acp joint venture agreement (project general) (full form) sample

Draft No. dated:

Document dated:

(First Participant)

(Second Participant)

and

(Third Participant)

JOINT VENTURE AGREEMENT DN[A1]

ACP Joint Venture Agreement (Project General) (Full Form) i

Contents

1 INTERPRETATION 1

1.1 Capitalised Definitions 1

1.2 Dictionary Definitions

1.3 Interpretational Rules

1.4 Performance

1.5 Accounting Practices

2 project creation

2.1 Joint Venture Participation

2.2 Participant Objectives

2.3 Project Period

2.4 Implementation

2.5 Contractual Relationship

2.6 Trust Parties

3 PROJECT participation

3.1 Participation Interest

3.2 Participation Percentage

3.3 Project Assets

3.4 Project Liability

3.5 Project Profit

3.6 Project Costs

3.7 Participation Restrictions

4 PARTICIPATION COMMITMENT

4.1 Commitment Limitation

4.2 Initial Participation Commitment

4.3 Future Commitment

4.4 Commitment Invitation Terms

4.5 Commitment Allocation

4.6 Commitment Notification

4.7 Participation Liability

5 COMMITMENT PAYMENT

5.1 Commitment Participations

5.2 Commitment Liability

5.3 Conditions Precedent

5.4 Condition Waiver

5.5 Payment Completion

ACP Joint Venture Agreement (Project General) (Full Form) ii

5.6 Completion Action

6 PROJECT COMMITTEE representation

6.1 Project Committee

6.2 Representative Appointment

6.3 Number

6.4 Chairman

6.5 Alternate Representatives

6.6 Committee Meetings

6.7 Meeting Quorum

6.8 Voting

6.9 Representative Remuneration

6.10 Project Companies

7 PROJECT DECISIONS

7.1 Project Management

7.2 Simple Majority Decisions

7.3 Committee Super Majority Decisions

7.4 Participant Unanimous Decisions

8 PROJECT PLANNING

8.1 Project Plan

8.2 Project Budget

8.3 Planning Implementation

9 PROJECT ACCOUNTS

9.1 Management Reporting

9.2 Accounting Records

9.3 Audit Review

9.4 Participant Access

9.5 Audit Committee

9.6 Participant Information

10 PROFIT DISTRIBUTION

10.1 Distribution Policy

10.2 Proportionate Distribution

11 PROJECT MONEYS

11.1 Receipts

11.2 Disbursements

11.3 Operation

12 MANAGEMENT ENGAGEMENT

12.1 Management Services

ACP Joint Venture Agreement (Project General) (Full Form) iii

12.2 Services Specification

13 PARTICIPANT REPRESENTATIONS

13.1 Corporate Representations

13.2 Individual Representations

13.3 Disclaimers

14 PROJECT UNDERTAKINGS

14.1 Positive Undertakings

14.2 Negative Undertakings

15 PARTICIPATION TRANSFER

15.1 Transfer Restriction

15.2 Permitted Transfer

15.3 Security Interest Restriction

15.4 Future Participant Undertaking

15.5 Indemnity

16 VOLUNTARY TRANSFER

16.1 Application

16.2 Transfer Notice

16.3 Notice Contents

16.4 Sale Agency

16.5 Continuing Participant Notification

16.6 Transfer Procedure

16.7 Unrestricted Transfer

17 COMPULSORY TRANSFER

17.1 Compulsory Transfer Event

17.2 Notification

17.3 Sale Agency

17.4 Participation Valuation

17.5 Continuing Participant Notification

17.6 Transfer Procedure

17.7 Directed Transfer

18 MINORITY INTEREST TRANSFER

18.1 Control Threshold

18.2 Transfer Options

18.3 Transfer Option Exercise


18.5 Completion Notification

18.6 Transfer Liability

18.7 Transfer Completion

ACP Joint Venture Agreement (Project General) (Full Form) iv

19 CALL OPTION TRANSFER

19.1 Application

19.2 Majority Call Option

19.3 Call Option Exercise




20 PUT OPTION TRANSFER

20.1 Application

20.2 Minority Put Option

20.3 Transfer Exercise

20.4 Put Option Exercise

20.5 Transfer Procurement


21 PRE-EMPTION PROCEDURE

21.1 Invitation Terms

21.2 Transfer Offers

21.3 Transfer Point Allocation

21.4 Unallocated Point Offers

21.5 Transfer Notification


22 transfer completion

22.1 Continuing Participant Completion

22.2 External Transfer Completion

22.3 Participant Accession

22.4 Manager Agency

22.5 Transfer Completion Action

23 RELATED TRANSFER AGREEMENTS

23.1 Related Agreement Liability

23.2 Participant Loans

23.3 Project Loans

23.4 Project Performance Security

23.5 Project Security Release

24 PARTICIPATION VALUE ASSESSMENT

25 TRANSFER DEFAULT

25.1 Attorney Appointment

25.2 Specific Action

ACP Joint Venture Agreement (Project General) (Full Form) v

25.3 Transfer Proceeds

26 CONFIDENTIALITY

26.1 Confidentiality Liability

26.2 Agency Disclosure

26.3 Agency Compliance

26.4 Permitted Exemptions

26.5 Remedies

27 PUBLICITY

27.1 Promotional Restriction

27.2 Name Restriction

27.3 Restriction Scope

27.4 Promotional Approval

28 PARTICIPANT DEFAULT

28.1 Default Events

28.2 Default Notification

28.3 Participant Default Notice

28.4 Participant Default Enforcement

28.5 Participant Remedies

29 TERMINATION

29.1 Termination

29.2 Termination Effect

29.3 Continuing Remedies

29.4 Project Liquidation

30 DISPUTE RESOLUTION DN

30.1 Disputes

30.2 Dispute Negotiation

30.3 Arbitration DN

30.4 Urgent Relief

30.5 Continued Performance

31 COSTS

32 DUTIES

32.1 Payment

32.2 Indemnity

33 GST

34 ASSIGNMENT

35 NOTICES

35.1 Form

ACP Joint Venture Agreement (Project General) (Full Form) vi

35.2 Service Method

35.3 Receipt

35.4 Service Details

36 GOVERNING LAW AND JURISDICTION

36.1 Governing Law

36.2 Jurisdiction

36.3 Submission

37 GENERAL PROVISION

37.1 Amendments

37.2 Third Parties

37.3 Pre-Contractual Negotiation

37.4 Further Assurance

37.5 Continuing Performance

37.6 Waivers

37.7 Remedies

37.8 Severability

37.9 Counterparts

38 DICTIONARY

ACP Joint Venture Agreement (Project General) (Full Form) 1

JOINT VENTURE AGREEMENT DN[A2]

AGREEMENT dated

PARTIES DN[A3]

1 [ of ] [ ACN a company registered in of ] (First Participant);

2 [ of ] [ ACN a company registered in of ] (Second Participant); and

3 [ of ] [ ACN a company registered in of ] (Third Participant).

