated by the Net Smelter Returns Royalty Agreement dated January 7, 2010 among Kennecott Exploration Company, Alaska Gold Company and NovaGold Resources Inc. and assigned to MF2, LLC by Kennecott Exploration Company and Kennecott Royalty Company pursuant to a Royalty Assignment and Assumption Agreement effective December 28, 2012.

“Expenditure” in addition to cash expenditure includes costs, obligations and liabilities incurred or properly accrued but not yet met.

“Expert” means an expert appointed under Section 15.10 and acting pursuant to Sections 15.10 to 15.12 (inclusive).

“Exploration” means all activities directed toward ascertaining the existence, location, quantity, quality or commercial value of deposits of Products.

“Exploration Phase”, in respect of any Project, means the Phase during which Exploration is conducted.

“Feasibility Study” means a comprehensive study prepared by an internationally recognized mining engineering firm, complying with NI 43-101, JORC, the SEC Mining Rules and the standards of the Members and presented in sufficient detail and a format currently in use by the Canadian mining industry and acceptable to Chartered Canadian Banks or similar commercial lending institutions for the purposes of evaluating the financing of international mining properties. The study must appropriately reference the Pre-Feasibility study completed on the Project, and show the feasibility of placing any part of the Project Area into commercial production and will include a reasonable assessment of all relevant issues including the various categories of ore reserves and their amenability to metallurgical treatment or extraction processes, a complete description of the work, equipment and supplies required to bring the Project Area into commercial production and the estimated cost of doing so, a description of the mining methods to be employed and a financial appraisal of the proposed operations and including at least the following:

“Feasibility Study Phase”, in respect of any Project, means the phase during which the Feasibility Study is conducted.

“Final Environmental Impact Statement” means a final environmental impact statement issued for public comment by the appropriate Governmental Authorities under NEPA and the applicable Council on Environmental Quality guidelines.

“Fiscal Year” means a period of twelve (12) consecutive months, beginning on the first day of December and ending on the last day of November.

“Funding Commencement Date” has the meaning set forth in Section 5.1.Error! Reference source not found.

“Governmental Authority” means any federal, provincial, state, territorial, regional, municipal, local government or authority, quasi government authority, fiscal or judicial body, government or self-regulatory organisation, commission, board, tribunal, organisation, stock exchange or any regulatory, administrative or other agency, or any political or other subdivision, department, or branch of any of the foregoing.

“Government Official” includes any:

“Gross Negligence” means any wrongful act or omission which was not an error of judgment, mistake or other act or omission (negligent or not) that was in reckless disregard of or wanton indifference to, harmful consequences to the other Member which the first Member knew, or should have known, such act or failure to act would have but Gross Negligence does not include any act or failure to act insofar as it was done or omitted in accordance with the express instructions or approval of all Members.

“Independent Peer Review” means a review undertaken by Persons appointed by the Board who have not had any direct prior involvement in (including the provision of work or services) the matter or thing the subject of the review.

“Initial Contribution” means that capital contribution each Member is deemed to have made pursuant to Section 5.1.

“Initial Program and Budget”, as the case may be, means:

“Initial Project Area” means that part of the Properties as more particularly depicted in Exhibit A as the Arctic Project and the Bornite Project.

“Interest” has the meaning set forth in Section 14.10.

“Joint Actor” means a person acting “jointly or in concert with” another person within the meaning of Section 96 of the Securities Act (British Columbia) or as such section may be amended or re-enacted from time to time.

“JORC” means the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves prepared by the Joint Ore Reserves Committee of the Australasian Institute of Mining and Metallurgy, Australian Institute of Geoscientists and Minerals Council of Australia, or any successor code, instrument, rule or policy.

“Law” means all applicable federal, state, provincial, borough, tribal, native and local laws (statutory or common), rules, ordinances, regulations, grants, concessions, franchises, licenses, orders, directives, judgments, decrees, and other governmental restrictions, including permits and other similar requirements, whether legislative, municipal, administrative or judicial in nature, including Environmental Laws.

“Lease Agreement” means that certain Mining Lease and Option to Purchase Agreement, dated February 11, 2020, by and between NovaCopper, as Lessor, and the Company, as Lessee, respecting the Leased State Claims.

“Leased State Claims” means the Staked Claims in Exhibit A of this Agreement and the State of Alaska mining claims listed in other parts of Exhibit A of this Agreement, and which are also included in Exhibit A of the Lease Agreement.

“Liabilities” has the meaning set forth in the Contribution Agreement.

“Loan” has the meaning set forth in the Loan Agreement.

“Loan Agreement” means that certain Loan Agreement anticipated to be entered into and dated on or about February 18, 2020 by and between the Company and South32.

“Loan Decisions” means the consideration and approval of any matter or action related to the Loan or any Loan Documents, except for any matter or action set forth in Section 6.6(c).

“Loan Documents” has the meaning set forth in the Loan Agreement.

“Majority Approval” means a simple majority of the total votes entitled to be cast by the Voting Representatives present at a meeting of the Board duly called at which a quorum (as determined in accordance with Section 6.3(b)) was present or represented.

“Management Team” means the VPF and the VPO and such other Officers as may be appointed to the Management Team by the Board.

“Manual of Authorities” means a written manual which setting out the duties, responsibilities and authorities of the President and other Officers.

“Member” means each of South32 and NovaCopper (each an “Initial Member”) and each Person who or which hereafter acquires any Units or other form of membership interest in the Company and/or is admitted as a Member.

“Membership Interest” means, with respect to any Member:

“Mine” means the workings established and the property acquired, including plant and concentrator installations, processing facilities, infrastructure, mining plant and equipment, stores, consumables, housing, transportation and other facilities in order to bring the Project Area into production.

“Mining Operation” means an operation directed to the mining, extraction and production of ore and the treatment (including handling, milling or other processing) of ore to produce saleable Products.

“Monthly Construction Report” has the meaning set forth in Section 7.9(a).

“Monthly Operating Report” has the meaning set forth in Section 7.10(b).

“NANA” means the NANA Regional Corporation, Inc., a corporation organized pursuant to the provisions of the Alaska Native Claims Settlement Act, 43 U.S.C § 1601 et seq. and the laws of the State of Alaska.

“NANA Agreement” means the Exploration Agreement and Option to Lease between the Company and NANA dated October 19, 2011, as amended by an Amending Agreement between the Company and NANA dated May 10, 2012, as further amended by an Amending Agreement between the Company and NANA dated February 13,  2013, as further amended by an Amending Agreement between the Company and NANA dated January 13, 2015 and as further amended by an Amending Agreement between the Company and NANA dated August 20, 2019.

“NEPA” means the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq., as amended.

“NI 43-101” means National Instrument 43-101 – Standards of Disclosure for Mineral Projects of the Canadian Securities Administrators or any successor instrument, rule or policy.

“Non-Agreed IPB Items” has the meaning set forth in Section 8.2(d)(ii).

“Non-secured Member” has the meaning set forth in Section 14.5(c).

“Notice” has the meaning set forth in Section 18.1.

“NovaCopper” has the meaning set forth in the introductory paragraph to this Agreement.

“Offered Interest” has the meaning set forth in Section 14.3(a).

