Wafi-Golpu Joint Venture Agreement Wafi Mining Limited Newcrest PNG 2 Limited Wafi-Golpu Services Limited |
 Level 36, Riverside Centre 123 Eagle Street Brisbane QLD 4000 Australia T 61 7 3259 7000 F 61 7 3259 7111 Reference RAF TJG MMR07 1427 3151 ©Blake Dawson 2008 |
1. | INTERPRETATION 1 |
1.1 | Definitions 1 |
1.2 | Rules for interpreting this document 8 |
1.3 | Business Days 9 |
2. | CONDITIONS PRECEDENT 9 |
2.1 | Conditions 9 |
2.2 | Result of non‑satisfaction of conditions 10 |
2.3 | Maintenance of Tenements 10 |
2.4 | Expenditure prior to Commencement Date 10 |
3. | ESTABLISHMENT, OBJECTS AND BASIS OF JOINT VENTURE 10 |
3.1 | Establishment of Joint Venture 10 |
3.2 | Name of Joint Venture 10 |
3.3 | Objects of Joint Venture 10 |
3.4 | Basis of Joint Venture 11 |
3.5 | Participating Interests at Commencement Date 11 |
3.6 | Venturer's rights and obligations 11 |
3.7 | Dedication of Joint Venture Property 11 |
3.8 | Wafi's contribution to Joint Venture 12 |
3.9 | Provision of Tenements Information 12 |
3.10 | Limits of Joint Venture 12 |
3.11 | Currency 12 |
3.12 | No representations 12 |
4. | RELATIONSHIP OF THE VENTURERS 12 |
4.1 | Tenants-in-common 12 |
4.2 | Several liability 12 |
4.3 | Venturers' liability 13 |
4.4 | No partnership 13 |
4.5 | Co-operation 13 |
4.6 | Share of Production taken in kind 14 |
4.7 | Use of Joint Venture Intellectual Property and Tenements Information 14 |
4.8 | JV Non-Competition Area 14 |
4.9 | Prohibition on soliciting employees 14 |
5. | DECISION TO MINE 15 |
5.1 | Feasibility Study before Decision to Mine 15 |
5.2 | Content and submission of Feasibility Study 15 |
5.3 | Cost of Feasibility Studies 15 |
5.4 | Feasibility Study to be considered 15 |
5.5 | Decision to Mine 15 |
5.6 | Comprehensive further agreement 15 |
6. | JOINT VENTURE COMMITTEE 16 |
6.1 | Formation 16 |
6.2 | Appointment of Representatives 16 |
6.3 | Power of Representatives 16 |
6.4 | Role of Joint Venture Committee 16 |
6.5 | Convening Meetings 17 |
6.6 | Location of meetings 18 |
6.7 | Notice and agenda for meetings 18 |
6.8 | Meetings in case of emergency 18 |
6.9 | Chairman of meeting of Joint Venture Committee 18 |
6.10 | Quorum 19 |
6.11 | Voting on resolutions 19 |
6.12 | Procedural rules 19 |
6.13 | Minutes and records 19 |
6.14 | Vote without attending meeting 20 |
6.15 | Vote without a meeting 20 |
6.16 | Mode of meeting 20 |
7. | OPERATOR AND OPERATING PROGRAMS AND BUDGETS 21 |
7.1 | Appointment 21 |
7.2 | Agency of the Operator 21 |
7.3 | Supervision by Joint Venture Committee 21 |
7.4 | Operating Program and Budget during Farmin Period 22 |
7.5 | Operating Programs and Budgets after the Farmin Period 22 |
7.6 | Substitute Operating Programs and Budgets 22 |
7.7 | Amendment of Operating Programs 22 |
7.8 | Ownership of property 22 |
7.9 | Access to site and information 23 |
8. | INTELLECTUAL PROPERTY AND INFORMATION 24 |
9. | INSURANCE AND LITIGATION 24 |
9.1 | Insurance obligations 24 |
9.2 | Cost of insurance 24 |
9.3 | Operator's obligations 25 |
9.4 | Independent contractors' insurance 25 |
9.5 | Notice of litigation 25 |
9.6 | Litigation against third parties 25 |
9.7 | Litigation against a Venturer 26 |
10. | REHABILITATION 26 |
10.1 | Rehabilitation Obligations 26 |
10.2 | Rehabilitation Program 26 |
10.3 | Rehabilitation Fund 26 |
11. | CROSS CHARGE 26 |
11.1 | Venturers' obligations 26 |
11.2 | Purpose, form and substance 27 |
12. | JOINT VENTURE EXPENDITURE 27 |
12.1 | Financing policy 27 |
12.2 | Settlement and payment 27 |
12.3 | Current statements 28 |
12.4 | Notice of Intention to pay Called Sum 28 |
12.5 | Called Sums paid in advance of expenditure 28 |
13. | INTEREST 28 |
13.1 | Payment of Interest 28 |
13.2 | Interest after judgment 29 |
13.3 | Accrual and calculation of Interest 29 |
14. | PAYMENTS 29 |
14.1 | Payment of Called Sums and Interest 29 |
14.2 | How payments must be made 29 |
14.3 | Deductions and withholdings 30 |
14.4 | Currency indemnity 30 |
15. | DILUTION 30 |
15.1 | Consequences of non-payment 30 |
15.2 | Calculation of Participating Interests 31 |
15.3 | Minimum Participating Interest 31 |
15.4 | Withdrawal 31 |
15.5 | Dilution where State acquires interest 33 |
16. | DEFAULT 33 |
16.1 | Default Event 33 |
16.2 | Default Notice 34 |
16.3 | Consequences of Default Notice 34 |
16.4 | Contributing Venturers 34 |
16.5 | Interest 35 |
16.6 | Remedy of defaults 35 |
16.7 | Failure to remedy 35 |
17. | CONSEQUENCES OF DEFAULT 35 |
17.1 | Share of Production on trust for sale 35 |
17.2 | Application of sale proceeds 36 |
17.3 | No Liability or entitlement to Defaulting Venturer 36 |
17.4 | Participating Interest on trust for sale 36 |
17.5 | Terms of trust for sale 37 |
17.6 | Independent value 38 |
18. | CHANGE OF CONTROL 39 |
18.1 | Meaning of Control 39 |
18.2 | Meaning of Change of Control 40 |
18.3 | Consequences of Change of Control 40 |
19. | TENEMENT RELINQUISHMENT 41 |
19.1 | Procedure and consequences 41 |
19.2 | Expenses 41 |
20. | GOODS AND SERVICES TAX 42 |
20.1 | Venturer is member of GST group 42 |
20.2 | GST exclusive amounts 42 |
20.3 | Payment of GST 42 |
20.4 | Reimbursements 42 |
20.5 | Indemnities 42 |
20.6 | GST returns 42 |
20.7 | Registration 42 |
20.8 | Indemnity 42 |
21. | FORCE MAJEURE 43 |
21.1 | Notice and suspension of obligations 43 |
21.2 | Effort to overcome 43 |
21.3 | Alternative supply 43 |
22. | DISPUTE RESOLUTION 43 |
22.1 | Application 43 |
22.2 | Notice of dispute or difference 44 |
22.3 | Negotiation between Representatives 44 |
22.4 | Negotiation by senior management 44 |
22.5 | Arbitration 46 |
22.6 | Continuance of performance 46 |
22.7 | Summary or urgent relief 46 |
23. | TERMINATION 46 |
23.1 | Term 46 |
23.2 | Realisation of property 46 |
23.3 | Survival of claims and obligations 47 |
23.4 | Perpetuity period 47 |
24. | CONFIDENTIALITY 47 |
25. | ENCUMBRANCES 48 |
25.1 | Dealings requiring Venturers' consent 48 |
25.2 | Permitted Encumbrances 48 |
25.3 | Deed of covenant to be executed 49 |
25.4 | Notice of proposed Permitted Encumbrance 49 |
25.5 | Objection to proposed Permitted Encumbrance 49 |
25.6 | Set off by Venturer purchasing under Encumbrance 49 |
25.7 | Application of surplus 50 |
25.8 | Encumbrancee's rights 50 |
26. | ASSIGNMENT AND AMENDMENT 50 |
26.1 | Assignment to related corporations 50 |
26.2 | Assignment to others 50 |
26.3 | Restrictions on Venturer's entitlement to Assign 51 |
26.4 | Notice of offer 51 |
26.5 | Offer to Founding Venturer 51 |
26.6 | Notice constitutes offer 51 |
26.7 | Duration of offer 52 |
26.8 | Conditions of Assignment 52 |
26.9 | Exceptions 52 |
26.10 | Amendment 52 |
27. | NOTICES 53 |
27.1 | How to give a notice 53 |
27.2 | When a notice is given 53 |
27.3 | Address for notices 53 |
28. | GENERAL 54 |
28.1 | Governing law 54 |
28.2 | Expenses and Stamp Duty 54 |
28.3 | Giving effect to this document 54 |
28.4 | Waiver of rights 54 |
28.5 | Operation of this document 54 |
28.6 | Operation of indemnities 55 |
28.7 | Consents 55 |
28.8 | Statements 55 |
28.9 | No merger 55 |
28.10 | Exclusion of contrary legislation 55 |
28.11 | Inconsistencies 55 |
28.12 | Counterparts 56 |
28.13 | Attorneys 56 |
1. | CONFIDENTIALITY 81 |
2. | RETURN OF CONFIDENTIAL INFORMATION 81 |
3. | CONTINUING OBLIGATIONS 82 |
4. | INTERPRETATION 82 |
1 | JOINT VENTURE PROPERTY 57 |
2 | ACCOUNTING PROCEDURE 64 |
3 | DEEMED CONTRIBUTION 77 |
4 | PRIORITY DEED 78 |
5 | CROSS CHARGE 79 |
6 | ASSUMPTION DEED 80 |
7 | CONFIDENTIALITY AGREEMENT 81 |
A | MAP SHOWING JV AREA AND JV NON-COMPETITION AREA |
B | SHAREHOLDERS AGREEMENT |
C | CONSTITUTION FOR COMPANY ACTING AS OPERATOR |
D | SERVICES AGREEMENT |
E | MASTER CO-OPERATION AGREEMENT |
A. | Wafi is the legal and beneficial owner of the Tenements. |
B. | Under the terms of the Master Purchase and Farmin Agreement, Newcrest has agreed to purchase a 30.01% Participating Interest in the Joint Venture. |
C. | The Master Purchase and Farmin Agreement provides that in order to complete the purchase of its 30.01% Participating Interest in the Joint Venture, this document is to be executed by Wafi and Newcrest. |
D. | Newcrest has also agreed to earn an additional 19.99% Participating Interest in the Joint Venture pursuant to the Master Purchase and Farmin Agreement. |
E. | This document records the terms under which Wafi and Newcrest have agreed to establish and operate a joint venture for the exploration for and development, mining and production of Mineral Products in the JV Area. |
1. | INTERPRETATION |
1.1 | Definitions |
(a) | that body's related corporations; |
(b) | that body's directors; and |
(c) | the persons who have a substantial holding in that body. |
(d) | an authorisation, consent, declaration, exemption, notarisation or waiver, however it is described; and |
(e) | in relation to anything that could be prohibited or restricted by law if a Government Agency acts in any way within a specified period, the expiry of that period without that action being taken, |
(f) | for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and |
(g) | for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Port Moresby, PNG and Melbourne, Australia. |
(h) | in the case of Mineral Products which are to be refined, at the refinery or as the Joint Venture Committee otherwise determines; or |
(i) | in the case of Mineral Products which are not to be refined, at the location determined by the Joint Venture Committee. |
(j) | 10 Business Days after delivery of a statement under clause 12.3; or |
(k) | a later date (if any) specified in that statement. |
(l) | a Tax that is calculated on or by reference to the gross amount of any payment derived by a Venturer under this document or the transactions that this document contemplates (unless the Tax is imposed because the Venturer has not given its tax file number to the person who made the payment); or |
(m) | a Tax that is imposed because a Venturer is regarded as being subject to tax in a jurisdiction solely because it is a Venturer or because it is participating in the transactions that this document contemplates. |
(n) | conducting mining operations on the Tenements or on an identified part of the Tenements; and |
(o) | developing Joint Venture Facilities. |
(p) | a government or government department or other government body; |
(q) | a governmental, semi-governmental or judicial person; or |
(r) | a person (whether autonomous or not) who is charged with the administration of a law. |
(s) | the expenditure (whether of a capital or operating nature) comprising all expenses incurred relating to activities and operations of the Joint Venture, including without limitation, Joint Venture overheads and all payments to the Operator under the Services Agreement; and |
(t) | any other expenditure agreed to by all Venturers. |
(u) | all mines and other facilities located on the Tenements for the production of Mineral Products; and |
(v) | all facilities used for the exploration for or the production, treatment, transportation and delivery of Mineral Products, |
(w) | registered; |
(x) | protected by statute; or |
(y) | reduced to writing. |
(z) | the Tenements; |
(aa) | Joint Venture Intellectual Property; |
(bb) | Tenements Information; |
(cc) | Joint Venture Facilities; |
(dd) | Mineral Products produced in the course of the Joint Venture until delivered to a Venturer after appropriation from the Joint Venture; and |
(ee) | the plant, equipment, contracts and other property listed in Schedule 1, |
(ff) | contain mineral matter or substances; and |
(gg) | are produced because of operations under this document. |
(hh) | in the benefits arising under this document; |
(ii) | in the rights and Liabilities under this document during the Joint Venture; |
(jj) | in its obligation to comply with this document; and |
(kk) | as tenant in common in and to the Joint Venture Property. |
(ll) | any Encumbrance existing at the date of this document including the Encumbrance in relation to the Wafi-Golpu Royalty; |
(mm) | an Encumbrance expressly permitted pursuant to clause 25.2 or any other provision of this document; |
(nn) | an Encumbrance which arises after the date of this document by operation of law; and |
(oo) | a lien that arises by operation of law in the ordinary course of ordinary business, where the amount secured is not overdue or is being diligently contested in good faith. |
(pp) | during the Farmin Period, a vote of two or more Venturers which must include Wafi and Newcrest; and |
(qq) | after the Farmin Period, a vote of one or more Venturers who together hold between them Participating Interests of not less than 70% of all Participating Interests. |
(rr) | each mining title referred to in Schedule 1; |
(ss) | any other lease, licence, permit or other authority or tenement for mining purposes that: |
(i) | the Joint Venture Committee decides should be acquired for the purposes of this document or the Joint Venture or both; or |
(ii) | (with the consent of all Venturers) becomes subject to the Joint Venture; |
(tt) | any other lease, licence, permit or other authority or tenement for mining any Mineral Product a substantial part of which is within the outer boundaries of the Tenements and which is held by one or more of the Venturers for one or more of the Objects; and |
(uu) | any application for or interest in a lease, licence, permit or other authority or tenement that confers or will confer similar rights to those mentioned in paragraph (tt). |
(vv) | any provision of this document; |
(ww) | any Operating Program or Budget, |
(xx) | not justifiable by special circumstances; or |
(yy) | any applicable law required to be discharged in connection with operations conducted for the Joint Venture, |
1.2 | Rules for interpreting this document |
(a) | A reference to: |
(i) | legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it; |
(ii) | a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated; |
(iii) | a party to this document or to any other document includes a permitted substitute or a permitted Assign of that party; |
(iv) | a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; |
(v) | anything (including a right, obligation or concept) includes each part of it; |
(vi) | a lease, licence, permit or other authority for mining purposes, or a provision of any of them, is to that lease, title, right, licence, permit or authority or provision as renewed, extended, amended, supplemented, replaced or novated; |
(vii) | a Tenement or tenement is to that Tenement or tenement as renewed, extended, amended, supplemented, replaced or novated; and |
(viii) | dollar or $ is to currency of the United States of America. |
(b) | A singular word includes the plural, and vice versa. |
(c) | A word that suggests one gender includes the other genders. |
(d) | If a word is defined, another part of speech has a corresponding meaning. |
(e) | If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing. |
(f) | The schedules and annexures to this document are incorporated into this document. |
(g) | The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing. |
(h) | The words subsidiary, holding company, related corporation and relevant interest have the same meaning as in the Companies Act. |
(i) | A person has a substantial holding in a body corporate if the total votes attached to the voting shares in the body in which it or its associates have a relevant interest is 5% or more of the total number of votes attached to the voting shares in the body. |
(j) | A reference to applicable law includes a reference to all laws of all jurisdictions applicable to the Joint Venture within and outside Papua New Guinea including regulations, policies, statutory duties, guidelines, official directives or requests of or by any Government Agency, whether or not having the force of law. |
(k) | A reference to entity is a reference to a natural person, a body corporate (other than a Government Agency), a partnership or a trust and includes, in the case of a trust, a reference to a trustee of the trust). |
(l) | A reference to listed is a reference a to corporation or other body is listed if it is included in the official list of a stock exchange or market which is a member of the Fédération Internationalé des Bourses de Valeurs. |
(m) | A reference to a wholly-owned subsidiary is a reference to a body corporate none of whose members is a person other than: |
(i) | the first mentioned-body; |
(ii) | a nominee of the first-mentioned body; |
(iii) | a subsidiary of the first mentioned body, being a subsidiary none of whose members is a person other than: |
(A) | the first-mentioned body; or |
(B) | a nominee of the first-mentioned body; or |
(iv) | a nominee of such a subsidiary. |
(n) | A reference to a month is a reference to a calendar month. |
(o) | The words used in this document that have a defined meaning in the GST Law have the same meanings as in the GST Law, except where the context makes it clear that a different meaning is intended to apply. |