RECITALS

A Each party has agreed to participate in an unincorporated joint venture to undertake a project comprising as specified in schedule 1 ( Project Details).

B The parties propose to commit capital moneys and regulate their mutual rights and liabilities as participating parties, as well as the management and business activity of the joint venture project, upon and subject to the provisions of this Agreement.

PROVISIONS

THE PARTIES AGREE:

1 INTERPRETATION

1.1 Capitalised Definitions

Meanings apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires: ...

1.2 Dictionary Definitions

Meanings apply to words and expressions used in this Agreement as specified in clause 38 (Dictionary), unless the context otherwise requires.



Rules of interpretation apply to this Agreement as specified in this provision, unless the context otherwise requires: ...

1.4 Performance

Any action required to be performed under any provision of this Agreement on or before a day which is not a business day must be performed on or before the immediately following business day.

1.5 Accounting Practices

For the purposes of this Agreement, unless otherwise specified:

(a) (financial statements): any decision as to financial matters and any financial statements or accounts made or prepared under this Agreement must comply with general accounting standards, except for any disclosed departure; and

(b) (accounting terms): any accounting term used in this Agreement must be interpreted in compliance with general accounting standards.

2 PROJECT CREATION

2.1 Joint Venture Participation

Each Project Participant must perform and participate in the Joint Venture Project by way of joint venture upon and subject to the provisions of this Agreement.

2.2 Participant Objectives

Each Project Participant creates this Agreement for the purpose of:

(a) (project expertise): enabling the use and availability of its business skills, knowhow, experience and expertise to manage and perform the Project Business;

(b) (decision processes): regulating the decision-making procedures of the Project Business; and

(c) (value enhancement): ensuring that the Project Business is managed to maximise the value of the Project Business.

2.3 Project Period

The Project continues for the Project Period.

2.4 Implementation

Each Project Participant must at any time during the continuance of this Agreement:


(a) (information): provide accurate information to each other Project Participant in relation to any business activity of the Project Business;

(b) (voting): perform, or procure the performance of, any action within its power or control necessary or desirable to perform this Agreement, including casting any vote as a Project Participant and causing any Project Representative appointed or nominated to the Project Committee to implement this Agreement;

(c) (decisions): not unreasonably delay any action, consent or decision required by that Project Participant or its Project Representative under this Agreement; and

(d) (project manager): perform any action within its power and control necessary or desirable to procure the performance of this Agreement by any Project Manager.

2.5 Contractual Relationship

(a) (Independent contractor): Each Project Participant acts in the capacity of an independent contractor, as between that Project Participant and any other Project Party in the performance of this Agreement or any liability under this Agreement.

(b) (Relationship exclusions): This Agreement does not create, and must not be construed to create, any express or implied relationship between any Project Participant and any other Project Party of:

(i) employment;

(ii) principal and agency; or

(iii) partnership.

(c) (Contractual freedom): This Agreement does not prohibit any Project Participant from executing any agreement with any third person relating to any business activity, project or joint venture, whether in the nature of or similar to the Joint Venture Project or otherwise, as decided by that party, subject to compliance with any liability of that party under any other provision of this Agreement.

2.6 Trust Parties

The provisions of schedule 4 (Trust Provisions) apply in relation to any Project Participant who creates this Agreement in any capacity including the capacity of trustee, and for the purposes of those provisions:

(a) (trust party): a Trust Party refers to that Project Participant;

(b) (trust): a Trust refers to the trust for and on behalf of which that Trust Party creates this Agreement as trustee, as specified in the names of the parties to this Agreement or any Participant Undertaking; and


(c) (trust deed): a Trust Deed refers to the deed between the settlor and that Trust Party or other initial trustee as trustee creating that Trust, whether or not specified in the names of the parties to this Agreement or any Participant Undertaking, including any amending deed or additional or supplementary document appointing that Trust Party as trustee.

3 PROJECT PARTICIPATION

3.1 Participation Interest

Each Project Participant has a proportionate share or interest in the Project, created under this Agreement as its Project Participation, comprising:

(a) (rights): the legal and beneficial right, title and interest of that Project Participant to and in any:

(i) Project Asset; and

(ii) right to receive any share of net profit of the Project Business; and

(b) (liabilities): the liability of that Project Participant to pay or contribute towards payment of any Project Cost,

in compliance with the provisions of this Agreement.

3.2 Participation Percentage

(a) (Participation calculation): The proportion of the Project Participation of any Project Participant, in relation to the Project Participation of each other Project Participant, at any time must be calculated in compliance with the Participation Percentage of that Project Participant at that time.

(b) (Percentage calculation): The Participation Percentage of a Project Participant at any time must be calculated by dividing the aggregate Project Payments paid by that Project Participant by the aggregate Project Payments paid by all Project Participants and converting the quotient to a percentage, decided as at the most recent Percentage Calculation Date.

(c) (Fractional treatment): Fractional parts of a whole number resulting from any calculation under this provision must be rounded to the nearest second decimal point.

3.3 Project Assets

Each Project Participant at any time holds an equitable or beneficial interest in any Project Asset as tenant-in-common with an undivided interest in that Project Asset equal to the Participation Percentage of that Project Participant as at that time.


3.4 Project Liability

Each Project Participant is at any time liable to pay a proportion of any Project Liability equal to the Participation Percentage of that Project Participant as at that time in compliance with any then applicable Project Planning Document or promptly following written notice by the Project Manager to that Project Participant.

3.5 Project Profit

Each Project Participant is at any time entitled to receive a share of the net profit of the Project Business in any Financial Year, decided after payment of all Project Costs, equal to the Participation Percentage of that Project Participant.