“Officers” means each of the members of the Management Team and such other Officers of the Company appointed by the Board in accordance with Article 7.

“Operating Phase” has the meaning set forth in Section 7.10(a).

“Operations” means the activities carried out by the Company under this Agreement.

“Option Agreement” has the meaning set forth in the Recitals to this Agreement.

“Oversight Committee” has the meaning set forth in the NANA Agreement.

“Party” means either the Company, NovaCopper or South32, as the context dictates.

“Parties” means the Company, NovaCopper and South32.

“PEA Phase”, in respect of any Project, means the phase during which a PEA is developed and prepared.

“Percentage Interest” means the percentage interest of a Member in certain allocations of profits and losses and other items of income, gain, loss or deduction and certain distributions of cash or property, representing the Membership Interest of a Member in the Company, as such interest may from time to time be adjusted hereunder. Percentage Interests shall be calculated to three decimal places and rounded to two (e.g., 1.519% rounded to 1.52%). Decimals of .005 or more shall be rounded up, decimals of less than .005 shall be rounded down. The initial Percentage Interests of the Members are set forth in Section 5.3.

“Permitting” means all actions reasonably necessary to obtain all rights, licenses, approvals, permits, and authorizations reasonably necessary to construct and operate a Project substantially as contemplated by a Feasibility Study, including, but not limited to:

“Permitting Phase”, in respect of any Project, means the phase during which Permitting is conducted.

“Person” means a natural person, any general partnership (including a limited liability partnership), limited partnership (including a limited liability limited partnership), limited liability company, corporation, joint venture, trust, business trust, cooperative, association or any foreign trust or foreign business organization.

“Personnel”, in relation to the Company or a Member, means any of its directors, officers, employees, agents, consultants, invitees, subcontractors and representatives.

“Pre-Feasibility Study” means a comprehensive study, prepared by an internationally recognized mining engineering firm, complying with NI 43-101, JORC, and the SEC Mining Rules, to the standards of the Members, of a range of options for the technical and economic viability of a Project that has advanced to a stage where a preferred mining method, in the case of underground mining, or the pit configuration, in the case of an open pit, is established and an effective method of mineral processing is determined. The study shall include a financial analysis based on reasonable assumptions on or in respect of mining, processing, metallurgical, economic, marketing, legal, environmental, social and governmental considerations (including permitting), work plan and schedule for the recommended next study phase and the evaluation of any other relevant factors. The study shall have an accuracy of between twenty percent (20%) and twenty-five percent (25%) and at a minimum include:

“Pre-Feasibility Study Phase”, in respect of any Project, means the phase during which the Pre-Feasibility Study is developed and prepared.

“Preliminary Economic Assessment” or “PEA” means a study, other than a Pre-Feasibility Study or Feasibility Study, that includes an economic analysis of the potential viability of mineral resources and includes disclosure of forecast mine production rates and includes estimated capital costs to develop and sustain the mining operation, operating costs, and projected cash flows with an estimation accuracy of between thirty percent (30%) and thirty-five (35%). At such time as the SEC Mining Rules go into effect, a Preliminary Economic Assessment shall also satisfy the requirements of an Initial Assessment under the SEC Mining Rules.

“President” means the President of the Company as appointed by the Board in accordance with Section 7.1.

“Prime Rate” means the interest rate quoted as “Prime” by J.P. Morgan Chase & Co., New York, at its head office, as said rate may change from day to day (which quoted rate may not be the lowest rate at which such bank loans funds).

“Products” means all ores, concentrates or other intermediate products, metals, minerals and mineral resources produced from the Properties under this Agreement.

“Program” means a description in reasonable detail of Operations to be conducted and objectives to be accomplished by the Company for a Fiscal Year or any longer period.

“Project”, in respect of any Project Area, means to undertake Operations for the following purposes:

“Project Area” means any part of the Properties which is the subject of, or which forms part of, a Project.

“Project Phase Report” means a detailed report prepared by the President at the end of each Project Phase for submission to the Technical Committee, which in regard to the Pre-Feasibility Study Phase and Feasibility Study shall, among other things, cover those areas referred to in the definition of Pre-Feasibility Study and Feasibility Study, as the case may be, and be in the format and contain the content and chapters/divisions set forth in Exhibit D and which in regard to any other Project Phase shall summarize the Programs and Operations conducted and the Expenditure incurred during such Project Phase as well as the outcomes and findings of the studies or Operations conducted during such Project Phase.

“Project Phases” means the Exploration Phase, the PEA Phase, the Pre-Feasibility Study Phase, the Feasibility Study Phase, the Permitting Phase and the Development Phase and “Project Phase” means any one of them.

“Project Security” means any Encumbrance over all or any of the Assets which the Board has, by Unanimous Approval, approved as Project Security.

“Properties” means the ANCSA Lands, the Ambler Lands and the Bornite Lands described in Exhibit A and interests therein together with all other interests in real property, fixtures and improvements and all easements, rights-of-way, water rights, and all other appurtenances within the Area of Interest which are acquired and held subject to this Agreement.

“Purchase Option” means the put/call option set forth in the Lease Agreement.

“Resigning Member” has the meaning set forth in Section 14.12.

“Related Party” means a Member or an Affiliate of a Member.

“Related Party Transaction” means any contract or other legally binding transaction, arrangement or understanding between the Company and a Related Party.

“Rules” has the meaning set forth in Section 15.3.

“SEC Mining Rules” means subpart 1300 and Item 601(b)(96) of Regulation S-K under the U.S. Securities Act of 1933, as amended, as such rules may be amended.

“Secretary of State” means the secretary of state of the State of Delaware.

“Security” has the meaning set forth in Section 14.5(a).

“Security Holder” has the meaning set forth in Section 14.5(c).

“Selling Member” has the meaning set forth in Section 14.3(a).

“Services Agreement” means the services agreement anticipated to be entered into and dated on or about February 18, 2020 between the Company and NovaCopper and any and all documents and agreements contemplated thereby or ancillary thereto.

“South32” has the meaning set forth in the Introduction to this Agreement.

“Special Approval” means approval by sixty percent (60%) or more of the total votes entitled to be cast by the Voting Representatives present at a meeting of the Board duly called at which a quorum (as determined in accordance with Section 6.3(b)) was present or represented, and shall also include approval by an instrument in writing signed by all representatives on the Board.

“Staked Claims” means the State of Alaska mining claims described as the Staked Claims of Exhibit A of this Agreement.

“Subscription Contribution of South32” means $145 million.

“Sunshine Deposit” means the part of the Property to the west of the Arctic Deposit that as at the Effective Date consists of the volcanogenic massive sulfide deposit commonly referred to as Sunshine, as more particularly described in Exhibit A.

“Tax” means any income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs, capital stock, franchise, withholding, social security, unemployment, disability, property, sales, use, transfer, registration, value added, estimated or other tax, or any other assessment, by any Governmental Authority of any kind whatsoever, including any interest, penalty, or addition thereto, whether or not disputed.

“Tax Year” means a period of twelve (12) consecutive months, beginning on the first day of July and ending on the last day of June.

“Technical Report” means a report prepared, filed and certified in accordance with this Agreement and NI 43-101.