(p) | Mentioning anything after include, includes or including does not limit what else might be included. |
1.3 | Business Days |
2. | CONDITIONS PRECEDENT |
2.1 | Conditions |
2.2 | Result of non‑satisfaction of conditions |
(a) | If the conditions referred to in clause 2.1 are not satisfied or waived under clause 3.2 of the Master Purchase and Farmin Agreement on or before the End |
(b) | If this document is terminated in accordance with clause 2.2(a), then all rights and obligations under this document other than: |
(i) | this clause 2 and clauses 1 (Interpretation), 16 (Default), 17(Consequences of Default), 24 (Confidentiality), 27 (Notices), and 28 (General); |
(ii) | any clause which is expressed to survive termination of this document; and |
(iii) | rights that accrue before the date on which the notice is given, |
2.3 | Maintenance of Tenements |
2.4 | Expenditure prior to Commencement Date |
3. | ESTABLISHMENT, OBJECTS AND BASIS OF JOINT VENTURE |
3.1 | Establishment of Joint Venture |
3.2 | Name of Joint Venture |
3.3 | Objects of Joint Venture |
(a) | explore for, establish reserves of and evaluate minerals; |
(b) | maintain validity of title to and tenure of the Tenements; |
(c) | delineate reserves of and evaluate mineral deposits; |
(d) | conduct Feasibility Studies; |
(e) | investigate the location, extent, quantity, structure, quality and commercial value of minerals within the Tenements; |
(f) | establish a mining operation; |
(g) | operate a mine and develop, produce or extract minerals from the Tenements and process them into mineral concentrates or metal, and for those purposes to develop Joint Venture Facilities; |
(h) | produce Mineral Products from the JV Area; and |
(i) | do everything ancillary to the objects specified in this clause 3.3 that the Joint Venture Committee decides should be done. |
3.4 | Basis of Joint Venture |
(a) | it enters into the Joint Venture on the terms of this document with effect from the Commencement Date; |
(b) | it must use its best endeavours to achieve the Objects; |
(c) | the activities of the Joint Venture are limited to the Objects unless all the Venturers agree otherwise in writing; and |
(d) | the use of the Joint Venture Property is only for the purposes of the Joint Venture unless all Venturers agree otherwise in writing. |
3.5 | Participating Interests at Commencement Date |
Wafi: | 69.99%; and |
Newcrest: | 30.01%. |
3.6 | Venturer's rights and obligations |
(a) | contribute to Joint Venture Expenditure in proportion to its Participating Interest on and after the Farmin Completion Date; and |
(b) | separately take and dispose of its Share of Production in kind that is to be delivered in accordance with clause 4.6. |
3.7 | Dedication of Joint Venture Property |
(a) | any Joint Venture Property is available for the purpose of the Joint Venture for the duration of the Joint Venture; and |
(b) | the Joint Venture Property is used only for the purpose of the Joint Venture. |
3.8 | Wafi's contribution to Joint Venture |
(a) | As and from Commencement Date, Wafi contributes to the Joint Venture the Joint Venture Property specified in Schedule 1, subject to all Permitted Encumbrances attaching thereto which are referred to in the Master Purchase and Farmin Agreement or at the date of this document have been specifically disclosed in writing by Wafi to Newcrest. |
(b) | Wafi remains obliged to contribute to the Joint Venture as a Venturer in accordance with the terms of this document. |
3.9 | Provision of Tenements Information |
3.10 | Limits of Joint Venture |
(a) | is confined to the Tenements and the other Joint Venture Property; and |
(b) | does not extend to any other tenement held by a Venturer now or in the future, |
3.11 | Currency |
3.12 | No representations |
4. | RELATIONSHIP OF THE VENTURERS |
4.1 | Tenants-in-common |
4.2 | Several liability |
4.3 | Venturers' liability |
(a) | is individually responsible only for its own obligations under this document; and |
(b) | is not liable for, and has no obligation in relation to, the obligations of another Venturer, except as expressly provided in this document or the Master Purchase and Farmin Agreement. |
4.4 | No partnership |
(a) | the relationship of the Venturers does not constitute a partnership for any purpose; and |
(b) | the Joint Venture is an unincorporated joint venture constituted under this document. |
4.5 | Co-operation |
(a) | perform its obligations in relation to each Tenement and its obligations under or relating to the fulfilment of any contract which relates to the Joint Venture; |
(b) | only engage in activities in the JV Area or in the course of the Joint Venture that are permitted by this document or agreed to by all Venturers; |
(c) | not terminate, relinquish, surrender or render liable to forfeiture a Tenement (or try to do or bring about any of those things) except in accordance with this document or as required by law; |
(d) | not do or cause to be done anything that may cause: |
(i) | any penalty to be imposed; |
(ii) | a breach of any obligation in relation to a Tenement; or |
(iii) | continued enjoyment of a Tenement to be jeopardised; |
(e) | act in good faith, honestly and reasonably in all its dealings with the other Venturers concerning the Joint Venture; |
(f) | promote the Objects of the Joint Venture; |
(g) | use its best endeavours to satisfy any reasonable requirements of any Government Agencies in order to achieve the Objects of the Joint Venture; and |
(h) | if requested in writing by another Venturer, do or consent to the doing of anything reasonably required by any lenders to that other Venturer which does not adversely affect the interest in the Joint Venture Property of the Venturer so requested or materially disrupt the operations of the Joint Venture or impose any material financial obligations on the Venturer to whom the request is made. |
4.6 | Share of Production taken in kind |
(a) | Each Venturer acknowledges that: |
(i) | it intends not to derive or receive income from the activities of the Joint Venture; and |
(ii) | it agrees to take its Share of Production in kind under clause 3.6(b) and 4.6(b). |
(b) | The Operator must deliver Mineral Products produced by or on behalf of the Venturers under this document to the Delivery Point. At the time of delivery to the Delivery Point: |
(i) | title to, risk in and possession of each Venturer's Share of Production passes to the Venturer in proportion to its Participating Interest at the time the Operator makes that Venturer's Share of Production available for collection or transportation at the Delivery Point; and |
(ii) | each Venturer must take its Share of Production in kind at the Delivery Point. |
4.7 | Use of Joint Venture Intellectual Property and Tenements Information |
(a) | the proposed use of Joint Venture Intellectual Property or Tenements Information is disclosed to each of the other Venturers; and |
(b) | the Joint Venture Committee resolves by a vote of all Venturers (other than the Venturer that proposes to use the Joint Venture Intellectual Property or Tenements Information) that such use is permitted. |
4.8 | JV Non-Competition Area |
(a) | No Venturer is entitled to, and each Venturer must procure that its related corporations do not, engage in any prospecting or exploration for Mineral Products in or on, or evaluation or mining of any Mineral Products on or from the JV Non-Competition Area except with the consent in writing of the other Venturers (at their absolute discretion). |
(b) | Each Venturer is free to act independently at all times and in all respects in relation to exploration, mining or other activities outside of the JV Non-Competition Area. |
4.9 | Prohibition on soliciting employees |
5. | DECISION TO MINE |
5.1 | Feasibility Study before Decision to Mine |
(a) | A Feasibility Study must be considered by the Joint Venture Committee before a Decision to Mine is made. |
(b) | The Joint Venture Committee by Super Majority Vote may decide to direct the Operator to undertake a Feasibility Study (and the Operator must not undertake a Feasibility Study without such a direction from the Joint Venture Committee). |
5.2 | Content and submission of Feasibility Study |
(a) | include a program for construction, a budget, a proposed production schedule, estimated operating expenses and any other matters that the Joint Venture Committee reasonably requires; |
(b) | be to a standard and level of detail so that the Venturers can assess whether the proposed development is bankable; and |
(c) | be in the form that the Joint Venture Committee reasonably requires. |
5.3 | Cost of Feasibility Studies |
5.4 | Feasibility Study to be considered |
(a) | give a copy to each Venturer within 5 Business Days of receipt by the Operator of the final form of the Feasibility Study; and |
(b) | convene a meeting of the Joint Venture Committee to be held at least 30 Business Days from the date upon which the last of the Venturers received a copy of the Feasibility Study under clause 5.4(a), for the purpose of considering the Feasibility Study. |
5.5 | Decision to Mine |
(a) | approve a Feasibility Study as a bankable Feasibility Study; and |
(b) | on the basis of that Feasibility Study, make a Decision to Mine. |
5.6 | Comprehensive further agreement |
6. | JOINT VENTURE COMMITTEE |
6.1 | Formation |
6.2 | Appointment of Representatives |
(a) | Each Venturer which holds a Participating Interest of 10% or more must nominate 2 Representatives to the Joint Venture Committee. |
(b) | Any Venturer which holds a Participating Interest of 5% or more but less than 10% may nominate one Representative to the Joint Venture Committee. |
(c) | A Representative appointed by a Venturer is to vote and act on behalf of the appointing Venturer and a Representative's actions are binding on the Venturer which appointed him or her in relation to all matters dealt with in this document as being within the scope of the Joint Venture Committee. |
(d) | The identity of each Representative so nominated by a Venturer must be notified to the Operator and to each other Venturer immediately following his or her nomination. |
(e) | A Venturer may, at any time, and from time to time, by notice to the Operator and to each other Venturer: |
(i) | remove any Representative it nominates under this clause 6.2 and nominate a different person to be its Representative entitled to vote on its behalf; and |
(ii) | nominate an alternate to act in the place of any of its Representatives. |
(f) | A notice of nomination or removal must be in writing and, in the case of a notice of nomination, specify the full name and address of each Representative or alternate and an address for the service of notices on him or her. |
6.3 | Power of Representatives |
6.4 | Role of Joint Venture Committee |
(a) | acquiring any property or committing to any other expenditure exceeding $500,000 (other than as approved in a Budget); |
(b) | disposing of any property whose book value or fair market value exceeds $500,000 (other than as approved in a Budget); |
(c) | variation of any contract (which is Joint Venture Property) material to the Joint Venture; |
(d) | relinquishing, surrendering or otherwise disposing of, or acquiring, all or any part of a Tenement; |
(e) | the Operator contracting with a Venturer or an Affiliate of a Venturer where the payments or Liabilities under the contract exceeds or are likely to exceed $500,000; |
(f) | commencing or materially expanding mining operations, or suspending or materially curtailing mining operations except for: |
(i) | repairs or maintenance; or |
(ii) | other normal industry activities; |
(g) | permanently or indefinitely ceasing all Joint Venture activities; |
(h) | instituting or defending legal or other proceedings where the claim exceeds $100,000; |
(i) | a reorganisation of the Joint Venture or a decision affecting the structure of the Joint Venture or any of the Joint Venture Property; |
(j) | approving any Operating Program and Budget; |
(k) | approving any amendment of the Services Agreement; and |
(l) | a Decision to Mine. |
6.5 | Convening Meetings |
(a) | The Joint Venture Committee must hold: |
(i) | its initial meeting as soon as possible after the Commencement Date; and |
(ii) | all its other meetings at least once each calendar quarter. |
(b) | A Venturer's advisers may attend any Joint Venture Committee meeting and: |
(i) | the advisers are permitted a limited right to speak (but must not vote) on behalf of the Venturer inviting them; and |
(ii) | any Venturer may require the advisers to leave a meeting while confidential or commercially sensitive matters are being discussed. |
(c) | On and after the Farmin Completion Date, the Operator must call meetings of the Joint Venture Committee to consider the Operating Program and proposed Budget prepared and distributed by the Operator in accordance with clause 7.5. |
(d) | The Operator must call a special meeting at any time, if so requested by any Venturer, on not less than 5 Business Days' notice and if the notice containing the request specifies the matters to be placed on the agenda for the meeting. |
(e) | Any Venturer may itself call a meeting of the Joint Venture Committee by giving not less than 5 Business Days' notice to the Operator and to the other Venturers, specifying the matters to be placed on the agenda. Additional agenda items may be submitted as provided in clause 6.7(b). |
6.6 | Location of meetings |
6.7 | Notice and agenda for meetings |
(a) | The Operator must prepare and send to each Representative a copy of the proposed agenda specifying each matter to be considered at the meeting (including appropriate supplementary information) for every meeting of the Joint Venture Committee, together with notice of the date, time and place of the meeting at least 5 Business Days in advance of the date of the meeting. |
(b) | The Operator may have an additional matter placed on the agenda of any meeting by notice (including appropriate supplementary information) to all other Venturers not less than 3 Business Days before the date of the meeting. |
(c) | Unless the Joint Venture Committee determines otherwise by Super Majority Vote, the Joint Venture Committee may consider and pass resolutions at the Joint Venture Committee meeting only on those matters specified in the agenda for the meeting or any additional matters put on the agenda under clause 6.7(b). |
6.8 | Meetings in case of emergency |
(a) | Despite clauses 6.5 and 6.6, in the event of an emergency which, in the Operator's judgment reasonably exercised, requires a meeting to be held without the notice and agenda provided for in clauses 6.5 and 6.6, a meeting called by the Operator is deemed as properly called and held on notice given by the Operator by any means and with whatever notice the Operator reasonably considers to be adequate under the circumstances. |
(b) | The Operator must prepare and give to each Representative a copy of the proposed agenda specifying each matter to be considered at the meeting (including appropriate supplementary information) at or before the meeting. |
6.9 | Chairman of meeting of Joint Venture Committee |
(a) | From the Commencement Date and until the Farmin Completion Date, Wafi must appoint the chairman of the Joint Venture Committee. |
(b) | On and from the Farmin Completion Date: |
(i) | for as long as the Participating Interests of Wafi and Newcrest (taken in aggregate with their respective Affiliates) are equal, Wafi and Newcrest must appoint the chairman of the Joint Venture Committee and in turn, commencing with Newcrest appointing the first chairman; |
(ii) | if the Participating Interests of Wafi and Newcrest (taken in aggregate with their respective Affiliates) are not equal, the Venturer with the greater Participating Interest must appoint the chairman. |
(c) | Each appointment of a chairman under this clause 6.9 is to be for a period of 12 months from the date of appointment. Any appointment may be renewed for further periods of 12 months. |
(d) | If at any duly convened meeting of the Joint Venture Committee at which a quorum is present, the chairman is not present, the Representatives of the Venturer who nominated that chairman and who are present must elect a chairman from amongst their number. |
6.10 | Quorum |
(a) | A quorum at meetings of the Joint Venture Committee is constituted if at least one nominated Representative of Venturers (or an alternate) holding 70% or more of the total Participating Interests is in attendance. |
(b) | A Representative who has cast a vote on any matter coming before the meeting by notice delivered to the Operator under clause 6.14 is deemed to be present at that meeting. |
(c) | If: |
(i) | within half an hour from the time appointed for a meeting of Representatives a quorum is not present, the meeting must automatically be adjourned to the next Business Day at the same time and place; and |