3.6 Project Costs

Any Project Cost must be paid:

(a) (income): initially, out of income of the Project Business; and

(b) (deficiency): in the event of any income deficiency, by each Project Participant as a Project Liability in compliance with clause 3.4 (Project Liability).

3.7 Participation Restrictions

(a) (Interest exclusion): A Project Participant is not entitled at any time to earn or derive interest on any Project Payment.

(b) (Drawing restriction): A Project Participant is not entitled at any time in any Financial Year to draw or borrow for its own separate use or benefit any amount on account of or in anticipation of the share of that Project Participant of the net profits of the Project Business.

4 PARTICIPATION COMMITMENT

4.1 Commitment Limitation

Any Project Participant is not required in any event to pay, invest or contribute capital funds or other moneys, or advance any credit, to or in the Project Business, except as expressly provided under this provision or under clause 3.4 (Project Liability) or clause 3.6 (Project Costs).

4.2 Initial Participation Commitment

Each Project Participant must pay the Specified Commitment of that Project Participant in compliance with clause 5 (Commitment Payment).

4.3 Future Commitment

(a) (Additional commitment): The Project Manager may at any future time agree with any Project Participant any Future Commitment, as a


Participation Commitment additional to the Specified Commitment, of that Project Participant in compliance with this provision and clause 5 (Commitment Payment).

(b) (Unanimous commitment): The Project Manager may with the written Unanimous Consent of Project Participants agree with each Project Participant the Participation Commitment of that Project Participant, and the date for payment of that Participation Commitment, upon the provisions of and in compliance with that Unanimous Consent.

(c) (Commitment invitation): The Project Manager may with the written Super Majority Consent of Project Participants invite Project Participants to make offers to commit for a specified total Participation Commitment by means of any written commitment invitation restricted only to Project Participants.

4.4 Commitment Invitation Terms

The Project Manager must in the commitment invitation specify that:

(a) (amount): the specified total amount is the total proposed Participation Commitment;

(b) (proportional entitlement): each Project Participant is entitled to make a commitment offer for an amount calculated as nearly as possible in compliance with the Participation Percentage of that Project Participant;

(c) (lesser bid): any Project Participant is entitled to make a commitment offer for any amount less than its proportional entitlement as specified in the commitment offer;

(d) (excess bid): any Project Participant is entitled to make a commitment offer for any additional amount exceeding its proportional entitlement to the extent that the amount specified in the commitment offer of any other Project Participant is less than its full proportional entitlement (excess amount) as specified in the commitment offer;

(e) (irrevocability): any commitment offer made by any Project Participant is unconditional and irrevocable;

(f) (closing date): any commitment offer must be made by any Project Participant by written notice to the Project Manager on or before the date being 15 business days following the date of sending the commitment invitation by the Project Manager (closing date); and

(g) (non-compliance): any Project Participant who fails to notify any commitment offer by the closing date must be treated by the Project Manager as having declined to make any commitment offer.


4.5 Commitment Allocation

(a) (Allocation entitlement): Each Project Participant is entitled to and liable for any Participation Commitment comprised in the commitment offer made by that Project Participant to the extent of the allocation of the commitment amount made by the Project Manager to that Project Participant in compliance with this provision.

(b) (Specified maximum): The Project Manager must not allocate any Participation Commitment to any Project Participant in excess of any maximum limit to the commitment amount, including any additional excess amount, specified by that Project Participant in its commitment offer (specified limit).

(c) (Proportional allocation): The Project Manager must initially allocate any Participation Commitment to each Project Participant in compliance with the Participation Percentage of that Project Participant, subject to any specified limit for that Project Participant.

(d) (Excess allocation): The Project Manager must allocate any excess amount remaining after the initial allocation to each Project Participant whose initial allocation is less than its specified limit in compliance with the Participation Percentage of that Project Participant, subject to that specified limit, but adjusted to exclude the Participation Percentage of any other Project Participant whose initial allocation is equal to the specified limit of that other Project Participant.

(e) (Repeated excess allocation): The Project Manager must repeat the application of the previous paragraph, as though any previous allocation were the initial allocation, as many times as necessary to allocate the total Participation Commitment.

4.6 Commitment Notification

The Project Manager must within 2 business days following the closing date give a written commitment notice to each Project Participant specifying:

(a) (commitment allocation): the Participation Commitment allocated to that Project Participant;

(b) (completion date): the date and time for Commitment Completion being not earlier than 5 and not later than 10 business days following the sending of the commitment notice by the Project Manager; and

(c) (completion details): the venue for Commitment Completion, being the registered office of, or other convenient venue specified by, the Project Manager.


4.7 Participation Liability

Each Project Participant who has been allocated any Participation Commitment by the Project Manager is liable to pay that Participation Commitment in compliance with the commitment notice from the Project Manager.

5 COMMITMENT PAYMENT

5.1 Commitment Participations

Each Project Participant must at any time pay any Participation Commitment at that time of that Project Participant:

(a) (conditions): upon and subject to the provisions of this Agreement; and

(b) (representations): in reliance upon the representations and warranties made in clause 13 (Participant Representations).

5.2 Commitment Liability

The rights and liabilities of each Project Participant under this provision are several and:

(a) (performance): failure by any Project Participant to perform any liability of that Project Participant does not release any other Project Participant from any liability of that other Project Participant; and

(b) (limitation): no Project Participant is liable to perform any liability of any other Project Participant.