“Technical Report Summary” means a report prepared, filed and certified in accordance with this Agreement and the SEC Mining Rules.

“Transfer” means to sell, grant, assign, encumber, pledge or otherwise commit or dispose of, and with respect to a Membership Interest, or any economic interest therein, a Transfer also means (i) when used as a verb, to sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such Membership Interest (or any participation or interest therein), whether directly or indirectly (including pursuant to a derivative transaction), or agree or commit to do any of the foregoing and (ii) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation, or other transfer of such Membership Interest (or any participation or interest therein), or any agreement or commitment to do any of the foregoing.

“Transferee” has the meaning set forth in Section 14.3(a).

“Transfer Notice” has the meaning set forth in Section 14.3(a).

“Treasury Regulations” or “Treas. Regs.” means regulations issued by the United States Department of Treasury under the Code. Any reference herein to a specific section or sections of the Treasury Regulations shall be deemed to include a reference to any corresponding provision of future regulations under the Code.

“Trilogy” has the meaning set forth in the Recitals.

“Unanimous Approval” means the affirmative vote of all votes entitled to be cast by the Voting Representatives present at a meeting of the Board duly called at which a quorum (as determined in accordance with Section 6.3(b)) was present or represented, and shall also include approval by an instrument in writing signed by all representatives on the Board.

“United States” means the United States of America and its territories and possessions.

“Unit” means a Membership Interest which shall be issued in the form of units as set forth in Exhibit E, or any successor interests thereof in the Company.

“Updated Development Plan” has the meaning set forth in Section 8.4(b).

“Vice President Finance” or “VPF” means the Vice President Finance of the Company appointed by the Board in accordance with Section 7.3.

“Vice President Operations” or “VPO” means the Vice President Operations of the Company appointed by the Board in accordance with Section 7.3.

“Voting Representative” means the representative of a Member on the Board who is entitled to cast all of the votes of such Member, determined as provided in Section 6.2(a).

“Wilful Misconduct” means any act or failure to act (whether sole, joint or concurrent) by a Member that was intended to cause or was in reckless disregard of, or wanton indifference to, the harmful consequences to the interests or property of the other Member which the Member acting or failing to act knew, or should have known, would result from such act or omission, but Wilful Misconduct does not include any act or failure to act insofar as it was done or omitted in accordance with the express instructions or approval of all Members.

1.2               Rules of Construction. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All references herein to articles, sections and exhibits, unless the context requires a different construction, shall be deemed to be references to the articles and sections of this Agreement and the exhibits attached hereto and made a part hereof. In this Agreement, unless a clear contrary intention appears, the word “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term. Words, terms and phrases used, but not specifically defined, in this Agreement shall have the meanings commonly ascribed to such words, terms or phrases. The headings of the various articles and sections of this Agreement are for convenience only and shall not affect the meaning of the terms and conditions of this Agreement. No provision of this Agreement shall be interpreted or construed against any party solely because that party or its legal representative drafted such provision. The singular includes the plural and conversely and a gender includes all genders. A reference to any party (including a Party) includes that party’s executors, administrators, substitutes (including, but not limited to, persons taking by novation), successors and permitted assigns. A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced except to the extent prohibited by this Agreement or that other agreement or document. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation, code, by-law, ordinance or statutory instrument issued under it. If an act is prescribed to be done on a specified day which is not a Business Day, it shall be done instead on the next Business Day.

Article 2
REPRESENTATIONS AND WARRANTIES; TITLE TO ASSETS

2.1               Capacity of Members. As of the Effective Date, each Member represents and warrants to the other Member as follows:

2.2               Record Title. All right, title and interest in and to the Assets shall be held by the Company.

2.3               Loss of Title. Any failure or loss of title to the Assets, including without limitation leasehold and fee title, and all costs of defending title, shall be charged to the Business Account.

2.4               No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 2.1, THE MEMBERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, AND THERE ARE NO IMPLIED CONDITIONS IN RESPECT OF ANY ASSETS, LIABILITIES OR OPERATIONS, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS ARE HEREBY EXPRESSLY DISCLAIMED. FOR CERTAINTY, NOTHING IN THIS SECTION LESSENS, PREJUDICES OR OTHERWISE AFFECTS THE RIGHTS AND REMEDIES OF THE COMPANY, TRILOGY, NOVACOPPER OR SOUTH32 IN RESPECT OF ANY REPRESENTATIONS AND WARRANTIES GIVEN OR MADE BY ANY OF THE COMPANY, TRILOGY, NOVACOPPER OR SOUTH32 UNDER THE OPTION AGREEMENT OR ANY LOAN DOCUMENT AND THE RIGHTS AND REMEDIES OF THE COMPANY, TRILOGY, NOVACOPPER AND SOUTH32 IN RESPECT OF SUCH REPRESENTATIONS AND WARRANTIES SHALL BE EXCLUSIVELY GOVERNED BY THE OPTION AGREEMENT AND SUCH LOAN DOCUMENT, AS APPLICABLE.

Article 3

 NAME, PURPOSES AND TERM

3.1               General. The Company has been duly organized pursuant to the Act by the filing of the Certificate of Formation with the Secretary of State. The Members agree that all of their rights with respect to the Company and all of the Operations shall be subject to and governed by this Agreement. To the fullest extent permitted by the Act, this Agreement shall control as to any conflict between this Agreement and the Act or as to any matter provided for in this Agreement that is also provided for in the Act.

3.2               Name. The name of the Company shall be Ambler Metals LLC. The President shall accomplish any filings or registration required by applicable statutes where the Company conducts any Operations.

3.3               Purposes. The Company is formed for the following purposes and for no others, and shall serve as the exclusive means by which the Members, or either of them, accomplish such purposes:

3.4               Limitation. Unless approved by Unanimous Approval, the Operations shall be limited to the purposes described in Section 3.3, and nothing in this Agreement shall be construed to enlarge such purposes.

3.5               Conduct of Operations. Each Member (to the extent it can lawfully do so) shall exercise its rights under this Agreement and its powers in relation to the Company to ensure that:

3.6               Effective Date and Term.

3.7               Registered Agent; Offices. The initial registered office and registered agent of the Company shall be as set forth in the Company’s Certificate of Formation. The Board may from time to time designate a successor registered office and registered agent and may amend the Certificate of Formation to reflect any such change. The location of the principal place of business of the Company shall be at such location in the United States as the Board shall from time to time select.

Article 4
FIDUCIARY DUTIES, CORPORATE OPPORTUNITY AND RELATIONSHIP OF THE MEMBERS

4.1               No State-Law Partnership. Nothing contained in this Agreement shall be deemed to constitute either Member the partner, agent or legal representative of the other, or to create any mining, commercial or other partnership (other than a partnership for federal and state tax purposes) and except as expressly provided otherwise in this Agreement, nothing in this Agreement will create or be deemed to create a fiduciary relationship between the Members. Except pursuant to the authority expressly granted herein or as otherwise agreed in writing between the Members, neither Member:

4.2               Federal Tax Elections and Allocations. The Company shall be treated as a partnership for federal income tax purposes. Tax elections and allocations shall be made as set forth in Exhibit B.

