queensland nickel joint venture agreement · queensland nickel joint venture agreement arthur...
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QUEENSLAND NICKEL JOINT VENTURE AGREEMENT
ARTHUR ROBINSON & HEDDERWICKS Solicitors,
530 Collins Street, MELBOURNE VIC. ,3000
Tel: 614 1011 Ref: SEW/SGL/DN
TABLE OF CONTENTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTERPRETATION 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Expressions Defined 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Expressions Defined in Body of Deed 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Interpretative Provisions 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Table of Contents; Headings 12
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 References to Acts 12
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PURPOSES AND NAME OF JOINTVENTURE 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Description of Purposes 12
. . . . . . . . . . . . . . . . . . . . . . . 2.2 Conformity with Queensland Nickel Agreement Act 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Limitation on Purposes 13
. . . . . . . . . . . . . . . . . . . . . . . 2.4 Performance of Obligations; inconsistent activities 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Name of Joint Venture 14
2.6EffectiveDate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
. . . . . . . . . . . . . . . . . PARTICIPATING INTERESTS IN JOINT VENTURE PROPERTY 14 . . . . . . . . . . . . . . 3.1 Specification of Participating Interests; Ownership of Property 14
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Title in certain Property in Manager's name 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Receipt of Products in Kind 15
. . . . . . . . . . . . . . . . . . . . . . . . . .. 3.4 Development of Other Nickel or Cobalt Interests 15
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . JOINT VENTURE OWNERS COMMITTEE 16 ................................ 4.1 Establishment and Powers of Committee 16
.......................... 4.2 Appointment and Removal of Representatives 17 ............................................... 4.3 Officers of Committee 17
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Committee Meetings; Written Resolutions 17 4.5Agendas ......................................................... 18 4.6Quorum ......................................................... 18 4.7Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
. . . . . . . . . . . . . . . . . . . 4.8 Defaulting Joint Venturer not to Participate in Decisions 19 . . . . . . . . . . . . . . . . . . . . . . . . . 4.9 Waiver of Procedural Requirements by Consent 19
............................. 4.10 Decisions Requiring Unanimous Approval 19 4.1 1 Decisions Requiring Unanimous Approval Whilst NRNQ is a Joint
Venturer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 . . . . . . . . . . . . . . . . . . . . . . . 4.12 Limitation on Unanimous Approval Requirements 22
4.1 3 Representatives acting solely for Appointors; Committee's . ................................................. Decisions Binding 22 .............................................. 4.74 Transitional Provision 22
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . MANAGEMENT OF THE JOINT VENTURE 22 5.1 Appointment and Constitution of the General Manager and the Ore
Purchaseand Shipping Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 5.2 Responsibilities of the General Manager and of the Ore Purchase
andShippingManager .............................................. 23 ............................... 5.3 Reports and Programmes; Books; Audit 28
5.4lnsurance ......................................................... 30 ................. . . . . . . . . . . . . . . 5.5 Performance of Management Functions : 30
........................................ 5.6 Replacement of the Manager 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Confidentiality 34
6 . BUDGETING, CONTRIBUTIONS AND UNBUDGETED DEVELOPMENT CAPITAL . . 35 6.1 ReportsandBudgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Annual Financial Plan 35
. . . . . . . . . . . . . . . . . . . . 6.3 Submission of Budgets for Development Programmes 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Calls and Contributions 36
~p~
(ii) I
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Unbudgeted Expenditures 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Capital Account Balances 3E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7 Status of the Business Plan 3E
DEVELOPMENT PROGRAMMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Elections not to Contribute 3E
7.2 Payment of Development Programme Called Sums . . . . . . . . . . . . . . . . . . . . . . 3E 7.3 Dilution of Non-Contributing Joint Venturer's Participating
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E . . . . . . . . . . . . . . . . . . . . . 7.4 Transfers following Changes in Participating Interests 4C
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Execution of Documents 4C 7.6 Right to Repurchase Participating Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 8.1 Recovery of Unpaid Called Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 8.2 Remedying of Payment Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 8.3 Payments by the Other Joint Venturer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 8.4 Purchase of Defaulting Joint Venturer's Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 43 8.5 Election to Dilute Defaulting Joint Venturer's lnterest .
Development Programme ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 8.6 Automatic Dilution of Defaulting Joint Venturer's interest .
Development Programme ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 8.7 Automatic Dilution of Defaulting Joint Venturer's lnterest .
Called Sums (other than Development Programme Called Sums) . . . . . . . . . . . . 48 . . ............................................ 8.8 Execution of Documents 50
............................................ 8.9 Curing of Other Defaults 50 8.10 Cross Charge .................................................... 51 .
9 . WAIVER OF RIGHT OF PARTITION ....................................... 51
10 . TERM OF DEED ..................................................... 51
. ................................................... 11 ENCUMBRANCES 51 11.1 Restriction on Encumbrances ....................................... 51 11.2 Right to Grant Permitted Charges .................................... 52 11.3 Conditions Precedent to Charge Becoming Operative . .................. 53 11.4 Provisions in Permitted Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11 . 5'Preservation of Rights ...... ; .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11.6 Notice of Intention to exercise Chargor's Rights . . . . . . . . . . . . . . . . . . . . . . . . 54 11.7 Restrictions on Powers of Sale conferred by Permitted Charges . . . . . . . . . . . 54 11.8 No Powers of Foreclosure .......................................... 55 11.9 Amendment of Permitted Charges .................................... 55
12 . ASSIGNMENTS OF INTERESTS AND RIGHTS OF SALE ..................... 55 12.1 Restriction on Assignments of Participating Interests .................... 55 12.2 Assignments and Transfers to Related Bodies Corporate ................. 56 12.3 Restrictions on Assignments of Joint Venture Property . . . ................ 57 12.4 Rights of First Refusal ; ............................................ 57 12.5 Transfers of Control of Joint Venturers ................................ 58 12.6 Offers to the Public ............................................... 59 12.7 Covenant by Assignee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 12.8 Assignor Relieved of Obligations .................................... 60
13 . RELATIONSHIP OF PARTIES . . . . . . . . . . . . . . . . : .. . . . . . . . . . . . . . . . . . . . . . . . . 61
. .................................................... 14 FORCE MAJEURE 61
15 . GOVERNMENT APPROVALS . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . . . . . . . . 61 . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.1 Mode of Service
. . 16.2 Addresses for Service . . . . . . . . . . . . . . . . . .
, . 39.' 17. FURTHER ASSURANCES
. QUEENSLAND PROPERTY LAW ACT
9. SEVERABILITY . . . . . . . . . . . . . . . . . . APPLICABLE LAW . . . . . . . . . . . . . . . .
. CURRENCY.. ...................
. AMENDMENTS AND WAIVERS ..... 23. COUNTERPARTS . . . . . . . . . . . . . . . .
ENUREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COSTS
. . , . . . . , . . 6 .
. .
i . ' 7 . (. ' . ; I
u,. . , , ;,:.: JOINT VENTURE AGREEMENT
DEED is made this 11% day of S e p k ~ W 1992
AND BETWEEN:
RESOURCES PTY. LTD. (A.C.N. 054 117 921) a company incorporated he State of Queensland, Australia ("QNR");
RESOURCES NORTH QUEENSLAND PTY. LIMITED (A.C.N. 010 partnership (formerly named
and another) a limited State of Queensland, Australia (which
as "NRNQ");
SHIPPING PTY. LIMITED. (A.C.N. 010 799 765) a State of Queensland, Australia ("OPS");
NSLAND NICKEL PTY. LTD. (A.C.N. 009 842 068) a company rated in the State of Queensland, Australia ("QNPL").
By a Deed dated 14 December 1988 entitled "Queensland Nickel Joint Venture Agreement" between MEQ Nickel Pty. Ltd. (A.C.N. 009 805 574) ("MEW), NRNQ,
I : Queensland Nickel Management Pty. Ltd. (A.C.N. 009 315 913) (formerly named : - Dallhold Nickel Management Pty. Ltd.) ("QNM"), QNPL and Greenvale Queensland
Nickel, Inc. (A.R.B.N. 009 809 590) ("GQN"), as amended by a Deed dated 28 June 1989 between MEQ, NRNQ, Australian Nickel Holdings Pty. Limited (A.C.N. 010 872 214) ("ANH"), Yabulu Nickel Company Pty. Limited (A.C.N. 010 890 454) ("YNC"), QNM, QNPL, OPS and GQN (the "Former Joint Venture Agreement"), MEQ. NRNQ. ANH and YNC associated themselves in an unincor~orated ioint venture for the purpose of (inter alia) producing Products from lateritic 0% for 'sale
:. . b y each of them (the "Joint Venture"). ,;, "W. . .. Q*: .. . . . ..
-. . rrys>f~ Pursuant to a Sale and Purchase Agreement dated 30 June 1992 each of MEQ, :;:;~i ::ANH and YNC transferred -st in the Joint. Venture to QNR, and GQN
transferred its interest in certain Joint Venture Property to QNR, so that, as at 30 June 1992, the respective Participating Interests of the Joint Venturers were as follows:
Jolnt Venturer Partlclpating interest
QNR 72.0% NRNQ 28.0%
. QNR is a wholly-owned subsidiary of QNI Limited (A.C.N. 055 313 043) ("QNI").
It is proposed that QNI will raise funds to enable QNR to pay the purchase price pursuant to the Sale and Purchase Agreement principally by offering shares to the public pursuant to an underwritten offer as further described in the Underwriting Agreement (the "Float").
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E. Pursuant to a Sale and Purchase Agreement dated 30 July 1992, NRNQ has agreed to sell a portion of its Interest in the Joint Venture, representing a Participating Interest of 8%, to QNR with effect from the Float Date, conditional
- upon the allotment by QNI of shares to the public pursuant to the Float.
F. Pursuant to Heads of Agreement dated 30 June 1992 between QNR, NRNQ and QNI, QNR and NRNQ have agreed to restructure the Joint Venture with effect from the Float Date, and QNI has made certain covenants in relation to its subsidiary, QNR.
G. Pursuant to a Deed dated 30 June 1992 entitled "Novation of Administration Agreement" between (inter alia) NRNQ, QNM, QNR, QNPL and QNI, it has been agreed that QNPL will replace QNM as the General Manager of the Joint Venture with effect from 1 September 1992.
H. The parties hereto have agreed that the Former Joint Venture Agreement be amended and restated in its entirety, with effect on and from the Float Date, in order to:
(i) record the various transfers of Participating Interests and interests in Joint Venture Property referred to in Recitals B and E;
(ii) effect the restructuring of the Joint Venture referred to in Recital F;
(iii) reflect the appointment of QNPL as the General Manager; and /
(iv) incorporate certain other miscellaneous changes. /
NOW THEREFORE THIS DEED WITNESSES the.partiesl agreement that the Former Joint Venture Agreement be amended and restated in its entirety, with effect on and from the Effective Date, to read as follows:
1. INTERPRETATION
1 I Expressions Defined
In this Deed (including the Recitals hereto), unless the context otherwise requires, the following expressions shall have the meanings assigned to them:
"~drninistration'~greement" means the agreement of even date herewith between QNPL, QNR and NRNQ relating to the provision of certain management and administrative services by QNPL to the Joint Venturers;
"Applicable Rate of interest" means the.aggregate of:
(a) the prime interest rate per centum per annum for the time being and from time to time charged by Australia and New Zealand Banking Group Limited (or such other bank as the Joint Venturers may nominate from time to on overdraft accounts of large corporate borrowers in
(b) 3% per annum,
provided that if the prime interest rate referred to above should be discontinued, then such other prime interest rate shall be used as in the opinion of the Chief Accountant or other similar responsible officer of Australia and New Zealand Banking Group Limited (or such other bank as
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! , ~ R N $ F sent$.: : . :: the Joint Venturers may nominate from time to time) will most a~curately
2; on&&: .;:' , reflect the prime interest rate charged to large corporate borrowers;
'I "Associated Person" in relation to a Joint Venturer or a Manager, means: 1
~$VRN& *
.
th e f f e ~ (a) in the case of a company, a company that is a Related Body t- subsiI Corporate of the Joint Venturer or the Manager (as the case may
I ] , be) or, not being a Related Body Corporate, a company in respect of which a person (or persons) together directly or lndlrectly either:
0') controls or is in a position to control the composition of the company's board of directors; or
(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that may be cast at a general meeting of the company,
and that person or any of those persons (or any relative of that person or any of those persons) also directly or indirectly either:
(iii) controls the composition of the board of directors of the Joint Venturer or the Manager (as the case may be); or
(iv) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Joint Venturer or the Manager (as the case may be); and
(b) in the case of a natural person, a person (or a relative of a person) who is a director or chief executive officer of the Joint Venturer or the Manager (as the case may be) or who, either himself or jointly with others, directly or indirectly:
0) controls or is in a position to control the composition of the board of directors of the Joint Venturer or the Manager (as the case may be); or
(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Joint Venturer or the Manager (as the case may be);
"Black River Titles" means all those pieces of land situated in the County of Elphinstone Parish of Hervey and described as Lot 6 on UP737089 and Lot 7 on RP737090;
"Brolga Titles" means all those pieces of land situated in the County of Livingstone Parish of Yaamba and described as Lot 176 on Plan No LN 473, Lot 177 on Plan No LN 473 and Lot 174 on Plan No LN 473;
"Business Plan" means the five year business plan relating to the operation of the Joint Venture agreed between QNR, NRNQ and QNI as at 30 June 1992 pursuant to the Heads of Agreement and Set out in the Fourth Schedule, as that plan may be varied from time to time in accordance with this Deed;
. .~.. jtiie - , . : , ~ .
.other b# "Called Sum" means funds required to be contributed or paid by the Joint
1 #.$+ Venturer concerned by Clause 6.4, Clause 7.2, Clause 8.1 or Clause 8.3;
.,G - .B ?%
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"Canoona Titles" means all those pieces of land situated in the County of Livingstone Parish of Yaamba and described as Lot 1 on RP620757 and Lot 2 on RP620757;
"Capital Account Balance" of a Joint venturer means its Capital Account Balance at the relevant time determined in accordance with Clause 6.6;
"Cost Year" means a period commencing on 1 July in a calendar year and terminating on 30 June of the following calendar year;
"Cross Charge" means a charge given by a Joint Venturer to the other Joint Venturer and the Managers as mentioned in Clause 8.10 or Clause 12.7;
"Date for Remedy" means:
(a) in relation to an Unpaid Called Sum, the date by which the Joint Venturer other than the Defaulting Joint Venturer may pay it pursuant to Clause 8.3; and
(b) in relation to any payment, cost or expense made or incurred as provided in Clause 8.9(a), the date on which it is made or incurred by the Joint Venturer concerned; i
"Defaulting Joint Venturer" means a Joint Venturer:
(a) which has defaulted in payment of one or more Called Sums and all of whose defaults in the payment of those Called Sums have not been remedied as provided in Clause 8.2; or
(b) which has defaulted as mentioned in Clause 8.9 and whose default has not been remedied (or, if it has been remedied by the action of the other Joint Venturer as provided in that Clause, whose obligations under paragraph (b) of that Clause in respect of that default have not been fully discharged); or
(c) whose Cross Charge has become enforceable; or
(d) in respect of whom any Secured Debts (as that term is defined in the Cross Charge) exist;
"De osit" means the deposit or deposits of lateritic nickel ore located -+% wrt in t e areas covered by Mining Lease No. ~~JLW& Mining Lease No. ML5866 Mining Lease No. ML5864 and Mining Lease No. MI 704% ' - " D e v e l q D m e n t e s " means capital expenditures on a Development - Programme;
"Development Proqramme" means a Joint Venture programme for:
(a) the development of a New Mine located within Australia;
(b) an increase in the overall desian tr acity, as at the tims of submission of the programme t m p u r s u a n t to Clause 5.3, of the Yabulu Treatment Facilities for the time being operated or developed by the Joint Venture, such overall design treatmeni
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. ., : ';
capacrty being, at the Effective Date, approximately 2,150,000pry I i
' J tonnes of lateritic ore per annum; . , , f
(c) the construction or upgrading of an ore receiving port and related ore handling infrastructure;
1 ! I
(d) modification of or extension to the Yabulu Treatment Facilities to treat ore feed from any one or more of the following lateritic ore sources:
Goro limonitic ore reserves, Moneo, Nakety or other existing lateritic ore mines in New Caledonia, Gebe Island (Indonesia), Gag Island (Indonesia), Rio Tuba (Philippines) and Yaarnba
I
(Queensland, Australia); 1 1
(e) any modifications of the Yabulu Treatment Facilities to improve process efficiency or to produce an improved class of Products; or I
(9 any mcdfh iQs of the Yabulu Treatment Facilities t o m r energy efficiency and to reduce-their energy cost. , -
For the avoidance of doubt, as at the Effective Date, the following Development Programmes are in progress or have been approved by the JVOC:
1. Development of the mine at Yaamba;
2. Construction and installation of the "No. 8 Thickener" at the Yabulu Treatment Facilities; I
"Development Programme Called Sum" means a Called Sum (whether owing to a Manager or to the other Joint Venturer which has paid it pursuant to Clause 8.3) to meet Development Capital Expenditures;
"Dollars" or " $ means Australian dollars;
"Effective Date" means the float Date; - "Encumbrance" means mortgage, hypothecation, pledge, lien or charge or anything analogous to any of the foregoing or any security interest or arrangement of any kind (including, without limitation, any deposit of moneys by way of security and retention of title, but excluding any of the foregoing which arises in favour of any government or governmental, serni- governmental or judicial entity by operation of statute provided there is no default in payment of the moneys owing thereunder);
"Float Date" means the date on which: r
(a) QNI allots shares to the public pursuant to the underwriien offer which is thesubject of the Underwriting Agreement; and
(6) QNR and NRNQ complete the sale and purchase of the 8% Participating Interest referred toin Recital E;
"Force Majeure" means any event or cause beyond the control of the party or parties concerned including any act of God, peril of the sea, accident, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone,
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earthquake, land slide, explosion, power or water shortage, epidemic, quarantine, strike or other labour difficulty or any expropriation, restraint, restriction, prohibition, intervention, law, decree or other legally enforceable order of any government or governmental, semi-governmental or judicial entity or authority;
"General Manager" means QNPL and any other corporation appointed to replace it or any previous General Manager pursuant to Clause 5.6;
"Heads of Agreement" means the Heads of Agreement dated 30 June 1993 between QNR, NRNQ and QNI, setting out certain agreements reached between QNR and NRNQ in relation to matters relevant to the Joint Venture;
"Holding CoITIpany" means any body Corporate which is deemed to be a holding company of the body corporate concerned pursuant to the provisions of Section 9 of the Corporations Law;
"Initial Cost Year" means the period commencing on 1 July 1992 and ending on 30 June 1993;
"Interest" means, in relation to each Joint Venturer: I (a) the interest of such Joint Venturer as tenant in common in the Joint
Venture Property; and
(b) such Joint Venturer's rights and obligations, B from time to time, as determined or arising under this Deed but does not include any of the rights or obligations of the Managers;
"Joint Venture" means the unincorporated joint venture constituted by the Former Joint Venture Agreement and confirmed and continued pursuant to this Deed;
"Joint Venturer" means either of QNR and NRNQ and their respective su- permitted assigns but does not ~nclude a Chargee under a Permitted Charge;
"Joint Venture Area" means the areas at present the subject of th Mining Titles and any other area which the Joint Venturers unanimously determl should be added to the Joint Venture Area;
5% "Joint Venture Process" means all technology and know-how developed or to be developed by or on behalf of the Joint Venture, including that develooed at the Yabulu Treatment Facilities relatino to the mining,
~ ~ . transportation, preparation and treatment of lateritic or&, the leaching of such ores with ammoniacal solutions and the se~aration and recovery of nickel and cobalt values and other minerals therefrom;
- 1 "Joint Venture Property" means: 1 (a) the Mining Titles and all the other rights, titles, claims and benefits
under or acquired from time to time, directly or indirectly, pursuant to the Queensland Nickel Agreement Act or the Mineral Resources Act, including, without limitation, lands, mining rights, mining leases, mining tenures and tenements, Security deposits, leases, licences, easements and other rights and incorporeal hereditaments granted
IJ ~'
1
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by the State of Queensland or otherwise acquired under or oursuant to the Queensland Nickel Agreement Act or the Mineral kesources Act, and all other properiy of whatsoever kind and wheresoever situate (including without limitation transportation, port and other service facilities, choses in action and rights and benefits conferred by or pursuant to any agreement heretofore entered into at any time for the purposes of the Joint Venture as heretofore constituted) held for the purposes of the Joint Venture as heretofore constituted;
(b) the Yabulu Titles and the Yabulu Treatment Facilities;
(c) the Black River Titles;
(d) the Brolga Titles;
(e) the Canoona titles;
,;> . $.: (9 the Joint Venture Process; ,!s5.P$3qr ; :i , ? .- *&I;. b. (g) all other rights, titles, interests, claims and benefits held or acquired *&;T-, from time to time, directly or indirectly, for the purposes of the Joint
&p,:;:, .. -2,
Venture, including without limitation, ? .
Cy,.: ! . h _ i i , I.::.
. ... . . ,~ . . . , ~ 3 , ; .;. ) .,,
1 '
(i) lands, security deposits, leases, licences, easements and other rights and incorporeal hereditaments;
(ii) those arising out of the holding of any of, or being renewals, extensions, modifications, substitutions, variations, amalgamations or subdivisions of, or applications for, any of the rights, titles, interests, claims or benefits described elsewhere in this definition; and
(iii) those granted pursuant to the Queensland Nickel Aareement Act; and
all other property of whatsoever kind and wheresoever situate (including, without limitation, transportation, port and other service facilities, raw materials, work in process, stores, insurance proceeds, choses in action and rights and benefits conferred by or pursuant to any agreement hereafter entered into at any time for the purposes of the Joint Venture) from time to time hereafter held, constructed or acquired for the purposes of the Joint Venture;
"Management Personnel" means the senior management personnel of the General Manager and comprises persons occupying the following positions . - - (or their equivalents) with ttie General Manager:
Managing Director Director - Operations Chief Financial Officer General Manager - Sales General Manager - Yabulu Project Manager - Developments Project Manager - Mine Developments Manager - Planning and Business Development Manager - Ore Purchasing Financial Controller;
I
3 Page 8
"Manager" means either of QNPL and OPS and their respective successors;
"Mineral Resources Act" means the Mineral Resources Act 1989 of the State of Queensland;
i in in^ Lease No. ML 1371" means the mining lease formerly designated Special Mineral Lease No. 630 in the Charters Towers Mining District of the State of Queensland and originally granted pursuant to the Queensland Nickel Agreement Act;
"Mi " means Mining Lease No. ML1371, Mining Lease No. M-g Lease NO. ML5i364, Mining Lease No. ML7048, Exploration Permit No. EPM 7060, Exploration Permit No. EPM 8790 and all mining leases, licences and other rights and tenements for exploration or mining purposes arising out of the holding of, or issued to or for the benefit of the Joint Venturers in respect of the whole or any part of the area of, Mining Lease No. ML1371, Mining Lease No. ML5866, Mining Lease No. ML5864, Mining Lease No. ML7048, Exploration Permit No. EPM 7060 and E~~lorat ion Permit No. EPM 8790 and all other minina tenements ho'wsoever acquired for the purposes of the Joint Venture anaall renewals, extensions, modifications, substitutions or variations of any of the foregoing and all amalgamations or subdivisions of any thereof and all applications therefor;
"New Mine" means any mine which is proposed to be developed by the Joint Venturers whether alone or in association with another or others for the purpose of supplying lateritic ore to the Treatment Facilities, together with any related infrastructure (including, without limiting the generality of the foregoing, slurry pipelines and port facilities);
"NRNQ Sale Option Agreement" means the agreement of even date herewith between QNR and NRNQ setting out the put and call option arrangements between them in relation to NRNQ's Interest;
"Ore Purchase and Shipping Manager" means OPS and any other corporation appointed to replace it or any previous Ore Purchase and Shipping Manager pursuant to Clause 5.6;
"Participating lnterest" means, in relation to a Joint Venturer, its Interest expressed as a percentage;
"Permitted Charge" means an Encumbrance complying with the provisions of Clause 11.2, as such charge may be amended, varied or added to as permitted by Clause 11.9, and the expression includes, without limitation, the QNR Financing Charge;
"Permitted Encumbrance" means:
(a) any Encumbrance securing taxes, rates and like charges arising in the ordinary course of business which are not yet in arrears or which can thereafter be paid without penalty or which are being contested or litigated in good faith;
(b) any mechanics', workmen's or other like lien arising in the ordinarY course of business securing obligations which are not yet overdue or which are being contested or litigated in good faith;
Page 9
(c) any rights of an unpaid seller by way of lien only in respect of an unpaid balance of any purchase moneys owing in respect of any property or asset being purchased;
(d) any Encumbrance in respect of deposits of money or property by way of security for the performance of any contractual or statutory obligations arising in the ordinary course of business (other than obligations for borrowed moneys or the deferred purchase price of goods or services);
(e) any banker's lien arising by operation of law in respect of moneys lodged or deposited with a banker; or
. (t) any Encumbrance existing at the time of purchase or acquisition of the asset in relation to which the Encumbrance exists;
" P r o w means the nickel oxige a& r ~ ~ n d cobalt sulphjde products (whether mixed or separated) produced or to be produced at the Treatment Facilities and nv other products which may be produced from time to time at the ~reatm'zt Facilities;.