5.3 Conditions Precedent

The liability of each Project Participant to pay its Participation Commitment under this Agreement is subject to each condition precedent that that Project Participant has received in a form and substance satisfactory to that Project Participant:

(a) (constitution): applicable to any corporate Project Participant, a true copy of the constitution of each other Project Participant certified by that other Project Participant or any authorised officer of that other Project Participant as at a date not more than 10 days before the Commitment Payment Date;

(b) (corporate consents): applicable to any corporate Project Participant, a true copy of each corporate consent of each other Project Participant, certified by that other Project Party or any authorised officer of that other Project Participant , including any consent of directors or members of that other Project Participant, for this Agreement or any agreement relating to Participation Commitments under this Agreement;


(c) (general consents): a true copy of any governmental consent or contractual consent for this Agreement or any agreement relating to Participation Commitments under this Agreement, certified by the Project Participant or any authorised officer of the Project Participant originally receiving that consent;

(d) (authorised signatures): applicable to any corporate Project Participant, a true copy of the signature of each authorised officer of each other Project Participant authorised to execute on behalf of that other Project Participant this Agreement, or any document relating to Participation Commitments as contemplated by this Agreement, certified by that other Project Participant or any authorised officer of that Project Participant;

(e) (commitment documents): a duly executed counterpart copy of this Agreement; and

(f) (stamping): evidence, if applicable, thatDN[A4] [OPT1[A5]this Agreement has been duly stamped//OPT2[A6]proper arrangements have been made, for due payment or prompt reimbursement of stamp duty relative to this Agreement];

and that:

(g) (representations): the representations and warranties made by any other Project Party in clause 13 (Participant Representations) are accurate on and as at each of the date of this Agreement and the Commitment Payment Date as though made at that date in relation to the facts then subsisting, except for any inaccurate statement previously disclosed to and waived in writing by that Project Participant; and

(h) (default): no other Project Participant is in default under this Agreement as at the Commitment Payment Date and no default by any other Project Participant will result from or occur at the time of Commitment Completion under this Agreement.

5.4 Condition Waiver

Each condition specified in clause 5.3 (Conditions Precedent) is for the benefit of each Project Participant and, relative to that Project Participant, capable of waiver by that Project Participant alone, and may be waived by written notice by that Project Participant to each other Project Participant.

5.5 Payment Completion

Each Project Participant must pay its Participation Commitment on the Commitment Payment Date by bank cheque or in other clear or immediately available funds.


5.6 Completion Action

(a) (Timing): Any action, including satisfaction of any condition precedent or any meeting or resolution of directors or shareholders of any corporate party, performed by any party for the purpose of Commitment Completion on the Commitment Payment Date is conditional upon and must be treated as simultaneous with performance of any action required to be performed by any other party for that purpose.

(b) (Mutuality): Any action required to be performed by any party for the purpose of Commitment Completion on the Commitment Payment Date must not be treated as performed or completed until performance and completion of all action required to be performed by each other party for that purpose.

6 PROJECT COMMITTEE REPRESENTATION

6.1 Project Committee

The Project Participants must create and maintain a Project Committee to control and manage the Project Business in compliance with this provision, subject to the provisions of any Management Agreement at any time.

6.2 Representative Appointment

Each Project Participant holding a Participation Percentage at least equal to % may at any time:

(a) (appointment): engage and appoint 1 Project Representative as a member of the Project Committee; and

(b) (substitution): terminate the engagement and appointment of that Project Representative and, in the case of termination, retirement or death of that Project Representative, engage and appoint a substitute Project Representative.

6.3 Number

There is no maximum limit on the number of Project Representatives appointed at any time.

6.4 Chairman

The chairman of the Project Committee must be elected annually by the Project Representatives.

6.5 Alternate Representatives

Each Project Representative may appoint an alternate Project Representative.


6.6 Committee Meetings

(a) (Meetings): There must be at least 10 meetings of the Project Committee held in any Financial Year.

(b) (Additional meetings): Any additional meeting of the Project Committee must be convened following any written request of any Project Participant made to the chairman of the Project Committee.

(c) (Venue): Meetings of the Project Committee must be held at any venue agreed at any time by the Project Representatives, subject to this provision.

(d) (Methods): Any meetings of the Project Committee may be conducted by written resolution, email communication, telephone conference, video conference or any similar means of electronic, audio or audio-visual communication.

(e) (Notices): Each Project Representative must receive prior written notice of any meeting of the Project Committee, together with an agenda, at least 10 business days before that meeting, except where otherwise agreed by all Project Representatives.

(f) (Agendas): The agenda for any meeting of the Project Committee must be decided or approved by the chairman or, in the case of a meeting convened at the request of any Project Participant, by that Project Participant.

(g) (Resolutions): The Project Committee must not pass any resolution at any meeting where notice of that resolution has not been given in the prior agenda for that meeting.

6.7 Meeting Quorum

(a) (Minimum attendance): A quorum for any meeting of the Project Committee is created by the attendance or other participation, in person or by alternate, of a minimum of 2 Project Representatives appointed by Project Participants, whose aggregate Participation Percentages equal at least %.

(b) (Meeting adjournment): A meeting of the Project Committee must be adjourned, if a quorum is not present within 30 minutes of the time specified for the meeting, to a date and time 7 days following the time of, and at the same place as, the original meeting to be notified to all Project Representatives.

(c) (Adjournment quorum): Any Project Representatives present at any meeting adjourned because of insufficiency of quorum create a quorum for that adjourned meeting quorum.


6.8 Voting

(a) (Voting power): Each Project Representative is entitled to cast a deliberative vote at any meeting of the Project Committee equal in relative voting power to the Participation Percentage of the Project Participant engaging that Project Representative.

(b) (Chairman): The chairman of the Project Committee is not entitled to any casting vote in the event of any equality of votes at any meeting of the Project Committee.

6.9 Representative Remuneration

Any Project Representative is not entitled to payment of any fee, salary or other remuneration or reimbursement of any cost by any Project Party or any other person for or incurred in the attendance at or participation in any meeting of the Project Committee by that Project Representative, except with the Unanimous Consent of all Project Participants.

6.10 Project Companies

The board of directors of any Project Company must be decided by Simple Majority Consent of the Project Committee or, in the absence of that consent, must comprise each of the most senior operating and financial officer or manager engaged in the Project Business.

7 PROJECT DECISIONS

7.1 Project Management

The Project Committee has full powers of management and control of any business activity of the Project Business, upon and subject to the provisions of this Agreement or any applicable Management Agreement.

7.2 Simple Majority Decisions

The Simple Majority Consent of the Project Committee or Project Participants is required for any decision of, as applicable, the Project Committee or Project Participants relating to the Project or any business activity of the Project Business, except where specified otherwise by this Agreement or any applicable Management Agreement.