4.3               State Income Tax. The Members also agree that, to the extent permissible under applicable Law, their relationship shall be treated for state income tax purposes in the same manner as it is for Federal income tax purposes.

4.4               Tax Returns. The VPF shall prepare and shall file, after approval of the Board, any tax returns or other tax forms required.

4.5               Other Business Opportunities. To the fullest extent permitted by applicable Law, except as expressly provided in this Agreement: (a) each Member shall have the right independently to engage in and receive full benefits from business activities, whether or not competitive with the Operations, without consulting the other; and (b) the doctrines of “corporate opportunity”, “business opportunity” or any analogous doctrine shall not be applied to any other activity, venture, or operation of either Member. Neither Member shall have any obligation to any Member or the Company with respect to any opportunity to acquire any property outside the Area of Interest at any time, or, except as otherwise provided in Section 14.12, within the Area of Interest after the termination of the Company. Except as otherwise provided in Article 12, no Member nor any of its Affiliates shall have any obligation to refrain from: (i) engaging in the same or similar activities or lines of business as the Company or developing or marketing any products or services that compete, directly or indirectly, with those of the Company; (ii) investing or owning any interest publicly or privately in, or developing a business relationship with, any Person engaged in the same or similar activities or lines of business as, or otherwise in competition with, the Company; (iii) doing business with any client or customer of the Company; or (iv) using, for any reason not related to the Properties, any geological, geophysical, geochemical, metallurgical or operational concept, model or principle of any kind. Unless otherwise agreed in writing, no Member will have any obligation to mill, beneficiate or otherwise treat any Products or any other Member’s share of Products in any facility owned or controlled by that Member.

4.6               Waiver of Right to Partition. The Members hereby waive and release all rights of partition, or of sale in lieu thereof, or other division of Assets, including any such rights provided by statute.

4.7               Transfer of Membership Interest. Except as otherwise provided in this Agreement, neither Member shall Transfer all or any part of its Membership Interest.

4.8               Implied Covenants; No Fiduciary or Additional Duties. There are no implied covenants contained in this Agreement. No Member or representative of a Member on the Board shall have any fiduciary or other duties to the Company or the other Member except as specifically provided by this Agreement, and such representatives and the Members’ duties and liabilities otherwise existing at law or in equity (including the duty of loyalty and the duty of care) are restricted and eliminated by the provisions of this Agreement to those duties and liabilities specifically set forth in this Agreement. For greater certainty, to the fullest extent permitted by applicable Law, a Member’s representative on the Board shall:

Notwithstanding any contrary provision of this Agreement, in carrying out any duties hereunder, representatives on the Board and the Members shall not be liable to the Company nor to any Member for breach of any duty for the representative’s or any such Member’s good faith reliance on the provisions of this Agreement, the records of the Company, or such information, opinions, reports or statements presented by the other Member, the President, any other Officer or employee of the Company, or the Board or other committee of the Company, or by any other Person as to matters such Member or the representative reasonably believes are within such other Person’s professional or expert competence. The preceding sentence shall in no way limit any Person’s right to rely on information to the extent provided in Section 18-406 of the Act.

4.9               Liabilities; Indemnification.

Notwithstanding the foregoing, the Company shall not be required to indemnify, defend and hold harmless NovaCopper and its directors, officers, employees, agents and attorneys from and against any and all third party losses, Claims, damages and liabilities to the extent that such third party losses, Claims, damages and liabilities arise out or in connection with any Liabilities (other than the Assumed Obligations).

then notwithstanding anything in Article 10 to the contrary and until such time as the Company has discharged the Indemnification Liability the Company shall be entitled without the necessity for any approval from the Board:

Article 5
PERCENTAGE INTERESTS

5.1               Member’s Initial Contributions. The Members shall be deemed to have made the following Initial Contributions:

Subject to this Agreement, the Initial Contribution of South32 shall be applied to fund all Expenditure requirements of the Company in connection with the Operations the subject of the Initial Program and Budget and, as applicable, the Operations the subject of any subsequent adopted Program and Budget and no Member shall be obliged to contribute funds in accordance with Section 5.5 until (i) the date on which the remaining balance of the Subscription Contribution of South32 is equal to the cash balance that the President is required to maintain in accordance with Section 9.2 and (ii) any loans to any Member by the Company, including without limitation the Loan, have been repaid in full (“Funding Commencement Date”).

5.2               Return of Contributions. No Member shall be entitled to the return of any part of its capital contributions or to be paid interest in respect of either its Capital Account or its capital contributions. No unrepaid capital contribution shall constitute a liability of the Company or any Member. A Member is not required to contribute or to lend cash or property to the Company to enable the Company to return either Member’s capital contributions. The provisions of this Section 5.2 shall not limit a Member’s rights or obligations under Article 11.

5.3               Initial Percentage Interests. The Members shall have the following initial Percentage Interests, which shall be represented by the Units as set forth on Schedule 1:

5.4               Changes in Percentage Interests. A Member’s Percentage Interest shall be changed as follows (with appropriate adjustment made in the Units issued to the Members as shown on Schedule 1):

5.5               Additional Cash Contributions. Subject to any election permitted by Section 5.6, the Members shall on and after the Funding Commencement Date be obliged to contribute funds in proportion to their respective Percentage Interests to all adopted Programs and Budgets. If a Member fails to contribute to any adopted Program and Budget in at least the amount required to maintain its Percentage Interest equal to or greater than ten percent (10%), Section 5.8 shall apply.

5.6               Voluntary Reduction in Percentage Interest. On or after the Funding Commencement Date, a Member may elect, in the manner provided in Section 8.8, to limit its contributions to an adopted Program and Budget as follows:

If a Member elects, as permitted by this Section 5.6, to contribute to an adopted Program and Budget some lesser amount than its proportionate share of such Program and Budget based on its Percentage Interest, or not to contribute any amount, and the other Member elects to contribute the shortfall amount or elects not to contribute the shortfall amount and contributes its proportionate share of such Program and Budget based on its Percentage Interest, the Percentage Interest of the Member electing to contribute a lesser amount or not at all shall be recalculated at the time of election to equal the result obtained by dividing: (i) the sum of (a) the agreed value of the Member’s Initial Contribution under Section 5.1, plus (b) the total of all of the Member’s additional contributions, plus (c) the amount, if any, the Member elects to contribute to the adopted Program and Budget; by (ii) the sum of (a), (b) and (c) above for both Members; and then multiplying the result by one hundred. The Percentage Interest of the other Member shall thereupon become the difference between one hundred percent (100%) and the recalculated Percentage Interest.

5.7               Default in Making Contributions.

On or at any time after a non-defaulting Member has advanced a Cover Loan, the defaulting Member shall, when requested in writing by the non-defaulting Member, grant to the non-defaulting Member a first-ranking charge, mortgage, security agreement, debenture or other form of security interest specified by the non-defaulting Member over the defaulting Member’s Membership Interest (including the defaulting Member’s share of Products or cash entitlements in accordance with Article 10) on terms satisfactory to the non-defaulting Member to secure the repayment by the defaulting Member of the Cover Loan. The defaulting Member covenants and agrees with the non-defaulting Member that it shall, promptly at any time and from time to time at the request and cost of the defaulting Member, execute and deliver to the non-defaulting Member all deeds, instruments and other documents and do all acts and things which the non-defaulting Member may require for the purpose of granting such charge, mortgage, security agreement, debenture and other forms of security interest over the defaulting Member’s Membership Interest and for the purpose of registering such security interests.