"Q~ieensland Nickel Agreement Act" means:
(a) the Queensland Nickel Agreement Act 1970-1988 of the State of Queensland; and
(b) the agreement dated the 17th day of kce ember, 1970 between the State of Queensland, MEQ and GQN (as subsequently amended from time to time);
"QNR Financing Charge" means the deed of charge so titled and dated 30 June 1992 between QNR and the Syndicate Banks, as assigned pursuant to a deed entitled "Deed of Assignment of Securities and Acknowledgements" dated 11 September 1992 between QNR, QNI, the Syndicate Banks and Wardley Australia Limited;
"QNS" means Queensland Nickel Sales Pty. Ltd.. (A.C.N. 009 872 566), a company incorporated in the State of Queensland;
"Real Property Titles" means the Black River Titles, the Brolga Titles, the Canoona Titles and the Yabulu Titles;
"Related Body Corporate" means any body corporate which is deemed to be related to the body corporate concerned -pursuant to the provisions of Section 50 of the Corporations Law;
"Representative" means a person appointed as the representative of a Joint Venturer pursuant to Clause 4.2;
' ;Sa~s>~g~~&g~e~e~e&3;~a$;&g~e,e , ;e~t~bef ieen QNS and a! Jo~nt -yen!urer appo~nting QNS- as sales agent n respectof'th'e Subject Products .. - ofthat Joint Venturer; 8
"Sales Contract" means any existing or future contract for the sale by a Joint Venturer of any Products produced at the Treatment Facilities;
" means in relation to a Joint Venturer:
Page 10 f
(a) all that Joint Venturer's right, title and interest, both present and future, as tenant in common in Products produced at the Treatment Facilities and not yet received in kind by any Joint Venturer; and
(b) all that Joint Venturer's right, title and interest, both present and future, in Products produced at the Treatment Facilities and received in kind by that Joint Venturer;
"Subsidiary" means any body corporate which is deemed to be a subsidiary of the body corporate concerned pursuant to the provisions of Section 9 of the Corporations Law;
"Substantial Shareholder" means any body corporate or person which constitutes a substantial shareholder of the body corporate concerned pursuant to the provisions of Section 708 of the Corporations Law;
"Syndicate Banks" means The Hongkong Shanghai Banking Corporation Limited, Bank of New Zealand, Tricontinental Australia Limited and HongkongBank of Australia Limited;
"Treatment Facilities" means t-lu Treatment Facilities (as herein defined) or any other facilities for the treatment and processing of lateritic ore which are agreed by the Joint Venturers to be c o n s t r u c ~ r
m a s e d by the Joint Venture and which are agreed by the Joint Venturers to be part of the Joint Venture;
"Unpaid Called Sum" means a Called Sum which, aft& the date on which it was due for payment, has not been paid by the Defaulting Joint Venturer concerned or any other person (other than, as provided in Clause 8.3, the other Joint Venturer) on its behalf;
"Wholly Owned Subsidiary" means any body corporate which is a wholly- owned subsidiary of the body corporate concerned pursuant to the provisions of Section 9 of the Corporations Law;
"Yabulu Title " means all those pieces of land situated in the County of b$ , d a r i s h of Halifax and described as Lot 1 on Registered Plan NO
J9" 722 352, Lot 4 on Registered Plan No 704 282; Lot 2 on Registered Plan No 726 908, Lots 2 and 3 on Registered Plan No 725 940, Lot 3 on RP26908, Lot 165 on EP1308, Lot 2 on Registered Plan No 725 941, Lot 1 on Registered Plan No 726 771, Lot 2 on Registered Plan No 732 796 and Lot 1 on Reqistered Plan No 726 908; \
"Yabulu Treatment Facilities" means the facilities for the tmtment and processing ot lateritic ore situated on the Yabulu Titles .at Yabulu near Townsville in the State of Queensland.
1.2 Expressions Defined in Body of Deed
In this Deed, unless the context otherwise requires, the following expressions have the meanings given to them in the provision set opposite such expression:
Acceptance Period Clause t2.4
Approved Development Budgets Clause 6.3
Calling Manager Clause 6.4
Chairman Clause 6.3
Chargee Clause 11.2
Chargor Clause 11.2
Contributing Joint Venturer Clause 7.1
Default Notice Clause 8.3
Development Call Reduction Date Clause 8.6
Development Notice
. Dilution Date
Dilution Notice
Fair Value
Float
Former Joint Venture Agreement
Joint Venture Expenses
Joint Venture Owners Committee (or JVOC)
Nominee
Non-Contributing Joint Venturer
Non-Defaulting Joint Venturer
Offered Interest
Offeree Joint Venturer
Offering Joint Venturer
Operating Call Reduction Date
Original Defaulted Sum
Priority Instruments
Project Manuals
Clause 7.1
Clause 8.5
Clause 8.5
Clauses 8.4 and 12.5
Recital D
Recital A
Clause 6.4
Clause 4.1
Clause 12.2
Clause 7.1
Clause 8.4
Clause 12.4
Clause 12.4
Clause 12.4
Clause 8.7
Clauses 8.5,8.6 and 8.7
Clause 11.2
Clause 4.1
Receiver Clause 11.2
Relevant Company Clause 12.2
Restated Joint Venture Agreement Clause 12.7
Secretary Clause 4.3
1
Page 12
1 Successor Manager Clause 5.6 1 Valuer Clauses 8.4 and 12.5
1- 1.3 Interpretative Provisions L
In the interpretation of this Deed, unless the context otherwise requires:
3 (a) the singular includes the plural and vice versa and in particular (but without limiting the generality of the foregoing) any word or expression defined in
n the singular has the corresponding meaning if used in the plural and vice versa;
(b) references to persons include corporations, partnerships, trusts and
7 unincorporated associations;
(c) a reference to any gender includes the other genders;
3 (d) a reference to a Clause is a reference to a Clause of this Deed; and
n (e) a reference to any agreement includes a reference to any amendment, variation, addition, substitution, replacement, renewal or extension heretofore or hereafter made to or for such agreement.
] 1.4 Table of Contents; Headings
The table of contents and headings to Clauses are for the purposes of more
3 convenient reference only and shall not form part of this Deed or affect the construction of it.
3 1.5 References to Acts
In this Deed references to an Act or statute, unless otherwise specifically
3 expressed, include the amendments to that Act or statute for the time being in force and also any Act or statute passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder.
1 2. PURPOSES AND NAME OF JOINT VENTURE i
2.1 Description of Purposes
J The Jo ia Venturxs hereby cmfim and continue the Joint Venture as formed pursuant to the F o r w e Aareement. The Joint Venturers further confirm the purposes of the Joint Venture, being:
J (a) mining, developing and otherwise exploiting the Jnint Venture Area so as to produce lateritic ore, transporting such ore to, and processin5 such ore at,
3 the Treatment Facilities to produce Products for delivery to or as directed by each of the Jolnt Venturers;
(b) purchasing ore fccznthird ~arties;
J (c) processin ore supplied by or on behalf of the Joint Venturers (whether d~rec -T-%- y or y purchase from third parties) ' ities to
3 produce Produqts for delivery to or as d i r m J o i n t Venturers, provided that such supply of ore shall be in proportion to the respective Participating Interests ot the Joint Venturers;
'1
Page 13
(d) developing marketing policy for Products to such locations and upon such terms and conditions as to maximise the sales revenue of each of the Joint Venturers; . .
(e) conducting research and development activities to reinforce the competitive position of the Treatment Facilities with respect to existing Products and with a view to the future production of higher value added Products; and
(9 otherwise exercising the rights, titles, interests, claims and benefits comprised in the Joint Venture Property.
.2 Conformity with Queensland Nickel Agreement Act
The purposes set forth in Clause 2.1 shall be carried out by the Joint Venturers in conformity with the Qu- Act insofar as it is applicable. -
-Z
2.3 Limitation on Purposes
Unless both Joint Venturers 0th n writing, the Joint Venture shall be Im~tea as atoresala and noth-eed shall by implication or otherwise operate to extend the Joint Venture beyond such purposes and matters incidental thereto.
.4 . Performance of Obligations; inconsistent activities
Each Joint Venturer covenants and agrees with the other Joint Venturer as a separate covenant:
(a) -to perform its obligations under the Queensland Nickel Agreement Act;
(b) to perform its obligations under any other-present or future agreement with the State of Queensland insofar as the failure to perform such obligations affects or may affect the rights and interests of either of the Joint Venturers in connection with the Joint Venture;
(c) to perform its obligations under, and not, except as determined under this Deed, terminate, seek to terminate or render liable to forfeiture, any of the Mi&Qlj&s;
(d) not toengage, either alone or in association with another or others, in any activity in respect of the Mining Titles or any of the other rights, titles, interests, claims and benefits 'comprised in the Joint Venture Property except as provided or authorized by or under this Deed;
(el not to pursue, either alone or in association with another or others, any commercial interest which is in clear and direct competition with the Joint Venture or which is to the demonstrable commercial detriment of the Joint Venture;
(9 unless the other Joint Venturer otherwise agrees, t o bring or cause to be brought to the Yabulu Treatment Facilities for processing aU ore obtained by the Joint Venturers pursuant to a D~elopment Programme;
(g) to perform its obligations under or relating to the fulfillment of any other present or future agreement entered into for the purposes of the Joint Venture; and
-
Page 14
1 (h) to act in good faith and to be just and faithful in its dealings with the other
Joint Venturer.
2.5 Name of Joint Venture 7 - d The name of the Joint Venture shall be the Q w d Nickel Joint Venture.
1 2.6 Effective Date
Notwithstanding any other provision of this Deed, each of the Joint Venturers, and each of the other parties hereto, confirms and acknowledges that the Former Joint Venture Agreement shall continue in effect up until, but not including, the Effective Date. Prior to the Effective Date, this Deed (other than this Clause 2.6) shall have no force or effect. With effect on and from the Effective Date, the remaining provisions of this Deed shall become effective and the Former Joint Venture Agreement shall thereupon be amended and restated in the terms of this Deed.
3 3. PARTICIPATING INTERESTS IN JOINT VENTURE PROPERTY
3.1 Specification of Participating Interests; Ownership of Property
n All the Joint Venture Properly shall at all times be made available for the purpose and duration of the Joint Venture and during such duration shall not be used for any other purpose. All the Joint Venture Property and, s,u-3, all
J estate and interest in Pr- produced at the Treatment FacilitFs shall be bene.fkklly owned by the Joint Venturers as tenants in common, and a I lrabrlrtres pf the Joint Venture shall be seymllv borne by such Joint Venturers, in h e tollowrng
3 percentages (such percentages being the parties' respective Participating Interests as at the Effective Date):
3 Joint Venturer Participating Interest
QNR 80%
7 NRNQ 20% LJ
or in such other percentages as result from changes in Participating Interests from
3 time to time in accordance with this Deed. If at any time any Joint Venturer's Participating Interest is reduced to zero, such Joint Venturer shall automatically cease to be a member of the Joint Venture and shall have no further right, title or
3 interest in or to the Joint Venture Property or under this Deed (other than rights against the other Joint Venturer which accrued prior to such cessation of membership) and shall be free of further obligations under this Deed (other than liabilities which accrued prior to such cessation of membership).
3 3.2 Title in certain Property in Manager's name
For purposes of convenience, title to an of the JohC&nture - 7 5 P r o ~ t y may be held at th_e request of the Joint Venturers so e y in the name of either o t e Managers as nominee for both Jornt Ventgers in proportion to their respective Participating Interests; provided, however, th tles an ' les shall be h e m the n a m e & _ t h . l o i n m d g n c e %%%k%rrt ic ipat ing Interests. If at any time any of the Joint Venture Property is not vested at rm in the -of the Joint Venturers in proportion to their Participating Interests, the Joint Venturer or Joint Venturers in whose names such Joint Venture Property is vested shall hold such Joint Venture Property for the use and benefit of the-Joint Venturers in proportion to their Participating Interests and, if requested to do so by the Manager or the other Joint Venturer (as the case may be), but at the expense of
II
Page 15
the Joint Venture, shall take all such steps as may be necessary to vest the Joint Venture Property in question in the names of the Venturers in proportion to their Participating Interests.
.3 Receipt of Products in Kind
m m f its Each of the Joint V a r e r s shall have the right to, and shall, r Subject Products on!productlonereof at the Treatment Facilit~es and separa ely d i s o o s ~ m a r k e t such share. Each Joint Venturer marketing a j e c t products shall be solely resoonsible for the payment of any royalties payable to the State of Queensland or ot'her levies or ta ie i imposed, whether by the State of Queensland, the Commonwealth of Australia or otherwise, on account of such marketing or disposal of its Subject Products, or the gross or net proceeds or income therefrom, and the other Joint Venturer shall have no obligation to pay any such royalties or other levies or taxes. Neither the entry of the Joint Venturers into this Deed nor anv orovision of this Deed shall be construed so as to ~reclude or restrict the righi of each Joint Venturer to market its Subject ~roducts in competition with the other Joint Venturer. Without prejudice to Clause 2.4, each Joint Venturer, in selling its Subject Products separately:
(a) shall take whatever action as may be reasonably within its power, including exercising its voting power, to comply with the provisions of each of its Sales Contracts;
(b) shall comply with any applicable provisions of any present or future agreement with the State of Queensland to which that Joint Venturer is a party; and
(c) shall comply with any applicable requirements of the State of Queensland and the Commonwealth of Australia.
3.4 Development of Other Nickel or Cobalt Interests
In addition to any other provision of this Deed regulating the conduct of the Joint Venturers, each of NRNQ and QNR covenants and agrees with the other that- long as NRNQ . . remains a m er, if it proposes at any time to acqulre dir-y an interest in any prope relating to the exploration for, the mining of or the p r o m o or nlCKel or coba re, it shallficstntferthat intereG to the Joint Venture on the same terms as it proposes to acquire such interest. As soon as the major terms of such proposed acquis~t~on nave peen settled, the relevant party shall forthwith give notice thereof to the other party and to the General Manager, setting out the terms and conditions of the proposed acquisition and the name of the vendor (if any), together with details of any capital expenditures proposed in relation to the property and the times at which it is anticipated such capital expenditure would be made. The Joint Venture shall then have the right and option, exercisable by notice from the General Manager to the relevant party within a period of two months from the date of receipt of notice, to elect to ac uire the interest on those same terms and conditions and in A ac or ance w ~ t the principles set out in Clause 3.2 provided however that, in the event that the property is located offshore, and the interest is offered to the Joint Venture by QNR, the election of the Joint Venture shall be subject to the approval of NRNQ. Ifthejoint Venture does not so elect to acquiie the Interest within this period, the relevant party shall be free (subject to any other constraint which this Deed or any other deed or agreement may impose upon it) to acquire the interest on those same terms and conditions.
Page 16
1 4. JOINT VENTURE OWNERS COMMllTEE I I 4.1 Establishment and Powers of Committee
The reqmmb@y and authority for t h e m of the Jo,int Venture will b e d in n e e (herein-erred to as the "Joint Venture Ownefs Committee" or the "JVOC), the purposes of which shall be to consider and determine general policy and strat@ matters for the ioint V e n t u r e n i r pollcles wnich s h x
' s and objectives of the Joint Venture. I n particular, wtthout lim-the JVOC will be required: .
to provide the Man ers with directions in respect of the duties and --5l responsibilities of the Ma agers and to monitor the performance of those duties and responsibilities in accordance with directions grven;
to establish and monitor the achieving of production and cost targets by the General Manager; I to initiate consideration of proposed capital expenditures and Development Proarammes; - I to review performance and financial reports furnished to it pursuant to Clause 5.3, as applicable; 1
I to cause to be prepared and/or maintained one or more manuals ("ct Manuals") in such form as it shall determine for the ~ u r ~ o s e of aovernina 1 arr-ments and procedures relating to the operation of The Joifi Venture, which arrangements and procedures shall include: 1 0) the personnel to be employed or retained by the Managers on
behalf of the Joint Venture including the assignment of authority and responsibility to such personnel and the procedures for their hiring and discharge;
(ii) the enter in^ into of contracts relating to the operation of the,Joint Venture including the delegation of authority to the Managers or to orre or notn Jolnt Oir?Rfixers KO acirr'mractions ~ r o ~ o s e d to b e . . taken pursuant to such contracts; and . . I
(iii) themhrussnna . . nd ap~roval of the format and content of financial reports, performance reports, annual financial plans, Develo ment Pro rammes, budgets for capital expenditure and budge 4 - T . +or Deve opm nt Capltal Expenditures for Development Programmes referred to hereinafter;
to review and approve, with or without amendment, proposed financial plans for the operation of the Joint Venture submitted to it pursuant to Clause 6.2;
to review and approve, with or without amendment, proposed m nt Programmes initiated by it or submitted to it by any Joint Ven- a Manager as provided in Clause 5.3; and
to review and approve, with or without amendment, proposed budgets for Development Capital Expenditures and proposed revisions to Approved Development Budgets as provided in Clause 6.3.
Page 17
Appointment and Removal of Representatives
(a) Subject to paragraph (d) of this Clause, a Joint Venturer whose Participating Interest is 10' more shall be entitled to appoint one + - Re resentative to the JVOC for each ull 1 0 0 / ~ c . ~ n t e r e s t h e l m it and to maln ar such Representative in office. 7
(b) No Joint Venturer may maintain in office (pursuant to the preceding paragraph (a) of this Clause) m p e s at any one time. Not more than ons of the Representatives appointed from time to time by each Joint Venturer shall be Management Personnel. -
(c) Subject to paragraph (b) of this Clause, each Joint Venturer may from time to time remove any person so appointed as its Representative and appoint another person in his place, and may appoint any person as an alternate for all or any of its Representatives and similarly remove any alternate and appoint another person in his place.
(d) If at any time the number of Representatives which a Joint Venturer is entitled to maintain in office falls below the number of Representatives which it currently has in office by reason of a reduction in its Participating lnterest that number of the Representatives so maintained in office which is equal to the deficiency shall vacate office. If less than all those Representatives are to vacate office, those to do so shall be those determined by the Joint Venturer concerned or, in default of it doing so promptly, by the General Manager.
(e) Any appointment, removal or determination by a Joint Venturer pursuant to this Clause shall be made by notice by it to the other Joint Venturer.
Officers of Committee
The officers of the JVOC shall be a-n (hereinafter referred to as the "Chairman") and a s-ry (hereinafter referred to as the "Secretary"). The JVOC shall appoint the Chairman who shall be a Representative and who shall preside at I
all meetings of the JVOC. The General Mana er shall appoint the S-w, who + need not be a Representative and who shal e responsible for calling of the-provided, preparing and circulating agendas for such m, keeping minutes of such meetings and co-ordinating communications between Joint Venturers.
Committee Meetings; Written Resolutions
(a) The J=shall hold mqetin~s quarterly in Brisbane, T o m l e , or at any ot-nd as may be agreed between the Joint Venturers from time to tlme, and in addition special meetings shall be held on the request, made to the Secretary, of any JoiatAz&rer. The first meeting of the JVOC shall be held by not later than 31 October 1992.
(b) The Secretary shall so far as is practicable convene meetings at times and places to suit the convenience of the Joint Venturers and shall give to each Joint Venturer at least 10 days' written notice of each meeting.
(c) A Representative or alternate shall be entitled to be accompanied to meetings by no more than three advisers.
- Page 18
(d) Each Joint Venturer shall be responsible for all expenses incurred by the Representatives appointed by it and their alternates and advisers in attending meetings.
- (e) Unless otherwise agreed by the Joint Venturers, a representative of each
Manager shall attend the meetings. Such a representative may not vote.
(0 A copy of the minutes of each meeting shall be given to each Joint Venturer and to the Managers within 14 days after the meeting. The minutes of each meeting shall be submitted for approval at the next meeting after such period of 14 days and, if approved, shall be signed by the chairman of that meeting and when so signed shall be prima facie evidence of the proceedings and decisions of the meeting to which they relate. Unless the JVOC otherwise decides, any decision of the JVOC at any meeting may be acted upon by the Managers notwithstanding that minutes of that meeting have not yet been approved or signed by the chairman of that meeting as aforesaid.
(g) A resolution in writing signed by at least one Representative or alternate appointed by each Joint Venturer (not being a Defaulting Joint Venturer) shall be as valid and effectual as if it had been passed at a duly convened meeting of the JVOC. Such a resolution may consist of several documents in like terms. Copies of such resolutions shall be included in the agenda and the minutes of the next meeting.
4.5 Agendas 9
An agenda shall be prepared for each meeting of the JVOC and shall be circulated '
to both Joint Venturers at least 10 days in advance of the meeting. Each agenda ,I shall include such items of business of the kind described in Clause 4.1 as are, in I time for inclusion in the agenda, notified to the Secretary by either of the Managers I or either Joint Venturer, together with supporting documentation for each such item.
4.6 Quorum
A uorum for a meeting of the JVOC shall consist of a Representative or alternate malntalne % . in off~ce by each Joint Venturer (excluding a Defaulting Joint Venturer). ! If a quorum is not present within 45 minutes after the time appointed for the , commencement of a meeting, that meeting shall be adjourned to a time, date and 1 location in Brisbane 7 days' notice of which shall be given within 10 days of the '
I meeting so adjourned. If a quorum shall not be present within 45 minutes after the , time appointed for the commencement of that adjourned meeting, those 1 Representatives or alternates present shall constitute a quorum. I
i Voting I (a) Only one Representative or alternate maintained in office by Joint 1
any resolution at a meeting of the J V O ~ ~ 1 Representative or alternate so voting shall be entitled to cast a number of votes equal to the Participatina interest of his appointor and shall cast t h o s e t o r and not otherwise.
(b) Subject to Clauses 4.9, 4.10 and 4.1.1, at meetings of the JVOC all matters shall be decided by aJmg&y of the votes cast at the meeting.
(c) Any Joint Venturer shall be entitled, if the Representatives or their alternates maintained in office by that Joint Venturer are unable to attend a 1
I I I 1
Page 19
meeting of the SVOC, to cast its votes by mail, telex, telegraph or facsimile transmission received by the Secretary prior to the meeting. Such votes shall have the same effect as if a Representative or alternate maintained in office by that Joint Venturer had been present and so voted at the meeting.
4.8 Defaulting Joint Venturer not to Participate in Decisions
x Notwithstanding anything hereinbefore contained in this Clause 4, whilst a Joint Venturer is a Defaulting Joint Venturer:
(i) its Participating Interest shall be disregarded in determining whether a quorum is present at any meeting of the JVOC; and
(ii) neither it nor such a Representative or alternate may vote on any matter at any meeting of the JVOC.
.. 4.9 Waiver of Procedural Requirements by Consent
Notwithstanding anything hereinbefore contained in this Clause 4:
(a) a meeting of the JVOC may be held on shorter notice than that required by this Clause, or on no notice at all;
(b) a meeting of the JVOC may be held without the a enda being circulated by the time required by this Clause 4 or at a +
(c) the time or place for any meeting of the JVOC may be changed from that set out in the notice of meeting;
(d) any item of business may be considered at a meeting of the JVOC notwithstanding that it may not have been placed on the agenda; and
(e) any other change may be made to an agenda,
with the consent in writina er (other than a Defaulting Joint Venturer) m v t the time the meeting is actually held. If a Representative or his alternate attends the meeting and votes, or if a Joint Venturer is deemed by Clause 4.7(c) to have voted, on a motion, the Joint .Venturer maintaining the Representative in office or the Joint Venturer so deemed to have voted, as applicable, shall be deemed to have consented to the holding of the meeting, or the consideration of the item, as applicable.