7.3 Committee Super Majority Decisions

The Super Majority Consent of the Project Committee is required for any decision, relating to:

(a) (project budget): any approval or amendment of any Project Budget;

(b) (project plan): any approval or amendment of any Project Plan;

(c) (capital expenditure): any annual capital expenditure of the Project Business;


(d) (significant investments): any agreement by the Project Group to purchase any asset or make any investment with a value in a single case, or any number of cases in any year with an aggregate value, exceeding $ ;

(e) (significant asset sales): the sale of part of the undertaking of the Project Group, including any agreement to sell any assets with a value in any single case, or in a number of cases in any year with an aggregate value, exceeding $ ;

(f) (major contracts): any Project Group Enterprise creating, amending, or terminating any agreement with a contract term exceeding 12 months or any agreement with a gross contract price value exceeding $ ;

(g) (construction contracts): any Project Group Enterprise creating any contract specifying any construction activity in relation to any Project Asset;

(h) (participant agreements): the creation, amendment or termination of any agreement between the Project Group and any Participant Group Company;

(i) (strategic change): any change in strategic direction of the Project Business or the commencement by any Project Group Enterprise of any new business, excluding the Project Business;

(j) (auditors): the appointment or removal of the auditors of any Project Group Enterprise;

(k) (committee delegation): the delegation of any power of the Project Committee, including any delegation to the Project Manager and the creation by the Project Committee of any subcommittee;

(l) (industrial relations): any Project Group Enterprise creating any agreement with any industrial union or organisation in relation to any employees or agents of that Project Group Enterprise; or

(m) (super majority issues): any decision expressly required under this Agreement to be made, voted, resolved or passed by the Super Majority Consent of the Project Committee.

7.4 Participant Unanimous Decisions

The Unanimous Consent of Project Participants is required for any decision, relating to:

(a) (constitution amendment): any amendment to the constitution of any Project Company;

(b) (liquidation): the liquidation of any Project Company;


(c) (capital reorganisation): any reorganisation, reclassification, reconstruction, consolidation or subdivision of the capital of any Project Company, including any buyback or redemption of marketable securities, or the creation of any different class of marketable securities in the capital of any Project Company;

(d) (distributions): any change to the distribution or dividend policy of any Project Group Enterprise;

(e) (bonus issue): the issue of any bonus shares in the capital of any Project Company;

(f) (share offers): any issue of marketable securities in the capital of any Project Company, except where this Agreement expressly permits otherwise;

(g) (financial accommodation): any Project Group Enterprise borrowing any credit or incurring any other financial liability;

(h) (security interests): any Project Group Enterprise creating any security interest over any asset of that Project Group Enterprise, excluding any Permitted Security;

(i) (subsidiaries): the incorporation or establishment of any subsidiary of any Project Group Enterprise;

(j) (asset transfers): the transfer of any Project Asset to or from any Project Company or subsidiary of that Project Company; or

(k) (unanimous issues): any decision expressly required under this Agreement to be made, voted, resolved or passed by the Unanimous consent of Project Participants.


8 PROJECT PLANNING

9 PROJECT ACCOUNTS

10 PROFIT DISTRIBUTION

11 PROJECT MONEYS

12 MANAGEMENT ENGAGEMENT

13 PARTICIPANT REPRESENTATIONS

14 PROJECT UNDERTAKINGS

15 PARTICIPATION TRANSFER

16 VOLUNTARY TRANSFER

17 COMPULSORY TRANSFER

18 MINORITY INTEREST TRANSFER

19 CALL OPTION TRANSFER

20 PUT OPTION TRANSFER

21 PRE-EMPTION PROCEDURE

22 TRANSFER COMPLETION

23 RELATED TRANSFER AGREEMENTS

24 PARTICIPATION VALUE ASSESSMENT

25 TRANSFER DEFAULT

26 TERMINATION


27 DISPUTE RESOLUTION DN[A7]

28 DUTIES

29 GST

30 ASSIGNMENT

31 NOTICES

32 GOVERNING LAW AND JURISDICTION


34 DICTIONARY

SCHEDULE 1: PROJECT DETAILS

1 Joint Venture Project

2 Project Contracts


SCHEDULE 2: PROJECT COMMITMENT

1 First Participant

Specified Commitment: $

2 Second Participant


3 Third Participant


4 Specified Commitment Date


SCHEDULE 3: PARTICIPANT UNDERTAKING

PARTICIPANT ACCESSION UNDERTAKING

DEED dated

PARTIES

1 [ of ] [ ACN a company registered in of ] (Participant Transferor);

2 [ of ] [ ACN a company registered in of ] (Participant Transferee); and

3 CONTINUING PARTICIPANT parties specified in schedule 1 (Project Details) (separately and collectively Continuing Participant).

RECITALS

A Each of the Participant Transferor and the Continuing Participant is a party to a joint venture agreement regulating the management and business activity of, and the mutual rights and liabilities of the participating parties in relation to, the joint venture project as specified in schedule 1 (Project Details).

B The Participant Transferor has transferred, or proposes to transfer, to the Participant Transferee, the legal right, title and interest to or in the joint venture participation held by the Participant Transferor.

C The parties wish to effect a novation transfer from the Participant Transferor to the Participant Transferee of any right or liability of the Participant Transferor under the joint venture agreement for the consideration of the mutual promises specified in, and upon and subject to, the provisions of this Deed.


PROVISIONS

THIS DEED WITNESSES:

1 INTERPRETATION

1.1 Capitalised Definitions

Meanings apply to capitalised terms used in this Deed as specified in this provision, unless the context otherwise requires:

Continuing Participant means each Continuing Participant separately and all those Continuing Participants collectively;

Joint Venture Contract means the agreement specified under the caption Joint Venture Agreement in schedule 1 (Project Details);

Participation Transfer means the agreement between the Participant Transferor and the Participant Transferee for the transfer of the Transfer Points as specified under the caption Participation Transfer Agreement in schedule 2 (Participation Transfer Details);

Substitution Date means the date of execution of this Deed by all parties expressed to be a party to this Deed; and

Transfer Points means the Transfer Points comprising the Project Participation of the Participant Transferor transferred, or to be transferred, to the Participant Transferee as specified under the caption Transfer Points in schedule 2 (Participation Transfer Details).

1.2 Joint Venture Contract Definitions

Meanings apply to words and expressions used but not separately defined in this Deed as defined or specified in the Joint Venture Contract, unless the context otherwise requires.