(A – ((B)/(D+C))) * Default Rate

Where:

A = the defaulting Member’s Percentage Interest immediately prior to the adjustment

B = the sum of (a) the agreed value of the defaulting Member’s Initial Contribution under Section 5.1, plus (b) the total of all of the defaulting Member’s additional contributions

C = the amount of the Cover Loan default (including accrued but unpaid interest), if any

D = the sum of (a) the agreed value of the all of the Members’ Initial Contribution under Section 5.1, plus (b) the total of all of the Members’ additional contributions (through the date of the contribution default under Section 5.7(a))

The “Default Rate” is one and one-half (1.5) for the first and second such default and two (2.0) for the third and each subsequent such default. See Exhibit F for examples of adjustments to a defaulting Member’s Percentage Interest pursuant to this Section 5.7. Amounts treated as a Cover Loan pursuant to Section 5.7(a) and interest thereon shall be included in the calculation of the defaulting Member’s reduced Percentage Interest. The non-defaulting Member’s Percentage Interest shall, at such time, become the difference between one hundred percent (100%) and the further reduced Percentage Interest. Such reductions shall be effective as of the date of the default. Appropriate adjustments to the number of Units held by the Members shall be made to reflect the adjusted Percentage Interests of the Members.

5.8               Redemption of Minority Interest. On and after the Funding Commencement Date each Member covenants to make all contributions necessary to maintain a Percentage Interest of ten percent (10%) or more. If the Percentage Interest of a Member is reduced to less than ten percent (10%), a Member shall be deemed to have resigned from the Company within the context of the operation of Sections 18-306(2) and 18-502(c) of the Act and, as a consequence, shall have its entire Membership Interest redeemed for no consideration. Neither the Company nor the other Member shall have any other rights or remedies solely as a result of the redeemed Member’s failure to maintain a Percentage Interest of ten percent (10%) or more.

5.9               Continuing Obligations and Liabilities. Each Member shall be liable to the other Member to reimburse and pay to such other Member its respective share, based on Percentage Interests, of any and all third party losses, Claims, damages and liabilities arising out of or relating to the Company or the Operations, including each Member’s respective share of Environmental Liabilities and Continuing Obligations should the cumulative cost of satisfying any Environmental Liabilities or Continuing Obligations be in excess of cumulative amounts accrued or otherwise charged to the Environmental Compliance Fund, incurred by such other Member. The reimbursement obligation of a Member under this Section 5.9 shall apply whether or not any such losses, Claims, damages or liabilities accrue before or after the resignation or deemed resignation of such Member, the Transfer by such Member of all or any portion of its Membership Interest, the dissolution or liquidation of the Company, or any reduction of such Member’s Percentage Interest, but in each case:

Notwithstanding the foregoing, South32 shall not be liable to reimburse and pay to NovaCopper any and all third party losses, Claims, damages and liabilities relating to the Company or the Operations, including Environmental Liabilities and Continuing Obligations to the extent that such third party losses, Claims, damages and liabilities arise out or in connection with any Liabilities (other than the Assumed Obligations).

For purposes of this Section 5.9, such Member’s share of such liability shall be equal to its Percentage Interest at the time such liability was incurred (or as to any such liabilities arising or existing prior to the Effective Date, such Member’s initial Percentage Interest). Any resignation or deemed resignation of a Member, any Transfer by such Member or all or any portion of its Membership Interest, or any reduction of a Member’s Percentage Interest under this Article 5 shall not relieve such Member of its share of any such liability accruing before such Transfer or reduction. Notwithstanding the foregoing, the provisions of this Section 5.9 shall not apply in the case that the Member requesting reimbursement is finally determined to be personally liable for such losses, Claims, damages or liabilities, and shall not be construed as a waiver or reduction of the limitations under the Act or other applicable Law of the liability of a Member for Company obligations.

5.10          Units; UCC Article 8; Legends. The Company hereby irrevocably elects that all Units shall be “securities” within the meaning of Section 8-102(a)(15) and as provided by Section 8-103(c) of the Uniform Commercial Code as in effect in the State of Delaware and analogous provisions under Article 8 of the Uniform Commercial Code in effect in any other applicable jurisdictions. Certificates representing the Units of Membership Interest shall be issued by the Company substantially in the form of Exhibit E hereto and each certificate evidencing Units shall bear the following legends in addition to any other legends that may be applicable:

THIS CERTIFICATE EVIDENCES UNITS OF MEMBERSHIP INTEREST IN AMBLER METALS LLC THAT SHALL BE SECURITIES FOR PURPOSES OF, AND GOVERNED BY, ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF DELAWARE AND ANY OTHER APPLICABLE JURISDICTIONS.

THE UNITS OF MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ALL OF THE OTHER TERMS AND CONDITIONS SET FORTH IN THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT DATED FEBRUARY 11, 2020, BY AND BETWEEN THE MEMBERS AND THE COMPANY.

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

Article 6
BOARD

6.1               Organization and Composition.

6.2               Decisions.

6.3               Meetings.

6.4               Initial Board Resolutions. The Members shall procure that on or within fifteen (15) days after the Effective Date a duly convened meeting of the Board is convened and held at which a quorum is present and acting throughout at which the following matters are approved in accordance with this Agreement:

6.5               Action Without Meeting. Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting and without prior Notice if the action is evidenced by a written consent describing the action taken, signed by the representative or representatives on the Board having the requisite Percentage Interest to take such action; provided that Notice of all actions taken by less than unanimous written consent shall be provided to all representatives of the Board (other than representatives of the Board executing such consent) not later than two (2) Business Days after the taking of such action. Action taken under this Section 6.4 shall be effective when representatives of the Board holding the requisite Percentage Interest have signed the consent, unless the consent specifies a different effective date.

6.6               Matters Requiring Special Approval or Unanimous Approval.

6.7               Non-Delegable Duties of the Board. The Board shall have the right to delegate the power and authority for the management of the business and affairs of the Company to the President and the Management Team in accordance with the Manual of Authorities, except for the following, which shall be non-delegable:

6.8               Representation of Company. Where any Personnel of a Member are appointed or nominated by the Company to represent the Company on the Oversight Committee or any other committee or board relating to the Project, that Member shall cause each member of its Personnel so appointed or nominated to vote or otherwise represent the Company in the manner as directed by the Board.

6.9               Related Party Transactions. In relation to any Related Party Transaction, the representatives of the Board appointed by the Member which is:

shall have no right to vote, and shall not vote, in relation to such Related Party Transaction at any meeting of the Board other than with respect to any action or matter set forth in Section 6.6(c).

6.10            Existing Royalty. The Board shall consider from time to time whether to cause the Company to exercise its right to repurchase the Existing Royalty.