4.10 Decisions Requiring Unanimous Approval
Neither the JVOC nnr the Manaqers shall have ower to nv deci ' in respect of anv of the following manors, any of w IC decis~ons, and any%er eY thz : t ~enturers, shall dec~sion which is required by this Deed to be made
'. 1 reflire the approval of each Joint Venturer (other than a Detaultlng Joint Venturer):
(a) a E m - b y or on behalf of both ~o in t Venturers jointly; - " J~ p...,. (b) the creation of a n o v e n t u r e . " ~. . . .. m, other than a Permitted tncumbrance, a Cross Charge or a
Permitted Charge;
(c) the sprrender, in whole or in part,'of any freehold or leasehold land forming part of the Joint Venture Property, except as may be necessary for minor lease boundary adjustments;
Page 20
i J (d) the sale in any on- (including the Initial Cost Year) of a n y a d a s a s forming part of the Joint Venture Property where the proceeds of
13 - such sale would exceed $5A000.000 provided that the threshold of $5,000,000 shall be subject to adjustment from time to time by agreement between the Joint Venturers to reflect the effects of inflation;
1 (e) any decision to take action which would or might result in a breach - of the
I It terms of, or the termination or forfeiture of:
(0 the Queensland Nickel Agreement Act;
(ii) the Mining Titles; or
(iii) any agreement the benefit of which forms a significant material part of the Joint Venture Property
or would or might otherwise materially jeopardize any of the Joint Venture Property;
(9 any decision to take action which would or might . . . result in a modification of the Queensland . . . Nickel Agreement Act or
"
' a b o r ac v sianificant Minirg ,,-out of an as=-f the whole or part of its Interest in accordance with the provisions of the Queensland Nickel Agreement Act and this Deed);
(g) any decision to make capital expenditures, other than replacementqpital e x m e s and capitgl &xpendit,ures of the type referred to in paragraph (0) of this Clause 4.10, which are outside the scope of any programme described in paragraphs (a) to ( f ) v e definition of "Development Programme";
the enterin into bv a Manager of any contract (other than an employment . . contract wih an executive director) with an Associated Person of a Joint Venturer or of the Manager in the performance of its funaions under this Deed;
the delegating or subcontracting by a ~anager of any of its responsibilities or duties under, this Deed other than with respect to a spec& f ~ ~ n c . . tion arising in the course of the carrying out by the Manager of its responsibilities and duties under this Deed where it is not commercially economic for the Manager to carry out such function itself; '
any decision to hold stocks of fuel oil m excess of 90.000 tonnes (such figure to be increased g c i t y of the TTeatment Facilities) or' any decision t o purchase more than.the next six months' budgeted consumption of fuel oil by the Joint Venture; and
(k) any decision to licence the use of the Joint Venture Process or any part of it to any thim party otner than a Manager. -
il
4.1 1 Decisions Requiring Unanimous Approval Whilst NRNQ is a Joint Venturer
For so long as NRNQ - (a) remains a Joint Venturer with a Participating lnterest of at least 15.0% (or
such lesser or greater percentage which may result from time to time by
Page 21
virtue solely of the operation of any of the dilution mechanisms set out in this Deed); and
(b) is not the subject of a transfer of control of the type specified in Clause 12.5,
but not otherwise, Clause 4.10 shall be deemed to be varied by the addition of the following matters:
"(I) any decision to vary the Business Plan so as to exclude or materially reduce any material commitment of the Joint Venturers thereunder, it being confirmed that each of the Joint Venturers will abide by the principles for the operation of the Joint Venture set out in the Business Plan;
(m) the appointment of Management Personnel (other than the Managing Director);
(n) the adoption of the administration-t of the General Manaer as prepared from time to time, provided that the approval of'any Joint Venturer shall not be unreasonably withheld;
(0)' any decision to veto proDosed capital expenditure with respect to the Yabulu Treatment Facilities (but not relahd to eqml&n of production) where such capital expenditure has been recoKended by the most senior operations person who is not a director of a Joint Venturer or a Related Body Corporate of a Joint Venturer (other than the General Manager);
(p) any decision, for financial or marketing reasons and not for operational reasons, to effect a reduUion belo 85% of the nominal production capacity of the Yabulu Tr-litres (which, for the purposes of this Clause 4.10(p), the parties agree is 60 m i l l i ~ pounds of nickel per an- (late hereof) at a time where, upon the certification of the General Manager, the total revenue of the Joint Venturers in the previous three completed calendar months exceeded all costs and expenses associated with production (excluding costs associated with financing depreciation of assets or the write-down of capital values) for the said period of three months;
(q) any decision to y~p~e:wlcetifl@'~t,IiiCy~as r; ..J . &w&Lix.z %- -A set out in the Fourth Schedule of the 'Reads-of Agreement, it being acknowledged that each of the Joint Venturers shall abide by the marketing principles set out in that marketing policy unless and until that policy is so varied;
(r) the entering into by a Mana~er of any contract for ore. coal or reductant supply, ocean or rail trans ort of raw materials, or Pie provision of steved-&eriod of qreater than one year or the exercise of an o tion which would result in such a m r a c t subsist~ng _f__l$e or a perlo of greater than one year; and
(s) the entering into by a Manager of any contract or series of contracts with a value of greater than $100,000 with a Substantial Shareholder of a Joint Venturer or of any Related Body Corporate of a Joint Venturer or any Related Body Corporate of a Substantial
Page 22
Shareholder of a Joint Venturer or of any Related Body Corporate of a Joint Venturer.".
For so long as NRNQ satisfies the criteria set out in paragraphs (a) and (b) above of this Clause 4.11, NRNQ covenants in favour of QNR that it shall not enter into or grant in favour of any other party (including, in particular, any other Joint Venturer) other than a Related Body Corporate of NRNQ, any agreement, understanding or I
other arrangement in relation to the exercise by NRNQ of its voting rights in respect of any of the matters requiring unanimous approval set out in Clause 4.10 or this Clause 4.1 1.
4.1 2 Limitation on Unanimous Approval Requirements
Notwithstanding any other provision of this Deed, including in particular C I ~ U S ~ S 4.10 and 4.11, the f the roval of each Joint Venturer and shall instead be-the J v ~ c :
the entering into by a Manager on behalf of the Joint Venture of any contract or arrangement with any Joint or Ass6crated Pei n of a
the s u ~ ~ l v of any raw +. Joint Venturer or Related Body Corporate of a Joint enturer in relatlon to
material to, or the purchase of any processed material or bv-~roduct from, the Manager or me ~o ln t venture on reasonable commercial terms established on an arms length basis taking into a c c o u w o t h e r similar arranaem'ents to wh~ch the Joint Venturers or the Manaqer may be a party.
4.13 Representatives acting solely for Appointors; Committee's Decisions Binding
A Representative or alternate present at a meeting of the JVOC shall be acting solely as the representative of the Joint Venturer maintaining him in office or the Representative for which he is alternate, as applicable. Any decision of the JVOC made in accordance with this Clause 4 shall bind both Joint Venturers as if such decision were an agreement entered into by them.
4.14 Transitional Provision I The ~arties herebv confirm and acknowledge that the JVOC as constituted under 1 - -.
I this beed supersedes the Operating committes as constituted under the Former Joint Venture Aareement wlth effect on and from the Effective Date. The ~nrt ips , - - - -. ..-- f&her agree agd acknowledge that the decisions and actions of the Operating Committee, insofar as they may still be applicable or operative immediately prior to the Effective Date, shall on and from that date constitute decisions and actions Of the JVOC until revoked or varied by subsequent resolution of the JVOC.
5. MANAGEMENT OF THE JOINT VENTURE I 5.1 Appointment and Constitution of the General Manager and the Ore Purchase
and Shipping Manager (a) . . - . - . . .. . . .. - . .. . . . . ~
,~-~~~t.me.nt.,;df...~~~~ ... i.l.._ as the _....i.L -r _ ..~... .. . of'the ~. @ n ~ ~ f i s .... ~ . . . . hpreby eonfir.fledi. ~,~,,,,,.. ki ~.~ . ~
(b) The appointment of OPS as the Ore Purchase and Shipping Manager of the Joint Venture is hmconf i rmed.
(c) 'For so long as NRNQ - (0 remains a Joint Venturer with a Participating Interest of at least
15.0% (or such lesser or greater percentage which may result from
Page 23 i
time to time by virtue solely of the operation of any of the dilution mechanisms set out in this Deed); and
f - (ii) is not the subject of a transfer of control of the type specified in
Clause 12.5,
but not ot-e, the following requirements shall apply:
(A) The Boards of Directors of each of the General Manager and the Ore Purchase and Shipping Manager shall consist of three directors appointed by QNR (or its successor or permitted assign) and two directors appointed by NRNQ. Only one director maintained in office by a Joint Venturer may vote on any resolution at a meeting of such Board of Directors. The director so voting shall be entitled to cast a number of votes equal to the Participating Interest of his appointor.
(B) The Board @J2m&rs of the General Manager shall hold meetings at least eleve ' ear, or sucn lesser number as may be agreed from t m e t w e e n the Joint Venturers, in Brisbane or Townsville.
(C) Each of the Manaaement Personnel and other personnel of the General Manager from tlme to- time shall be independent employees of the General Manager who are -es (but may, nevertheless, be directors) of anv of QNI, QNR or NRNQ. It is acknowledged that the Managing Director, the Director - Operations and the Chief Financial Officer of the General Manager may perform functions or services for any one or more of QNI, QNR and NRNQ, provided that QNPL is reimbursed on a basis agreed by the Joint Venturers for the performance of those services and provided that such functions or services do not occupy the said personnel for more than 20% of their working time.
Responsibilities of the General Manager and of the Ore Purchase and Shipping Manager
I I
(a) The General Manaqer shall, subject to the directions of the JVOC, be in I charge ofor : -
(i) the overall management, operation and administration of the Joint Venture;
(ii) managing the - funds of the Joint Venture;
(iii) maintaining the accountina records of the Joint Venture and, to the extent set out herein, the Joint Venturers;
(iv) in conjunction with the Ore Purchase and Shipping Manager,'co- ordinatin- of ore for the Joint Ventu're;
(v) conducting planning, engineering feasibility and project evaluation and manaaina d e s i a n i f u r e and its
(vi) medium and long term planning for the Joint Venture; and
Page 24 7
(vii) the management and control of the Joint Venture Property and all operations hereunder as agent for, and for the account of, the Joint Venturers.
In the exercise of such riahts and duties the General Manager shall act subiect-to and consistentl; with the orovisions of this Deed. The General --- ,--- .- . - ~
Manager shall be subject >o the sudeiision of the Joint Venturers acting through the JVOC and shall carry out all direct~ons and decisions of the JVOC. Subiect tothe ~rovisions set out herein, the General Manager shall use its besi endeavours to produce Products at the lowest pos~b le unit cost and to keep working capital at the lowest possible level consistent with prudent management.
The General Manager shall also have such other duties and responsibilities as are set out in Clause 5.2 (b) and (c), as well as the . . obligation to perform the "Management Services" as described in the -on Aare3ment.
(0
(ii)
(iii)
(iv)
(vii)
(viii)
the m' ' and ore -of such ore for sh~pment
to the Yabulu Treatment Facilities;
the handling, storage and stockpiling of ore acquired by the Joint Venturers from-s;
the treatment and processina of ore referred to sub-paragraphs (ii) and pi) of this paragraph at the Yabulu Treatment Facilities, the production of Products and the delivery of Subject Products to each Joint Venturer;
the supervision and control of such independent contractors as it may engage;
the custody, maintenance, operation and protection of the property and assets of the Joint Venture under the General Manager's control includina without limitation the administration. omration and management of facilities at the Deposit and of any housing provided for employees and their dependents;
the obtaining of competent employees for the Joint Venture;
the acquiring of materials, supplies, machinery, equipment and services;
as and to the extent required the procuring from outside experts and consultants of special engineering, design, legal, accounting and other professional services;
(xii)
(xiii)
(xiv)
(wi)
(xvii)
(xviii)
Page 25
the preparing and filing of reports or returns required by law or in accordance with the Mining Titles or the Queensland Nickel Agreement Act;
the performing on behalf of the Joint Venturers of any other obligations under the Queensland Nickel Agreement Act and the giving of notices thereunder in each case as authorised by the Joint Venturers;
the complying with all laws applicable to the operation of the Joint Venture including without limitation laws relating to workmen's compensation, the operation of factories, machinery and boilers and safety requirements;
the proper disbursing of all funds provided by the Joint Venturers to carry out the operation of the Joint Venture including without limitation the paying of all sums payable by the General Manager with respect to its acquisition of all services and supplies, materials, equipment and other property necessary or appropriate in connection with the operation of the Joint Venture;
the paying on behalf of each Joint Venturer of:
(1) royalties, lease rentals and other charges payable under the Queensland Nickel Agreement Act as and to the extent authorised by the Joint Venturers; and
(2) rates and taxes payable in connectio; with the ownership or rights of occupancy of lands, leases, licences or other property rights;
the taking of such action in an emergency affecting the safety of life or of the operation of the Joint Venture or the property and assets of the Joint Venturers under the control of the General Manager without special instruction or authorisation as the General Manager may deem necessary or advisable to prevent loss, injury or damage and the taking of reasonable precautions in connection with the operation of the Joint Venture for the safety of employees and the public;
at the request of a Joint Venturer, the payment on behalf of that Joint Venturer of any costs or expenses payable by that Joint Venturer in relation to the Joint Venture;
the preparation and maintenance, in accordance with accounting principles generally accepted in Australia, of complete books and accounting records describing each Joint Venturer's financial involvement in the Joint Venture. Each Joint Venturer shall have the right, at any time and after giving reasonable notice, to inspect and/or copy such books and records as relate to that Joint Venturer's financial involvement in the Joint Venture. Such books and records shall be prepared so as to enable each Joint Venturer to meet its reporting, accounting, statutory and taxation requirements;
the formulation and suhrmsslM to . . the JVOC of assessments and evaluations of the current operationand posStbte future development of the Joint Venture;
' i ; 1 ! ̂ - I I ! ir
: 1 8.-
' I I ! 'I .
Page 26 I
(xix) the conduct of cashflow planning and management for and on behalf of the Joint Venturers in relation to their involvement in the Joint Venture and each Development Programme;
(xx) the conduct o f of the Joint Venturers of evaluation and f e a s i b i i e c t of d-opnt Programme; -
(xxi) the implementation and management of the design and construction of all o f f s h m s established or commissioned pursuant to a Development Programme, including shipping facilities and any offshore minc -
(xxii) the implementation and ma ement of the desi n and construction gT onshore faciliti2established or commlsslon d pursuant to the Joint Venture Agreement, includinn the
+ . expansion
of the Yabulu Treatment Facilities; - (xxiii) the negotiation of financing on behalf and with the approval of each
of the Joint Venturers-in relation to their involvement in any Developmen~ogramme or other activity of the Joint Venture; and
(xxiv) the doing of all other acts and things as may be necessary or advisable for efficient and economic operation of the Joint Venture.
(c) The Gen~ral Manager and the Ore Pur and Shipping Manager shall act as the age~&~of the Joint V e n t u r s h e pur . .
of nickel ore from overseas sources for process-- Facilities of the Joint Ve_nture. Provided that the General Manager and Ore Purchase and Shipping Manager shall at all times act subject to and consistently with the provisions of this Deed, the General Manager and the Ore Purchase and Ship~ina Manager shall, subiect to the directions of the
purchase and shi in of foreign and. in th-major
and the Ore Purchase and Shipping Manager shall perform are as follows:
- (i) the continual monitoring of:
(A) the Joint Venture's ongoing requirements for foreign ore; and
(6) actual and potential foreign supplies and sources of lateritic nickel ore;
(ii) the development of expertise and understanding in relation to, and the monitoring of, the worldwide market for lateritic nickel ore;
(iii) the negotiation and finalisation of both arran ements with third parties for the * later1 IC na e ore, and the general maintenance of good relations with all potential and actual suppliers of lateritic nickel ore to the Joint Venture;
(iv) the adrnuxmit . . ion of contmcts entered into with third parties for the
purchase of lateritic nickel ore from foreign sources, including in particular:
Page 27
(A) scheduling the delivery and shipment of ore;
(6) arranging and attending to the payment for ore purchased;
(C) attending to all necessary documentation associated with the purchase and import into Australia of nickel ore; and
(D) ensuring compliance with all relevant government requirements;
(v) the undertaking and administration of arrangements for the detailed investigation of potential foreign reserves or sources of nickel ore, including the establishment of necessaw corporate and commercial structures for the investment by the Joint Venturers 31 any qffs?ore ore source;
(vi) the arrangement and management of shipping for nickel ore purchased on behalf of the Joint Venture, and particularly the negotiation and finalisation of both short and long term arrangements for the shipping of such nickel ore;
(vii) ' the administration of contracts entered into for the shipping of nickel ore purchased on behalf of the Joint Venture, including:
(A) the scheduling of shipments of ore;
(B) arranging and attending to payments for shipping services;
(C) attending to all necessary documentation associated with the shipping of nickel ore from foreign ports to Australia; and
(D) attending to all arrangements ancillary to such shipping contracts, including marine and other insurance;
(viii) the appointment and supervision of agents to act on behalf of the General Manager and the Ore Purchase and Shipping Manager in countries which are, or pctentially are, sources of nickel ore for the Joint Venture;
(ix) the constant monitoring of developments in the shipping industry in relation to the bulk handling of cargoes; and
(x) the formulation and submission to the JVOC of assessments and evaluations of the current position and possible future development of the Joint Venture in relation to:
(A) the purchase of nickel ore from overseas suppliers; and
(6) the shipping of such foreign ore.
(d) It is hereby expressly acknowledged that it is the intention of the Joint Venturers that the Gen- should take over and assume full responsibility for the duties and functions set out in Clause 5.1 (c). To this end, it is agreed that, from the Effective Date and to the extent reasonably practicable:
Page 28
(i) the General Manager should be a party to any renewals of existing ore supply contracts for the Joint Venture, and to any new ore supply contracts; and
(ii) QNPL and OPS will use their best endeavours to obtain the necessary consents of third parties to allow Joint Venture ore supply contracts (as at the Effective Date) to be:
(A) novated, with QNPL as the substituted buyer in place of OPS; or
(6) assigned by OPS in favour of QNPL.
(e) The General Manager and the Ore Purchase and Shipping Manager each covenant to take all reasonable steps to provide a safe system of work for its employees, to take reasonable care for the safety of its employees, to provide proper and adequate means of carrying out each employee's work without unnecessary risk, to warn employees of unusual or unexpected risks and to instruct employees in the performance of their work where instructions might reasonably be thought to be required to secure the employee from danger of injury.
(9 Subject to the provisions of this Deed each Joint Venturer agrees to provide the General Manager and the Ore Purchase and Shipping Manager, at their request, with such powers of attorney and other indicia of authority as those Managers may r e a s o n a b w t in order to exercise and carry out their rights and duties.
(g) 7h~;idUtre~;;~and~ ..ev.w, ,,w.A ,. % ..-.&.I.>..+4.., responsibxes ,. of the General M a n a g e m d t h w ~ r e Purchase and Shrpplng Manager shall not include any-1~&vitiesarelaii'n~ to th'e . . . .
s'alRiriMXrkXit1~6f . . . any Products. +
(h) QNPL shall remain the General Manager of the Joint Venture until such time as it is replaced pursuant to Clause 5.6.
(9 OPS shall remain the Ore Purchase.and Shipping Manager of the Joint Venture until such time as it is replaced pursuant to Clause 5.6.
0 ) The Joint Venturers agree that the management of Joint Venture operations shall be conducted on behalf of the Joint Venturers through or by Joint Venture companies the structure of which shall be the same as that of QNPL and OPS with such alterations as the circumstances of the day may compel.
5.3 Reports and Programmes; Books; Audit
(a) The General Manager shall furnish to each Joint Venturer within 14 da s of the end of each month a reasonably detailed financial and e if--Y-I ormance re ort concerning activities undertaken pursuant t6-d the + A ministration Agreement) since the preceding such report. The report shall summarise Joint Venture operations during such month and shall include an unaudited statement reflecting in reasonable detail, but in summary form, all charges and credits incurred or accrued to the Joint
respect to its involvement in the Joint Venture), as well as a comparison Venture and showing the financial position of each Joint Venturer (with /
I thereof with the relevant programmes, budgets, estimates and schedules 1 adopted by the JVOC.
3 I I i
Page 29
(b) Each Joint Venturer and its servants, agents and auditors shall be entitled (subject to execution of the covenant referred to in Clause 5.7(a)(B)) to inspect and obtain copies of all documents, records and accounts under the control of a Manager relating to the Joint Venture, and shall also be supplied copies of all reports, statements and certificates material to the Joint Venture, in each case together with such explanation thereof (including the bases of any allocations) as the Joint Venturer may reasonably require.
(c) Each Joint Venturer and its servants, agents and auditors shall have the right at all reasonable times to inspect and observe operations of the Joint Venture and Joint Venture Property. All site rules and regulations applying within or in respect of that Joint Venture Property shall be complied with.
(d) Each Joint Venturer may within reason require a Manager to furnish to it detailed statements compiled frcm the records and accounts under the control of the Manager relating to all undertakings, activities and operations undertaken by the Manager on behalf of the Joint Venturers.
(e) A Manager shall as promptly as practicable after their preparation (but in no case later than 14 days) furnish to each Joint Venturer copies of other significant reports prepared or received by the Manager and in addition the Manager shall furnish to each Joint Venturer copies of any significant written communications (or a synopsis of significant oral communications) to or from the Government of any State or Territory relating to any Mining Titles or any agreement in respect of ore sources, transportation of ore, the Treatment Facilities, and licences in respect of the import of ore or export of Products of any Joint Venturer.
The General Manaaer shall at the request of the JVOC prepare and submit Development Pro rammes to the JVOC for revie roval as p r o v i d d a n d shall furnish copies of ea$ 2: %elopment Programme, as submitted and as approyed, to each Joint Venturer. Each Development Programme shall incorporate the -er's
I
estimates of the cost thereof, the analysis undertaken by the General Manager in establish~ng tfie financi&&sMty of the Development Programme, and the schedule for completion thereof.
The General Manager shall, on an annual basis, prepare and submit a new business plan to the Joint Venturers for review and approval as provided by Clause 6.2. Each business plan shall incorporate the General ,
Manager's estimates of the costs of the items set out in the business plan, the analysis undertaken by the General Manager in establishing the financial feasibility of the business plan, and the schedule for completion thereof.
A Manager shall maintain, in accordance with accounting principles generally accepted in Australia, consistently applied, complete books, accounts and records of and relating to the operations and business of the Joint Venture (including all costs incurred pursuant to this Deed) and the Joint Venture Property. A Manager shall provide to each Joint Venturer from time to time such information from such books, accounts and records as the Joint Venturer reasonably requires in order to enable it to carry out the procedures, and file and otherwise distribute the information, as is necessary to meet the reporting, accounting and taxation requirements imposed on the Joint Venturer concerned. Each Joint Venturer shall have the right, at all reasonable times and after giving reasonable notice to the
Page 30
Manager, to inspect such books, accounts and records and all or any of the Joint Venture Property.
- (1) The General Manager shall keep such other records and accounts in respect of the Joint Venture as any Joint Venturer may reasonably require.
(i) The General Manager shall cause annual audits of the Joint Venture accounts to be carried out, at the cost of the Joint Venture, by the General Manager's auditor. If b reason of a particular Joint Venturer having a X financial year which is di erent from that covered by the annual audit of the Joint Venture accounts, it is necessary for a supplementary audit of the Joint Venture accounts to be conducted, the General Manager shall cause the General Manager's auditor to carry out such supplementary audit at the cost of the Joint Venture. Copies of such audits shall be furnished by the General Manager to each of the Joint Venturers within 45 days of the end of the relevant financial year.
(k) Any Joint Venturer may, at the cost of such Joint Venturer, require a Manager to furnish a special report of the auditor in respect of transactions of that Manager concerning its Participating Interest or in respect of the records and accounts kept or caused to be kept by that Manager pursuant to this Deed, and in the case of the General Manager, the Administration Agreement and of the costs and expenses and liabilities of the Joint Venturer or that Manager and in relation to any information or data concerning such Joint Venturer's Participating Interest.
(1) A Manager shall use all reasonab!e endeavours to procure that the auditor in conducting audits pursuant to this Deed shall satisfy the reasonable requirements of each Joint Venturer or its auditors.
(m) In addition to its other obligations as set out in this Clause 5.3, each Manager shall ensure that all information and material prepared by it relating to the Joint Venture (whether prepared at the request of one or both Joint Venturers) shall be furnished to each Joint Venturer at the same time.
5.4 Insurance
The General Manager shall obtain and keep current, at the cost of the Joint Venture, such insurances with respect to the Joint Venture Property and the operations of the Joint Venture as may be required by law and (subject thereto) as the JVO-ect, and shall submit to each Joint Venturer an annual insurance plan relatin to such insurances. Such insurances shall be taken 5ut in the &me of 4 e re evant Manager(s) and the Joint Venturers and, if a Joint Venturer has given a PermittedL-@ which so r e q n Chargee under that Permitted Charge or a representative of the Chargee, for their respective rights and interests.
5.5 Performance of Management Functions
(a) Each of the Managers shall perform all of its obligations hereunder and conduct all operations in a good workmanlike and commercially reasonable and competent manner in accordance with the most suitable financial, engineering, management, construction and mining methods and practices and, without limiting the generality of the foregoing, in accordance with Project Manuals.
(b) Each of the Managers shall not directly or indirectly carry on or be interested in any other business or activity or other operation.
Page 31
(c) So far as is reasonably practicable and consistent with effective, efficient and economic operations, a Manager shall recommend and allow only such materials, plant, machinery, equipment and supplies to be purchased or accumulated or stockpiled as may be required for normal operations and the abnormal purchase, accumulation or stockpiling of any of the same shall be avoided by the Manager unless otherwise agreed by the Joint Venturers. 6
I . * Except in respect of employment contracts with its executive directors, a Manager shall not without ' r written approval of the JVO-C enter into any contract or other d e a i n g to the pertormance ot its functions or the activities of the Joint Venture with any Ass-n of a Manager or- - r.
(e) A Manager shall not without the prior written approval of the JVOC delegate or subcontract any of its responsibilities or duties under this Deed or, in the case of the General Manager, the Administration Agreement, it being the intention that the Manager will only delegate or subcontract responsibilities and duties with respect to a specific 'on where it is not commercially --'Y economic for the Manager to carry out such unction itself.
., 1:::: (t) The General Manager shall establish and/or cause the Ore Purchase and ~,,. , ,, . Shipping Manager to establish proper systems of internal control to enable all Joint Venture Property to be adequately controlled and accounted for and to provide reasonable control of transactions.