(ii) | at the adjourned meeting a quorum is not present within half an hour from the time appointed, the Representatives present or casting a vote by notice delivered to the Operator under clause 6.14 constitute a quorum. |
6.11 | Voting on resolutions |
(a) | All decisions of the Joint Venture Committee must be passed by Super Majority Vote of the Representatives. |
(b) | The Representatives representing each Venturer on the Joint Venture Committee may collectively cast the same percentage votes on a resolution as Participating Interest held by the Venturer they represent. |
(c) | The chairman does not have a second or casting vote on any resolution of the Joint Venture Committee. |
(d) | For the purposes of clause 6.11(a), any instruction or direction provided by the Joint Venture Committee to the Operator is a decision. |
6.12 | Procedural rules |
6.13 | Minutes and records |
(a) | The Operator must prepare written minutes of each meeting of the Joint Venture Committee and distribute copies to all Representatives within 5 Business Days after the meeting. |
(b) | The minutes must include details of each resolution passed at the meeting and must be signed by the chairman of the meeting. |
(c) | Every Representative must notify the Operator within 5 Business Days of receipt of the minutes whether or not the Representative approves or disapproves of them. A Representative who fails to do so is deemed to have approved the minutes. |
(d) | If any Representative disapproves the minutes, the Operator must endeavour to resolve the issue before the next meeting of the Joint Venture Committee, and if the Operator fails to do so, the question is to be an agenda item for resolution by a vote at the next meeting of the Joint Venture Committee. |
(e) | Minutes of the meeting approved or deemed approved by all Representatives in accordance with this clause 6.13 are prima facie evidence of the matters discussed and resolutions passed at the meeting to which they relate and bind the Venturers. |
(f) | The approval or disapproval of minutes does not affect the validity of decisions of the Joint Venture Committee at the meeting to which the minutes relate. |
6.14 | Vote without attending meeting |
6.15 | Vote without a meeting |
(a) | The Venturers may consider, without holding a meeting, any matter capable of being considered by the Joint Venture Committee at a meeting if: |
(i) | a request outlining the relevant matters for determination is made in a written notice from the Operator or a Venturer to all other Venturers for action; |
(ii) | the Venturers consider and determine the relevant issue within 5 Business Days after receipt of the request; and |
(iii) | one Representative who is entitled to vote on behalf of each Venturer gives notice of his or her decision to the Operator in writing on the matter. |
(b) | Any submission which receives the affirmative vote of Representatives of the Venturers whose Participating Interests aggregate 70% or more is deemed to be a decision of the Joint Venture Committee, binding on all Venturers to the same effect as if made at a meeting of the Joint Venture Committee. |
(c) | The Operator must notify the Venturers of the results of the decision within 2 Business Days after the expiry of the period of 5 Business Days referred to above and must prepare and circulate a minute of the decision as if a meeting of the Joint Venture Committee had been held, under clause 6.16. |
6.16 | Mode of meeting |
(a) | A Joint Venture Committee meeting may be held: |
(i) | in person; |
(ii) | by using any means of audio or audio-visual communication by which each Representative participating can hear and be heard by each other Representative participating; or |
(iii) | by using any other technology consented to in writing by all the Representatives. |
(b) | A Representative's consent under clause 6.16(a)(iii) may be: |
(i) | a standing one; and |
(ii) | withdrawn within a reasonable time before the Joint Venture Committee meeting. |
(c) | A Joint Venture Committee meeting held solely or partly by technology is treated as held at the place at which the greatest number of the Representatives present at the meeting is located or, if an equal number of Representatives is located in each of 2 or more places, at the place where the chairman of the meeting is located. |
7. | OPERATOR AND OPERATING PROGRAMS AND BUDGETS |
7.1 | Appointment |
(a) | As soon as possible after the Commencement Date, Wafi and Newcrest must take all steps necessary to bring about their joint ownership and control of the Operator including: |
(i) | executing a shareholders agreement in relation to the Operator, substantially in the form of the document annexed as Annexure B; |
(ii) | arranging for the Operator to adopt a constitution, substantially in the form of the document annexed as Annexure C; |
(iii) | procuring that all the issued shares of the Operator are held by Wafi and Newcrest in proportion to their respective Participating Interests in the Joint Venture (or in such other proportion as Wafi and Newcrest may agree); and |
(iv) | executing the Services Agreement with the Operator. |
(b) | The Operator may propose that it charges a management fee for performing the services as Operator under this document and the Services Agreement. The proposed fee will be payable as part of the Joint Venture Expenditure if the proposal is approved by the Joint Venture Committee. |
(c) | In addition to the management fee under clause 7.1(b), the Operator is entitled to recover all of its costs and expenses incurred for the purposes of achieving the Objects of the Joint Venture (including the items referred to in section 3.2 to 3.17 of Schedule 2) as authorised by this document or the Services Agreement. |
(d) | The management fee (if any) under clause 7.1(b) and the costs and expenses under clause 7.1(c) form part of Joint Venture Expenditure and the Venturers must pay those fees, costs and expenses to the Operator in accordance with the terms of the Services Agreement. |
7.2 | Agency of the Operator |
(a) | the Operator is the agent of the Venturers; and |
(b) | in that capacity, the Operator is in charge of all Operating Programs and other activities conducted, or a substantial part of which is conducted, in the JV Area for the purposes of the Joint Venture. |
7.3 | Supervision by Joint Venture Committee |
(a) | is subject to the supervision of the Joint Venture Committee; and |
(b) | must carry out any instruction properly given to it by the Joint Venture Committee following a decision made in accordance with clause 6.11 or clause 6.15. |
7.4 | Operating Program and Budget during Farmin Period |
7.5 | Operating Programs and Budgets after the Farmin Period |
(a) | prepare a proposed Operating Program and Budget (including detailed supporting data) concerning operations in the JV Area proposed: |
(i) | for the first Operating Program and Budget, in respect of the period from the Farmin Completion Date until the end of that calendar year; and |
(ii) | thereafter, for all subsequent calendar years; and |
(b) | distribute that proposed Operating Program and Budget to all Venturers within 30 Business Days before the proposed commencement of the Operating Program and Budget. |
7.6 | Substitute Operating Programs and Budgets |
(a) | On and after the Farmin Completion Date, the Joint Venture Committee must meet to consider and vote on each proposed Operating Program and Budget at least 20 Business Days before their commencement. |
(b) | If the Joint Venture Committee does not approve a proposed Operating Program and Budget, it will be treated as having approved an Operating Program and Budget, during the period for which the Proposed Operating Program and Budget is prepared to: |
(i) | keep each Tenement in good standing; |
(ii) | satisfy any applicable work and expenditure obligations in relation to each Tenement; and |
(iii) | progress the Objects of the Joint Venture at a level that a reasonably prudent operator in like circumstances would advance them to retain the maximum value of the project while preserving working capital, using the last approved Operating Program and Budget as a guide. |
7.7 | Amendment of Operating Programs |
7.8 | Ownership of property |
(a) | Except as otherwise provided in this document: |
(i) | all Tenements and other Joint Venture Property are beneficially owned by the Venturers in undivided shares as tenants-in-common in proportion to their respective Participating Interests; and |
(ii) | each Venturer waives its rights of partition and sale in lieu of partition in those Tenements and any other Joint Venture Property. |
(b) | It is the intention that the Venturers will hold the legal title to all Tenements and (wherever practical) all other Joint Venture Property as tenants-in-common in proportion to their respective Participating Interests. If at any time any of the Joint Venture Property is held by less than all the Venturers, the Venturer (or Venturers) which holds the legal title will do so in trust for all Venturers as tenants-in-common in proportion to their respective Participating Interests. Where it is not practical, for the Venturers to hold the legal title to any Joint Venture Property as tenants-in-common, the Operator is to hold legal title to that Joint Venture Property in trust for all Venturers as tenants-in-common in proportion to their respective Participating Interests. |
(c) | The Operator may only purchase property for the Joint Venture that is required to meet the reasonably anticipated needs of the currently approved Operating Program, unless the Joint Venture Committee approves otherwise. |
(d) | If the Operator declares any property (including Joint Venture Intellectual Property) held for the purposes of this document or the Joint Venture or both to be surplus, that property may be disposed of: |
(i) | if, and in the manner, the Joint Venture Committee approves; and |
(ii) | in accordance with the Accounting Procedure. |
7.9 | Access to site and information |
(a) | Subject to clauses 7.9(d), 7.9(e) and 7.9(f), if the Operator receives reasonable notice from a Venturer that the Venturer wishes a third party which is not an Affiliate of the Venturer to access the site, it must give any person who has the Venturer's written authority: |
(i) | access to the site of any Tenement; and |
(ii) | any information relating to the Joint Venture, |
(b) | and allow any of those persons to: |
(i) | observe and inspect the conduct of the operations of the Joint Venture; and |
(ii) | examine and, if desired, copy at the Venturer's expense any record of the Joint Venture, |
(c) | The Operator must only grant access in accordance with clause 7.9(a), if the Venturer verifies, in the form of written authority, that the purpose of the Access sought is required: |
(i) | to facilitate financing of the Venturer's Participating Interest; |
(ii) | to restate reserves held by the Venturer; or |
(iii) | directly in connection with a proposed sale of part or all of the Venturer's Participating Interests, |
(d) | The person with the Venturer's written authority must deliver to the Operator: |
(i) | a duly executed confidentiality agreement, substantially in the form of the document attached as Schedule 7; and |
(ii) | such other indemnities and undertakings as the Operator (acting reasonably) may require. |
(e) | All site visits are at the sole risk and cost of the Venturer and the Operator is not in any way responsible for that Venturer's personnel conduct, safety or expenses during the visit. |
(f) | The Venturer's personnel must comply with all reasonable directions given by or on behalf of the Operator and comply with safety procedures on the site. |
8. | INTELLECTUAL PROPERTY AND INFORMATION |
(a) | If a Venturer or an Affiliate of a Venturer has proprietary technology applicable to operations which the Venturer or its Affiliate desires to make available to the Joint Venture on terms and conditions other than as specified in this clause 8, the Venturer or Affiliate may, with the prior approval of the Joint Venture Committee, make that proprietary technology available on terms to be agreed. |
(b) | If the proprietary technology is made available, then any inventions, discoveries or improvements that relate to such proprietary technology and which result from Joint Venture expenditures belongs to the Venturer or the Affiliate. In each such case, each other Venturer has a non-exclusive, irrevocable, royalty-free world-wide licence, with rights to sub-licence to related corporations, in relation to such inventions, discoveries or improvements. |
9. | INSURANCE AND LITIGATION |
9.1 | Insurance obligations |
(a) | The Venturers and the Operator must procure and maintain in force: |
(i) | all insurances required by applicable law in connection with operations under this document and the Services Agreement; and |
(ii) | any additional insurance the Joint Venture Committee requires. |
(b) | In addition to the insurance cover referred to in clause 9.1(a), a Venturer may at its own cost have its own insurance cover for any Liabilities it may incur because it is a Venturer. |
(c) | If neither the Joint Venture nor any other Venturer is disadvantaged or otherwise penalised, a Venturer may elect not to participate in an insurance taken out by the Operator under clause 9.1(a)(ii). If a Venturer does so, it must: |
(i) | notify the Operator of that fact; and |
(ii) | give the other Venturers evidence satisfactory to each of them that it is effectively self-insured or otherwise covered by a suitable policy of insurance, in either case, for the same risk. |
9.2 | Cost of insurance |
(a) | insurances referred to in clause 9.1(c) to each Venturer participating in those insurances in proportion to its Participating Interest; and |
(b) | other insurances as Joint Venture Expenditure. |
9.3 | Operator's obligations |
(a) | promptly inform each Venturer participating in any insurance when cover has been taken out; |
(b) | supply a Venturer participating in any insurance with a copy of the relevant policies if requested to do so by that Venturer; |
(c) | arrange for each Venturer participating in any insurance, in proportion to its Participating Interest, to be named as a co-insured on the relevant policies with waivers of subrogation in favour of that Venturer; and |
(d) | file all claims and take all necessary steps to collect the proceeds of any insurance and: |
(i) | if all Venturers have participated in that insurance, credit the proceeds of that insurance to the Joint Account; or |
(ii) | if all Venturers have not participated in that insurance, credit the proceeds of that insurance to each Venturer participating in that insurance in proportion to its contribution to the premium for that insurance. |
9.4 | Independent contractors' insurance |
(a) | take all reasonable steps to ensure that all independent contractors (including subcontractors) performing work for the Joint Venture obtain and maintain all insurances required by applicable law or the conditions of their respective engagements; and |
(b) | if reasonably possible, obtain a waiver of subrogation in favour of the Operator and the Venturers from the insurers of those independent contractors. |
9.5 | Notice of litigation |
(a) | $100,000; or |
(b) | any other amount the Joint Venture Committee decides. |
9.6 | Litigation against third parties |
(a) | The Operator may prosecute, defend or settle any claim, dispute, litigation, arbitration, mediation, conciliation, administrative proceeding, lien, demand, judgement or order relating to this document or operations under this document (except as between Venturers) unless the total amount in dispute or the total amount of damages and expenses is estimated to exceed: |
(i) | $100,000; or |
(ii) | any other amount the Joint Venture Committee decides, |
(b) | If the total amount in dispute or the total amount of damages and expenses is estimated to exceed an amount referred to in 9.6(a), the Operator must not do anything referred to in that paragraph without the Joint Venture Committee 's approval. |
(c) | Each Venturer may participate in any prosecution, defence or settlement relating to this document or operations under this document at its own expense. |
9.7 | Litigation against a Venturer |
(a) | separately compromise, defend or settle any claim made or action brought against it personally regarding this document or operations under this document; and |
(b) | keep all other Venturers fully informed of the nature, status and particulars of any claim or action referred to in clause 9.7(a), |
10. | REHABILITATION |
10.1 | Rehabilitation Obligations |
10.2 | Rehabilitation Program |
10.3 | Rehabilitation Fund |