Rules of interpretation apply to this Deed as specified in this provision, unless the context otherwise requires:

(a) (headings): headings and subheadings are for convenience only and do not affect interpretation;

(b) (plurality): words denoting the singular number include the plural, and the converse also applies;

(c) (gender): words denoting any gender include all genders;


(d) (variants): a defined word or expression has corresponding effect in relation to its other grammatical forms;

(e) (parties): any reference to a party to any agreement or document includes its executors, administrators, legal personal representatives, successors and permitted assigns and substitutes by way of assignment or novation;

(f) (amendments): any reference to any agreement or document includes that agreement or document as amended, ratified, supplemented, novated or replaced at any time;

(g) (provisions): any reference to a provision comprising a clause, schedule, annexure, exhibit or attachment, is a reference to a provision of this Deed, including each clause, subclause, paragraph and subparagraph of that provision, and any reference to this Deed includes all provisions of this Deed;

(h) (legislation): any reference to any legislation includes a reference to that legislation as amended, re-enacted, consolidated or replaced at any time;

(i) (inclusions): the words include, including, for example, and similar expressions are used without limitation;

(j) (components): any reference to any whole or collective item includes any part of that item;

(k) (time): the expression at any time includes reference to past, present and future time and the performance of any action from time to time and any liability at all times during any specified period; and

(l) (liability): any liability, representation or warranty undertaken by, or right conferred on, 2 or more persons binds or benefits all of those persons jointly and each of them severally.

2 CONTRACT NOVATION

The parties must novate the Joint Venture Contract on and from the Substitution Date, so that at any time after the Substitution Date:

(a) (party substitution): the Participant Transferee replaces the Participant Transferor as if the Participant Transferee were an original or previously substituted party to the Joint Venture Contract; and

(b) (reference substitution): any reference in or application of the Joint Venture Contract to the Participant Transferor were a reference or application to, or in relation to, the Participant Transferee.


3 CONTRACT TRANSFER

The Participant Transferee must at any time after the Substitution Date in relation to any right or liability of the Participant Transferor under the Joint Venture Contract:

(a) (rights): hold the legal and beneficial right, title and interest to or in that right; and

(b) (liabilities): perform that liability and the Joint Venture Contract,

including any right or liability of the Participant Transferor arising after the Substitution Date.

4 CONTRACT RELEASE

Each Continuing Participant releases or discharges the Participant Transferor from any liability, default, breach, claim, demand or legal action arising under or in connection with the Joint Venture Contract in relation to the Transfer Points at any time after the Substitution Date.

5 TRANSFEREE INFORMATION

The Participant Transferee agrees with each other party to this Deed that the Participant Transferee has received a copy of the Joint Venture Contract and any other information required by the Participant Transferee in connection with this Deed and the Joint Venture Contract.

6 COSTS

The Participant Transferee must pay the costs of each party to this Deed in relation to:

(a) (documentation): the negotiation, preparation, execution, performance, amendment or registration of, or any notice given or made; and

(b) (performance): the performance of any action by that party in compliance with any liability arising,

under this Deed, or any agreement or document executed or effected under this Deed, unless this Deed provides otherwise.

7 DUTIES

7.1 Payment

The Participant Transferee must promptly within the initial applicable period prescribed by law pay any stamp or other duty or similar tax payable in relation to the execution, performance and registration of this Deed, or any agreement or document executed or effected under this Deed.


7.2 Indemnity

The Participant Transferee must indemnify each other party to this Deed against any loss incurred by that other party in relation to any duty or tax specified in this provision, whether through breach of or default by the Participant Transferee under this provision or otherwise.

8 GST

(a) (Taxable supply): This provision applies to any GST taxable supply by any party (supplier) under or in connection with this Deed to or for the benefit of any other party (recipient) in relation to any consideration, remuneration, cost or other payment payable to the supplier or reimbursable or indemnified by the recipient under this Deed (consideration) in connection with that supply.

(b) (Exclusive pricing): Any consideration has been or will be specified, calculated or assessed under or by reference to any provision of this Deed initially without reference to, and exclusive of, any GST payable by the supplier on or in relation to that consideration (tax exclusive payment).

(c) (Payment escalation): The recipient must increase the tax exclusive payment by any additional amount, sufficient that the total amount payable by the recipient, after discounting for the amount of any GST liability of the supplier on that total, is equal to the tax exclusive payment.

(d) (Input tax credits): The supplier must at any time deduct from any cost or expense which:

(i) has been incurred by the supplier in connection with this Deed or any taxable supply;

(ii) is reimbursable, wholly or partly, by the recipient to the supplier under this Agreement; and

(iii) includes any GST payable by any supplier of any supply to the supplier under this Deed,

(iv) the amount of any input tax credit to which the supplier is entitled for any acquisition connected with that cost or expense or, as applicable, to the extent of the relevant party of that cost or expense.

(e) (Legal compliance): Any party must at any time comply with any GST law in performing this Deed.

(f) (Tax invoices): The supplier must upon request by the recipient issue to the recipient tax invoices in proper form and in compliance with


any GST law connected with any supply of any right, property or services by the supplier under this Deed.

(g) (Assistance): The supplier must at any time perform any action, including provision of any copy invoice and other document, information and assistance in form and content sufficient, to enable the recipient to verify or calculate any input tax credit or other fact relating to any supply or acquisition of any right, property or services under or connected with this Deed.

9 ASSIGNMENT

Any party must not transfer any right or liability under this Deed without the prior written consent of each other party, except where this Deed provides otherwise or in relation to any transfer of any Project Participation permitted under the Joint Venture Contract.

10 NOTICES

10.1 Form

Any notice to or by a party under this Deed must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender, including any director, secretary or person notified in that capacity by that corporate party, or under the seal of or any power of attorney conferred by the sender.

10.2 Service Method

Any notice may be served by delivery in person or by post or facsimile transmission to the address or number of the recipient and is effective for the purposes of this Deed upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report.

11 GOVERNING LAW

This Deed is governed by and construed under the law in the State of DN[A8]..


12.1 Amendments

Any amendment to this Deed has no force or effect, unless effected by a document executed by the parties.

12.2 Third Parties

This Deed confers rights only upon a person expressed to be a party, and not upon any other person.