... ~
(g) All invoices and financial statements, financial reports and billings rendered by a Manager to the Joint Venturers shall reflect properly the facts of all I activities and transactions handled for the account of the Joint Venturers. I
! 1 ,,{*if : c.,
(h) A Manager shall promptly notify the Joint Venturers of any si nificant -8-m 1 litigation taken or threatened by or against any Manager in relatl n to JoTnt venture and shall keep the Joint Venturers informed of the progress of such litigation or threatened litigation.
i (i) A Manager shall not have any right or power (except for liens arising in the
normal and ordinary course of Susiness) to mortgage, pledge, charge, e n c u m or create any lien over or trust in respect of (or purport or attempt to do any of the same) the JointMntute Prooerty or any of it and each Manager shall indemnify and hold the Joint Venturers harmless from and against all losses, claims and liabilities arising out of any act or the assumption of any obligation by that Manager in contravention thereof.
0) A Manager shall not have the authority to act for or to assume any o m t i o n or liabiliw on behalf of the Joint Venturers, or any of them, except such authority as is conferred on that Manager by or pursuant to this&&@ the Admi -nt or the Joint Venturers or, so far as it relates to a particular Joint Venturer, by that Joint Venturer;
(k) The General Manager shall take an inventory of Products in process and in stockpile and of nickel ore purchased, whether shipped or not, in accordance with generally accepted industry practice or other means appropriate in the circumstances at the end of each month and at the end of the financial year.
Repl
(a)
Page 32
The General Manager and the Ore Purchase and Shipping Manager shall devise and carry out programmes for the routine taking of inventories of Joint Venture Properly.
Reconciliation of any inventory with the General Manager's records and the Ore Purchase and Shipping Manager's records shall be made by that Manager and a list of averages and shortages shall be furnished to the Joint Venturers.
Any of the Joint Venture Property may be classified as surplus by the General Manager, when deemed by it to be no longer needed for the purposes of the Joint Venture, by giving th ers notice thereof and thereafter may be disposed of by the G e g e r subject to-y directions of the Joint Venturers provided that if any approved budget contemplated such disposal or if the aggregate fair market value in respect of any lot to be disposed of at any time does not exceed $ 5 0 y 0 (or $1,000,000 per annum in aggregate) the General Manager may wit out any such notice dispose thereof to the best advantage for the benefit of the Joint Venturers in accordance with their respective Participating Interests as it may see fit.
Each Manager shall report promptly to the Joint Venturers the details of any departures from the requirements of this Clause 5.5.
Each Joint Venturer shall take whatever action as may be reasonably within its power, including exercising its voting power, to ensure that each Manager complies with its duties and responsibilities hereunder.
None of the Managers may assign any of its rights or obligations under this Deed without the consent of the Joint Venturers (other than a Defaulting Joint Venturer).
In performing its duties and responsibilities under this Deed and (in the case of the General Manager) the Administration Agreement, each of the Managers shall in all respects treat, deal with and regard the Joint Venturers fairly and equitably, notwithstanding the different sizes of their respective Participating Interests.
The Joint Venturers shall share in the benefits and assume the obligations arising out of the actions taken by the Managers in the performance by them of their duties and responsibilities under this Deed and (in the case of the General Manager) the Administration Agreement in the proportions in which they hold their respective Participating Interests.
It is acknowledged that the responsibilities and duties of the Managers may, to some extent, overlap. The Managers shall therefore liaise closely at all times to ensure that each performs its responsibilities and duties so as not to interfere with or hinder the activities of the other Manager and so as to maximise the efficiency of the Joint Venture.
acement of the Manager B The appointment of a Manager shall continue until terminated: 1 (i) without notice simultaneously with the termination ofthis Deed; I (ii) forthwith upon notice being given by each of the Joint Venturers
(other than a Defaulting Joint Venturer);
Page 33
(iii) forthwith upon an order being made for the winding-up or dissolution without winding-up (otherwise than for the purposes of reconstruction or amalgamation) of the Manager; yfjL a1 ,!?: ,T3x-.
16 (iv) forthwith in the event that a provisional liquidator, receiver and ..*
manager, official manager or like official is appointed over, or a holder of an Encumbrance takes possession of, the whole or any substantial part of the undertaking and property of the Manager;
(v) forthwith upon notice being given to the Manager by a Joint Venturer (other than a Defaulting Joint Venturer) in the event that execution is levied against any part of the Manager's property or judgment for an amount exceeding $1,000.00 is awarded against the Manager which is not stayed and which remains unsatisfied for a period of 14 days; or
(vi) forthwith upon notice being given to the Manager by both Joint Venturers (other than a Defaulting Joint Venturer) in the event that the Manager defaults in a material respect in observing or performing any covenant or condition in this Deed on its part to be observed or performed and, within 60 days after notice is given to it by a Joint Venturer specifying such default and demanding that the Manager remedy the same, the Manager does not remedy such default or diligently proceed to do so or has not commenced reasonable and diligent action towards remedying the default, which action is continuing in a bona fide manner (or, if the default is incapable of being remedied, pay adequate monetary compensation to the affected Joint Venturers).
(b) Upon termination of the appointment of a Manager, the Joint Venturers shall forthwith appoint a replacement Manager (the "Successor Manager").
(c) ASucce sspr Manader shall be a p p o i w by the JVOC.
(d) When a Manager ceases to be such it shall deliver to the Successor Manager all Joint Venture Property and all documents, books, accounts and records relating to the Joint Venture which it was the responsibility of the outgoing Manager to maintain. An audit shall be conducted by a registered company auditor appointed by the Successor Manager of all such books, accounts and records. If title to any Joint Venture Property is held in the name of the outgoing Manager, it shall promptly transfer such title to the Successor Manager at the cost of the Joint Venture. If the outgoing Manager shall fail to transfer title to any Joint Venture Property to the Successor Manager as aforesaid, the Joint Venturers shall have the power to execute, in the name of the outgoing Manager, all instruments necessary to effect such transfer of title to theSuccessor Manager.
(el If a Manager ceases to be such for any reason, it shall nevertheless continue to have all the responsibilities and duties of a Manager until a Successor Manager is appointed.
(9 Aspecial 'inventory shall be taken at the cost of the Joint Venturers when there is a change in a Manager.
;I] .. 11- 4 ,.#I : Page 34 :, 8 , - I! I J 1 1 ; ~ li / I ;., ., i l l 5.7 Confidentiality
I A (a) Unless otherwise agreed by the Joint Venturers (other than any Defaulting - Joint Venturer), all marketing information obtained by any of the Joint Ii Venturers in the coursear r'ne rnarket~ng of its Subject Products and the
details of economic and technical studies, cost and operating data and particulars of the tonnage and quality of ore reserves prepared or obtained in the course of the Joint Venture, and any information obtained pursuant
(1 to paragraph (d) of Clause 12.1, shall be kept collfldentlal and shall not be I
disclosed by the Joint Venturers otherwise than to each other or:
(0 to their, or their respective Related Bodies' Corporate directors, officers, employees and auditors or to the Premier, the Treasurer, the Minister for Finance or the Under Treasurer of the State of Queensland or to any officer of the Crown in right of the State of Queensland;
(ii) if and to the extent required pursuant to any necessarily applicable legislation or other legal requirement or pursuant to the rules or regulations of a recognized stock exchange (including, in particular the Australian Stock Exchange Limited) applicable to the disclosing Joint Venturer or to a Related Body Corporate of that Joint Venturer;
(iii) if and to the extent that it may in the opinion of the disclosing Joint Venturer be necessary or desirable to disclose to any government or competent authority in connection with applications for approvals, authorities and consents in relation hereto;
(iv) to a recognized financial institution in connection with any finance which has been arranged or is sought to be arranged;
(v) to bona fide potential purchasers or assignees of a Joint Venturer's Interest or part thereof;
(vi) to independent consultants and contractors of any Joint Venturer whose duties in relation to the Joint Venture reasonably require such disclosure;
(vii) if and to the extent that it may in the opinion of the disclosing Joint Venturer be necessary or desirable to disclose to any participant in, or any financial institution involved in the arranging of the financing of, any project in which the disclosing Joint Venturer or a Related Body Corporate of that Jolnt Venturer has an interest;
(viii) to the extent that the disclosing Joint Venturer obtains such information otherwise than in the course of the marketing of its Subject Products or from the Joint Venture, as applicable; or
(ix) to the extent that at the time of the proposed disclosure it is information in the public domain;,
provided however that:
(A) any disclosure pursuant to sub-paragraphs (iv), (v) or (vii) of this ~ a r a a r a ~ h shall onlv be made for the DurDoses of satisfvina such institkion or potential purchaser or assignee as to the Gal& and commercial viability of the Joint Venture.
Page 35
(6) any disclosure pursuant to sub-paragraphs (i), (iv), (v), (vi) or (vii) of this paragraph shall only be made subject to the person to whom disclosure is made covenanting and agreeing with the Joint Venturers in a form satisfactory to them and enforceable by either of them that the relevant information shall not be disclosed to any other person whomsoever for any purposes whatsoever unless the first mentioned person is already otherwise legally bound not to disclose such information (but this proviso (6) shall not apply to a bona fide disclosure by a Joint Venturer to its independent legal advisers in relation to matters relative to this Deed).
(b) The provisions of this Clause 5.7 shall continue to bind a Joint Venturer notwithstanding that it may have withdrawn from the Joint Venture or that it may have ceased to be a party to this Deed but for only a period o a years from such withdrawal or such cessation. -
(c) Wherever possible public announcements with respect to the Joint Venture shall be made by the Joint Venturers either jointly or concurrently, and wherever possible each Joint Venturer shall inform the other Joint Venturer of any other proposed public release of information relating to the Joint Venture prior to such release.
BUDGETING, CONTRIBUTIONS AND UIJBUDGETED DEVELOPMENT CAPITAL EXPENDITURES
Reports and Budgets
The General Mana er shall be responsible for the preparation of all financial reports 4 and budgets re at~ng to the Joint Venture. - - Annual Financial Plan
The General Mana er shall submit to the JVOC annually, for review and approval as provid 4 in lause 4.1, a proposed financlalplanfor the operations of the Joint Vehture for the next Cost Year. Such plan shall make provision for o-ital expenditures other than Development Ca ' diture (including replacement capital expenditures and capita e x p e n d i ! e type referred to in Clause 4.10(0)), shall be in accordance with that part of the Business Plan relevant to that next Cost Year, and shall be in reasonable detail. The General Manager shall furnish copies of each such plan, as proposed and as approved, to each Joint Venturer. The General Manager shall, if requested by the JVOC, prepare a revised financial plan. To the extent that a financial plan includes part of the Business Plan, or capital expenditures of the type referred to in Clause 4.10(0), the JVOC shall approve such financial plan unless the Joint Venturers unanimously otherwise agree. The General Manager shall also (in accordance with Clause 5.3(g)) prepare and submit to the Joint Venturers for their approval, along with each such financial plan, a new business plan for the forthcoming five year period. Such business plan shall include a programme of activities and an estimate of expenditures for the Joint Venture over that five year period. It is the intention of the Joint Venturers that, at any time, there will be in existence a business I in respect of the next five Cost Years (including the current Cos d? The Joint Venturers acKiiowledge that the business plan for the five Cost Years commencing with the Initial Cost Year shall be the Business Plan (which shall only be varied during such time in accordance with Clause 4.10(1)). Any capital expenditures of the type referred to in Clause 4.10 ) will require the approval of each Joint Venturer pursuant to that Clause -+ be ore being included in such a financial plan.
Page 36
6.3 Submission of Budgets for Development Programmes
- If and whenever the JVOC approves a Dev roaramme pursuant to Clause 4.1, the General Manager shall submit t o w f o r review and approval, as provided in that Clause, a proposed budget for Development Capital Expenditures for that Development Programme, and may from timmo tlme zubmit t o + r e ~ M W for such review and approval proposed revisions to any such previous1 approved budget. The General Manager shall furnish copies of each such bu dY get and revision, as proposed and as approved, to each Joint Venturer. Such budgets as so approved are hereinafter referred to as "Approved Development Budgets", which expression includes such approved budgets as they may be revised with the approval of the JVOC. All expenditures pursuant to a financial plan approved under Clause 6.2 or pursuant to an Approved Development Budget shall be made in conformity with the procedures set out in the relevant Project Manuals. -
6.4 Calls and Contributions
(a) Subject to Clauses 7 and 8,the General Manager and the Ore Purchase and Shipping Manager shall make calls t Venturers for funds to - meet all costs, liabilities and expenses of the Joint enture properly incurred (hereinafter referred to as "Joint Venture Ex enses"), including, ____%_ without limitation, funds to meet financial plazs approve under Clause 6.2 and Approved Development Budgets. The Ore Purchase and Shipping Manage- only make calls in respect of costs, liabilities and expenses incurred by it in performing its functions. In paragraphs (b), (c), (d), (e) and (9 of this Clause 6.4 and in Clause 6.5, the Manager which makes a call (in accordance with this paragraph) shall be referred to as the "Calling Manager".
(b) The calls referred to in paragraph (a) of this Clause 6.4 may be made in respect of Joint Venture Expenses remaining payable at the date on which the calls are payable and Joint Venture Expenses which the Calling Manager estimates will become payable (in accordance with an approved financial plan or Approved Development Budget) during the period of one week after the date on which the calls are payable. Each call shall be accompanied by an estimate of calls for each of the seven weeks following the week for which the call is payable. Calls may be expressed to be payable in Australian dollars, United States dollars, French francs or such other freely available currency as the Calling Manager may specify. To the extent that it is reasonable to do so, a call may be expressed to be payable in a number of currencies. The calls shall be made on both Joint Ventiurers in proportion to their respective Participating Interests. -
(c) The Calling Manager shall give notice of a call on the Wednesday of each week advising each Joint Venturer either that funds are required on the following Tuesday or, in particular cases where payments are due and payable later than the following Tuesday, the days on which called funds are required. Each Joint Venturer shall contribute its share of the required funds in accordance with the Calling Manager's notice, the latest due date for the call to be the Friday of the week following the call.
(d) The calls referred t'o in paragraph (a) of this Clause 6.4 may, at the election of any Joint Venturer by notice to the Manager, be. made on a monthly rather than weekly basis: Such calls may be made in respect of Joint Venture Expenses remaining payable at the date on which the calls are payable and Joint Venture Expenses which the Calling Manager estimates
will become payable (in accordance with an approved financial plan or Approved Development Budget) during the period of one month after the date on which the calls are payable. Each call shall be accompanied by an estimate of calls for each of the two months following the month for which the call is payable.
(e) If a Joint Venturer elects to receive monthly calls in the manner referred to in paragraph (d) of this Clause 6.4, the Calling Manager shall give notice of the call on the first Wednesday of each month, advising the Joint Venturer either that funds are required on the following Tuesday or, in particular cases where payments are due and payable later than the following Tuesday, the days on which called funds are required. The Joint Venturer shall contribute its share of the required funds in accordance with the Calling Manager's notice, the latest due date for the call to be the Friday of the week following the call.
The Calling Manager shall deposit Called Sums and other moneys received from or for the account of the Joint Venturers in a working ca ital bank
A u c h account and shall not deposit any other moneys in such ccount a m shall be in the name of the Calling Manager but the moneys standing to the credit of the account shall belong to the Joint Venturers in proportion to the amounts respectively paid to such account by or on behalf of them and the Calling Manager shall keep sufficient records as will enable the respective entitlements of the Joint Venturers to such moneys (and to any interest or income accrued on those moneys) from time to time to be determined. Payments shall be made from such account to meet Joint Venture Expenses payable or accrued or to become payable or to be accrued in respect of the. Joint Venturer concerned. Moneys standing to the credit of the account may be invested by the Calling Manager in a prudent manner for a term not exceeding one week (in the case of moneys paid pursuant to a weekly call and any interest thereon) or one month (in the case of moneys paid pursuant to a monthly call and any interest thereon). All bank interest and other income derived from the investment of the moneys paid by or attributable to a Joint Venturer shall be for the account of that Joint Venturer. Such moneys, bank interest and other income shall be applied promptly to meet Joint Venture Expenses to the intent that calls made under paragraphs (b) or (d) of this Clause 6.4 be reduced to the maximum. extent possible.
(g) With the consent of each ofthe Joint Venturers, a Manager may make a call for funds other than in accordance with the timing schemes set out in paragraphs (b) and (d) of this Clause 6.4.
Unbudgeted Expenditures
(a) rail freight charges;
(b) the purchase of imported ore for processing; and
Page 38
the total amount of such expenditures provided for in the annual financial plan approved pursuant to Clause 4.1. The Calling. Manager shall report promptly to the Joint Venturers any expenditure on a budget item which varies, or which the Calling Manager forecasts will vary, from the amount contained in the relevant financial plan.
6.6 Capital Account Balances
The Capital Account Balances of the Joint Venturers in respect of the Joint Venture Property as at the Effective Date are as follows:
Capital Account Balances
Joint Venturer Joint Venture Property
QNR NRNQ
A$248 million A-n AS310 million
The General Manager shall maintain records of the Capital Account Balances of each Joint Venturer in respect of the Joint Venture Property, which shall be adjusted to take account of all moneys paid or applied for capital expenditures after the Effective Date as recorded in the fixed asset register (as adjusted for disposals but not for any accounting or tax depreciation) and in consequence of all
A h a n g e s in Participating Interests occurring after the Effective Date. For the purposes of this Clause 6.6, the General Manager shall separately record:
(a) capital expenditure of the Joint Venture for maintenance purposes and replacement capital expenditure; and
(b) capital ex enditure of the Joint Venture other than that specified in paragrap -&-- a) above.
6.7 Status of the Business Plan
It is confirmed by the Joint Venturers that the Business Plan sets out the agreed minimum objectives and commitments of the Joint Venture for the five year period ending 30 June 1997. To this extent, it is expressly acknowledged and agreed that:
(a) the Joint Venture is not constrained by the Business Plan from pursuing additional works and programmes, including Development Programmes; and
(b) the approval and implementation of any such additional works and programmes shall not, except to the extent required under Clause 4.10, be subject to the approval of each Joint Venturer.
7. DEVELOPMENT PROGRAMMES
7.1 Elections not to Contribute
If the JVOC.approves a Development Programme, with or without amendment, the General lmanaaer shall promptly glve norice (hereinafter referred to as a "Deve~opment Notice") ro ooth Jolnt Venturers. Any Joint Venturer may, by notice given to the other Joint VWittmT within TT days after the giving of the Development Notice, elect not to contribute towards the cost of the Development Programme and, if any such Jolnt Venturer so elects, the other Joint Venturer may, by notice
given to the first Joint Venturer within 7 days after the expiration of such period Of 21 days, similarly elect. A Joint Venturer which elects under this Clause 7.1 is hereinafter referred to as a "Non-Contributing Joint Venturer" and a Joint Venturer which does not elect under this Clause 7.1 is hereinafter referred to as a "Contributing Joint Venturer". A Non-Contributing Joint Venturer may not become a Contributing Joint Venturer in respect of the Development Programme concerned unless the other Joint Venturer (other than a Defaulting Joint Venturer) consents. This Clause 7.1 shall not apply to any programme for works included in the BusinEss Plan. - Payment of Development Programme Called Sums
If there is a Non-Contributing Joint Venturer in respect of a Development Proaramme. then notwithstandina Clause 6.4(b) or (d), all Development ~rogramme' Called Sums payable-in respect thereof shall. be payable by the Contributing Joint Venturer. Calls in respect of a Development Programme shall be made by the General Manager and paid by the Contributing Joint Venturers in accordance with Clause 6.4(c) or (e).
Dilution of Non-Contributing Joint Venturer's Participating lnterest
On the date certified by the General Manager to each of the Joint Venturers as the date of completion of the Development Programme (which date shall be determined by reference to the relevant completion or performance standards or
*criteria set out in that Development Programme), the Participating lnterest of the Non-Contributing Joint Venturer shall be reduced to a percentage determined according to the formula
where:
a is the Non-Contributing Joint Venturer's Participating Interest after the reduction;
b is the Non-Contributing Joint Venturer's Participating Interest before the reduction;
c is the Non-Contributing Joint venturer's Capital Account Balance before the reduction (adjusted in the manner provided below); and
d is the total of the Development Programme Called Sums which would but for Clause 7.2 have become payable by the Non-Contributing Joint Venturer and which have been paid by the Contributing Joint Venturer under the said Clause 7.2 since the commencement of the carrying out of the Development Programme.
For the purposes of applying factor "c" in the formula set out above, the Capital Account Balance of a Non-Contributing Joint Venturer shall be adjusted to take account of movements in the Consumer Price Index for each quarter beginning 1 January, 1 April, 1 July and 1 October from the Effective Date up to the day preceding the reduction pursuant to this Clause 7.3, calculated in accordance with the following formula:
Page 40
MO x ~2 Mn =
C1 -
Where:
. . I. , -
MO is the Capital Account Balance at the commencement of the quarter;
C1 is the Consumer Price lndex (all groups) for the City of Brisbane for the preceding quarter, as published by the Australian Statistician;
C2 is the Consumer Price lndex (all groups) for the City of Brisbane for the quarter, as published by the Australian Statistician; and
I!-\ Mn is the adjusted Capital Account Balance at the end of the quarter,
provided that, for the purpose of applying this formula, any adjustment to the Capital Account Balance made during a quarter pursuant to Clause 6.6 shall be deemed to have been made at the end of the quarter.
Should the Consumer Price lndex be discontinued or abolished then the price index substituted for it by the Australian Statistician shall be used for the calculation referred to above and if no price index shall be substituted then such index or indexes shall be used as in the opinion of the Chief Accountant or other similar responsible officer of Piustralia and New Zealand Banking Group Limited (or such other bank as the Joint Venturers may nominate from time to time) will most accurately reflect the changes in the prevailing level of prices in the City of Brisbane.
On the date certified by the General Manager as aforesaid the aggregate Participating lnterest of the Contributing Joint Venturer shall be increased by a percentage equal to the aggregate percentage by which the Participating lnterest of the Non-Contributing Joint Venturer has been reduced.
7.4 Transfers following Changes in Participating lnterests I As from the date of any change pursuant to Clause 7.3 in the Participating lnterests of any of the Joint Venturers, the respective obligations of the Joint Venturers to pay Called Sums falling due after such date shall be measured by reference to their Particioatino lnterests as chanoed on such date. Uoon anv such chanoe that fractiohal psrt of the lnterest of Gach Joint Venturer whose ~artl'cipating lnte6st has been reduced shall be transferred to the Joint Venturer whose Participating lnterest has been increased (free and clear of any Permitted Charge which may have been given by the transferor) so that their respective lnterests accord with their Participating Interests. Any such transfer shall be and shall be expressed to be effective as from the date certified by the General Manager under Clause 7.3 notwithstanding that it may not be executed until a later date. All legal costs, taxes, duties or other imposts or any increases thereof which are or will be incurred as a result of any such transfer shall be borne by the Non-Contributing Joint Venturer.
I 7.5 Execution of Documents I1 I
Each Joint Venturer shall execute all instruments and documents as are necessary to vest any fractional part of any lnterest of a Joint Venturer to be transferred pursuant to Clause 7.4 in the transferee, and each of the Joint Venturers hereby irrevocably appoints the other Joint Venturer to be its attorney in its name and on its behalf to execute all such instruments and documents and to do all such things necessary or requisite for such purpose.
Page 41
7.6 Right to Repurchase Participating lnterest
A Joint Venturer's Participating lnterest may be diluted pursuant to Clause 7.3 as a that Joint Venturer not to cantub result of an electi n by ute to the cost of a '
Development Progamme providing for capital expenditure in relat~on to the TreatlllEnt Facilities (but not in connection with an increase in *tion capacity). In this event the Non-Contributing Joint Venturer may repurchase the fractionipart of its lnterest which was transferred to the other Joint Venturer as a consequence of the dilution pursuant to Clause 7.3, at any time during the period of two years
'following the date upon which the dilution became effective. The price which the Non-Contributing Joint Venturer would be required to pay for such fractional part shall be calculated according to the formula:
- 2 9
is the purchase price; and
is the total amount which the Non-Contributing Joint Venturer would have contributed towards the Development Programme if it had not elected not to contribute.
In the event that a Non-Contributing Joint Venturer elects to repurchase in accordance with this Clause 7.6, the transfer of the fractional part of the lnterest shall be effective on and from the date of payment of the purchase price, and Clauses 7.4 and 7.5 shall apply mutatis mutandis to such transfer.
DEFAULTS
..1 Recovery of Unpaid Called Sums
(a) constitute a debt due and payable to the relevant Manager by the . Defaulting Joint Venturer obliged to pay the Unpaid Called Sum; and
(b) be recoverable by the reievant Manager fromthat Defaulting Joint Venturer (without prejudice to any other means of enforcement available to the Manager) in any court of competent jurisdiction.
For the purposes of this Clause 8; the relevant Manager shall mean:
the. General Manager, in the case of an Unpaid Called Sum payable under
Page 42
Any such interest, recovered shall belong to the Joint Venturer other than the Defaulting Joint Venturer.