(a) | From the Commencement Date, the Venturers must establish a rehabilitation fund which fund and all interest earned by the fund must be applied towards meeting the obligations referred to in clause 10.1. |
(b) | The amounts, investments, sureties or securities to be paid into the fund, and the schedule on which such payments are to be made, must be approved by the Joint Venture Committee . |
(c) | All amounts to be paid into the fund must be paid by the Venturers in proportion to their Participating Interests at the time that each payment is due. |
11. | CROSS CHARGE |
11.1 | Venturers' obligations |
(a) | execute and deliver to the other Venturers a deed of charge at the time of executing this document or any Assumption Deed; |
(b) | ensure that the charge is registered (and not just provisionally) under the Companies Act and approved and registered under the Mining Act; |
(c) | ensure that the charge is registered in any other places which any other Venturer notifies to it if any other Venturer is reasonably satisfied that registration is necessary or desirable to perfect the security created by that charge or to protect the rights of any other Venturer under that charge; |
(d) | obtain all necessary Authorisations in relation to that charge and lodge them for registration in each jurisdiction required to perfect the security created by that charge; |
(e) | ensure that the charge is stamped; and |
(f) | do everything necessary in each jurisdiction required to perfect the security created by that charge. |
11.2 | Purpose, form and substance |
(a) | for the purpose of better securing: |
(i) | payment of all Called Sums under this document; and |
(ii) | payment of any amount due and payable to each Venturer under this document; and |
(b) | substantially in the form set out in Schedule 5. |
12. | JOINT VENTURE EXPENDITURE |
12.1 | Financing policy |
(a) | use of the Operator's funds; |
(b) | use of funds available under the Joint Account; and |
(c) | use of Called Sums from Venturers. |
12.2 | Settlement and payment |
(a) | All Joint Venture Expenditure incurred by or on behalf of the Operator in the conduct of operations under this document must be decided and settled in accordance with this document (including the Accounting Procedure). |
(b) | Each Venturer must contribute to Joint Venture Expenditure in proportion to its Participating Interest in accordance with this document, including clauses 13 and 14 but subject to clause 15. As between Wafi and Newcrest, this is subject to the provisions of the Master Purchase and Farmin Agreement. |
12.3 | Current statements |
(a) | the total estimated cash expenditure and accrued liabilities on each currently approved Operating Program and Budget for the preceding, current and next month; |
(b) | all charges and credits to the Joint Account that have occurred since the last statement and the nature of those items; |
(c) | all unusual charges and credits that have occurred since the last statement that must be separately identified and described in detail; |
(d) | the unexpended balance of funds from each Venturer's earlier advances to the Joint Account, and the extent to which the expenditure and liabilities referred to in clause 12.3(a) can be satisfied from that balance; and |
(e) | the amount required to be paid by each Venturer in accordance with that statement (or in the case of Wafi before the Farmin Completion Date, to be paid by Newcrest on Wafi's behalf in accordance with the terms of the Master Purchase and Farmin Agreements), |
12.4 | Notice of Intention to pay Called Sum |
12.5 | Called Sums paid in advance of expenditure |
(a) | keep each Called Sum paid by a Venturer in advance of expenditure in a separate Joint Venture interest bearing trust account with a financial institution the Joint Venture Committee approves; and |
(b) | credit all interest to the Joint Account for a Venturer that pays a Called Sum in advance of expenditure having regard to the date of payment by that Venturer and its Participating Interest. |
13. | INTEREST |
13.1 | Payment of Interest |
(a) | A Venturer must pay Interest on each amount that is not paid when due, from (and including) the Due Date to (but excluding) the day on which it is paid in full, at the rate calculated in accordance with clause 13.1(b). This Interest must be paid on demand. |
(b) | Interest on an unpaid amount accrues each day at a rate equal to the sum of the indicator lending rate charged by Westpac Bank (PNG) Limited on overdrafts of K100,000 for that day and 3% per annum, and is capitalised (if not paid) every 5 Business Days. |
(c) | This clause 13.1 does not affect a Venturer's obligation to pay each amount under this document when it is due. |
13.2 | Interest after judgment |
13.3 | Accrual and calculation of Interest |
(a) | accrues daily; and |
(b) | is calculated on the basis of the actual number of days on which Interest has accrued and a 365 day year. |
14. | PAYMENTS |
14.1 | Payment of Called Sums and Interest |
(a) | If a Venturer gives or is deemed to have given a Notice of Intention under clause 12.4 to pay a Called Sum, the Venturer must pay to the Operator the Called Sum required to be paid by it in accordance with the statement under clause 12.3: |
(i) | by the Due Date for payment of that Called Sum; and |
(ii) | in accordance with this clause 14.1 and clause 14.2. |
(b) | If a Venturer does not comply with clause 14.1(a): |
(i) | it must pay Interest to the Operator for the benefit of the other Venturers' accounts; |
(ii) | that Interest is to be calculated from (and including) the Due Date for payment of that Called Sum to (but excluding) the date of actual payment; and |
(iii) | expenses attributable to or arising from that Called Sum will be treated as part of that sum. |
14.2 | How payments must be made |
(a) | by delivering an unendorsed bank cheque to the Operator at the place, or by direct transfer of cleared funds to the credit of the account, that the Operator nominates at least 5 Business Days before the payment is made; and |
(b) | without any set-off or counterclaim and (to the extent permitted by law) free and clear of, and without deduction or withholding for or on account of, any Taxes (other than Excluded Taxes). |
14.3 | Deductions and withholdings |
(a) | must notify the Operator of the obligation promptly after that Venturer becomes aware of it; |
(b) | must ensure that the deduction or withholding does not exceed the minimum amount required by law; |
(c) | must pay to the relevant Government Agency on time the full amount of the deduction or withholding and promptly deliver to the Operator a copy of any receipt, certificate or other proof of payment; and |
(d) | unless the Tax is an Excluded Tax, must indemnify the Operator against the deduction or withholding by paying to the Operator, at the time that the payment to the Operator is due, an additional amount that ensures that, after the deduction or withholding is made, the Operator receives a net sum equal to the sum that it would have received if the deduction or withholding had not been made. |
14.4 | Currency indemnity |
(a) | the amount of Required Currency which the Operator receives on converting the amount it received in the Payment Currency into an amount in the Required Currency in accordance with its usual practice; and |
(b) | the relevant amount in the Required Currency. |
15. | DILUTION |
15.1 | Consequences of non-payment |
(a) | If a Venturer (other than Newcrest in respect of Joint Venture Expenditure from the Commencement Date up to and including the Farmin Completion Date) gives a Notice of Intention under clause 12.4 not to pay a Called Sum and it subsequently fails to pay that Called Sum, the Operator must notify that Venturer (the Notifying Venturer) and the other Venturers of the failure (Notice of Failure to Pay), specifying details of the failure. |
(b) | If the Notifying Venturer does not rectify the failure within 15 Business Days after issue of a Notice of Failure to Pay: |
(i) | within 7 days after the expiry of the 15 Business Day rectification period, the Operator must further notify all other Venturers of the failure to rectify; and |
(ii) | within 7 days after the date of further notice from the Operator, the other Venturers may pay the Notifying Venturer's contribution in proportion to their respective Participating Interests (or in such other proportions or manner as they may agree). |
(c) | For the purposes of this clause 15, a Notifying Venturer becomes a Diluting Venturer when any other Venturer meets the Notifying Venturer's contribution under clause 15.1(b)(ii). |
(d) | On payment by any other Venturer of all or part of the Diluting Venturer's contribution under clause 15.1(b)(ii), the Participating Interests of the Venturers shall be adjusted in accordance with clause 15.2. |
(e) | A Diluting Venturer may attend meetings of the Joint Venture Committee and the Operator must provide a Diluting Venturer with any approved Operating Program and Budget until the Diluting Venturer withdraws or is deemed to have withdrawn. |
15.2 | Calculation of Participating Interests |
PI = | the Participating Interest of the Venturer |
A = | the actual and deemed contributions of the Venturer at the relevant time |
B = | the actual and deemed contributions by all other Venturers at the relevant time |
15.3 | Minimum Participating Interest |
(a) | the Operator must give notice to a Venturer whose Participating Interest reduces to less than 5%; and |
(b) | on delivery of the notice to the Venturer, the Venturer will be deemed to be a Defaulting Party for the purposes of clause 17.4, 17.5 and 17.6 and its Participating Interest will be sold in accordance with those provisions. |
15.4 | Withdrawal |
(a) | A Venturer (Withdrawing Party) may at any time after the Farmin Completion Date withdraw as a Venturer by giving the other Venturers and the Operator notice of withdrawal at least 20 Business Days before the effective date of withdrawal. |
(b) | The date (Withdrawal Date) must be specified in the notice and be no more than 30 Business Days after the date of the notice. |
(c) | From the Withdrawal Date, the Representatives of the Withdrawing Party are no longer entitled to a vote on the Joint Venture Committee on any matter arising for determination after the Withdrawal Date. |
(d) | On or before the Withdrawal Date, the Withdrawing Party must: |
(i) | transfer all of its Participating Interest to the other Venturers (Remaining Parties) by documents acceptable in form and substance to the Remaining Parties; and |
(ii) | if it holds shares in the Operator, transfer all of its shares in the Operator to the other remaining shareholders of the Operator in the proportions that these other remaining shareholders' Participating Interests bear to each other, |
(e) | Each Remaining Party will share in the transfer in the proportion that its Participating Interest at the date of the transfer bears to the sum of the Participating Interests of all of the Remaining Parties at that date (or in any other proportions the Remaining Parties may otherwise agree). |
(f) | The Withdrawing Party must pay all costs of the transfer (including duty and registration fees). |
(g) | The Withdrawing Party must do anything reasonably necessary or convenient to render the transfer effective under applicable law (including execute and deliver all documents acceptable in form and substance to each Remaining Party and obtain all Authorisations). |
(h) | Each Withdrawing Party irrevocably appoints and constitutes every Remaining Party and, where a Remaining Party is a corporation, every director and secretary for the |
(i) | Irrespective of any transfer under this clause, the Withdrawing Party remains liable for all: |
(i) | obligations imposed on it under this document and the Transaction Documents and by operation of law; and |
(ii) | costs and expenses: |
(A) | incurred or intended to be incurred under an approved Operating Program and Budget current as at the Withdrawal Date; or |
(B) | accrued in the conduct of operations under this document before the Withdrawal Date, |
(j) | The Withdrawing Party must join in any acts required for the maintenance of its Participating Interest until all legal and other requirements are met in relation to the transfer. |
(k) | If the Participating Interest of a party seeking to become a Withdrawing Party is subject to an Encumbrance, that party: |
(i) | is not permitted to withdraw until all Encumbrances to which the Participating Interest is subject have been discharged; and |
(ii) | remains liable for all obligations imposed on it under this document until all Encumbrances to which the Participating Interest is subject have been discharged. |
(l) | When all Encumbrances have been discharged the Withdrawing Party must give each Remaining Party a notice that includes evidence of the discharge reasonably acceptable to each Remaining Party. |
(m) | Each Remaining Party must no later than 10 Business Days after the date of the notice in clause 15.4(l) notify the Withdrawing Party whether or not the evidence of discharge is acceptable to it. In default of any notice, the evidence of discharge is treated as being acceptable. If the notice indicates that the evidence of discharge is unacceptable, the Withdrawal Date is postponed to a date that is 5 Business Days after receipt by each Remaining Party of evidence of discharge reasonably acceptable to it. |
(n) | A Withdrawing Party must deliver to each Remaining Party all copies of confidential information referred to in clause 24 (Confidentiality) in the possession of any of the Withdrawing Party, its agents, employees or Affiliates. |
15.5 | Dilution where State acquires interest |
(a) | If the State (or its nominee) or any Landowners (or their nominee) exercise any option which they may have to acquire a Participating Interest in the Joint Venture, the Venturers agree that they will each sell down their respective Participating Interests in the proportions that their respective Participating Interests bear to each other as at: |
(b) | (i) the date of exercise of the option, if the option is exercised after the Farmin Completion Date; or |
(c) | (ii) at the Farmin Completion Date, if the option is exercised prior to the Farmin Completion Date, |
16. | DEFAULT |
16.1 | Default Event |
(a) | if, after the Farmin Completion Date, a Venturer: |
(i) | having given or been deemed to have given a Notice of Intention under clause 12.4 to pay a Called Sum, fails to pay the Called Sum by its Due Date; or |
(ii) | fails to pay any other amount that is due and payable under this document; |
(b) | if a Venturer creates or permits to exist any Encumbrance other than a Permitted Encumbrance over all or any of its Participating Interest in breach of clause 25; |
(c) | if a Venturer Assigns any of its Participating Interest in breach of clauses 26; or |
(d) | if an Insolvency Event occurs in respect of a Venturer. |
16.2 | Default Notice |
(a) | The Operator must notify a Defaulting Venturer, its Encumbrancee (if the Operator has notice of its address for service), and the other Venturers of that Defaulting Venturer's Default Event, and require that: |
(i) | if the Default Event is under clauses 16.1(a), the outstanding amount be paid; |
(ii) | for those Default Events other than under clause 16.1(a), the Default be otherwise remedied (if possible), |
(b) | If the Operator is an Affiliate of a Defaulting Venturer, another Venturer may notify that Defaulting Venturer, its Encumbrancee (if that other Venturer has notice of its address for service), and the other Venturers of that Defaulting Venturer's default, and require that the Default Event be remedied in accordance with clause 16.2(a). |
16.3 | Consequences of Default Notice |
(a) | Subject to clause 16.3(b), with effect from the date which is one Business Day after a Default Notice is served on that Defaulting Venturer until all defaults by a Defaulting Venturer are remedied in accordance with clause 16.6 (Default Period): |
(i) | the Representatives appointed by that Defaulting Venturer cannot vote on any matter before the Joint Venture Committee; and |
(ii) | that Defaulting Venturer is not entitled to its Share of Production which must be dealt with in accordance with clause 17. |
(b) | If the Default Event is an event set out in clause 16.1(d), in addition to the consequences set out in clause 16.3(a), during the Default Period, the representatives of the Defaulting Venturer appointed to the board of directors of the Operator are not entitled to vote on any resolution before the board. |
16.4 | Contributing Venturers |
(a) | If the Default Event is default under clause 16.1(a) and it is not remedied in accordance with clause 16.2(a), the Venturers other than the Defaulting Venturer (the Contributing Venturers) must pay to the Operator, in proportion to their respective Participating Interests (unless otherwise agreed between them), the Unpaid Called Sum on behalf of the Defaulting Venturer. |