12.3 Pre-Contractual Negotiation

This Deed:

(a) (entire agreement): expresses and incorporates the entire agreement between the parties in relation to its subject-matter, and all the terms of that agreement; and

(b) (collateral agreement): supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject-matter or any term of that agreement.

12.4 Further Assurance

Each party must execute any document and perform any action necessary to give full effect to this Deed, whether before or after performance of this Deed.

12.5 Waivers

Any failure or delay by any party to exercise any right under this Deed does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

12.6 Remedies

The rights of a party under this Deed are cumulative and not exclusive of any rights provided by law.

12.7 Severability

Any provision of this Deed which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Deed or the validity of that provision in any other jurisdiction.

12.8 Counterparts

This Deed may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document.


SCHEDULE 1: PROJECT DETAILS

1 Joint Venture Project

2 Joint Venture Agreement

3 Continuing Participants


SCHEDULE 2: PARTICIPATION TRANSFER DETAILS

1 Transfer Points

2 Participation Transfer Agreement


SCHEDULE 4: TRUST PROVISIONS

1 Application

The provisions of this schedule apply in relation to any Trust Party who creates this Agreement for the benefit of each other Project Party.

2 Trustee Capacity

OPT1[A9]Any Trust Party agrees with and acknowledges to any other Project Party that that Trust Party creates this Agreement only in its capacity as trustee of the Trust, and in no other capacity, and only in relation to the assets and any business activity of the Trust.

OPT2[A10]Any Trust Party creates this Agreement:

(a) (trustee liability): in its capacity as trustee of the Trust and in relation to the assets and any business activity of the Trust; and

(b) (personal liability): in its separate personal capacity and in relation to its own personal assets, including any right as trustee or against the assets of the Trust arising by way of subrogation, indemnity or lien.

3 Trust Application

Any reference in this Agreement to any asset, liability, document, agreement or action includes any asset owned or liability, document or agreement created or action performed by any Trust Party as trustee of the Trust.

4 Trustee Liability Limitation DN[A11]

(a) (Limitation): Any liability of any Trust Party arising under or in connection with this Agreement is limited to, and is capable of enforcement against the Trust Party, only to the extent to which that liability can be satisfied from, and the amount that the Trust Party actually receives in, the exercise of the right of indemnity of the Trust Party from the assets of the Trust.

(b) (Liability scope): The limitation of the liability of any Trust Party under this provision extends to any liability of the Trust Party in any manner connected with any representation, warranty, agreement, conduct, action, omission or transaction contemplated by or connected with this Agreement.

(c) (Overriding effect): The limitation of the liability of any Trust Party under this provision applies despite, and prevails over, any other


provision of this Agreement or any law to the fullest extent permitted by law.

(d) (Legal action restriction): Any Project Party may not initiate any legal action against a Trust Party in any capacity except in the capacity of the Trust Party as trustee of the Trust, including:

(i) seeking the appointment of any receiver, manager or receiver and manager, except in relation to assets of the Trust, or liquidator, provisional liquidator or administrator or similar appointment of or relating to the Trust Party; or

(ii) proving in any liquidation, administration or other insolvent scheme or arrangement of or relating to the Trust Party, except in relation to assets of the Trust.

(e) (Indemnity reduction): This provision does not apply to any liability of a Trust Party to the extent that that liability is not performed or satisfied because under the Trust Deed or by operation of law there is a reduction in the extent of the right of indemnity of the Trust Party from or against the assets of the Trust resulting from any fraud, negligence or breach of trust of the Trust Party or other default of the Trust Party in relation to the Trust.

(f) (Performance exemption): A Trust Party is not required to perform, or refrain from the performance of, any liability or action under or in connection with this Agreement, except where the liability of the Trust Party is limited to the equivalent extent as specified in this provision.

5 Trust Representations

Any Trust Party represents and warrants to each other Project Party that at the time of execution and at any time during the performance of this Agreement by that Trust Party in relation to the Trust:

(a) (trust capacity): that Trust Party has created this Agreement in its capacity as trustee of the Trust [and additionally in its personal capacity]; DN[A12]

(b) (sole trustee): that Trust Party has been validly appointed as trustee of the Trust and is the sole trustee of the Trust;

(c) (removal exclusion): no action has been taken or proposed by any person for the resignation, retirement, removal or replacement of the Trust Party as trustee of the Trust or appointment of any new or additional trustee or manager of the Trust;

(d) (trust creation): the Trust has been and continues to be validly created and constituted by or under the Trust Deed, including any amendment document, which:


(i) has been validly executed and duly stamped;

(ii) is in full force and effect; and

(iii) complies with any applicable law;

(e) (document copies): true copies of all documents, including amendment documents, comprising the Trust Deed or relating to the appointment of that Trust Party as trustee of the Trust have been provided to that Project Party before the execution of this Agreement by that Trust Party;

(f) (trust power): that Trust Party has full power conferred by the Trust Deed or any law:

(i) to execute and perform this Agreement, so as to bind the Trust and its assets, without any default by that Trust Party under the Trust Deed or any law;

(ii) to perform any action or liability contemplated by this Agreement; and

(iii) to perform any business activity of the Trust as performed or contemplated at any time,

in its capacity as trustee of the Trust, without any condition or restriction, to the same extent as if that Trust Party were the sole and absolute beneficial owner of the assets of the Trust;

(g) (trust consents): all meetings have been held, all resolutions duly passed, all consents procured and all conditions and procedural matters complied with, which are required by the Trust Deed or necessary or desirable for the execution and performance by that Trust Party of this Agreement;

(h) (trust benefit): the execution and performance by that Trust Party of this Agreement created by that Trust Party are for the benefit and proper purposes of the Trust and a prudential exercise by that Trust Party of its powers as trustee of the Trust;

(i) (trustee compliance): that Trust Party as trustee has complied with, and is not in default under, any liability created by the Trust Deed or any law;

(j) (trust title): that Trust Party holds the legal right, title and interest to and in all assets of the Trust in its own name as trustee of the Trust;

(k) (trust solvency): no insolvency event has occurred or continues in relation to the Trust;

(l) (legal action exclusion): that Trust Party has no actual notice of any legal action by any person which might have a material adverse effect


on the assets or financial position of the Trust or on that Trust Party as trustee of the Trust;