8.2 Remedying ot Payment Defaults
A default by a Defaulting Joint Venturer in the payment of any Called Sum is not remedied unless and until:
(a) if the other Joint Venturer has not paid any of the Unpaid Called Sums referable to that Defaulting Joint Venturer pursuant to Clause 8.3, the Defaulting Joint Venturer or any other person on its behalf other than (except, in the case of a default under Clause 8.3, where the original default the subject of the related notice under that Clause is remedied as provided in this Clause) the other Joint Venturer has paid to the relevant Manager all those Unpaid Called Sums and all interest accrued thereon pursuant to Clause 8.1 ;
(b) if the other Joint Venturer has paid all or any of those Unpaid Called Sums pursuant to Clause 8.3, the Defaulting Joint Venturer or any other person as aforesaid has paid:
0) to the relevant Manager - any Unpaid Called Sums not so paid and all interest accrued thereon pursuant to Clause 8.1; and
(ii) subject to paragraph (9 of Clause 8.5, to the other Joint Venturer which has so paid part of any Unpaid Called Sum - the part of the Unpaid Called Sums so paid and all interest accrued thereon pursuant to Clause 8.3; or
(c) the Unpaid Called Sums and all interest accrued thereon pursuant to Clause 8.1 or Clause 8.3 have been recovered by exercise of rights conferred by a Cross Charge; or
(d) a purchase of the Defaulting Joint Venturer's lnterest is completed pursuant to Clause 8.4; and
all costs (including legal costs) of enforcement or recovery, or attempted enforcement or recovery, and all stamp duty paid on any Cross Charge granted by the Defaulting Joint Venturer, incurred by the Managers or the other Joint Venturer
I by reason of the default of the Defaulting Joint Venturer have been paid to the Managers or the other Joint Venturer, as applicable.
8.3 Payments by the Other Joint Venturer I (a) When a Joint Venturer defaults in the payment of a Called Sum, the
relevant Manager shall forthwith give notice of the default (hereinafter referred to as a "Default Notice") to the other Joint Venturer on the day following the due date and to the Chargees under all Permitted Charges given by the Defaulting Joint Venturer on the second day following the due date and the other Joint Venturer q within 7 days after the default in payment of the m y the Un~aid Called Sum.
(b) Any amount paid by a Joint Venturer in accordance with paragraph (a) of this Clause 8.3, together with interest thereon at the Applicable Rate of Interest from the date of payment by that Joint Venturer until the default in payment thereof has been remedied, shall constitute a debt due and payable to that Joint Venturer by the Defaulting Joint Venturer and may be recovered from the Defaulting Joint Venturer in any court of competent
jurisdiction (without prejudice to any other means of recovery available to that Joint Venturer).
(c) The entitlement of a Joint Venturer to pay the Unpaid Called Sums referable to a Defaulting Joint Venturer in accordance with paragraph (a) of this Clause 8.3 shall continue until all defaults by the Defaulting Joint Venturer in payment of Called Sums have been remedied.
Purchase of Defaulting Joint Venturer's lnterest
(a) If a default in the payment of the whole or any part of a Called Sum (other than a Development Programme Called Sum) has occurred and remains unremedied, the Joint Venturer other than the Defaulting Joint Venturer may.during the period of 45 days after the Date for Remedy seek a determination of the Fair Value of the lnterest of the Defaulting Joint Venturer as provided in paragraph (b) of this Clause 8.4.
(b) If at the end of the period of 45 days after a Date for Remedy, in respect of a Called Sum (other than a Development Programme Called Sum) (hereinafter referred to in this Clause 8.4 as the "Original Defaulted Sum") a default by the Defaulting Joint Venturer in payment of the whole or any subsequent Called Sum remains unremedied and the lnterest of the Defaulting Joint Venturer has not been sold under a power of sale conferred by its Cross Charge or a Permitted Charge given by the Defaulting Joint Venturer, the Joint Venturer other than the Defaulting Joint Venturer (hereinafter referred to as a "Non-Defaulting Joint Venturer") shall, in addition to any other remedies which may be available to it, have the option, exercisable by notice to the Defaulting Joint Venturer and any Chargee under any Permitted Charge given by the Defaulting Joint Venturer, after the date 45 days after the determination of the Fair Value of the lnterest of the Defaulting Joint Venturer, but before the date 90 days after the determination of the Fair Value of the lnterest of the Defaulting Joint Venturer, to purchase the whole but not part of such lnterest as hereinafter provided, provided that, if a Dilution Notice has been given pursuant to Clause 8.5 in respect of a default by that Defaulting Joint Venturer in payment of a Development Programme Called Sum, the Development Programme concerned has not been completed and all transfers of part of the lnterest of the Defaulting Joint Venturer have not been effected in accordance with paragraph (e) of Clause 8.5, such option may not be exercised.
(c) The price payable for the lnterest of the Defaulting Joint Venturer pursuant to this Clause 8.4 shall be the Fair Value thereof.
(d) The Fair Value of the lnterest of a Defaulting Joint Venturer shall, unless the Defaulting Joint Venturer, any Chargee under any Permitted Charge given by it and the Non-Defaulting Joint Venturer agree upon some other sum, be a sum equal to a fair price as between a willing seller and a willing buyer in the actual market at the time determined by an independent valuer (hereinafter referred as the "Valuer") nominated by the President of the Institute of Chartered Accountants in Australia on the request of the Joint Venturer seeking the determination as contemplated by paragraph (a) of this Clause 8.4. Such Fair Value shall be determined as at the first day of the month following the nomination of the Valuer, and the Valuer shall be instructed to complete his valuation within 30 days after the date of his nomination and to deliver a copy of his valuation to both Joint Venturers and any Chargee under any Permitted Charge given by the Defaulting Joint Venturer. The fees and expenses incurred in connection with the valuation
1 Page 44 i
shall be paid by the General Manager and charged to the Defaulting Joint Venturer. In determining the Fair Value: I 0) the Valuer shall take account of any bona fide offers actually ,
received for a Participating Interest; and I I
(ii) the Valuer shall be acting as an expert and not as an arbitrator and 1 his determination shall be accepted as final and conclusive.
(e) Payment of the price referred to in paragraph (c) of this Clause 8.4 shall, unless a court of competent jurisdiction otherwise orders, be made by the Joint Venturer making the purchase by first discharging any statutory charges and liens on the lnterest of the Defaulting Joint Venturer and paying the fees and expenses of the Valuer or, where the General Manager has paid these fees and expenses pursuant to paragraph (d) of this Clause 8.4, reimbursing the General Manager the amount so paid and then paying or crediting the balance in the following priority:
(i) first, to the relevant Manager - all Unpaid Called Sums, other than Development Programme Called Sums, referable to the Defaulting Joint Venturer and which have not been paid pursuant to Clause 8.3 and all interest accrued thereon pursuant to Clause 8.1;
(ii) second, if the Non-Defaulting Joint Venturer has paid any Unpaid Called Sums, other than Development Programme Called Sums, referable to the Joint Venturer pursuant to Clause 8.3, to that Non- Defaulting Joint Venturer - the amount so paid and all interest accrued thereon pursuant to Clause 8.3;
(iii) third, to the relevant Manager - all Development Programme Called Sums referable to the Defaulting Joint Venturer which have not been paid pursuant to Clause 8.3, and all interest accrued thereon pursuant to Clause 8.1 ;
(iv) fourth, if the Non-Defaulting Joint Venturer has paid any Development Programme Called Sums referable to the Defaulting Joint Venturer pursuant to Clause 8.3, to that Joint Venturer - the amounts so paid and all interest accrued thereon pursuant to Clause 8.3;
(v) fifth, on behalf of the Defaulting ~o in t Venturer - all legal costs, taxes, duties or other imposts or any increases thereof which are or will be incurred as a result of the transfer of the lnterest of the Defaulting Joint Venturer to the Joint Venturer making the purchase; and
(vi) sixth, on behalf o f the Defaulting Joint Venturer - the amounts respectively secured by any Permitted Charges given by the Defaulting Joint Venturer in accordance with their respective priorities,
provided that nothing in this paragraph (e) shall confer priority of payment on any moneys which a Defaulting Joint Venturer is obliged to pay under Clause 8.9 in consequence of another Joint Venturer making a payment which is secured by a Permitted Charge over another Permitted Charge having priority before such Permitted Charge.
Page 45
(9 The completion of any purchase under this Clause shall take place on a date, not later than 60 days after the date of the exercise of the option conferred by paragraph (b) of this Clause 8.4, and at a place in Australia, selected by the Non-Defaulting Joint Venturer.
(g) At completion the lnterest of the Defaulting Joint Venturer shall be transferred to the Joint Venturer making the purchase free and clear of all Permitted Charges which may have been given by the Defaulting Joint Venturer.
(h) The provisions of Clauses 12.7 and 12.8 shall apply to any purchase under this Clause 8.4.
Election to Dilute Defaulting Joint Venturer's lnterest - Development Programme
(a) If at the end of the period of 45 days after the Date for Remedy in respect of a Development Programme Called Sum (hereinafter in this Clause referred to as the "Original Defaulted Sum") a default by the Defaulting Joint Venturer in payment of the whole 3r any part of a Development Programme Called Sum (whether it be the Original Defaulted Sum or any subsequent Development Programme Called Sum) remains unremedied and the Interest of the Defaulting Joint Venturer has not been sold under a power of sale conferred by its Cross Charge or a Permitted Charge then, in addition to any other remedies which may be available to it, the Non-DefaultingJoint Venturer shall have the option, at any time whilst the default of the Defaulting Joint Venturer remains unremedied, to elect by notice (hereinafter referred to as a "Dilution Notice") to the Defaulting Joint Venturer and any Chargee under any Permitted Charge given by the Defaulting Joint Venturer that the Participating lnterest of the Defaulting Joint Venturer be thereafter reduced in accordance with this Clause and that its lnterest be diluted accordingly; provided that such option may not be exercised after the Non-Defaulting Joint Venturer has sought a determination of the Fair Value of the lnterest of the Defaulting Joint Venturer pursuant to Clause 8.4(a) until either the Non-Defaulting Joint Venturer has notified the Defaulting Joint Venturer and the Chargees under all Permitted Charges given by the Defaulting Joint Venturer that it does not intend to exercise the option to purchase such interest conferred by Clause 8.4(b) or the option to purchase has expired.
(b) On the earlier of the thirtieth day of June and thirty-first day of December first following the date 14 days after the receipt of the Dilution Notice given pursuant to paragraph (a) of this Clause 8.5, or on such later date as the Non-Defaulting Joint Venturer may determine (such date being hereinafter -referred to as a "Dilution Date"), the Participating lnterest of the Defaulting Joint Venturer shall be reduced to a ~ercentage determined according to the formula
where:
e is the Defaulting Joint Venturer's Participating Interest after the reduction;
11 Page 46 I
f is the Defaulting Joint Venturer's Participating Interest before the reduction;
9 is the Defaulting Joint Venturer's Capital Account Balance before the reduction; and
8- h is the total of all Development Programme Called Sums
0) in the case of the first Dilution Date, in respect of which the Defaulting Joint Venturer has defaulted prior to that Dilution Date; and
(ii) in the case of any subsequent Dilution Date, which would but for paragraph (c) of this Clause 8.5 have become payable by the Defaulting Joint Venturer, and which have been paid by the Non-Defaulting Joint Venturer pursuant to that paragraph since the preceding Dilution Date.
On each Dilution Date the Participating lnterest of the Non-Defaulting Joint Venturer shall be increased by a percentage equal to the percentage by which the Participating lnterest of the Defaulting Joint Venturer has been reduced.
(c) As from the first Dilution Date, and notwithstanding Clause 6.4, the Development Programme Called Sums which would, but for Clause 8, have been payable by the Defaulting Joint Venturer shall be payable by the Non- Defaulting Joint Venturer in respect of the Development Programme concerned. Subject thereto, as from the first or any subsequent Dilution Date, the obligations of a Joint Venturer to pay Called Sums (other than Development Programme Called Sums) falling due after such Dilution Date shall be measured by reference to its Participating lnterest as increased or reduced on such Dilution Date. Subject further thereto, as from the first or any subsequent Dilution Date, the obligations of a Contributing Joint Venturer to pay Development Programme Called Sums falling due after such Dilution Date shall be measured by reference to its Participating lnterest as increased or reduced on such Dilution Date.
(d) Upon any reduction of the lnterest of the Defaulting Joint Venturer and increase in the lnterest of the Non-Defaulting Joint Venturer pursuant to paragraph (c) of this Clause, that fractional part of the Defaulting Joint Venturer's lnterest which is attributable to the reduction in its Participating lnterest shall be transferred to the Non-Defaulting Joint Venturer (free and clear of any Permitted Charge which may have been given by the Defaulting Joint Venturer) so that their respective Interests accord with their Participating Interests. Any such transfer shall be and shall be expressed to be effective as from the relevant Dilution Date notwithstanding that it may not be executed until a later date.
(e) The parties hereto acknowledge that, notwithstanding any other provision of this Clause 8.5, the lnterest of a Defaulting Joint Venturer shall only be reduced in accordance with this Clause 8.5 if the Defaulting Joint Venturer was the recipient of the original call or request for payment from the Manager in respect of the Development Programme Called Sum.
Page 47
$3 Automatic Dilution of Defaulting Joint Venturer's lnterest - Development Programme
(a) If at the end of the period of 365 days after the Date for Remedy in respect of a Development Programme Called Sum (hereinafter in this Clause referred to as the "Original Defaulted Sum"), a default by the Defaulting Joint Venturer in payment of the whole or any part of a Development Programme Called Sum (whether it be the Original Defaulted Sum or any subsequent Development Programme Called Sum) remains unremedied, the lnterest of the Defaulting Joint Venturer has not been sold under a power of sale conferred by the Cross Charge or a Permitted Charge given by the Defaulting Joint Venturer and no Dilution Notice has been given under paragraph (a) of Clause 8.5 (in relation to the default in payment of the Original Defaulted Sum or any subsequent Development Programme Called Sum), the Participating lnterest of the Defaulting Joint Venturer shall thereupon and on each thirtieth day of June and thirty-first day of December thereafter during the carrying out of the Development Programme and on the date certified by the General Manager to the Non- Defaulting Joint Venturer as the date of completion of the Development Programme (which date shall be determined by reference to the relevant completion or performance standards or criteria set out in that Development Programme) or, in each case, such later date (such later date not being later than such date of completion) as such Non-Defaulting Joint Venturer may agree (each such date being hereinafter referred to as a "Development Call Reduction Date") be reduced to a percentage determined according to the formula:
9 e = f x
g + j
where:
e is the Defaulting Joint Venturer's Participating Interest after the reduction;
f is the Defaulting Joint Venturer's Participating Interest before the reduction;
9 is the Defaulting Joint Venturer's Capital Account Balance before the reduction; and
i is the total of all Development Programme Called Sums
(i) in the case of the first Development Call Reduction Date, in respect of which the Defaulting Joint Venturer has defaulted prior to that Development Call Reduction Date; and
(ii) in the case of any subsequent Development Call Reduction Date, which would but for paragraph (b) of this Clause 8.6 have become payable by the Defaulting Joint Venturer and which have been paid by the Non-Defaulting Joint Venturer pursuant to that paragraph since the preceding Development Call Reduction Date.
On each Development Call Reduction Date the Participating lnterest of the Non-Defaulting Joint Venturer shall be increased by a percentage equal to
Page 48
the percentage by which the Participating lnterest of the Defaulting Joint Venturer has been reduced.
- (b) As from the first Development Call Reduction Date under paragraph (a) of this Clause 8.6, and notwithstanding Clause 6.4, the Development Programme Called Sums which would, but for Clause 8, have been payable by the Defaulting Joint Venturer, shall be payable by the Non-Defaulting Joint Venturer in respect of the Development Programme concerned. Subject thereto, as from the first or any subsequent Development Call Reduction Date, the obligations of a Joint Venturer to pay Called Sums (other than Development Programme Called Sums) falling due after such Development Call Reduction Date shall be measured by reference to its Participating lnterest as increased or reduced on such Development Call Reduction Date. Subject further thereto, as from the first or any subsequent Development Call Reduction Date, the obligations of a Contributing Joint Venturer to pay Development Programme Called Sums falling due after such Development Call Reduction Date shall be measured by reference to its Participating lnterest as increased or reduced on such Development Call Reduction Date.
(c) Upon any reduction of the Participating lnterest of the Defaulting Joint Venturer and increase in the Participating lnterest of the Non-Defaulting Joint Venturer pursuant to paragraph (a) of this Clause 8.6, that fractional part of the Defaulting Joint Venturer's lnterest which is attributable to the reduction in its Participating lnterest shall be transferred to the Non- Defaulting Joint Venturer (free and clear of any Permitted Charge which may have been given by the Defaulting Joint Venturer) so that their respective Interests accord with their Participating Interests. Any such transfer shall be and shall be expressed to be effective as from the relevant Development Call Reduction Date notwithstanding that it may not be executed until a later date.
(d) The parties hereto acknowledge that, notwithstanding any other provision of this Clause 8.6, the lnterest of a Defaulting Joint Venturer shall only be reduced in accordance with this Clause 8.6 if the Defaulting Joint Venturer was the recipient of the original call or request for payment from the relevant Manager in respect of the Development Programme Called Sum.
8.7 Automatic Dilution of Defaulting Joint Venturer's lnterest - Called Sums (other than Development Programme Called Sums) I (a) If, at the end of the period of 365 days after a Date for Remedy in respect of
a Called Sum (other than a Development Programme Called Sum) (hereinafter in this Clause referred to as the "Original Defaulted Sum"), a default by the Defaulting Joint Venturer in payment of the whole or any part of a Called Sum (other than a Development Programme Called Sum (whether it be the Original Defaulted Sum or any subsequent Called Sum remains unremedied, the lnterest of the Defaulting Joint Venturer has not been sold under a power of sale conferred by the Cross Charge or a Permitted Charge given by the Defaulting Joint Venturer and the Defaulting Joint Venturer's lnterest has not been sold under Clause 8.4, the Participating lnterest of the Defaulting Joint Venturer shall thereupon or on such later date as the Non-Defaulting Joint Venturer may determine (such date being hereinafter referred to as an "Operating Call Reduction Date") be reduced to a percentage determined according to the formula:
Page 49
where:
e is the Defaulting Joint Venturer's Participating Interest after the reduction;
f is the Defaulting Joint Venturer's Participating Interest before the reduction;
9 is the Defaulting Joint Venturer's Capital Account Balance before the reduction; and
j is the total of all Called Sums (other than Development Programme Called Sums) in respect of.which the Defaulting Joint Venturer has defaulted prior to the Operating Call Reduction Date.
On the Operating Call Reduction Date the Participating lnterest of the Non- Defaulting Joint Venturer shall be increased by a percentage equal to the percentage by which the Participating lnterest of the Defaulting Joint Venturer has been reduced.
(b) As from the Operating Call Reduction Date under paragraph (a), and notwithstanding Clause 6.4, the Called Sums (other than Development Programme Called Sums) which would but for Clause 8 have been payable by the Defaulting Joint Venturer, shall be payable by the Non-Defaulting Joint Venturer. Subject thereto, as from the first or any subsequent Operating Call Reduction Date, the obligations of a Joint Venturer to pay Called Sums (other than Development Called Sums) falling due after such Operating Call Reduction Date shall be measured by reference to its Participating lnterest as increased or reduced on such Operating Call Reduction Date. Subject further thereto, as from the first or any subsequent Operating Call Reduction Date, the obligations of a Contributing Joint Venturer to pay Development Programme Called Sums falling due after such Operating Call Reduction Date shall be measured by reference to its Participating lnterest as increased or reduced on such Operating Call Reduction Date.
(c) Upon any reduction of the Participating lnterest of the Defaulting Joint Venturer and increase in the Participating lnterest of the Non-Defaulting Joint Venturer pursuant to paragraph (a) of this Clause 8.7, that fractional part of the Defaulting Joint Venturer's lnterest which is attributable to the reduction in its Participating lnterest shall be transferred to the Non- Defaulting Joint Venturer (free and clear of any Permitted Charge which may have been given by the Defaulting Joint Venturer) so that their respective Interests accord with their Participating Interests. Any such transfer shall be and shall be expressed to be effective as from the Operating Call Reduction Date notwithstanding that it may not be executed until a later date.
(d) If an Operating Call Reduction Date under this Clause 8.7 and a Development Call Reduction Date under Clause 8.6 occur on the same date, then the formula set out in paragraph (a) of this Clause 8.7 shall first be applied and the formula set out in paragraph (a) of Clause 8.6 shall next be applied in determining the reduction in the Defaulting Joint Venturer's Participating Interest.
Page 50
(e) The parties hereto acknowledge that, notwithstanding any other provision of this Clause 8.7, the lnterest of a Defaulting Joint Venturer shall only be reduced in accordance with this Clause 8.7 if the Defaulting Joint Venturer was the recipient of the original call or request for payment from the relevant Manager in respect of the Called Sum.
8.8 Execution of Documents
The Defaulting Joint Venturer shall execute all instruments and documents as are necessary to vest the lnterest of the Defaulting Joint Venturer sold pursuant to Clause 8.4 or transferred pursuant to Clauses 8.5, 8.6 and 8.7 in the purchaser or transferee, as applicable, and each of the Joint Venturers hereby irrevocably appoints the other Joint Venturer to be its attorney in its name and on its behalf to execute all such instruments and documents and to do all such things which are necessary or requisite for such purpose.
8.9 Curing of Other Defaults
(a) If a Joint Venturer
0) defaults in performing any obligation for the payment of money secured by a Permitted Charge given by it and such default causes, or will, with the giving of notice or the lapse of time or both, cause the security constituted by the Permitted Charge to become enforceable;
(ii) defaults in the payment of any royalties, taxes, levies or other amounts payable to the State of Queensland or any instrumentali thereof in respect of any of its Subject Products or the transportation or shipment of such Subject Products; or
(iii) defaults in performing any other obligation which results in, or will, with the giving of notice or lapse of time or both, result in, the forfeiture or determination of the Queensland Nickel Agreement Act or any of the Mining Titles,
the other Joint Venturer may, after giving to the Defaulting Joint Venturer at least 10 days' notice of its intention to do so, make such payments and take such steps as in its discretion it thinks fit with a view to preventing such enforcement, forfeiture or termination. A Joint Venturer making such a payment or incurring such a cost or expense shall give notice thereof to the General Manager and the General Manager shall forthwith thereafter give notice thereof to the Chargees under all Permitted Charges given by the Defaulting Joint Venturer.
(b) If a Joint Venturer makes a payment as set out in paragraph (a) of this Clause 8.9, or incurs any cost or expense in taking any such step, the payment or the amount of the cost and expense, together with interest thereon at the Applicable Rate of lnterest from the making of the payment or the incurring of the cost or expense, as applicable, shall constitute a debt due and payable to the Joint Venturer by the Defaulting Joint Venturer (without prejudice to any other means of enforcement available to the Joint Venturer) in any court of competent jurisdiction. The provisions of Clauses 8.4, 8.7 and 8.8 shall apply as if the Defaulting Joint Venturer had defaulted in the payment of a Called Sum (other than a Development Programme Called Sum) equal to the amountof the payment, cost or expense and the Joint Venturer making the payment or incurring the cost or expense had
Page 51
been a Non-Defaulting Joint Venturer which had paid the Unpaid Called Sum pursuant to Clause 8.3.
.I0 Cross Charge
Each of the Joint Venturers has, for the purpose of securing (inter alia) the payment of Unpaid Called Sums by it and its obligations under paragraph (b) of Clause 8.9, char ed (in favour of the other Joint Venturer and the Managers) its lnterest, its &roducts, its interest in each Sales Contract and the proceeds of sale of its Subject Products substantially in the form of the Deed of Cross Charge set out in the First Schedule hereto. Each of the Joint Venturers shall duly register any such deed or shall duly file or record such notices or other documents relating thereto in such jurisdictions to which it is subject as may be required in order to perfect the security thereby constituted or to avoid that security becoming void (whether totally or against any particular person).
WAIVER OF RIGHT OF PARTITION
Each of the Joint Venturers w-any rig& it may have under Sections 38 and 41 of the Property Law Act 1974-[I9861 of the State of Queensland and agrees <hat those Sections shall not have any application in respect of any property held by the Joint Venturers as tenants in common. Without limiting the foregoing, each of the Joint Venturers hereby waives the right to cause a partition to be made of any property held by the Joint Venturers as tenants in common for so long as this Deed remains in effect as to such property and waives all rights to have its interest in such property set aside to it in severalty or to have such property judicially sold and the proceeds of sale divided. Nothing in this waiver of the right to partition shall in any way affect the right of the Joint Venturers to take in kind pursuant to Clause 3.3 their Subject Products, to create Encumbrances or suffer them to subsist over their respective undivided lnterests as permitted by Clause 11, or to assign their respective undivided Interests as permitted by Clause 12.
TERM OF DEED
This Deed shall, unless sooner terminated by mutual agreement of the Joint Venturers, continue in full force and effect for so .. longAxx&kr . as P roducts are capable ided, however, %at if any ~ v i s o , violate the rule against perpetuities, then such right, power, interest or benefit sh -5 years from the Effective Date. A temporary closure of the Treatment Facilities or an even? ot Force Majeure wnlch results in a closure of the Treatment Facilities for a period of less than 12 months shall not terminate this Deed.