(b) | A Venturer that does not comply with clause 16.4(a) will be regarded as a Defaulting Venturer. |
(c) | The amount paid to the Operator by a Contributing Venturer under clause 16.4(a): |
(i) | must be paid within 20 Business Days after it receives a statement from the Operator specifying all necessary details; and |
(ii) | will: |
(A) | constitute a debt due and payable by the Defaulting Venturer to the Contributing Venturer; and |
(B) | include any expenses arising from payment by the Contributing Venturer and Interest on the debt in accordance with clause 16.5, |
(d) | For the purposes of clause 16.4(c)(i), the Operator may give a Venturer a statement before or after the procedures specified in clause 17.1 have been followed if: |
(i) | amounts available because of those procedures do not satisfy the Defaulting Venturer's obligations when those procedures are applied; or |
(ii) | those procedures are inapplicable for any reason. |
16.5 | Interest |
16.6 | Remedy of defaults |
16.7 | Failure to remedy |
(a) | a Venturer: |
(i) | becomes a Defaulting Venturer in the payment of Called Sums or Interest accrued on those Called Sums on 3 occasions in any 12 month period; |
(ii) | received a Default Notice in relation to the first and second defaults; and |
(iii) | received a Default Notice in relation to the second default at least 10 Business Days before the Due Date for payment of the Called Sum or Interest accrued on that Called Sum in relation to which the third default occurred. |
(b) | a Venturer becomes a Defaulting Venturer by committing a Default Event or a Default Event occurs in relation to the Venturer, and has not remedied that default (if possible) within 15 Business Days of receipt of the Default Notice under clause 16.2. |
17. | CONSEQUENCES OF DEFAULT |
17.1 | Share of Production on trust for sale |
(a) | When a Venturer becomes a Defaulting Venturer: |
(i) | its right to take delivery of its Share of Production under clause 3.6 ceases immediately; and |
(ii) | the Venturer's Share of Production vests in the Operator on trust for sale. |
(b) | Until a Defaulting Venturer ceases to be a Defaulting Venturer: |
(i) | the Operator (on behalf of, and as agent for, the Defaulting Venturer) must sell the Share of Production to which that Defaulting Venturer would have been entitled if it had not become a Defaulting Venturer in accordance with a sales agreement (if any) entered into by the Defaulting Venturer before the time of its default; and |
(ii) | if there is no sales agreement referred to in clause 17.1, the Operator may (on behalf of, and as agent for, the Defaulting Venturer) sell the Share of Production to which that Defaulting Venturer would have been entitled if it had not become a Defaulting Venturer, but the Operator must: |
(A) | use reasonable endeavours to obtain the best competitive price available on an arm's length basis; and |
(B) | consider relevant factors (including transportation, processing and penalty costs). |
17.2 | Application of sale proceeds |
(a) | first in payment or reimbursement of all expenses that the Operator incurs in or incidental to the taking delivery of, and selling the Share of Production to which the |
(b) | then in payment of any Interest that has accrued under clause 14.1(b); |
(c) | then in payment to discharge any other obligations of the Defaulting Venturer under this document; and |
(d) | then in payment to the Defaulting Venturer. |
17.3 | No Liability or entitlement to Defaulting Venturer |
(a) | Neither the Operator nor any Continuing Venturer will be liable to a Defaulting Venturer for anything arising because of the sale of the Defaulting Venturer's Share of Production if that share was sold in accordance with clause 17.1. |
(b) | When a Defaulting Venturer ceases to be a Defaulting Venturer, it is not entitled to an additional Share of Production in replacement of the Share of Production delivered to the Operator under clause 17.1 while the Defaulting Venturer was in default. |
17.4 | Participating Interest on trust for sale |
(a) | a Defaulting Venturer continues to be in default for a continuous period of 20 Business Days after sales proceeds have been applied under clause 17.2; |
(b) | the Cross Charge has become enforceable against that Defaulting Venturer; and |
(c) | one of the Non-Defaulting Venturers notifies the Operator that it wishes to enforce the Cross Charge by exercising the power of sale under it in respect of the Defaulting Venturer's Participating Interest, |
(i) | the Operator must notify all Venturers (including the Defaulting Venturer) that the event has occurred; |
(ii) | a Defaulting Venturer's Participating Interest (including its right to collection or transportation at the Delivery Point of its Participating Interest Share of Production) automatically vests in the Operator on trust for sale, and any trust for sale under clause 17.1 ceases; and |
(iii) | at the time of vesting referred to in clause 17.4(ii), a Defaulting Venturer: |
(A) | ceases to have further rights or interests in the Joint Venture except those under clause 17.5; but |
(B) | continues to be liable for any antecedent default and Interest on the amount of that default to the extent not satisfied under clause 17.5(g); and |
(C) | if it holds shares in the Operator, must transfer its shares in the Operator to the other remaining shareholders of the Operator in the proportions that these other remaining shareholders' Participating Interests bear to each other, for no consideration or compensation. |
17.5 | Terms of trust for sale |
(a) | clauses 17.1 and 17.2 apply to the Share of Production attributable to the Participating Interest on trust for sale; |
(b) | the Operator must: |
(i) | try to agree with the Defaulting Venturer on a value for the Participating Interest held on trust for sale, but if the Operator is an Affiliate of the Defaulting Venturer, it must try to agree on that value with the other Venturers; and |
(ii) | have that value independently decided in accordance with clause 17.6 if the Operator and the Defaulting Venturer or if applicable the other Venturers cannot agree on that value within 20 Business Days after the trust for sale arose; |
(c) | each Continuing Venturer has an option to purchase the Participating Interest held on trust for sale. This option is exercisable: |
(i) | by one or more of the Continuing Venturers that will then be liable for the purchase price in proportion to their respective Participating Interests; |
(ii) | by each Continuing Venturer that wishes to exercise this option notifying the Defaulting Venturer within 20 Business Days after the Operator has notified all the Continuing Venturers that the value of the Participating Interest held on trust for sale has been agreed or independently decided (as the case may be); |
(iii) | at a price: |
(A) | subject to clause 17.5(e), equal to the value agreed or independently decided (as the case may be); and |
(B) | payable to the Operator as cash consideration (and not for any other consideration) as trustee under the trust for sale; and |
(iv) | by the payment to the Operator as trustee under the trust for sale of a deposit of 50% of the price referred to in clause 17.5(c)(iii) within 10 Business Days after this option is exercised; |
(d) | the unpaid balance of the amount payable under clause 17.5(c) carries Interest in accordance with clause 13 calculated from the date for payment of the deposit; |
(e) | if the option under clause 17.5(c) is not exercised, the Operator must use its best endeavours to dispose of the Participating Interest held on trust for sale for the best competitive price reasonably obtainable from a purchaser that complies with clause 26.8(d) but, if that price is below the value agreed or independently decided (as the case may be) under clause 17.5(b), each Continuing Venturer has a further option to purchase the Participating Interest at that price on the terms of clause 17.5(c); |
(f) | a purchaser of the Participating Interest held on trust for sale will take it free from any Encumbrance other than a Permitted Encumbrance; |
(g) | the sale proceeds of the Participating Interest held on trust for sale (and the balance of the sale proceeds of Mineral Products forming part of that Participating Interest) must be applied in accordance with clause 17.2; and |
(h) | each Venturer irrevocably appoints and constitutes the Operator its true and lawful attorney in its name and on its behalf to do anything reasonably necessary to vest the Participating Interest held on trust for sale in the purchaser of that Participating Interest (including execute any transfer or other document in blank). |
17.6 | Independent value |
(a) | the Operator must: |
(i) | request the President of each of the Australasian Institute of Mining and Metallurgy and the Australian Mining Industry Council to nominate an independent expert and the Operator must nominate one independent expert (who is a recognised expert in valuing mining operations and properties) to value that Participating Interest; and |
(ii) | promptly notify all Venturers of the names of the independent experts nominated; and |
(b) | each independent expert: |
(i) | must act as an expert only and not as an arbitrator; |
(ii) | may consult with the Operator and independent contractors engaged by the Operator in connection with the Joint Venture; |
(iii) | is entitled to rely in good faith on the opinions of any expert or other persons (including the Operator and independent contractors engaged by the Operator in connection with the Joint Venture) consulted; |
(iv) | must consider submissions about value that a Venturer may make to him or her within 15 Business Days of the Venturer or the Defaulting Venturer receiving notice of the independent experts nominated; |
(v) | must make his or her valuation independently, without consultation with other independent experts and on the basis of: |
(A) | a willing but not anxious purchaser; and |
(B) | a willing but not anxious vendor; |
(vi) | must not consider the Defaulting Venturer's Liabilities except as required by clause 17.6(b)(x); |
(vii) | may consider whether or not the Defaulting Venturer's Participating Interest carries with it an entitlement to a measure of control of the Joint Venture; |
(viii) | must use his or her best endeavours to complete his or her valuation within 30 Business Days of his or her nomination; |
(ix) | must disregard the value of Mineral Products derived from the Participating Interest independently sold under clause 17.5(g); |
(x) | must fully deduct the amount of the Defaulting Venturer's Liabilities under or secured by all Encumbrances; and |
(xi) | must deliver a copy of his valuation to all Venturers when completed; and |
(c) | if an independent expert fails to complete his or her valuation within the time prescribed by clause 17.6(b)(viii): |
(i) | the Operator may, before completion of his or her valuation, declare that the independent expert ceased to be an independent expert for the purposes of this clause by notifying all Venturers; and |
(ii) | if the Operator makes a declaration in accordance with clause 17.6(c)(i), it must then immediately request the President of the Australasian Institute of Mining & Metallurgy or the Australian Mining Industry Council (whichever of those Presidents appointed the expert concerned) to nominate or must itself nominate (as the case requires) another independent expert in place of the one who ceased to be an independent expert for the purposes of this clause; and |
(d) | the independent value of a Participating Interest held on trust for sale is: |
(i) | the average of the amounts of the valuations of the 2 independent experts whose valuations are closest to each other; or |
(ii) | if the difference between the highest and the median valuations is the same as the difference between the median and the lowest valuations, the median valuation. |
18. | CHANGE OF CONTROL |
18.1 | Meaning of Control |
(a) | has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies; |
(b) | has the capacity to influence decisions about the second entity’s financial and operating policies; or |
(c) | an Affiliate or Affiliates (or any combination thereof) has an aggregate relevant interest in at least 50% of the voting shares of the second entity. |
(d) | the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and |
(e) | any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust). |
18.2 | Meaning of Change of Control |
(a) | Subject to clause 18.2(b), a Change of Control occurs in relation to a body corporate or entity (the body) where: |
(i) | an entity that Controls the body ceases to Control the body; or |
(ii) | an entity that does not Control the body comes to Control the body. |
(b) | No Change of Control occurs if: |
(i) | the entity that ceases to Control the body under clause 18.2(a) was, immediately beforehand, Controlled by a body corporate that Controls the body; |
(ii) | the entity that comes to Control the body under clause 18.2(a) is, immediately afterward, a wholly–owned subsidiary of a body corporate that previously Controlled and continues to Control the body; |
(iii) | it results from a Change in Control of a listed entity; or |
(iv) | it results from a Change of Control which Wafi and Newcrest have by written instrument signed by their Representatives unanimously approved in advance. |
18.3 | Consequences of Change of Control |
(a) | the Venturer's Participating Interest including its right to collection or transportation at the Delivery Point of its Participating Interest's Share of Production automatically vests in the Operator on trust for sale and any trust for sale under clause 17.1 ceases; |
(b) | at the time of vesting referred to in clause 18.3(a), the Venturer: |
(i) | ceases to have further rights or interests in the Joint Venture except those under this clause and clause 17.5; |
(ii) | continues to be liable for any antecedent default and Interest on the amount of any default; |
(iii) | if it holds any shares in the Operator, must transfer all of its shares in the Operator to the other remaining shareholders of the Operator in the proportions that these other remaining shareholders' Participating Interests bear to each other for no consideration or compensation; and |
(c) | clauses 17.5 and 17.6 apply to that trust for sale created under clause 18.3(a) as if the Venturer were a Defaulting Venturer. |
19. | TENEMENT RELINQUISHMENT |
19.1 | Procedure and consequences |
(a) | that Tenement must, before its relinquishment, surrender or disposal, be offered (for no consideration or compensation) to each Venturer individually in proportion to its Participating Interest at the date of that offer; |
(b) | if a Venturer does not accept the offer referred to in clause 19.1(a) in relation to all of that Tenement within 20 Business Days, its Participating Interest entitlement is treated as being offered for a further period of 20 Business Days to each other Venturer in the proportion that the Participating Interest of that Venturer bears to the total of the Participating Interests of the other Venturers on the date that offer is treated as being offered; |
(c) | if a Venturer does not accept the offers referred to in: |
(i) | clause 19.1(a) in relation to all of that Tenement within 20 Business Days; or |
(ii) | clause 19.1(b) in relation to all of that Tenement within the time prescribed by that clause, |
(d) | that Tenement ceases to form part of, and is excluded from the definition of, the Tenements when it is relinquished, surrendered or disposed of. |
19.2 | Expenses |
(a) | Subject to clause 19.2(b) below, the Operator must charge the expenses of any relinquishment, surrender or other disposal to the Joint Account. |
(b) | The transferee must pay all expenses of and incidental to any transfer in accordance with clause 19.1 (including legal expenses and any duty or registration fees). |
20. | GOODS AND SERVICES TAX |
20.1 | Venturer is member of GST group |
20.2 | GST exclusive amounts |
20.3 | Payment of GST |
(a) | A recipient of a taxable supply under or in connection with this document must pay to the supplier, in addition to the consideration for the taxable supply, an amount equal to any GST paid or payable by the supplier in respect of the taxable supply. |
(b) | The recipient must make that payment to the supplier as and when the consideration or part of it is provided, except that the recipient need not pay unless the recipient has received a tax invoice (or a credit note or a debit note) for that taxable supply. |
20.4 | Reimbursements |
20.5 | Indemnities |
(a) | If a release of an indemnity under or in connection with this document gives rise to a liability to pay GST, the indemnified amount must include that GST. |
(b) | If a Venturer has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount). |