Article 7
PRESIDENT, OTHER OFFICERS AND TECHNICAL COMMITTEE

7.1               President.

7.2               Duties of President. The President shall have the powers and responsibilities expressly delegated to him or her by the Board and as expressly specified in the Manual of Authorities and shall be responsible for the day to day management, supervision and control of Operations. The President shall manage, direct and control the day to day conduct of Operations in a manner consistent with adopted Programs and Budgets. The President shall implement the decisions of the Board.

7.3               Officers.

7.4               Personnel. The President shall be responsible for the employment, training, supervision and dismissal of all staff and personnel employed by the Company other than members of the Management Team. Notwithstanding the foregoing, the President shall cause the Company only to engage or employ the number of Personnel he or she reasonably considers are required for the proper conduct of Operations.

7.5               Technical Committee.

7.6               Other Committees.

7.7               Periodic Reports and Meetings. Without limiting any other provision of this Agreement, the Members shall use their reasonable efforts to procure that the President, at the request of any Member holding, in the aggregate, not less than 25% of the outstanding Membership Interest, prepares (and furnishes to each Member) such reports on such dates and with such frequency as that Member may reasonably request, and shall procure that the President, as promptly as possible after their preparation, furnishes to the Board copies of such reports prepared by the Management Team in connection with the Company and any Project as may be reasonably required by the Board and that the President meets with the Board, or an appropriate committee of the Board, at such times and with such frequency as may be reasonably required by the Board or such committee, as the case may be, to discuss such reports.

7.8               Progress Meetings. Prior to the commencement of construction of a Mine, the Members shall use their reasonable efforts to procure that:

7.9               Construction Reports and Meetings.

7.10            Operating Reports and Meetings.

Article 8
PROGRAMS AND BUDGETS

8.1               General. As at the Effective Date the Members acknowledge and agree that:

8.2               Initial Program and Budget. If an Initial Program and Budget has been agreed by the Initial Members on or before the Effective Date then that Initial Program and Budget is attached to this Agreement as Exhibit C and that Initial Program and Budget is hereby adopted. If an Initial Program and Budget has not been prepared or agreed (or both, as the case may be) by the Initial Members on or before the Effective Date then notwithstanding anything in this Agreement to the contrary:

8.3               Project Advancement and Development.

8.4               Development Plan and Development Decision.

8.5               Programs and Budgets.

Where a proposed Program and Budget contains details of capital works to be undertaken in respect of a Project that has progressed to the Operating Phase, the President may and, if so directed by the Board, shall prepare and submit to the Board a separate proposed Program and Budget covering the carrying out of such capital works.

Each proposed Program and Budget shall be accompanied by the reports and data that are reasonably necessary for each Member to evaluate and assess the adopted Program and Budget for the then current Fiscal Year and the proposed Program and Budget in respect of the next Fiscal Year. Upon request of any Member, the General Manger shall meet with the Member and its representatives to discuss the proposed Program and Budget and the President shall provide such additional or supplemental information as the Member may reasonably require, and such additional or supplemental information must also be provided to the other Member.

8.6               Operations Pursuant to Programs and Budgets. Except as otherwise provided in Section 8.10, Operations shall be conducted, Expenditure shall be incurred, and Assets shall be acquired only pursuant to adopted Programs and Budgets. Each Program and Budget adopted pursuant to this Agreement shall budget and provide for reasonably anticipated Environmental Compliance expenses for all Operations contemplated under the Program and Budget and such funds will be deposited into the Environmental Compliance Fund. Costs of reasonably anticipated Environmental Compliance shall be determined by the President and approved by the Board, on a Program basis, and shall be based on proportionate contributions in an amount sufficient to establish a fund, which through successive proportionate contributions during the life of the Company, will pay for ongoing Environmental Compliance conducted during Operations and which will aggregate the reasonably anticipated costs of mine closure, post-Operations Environmental Compliance and Continuing Obligations. The Environmental Compliance Fund shall be maintained by the President in a separate, interest bearing cash management account, which may include, but is not limited to, money market investments and money market funds, and/or in longer term investments if approved by the Board. Such funds shall be used solely for Environmental Compliance and Continuing Obligations, including the committing of such funds, interest in property, insurance or bond policies, or other security to satisfy applicable Laws regarding financial assurance for the reclamation or restoration of the Project Property and for other Environmental Compliance requirements.

8.7               Preliminary Review of Proposed Programs and Budgets. Within twenty (20) days following receipt of a proposed Program and Budget from the President or from a Member as provided in Section 8.5(a), the Board shall meet to conduct a preliminary review of the proposed Program and Budget. The General Manger shall attend such meeting. Prior to the meeting the General Manger shall promptly respond to all reasonable inquiries from Members for information, data, analyses or other matters concerning the proposed Program and Budget.

8.8               Approval of Programs and Budgets and Election to Participate.

8.9               Budget Overruns. The President shall immediately notify the Board of any material departure from an adopted Program and Budget. Overruns of ten percent (10%) or less of the amount of a Budget shall be borne by the Members in proportion to their respective Percentage Interests as of the time the overrun occurs. Except as provided in Section 8.10, the Company may not exceed the adopted Budget by more than ten percent (10%) without the Majority Approval of Board.

8.10            Emergency or Unexpected Expenditures. In case of emergency, the President may take any reasonable action he or she deems necessary to protect life, limb or property, to protect the Assets or to comply with Law or government regulation. The President shall promptly notify the Members of the emergency. The cost incurred in responding to the emergency shall be funded by the Members making additional capital contributions to the Company in proportion to their respective Percentage Interests at the time the emergency expenditures are incurred. In case of emergency expenditures exceeding $10 million, the Board shall meet within twenty (20) days after receipt of notice of such expenditures to reconsider the then approved Program and Budget, and such Program and Budget shall become subject to re-approval in accordance with Section 8.8.

8.11            Alterations. The Board may at any time and from time to time of its own volition or on the recommendation of the President alter by Majority Approval an adopted Program and Budget and from the date of the alteration, the adopted Program and Budget will be varied accordingly.

8.12            Bridging Budget.

comprised in the last approved and adopted Program and Budget escalated at the annual rate of inflation; and

Article 9
ACCOUNTS AND SETTLEMENTS

9.1               Monthly Statements. The President or Vice President Finance shall promptly submit to the Board monthly statements of account reflecting in reasonable detail the charges and credits to the Business Account during the preceding month.

9.2               Cash Calls. On and after the Funding Commencement Date and on the basis of the adopted Program and Budget, the President shall submit to each Member at least thirty (30) days prior to the commencement of each calendar quarter, a billing for estimated cash requirements for the next calendar quarter. Within fourteen (14) days after receipt of each billing, each Member shall contribute to the Company, in accordance with its Percentage Interest, its share of such estimated cash requirements. The President shall at all times maintain a cash balance approximately equal to the rate of disbursement for a period of approximately sixty (60) days. All funds in excess of immediate cash requirements shall be invested in interest-bearing accounts with the Company’s bank, for the benefit of the Business Account.

9.3               Failure to Meet Cash Calls. Except as provided in Section 8.8, a Member that fails to meet cash calls in the amount and at the times specified in Section 9.2 shall be in default, and the amounts of the defaulted cash call shall bear interest from the date due at an annual rate equal to four percentage points (4%) over the Prime Rate, but in no event shall such rate of interest exceed the maximum permitted by Law. The non-defaulting Member shall have those rights, remedies and elections specified in Section 5.7.