ENCUMBRANCES
11.1 Restriction on Encumbrances
Subject to Clauses 11.2 and 11.3, without the prior consent of the other Joint Venturer, no Joint Venturer shall create or suffer to subsist any Encumbrance over
,~*:& ...% . , w its lnterest except: 1;;
F a Permitted Encumbrance; or
Page 52
Right to Grant Permitted Charges
Any Joint Venturer (hereinafter referred to as a "Chargor") may create an Encumbrance (hereinafter in this Clause 11.2 and Clause 11.3 called a "charge") over its lnterest in whole but not in part (together with, if it so desires, all or part of its Subject Products, its interest in each Sales Contract and the proceeds of sale of its Subject Products) which charge may comprise or include several collateral Encumbrances created from time to time over all or part of that lnterest, Subject Products, interest and proceeds so long as:
(a) the charge secures only all or any of:
(i) the repayment or payment of amounts borrowed or otherwise raised, whether by it or any other person, to be used
(A) by the Chargor in connection with the Joint Venture;
(6) for the acquisition by the Chargor of any interest in the Joint Venture, any asset associated with such an interest or any interest in such associated asset, or to refinance any acquisition by the Chargor of any such interests or assets acquired by it out of its own funds; or
(C) to refinance amounts borrowed or otherwise raised, whether by the Chargor or any other person, to be used for any of the foregoing purposes; and
(ii) contingent obligations undertaken, whether by the Chargor or any other person, in connection with the provision by the chargee of guarantees, standby or other letters of credit or other obligations in support of the repayment or payment of amounts borrowed or raised, whether by the Chargor or any other person for any of the foregoing purposes
and interest and other amounts payable in connection with the borrowing or raising of any such amounts or the provision of any such guarantees, letters of credit or other obligations; provided that there may be excluded from such a charge all or any part of the Chargor's lnterest which is situated in any jurisdiction other than the State of Queensland;
(b) the rights and powers of the chargee (hereinafter referred to as a "Chargee") or any receiver or receiver and manager appointed under the charge (hereinafter referred to as a "Receiver") or any person claiming through or under the Chargee or any Receiver in the exercise or enforcement of any power of sale or any power to take possession or any other power of enforcement conferred upon the Chargee or any Receiver by the instrument creating the charge or by law are subject to the provisions of this Deed (including, without limitation, the provisions of this Clause), any Cross Charge, the Administration Agreement, the Queensland Nickel Agreement Act and all present or future Mining Titles (hereinafter referred to as the "Priority Instruments") and any valid decision of the JVOC, including:
(i) any amendment to the Priority Instruments which is not prohibited by the charge, or to which the Chargee has consented; or
(ii) any decision of the JVOC,
Page 53
which is made after the date of the charge; and
(c) such charge ranks in point of security after the Cross Charge granted by the Chargor.
Conditions Precedent to Charge Becoming Operative
Before any charge over its Interest becomes operative in respect of that lnterest:
(a) the Joint Venturer concerned shall first have given to the other Joint Venturer at least 30 days' notice thereof;
(b). the Joint Venturer concerned shall first have procured the Chargee to enter into, in a manner binding upon it, a Chargee's Deed of Covenant with the Joint Venturers and the Managers in the form of the Second Schedule hereto, which Deed of Covenant may be entered into by more than one Chargee under a single Permitted Charge with variations in such form as contemplated by such Second Schedule and need not be a Deed.
Provisions in Permitted Charges
A Permitted Charge -
(a) may contain such provisions as the Chargee may require in relation to the varying circumstances in which the security constituted by the charge may become enforceable and (subject to Clause 8 and this Clause 11.4 and Clauses 11.5, 11.6, 11.7 and 11.8) in relation to the exercise and enforcement of the powers and authorities conferred upon the Chargee or a Receiver in consequence of such security becoming enforceable; and
(b) may provide that, subject to the rights of any prior Chargee, a Chargee or a Receiver may in its discretion exercise all or any of the Chargor's rights and perform all or any of the Chargor's obligations under this Deed (including the obligation to pay Called Sums to the relevant Manager) when and if (but only for so long as) the Chargor is in bona fide default under the Permitted Charge or in respect of any indebtedness or other obligation which is secured by the Permitted Charge, and for the purposes of this Clause the bona fide nature of a default under the Permitted Charge or in respect of any indebtedness or other obligations secured by the Permitted Charge shall not be open to question by'a Joint Venturer or by any person claiming through or under a Joint Venturer if the Chargee gives notice to the Joint Venturer other than the Chargor stating that -
(0 the Chargor has defaulted in performing any obligation for the payment of money secured by the Permitted Charge; or
(ii) in the opinion of the Chargee the event constituting the default could materially adversely impair the ability of the Chargor to perform any obligation the performance of which is secured by the Permitted Charge or could materially adversely affect the security constituted by the Permitted Charge.
Preservation-of Rights
Nothing in Clauses 11.2 and 11.3 shall -
(a) prejudice or affect the rights and remedies under the Priority Instruments of a Joint Venturer or a Manager against any Joint Venturer arising out of or
Page 54
as a consequence of a default of that Joint Venturer in the payment of any Called Sum or other amount;
(b) require any Chargee or Receiver to make any payment under the Priority Instruments (including the payment of any Called Sum or other amount) to any person on any account whatsoever (whether out of any moneys in its hands arising from the enforcement of its security or otherwise) or, subject to paragraph (d) of this Clause, to do any other act or thing whatsoever pursuant to the Priority Instruments;
(c) be construed as making the right of any Chargee to obtain payment of all indebtedness and obligations secured by a Permitted Charge subordinate to any obligation or liability of any kind of a Chargor to any other person (including the other Joint Venturer or a Manager) or (subject to paragraph (d) of this Clause) prejudicing or affecting a Chargee's rights and remedies in collecting such indebtedness or otherwise enforcing payment thereof except to the extent provided in any Cross Charge;
(d) relieve a Chargee or a Receiver from compliance with the provisions of Clause 9, Clauses 1 1.3, 1 1.6, 11.7 and 1 1.8 or Clause 12 (including any amendment to any of the provisions of those Clauses which is not prohibited by the Charge or to which the Chargee has consented); or
(e) permit a Chargee or Receiver, without the prior written consent of the Joint Venturer other than the Chargor, to waive, release, surrender or forfeit the whole or any part of the Chargor's interest in all or any of the Joint Venture Property.
11.6 Notice of lntention to exercise Chargor's Rights
If a Chargee wishes to exercise or to appoint a Receiver to exercise any or all of the Chargor's rights under this Deed pursuant to a Permitted Charge the Chargee shall prior to its first exercising such rights give notice to each of the Joint Venturers and the Managers that the Chargee wishes to do so. From the date such notice is given the Chargee or Receiver shall exclusively be authorized, subject to this Deed and the rights of any prior Chargee, to exercise such rights, and the Chargor shall not be entitled to exercise any of those rights itself until notice has been given by the Chargee to the other Joint Venturer and the Managers that the Chargee or Receiver has determined to cease to exercise those rights. Any act done by the Chargee or Receiver in the exercise of the Chargor's rights under this Deed pursuant to this Clause shall be binding upon the Chargor (without prejudice to the rights of the Chargor against the Chargee or the Receiver) and the other Joint Venturer shall not be concerned to enquire whether any event has occurred or is continuing to authorize the Chargee or Receiver to exercise any or all of the Chargor's rights under this Deed.
11.7 Restrictions on Powers of Sale conferred by Permitted Charges I (a) A Chargee or a Receiver shall not exercise or cause to be exercised any
power of sale conferred by the Permitted Charge concerned or by law: I '(i) unless the Chargor is in bona fide default under the permitted
Charge or in respect of any indebtedness or other obligation which is secured by the Permitted Charge as provided in Clause 1 1.4 and unless either the sale is of the whole of the Chargor's Interest or the power of sale is to be exercised in relation only to a Chargor's Subject Products received by. that Chargor in accordance with Clause 3.3;
~ - ~ - ~ ~ . -~
, . ~ - c t
Page 55 . .
(ii) if in the circumstances the Foreign Acquisitions and Takeovers Act 1975 (Clth.), the foreign investment guidelines of the Commonwealth Government or any other applicable Federal or State legislation, subordinate legislation or administrative practice or procedure requires any approval, authority or consent to or for the exercise of such power of sale - unless such approval, authority or consent has been obtained and any conditions imposed have been complied with; or
(iii) if the Chargor has defaulted in the payment of the whole or any part of a Called Sum (other than a Development Programme Called Sum) - after the period of 45 days after the relevant Date for Remedy (unless the power of sale is to be exercised or caused to be exercised in relation only to a Chargor's Subject Products received by that Chargor in accordance with Clause 3.3, or the default has been remedied within 45 days of such relevant Date for Remedy as required by Clause 8.2, or the Non-Defaulting Joint Venturer has notified the Defaulting Joint Venturer and the Chargee that it does not intend to exercise the option conferred on it by Clause 8.4 or such option has expired)..
(b) The exercise of any such power of sale shall be subject to compliance by the Chargee or the Receiver with Clauses 12.4, 12.7 and 12.8, and accordingly the Chargor and the Receiver will be obliged to procure any purchaser of the Chargor's lnterest to covenant pursuant to the said Clause 12.7 to be bound by (inter aha) all the terms, conditions, restrictions, covenants and obligations contained in the Priority Instruments applicable to the Chargor or its lnterest (including the assignor's obligation to pay any Unpaid Called Sum and any other amount).
(c) The Joint Venturer other than the Chargor shall not be concerned to inquire whether any event has occurred or is continuing to authorize or empower a Chargee or Receiver to exercise or to cause to be exercised such power of sale and each Joint Venturer waives any claims it might have against the other Joint Venturer or the Managers in respect of any act or omission on the part of any Chargee under any Permitted Charge given by it or any Receiver appointed under any such Permitted Charge in the exercise or purported exercise of its power of sale pursuant to the Permitted Charge or this Clause or in respect of any a 3 or omission of the other Joint Venturer or the Managers in reliance thereon.
~: ~ \ k%*.
1 1.8 No Powers of Foreclosure - . @G!,+ A Chargee may not in respect of a Permitted Charge exercise any power of
foreclosure conferred by the instrument containing the Permitted Charge or by law. $3;: ~. .*>l . ,:
j ;;. 11.9 Amendment of Permitted Charges ,I,::: :::;?r,
A Permitted Charge may only be amended, varied or. added to if after the , .. +L~.:.. . . amendment, variation or addition it continues to comply with this Clause.
I .' 11 12. ASSIGNMENTS OF INTERESTS AND RIGHTS OF SALE I: ~ ' , . .~ 1 . I , , .
:' I:::,! >, 12.1 Restriction on Assignments of Participating Interests . J
(a) Without the prior consent of the other Joint Venturer (other than a Defaulting Joint Venturer), no Joint Venturer shall assign, transfer, declare
- 1
Page 56
itself trustee of or otherwise dispose of all or any portion of its lnterest otherwise than as permitted by this Clause 12 or as contemplated by Clauses 7,8 and 11.
- (b) Nothing in this Clause 12.1 shall prevent the transfer of the jurisdiction of
incorporation or organization of any Joint Venturer (including without limitation, any such transfer following any merger or consolidation of the kind mentioned in Clause 12.2).
(c) Nothing in Clauses 12.2, 12.3 and 12.4 shall permit a Joint Venturer to assign, transfer, declare itself a trustee of or otherwise dispose of any portion of its lnterest where to do so would result in either the Joint Venturer concerned and its Related Bodies Corporate or its assignee and its Related Bodies Corporate having respectively an aggregate Participating lnterest of less than 5% but more than zey. -
(d) Each Joint Venturer shall inform the other Joint Venturer at the earliest opportunity of a proposed dealing in the whole or any portion of its lnterest and the known terms of such a proposed dealing provided that the giving of such information may be deferred for so long as the Joint Venturer concerned considers to be reasonably necessary to avoid jeopardising any discussion or negotiations relating to such dealing.
(e) No Joint Venturer may assign the whole or any portion of its lnterest without concurrently assigning to the same assignee the same proportion of the Joint Venturer's shareholdings in QNPL, QNS and OPS.
I
(9 No Joint Venturer may assign the whole or any porti& of its shareholding in Q N P L Y concurrently w~th and to the same assignee as it a v e r (and in the same pfoportion of the Jo~nt Venturer's ShareholalngS in QNPL, QNS and OPS respectively as the proportion of the Joint Venturer's lnterest being assigned).
(g) Any purported assignment made by any Joint Venturer in contravention of this Clause 12.1 shall be ineffective and have no force or validity.
12.2 Assignments and Transfers to Related Bodies Corporate 1 (a) An Joint Venturer other than a Defaulting Joint Venturer may at any time,
wit 4: out obtaining the prior consent of the other Joint Venturer, assign or transfer (including but not limited to an assignment or transfer by way of merger, consolidation or liquidation) all or any portion of its lnterest to a Related Body Corporate. Any assignment pursuant to this Clause 12.2(a) shall not invoke the rights of first refusal conferred by Clause 12.4 but shall be subject to the provisions of Clauses 12.7 and 12.8.
(b) Where, pursuant to the provisions of Clause 8 or this Clause 12 a Joint Venturer is entitled to take a transfer of any lnterest or portion thereof, it may nominate a Related Body Corporate to take the transfer in lieu of itself. Any assignment pursuant to this Clause 12.2(b) shall not invoke the rights of first refusal conferred by Clause 12.4 but shall be subject to the provisions of Clauses 12.7 and 12.8.
(c) For the purposes of this Clause 12.2 and Clause 12.6(b), in the case of NRNQ the expression "Related Body Corporate" include rumentality wm riaht of the -and or a S u w v thereof or
Page 57
any body corporate owned by the Crown in right of the State of Queensland or any Subsidiary thereof.
J .:
!- : 12.3 Restrictions on Assignments of Joint Venture Property :.. ....- . . . . ~ . . ;f.: ,:.
~, . ~.
Nothing in this Deed shall permit any Joint Venturer to assign, transfer, declare itself trustee of or otherwise dispose of any portion of its interest in the Joint r"
! Venture Property other than:
.I..
(a) as part of a disposition of an Interest; I
(b) as part of a disposition of Joint Venture Property pursuant to Clause 5.5(n); or
.~..-*.. . . .,... .~ ,> . :.. (c) as part of a disposition of any fixed assets forming part of the Joint Venture
Property which disposition does not require the unanimous approval of the . . : ' :
*:~$.;, ~~. JVOC pursuant to Clause 4.10(d) or, alternatively, which disposition has
. . , :"; w , 1
received the unanimous approval of the JVOC.
12.4 Rights of First Refusal
(a) If at any time hereafter any Joint Venturer (hereinafter referred to as the "Offering Joint Venturer") shall receive-a bona fide offer (which it is willing to accept) to sell, or shall desire to make an offer to sell, all or any portion of its Interest (hereinafter referred to as the "Offered Interest") the Offering I
Joint Venturer shall forthwith upon receiving such offer to purchase or prior , ' ,
to making such offer to sell, as applicable, give notice thereof to the other Joint Venturer (such Joint Venturer being hereinafter referred to as the "Offeree Joint Venturer") setting out the terms and provisions of the offer and the name of the proposed buyer. The Offeree Joint Venturer shall then have the right and option, exercisable by notice to the Offering Joint Venturer within the Acceptance Period as specified in Clause 12.4(b), to ; !
elect to purchase the Offered lnterest on the terms and conditions set out in the Offering Joint Venturer's notice. Unless the whole of the Offered 8
Interest is accepted as hereinbefore provided, there shall be deemed to , ,
have been no acceptance of any part thereof, and the Offering Joint Venturer shall (subject to Clause 8 and Clauses 12.7 and 12.8) be free to sell the Offered lnterest to the prospective buyer, on terms not more favaurable to the prospectivebuyer than those set out in the Offering Joint Venturer's notice to the Offeree Joint Venturer, within six months of the giving of that notice. The failure to exercise the right of first refusal conferred by this Clause 12.4 with respect to any offer shall merely amount to a waiver of the right with respect to that particular offer and should the Offered lnterest in question not subsequently be sold as hereinbefore provided, the right of first refusal conferred by this Clause 12.4 shall revive with respect to subsequent offers received or desired by the Offering Joint Venturer in respect of the Offered lnterest and shall continue to subsist in respect, of that portion of the lnterest of the Offering Joint Venturer which did not constitute part of the Offered lnterest. Should the price or other consideration under any offer made or desired by the Offering Joint Venturer be otherwise than wholly in cash, the Offering Joint Venturer's notice to the Offeree Joint Venturer shall, in lieu of so much thereof as is not in cash, specify an equivalent thereof in cash determined by the Offering Joint Venturer. In the event that the Offeree Joint Venturer notifies the Offering Joint Venturer that it does not consider the equivalent so determined to be accurate, the matter shall be referred to an independent I
chartered accountant appointed by the General Manager and the Offering Joint Venturer to determine the equivalent in cash, and each of the periods ; I
i
Page 58
referred to in this Clause 12.4 shall be extended by a period equal to the period between the giving of the first notice challenging the accuracy of the equivalent and the determination of the chartered accountant. The chartered accountant shall, in making his determination, be deemed to be acting as an expert and not as an arbitrator and his decision shall be accepted as binding and conclusive. Without limiting the -other obligations of an assignee of a Joint Venturer, the rights of first refusal conferred by this Clause 12.4 shall be binding upon each assignee of each Joint Venturer at all times hereafter, it being the intention that only assignments or dispositions permitted by Clauses 12.2 and 12.3 shall be free of those rights of first refusal.
(b) For the purposes of this Clause 12.4, the Acceptance Period shall be a period of two months after the giving of the Offering Joint Venturer's notice.
12.5 Transfers of Control of Joint Venturers I If:
(a) there is a transfer of shares or stock in or interests in shares or stock in, or an agreement to transfer is entered into in respect of shares or stock in or interests in shares or stock in, the capital of a Joint Venturer, or there is a transfer of shares or stock in or interests in shares or stock in, or an agreement is entered into to transfer shares or stock in or interests in shares or stock in the capital of a company (hereinafter referred to as the "Controlling Corporation") which is a Holding Company of a Joint Venturer (in each case such Joint Venturer being hereinafter referred to as the "Relevant Joint Venturer");
(b) the transfer results, or the agreement to transfer will result, in there being a Holding Company or a new Holding Company of the Relevant Joint Venturer or the Controlling Corporation, as applicable; I
(c) the new Holding Company was not a Related Body Corporate of the Relevant Joint Venturer or the Controlling Corporation, as applicable, immediately prior to the date of the transfer, or of the agreement to transfer, the shares or stock or interests in shares or stock; I
(d) the other Joint Venturer has not approved of such new Holding Company (which approval may not be unreasonably withheld or delayed); and I
(e) the new Holding Company was not a .Joint Venturer or a Related Body Corporate of a Joint Venturer immediately prior to the date of the transfer, or of the aareement to transfer the shares or stock or interests in shares or I - stock,
then the Relevant Joint Venturer shall forthwith give notice to the other Joint Venturer stating that there has been a transfer of, or an agreement to transfer has been entered into in relation to, the shares or stock of the Relevant Joint Venturer or the Controlling Corporation, as applicable. The other Joint Venturer may, within 14 days after the giving of the notice by the Relevant Joint Venturer, give a notice to the Relevant Joint Venturer and the General Manager requesting them to determine the Fair Value of the lnterest of the Relevant Joint Venturer. For the purposes of this Clause, the Fair Value of the lnterest of the Relevant Joint Venturer shall, unless some other sum is otherwise agreed by the Joint Venturers, be a sum equal to a fair price as between a willing seller and a willing buyer as determined by an independent valuer (hereinafter referred to as the "Valuer") nominated by the President of the Institute of Chartered Accountants in Australia on the request of
Page 59
the General Manager. Such Fair Value shall be determined as at the date of the transfer of, or of the agreement to transfer, the shares or stock of the Relevant Joint Venturer or the Controlling Corporation, as applicable, and the Valuer shall be instructed to complete his valuation within 30 days after the date of his nomination and to deliver a copy of his valuation to both Joint Venturers. In determining such Fair Value, the Valuer shall take account, inter alia, of the price paid or payable for the shares or stock of the Relevant Joint Venturer or the Controlling Corporation, as applicable, and of the proportion of that price which may be attributable to the lnterest of the Relevant Joint Venturer. The fees and expenses incurred in connection with the valuation shall be paid by the General Manager and charged to the Relevant Joint Venturer. In determining the Fair Value, the Valuer shall be acting a s an expert and not as an arbitrator and his determination shall be accepted as final and conclusive. When the Valuer has delivered a copy of his valuation to both Joint Venturers, the Relevant Joint Venturer shall be deemed to have given a notice under Clause 12.4 that it has received a bona fide offer (which it is willing to accept) to sell all of its lnterest at a price equal to the Fair Value. The provisions of Clause 12.4 shall then apply mutatis mutandis to such deemed notice by the Relevant Joint Venturer to the intent that, if the whole of the lnterest of the Relevant Joint Venturer is not thereby accepted, the Relevant Joint Venturer shall have no further obligation arising out of the event referred to in paragraph (a) of this Clause 12.5.
For the purposes of this Clause 12.5, but not otherwise, a "transfer of shares" shall include:
(a) . any allotment of shares;
(b) any issue of securities convertible to shares; and
(c) any disposal of shares, including the transmission or devolution of shares by will or by reason of intestacy, insolvency or operation of law.
Offers to the Public
(a) Notwithstanding anything contained in this Clause 12, QNR or any Holding Company of QNR (each being hereinafter in this Clause 12.6(a) referred to as a "Public Offeror") shall be at liberty to make an offer, or issue an invitation, to the public (within the meaning of the Corporations Law) to subscribe for or purchase shares in itself, or any securities convertible to shares in itself (hereinafter in this Clause 12.6(a) referred to as a "Public Offer"). If the Public Offer results in there being a Holding Company or new Holding Company of the Public Offeror, which Holding Company was not . either a Joint Venturer or a Related Body Corporate of the Public Offeror immediately prior to the date of announcement of the Public Offer, then Clause 12.5 shall apply to the Public Offeror (or to QNR in the event that the Public Offeror is a Holding Company of QNR) as though each of the prerequisites set out in paragraphs (a) to (e) of Clause 12.5 had been met. Before the making of a Public Offer pursuant to the terms of this Clause 12.6(a), QNR shall consult with NRNQ in relation to the terms of the Public Offer.
(b) In the event that NRNQ assigns or transfers all or any portion of its lnterest to a Related Body Corporate pursuant to Clause 12.2, then notwithstanding anything contained in this Clause 12, that Related Corporation (hereinafter in this Clause 12.6(b) referred to as a "Public Offeror") shall be at liberty to make an offer, or issue an invitation, to the public (within the meaning of the Corporations Law) to subscribe for or purchase shares in itself, or any securities convertible to shares in itself (hereinafter in this Clause 12.6(b)
ll. ~ ~~ ~ . ~ ~~
1 Page 60 1 referred to as a "Public Offer"). In the event of such a Public Offer, then QNR or, if QNR has assigned its Participating Interest, the successor or permitted assignee of QNR shall provide all reasonable co-operation and assistance as may be required by NRNQ in connection with the Public Offer. If the Public Offer results in there being a Holding Company or new Holding Company of the Public Offeror, which Holding Company was not either a Joint Venturer or a Related Body Corporate of NRNQ immediately prior to the date of announcement of the Public Offer, then Clause 12.5 shall apply to the Public Offeror as though each of the prerequisites set out in paragraphs (a) to (e) of Clause 12.5 had been met. Before the making of a Public Offer pursuant to the terms of this Clause 12.6(b), NRNQ shall consult with QNR in relation to the terms of the Public Offer.
(c) QNR and NRNQ expressly acknowledge that the Float, as defined in Recital D and which shall be completed as at the Float Date, is not subject to the right of first refusal conferred by paragraph (a) of this Clause 12.6.
J 12.7 Covenant by Assignee
n Notwithstanding anything contained in this Clause 12, no assignment of all or any portion of an lnterest shall be made unless the assignee:
, I 3
(a) covenants with the other Joint Venturer(s) and the Managers in substantially the form of the Third Schedule hereto and, except in the case of an assignment to an existing Joint Venturer, the assignee validly charges its lnterest, its Subject Products, its interests in each Sales Contract and
3 the right to receive proceeds of sale of its Subject Products in favour of the other Joint Venturer(s) and the Managers substantially in the form of the First Schedule hereto by executing such instruments and doing such acts
3 as the other Joint Venturer(s) may reasonably require, including, without limitation, the due registration of any such instrument or the due filing or recording of such notices or other documents relating thereto in such
3 jurisdictions to which the assignee is subject as may be required in order to perfect the security thereby constituted or to avoid that security becoming void (whether totally or against any particular person); and
1 (b) . becomes a party to the Administration Agreement. I If one of the Joint Venturers assigns part (but not all) of its lnterest to a third party, so as to introduce a third Joint Venturer, QNR and NRNQ agree that the Joint Venture shall be continued pursuant to a restated joint venture agreement (the "Restated Joint Venture Agreement") which shall be in form and substance similar to this Deed (as amended from time to time), except for necessary variations reflecting the increased number of Joint Venturers, and a variation of the equivalent of Clause 12.4 hereof to provide that any transfer by NRNQ of its lnterest to QNR in accordance with the terms of the NRNQ Sale Option Agreement shall not be subject to the right of first refusal conferred by that clause. It is agreed that in determining the form of those variations, reference shall be made to the equivalent provisions of the Former Joint Venture Agreement. In this event, the assignment of the relevant part of a Joint Venturer's lnterest shall not be made unless the assignee becomes a party to the Restated Joint Venture Agreement.