20.6 | GST returns |
20.7 | Registration |
20.8 | Indemnity |
21. | FORCE MAJEURE |
21.1 | Notice and suspension of obligations |
(a) | that party must immediately give the other parties prompt notice of that fact including: |
(i) | full particulars of the Force Majeure Event; |
(ii) | an estimate of its likely duration; |
(iii) | the obligations affected by it and the extent of its effect on those obligations; and |
(iv) | the steps taken to rectify it; and |
(b) | the obligations under this document of the Venturer giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues. |
21.2 | Effort to overcome |
(a) | settle any industrial dispute in any way it does not want to; or |
(b) | enter into any agreement relating to the rights of Landowners on terms not acceptable to it for the sole purpose of removing the Force Majeure Event. |
21.3 | Alternative supply |
22. | DISPUTE RESOLUTION |
22.1 | Application |
22.2 | Notice of dispute or difference |
(a) | If a Dispute arises a party must commence the process contained in this clause for its resolution by giving notice (Dispute Notice) to the other party. The party sending the Dispute Notice is the Referring Party. |
(b) | The Dispute Notice must: |
(i) | be in writing; |
(ii) | state that it is given pursuant to this clause 22.2; |
(iii) | include or be accompanied by reasonable particulars of the Dispute including: |
(A) | a brief description of the circumstances in which the Dispute arose; |
(B) | references to any: |
(I) | provisions of the relevant document; |
(II) | information, whether written or in any other form; and |
(III) | acts or omissions of any person, |
(C) | the amount in dispute (whether monetary or any other commodity) and if not known, the best estimate available; and |
(iv) | be given within 10 Business Days of the Referring Party first becoming aware of the circumstances giving rise to the Dispute. |
22.3 | Negotiation between Representatives |
(a) | Within 10 Business Days of the Referring Party giving a Dispute Notice, the Representatives of the parties to the Dispute must meet to attempt to resolve the Dispute. |
(b) | The meeting must take place in person. The parties are not permitted to delegate this function to any other person. |
(c) | The parties to the Dispute must ensure that their Representatives at this meeting make a genuine effort to resolve any Dispute. |
(d) | If, and to the extent that, the Dispute is resolved, the Representatives of the parties to the Dispute must immediately detail their agreement in writing. This document must clearly state which parts of the Dispute are resolved, and the agreed basis for its resolution. |
(e) | If a written agreement is not produced pursuant to clause 22.3(d) in relation to all or part of the Dispute within 10 Business Days after the Dispute Notice has been given, the Dispute, or the part of the Dispute in respect of which there is no written agreement produced, is deemed to be unresolved. |
22.4 | Negotiation by senior management |
(a) | If, 10 Business Days after the Dispute Notice has been given: |
(i) | the meeting required by clause 22.3 has not been held; or |
(ii) | the agreement has not been recorded in accordance with clause 22.3(d); or |
(iii) | the Dispute (or any part of it) is otherwise unresolved, |
(b) | The notice referred to in clause 22.4(a) must: |
(i) | be in writing; |
(ii) | state that it is made pursuant to clause 22.4(a); |
(iii) | annex a copy of the Dispute Notice (and any accompanying documents) given pursuant to clause 22.2 together with any documents which the Referring Party considers would further assist senior management in resolving the Dispute; |
(iv) | if part of the Dispute has been resolved, annex a copy of the document prepared pursuant to clause 22.3(d); and |
(v) | be given no later than 5 Business Days after the Dispute Notice has been given. |
(c) | Within 20 Business Days of the Referring Party giving notice pursuant to clause 22.4(a), senior management representatives (SMR) from each of the parties |
(d) | The SMRs may meet more than once within the period referred to in clause 22.4(c) to resolve any Dispute. The SMRs may meet in person, via telephone, videoconference, internet-based instant messaging or any other means of instantaneous communication. |
(e) | Each party to the Dispute must ensure that their SMR: |
(i) | has full authority to resolve the Dispute; and |
(ii) | makes a genuine effort to resolve the Dispute. |
(f) | The outcome of the SMR meeting must be reduced to writing and signed by the SMR for both parties to the Dispute (SMR Outcome Document). The SMR Outcome Document must clearly state in respect of the Dispute or any part of the Dispute whether it is resolved or unresolved (clearly stating if the Dispute is only partly resolved, which part is resolved, and which part remains unresolved). |
(g) | If: |
(i) | an SMR Outcome Document: |
(A) | is not produced or is not produced within whichever is the later to occur of: |
(I) | 20 Business Days of the notice being given pursuant to clause 22.4(a); or |
(II) | 35 Business Days of the Dispute Notice being given; or |
(B) | states that the Dispute (or any part of the Dispute) is unresolved; or |
(C) | is silent in respect of any part of the Dispute which was unresolved after the meeting held pursuant to clause 22.3(a); or |
(ii) | the Dispute or any part of the Dispute is otherwise unresolved within 35 Business Days of the Dispute Notice being given, |
22.5 | Arbitration |
22.6 | Continuance of performance |
22.7 | Summary or urgent relief |
23. | TERMINATION |
23.1 | Term |
(a) | terminated by the agreement of all parties; |
(b) | there is only one Venturer; |
(c) | there are no further Objects of the Joint Venture to pursue; or |
(d) | none of the Venturers has any further rights to develop or produce Mineral Products from the JV Area, |
23.2 | Realisation of property |
(a) | (on behalf of, and as agent for, each Venturer) realise all property (including Joint Venture Intellectual Property) held for the purposes of this document or the Joint Venture or both; |
(b) | rehabilitate the Tenements (if required); |
(c) | complete the winding up of the Joint Venture; and |
(d) | distribute the net proceeds of the realisation referred to in clause 23.2(a) to each Venturer in proportion to that Venturer's Participating Interest. |
23.3 | Survival of claims and obligations |
23.4 | Perpetuity period |
(a) | the then holder of it; or |
(b) | the person with the most immediate entitlement to it (as tenants in common if more than one of them), |
24. | CONFIDENTIALITY |
(a) | the disclosure is expressly permitted by this document; |
(b) | the other Venturers consent to the disclosure; |
(c) | the information is already in the public domain, unless it entered the public domain because of a breach of confidentiality by the Venturer; |
(d) | the disclosure is made on a confidential basis to the Venturer's or any of its Affiliates, officers, employees, agents, financiers or professional advisers, and is necessary for the business of the Venturer or its Affiliates; |
(e) | the disclosure is necessary to comply with any applicable law, or an order of a court or tribunal or the rules of any stock exchange; |
(f) | the disclosure is necessary to comply with a directive or request of any Government Agency or stock exchange (whether or not having the force of law) so long as a responsible person in a similar position would comply; |
(g) | the disclosure is necessary or desirable to obtain an Authorisation from any Government Agency or stock exchange; |
(h) | the disclosure is necessary or desirable in relation to any discovery of documents, or any proceedings before a court, tribunal, other Government Agency or stock exchange; or |
(i) | the disclosure is made on a confidential basis to a prospective Assignee or financier of the Venturer's Participating Interest, or to any other person approved by the Joint Venture Committee who: |
(i) | proposes to enter into contractual relations with the Venturer; and |
(ii) | agrees to keep the disclosure confidential in accordance with this clause. |
25. | ENCUMBRANCES |
25.1 | Dealings requiring Venturers' consent |
(a) | rights under this document; |
(b) | Participating Interest; or |
(c) | rights to take its Share of Production, |
25.2 | Permitted Encumbrances |
(a) | the amount secured by each Encumbrance is for: |
(i) | financing the performance of that Venturer's obligations under this document; or |
(ii) | risk management of forward sales of Mineral Products; or |
(iii) | financing any other activities of the Venturer or a related corporation of the Venturer. |
(b) | each Encumbrance expressly provides that: |
(i) | each Encumbrancee will not seek partition of or foreclosure of jointly owned property in which the party granting the Encumbrance has an interest; |
(ii) | the Cross Charge takes priority over it; and |
(iii) | each person exercising a power of sale or enforcing other rights arising under this document or conferred by law or by the document creating the Encumbrance must: |
(A) | comply with clauses 26.2 to 26.7 (inclusive) as if it were a party to this document; |
(B) | obtain the covenants required by clause 25.3 from the purchaser of the Participating Interest; and |
(C) | cause that purchaser to comply with clause 26.8; |
(c) | the rights of each Encumbrancee on the exercise of the power of sale or the enforcement of other rights conferred by law or by the document creating the Encumbrance are made expressly subject to this document; and |
(d) | the Encumbrance operates as a fixed charge to no greater extent than the Cross Charge. |
25.3 | Deed of covenant to be executed |
(a) | executes concurrently with the execution of the document evidencing the Encumbrance a deed of covenant which must be substantially in the form set out in Schedule 4; |
(b) | will then be bound by this document; and |
(c) | expressly acknowledges that its charge ranks behind the security granted in the Cross Charge. |
25.4 | Notice of proposed Permitted Encumbrance |
(a) | at least 15 Business Days' notice of its intention to create that Encumbrance; and |
(b) | a copy of the instrument intended to create that Encumbrance (including the name and address of the proposed Encumbrancee), |
25.5 | Objection to proposed Permitted Encumbrance |
25.6 | Set off by Venturer purchasing under Encumbrance |
(a) | change the terms (including the repayment date) of any account or other payment obligation between the Venturers; |
(b) | convert amounts into different currencies in accordance with that Venturer's usual practice; and |
(c) | do anything (including execute any document) in the name of the Encumbrancee which that Venturer considers necessary or desirable. |
25.7 | Application of surplus |
(a) | first in payment of the Encumbrancee's expenses of sale; |
(b) | then in payment to discharge the encumbering Venturer's obligations to the Encumbrancee; and |
(c) | then in payment to the encumbering Venturer. |
25.8 | Encumbrancee's rights |
(a) | receive all statements, notices and reports that a Venturer is entitled to receive; and |
(b) | appoint and remove a representative on the Joint Venture Committee in place of the representative of that Venturer, |
26. | ASSIGNMENT AND AMENDMENT |
26.1 | Assignment to related corporations |
(a) | that related corporation agrees in writing with the other Venturers to reassign the Participating Interest to the Assignor if for any reason the Assignee ceases to be a related corporation of the Assignor; |
(b) | the Assignor agrees with the other Venturers to accept the reassignment; and |
(c) | the Assignment does not result in any person having a Participating Interest of less than that permitted in accordance with clause 15.3. |
26.2 | Assignment to others |
(a) | relates only to the Assignment Interest and on the basis that acceptance must be for all the Assignment Interest offered; |
(b) | is for cash and not for any other consideration; |
(c) | is subject to the condition precedent that all necessary Authorisations from Government Agencies will be obtained; |
(d) | would not result, if accepted, in any person having a Participating Interest of less than that permitted in accordance with clause 15.3; and |
(e) | is not accepted by a Continuing Venturer within the time prescribed for acceptance by a Continuing Venturer by clause 26.7. |
26.3 | Restrictions on Venturer's entitlement to Assign |
26.4 | Notice of offer |
(a) | if it is a Founding Venturer, must notify only the other Founding Venturer (and not any other Continuing Venturer); or |
(b) | if it is not a Founding Venturer or if it is a Founding Venturer but clause 26.6(b) applies, it must notify all the Continuing Venturers (including, as applicable, the other Founding Venturer), |
26.5 | Offer to Founding Venturer |
(a) | clause 26.4(a) applies, the notice given under that clause constitutes an offer by the Selling Venturer to sell the Assignment Interest to the other Founding Venturer at the price and subject to the terms of the offer referred to in clause 26.2, and is open for acceptance for a period of 60 Business Days after the date the notice under clause 26.4(a) is given; |
(b) | the Founding Venturer referred to in paragraph 26.5(a) does not accept that offer in relation to all the Assignment Interest offered by notice within the period specified in clause 26.5(a), then the Selling Venturer must give notice of the offer referred to in clause 26.2 in accordance with clause 26.4(b). |
26.6 | Notice constitutes offer |
(a) | a Selling Venturer gives notice under clause 26.4(b) or 26.5(b), that notice constitutes an offer by the Selling Venturer to sell the Assignment Interest to the Continuing Venturers at the price and subject to the terms of the offer referred to in clause 26.2; |
(b) | there is more than one Continuing Venturer, the Selling Venturer must offer the Assignment Interest to each Continuing Venturer; and |
(c) | more than one Continuing Venturer accepts the offer, they will purchase all the Assignment Interest offered in the proportions that their respective Participating Interests bear to each other (or in any other proportions they agree). |
26.7 | Duration of offer |
26.8 | Conditions of Assignment |
(a) | the Assignee entering into a deed, substantially in the form set out in Schedule 6; |
(b) | unless the Assignee has already given a Cross Charge under clause 11.1, the Assignee: |
(i) | executing and giving all Continuing Venturers a Cross Charge; |
(ii) | ensuring that the Cross Charge is registered (and not just provisionally) under the Companies Act; |
(iii) | ensuring that the Cross Charge is registered in any other places which a Continuing Venturer notifies to the Assignee if any Continuing Venturer is reasonably satisfied that registration is necessary or desirable to perfect the Cross Charge or to protect the rights of any Continuing Venturer under the Cross Charge; |
(iv) | obtaining all necessary Authorisations in relation to the Cross Charge and lodging them for registration in each jurisdiction required to perfect the Cross Charge; |
(v) | ensuring that the Cross Charge is stamped for the proper amount in each jurisdiction in which the cross charge is required to be stamped; |
(vi) | doing everything necessary in each jurisdiction required to perfect the Cross Charge; and |
(c) | obtaining the consent of all Continuing Venturers (not to be unreasonably withheld or delayed); and |
(d) | the Assignment being to a person who is, in each Continuing Venturer's reasonable opinion, financially responsible and technically competent. |
26.9 | Exceptions |
(a) | constituted in an Encumbrance created in accordance with clauses 25.1 and 25.2; or |
(b) | made in accordance with clause 17.5(e). |
26.10 | Amendment |
27. | NOTICES |
27.1 | How to give a notice |
(a) | in writing, signed by or on behalf of the person giving it; |
(b) | addressed to the person to whom it is to be given; and |
(c) | either: |
(i) | delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person's address; or |
(ii) | sent by fax to that person's fax number and the machine from which it is sent produces a report that states that it was sent in full. |
27.2 | When a notice is given |
(a) | if it is delivered or sent by fax: |
(i) | by 5.00 pm (local time in the place of receipt) on a Business Day - on that day; or |
(ii) | after 5.00 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day - on the next Business Day; and |
(b) | if it is sent by mail: |
(i) | within Papua New Guinea - 3 Business Days after posting; or |
(ii) | to or from a place outside Papua New Guinea - 7 Business Days after posting. |
27.3 | Address for notices |
Address: | Level 2, 189 Coronation Drive, Milton, Brisbane, Queensland, Australia |
Address: | Level 2, 189 Coronation Drive, Milton, Brisbane, Queensland, Australia |
28. | GENERAL |