9.4               Financial Statements and Information. The President, with the assistance of the Management Team, shall cause the Company to prepare and deliver to each Member and its representatives on the Board:

9.5               Access to Financial Information and Audit Rights. Any Member and its designated representatives (which for this purpose shall include the auditors of each Member or each Member’s ultimate holding company, as applicable), upon notice in writing to the Company, shall be provided with reasonable access during regular business hours to the information necessary to audit either internally or externally, the Company’s accounts, records and systems relating to the accounting hereunder for any financial year within the 12-month period following the end of such financial year; provided that such right shall be exercised in a manner that does not interfere with the conduct of the business or expeditious completion by the Company of its accounts for a financial year. Where two or more Members or their designated representatives wish to conduct an audit, they shall make every reasonable effort to conduct joint or simultaneous audits in a manner which will result in a minimum of inconvenience to the Company. No audit expense incurred pursuant to this Section 9.5 by either the Company or the Members, or by audit firms employed by either, shall be charged to the Company, the cost thereof being for the account of the Member or Members requesting the audit. A Member holding, in the aggregate, not less than 25% of the outstanding Membership Interest shall be entitled by written request to the President to require the President to arrange, at the Company’s expense, the audit of the monthly management reports as provided for in Section 9.4(a) to the extent and with the frequency reasonably required by such Member to meet its audit requirements. Such audited reports shall be made available to each Member.

Article 10
DISTRIBUTIONS; DISPOSITION OF PRODUCTION

10.1            Distributions of Products. Subject to Section 4.9(d), the Company shall distribute to each Member in kind its share of all Products in accordance with such Member’s Percentage Interest at the time of such distribution. The President shall give the Members prompt Notice in advance of the delivery date upon which their respective shares of Products will be available for distribution. Unless otherwise agreed by Unanimous Approval of the Board, title to, and all risk of loss of, or damage to, and all liability and Claims arising out of or in connection with transportation, storage, sale or other disposition or use by any means of Products, shall transfer to and be assumed solely by each Member upon such Products being loaded by the Company from the port facilities maintained by the Company in Port Mackenzie, or such other location as may be determined by the Company, onto ships procured by the Member for the purposes of transporting such Products to another location or other mode of transport.

10.2            Distributions of Cash. Distributions of cash by the Company to the Members must be authorized by the Board by Special Approval. Any authorized distributions of cash shall be made to the Members in accordance with their respective Percentage Interests.

10.3            Hedging. Neither Member shall have any obligation to account to the other Member for, nor have any interest or right of participation in any profits or proceeds nor have any obligation to share in any losses from, futures contracts, forward sales, trading in puts, calls, options or any similar hedging, price protection or marketing mechanism employed by the other Member with respect to its proportionate share of any Products produced or to be produced from the Properties.

10.4            Withholding.

In addition, each Member will take such actions as the Board may reasonably request in connection with the foregoing. In the event that any Member fails to provide any of the information, representations, certificates or forms (or undertake any of the actions) required under this Section 10.4(b), the Board will have full authority to take any steps as the Board determines in its sole discretion are necessary or appropriate to mitigate the consequences of such Member’s failure to comply with this Section 10.4(b) on the other Member. If requested by the Board, such Member will execute any and all documents, opinions, instruments and certificates as the Board will have reasonably requested or that are otherwise required to effectuate the foregoing. Any Member that fails to comply with this Section 10.4(b) will, together with all other Members that fail to comply with this Section 10.4(b), unless otherwise agreed by the Board in writing, to the fullest extent permitted by law, indemnify and hold harmless the Board and the Company for any costs or expenses arising out of such failure or failures, including any withholding tax imposed under Code Sections 1471 through 1474 or as a result of any intergovernmental agreement described in Section 10.4(b)(iv) on the Company and any withholding or other taxes imposed as a result of a transfer effected pursuant to this Section 10.4(b). Each Member acknowledges and agrees that any personal data in respect of such Member (or any Persons that indirectly hold an interest in the Company through such Member) provided to the Company in accordance with this Section 10.4(b) may, if required, be disclosed to any tax authority.

Article 11
RESIGNATION AND DISSOLUTION

11.1            Dissolution. The Company shall be dissolved upon the Unanimous Approval of the Board.

11.2            Resignation. A Member may elect to resign as a Member of the Company by giving Notice to the other Member of the effective date of the resignation, which shall be the later of (a) the end of the then current Program and Budget period, or (b) thirty (30) days after the date of the Notice. Upon such resignation, the Company shall acquire the resigning Member’s entire Membership Interest, free and clear of any and all Encumbrances, except the Encumbrance over the Membership Interest of South32 (or its successor) created pursuant to the Loan Agreement and those to which both Members have given their written consent after the Effective Date, and such Membership Interest shall be cancelled. The resigning Member shall not receive any distribution upon such resignation or any further consideration from the Company. Any such resignation under this Section 11.2 shall not relieve the resigning Member of its obligations under Section 4.9(e) and Section 5.9 (whether any liability with respect thereto accrues or arises before or after such resignation) arising out of Operations conducted or conditions existing prior to such resignation.

11.3            Liquidation and Termination After Dissolution. Upon the dissolution of the Company under Section 11.1, the Board shall appoint in writing one or more liquidators (who, upon Unanimous Approval, may be a Member) who shall have the authority set forth in Section 11.6. The liquidator shall take all action necessary to wind up the activities of the Company, and all costs and expenses incurred in connection with the liquidation and termination of the Company shall be expenses chargeable to the Company. The liquidator may determine which Assets, if any, are to be distributed in kind, and shall sell or otherwise dispose of all other Assets of the Company. All gain or loss with respect to the Assets (including Assets distributed in kind) shall be allocated among the Members in accordance with the applicable provisions of Exhibit B. Should a Member have a deficit balance in its Capital Account (after giving effect to such allocations of gain or loss), the Member shall not be obligated to make a contribution to the Company to restore all or any part of such Capital Account deficit. The Assets of the Company shall first be paid, applied, or distributed in satisfaction of all liabilities of the Company to third parties (or to making reasonable provision for the satisfaction thereof) and then to satisfy any debts, obligations, or liabilities owed to the Members. Thereafter, any remaining cash and all other Assets shall be distributed to the Members in accordance with Section 3(b)(ii) of Exhibit B. Each Member shall have the right to designate another Person to receive any Assets that otherwise would be distributed in kind to that Member pursuant to this Section 11.3. Upon the completion of the winding up of the Company, the liquidator shall cancel the Certificate of Formation of the Company and take such other actions as may be reasonably necessary to terminate the continued existence of the Company.