12.8 Assignor Relieved of Obligations 1 I
Except in relation to an assignment pursuant to Clause 12.2, any Joint Venturer assigning any portion of its lnterest in compliance with the provisions of this Deed shall to the extent of such assignment be free from further obligations under this Deed other than liabilities accrued prior to the assignment.
Page 61
, . . . . . . , . . i , ,. i 4~
13. RELATIONSHIP OF PARTIES [c,:;, The full extent of the joint venture between the Joint Venturers is set forth in this Deed and such other agreements relating to the Joint Venture as are executed and, where applicable, delivered on the date hereof or on the Effective Date. Nothing in this Deed shall be construed to constitute a Joint Venturer an agent or n representative of the other Joint Venturer, and no Joint Venturer shall have any ! ! authority to act for or to assume any obligation, liability, indebtedness or responsibility on behalf of the other Joint Venturer except as set forth in this Deed. The rights, duties, obligations and liabilities of the Joint Venturers arising out of this Deed shall be several in proportion to their respective Participating lnterests and not joint or collective, it being the expressed purpose and intention of the Joint Venturers that their ownership of their respective lnterests shall be as tenants in common and that this Deed shall not be construed as constituting an association, corporation, trust, mining partnership or any other kind of partnership.
14. FORCE MAJEURE
If either of the Managers or either of the Joint Venturers is rendered unable wholly or in part by Force Majeure to carry out its obligations under this Deed (other than an obligation to pay money) it shall give to the other Joint Venturer prompt notice of the Force Majeure with reasonably full particulars thereof and the obligations of the Manager or the Joint Venturer concerned (as applicable) so far as they are
'affected by the Force Majeure shall be suspended during but not longer than the continuance of the Force Majeure and such further eriod thereafter as shall be reasonable in the circumstances. The Manager or t f : . e Jo~nt Venturer concerned (as applicable) shall use all reasonable diligence in the circumstances to remove the Force Majeure as quickly as practicable, save that the Manager shall not thereby be rendered liable to settle any strike, lockout or other labour difficulty on terms not reasonably acceptable to it; provided always that at all times the Manager shall act subject to and consistently with the provisions of Clauses 4.1, 4.10,4.11 and 4.12.
GOVERNMENT APPROVALS
The holding of title to Joint Venture Property pursuant to Clause3.2, the transfer of lnterests pursuant to Clause 7, the sale or other transfer of lnterests pursuant to Clause 8, the creation or enforcement of any Encumbrance permitted by Clause 11 and any assignment permitted by Clause 12 shall be subject to the obtaining of all necessary governmental approvals, authorities and consents. Each of the Joint Venturers shall take such action as is reasonably available to it to obtain such approvals, authorities and consents. Notwithstanding the provisions of Clauses 11 and 12, a Joint Venturer shall not, without the consent of the other Joint Venturer, create an Encumbrance or assign the whole or part of its lnterest if the creation or the enforcement of the Encumbrance or the assignment of the lnterest would cause or would be likely to cause the loss of any necessary governmental approval, authority or consent in respect of a long term sales contract (being a contract for the sale of a Joint Venturer's Subject Products for regular delivery over a period of more than one year) or the development or operation of any New Mine or of any Treatment Facilities.
$ J $. 16. NOTICES $ - ii 16.1 Mode of Service 4. k .
All payments to be made to a Joint Venturer or a Manager may (to the extent possible) be made to, and all notices, offers, requests, consents, demands and
Page 62 7
other documents and communications (other than day-to-day communications between the Joint Venturers) required or permitted to be given under this Deed to, a Joint Venturer or a Manager shall be in writing in the English language and shall be addressed to the Joint Venturer or the Manager at its address set forth in Clause 16.2 or at such other address as that Joint Venturer or the Manager may have substituted therefor by notice to the other Joint Venturer, and the other Managers, as applicable, and shall be delivered personally or sent by telex or facsimile transmission or by mail, postage prepaid (and, if sent from, or to, a destination outside Australia, by registered or certified airmail) and shall be deemed to have been made or given:
(a) in the case of personal delivery, when delivered, and in the case of delivery by mail, 10 days after the date of mailing;
(b) in the case of service by telex, on receipt by the sender of the answerback code of the recipient at the end of transmission; and
(c) in the case of service by facsimile transmission, on receipt by the sender of 1 a transmission control report from the despatching machine confirming transmission and showing the correct destination machine number and the correct number of pages,
provided that, if the result of the foregoing is that the relevant payment, notice or other communication would be deemed to have been made or given on a day that is not a business day in the place of address or after 4.00 p.m. on a business day in the place of address, it shall instead be deemed to have been made or given on the next business day.
16.2 Addresses for Service I The addresses of the Joint Venturers and the Managers shall, until a new address is substituted in accordance with Clause 16.1, be as follows:
QNR:
NRNQ:
With a copy to:
Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Managing Director Telex Address: AA141099 Facsimile Transmission Address: (07) 229-2398
Level 32, 123 Eagle Street, Brisbane, Qld. 4000
Attention: Mr. M.D. Kriewaldt Telex Address: 41014 Facsimile'Transmission Address: (07) 832 4233
C/- Assistant Under Treasurer (Commercial Policy and Projects), Queensland Treasury, Level 1 1, 100 George Street, Brisbane, Qld. 4000
QNPL:
Attention: Mr M Montefiore Facsimile Transmission Address: (07) 221 0739
Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Managing Director Telex Address: AA141099 Facsimile Transmission Address: (07) 229 2398
With a copy to: Private Mail Bag 5, Townsville, Qld. 481 8
Attention: Director Telex Address: 47639 Facsimile Transmission Address: (077) 78 6251
OPS: Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Director Telex Address: AA141099 Facsimile Transmission Address: (07) 229 2398
FURTHER ASSURANCES
Each of the Joint Venturers shall sign all such documents and do all such things as shall be necessary or desirable to give full effect to this Deed, the Mining Titles, the Real Property Titles and all valid decisions of the JVOC.
8. QUEENSLAND PROPERTY LAW ACT
The Joint Venturers acknowledge that S 'on 718(2) of the Property Law Act 1974- [1986] of the State of Queensland.may%der certain provisions of this Deed void and inoperative after the expiration of 21 ears from the date of the Former Joint Venture Agreement and accordingly the a % - V oln enturers shall consult before such date of expiration with a view to reaching agreement on suitable replacement provisions.
. SEVERABILITY
If any of the provisions of this Deed are invalid or unenforceable the invalidity or unenforceability shall not, unless the deletion would substantially alter the intention of the parties hereto, expressed or implied, affect the operation, construction or interpretation of any other provision of this Deed, with the intent that the invalid or unenforceable provisions shall be treated for all purposes as severed from this Deed.
. APPLICABLE LAW
This Deed shall be governed by the law of the State of ~ueensland and each party submits to the non-exclusive jurisdiction of the courts of that State for the purpose of any legal action or proceeding brought hereunder or in respect hereof.
21. CURRENCY
All moneys payable under this Deed shall be payable in Australian dollars unless - otherwise agreed by the relevant Manager and Joint Venturer.
22. AMENDMENTS AND WAIVERS
No amendment, variation, addition or substitution to or for this Deed shall be of any force or effect unless such amendment, variation, addition or substitution is in writing and has been executed by or on behalf of both the Joint Venturers and the Managers. No waiver by any party of any one or more defaults by another party in the performance of this Deed shall operate or be construed as a waiver of any future default or defaults by the same party or any other party, whether of a like or of a different character.
23. COUNTERPARTS
This Deed may be executed in any number of counterparts each of which when so executed shall be deemed to be an original, and those counterparts shall together constitute one and the same instrument.
24. ENUREMENT
The provisions of this Deed shall, subject as herein provided, enure for the benefit of and be binding upon the Joint Venturers and the Managers and their respective successors and permitted assigns.
25. COSTS
Each Joint Venturer shall bear its own costs in and about the preparation, execution and delivery of this Deed, and the Joint Venturers shall bear any Stamp duty hereon in proportion to their Participating Interests.
IN WITNESS whereof the parties have execrlted this Deed the day and year firs! hereinbefore written.
. .
THE COMMON SEAL of QNI . ) RESOURCES PTY. LTD. was hereunto ) affixed in accordance with its Articles of
) ,Q
.% Sea1 irector
* irector/SaCwWy
,- .i,. .. : - .
THE COMMON SEAL of NICKEL ) RESOURCES NORTH QUEENSLAND ) PTY. LIMITED was hereunto affixed ) pursuant to Board of ) . . . . . . . . . . . . Directors an
............ Director
...... -Bmtc+Secretary
........ Director
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Page 66
FIRST SCHEDULE
DEED OF CROSS CHARGE
THIS DEED is made this day of 1992 I BY AND BETWEEN:
QNI RESOURCES PTY. LTD. (A.C.N. 054 117 921) a company incorporated under the Corporations Law in the State of Queensland, Australia ("QNR");
NICKEL RESOURCES NORTH QUEENSLAND P N . LIMITED (A.C.N. 010 865 880) .for and on behalf of NRNQ a limited partnership (formerly named Nickel Resources North Queensland Pty. Limited and another) a limited partnership formed under the laws of the State of Queensland, Australia (which limited partnership is hereinafter referred to as "NRNQ");
QUEENSLAND NICKEL PlY. LTD. (A.C.N. 009 842 068) a company incorporated in the State of Queensland, Australia ("QNPL");
AND
ORE PURCHASE AND SHIPPING P N . LIMITED (A.C.N. 010 799 765) a company incorporated in the State of Queensland, Australia ("OPS").
WHEREAS: I A. By a joint venture agreement amended and restated by a Deed dated
[ ] entitled "Queensland Nickel Joint Venture Agreement" between the parties hereto (hereafter, as the same may hereafter be amended, varied or added to, substituted for, replaced, renewed or extended referred to as the "Joint Venture Agreement") the Joint Venturers have associated themselves in a joint venture for the purpose of (inter alia) mining lateritic ore and processing such ore at the Treatment Facilities to produce Products for sale by each of the Joint Venturers. I
B. By the terms of the Joint Venture Agreement certain payments are to be made from time to time by each of the Joint Venturers to meet such Joint Venturer's obligations under the Joint Venture Agreement.
C. Each Joint Venturer is entering into this Deed for the purpose of better securing the obligations of such Joint Venturer to make .such payments and certain other obligations of such Joint Venturer under the Joint Venture Agreement.
D. QNPL is the General Manager and OPS is the Ore Purchase and Shipping Manager of the Joint Venture for the time being.
NOW THlS DEED WITNESSES as follows:
1. In this Deed, including the Recitals and Schedules hereto, unless the context otherwise requires:
Save as set out below, expressions defined or given a special meaning in the Join Venture Agreement have the same meanings in this Deed;
I .. . . . . Page 67
~. ? .
: i , . .
I "Bills of Sale Act" means the Bills of Sale and Other Instruments Act 1955 (Queensland);
' a-
1 "Chattels" has the meaning given to it in the Bills of Sale Act; I "Interest" means lnterest as defined in the Joint Venture Agreement other than the
interest of a Joint Venturer as tenant in common in any mining lease application '1 made from time to time in the State of Queensland;
.I
' I : - . I;,, "Managers" means the General Manager and Ore Purchase and Shipping Manager;
~. 1 .~:..,. . . : :. Q,;~.? "Secured Debts" means in relation to a Joint Venturer -
.~ i. a:,
. , . , (a) any Called Sum owing and unpaid by a Joint Venturer after it has fallen i .. due, together with interest thereon; . '1.. (b) any Unpaid Called Sum referable to that Joint Venturer paid by the other
$::. Joint Venturer pursuant to Clause 8.3 of the Joint Venture Agreement, l i i ~
i together with interest thereon;
. . (c) any moneys which that Joint Venturer is obliged to pay to the other Joint ) jrr. iI ., ., Venturer pursuant to Clause 8.9 of the Joint Venture Agreement together
::-I with interest thereon; and
I ' I S P (d) any stamp duty which is or becomes payable by that Joint Venturer on this
Deed, all costs of enforcement or attempted enforcement of this Deed and all costs incurred pursuant to Clause 8 of the Joint Venture Agreement in relation to or consequent upon a default by that Joint Venturer.
, , 2. In the interpretation of this Deed unless the context otherwise requires: 1 . . ]i-: *.* - &s:& ;. . (a) the singular includes the plural and vice versa and in particular (but without
limiting the generality of the foregoing) any word or expression defined in the singular has the corresponding meaning if used in the plural and vice versa;
-1 (b) references to persons include corporations; $, J.$:<
(c) a reference to any gender includes the other genders.
(1, 3. Any Joint Venturer may request the General Manager in its own name to take all action available under this Deed to enforce, on behalf of the Joint Venturer other than the Defaulting Joint Venturer, the charges hereinafter given by a Defaulting
c ]L, Joint Venturer, and the General Manager shall forthwith comply with such request. k:J>. ._ . _ ,I. , 4. For the purpose of securing all its Secured Debts each Joint Venturer hereby ,~, . - charges I t I".'
.J (a) its lnterest; and
(b) its. Subject Products, both present and future, its interest in each Sales Contract, both present and future, and the right to receive all proceeds of
f.. '., > ' \ I , ,. sale of its Subject Products,
Page 68
in favour of the other Joint Venturer and the Managers to the intent that such charge shall be a first floating charge in priority to all other Encumbrances created by such Joint Venturer in relation to the propew and rights charged by this Clause.
- 5. The Managers and the Joint Venturer other than a Defaulting Joint Venturer, and
any receiver appointed pursuant to this Deed, shall have the right:
(a) to take possession of and sell, or sell without taking possession, any of the Defaulting Joint Venturer's Subject Products and apply the proceeds thereof in accordance with this Deed; and
(b) to appropriate and apply any other proceeds of sale of the Defaulting Joint Venturer's Subject Products in accordance with this Deed.
6. Each Joint Venturer hereby warrants to the other Joint Venturer that as at the date hereof no other Encumbrance created by it (other than a Permitted Encumbrance) exists in relation to any of the property and rights charged by it under Clause 4 of this Deed.
7. The charges contained in Clause 4 of this Deed are granted subject to and with the benefit of the conditions in the First Schedule hereto.
8. The right to sell or dispose of any properly or rights charged under Clause 4 of this Deed is subject to Clause 8 of Part I of the agreement dated the 17th day of December, 1970 between the State of Queensland, MEQ Nickel Pty. Ltd. and Greenvale Queensland Nickel, Inc.
9. Each Joint Venturer shall from time to time execute and deliver such further mortgages, charges and other documents as may be reasonably requested by the other Joint Venturer or any Manager in order to confirm or effectuate the intent and purposes of this Deed.
10. Each of the Joint Venturers and the Managers covenants with each of the Joint Venturers that it will upon payment of any amounts outstanding release and discharge the charges contained in Clause 4 of this Deed in respect of the Interest,' or part of the Interest, of a Joint Venturer: I
!
(a) which is transferred pursuant to Clause 7.4, 8.5, 8.6 or 8.7 of the ~oint l Venture Agreement; or I !
(b) which is assigned in conformity with Clause 8.4 or 12 of the Joint Venture' Agreement or pursuant to a Cross Charge I
and the related Subject Products, interests in Sales Contracts and the right to receive proceeds of sale of Subject Products. .
11. (a) Any amount recovered by a Joint Venturer or a Manager or a Receiver as a result of enforcing the charges contained in Clause 4 of this Deed 0 exercising any of the powers hereby conferred shall be applied in the following order of priority, unless a court of competent jurisdiction otherwise orders: 1 (i) first, in payment of any moneys having priority to the charge
contained in Clause 4 of this Deed;
(ii) second, in payment of all costs, charges and expenses of an incidental to the appointment of a Receiver under this Deed an the exercise by him, the Managers or the other Joint Venturer of a
Page 69
or any of the powers aforesaid, including the reasonable remuneration of a Receiver;
(iii) third, in or towards the satisfaction of all costs, charges, expenses and liabilities incurred and payments made in or in relation to the recovery of the amount concerned (including, without limitation, stamp duty);
(iv) fourth, in or towards the discharge of the Defaulting Joint Venturer's Secured Debts (whether owing to any Manager or to the other Joint Venturer which has paid them pursuant to Clause 8.3 of the Joint Venture Agreement) or interest thereon;
(v) fifth, in payment of the amounts respectively secured by any Permitted Encumbrances and any Permitted Charges given by the Defaulting Joint Venturer in accordance with their respective priorities; and
(vi) sixth, to the Defaulting Joint Venturer.
(b) The claims of a Manager in respect of moneys to be applied in or towards the discharge of Secured Debts shall rank in priority to such claims by the other Joint Venturer.
2. fa) Each of the Joint Venturers shall forthwith duly register this Deed or shall duly file or record such notices or other documents relating thereto in such jurisdictions to whichit is subject as may be required in order to perfect the security hereby constiuted or to avoid that security becoming void (whether totally or against any particular person) and shall pay or make provision satisfactory to the other Joint Venturer and the Managers for the payment of any applicable stamp duty, registration or filing fees on the charges created by it herein.
(b) Each Joint Venturer shall from time to time furnish to the other Joint Venturer and the Managers such information as may reasonably be requested by the other Joint Venturer or the Managers in order to determine in which place or places registration of this Deed or recording of other notices or documents relating thereto is necessary or desirable for the purposes specified in paragraph (a) of this Clause.
3. (a) AII notices, requests and other documents and communications required or permitted to be given under this Deed to a Joint Venturer or a Manager shall be in writing in the English language and may be addressed to it at its address in Australia set forth in paragraph (b) of this Clause or at such other address within Australia as it may have substituted therefor by notice t o the other Joint Venturer and the Managers, as applicable, and shall be delivered personally or sent by telex or by facsimile transmission or by mail, postage prepaid (and, if sent from, or to, a destination outside Australia, by registered or certified airmail) and shall be deemed to have been made or given:
0) in the case of personal delivery, when delivered, and in the case of delivery by mail, ten days after the date of mailing;
(ii) in the case of service by telex, on receipt by the sender of the answerback code of the recipient at the end of transmission; and
I L
Page 70
(iii) in the case of service by facsimile transmission, on receipt by the sender of a transmission control report from the despatching machine confirming transmission and showing the correct destination machine number andthe correct number of pages,
provided that, if the result of the foregoing is that the relevant notice or other communication would be deemed to have been made or given on a day that is not a business day in the place of address or after 4.00 p.m. on a business day in the place of address, it shall instead be deemed to have been made or given on the next business day in the place of address.
(b) The addresses of the Jointventurers and the Managers shall, until a new address is substituted in accordance with paragraph (a) of this Clause, be as follows:
QNR:
NRNQ:
Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Managing Director Telex Address: AA141099 Facsimile Address: (07) 229 2398
Level 32, 123 Eagle Street, Brisbane, Qld. 4000
Attention: Mr. M.D. Kriewaldt Telex Address: 41014 Facsimile Address: (07) 832 4233
With a copy to: C - Assistant Under Treasurer ( d ommercial Policy and Projects) Queensland Treasury Level 1 1, Executive Building, 100 George Street, Br~sbane, Qld. 4000
QNPL:
With a copy to:
Attention: Mr. M. Montefiore Facsimile Address: (07) 221 0739
Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Managing Director Telex Address: AA141099 Facsimile Transmission Address: (07) 229 23
Private Mail Bag 5 Townsville, Qld. 4818
Attention: Director Telex Address: 47639 Facsimile Address: (077) 78 6251
OPS:
Page 71
Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Qld. 4000
Attention: Director Telex Address: AA141099 Facsimile Address: (07) 229 2398
This Deed shall be governed by the laws of the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that State for the purpose of any legal action or proceeding brought hereunder or in respect hereof.
If any of the provisions of this Deed are invalid or unenforceable, the invalidity or unenforceability shall not, unless the deletion would substantially alter the intention of the parties hereto, expressed or implied, affect the operation, construction or interpretation of any other provision of this Deed, with the intent that the invalid or unenforceable provisions shall be treated for all purposes as severed from this Deed.
This Deed may be executed in any number of counterparts each of which when so executed shall be deemed to be an original, and those counterparts shall together constitute one and the same instrument.
For the purposes only of the Bills of Sale Act, further particulars of the parties to this Deed, the charged property, other documents referred to in or affecting this Deed and the consideration for granting this Deed are set out in the Second Schedule.
I
Page 72 7
3 THE FIRST SCHEDULE
0 - 1. The first floating charges contained in Clause 4 of this Deed shall not hinder any
sale or other dealings by the Chargor in the ordinary course of or for the purpose of carrying on its business with the property and rights charged thereby prior to a
7 party becoming entitled to enforce the charges. J 2. The charges contained in Clause 4 of this Deed shall become enforceable against
3 the property mentioned in paragraph (b) of Clause 4 of th~s Deed upon that Chargor becoming a Defaulting Joint Venturer but shall Only become enforceable against the remaining property charged by this Deed 45 days after the relevant Date for Remedy.
L 1 3. Subject to the provisions of Clause 4 of this Deed, none of the property charged by this Deed shall be subjected to any other Encumbrance ranking either in priority to
7 or pari passu with the charges contained in Clause 4 of this Deed. J 4. Where a Joint Venturer or a Manager becomes entitled to take action to enforce
3 any of the charges contained in Clause 4 of this Deed against any property or rights it may, at any time after its entitlement to enforce the said charges arises, appoint a Receiver of the property or rights (hereinafter referred to as the "Charged Propercy") and may in like manner from time to time remove any Receiver so
3 appointed and appoint another in his stead. Any such appointment or removal shall be in writing.
5. (a) A Receiver so appointed shall be deemed to be the agent of the Chargor which shall be solely responsible for his acts and defaults and for his remuneration. The Receiver may exercise any or all of the following powers, authorities and discretions (which shall be interpreted separately and not by reference to one another) in addition to all other powers, authorities and discretions conferred on him by law, subject always to the terms and conditions of the Joint Venture Agreement:
0) to take possession of, collect and get in the Charged Property and for that purpose to take any proceedings in the name of the Chargor or otherwise as seems expedient and to give effectual receipts accordingly for the same;
(ii) to cause the relevant Defaulting Joint Venturer to continue to be associated in the Joint Venture or concur in the continuance of the same and for that purpose to use any of the funds of the Chargor and to raise money on the Charged Property in priority to this charge;
(iii) to sell or concur in selling the Interest of the relevant Defaulting Joint Venturer as a whole;
(iv) to carry any sale permitted by paragraph (iii) of this paragraph into '
effect by conveying and transferring in the name and on behalf of the Defaulting Joint Venturer or otherwise;
(v) to execute all such contracts, deeds, transfers and other assurances in the name and on behalf of the Chargor as he may see fit for the purpose of facilitating the exercise of the powers and authorities conferred on him;
Page 73
(vi) to make any arrangements or compromises which he thinks expedient; and.
(vii) generally to do or cause to be done such acts and things respecting the Charged Property (without being responsible for any loss or damage occurring thereto) as he may think necessary and which could have been done or caused to be done if he had the absolute ownership of the Charged Property.
(b) Any person (including any purchaser under any sales contract) paying money to or otherwise dealing with a Receiver shall not be concerned to enquire whether any event has occurred to authorise the Receiver to act and the receipt of any such Receiver for any moneys arising under any of the- powers aforesaid shall be a sufficient discharge without obliging the person paying the same to see to the application thereof.
(c) Any of the powers which the Receiver may exercise pursuant to paragraph (a) of this Clause may also be exercised by a Manager and the Joint Venturer other than the Defaulting Joint Venturer.
Save as provided in Clause 11 of this Deed, neither the Joint Venturer other than the Defaulting Joint Venturer nor a Manager shall be under any liability to the Receiver for his remuneration, costs, charges or expenses or otherwise.
the charges contained in Clause 4 of this Deed shall be deemed running and continuing securities notwithstanding any settlement on account or any other matter or thing whatsoever and shall remain in full force until final discharges thereof have been executed by the Managers and the Joint Venturer other than the Defaulting Joint Venturer.
m
Page 74
1 1 THE SECOND SCHEDULE
1 -' STATEMENT OF PARTICULARS FOR THE PURPOSE OF SECTIONS 19 AND 22 OF
'1 - THE BILLS OF SALE AND OTHER INSTRUMENTS ACT 1955 (QUEENSLAND) J
1. Names and places of business of the Chargors
QNI Resources Pty. Ltd. ("QNR") Level 8, Waterfront Place, 1 Eagle Street, Brisbane, Old. 4000
Nickel Resources North Queensland Pty. Limited for and on behalf of NRNQ a ' n limited partnership CNRNO")
Level 32, 123 Eagle Street,
'1 Brisbane, QI~ . 4000 ,J
2. Description of business of the Chargors 1
QNR and NRNQ carry on the business of mining, purchasing and processing lateritic ore into nickel and cobalt products.
! 3 3. Names and places of business of the Chargees
Queensland Nickel Pty. Ltd. Ore Purchase and Shipping Pty. Limited Private Mail Bag 5, Level 8, Townsville, Qld. 4818 Waterfront Place
1 Eagle Street, Brisbane, Qld. 4000
L J 4. General description of the chattels charged
All Chattels comprised in each Joint Venturer's Interest and its Subject Products, both present and future. 1
7 5. Places where chattels are situated or intended to be situated I
At the time of executionof this Deed of Cross Charge, the Chattels are situated or intended to be situated at the following places:
,J Greenvale Mine,
I Greenvale, Qld. 4816
Yabulu Treatment Facilities, Yabulu, Qld. 4818
Berths 2 and 3 Port of Townsville, Townsville, Qld. 4810
6. Short particulars of documents referred to in or affecting this Deed of Cross Charge
Queensland Nickel Joint Venture Agreement described in Recital A of this Deed.