28.1 | Governing law |
(a) | This document is governed by the law in force in Papua New Guinea. |
(b) | Each Venturer submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Papua New Guinea, and any court that may hear appeals from any of those courts, for any proceedings in connection with this document, and waives any right it might have to claim that those courts are an inconvenient forum. |
(c) | To the extent that any of the Venturers has or in the future acquires any immunity from the jurisdiction of any court or from any legal process (whether through suit, service of notice, attachment before judgment, attachment in aid of execution, any other enforcement or otherwise) with respect to itself or its property, each Venturer irrevocably waives that immunity in respect of its obligations under this document or otherwise in respect of the joint venture. |
28.2 | Expenses and Stamp Duty |
28.3 | Giving effect to this document |
(a) | give full effect to this document; and |
(b) | better secure the payment of all Called Sums and amounts due and payable to each Venturer under this document. |
28.4 | Waiver of rights |
(a) | no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; |
(b) | a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and |
(c) | the exercise of a right does not prevent any further exercise of that right or of any other right. |
28.5 | Operation of this document |
(a) | This document and the Transaction Documents contain the entire agreement between the Venturers about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect. |
(b) | Any right or remedy that a person may have under this document is in addition to, and does not replace or limit, any other right or remedy that the person may have. |
(c) | Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document. |
(d) | Without limiting clause 28.5(a) to (c), clauses 1 (Interpretation), 4.3 (Venturer's liability), 8 (Intellectual Property and Information), 10 (Rehabilitation), 23.3 (Survival of claims and obligations), 24 (Confidentiality), and this clause 28 (General) remain in full force and continue to bind each Venturer despite any transaction or other thing (including the expiry or termination of this document or a Venturer ceasing to be a Venturer). |
28.6 | Operation of indemnities |
(a) | Each indemnity in this document survives the expiry or termination of this document. |
(b) | A person may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given. |
28.7 | Consents |
(a) | agree or consent, or not agree or consent, in its absolute discretion; and |
(b) | agree or consent subject to conditions, |
28.8 | Statements |
28.9 | No merger |
28.10 | Exclusion of contrary legislation |
28.11 | Inconsistencies |
(a) | If this document is inconsistent with any other document or agreement between the Venturers, this document prevails to the extent of the inconsistency, unless the inconsistency is with the Master Purchase and Farmin Agreement in which case the Master Purchase and Farmin Agreement prevails to the extent of the inconsistency. |
(b) | If a schedule or annexure to this document is inconsistent with any provision of this document, the provision prevails to the extent of the inconsistency. |
28.12 | Counterparts |
28.13 | Attorneys |
Asset | Description |
Buildings | |
50044 | CONSTR. BEDS,LATCHS, |
50045 | CONSTRUCT SHOWER /LA |
50046 | 3X1500 GAL RAIN WATE |
50047 | MESS BUILDING, VERAN |
50048 | CONTRUCT 30MT * 12 M |
50049 | MESS,CLINIC,1000 GAL |
50050 | FENCE FOR CORE AREA |
50051 | 1X2000 GAL RAIN WATE |
50052 | MESS EXT. (KIT HOUSE |
50053 | WAREHOUSE |
50054 | LC HOUSE # 1 |
50055 | LC HOUSE # 2 |
50056 | JUNIOR ACCOM/CONTAIN |
50057 | JUNIOR ACCOM/CONTAIN |
50058 | SENIOR ACCOM/CONTAIN |
50059 | ABLUTION BLOCK/CONTA |
50066 | KITCHEN UNIT |
50074 | GENERATOR SHED-DEMAK |
C001 | DEMAKWA WAREHOUSE FI |
C011 | DEMAKWA LIVING QUART |
C021 | PREFABRICATED 8 MEN |
Plant Machinery & Equipment | |
C027 | HOSHIZAKI 240KG SELF |
50000 | WASHING MACH SPEED Q |
50001 | TOSHIBA COLOUR TV 29 |
50002 | CORE SPLITTER 5 TIER |
50003 | CORE SPLITTER 5 TIER |
50004 | CHEST FREEZER 700 LT |
50005 | COMPUTER NIU LOGIC |
50006 | COMPUTER NIU LOGIC |
50007 | COMPUTER NIU LOGIC S |
Asset | Description |
50008 | COMPUTER NIU LOGIC S |
50009 | PRINTER HP 4200N |
50010 | DIGIT COPIER KONICA |
50011 | COMPUT SVR NIU LOGIC |
50012 | FILING CABINET 4 DRA |
50013 | FILING CABINET 2 DRA |
50014 | FILING CABINET 2 DRA |
50015 | FILING CABINET 4 DRA |
50016 | PROVIEW 17" MONITOR |
50017 | HP DESIGNJET 800 PLO |
50018 | CHEST FREEZER 360LTR |
50019 | PALLET JACK |
50020 | REFRIGERATOR |
50021 | REFRIGERATOR |
50022 | GLOBAL POSITIONING S |
50023 | IRIDIUM PHONE #1 |
50024 | IRIDIUM PHONE #2 |
50025 | IRIDIUM PHONE #3 |
50026 | IRIDIUM PHONE #4 |
50029 | AIR CONDITIONER LG 9 |
50030 | AIR CONDITIONER LG 7 |
50031 | GENERATOR SET -56DGC |
50032 | ELECTRIC MOTOR D905- |
50033 | AIRCOND RAC KELON 12 |
50034 | AIRCOND RAC KELON 12 |
50035 | UV LIGHT SYSTEM |
50036 | 60-250L RAPID FLOW P |
50037 | GENERATOR SET 0.8 KV |
50038 | GENERATOR SET 0.8 KV |
50039 | PERKINS GENSET CAE P |
50040 | FG WILSON OPEN GENSE |
50041 | HONDA 5.8 KVA GENSET |
50042 | CEMENT MIXER |
50060 | SKID MOUNT TANK (1) |
50061 | SKID MOUNT TANK (2) |
50062 | CAT D6 H BULLDOZER |
50063 | LG 7000 AIRCONDITION |
50064 | LG 7000 AIRCONDITION |
50065 | LG 7000 AIRCONDITION |
50067 | DEMAKWA POWER INSTAL |
50068 | IRIDIUM PHONE #5 |
50069 | IRIDIUM PHONE #6 |
50070 | GM3189 MIDBAND BASE |
C003 | FLOW METER 51008 3 D |
C004 | 2 TON PALLET JACK |
C006 | ZANUSSI GAS STOVE 4 |
C007 | PANAFAX UF-490 FAX M |
Asset | Description |
C012 | AL-D610 - DELL LATIT |
C013 | NITON XRF ANALYSER |
C014 | WAFI SERVER UPGRADE |
C015 | WASHING MACHINE & DR |
C016 | RITA 24" METAL EXHAU |
C018 | PRIMAVERA PROJECT PL |
C019 | ELECTRONIC BALANCE |
C020 | FOGGING MACHINE |
C022 | 300KG HANGING SCALES |
C024 | STIHL FS65E-E BRUSH |
C025 | 2 X KUBOTA 3 KVA GEN |
C026 | ONEX CUMMINS C7005 7 |
C029 | BABWAF FLY CAMP WHIT |
C031 | 1x20' FREEZER REEFER |
CWFEA00 | 1 PACKER TESTING EQUIP |
CWFEA00 | 2 STREAM GAUGING STATI |
CWFEA00 | 3 WAFI GOLPU FLY CAMP |
Land Improvements | |
50071 | FENCING - DEMAKWA YA |
50072 | WAFI ACCESS ROAD-ABE |
50073 | YARD IMPROVEMENT-DEM |
C009 | WAFI ACCESS ROAD-HAR |
Motor Vehicles | |
C002 | New Holland 4WD Trac |
C023 | TOYOTA LAND CRUISER |
C028.19 | 7 MITSUBISHI CANTER 4X |
New Holland 4WD Trac | |
Office Equipment | |
C032 | DELL LATITUDE D620 L |
C017 | COMMUNICATION UPGRAD |
No. Dataroom Reference | Description | Entity | Third Party | |
12.02.05.001 | Record of Loan Repayments | Wafi | Rio Tinto Limited | |
12.02.05.002 (12.02.10.003) (12.04.05.001) | Deed of Assignment of Wafi Debts | Rio Tinto Limited Aurora Gold (Wafi) Pty Ltd | ||
12.01.06.007 | Agreement for the Provision of Personal Protective Equipment | MCG Wafi | Bishop Brothers Engineering Pty Ltd | |
12.03.05.009 | Intercreditor Agreement | MCG | Harmony Gold Mining Limited Harmony Gold (PNG Services) Pty Limited HGM(Isle of Man) Pty Ltd Westpac Banking Corporation Westpac Bank PNG Limited | |
12.01.07.010 | Supply of Domestic and International Air Travel and Accommodation Services | Wafi | Corporate Travel Management Harmony Gold (PNG Services) Pty Limited Harmony Gold Operations | |
12.02.07.002 | Consulting Services Agreement with Tim Omundsen | Wafi | Tim Omundsen | |
12.02.07.003 (12.02.10.025) | Agreement to Supply Earth Moving Equipment | Wafi | Cameron construction Limited | |
12.01.07.014 | Award for Workwear – Morobe and Wafi | MCG Wafi | FRG Clothing Ltd | |
12.01.07.028 | Air Charter Award | MCG Wafi | Airlines PNG | |
12.01.10.007 | Agreement to Engage Firm for Tax Services | MCG Wafi | PriceWaterhouseCoopers | |
12.02.10.001 | Letter of Undertaking | Wafi | Aurora Gold Ltd Rio Tinto Limited | |
12.02.10.004 (12.02.10.031) (12.04.10.002) | Wafi Share Sale Agreement and Consent Agreement | Wafi | Rio Tinto Minerals (PNG) Limited Aurora Gold (Wafi) Pty Ltd Rio Tinto Exploration Pty Limited Aurora Gold Ltd Abelle Limited | |
12.02.10.005 | Power of Attorney 2 September 2002 | Wafi | Rio Tinto Limited | |
12.02.10.006 | Wafi Farmout and Joint Venture Agreement | Wafi | CRA Exploration Pty Limited | |
12.02.10.007 | Data Agreement 8 September | Wafi | CRA Exploration Pty Limited | |
12.02.10.017 (12.01.18.003) | Corporate Advisory Role – PNG Royalties | Wafi MCG | Standard Bank Plc | |
12.02.10.023 | Formal Instrument of Agreement | WafiMCG | Richard Jackson Harmony PNG Central Services | |
12.02.10.024 (12.03.07.001) | Logistic Services Agreement | MCG Wafi | Toll North Pty Ltd Harmony Gold (PNG Services) Pty Limited | |
12.02.10.028 | Award of Contract HT 1091 Survey Contract | Wafi | Kuumsup Exploration Corporation | |
12.02.10.029 | Award of Contract HT 1092 EM Survey Contract | Wafi | Kuumsup Exploration Corporation | |
12.02.18.001 | Royalty Deed 26 June 2003 | Wafi | Rio Tinto Limited Abelle Limited | |
12.02.19.001 | Land Access and Compensation Agreement 20 December 1996 EL 440 | Wafi | CRA Exploration (PNG) Pty Ltd The Land holders of the Hengambu and Yanta Clans | |
12.02.19.002 | Compensation Review Agreement 20 December 2000 EL 440 | Wafi | Rio Tinto Exploration (PNG) Limited The Land holders of the Hangambu and Yanta Clans | |
12.02.07 004 | Agreement Assisting in Providing Community Transport Services | Wafi | Yanta Development Association Incorporated and Hengambu Landowners Association Incorporated | |
1. | GENERAL |
1.1 | Definitions |
1.2 | Joint Venture Agreement definitions |
1.3 | Rules for interpreting this schedule |
(a) | All rules for interpreting the Joint Venture Agreement apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply. |
(b) | All references to sections are references to sections in this document. |
(c) | All references to clauses are references to clauses in the Joint Venture Agreement. |
(d) | If anything in this document is inconsistent with any established accounting practice or principle prevailing in the mining industry in Australia, Papua New Guinea and South Africa, the practice or principle prevails to the extent of the inconsistency. |
2. | FINANCIAL MATTERS |
2.1 | Joint Account |
(a) | charges and credits made by the Operator or any Venturer conducting operations under the Joint Venture Agreement that are chargeable to the Venturer |
(b) | funds received by the Operator from any Venturer; and |
(c) | receipts obtained by the Operator in connection with operations conducted under the Joint Venture Agreement. |
2.2 | Statements and billings |
(a) | the matters specified in clause 12.3; and |
(b) | details in relation to that month concerning: |
(i) | charges and credits to the Joint Account summarised by appropriate classifications indicating the nature of those charges and credits; and |
(ii) | any other charges and credits. |
2.3 | Payments by Venturers |
2.4 | Adjustments |
(a) | If a Venturer pays an amount specified in a Statement, that payment does not prejudice its right to protest or question the correctness of all or any part of the Statement. |
(b) | A Statement sent by the Operator on any matter relating to this document or the Joint Venture Agreement (including amounts owing) will be conclusive unless: |
(i) | an exception specified in section 2.4(c) or section 2.6(a) applies; or |
(ii) | a Venturer: |
(A) | gives the Operator notice of its opinion within 12 months after the end of month in which that Statement is sent; and |
(B) | requests the Operator to make an adjustment to that Statement. |
(c) | Adjustments resulting from: |
(i) | a physical stocktake of Joint Venture Property in accordance with section 7; or |
(ii) | the discovery by a Venturer of the Operator's Wilful Misconduct or manifest error, |
2.5 | Audits |
(a) | The Joint Venture Committee must appoint an Auditor to conduct an Audit at least once every financial year or at any other intervals the Joint Venture Committee decides. |
(b) | An Audit must be limited to 2 financial years of the Joint Venture ending on the last day of the most recent complete financial year. |
(c) | A Venturer may, at its own expense, cause an Audit to be conducted by notifying the Operator at least 20 Business Days before the commencement of the Audit. |
(d) | If more than one Venturer requires an Audit, each Venturer requiring the Audit must make every reasonable effort to conduct joint or simultaneous Audits that will cause the Operator minimum inconvenience. |
(e) | If a material discrepancy is disclosed by an Audit, the Operator must charge the expense of that Audit to the Joint Account. |
2.6 | Claims |
(a) | A Venturer may protest or question the correctness of, or make a claim on the Operator for, any discrepancy or irregularity disclosed by an Audit within 6 months after completion of that Audit. |
(b) | An Audit will be regarded as complete when a copy of the Auditor's report is delivered to each Venturer. |
3. | DEVELOPMENT AND OPERATING CHARGES |
3.1 | Charges to Joint Account |
(a) | have been or are to be incurred in accordance with an Operating Program and a Budget; or |
(b) | are otherwise authorised by the Joint Venture Agreement. |
3.2 | Tenement costs |
(a) | Rentals, rates, compensation and all other costs relating to the Tenements. |
(b) | Royalties relating to Mineral Products produced. |
(c) | Any charge, fee, payment or other consideration payable in relation to any Authorisation required for the purposes of the Joint Venture Agreement or the Joint Venture or both. |
3.3 | Labour |
(a) | Salaries and wages of employees and amounts to or on account of consultants of a Venturer or the Operator who are directly engaged on any Operating Program (including salaries and wages paid to employees and amounts to or on account of consultants who are temporarily assigned to, and directly employed in, any Operating Program.) |
(b) | Salaries and wages of employees and amounts to or on account of consultants of a Venturer or the Operator who the Operator uses to perform or supervise operations under the Joint Venture Agreement and whose time is not charged to the Joint Venture/who are not engaged in operations under the Joint Venture Agreement full time, must be charged proportionately to the time actually devoted to those operations. |
(c) | Reasonable travelling and living expenses of employees and consultants referred to in sections 3.3(a) and (b) when occupied with operations under the Joint Venture Agreement away from their usual place of employment. |
(d) | Holiday leave, long service leave, workers' compensation, sickness and disability benefits, and other customary allowances applicable to: |
(i) | the salaries and wages chargeable under sections 3.3(a) and (b); or |
(ii) | the engagement of consultants in accordance with those paragraphs. |
(e) | Costs imposed by any Government Agency that apply to the salaries, wages and other amounts charged under paragraphs (a) and (b) (including salaries and wages tax, fringe benefits tax and superannuation guarantee charge). |
(f) | All costs incurred by the Operator in the performance of its duties under the Joint Venture Agreement that are: |
(i) | of an overhead nature; and |
(ii) | not referred to in sections 3.3(a) to (e) or section 3.4, |
3.4 | Employee benefits |
(a) | The Operator's actual cost of employees' field allowances, bonuses, travelling and living expenses, group life insurance, medical, superannuation, retirement and other benefits of a similar nature. |
(b) | Costs imposed by any Government Agency that apply to matters charged under paragraph (a) (including fringe benefits tax and similar Taxes). |
3.5 | Materials |
(a) | Materials, equipment and supplies hired, leased or purchased or supplied by the Operator or any of the Venturers for the purposes of the Joint Venture Agreement or the Joint Venture or both (including surface, underground and shaft equipment, expendable stores and materials, power, water and tools). |
(b) | Costs chargeable under section 3.5(a) include costs of installation, loading, unloading and handling. |
(c) | The Operator must: |
(i) | only acquire quantities of materials that are required for immediate use for the Joint Venture; and |
(ii) | avoid the accumulation of surplus stocks, |
3.6 | Transportation |
(a) | Transportation costs of or in relation to personnel, equipment, material and supplies necessary for conducting any Operating Program, including the costs of: |
(i) | repairs and maintenance of vehicles; |
(ii) | vehicles purchased, rented or otherwise obtained for or in connection with operations under the Joint Venture Agreement; and |
(iii) | transportation of personnel from their residence to the JV Area. |
(b) | If transportation referred to in section 3.6(a) is used partly for the purposes of the Joint Venture and partly for other purposes, the cost of transportation must be rateably apportioned according to usage between the Joint Venture and those other purposes. |