11.4            Financial Assurances for Continuing Operations. Within a period of forty-five (45) days following the Transfer or forfeiture of Member’s Membership Interest, the deemed resignation of a Member pursuant to Section 5.8, or the Notice of election to resign referred to in Section 11.2, the President shall procure a qualified independent third party to conduct an environmental baseline study that shall estimate in dollar amounts the costs and liabilities associated with reclamation of the Properties in relation to work performed during the period starting from the Effective Date and up to and including the date of such Notice, such resignation, forfeiture or Transfer. Such calculation shall take into account the applicable amount of any mine reclamation bonds and the amounts in any mine reclamation fund. Based on this environmental baseline study and estimate, the resigning, forfeiting or transferring Member shall provide (a) a lump-sum cash payment or (b) other adequate financial assurance in an amount equal to such Member’s pro rata share based on its respective Membership Interest (determined as of the date of the Notice referred to in Section 11.2, deemed resignation, Transfer or forfeiture, and prior to giving effect to the resignation, Transfer or forfeiture) for any unfunded Environmental Compliance or Continuing Obligations costs (whether in the form of cash, negotiable securities, letters of guarantee, irrevocable letters of credit or otherwise) payable to the Company’s Environmental Compliance Fund to satisfy the Company’s obligations under any Environmental Laws regarding reclamation, including reclamation requirements, compliance with the Company’s reclamation plan, and the Company’s maintenance of financial assurance for the reclamation or restoration of the Properties.

11.5            Right to Data After Termination. After the termination of the Company pursuant to Section 11.1, each Member shall be entitled to copies of all information acquired by the Company before the effective date of termination not previously furnished to it, but a Resigning Member shall not be entitled to any such copies as are acquired by the Company after the date of the Resigning Member’s resignation or the date on which the Resigning Member forfeits or transfers its entire Membership Interest (as the case may be).

11.6            Continuing Authority. From and after the dissolution of the Company under Section 11.1, the liquidator shall have the power and authority of the Members, the President and the Board to do all things on behalf of the Company which are reasonably necessary or convenient to: (a) wind up the Operations and the Company, (b) continue to operate the Properties and other Assets of the Company during the winding up of the Operations and the Company and (c) complete any transaction and satisfy any obligation, unfinished or unsatisfied, at the time of such dissolution, if the transaction or obligation arises out of Operations prior to such dissolution. The liquidator shall have the power and authority to grant or receive extensions of time or change the method of payment of an already existing liability or obligation, prosecute and defend actions on behalf of the Company, mortgage Assets, and take any other reasonable action in any matter with respect to the Company or the Operations.

Article 12
ACQUISITIONS WITHIN AREA OF INTEREST

12.1            General. Each Member and its Affiliates shall not acquire (either directly or indirectly) any AOI Property during the term of this Agreement without the prior written consent of the other Member or Members.

Article 13
ABANDONMENT AND SURRENDER OF PROPERTIES

13.1            Surrender or Abandonment of Property. The Board may by Unanimous Approval authorize the President to surrender or abandon part or all of the Properties (“Abandonment Property”). If the Board authorizes by Unanimous Approval any such surrender or abandonment then the Company shall give Notice to each Member at least twenty (20) Business Days in advance of the proposed date of surrender or abandonment (“Abandonment Date”) together with details of the Abandonment Date and details of any Encumbrance on the Abandonment Property created by, through or under the Company. Each Member shall have a period of ten (10) Business Days from receipt of the Notice to elect by Notice to the Company to take an assignment of the Abandonment Property, which assignment will be on an “as is” basis for a total consideration equal to ten dollars ($10). If a Member elects to take an assignment of the Abandonment Property, then the Company shall assign to the electing Member or its nominee, by quitclaim deed or other appropriate instrument and at the cost of the electing Member, all of the Company’s interest in the Abandonment Property, and the Abandonment Property shall cease to be part of the Properties and the Company shall have no further right, title or interest in the Abandonment Property. With effect from date of assignment, the electing Member taking an assignment of the Abandonment Property, and subject to the mining laws and regulations as contained in the Alaska Statutes and the Alaska Administrative Code, including but not limited to the approval where applicable of the commissioner of the Alaska Department of Natural Resources pursuant to 11 AAC 97.330 and 11 AAC 97.350:

If a Member does not give notice to the Company within the period of twenty (20) Business Days referred to above electing to take an assignment of the Abandonment Property, then the Company may surrender or abandon the Abandonment Property on the Abandonment Date and will thereafter have no further obligation to maintain the title to the Abandonment Property.

13.2            Reacquisition. If any Abandonment Property is abandoned or surrendered under the provisions of Section 13.1, then except as provided in Section 13.1, unless this Agreement is earlier terminated, neither Member nor any Affiliate thereof shall acquire any interest in such Abandonment Property or a right to acquire such Abandonment Property (“Abandonment Property Interest”) for a period of two (2) years following the Abandonment Date. If a Member acquires any Abandonment Property Interest in violation of this Section 13.2, then the other Member may elect by Notice to the acquiring Member within forty-five (45) days after it has actual notice of such acquisition, to have such Abandonment Property Interest contributed to the Company. Until contributed to the Company in accordance with this Section 13.2, the acquiring Member shall hold such Abandonment Property Interest in trust for the exclusive use and benefit of the Company and the other Member. After such Notice to contribute the Abandonment Property Interest, the Member that has acquired the Abandonment Property Interest shall convey to the other Member by special warranty deed an interest in such Abandonment Property Interest equal to the Percentage Interest of the other Member at the time and thereafter each Member shall contribute the interest it holds in the Abandonment Property Interest to the Company. In the event such an election is made, the contributed Abandonment Property Interest shall thereafter be treated and form part of the Properties, and the costs of acquisition shall be borne solely by the Member that initially acquired the Abandonment Property Interest. No adjustment to the Members’ respective Percentage Interests shall be made as a result of such contribution.

Article 14

TRANSFER OF INTEREST

14.1            General. A Member shall have the right to Transfer to any third party all or any part of its Membership Interest or any economic interest therein (including its right to receive distributions of cash or property from the Company), solely as provided in this Article 14; provided, however, that (i) South32 (or its successor) shall be permitted to grant the Security Interest (as defined in the Loan Agreement) to the Company in its Membership Interest, (ii) South32 (or its successor) shall be permitted to Transfer Units to the Company, and the Company shall be permitted to Transfer Units to NovaCopper in accordance with the Loan Agreement, and (iii) the Company shall be permitted to enforce its rights to the Collateral under the Loan Agreement.

14.2            Limitations on Free Transferability. The Transfer right of a Member in Section 14.1 shall be subject to the following terms and conditions:

14.3            Acquisition Right. Except as otherwise provided in Section 14.4, if a Member desires to Transfer all or any part of its Membership Interest, the other Member or Members, as the case may be (“Remaining Member” or “Remaining Members” as the case may be) shall have the right of first refusal to acquire such interests as provided in this Section 14.3.

(b)                Within ten (10) Business Days after receipt of a Transfer Notice under Section 14.3(a) the Remaining Member or Remaining Members, as the case may be, may object in writing to the Selling Member’s determination of the cash value of the consideration or relevant part of it which is the subject of the intended Transfer and upon such an objection being made the Members shall seek to agree upon that cash value but if they cannot reach agreement within five (5) Business Days after the date of objection, then that cash value will constitute a Dispute to be resolved by an Expert in accordance with Article 15 (the cost of which determination shall be borne, if the cash value determined is less than that determined by the Selling Member, by the Selling Member and in any other case by the Remaining Member or Remaining Members, as the case may be).