Page 75
7. Consideration for granting this Deed of Cross Charge
The mutual promises contained in this Deed.
]'l IN WITNESS whereof the parties hereto have executed this Deed the day and year first hereinbefore mentioned.
SIGNED SEALED AND DELIVERED for and on behalf of QNI RESOURCES PTY. LTD. by its duly appointed Attorney
in the presence of:
: .?a ,,
; THE COMMON SEAL of NICKEL i.< - 4b . ' gj 1, RESOURCES NORTH QUEENSLAND
PTY. LIMITED was hereunto affixed pursuant to a resolution of the Board of Directors and in the presence of:
; . . JkYrS . .. *Tri : ,
.r. - SIGNED SEALED AND DELIVERED for
*. cF and on behalf of QUEENSLAND NICKEL - PTY. LTD. by its duly appointed Attorney
@#?. ; ; n the presence of:
j$!~ .'n..,,'i SIGNED SEALED AND DELIVERED for and on behalf of ORE PURCHASE AND
:J%:~,~'.,SHIPPING PTY. LIMITED by I D dub. " appointed Attorney .. .
. . . . . . . . Director
4 Page 76 I!
SECOND SCHEDULE
CHARGEE'S DEED OF COVENANT -
THIS DEED is made this day of 19
BY AND BETWEEN:
[ ] (hereinafter referred to as the "Chargee");
[
[
AND
t
] (hereinafter referred to as the "Chargor");
] (hereinafter referred to as the "Other Joint Venturer");
] (hereinafter referred to as the "Managers")
WHEREAS:
A. By a Deed dated 14 December 1988 as amended by a Deed dated 28 June 1989 and as further amended and restated by a Deed dated the [ ] day of
] 1992 between the parties hereto (other than the Chargee) (hereinafter, as the same may hereafter be amended, varied, added to, substituted for, replaced, renewed or extended, referred to as the "Joint Venture Agreement") the Joint Venturers have associated themselves in an unincorporated joint venture for the purpose of (inter alia) mining lateritic ore and processing such ore at the Treatment Facilities to produce Products for sale by each of them.
0. Each of the Joint Venturers has executed a Cross Charge in favour of the other Joint Venturer and the Managers.
C. The Chargor proposes charging its lnterest in favour of the Chargee pursuant to a charge to become operative in respect of its lnterest on the date hereof (hereinafter referred to as the "Permitted Charge").
NOW THEREFORE THlS DEED WITNESSES that in consideration of the covenants and agreements herein contained and the benefit accorded a Chargee under the Joint Venture Agreement:
1. In this Deed (including the Recitals hereto) unless the context otherwise requires expressions defined or given a special meaning in the Joint Venture Agreement shall have the same meaning in this Agreement.
2. In the interpretation of this Deed, unless the context otherwise requires:
(a) the singular includes the plural and vice versa and in particular (but without limiting the generality of the foregoing) any word or expressions defined in the singular has the corresponding meaning if used in the plural and vice versa;
(b) references to persons include corporations;
(c) a reference to any gender includes the other genders.
The Chargee hereby acknowledges to and agrees with the Other Joint Venturer and the Managers that:
(a) the security constituted by the Cross Charge created by the Chargor shall rank in point of security in priorrty to the Permitted Charge created by that Chargor notwithstanding:
(0 the respective dates or order of execution or registration of the Permitted Charge and the Cross Charge;
(ii) anything contained in the Permitted Charge or the Cross Charge;
(iii) the order in which any moneys secured by the Permitted Charge or the Cross Charge are advanced or become payable or in which the security constituted by the Permitted Charge or the Cross Charge crystallises or is enforced; or
(iv) any other matter or thing whatsoever or any rule of law or equity to the contrary;
(b) the rights and powers of the Chargee or any Receiver appointed under the Permitted Charge or any person claiming through or under the Chargor or any Receiver in the exercise or enforcement of any power of sale or to take possession or other power of enforcement conferred upon it or him by the instrument containing the Permitted Charge or by law shall be subject to the provisions of the Priority lnstruments (including, without limitation, Clause 8 and 9 of the Joint Venture Agreement) and any valid decision of the JVOC including:
0) any amendment of the Priority Instruments which is not prohibited by the Permitted Charge or to which the Chargee has consented;
(ii) any decision of the JVOC,
which is made after the date of the Permitted Charge.
The Chargee covenants and agrees with the Other Joint Venturer not to transfer or assign its rights as Chargee to any' person unless the transferee or assignee binds itself in substantially the same manner as the Chargee is bound under this Agreement.
The Chargee covenants and agrees with the Other Joint Venturer that at the request and cost of the Other Joint Venturer it will release and discharge from the Permitted Charge created by a Chargor any part of the lnterest of the Chargor:
(a) which is transferred pursuant to Clause 7.4, 8.5, 8.6 or 8.7 of the Joint Venture Agreement; or
(b) which is assigned in conformity with Clause 8.4 or 12 of the Joint Venture Agreement or pursuant to a Cross Charge,
and acknowledges that upon such transfer or assignment such part of the lnterest of the Chargor will be free and clear of the Permitted Charge and that the Chargee has no right or claim in respect thereof,
The Chargee acknowledges that one or both of the Joint Venturers will be entitled, if both Joint Venturers so agree hereafter, to develop, as a separate joint venture, a
Page 78
New Mine or port within the Joint Venture Area free and clear of the Permitted Charge and covenants and agrees with each of the Joint Venturers that it will upon the request and at the cost of both Joint Venturers:
(a) release and discharge from the Permitted Charge so much of the Joint Venture Area as is reasonably required for the development and operation of such New Mine or port; and
(b) permit, and make such arrangements as will ensure that any Receiver and any person in whose favour the Chargee or any Receiver exercises any power of sale conferred by the Permitted Charge or by law (and any successor in title to the Chargee, Receiver or any such person) permits, such Joint Venturers and any person in whose favour they or any of them create any Encumbrance over or in respect of the New Mine or port and the successors in title to such Joint Venturers and any such person, to use, for the purposes of the development and operation of such New Mine or port, such facilities as are Joint Venture Property or to which the Joint Venture has access (including, without limitation, processing, transport and delivery facilities which are Joint Venture Property or which the Joint Venturers are entitled to utilise) but so that such use takes priority after the use to which such facilities are being put by the Joint Venture at the time such New Mine or port commences to be developed, upon payment of such compensation for such use as is agreed on between the Joint Venturers and the Chargee, or in default of agreement within 60 days of the Joint Venturers' request to the Chargee, as is determined pursuant to this Clause.
Such compensation shall be determined on the basis that there should be recovered for the benefit of the Joint Venture the direct and indirect cost to it of such use (including, without limitation, such proportion of the depreciation charged to facilities forming part of the Joint Venture Property, and such proportion of user and other charges made or payable in respect of facilities which the Joint Venturers are entitled to utilise) as is referable to the use thereof for the development or operation of the New Mine or port. Any dispute as to such compensation shall be referred to the determination of the auditors of the General Manager, who in making their determination shall act as experts and not as arbitrators and whose determination shall be accepted as final and conclusive. No such dispute or reference shall prevent or delay the development or operation of such New Mine or port.
7. This Deed shall be governed by the laws of the State of Queensland.
8. If any of the provisions of this Deed are invalid or unenforceable the invalidity of unenforceability shall not, unless the deletion would substantially alter the intention of the parties hereto, expressed or implied, affect the operation, construction or interpretation of any other provision of this Deed, with the intent that the invalid or unenforceable provisions shall be treated for all purposes as severed from this Deed.
9. This Deed may be executed in separate counterparts by the parties hereto. Upon delivery t o the General Manager of counterparts executed by all parties, all the parties hereto will be bound by the provisions of this Deed.
IN WITNESS whereof the parties hereto have executed this Deed the day and year first hereinbefore mentioned.
[Execution Clauses]
Page 79
THIRD SCHEDULE
ASSIGNEE'S DEED OF COVENANT
IS DEED is made the day of 19
AND BETWEEN:
1 (hereinafter referred to as the "Assignee")
1 (hereinafter referred to as the "Continuing Joint Venturers") and
1 (hereinafter referred to as the "Managers")
By a Deed dated 14 December 1988 as amended by a Deed dated 28 June 1989 and as further amended and restated by a Deed dated the [ ] day of
] 1992 between the parties hereto (other than the Assignee) (hereinafter, as the same may hereafter be amended, varied, added to, substituted Tor, replaced, renewed or extended, referred to as the "Joint Venture Agreement") the Joint Venturers have associated themselves in an unincorporated joint venture for the purpose of (inter alia) mining lateritic ore and processing such ore at the Treatment Facilities to produce Products for sale by each of them.
. Each of the Joint Venturers has executed a Cross Charge in favour of the other Joint Venturer(s) and the Managers.
The Assignor proposes assigning [its lnterest] [a part of its lnterest, being I] to the Assignee by an instrument to be executed on the date
and by the terms of Clause 12.7 of the Joint Venture Agreement, such assignment may not be made unless the Assignee covenants with the Continuing Joint Venturer(s) and the Managers in substantially the form hereof.
THIS DEED WITNESSES that in consideration of the covenants and agreements contained and the benefit to be accorded to the Assignee under the Joint Venture
Deed (including the Recitals hereto) unless the context otherwise requires expressions defined or given a special meaning in the Joint Venture Agreement shall have the same meaning in this Deed.
In the interpretation of this Deed, unless the context otherwise requires:
(a) the singular includes the plural and vice versa and in particular (but without limiting the generality of the foregoing) any word or expression defined in the singular has the correspondir~g meaning if used in the plural and vice versa;
(b) references to persons include corporations;
(c) a reference to any gender includes the other genders.
Page 80
3. The Assignee covenants and agrees with the Continuing Joint Venturer@) and the Managers to be bound, on and from the date upon which the assignment by the Assignor to the Assignee of [part of] its lnterest takes effect, by all the terms, conditions, restrictions, covenants and obligations contained in the Priority Instruments applicable to the Assignor or its lnterest (including the Assignor's obligation to pay any Unpaid Called Sum and any other amount) and all valid decisions of the JVOC applicable to the Assignor or its lnterest to the extent that such terms, conditions, restrictions, covenants, obligations and decisions relate to [the lnterest of the Assignor acquired by the Assignee] [the fractional part of the lnterest of the Assignor acquired by the Assignee] representing a Participating lnterest of % [and acknowledges that the lnterest acquired by it has become subject to the Cross Charge given by the Assignee].*
4. The address of the Assignee for the purposes of the Joint Venture Agreement shall, until a new address is substituted in accordance with Clause 16.1 thereof, be as follows:
Attention: Telex Address: Facsimile Address:
5. This Deed shall be governed by the laws of the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that State for the . purpose of any legal action or proceeding brought hereunder or in respect hereof.
6. If any of the provisions of this Deed are invalid or unenforceable, the invalidity or unenforceability shall not, unless the deletion would substantially alter the intention of the parties hereto, expressed or implied, affect the operation, construction or interpretation of any other provision of this Deed, with the intent that the invalid or unenforceable provisions shall be treated for all purposes as severed from this Deed.
7. This Deed may be executed in separate counterparts by the parties hereto. Upon delivery to the General Manager of counterparts executed by all parties, all the parties hereto will be bound by the provisions of this Deed.
IN WITNESS whereof the parties hereto have executed this Deed the day and year first hereinbefore mentioned.
[Execution clauses]
* Insert if the Assignee is already a Joint Venturer.
Page 81
FOURTH SCHEDULE
BUSINESS PLAN
QNJV FIVE YEAR BUSINESS PLAN (as agreed as at 30 June 1992 pursuant to the Heads of Agreement)
n will form part of the Joint Venture Agreement.
gree to abide to the principles as defined in this plan and acknowledge any departure from this plan is to be by unanimous agreement.
ERALL DIRECTION
the Queensland Nickel Joint Venture in broad terms will comprise the
The ownership, operation and maintenance of a refinery at Yabulu with an approximate annualised operating capaclty of 60m lbs of contained nickel and 2.4m lbs of contained cobalt output per annum based upon the ammonia leaching and solvent extraction processes;
The importation and/or mining of nickel/cobalt ore, so as to provide the refinery with feed necessary to maintain output, with the quantity of feed approximating 3.2 million wet tonnes per annum;
The securing of such infrastructure arrangements as may be reasonably necessary from time to time to ensure the long term security of ore supply;
The marketing of nickel and cobalt products to such locations and upon such terms and conditions as to maximise sales revenue consistently with the requirements of security of market access, product diversity, security of payment and other relevant commercial objectives for the Joint Venture;
Research and development activities to reinforce the competitive position of the refinery at Yabulu with respect to its present product range and with a view to gaining the capacity to produce higher value added products as and when such products may be commercially attractive from the viewpoint of the Joint Venture. The Joint Venture will undertake a minimum research and development commitment (including any external grants or other assistance) of 1% o f gross sales revenue subject to the operations of the Joint Venture being sufficiently cash positive to meet such commitment.
ORE SUPPLY
Existing contracts for the supply of ore will be continued.
New contracts will be sought, primarily from known suppliers in New Caledonia and aim of securing a minimum of 2.25 million wet tonnes per annum under t 5 years term.
Contracts will be pursued and completed on a competitive basis so as to minimise the cost of supply having due regard to the need for security, reasonable diversity of supply and ore quality considerations.
Page 82
Should either Joint Venture party contemplate an equity participation in an ore supply source, the other party will be informed.
- INFRASTRUCTURE
Both QNR and NRNQ are aware of the Port of Townsville development proposals, fees regime and user arrangements currently contemplated by the Townsville Port Authority, Mt Isa Mines Limited and Queensland Nickel Pty. Ltd. QNR and NRNQ require that the existing Joint Venturers do all things necessary to commit to the Port Development Plan prior to the formation of the new Joint Venture.
The Joint Venture budget for 1992/93, 1993194 and other periods as appropriate, will include the capital necessary to implementthe Port Development Plan.
Both QNR and NRNQ are aware of Queensland Rail's proposals for the upgrade of the Townsville/Yabulu line and the long term freight arrangement as at the date hereof. QNR and NRNQ require that the existing Joint Venturers do all things necessary to enter into a long term rail agreement with Queensland Rail which is consistent with the aforementioned proposals prior to the formation of the new Joint Venture.
The Joint Venture budget for 1992193, 1993194 and other periods as appropriate, will include the capital necessary to implement the Rail Agreement.
QNR and NRNQ acknowledge the fundamental importance and urgency attached to the port and rail development issues and express their wish to see Heads of Agreement ~ncorporating all significant commercial terms executed no later than 30 June 1992. Within the same time frame, the parties wish to see action initiated to terminate the litigation between the MEQ Group and NRNQ and the appeal to the Administrative Appeals Tribunal by Queensland Nickel Management Pty. Ltd.
GREENVALE OPERATIONS
Nickel mining at Greenvale is to cease no later than 30 June 1993.
The Greenvale mine site will be rehabilitated by the Joint Venture to the standard and to the timetable required by relevant legislation, Mining Lease conditions or directions by competent authorities.
The Greenvale township and site will be sold if practicable or rehabilitated as may be required by relevant legislation or authorities.
The Joint Venture will undertake detailed investigations including feasibility studies into the mining of cobalt-rich deposits of Greenvale or elsewhere in Australia. Such developments will proceed if commercially sound.
YAAMBA OPERATIONS
The existing Joint Venture has under review a commitment of a contract mining operation within the mining leases held by the Joint Venture at Yaamba.
QNR and NRNQ will honour a decision by the existing Joint Venturers to commit to the proposed mining operation at Yaamba with a minimum output of 500,000 wet tonnes per annum.
REFINERY OPERATIONS
The annualised current operating capacity of the refinery at Yabulu is 60m lbs per annurn in normal full-time operation. The intention of the parties is to do nothing to prejudice the
Page 83
3 continuing capability of the plant to achieve that output. Actual production levels will be 1 planned for each reference period in accordance with operational requirements, inventory
. levels and marketing requirements, subject to the requirement for unanimous agreement . for a planned reduction of more than 15% of normal capacity in any one year. le 1 QNR and NRNQ will honour the decision by the existing Joint Venturers to proceed with f
the construction of an additional thickener.
Both QNR and NRNQ confirm their commitment to such investment as may be reasonably necessary to maintain the capacity of the refinery and in particular, to undertake the i following capital works:
ltem Est. Cost Completion Date Gas Cooler Condenser $1.5 m June 1993 Aeration Equipment $3.6 m December 1993 Additional Clariiier $1.4 m December 1993 Plant Services $1.6 m December 1997 Elec & Instrumentation $3.0 m December 1997 No. 4 Dryer $17.5 m (1993 if Yaamba is not mined as
from the first half of 1993)
Joint Venture company management shall examine operating and investment alternatives to the above capital works and if an alternative is found which is demonstrated to the unanimous satisfaction of the Joint Venture Owners Committee to be more commercially attractive and which maintains the capacity of the. refinery then the Joint Venture will proceed with such alternative.
By 30 September 1992, QNR, NRNQ and the Chief Executive of the management company will each nominate people to comprise a Development Committee. The Development Committee will report to the Joint Venture Committee at least annually on the technical and commercial opportunities for new product development, process research and development, or plant expansion prospects.
*: e"' . current research and development work will continue to completion. The cobalt pilot .>, _ _ ,: ,,
, . . <. plant will be continued with a view to achieving production capability in cobalt salts.
. -
The capability to produce high purity nickel metal will be pursued, with production during 1992193 of test deliveries of QN 97 or higher nickel content. The objective of the new Joint Venture will be to maximise medium to long-term returns on its product mix.
JUN 28 '94 05:47PM R R & H MELBOURNE 4. 613 6144661
DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT ia made the J7d day of 1904
BY AND BEWEEN:
NiCKEL RESOURCES NORTH PUEENSLAND PIY. LIMITED (A.C.N. 010 885 880 for and on behalf of NRNQ a limlted partnership (formerly named Nickel Resource8 hl orth Queensland Pty. Limited and another) a limited partnership formed under the laws of the State of Queensland, Australia (which limited partnership is hereinafter referred to a8 I'NRNQ'3;
QNI RESOURCES PN. LTD. (A.C.N. 054 117 921) a company Incorporated in the State of Queensland, Australia C'QNR1');
QUEENSLAND NICKEL PN. LID. A.C.N. 008 842 068) a company incorporated In the I State of Queensland, Australia ("QNP 'I);
AND
ORE PURCHASE AND SHIPPING PN. LIMITED (A.C.N. 010 799 765) a company incorporated in the State of Queensland, Australla ("OPS'').
WHEREAS:
A. By a Deed dated 17 September 1992 entitled Queensland Nickel Joint Venture Agreement1 between QNR, NRNQ, OPS and QNPL (the Voint Venture Agreement'). QNR and NRNQ associated themselves in an unincorporated joint venture for the purpose of (inter alia) Products from laterltlc ore for isle by each of them (the "Joint Venture").
0. By a Deed of Cross Chargs dated 30 June 1992 (the "Deed of Cross Charge") each of NRNQ and QNR Charged in favour of each other and each of QNPL, OPS and Queensland Nickel Management Pty. Ltd. ("ONMI'), its interest and certaln other property for the purpose of securing all Its Secured Debts.
C. .The charges given by QNR and NRNQ under the ~ e e d of Cross Charge have been registered under tho Corporations Law as Charge No. 347477 and Charge No. 347472 respectively.
D. Pursuant to a Deed of Assignment dated 31 August 1992 between NRNQ, QNR, QNPL, OPS and QNM, QNM assigned the charges given in favour of QNM by each of QNR and NRNQ under the Deed of Cross Charge to QNPL.
JUN 28 '94 05:47PM FI R & H MELBOURNE 4. 613 6144661 P. 6/15
Page 2
E. Pursuant to a Deed of Termination of even date herewith between NRNQ, QNR, ClNPL and OPS, the appointment of OPS as Ore Purchase and Shipping Manager of the Joint Venture has been terminated with effect from midnight Australian Eastern Standard time on 27 June 1664.
F. QNR and NRNQ have requested OPS to assign the charges given by QNR and NRNQ in favour of OPS under the Deed cf Cross Charge to QNPL and OPS has agreed to do so.
NOW 71.115 DEED WITNESSES as follows:
1. In this Deed (including the Recitals hereto) unless the context otherwise requires any term which has a defined meaning in the Joint Venture Agreement or the Deed of Cross Charge shall have the same meaning herein,
2. OPS hereby assigns the charges given in favour of OPS by each of QNR and NRNQ under the Deed of Cross Charge to QNPL with effect from midnight AustralIan Eastern Standard Time on 27 June 1994.
3. Each of the parties hereby acknowledges that the charges given in favour of QNR (by NRNQ), NRNQ (by QNR) and QNPL (by QNR and NRNQ) under tho Doed of Cross Charge remain in full force and effect.
IN WITNESS WHEREOF the parties have executed this Deed the day and year first
hereinbefore mentioned.
THE COMMON SEAL of NICKEL RESOURCES NORTH QUEENSLAND PlY. LIMITED was hereunto affixed pursuant to a resolution of the Board of Directors and in the presence of:
Page 3
THE COMMON SEAL of QNI ) flESOURCES PTY. LTD. was hereunto &ed in accordance with its Articles of p,ssooiation in the presence of: 1
T H E COMMON SEAL of QUEENSLAND ) piICKEL PTY. LID, was hereunto affixed in accordance with its Articles of 1 +ssociation in the presence of: 1
T H E COMMON SEAL of ORE PURCHASE AND SHIPPING PTY, 1 LIMITED was hereunto a m e d In acearclance with its Articles of
1 Association in the presence of:
Secretary
-
JUN 28 '94 05:45PM FI R & H MELBOURNE 4. 613 6144661 <
DEED OF TERMINATION
THIS DEED OF ASSIONMENT is made h e 9 day of !& i QQ4 w
BY AND BETWEEN:
NICKEL RESOURCES NORTH QUEENSLAND PN. LIMITED (A.C.N. 01 0 865 880 for and on behatf of NRNQ a llmlted partnerehlp (formerly named Nickel Resources E ) orth Queensland Pty. Limited and another) a limited partnership formed under the laws of the StBte of Queensland, Australla (which limited partnershlp is hereinafter referred to as "NRNQ");
QNI RESOURCES PTY. LTD. 054 117 921) a company incorporated In the State of Queensland, Ausfralia
QUEENSLAND NICKEL PTY. LTD. (A.C.N. 009 842 088) a company incdrporated in the State of Queensland, Australia ("QNPL");
AND
ORE PURCHASE AND SHIPPING PN. LIMITED (A.C.N. 010 799 765) a company incorporated in the State of Queensland, Australia ("OPS").
A. By a Deed datad 17 September 1992 entitled "Queensland Nickel Joint Venture Agreement'' between CINR, NRNQ, OPS and QNPL (the "Joint Venture Agre@menV4), QNR and NRNQ associated 'themselves in an unincorporated jolnt venture for the purpose of (inter alla) producing Products from lateritio ore for sale by each of them (the ''Joint Venture8#).
B. clause 5.2(i) of the Joint Venture Agreement provides that OPS shall remain the Ore Purchase and Shipping Manager of the Joint Venture until such time as it is replaced pursuant to Clause 5.6 of the Joint Venture Agreement.
C. NRNQ and QNR have agreed to terminate the appointment of OPS as the Ore Purchase and Shipping Manager.
NOW THIS DEED WITNESSES as follows:
1. In this Deed (including the Recitals hereto) unless the context otherwise requires any term which has a defined meaning in the Joint Venture Agreement shall have the same meaning hereln.
JUN 28 '94 05:46F?l FI R & H NW3OUF.E 4. 613 6144661 P.3/15 . >
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2. Pursuant to Clause 5.6 of the Joint Venture Agreement, each of NRNQ and QNR hereby terminates the appointment of OPS as Ore Purchase and Shipping Manager with effect from midnight Australian Eastern Standard Time on 27 June 1894.
3. OPS acknowledges the termination set out in Clause 2.
4. Each of NRNQ, QNR and QNPL acknowledges that, with effect from midnight Australian Eastern Standard Time on 27 June 1994, QNPL will assume sole responsibility under Clause 5.1 (c) of the Joint Venture ,Agreement for acting as'the agent of the Joint Venturers in the purchase and shipping of nickel ore from overseas sources for processing at the Yabulu Treatment Facilities of the Joint Venture.
IN WITNESS WHEREOF the'parties have executed this Deed the day and year first hereinbefore mentioned.
THE COMMON SEAL of NICKEL RESOURCES NORTH QUEENSLAND PN. LIMITED was hereunto affixed ursuant to a resolution of the Board of
fl irectors and in the presence of:
THE COMMON SEAL of QNI RESOURCES PTY. LTD, was hereunto afflxed in accordance with Its Artlcles of Association in the presence of:
THE COMMON SEAL of QUEENSLAND NICKEL PTY. LTD. was hereunto affixed in accordance with its Articles of Association in the presence of:
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COMMON SEAL of O ~ E -CHASE AND SHIPPING pTY.
~y-11~~ was hereunto affixed in m r d a n c e with its Articles of , ,ciation in the presence of; w