3.7 | Services |
(a) | The cost of services obtained from third parties. These costs include the cost of Audits and amounts paid to or on account of contractors for or in connection with: |
(i) | earthmoving; |
(ii) | surveying; |
(iii) | construction of Joint Venture Facilities; |
(iv) | trucking; |
(v) | mapping and photography; |
(vi) | chartered aircraft (including helicopters); |
(vii) | blasting, drilling and dredging; |
(viii) | shaft sinking; |
(ix) | mining (including site preparation, underground development, open pit development, cutting and drifting, raising and stoping); |
(x) | assaying and analysis of samples; |
(xi) | processing; |
(xii) | geophysics; |
(xiii) | metallurgical testing; |
(xiv) | water searching and production; |
(xv) | food, messing and accommodation; |
(xvi) | the provision of water, electricity (including power station management costs) and gas; |
(xvii) | security services; |
(xviii) | technical services; and |
(xix) | other services, if any, |
(b) | The cost of using the Operator's exclusively owned equipment and facilities in accordance with section 4.4. |
3.8 | Damages and losses to Joint Venture Property and equipment |
(a) | All costs necessary to replace or repair damage or loss to Joint Venture Property and equipment caused by fire, flood, storm, theft, accident or any other cause. |
(b) | The Operator must give each Venturer notice of damage or loss to Joint Venture Property and equipment incurred as soon as practical after the Operator learns of it but only if the damage or loss exceeds $10,000. |
3.9 | Legal costs |
(a) | solicitors' and barristers' fees and expenses; |
(b) | judgments obtained against a Venturer on account of operations under the Joint Venture Agreement in the conduct of those operations); and |
(c) | all costs incurred by a Venturer in securing evidence for defending against any action or claim prosecuted or threatened against the Joint Venture, Joint Venture Property or the subject matter of the Joint Venture Agreement. |
3.10 | Taxes and agency fees |
(a) | Taxes paid by the Operator for the benefit of the Venturers (including excise, customs and other duties, goods and services tax, salaries and wages tax, fringe benefits tax and other charges of a similar nature); and |
(b) | agency fees payable on or in relation to services contracted and materials purchased for or in connection with operations under the Joint Venture Agreement, |
(c) | but excluding Taxes assessed in connection with the ownership and sale of Mineral Products after production and allocation to Venturers. |
3.11 | Insurance and claims |
(a) | Premiums paid for insurance in accordance with the Joint Venture Agreement and all expenditure incurred and paid in settlement of losses, claims, damages or judgments not recovered from an insurer and not excepted in section 3.9. |
(b) | If no insurance is required, all actual expenditure incurred and paid by the Operator in settlement of all losses, claims, damages or judgments not excepted in section 3.9. |
(c) | The Operator must receive the following for the Joint Account: |
(i) | any payment made by an insurer in settlement of a claim made under an insurance policy carried for the benefit of the Joint Venture; and |
(ii) | any award of an arbitrator or court arising out of a claim. |
3.12 | Shared services |
(a) | A proportion of: |
(i) | the salaries, wages, fees and expenses of the Operator's employees and consultants serving the Joint Venture whose time is not allocated directly to the Joint Venture, based on the time spent on operations under the Joint Venture Agreement in the JV Area; |
(ii) | the cost of establishing, maintaining and operating: |
(A) | a production office in the JV Area; and |
(B) | any necessary suboffice maintained in connection with that office, and |
(iii) | all necessary camps (including housing facilities for employees and consultants if required), roads, helipads and airstrips established to facilitate the conduct of operations under the Joint Venture Agreement in the JV Area. |
(b) | The cost of the facilities referred to in section 3.12(a) is to be calculated by: |
(i) | deducting revenue from those facilities; and |
(ii) | including depreciation or a fair monthly rental in lieu of depreciation where those facilities serve more than one project. |
(c) | Charges must be apportioned to each project served on an equitable basis consistent with the Operator's accounting practice but subject to section 1.3(d). |
(d) | Costs charged under this section include the cost of: |
(i) | office supplies, telephone, email and facsimile charges and other operating costs of the production office referred to in section 3.12(a); and |
(ii) | shared transport costs including chartered aircraft and helicopters; and |
(iii) | construction, maintenance and operation of stores, machine shops and other facilities. |
3.13 | Depreciation |
(a) | In relation to plant and equipment actually owned by the Operator and used for the purposes of the Joint Venture, depreciation at rates: |
(i) | in accordance with the Operator's usual practice; and |
(ii) | consistent with what is permitted under the Income Tax Act 1959 (as amended), jointly, as applicable, |
(iii) | any item whose cost has been charged under any other section of this document); and |
(iv) | the amount of any depreciation charged under section 3.12; and |
(v) | the amount of any depreciation charged under sections 4.4(a)(ii) and 4.4(a)(iii). |
(b) | If an item is used partly for the purposes of the Joint Venture and partly for other purposes, the depreciation charged must be rateably apportioned according to usage between the Joint Venture and those other purposes. |
(c) | If the Operator receives rent for a depreciable item, depreciation cannot be charged under this subsection. |
3.14 | Rehabilitation costs |
(a) | Any amounts the Operator reasonably estimates (by applying prudent accounting principles) are required to make provision for estimated rehabilitation costs arising due to operations under the Joint Venture Agreement in the JV Area. |
(b) | The Venturers authorise the Operator to pay those amounts as and when they arise using capital and accrued interest in that sinking fund. |
3.15 | Capital usage charges |
(a) | rent or hire charge for that property or other capital item; or |
(b) | the net cost (based, where appropriate, on the cost of borrowings equivalent to the cost price of that property or other capital item) to the Operator or that Venturer of acquiring and managing that property or capital item, after taking into account: |
(i) | any receipts received from third parties; and |
(ii) | any outgoings together with administration costs incurred by that Venturer (including overheads). |
3.16 | Cost of securities |
(a) | borrowings equivalent to the amount of the security deposit; or |
(b) | any other expenses of providing that security deposit, bond or other security. |
3.17 | Other expenses |
4. | BASIS OF CHARGES TO THE JOINT ACCOUNT |
4.1 | Purchases |
(a) | Services obtained by the Operator for the Joint Venture must be charged at the price actually paid by the Operator after deducting all discounts actually received. |
(b) | Materials, equipment and supplies purchased or supplied by the Operator for the Joint Venture must be charged on the basis of Cost. |
(c) | (Class A) for imported materials, equipment and supplies, Cost includes: |
(i) | net invoice prices of manufacturers (after deducting all trade and cash discounts actually received) plus goods and services and other Taxes (if any), fees or costs paid to third parties for purchasing, shipping, insurance premiums, transportation to the loading place, crating and handling costs; |
(ii) | transportation to port of entry, customs fees and similar importation costs; |
(iii) | any other applicable duties; and |
(iv) | unloading of ships and aeroplanes to the customs warehouse and handling transportation from the customs warehouse to the Operator's warehouse or the JV Area; and |
(d) | (Class B) for materials, equipment and supplies acquired in Papua New Guinea, Cost includes: |
(i) | the net invoice price of manufacturers (after deducting all trade and cash discounts actually received) plus goods and services and other Taxes (if any); and |
(ii) | transportation and other costs incurred from the time and place of purchase until delivery to the Operator's warehouse or the JV Area. |
4.2 | Prices |
(a) | new materials: at Cost (condition "A"); |
(b) | second hand and used materials: (conditions "B" and "C"); |
(i) | material that is in sound and serviceable condition and is suitable for reuse without reconditioning is to be classed as condition "B" and priced at 75% of Cost; and |
(ii) | material that cannot be classified as condition "B" but: |
(A) | after reconditioning at the cost of the Joint Account will be serviceable for its original function as good second hand material; or |
(B) | is serviceable for its original function but is substantially unsuitable for reconditioning, |
(c) | material that cannot be classified as condition "B" or condition "C" is to be priced at a value commensurate with its use; and |
(d) | tanks, buildings and other equipment involving erection costs must be charged at "knocked down" cost. |
4.3 | Warranty of materials supplied by the Operator |
4.4 | Operator's exclusively owned equipment and facilities |
(a) | The following rates apply to services rendered to the Joint Venture for equipment and facilities owned exclusively by the Operator: |
(i) | water, fuel, power, compressor and other auxiliary services: at rates equal to the cost of providing them to the Joint Venture; |
(ii) | automotive equipment: at rates equal to the cost of ownership and operation. (Automotive rates may include the cost of fuel, lubricants, repairs, insurances, other operating expenses, depreciation and wages and expenses of drivers other than those chargeable under sections 3.3 and 3.4); |
(iii) | use of other items of machinery or equipment sufficient to cover maintenance, repairs, depreciation and running costs: at a fair rate but the charges must not exceed those currently prevailing in the district where the JV Area is located; and |
(iv) | laboratory services performed or provided by the Operator (including water, core, assay and any other analyses and tests): at a fair rate but the charges must not exceed those currently prevailing among outside service laboratories performing comparable services. |
(b) | The Operator must inform each Venturer in advance of the rates it proposes to charge. |
(c) | Rates must be revised and adjusted when found to be excessive or insufficient. |
5. | DISPOSAL |
5.1 | Operator's rights |
5.2 | Material purchased by a Venturer |
5.3 | Division in kind |
(a) | The division of surplus material in kind must be in proportion to each Venturer's Participating Interest. |
(b) | Each Venturer must be charged severally with the value of the material received or receivable by it. Corresponding credits must be made by the Operator to the Joint Account. |
5.4 | Sales to third parties |
(a) | credit the Joint Account with the net amount received from the purchaser; and |
(b) | charge any claim by the purchaser for defective material or otherwise back to the Joint Account if and when paid. |
6. | PRICING MATERIAL TRANSFERRED |
6.1 | Bases of pricing material |
6.2 | New Material |
6.3 | Good used material |
(a) | at 75% of Cost if that material was charged to the Joint Venture under section 4.2(a) as new; or |
(b) | at 65% of Cost if that material was originally charged to the Joint Venture under section 4.2(b) as second hand at 75% of Cost. |
6.4 | Other used material |
(a) | after reconditioning at the purchaser's cost will be serviceable for its original function as good second hand material; or |
(b) | is serviceable for its original function but is substantially unsuitable for reconditioning, |
6.5 | Bad order material |
6.6 | Junk |
6.7 | Temporarily used material |
7. | STOCKTAKE |
7.1 | Periodic stocktake |
7.2 | Notice to Venturers |
7.3 | Representation of Venturers |
(a) | a Venturer is not represented at a stocktake; and |
(b) | the Operator has given that Venturer notice in accordance with section 7.2, |
7.4 | Copies to Venturers |
7.5 | Reconciliation and adjustment of stock |
(a) | The Operator must: |
(i) | reconcile stock with charges to the Joint Account (including a list of surpluses and shortages) after a stocktake; and |
(ii) | make stock adjustments for surpluses and shortages. |
(b) | The Operator will only be held accountable for shortages due to its Gross Negligence, Wilful Misconduct or manifest error. (Shortages aggregating $5,000 will be considered to be due to lack of reasonable diligence). |
7.6 | Special stocktakes |
(a) | A special stocktake may be taken, at the request and expense of the Assignee, if there is a change of Participating Interest in the Joint Venture or in the Joint Venture Property. |
(b) | The Assignor and the Assignee may be represented at a special stocktake and will be bound by the result of that stocktake except in the case of the Operator's Gross Negligence, Wilful Misconduct or manifest error. |
A | If the Master Purchase and Farmin Agreement is terminated before Newcrest achieves the Farmin Milestone: |
Wafi: | (69.99% minus the applicable aggregate percentage earned by Newcrest in accordance with clause 11.5 of the Master Purchase and Farmin Agreement) of the aggregate which is ($150 million plus Harmony Expenditure in relation to the Wafi-Golpu Project plus Stage 2 Project Expenditure in relation to the Wafi-Golpu Project up to the date of termination of the Master Purchase and Farmin Agreement). |
Newcrest: | (30.01% plus the applicable aggregate percentage earned by Newcrest in accordance with clause 11.5 of the Master Purchase and Farmin Agreement) of the aggregate which is ($150 million plus Harmony Expenditure in relation to the Wafi-Golpu Project plus Stage 2 Project Expenditure in relation to the Wafi-Golpu Project up to the date of termination of the Master Purchase and Farmin Agreement). |
B | If Newcrest achieves or is deemed to have achieved the Farmin Milestone under clause 6.1(c) of the Master Purchase and Farmin Agreement: |
Wafi: | 50% of the aggregate which is ($150 million plus Harmony Expenditure in relation to the Wafi-Golpu Project plus Stage 2 Project Expenditure in relation to the Wafi-Golpu Project). |
Newcrest: | 50% of the aggregate which is ($150 million plus Harmony Expenditure in relation to the Wafi-Golpu Project plus Stage 2 Project Expenditure in relation to the Wafi-Golpu Project). |
1. | CONFIDENTIALITY |
(a) | keep the Confidential Information secret and confidential at all times; |
(b) | not use the Confidential Information except for a Permitted Purpose; |
(c) | not disclose any Confidential Information to anyone except those of your officers, employees, advisers or agents who need to receive that information for the Permitted Purpose, and then only to the extent needed for each such person; and |
(d) | ensure that each person to whom you disclose the information makes the same acknowledgment, and agrees to comply with, and does comply with (a), (b) and (c) above. |
2. | RETURN OF CONFIDENTIAL INFORMATION |
3. | CONTINUING OBLIGATIONS |
4. | INTERPRETATION |
(a) | that body's related corporations; |
(b) | that body's directors; and |
(c) | the person's who have a substantial holding in that body. |
(a) | is in the public domain, otherwise than as a result of a breach of the contents of this letter; or |
(b) | is already known to you prior to the disclosure or which is subsequently known to you as a result of disclosure by another source which was not subject to any agreement for confidentiality. |
(c) | the terms relevant interest and related corporation have the same meaning as given to those terms in the Companies Act 1997 (PNG); and |
(d) | a person has a substantial holding in a body corporate if the total votes attached to the voting shares in the body in which it or its associates have a relevant interest are 5% or more of the total number of votes attached to those shares in the body. |
THE COMMON SEAL of WAFI MINING LIMITED was affixed with authority of the board of directors in the presence of: | ||
Signature of director | Signature of director/secretary | |
/s/ J J van Heerden | /s/ Gregory John Job | |
Name | Name | |
THE COMMON SEAL of NEWCREST PNG 2 LIMITED was affixed with authority of the board of directors in the presence of: | ||
Signature of director | Signature of director/secretary | |
/s/ IK Smith | /s/ GJ Robinson | |
Name | Name | |
THE COMMON SEAL of WAFI-GOLPU SERVICES LIMITED was affixed with authority of the board of directors in the presence of: | ||
Signature of director | Signature of director/secretary | |
/s/ J J van Heerden | /s/ Gergory John Job | |
Name | Name | |