(m) (revocation exclusion): all powers and discretions expressed to be conferred on that Trust Party by the Trust Deed are fully capable of valid exercise by that Trust Party, without any revocation, limitation, restriction or variation;

(n) (distribution exclusion): there has been no distribution of income of the Trust or distribution, vesting or advance of capital assets of the Trust to or in any beneficiary which might have a material adverse effect on or in relation to that Project Party or the performance of this Agreement by that Trust Party;

(o) (resettlement exclusion): there has been no resettlement or transfer of the assets of the Trust to any other trust or any total or partial setting aside, revocation, cancellation or failure of the Trust or provisions of the Trust Deed;

(p) (amendment exclusion): no action has been performed or proposed, whether by means of resolution or otherwise, by any beneficiary under the Trust or any other person to amend or terminate any provision of the Trust Deed, which might have a material adverse effect on or in relation to that Project Party, or terminate the Trust;

(q) (termination exclusion): no termination of the Trust or any provision of the Trust Deed has occurred and no fact has occurred or exists which might cause the termination of the Trust or vesting or distribution of the capital of the Trust in or to any beneficiary under the Trust;

(r) (vesting exclusion): the date or any fact for the vesting of the assets of the Trust has not occurred and there has been no decision, declaration, determination, fixing or acceleration of or change in the vesting date under the Trust Deed or equivalent date, whether or not expressly so defined or described in the Trust Deed;

(s) (liquidation exclusion): there has been no resolution by any beneficiaries of the Trust or the application of any provision of the Trust Deed or any law for, or commencement for any reason of, the liquidation of the Trust;

(t) (trust recourse): that Trust Party has full recourse against the assets of the Trust by way of indemnity and lien as trustee for all liability incurred as trustee under this Agreement, without any limitation, restriction, or liability to set-off, counterclaim or other deduction; and

(u) (trust indemnity): any right of that Trust Party as trustee in relation to any liability of that Trust Party under this Agreement by way of subrogation to, indemnity from or lien over the assets of the Trust has not, because of any fact or law, ceased or become excluded, limited,


diminished, prejudiced or subject to any security interest or priority right in favour of any person, excluding that Project Party.

6 Trust Liability

Any Trust Party must at any time during the continuance of this Agreement:

(a) (trust duties): comply with its liability as trustee under the Trust Deed and any law in relation to the Trust;

(b) (trust title): hold the legal right, title and interest to or in all assets of the Trust in its own name as trustee of the Trust;

(c) (trust deed amendments): notify each other Project Party immediately upon receiving knowledge of any proposal intended to be effected by means of resolution or otherwise by any beneficiary under the Trust or any other person to amend or terminate the Trust Deed; and

(d) (vesting events): notify each other Project Party immediately upon receiving knowledge of any event which might cause the termination of the Trust or vesting or distribution of the capital of the Trust in or to any beneficiary under the Trust.

7 Trust Restrictions

Any Trust Party must not at any time during the continuance of this Agreement, without the prior written consent of each other Project Party:

(a) (trust deed amendment): procure or permit any amendment to the Trust Deed, or any agreement with any manager, which might have a material adverse effect on or in relation to that other Project Party;

(b) (retirement): retire or resign or perform any action to cause or enable its removal as trustee of the Trust;

(c) (new trustees): appoint or permit the appointment of any new or additional trustee or manager of the Trust;

(d) (income distribution): procure or permit any distribution of income of the Trust during any Continuing Default or which might have a material adverse effect on or in relation to that other Project Party;

(e) (capital distribution): distribute, vest or advance the capital assets of the Trust to any beneficiary;

(f) (resettlement): procure or permit any resettlement or transfer of the assets of the Trust to any other trust;

(g) (termination): procure or permit any total or partial termination of the Trust or any provision of the Trust Deed;


(h) (vesting): cause or permit any early termination of the Trust or any determination, fixing, change in or acceleration of the vesting date under the Trust Deed; or

(i) (trustee indemnity): procure or permit any right of that Trust Party as trustee by way of subrogation to, indemnity from or lien over the assets of the Trust to become invalid, excluded, diminished, prejudiced or subject to any security interest or priority right in favour of any person other than that Project Party.

8 Trust Defaults

Specified default events for the purposes of this Agreement, additionally in relation to the Trust, comprise:

(a) (new trustees): the appointment of any new or additional trustee of the Trust;

(b) (winding up): the resolution by any beneficiaries of the Trust or the application of any provision of the Trust Deed or any law for, or the fact of commencement for any reason of, the winding up of the Trust;

(c) (trust failure): the decision by any governmental agency, the Trust Party as trustee, or on reasonable and substantial grounds any appointor, guardian, settlor or beneficiary of or under the Trust, that the Trust is invalidly or imperfectly created or constituted;

(d) (trust title): the cessation of any power of the Trust Party as trustee under the Trust to hold the legal right, title or interest to or in the assets of the Trust in its own name or to perform any liability under this Agreement; or

(e) (trustee indemnity): the cessation of any right of the Trust Party as trustee of subrogation to, indemnity from or lien over the assets of the Trust in relation to any liability of the Trust Party under this Agreement.


EXECUTED as an agreement:

FIRST PARTICIPANT:

SIGNED by )

in the presence of: )

Witness:

Full Name:

THE COMMON SEAL of )

)

was affixed in the presence of: )

Director Secretary

Full name: Full name:

SIGNED for and on behalf of )

)

by its corporate officers in the presence of:

) Director

) Full Name:

Director/Secretary:


Witness Director

Full Name: Full Name:


)

by its duly appointed attorney in the presence of:

)

Attorney

Full Name:

Power of Attorney date:

Certified that the attorney has no notice of the revocation of the power of attorney at the time of signature.

Witness

Full Name:

SECOND PARTICIPANT:

SIGNED by )


Witness:

Full Name:


)


was affixed in the presence of: )

Director Secretary



)


) Director

) Full Name:

Director/Secretary:

Witness Director



)


)

Attorney

Full Name:



Witness

Full Name:


THIRD PARTICIPANT:

SIGNED by )


Witness:

Full Name:


)

was affixed in the presence of:

)

Director Secretary



)


) Director

) Full Name:

Director/Secretary:

Witness Director




)


)

Attorney

Full Name:



Witness

Full Name:

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