JayJ,
As I said, the contract is not a model of clarity. Maybe you are correct but let me point out a couple of things.
The first part of the clause, the part that you quote above with the "either", says the study is "positive" (lower case and not a defined term) under both subparagraphs "i" and "ii" but the later language defines when the the study is a "Bankable Positive Feasibility Study" (the capitalized defined term). That difference allows me to reconcile the first part and second part under my reading: both the Section 5.5(b)(i) and Section 5.5(b)(II) studies are "positive" but only a study that meets the 12% hurdle is a "Bankable Positive Feasibily Study" unless Teck "in its sole discretion" decides to accept the 8% study as a "Bankable Positive Feasibilty Study."
My interpretation also gives effect to the whole provision (a contract rule of constuction where possible) whereas I don't see how your interpretation gives effect to the "in its sole discretion" language. It seems to give precedence to the "either" clause and then does not give any effect to the "discretion" clause.
As to the last part of your post, my only response is that it's not a question of how robust the report may be in a commercial sense, if I am reading the agreement correctly. If it does not meet Section 5.5(b)(i) Teck does not have to accept it as a Bankable Feasibilty Study -- period. Hopefully, this will all become moot and Teck will want to move forward. In fact, it can exercise its back-in at any time regardless of whether a Bankable Positive Feasibility Study has been submitted (see Sections 7.1 and 8.1).
Regards,
Volpino
