FACILITIES ACCESS AND
USAGE AGREEMENT
NORD AUSTRALEX NOMINEES PTY LIMITED
(NORD)
STRAITS MINING PTY LTD
(STRAITS)
NORD PACIFIC LIMITED
NORD GOLD COMPANY LIMITED
GIRILAMBONE COPPER COPPER PTY LTD
(GCC)
Gadens Lawyers
Skygarden Building
00 Xxxxxxxxxxx Xxxxxx
XXXXXX 0000
Telephone 0000-0000
Facsimile 9931-4888
999624
Attention: ATK
179
CLAUSE HEADING PAGE
1. DEFINITIONS AND INTERPRETATION ................... 2
2. CONDITION ....................................... 3
3. APPLICATION FOR USE OF FACILITIES ............... 3
4. CHARGES FOR USE OF THE FACILITIES ............... 5
5. FIRST RIGHT OF PURCHASE OF FACILITIES ........... 6
6. DISPUTE RESOLUTION .............................. 7
7. ASSIGNMENT ...................................... 8
8. TERM ............................................ 9
9. ADMINISTRATIVE PROVISIONS ....................... 9
SCHEDULE 1 ........................................... 12
SCHEDULE 2 ........................................... 13
180
FACILITIES ACCESS AND USAGE AGREEMENT
DATED: 1st day of June 2000
PARTIES
1. NORD AUSTRALEX NOMINEES PTY LIMITED ACN 001 657 272 in
its own right and in its capacity as trustee of the Nord
Australex Exploration (Australian) Trust of Xxxxx 00, 0 Xxxxxx
Xxxxxx, Xxxxxx XXX (Xxxx).
2. NORD PACIFIC LIMITED ARBN 062 482 900 a Canadian
corporation and NORD GOLD COMPANY LIMITED, a Canadian
corporation both of 00 Xxxxxxxxxx Xxx, Xxxxx 0000, Xxxxxx
Plaza, Saint Xxxx, New Brunswick, Canada E2L 4S3 in their
capacity as partners in NORD HIGHLANDS MINERAL VENTURE -1 a
general partnership under the laws of the State of California.
3. STRAITS MINING PTY LTD ACN 055 020 614 (previously known
as Straits Resources Pty Ltd) of Xxxxx 0, Xxxxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx, Xxxxxx XXX (Straits).
4. GIRILAMBONE COPPER COMPANY PTY LTD ACN 057 083 637 of
Xxxxx 0, Xxxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx XXX (GCC).
BACKGROUND
A. The parties are parties to the agreements listed in
Schedule 1 (Girilambone Agreements).
X. Xxxx has agreed to purchase and Straits has agreed to
sell all of Strait's interest in certain assets under the Sale
Agreement.
X. Xxxx will continue to have certain rights with respect to
the Facilities.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement unless the context otherwise requires:
Act means the Mining Xxx 0000;
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Expert means a party appointed under clause 5;
Facilities means any and all of the improvements,
infrastructure and facilities listed in Schedule 3 owned
or leased to the Mining Joint Venture;
Girilambone Agreements means the agreements listed in
Schedule 1;
Land means the freehold land owned by the Mining Joint
Ventures falling within the boundary of Mining Lease
1280;
Manager means the manager of the Mining Joint Venture;
Mining Joint Venture means the mining joint venture in
respect of Mining Lease number 1230, constituted by the
Mining Joint Venture Agreement;
Mining Joint Venture Agreement has the meaning given it
in item 5 in Schedule 1;
Mining Joint Venturers means the parties to the Mining
Joint Venture Agreement from time to time, and which at
the date of this Agreement are Nord and Straits;
Nord Group Company means any party that is a related body
corporate of Nord (as defined in section 50 of the
Corporations Law) and includes any beneficiary of the
Nord Australex Exploration (Australia) Trust;
Sale Tenements means Mining Lease (Application) 86
Tritton and Mining Lease 1383 Girilambone North;
Transfer means to sell or dispose of, or any agreement or
option to sell or dispose of; and Transferred is to be
construed accordingly.
Tritton Sale Agreement means a sale agreement in respect
of the Sale Tenements and the Land between Straits and
Nord dated the date of this Agreement;
1.2 Interpretation
In this Agreement unless the context otherwise requires:
reference to a person includes any other entity
recognised by law and vice versa;
the singular includes the plural and vice versa;
words importing one gender include every gender;
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any reference to any of the parties by their defined
terms includes that party's executors, administrators or
permitted assigns or, being a company, its successors or
permitted assigns;
an agreement, representation, or warranty on the part of
two or more persons binds them jointly and severally;
an agreement, representation, or warranty in favour of
two or more persons is for the benefit of them jointly
and severally;
clause headings are for reference purposes only;
reference to an Exhibit, Attachment or Schedule is a
reference to the corresponding Exhibit, Attachment or
Schedule to this Agreement.
2. CONDITION
This Agreement is subject to and conditional upon:
(a) completion of the sale by Straits and purchase by Nord of
the Sale Tenements and Land pursuant to the Sale Agreement;
and
(b) the receipt of all ministerial approvals and
registrations (if any) required under the Act to give legal
effect to the provisions of this Agreement.
3. APPLICATION FOR USE OF FACILITIES
3.1 Nord may at any time make written application to the
Mining Joint Venturers to obtain access to the Facilities, or
any of them, for any purpose in connection with the use or
enjoyment by Nord of the Sale Tenements or the conducting of
exploration or mining operations on the Sale Tenements,
including without limitation for the purpose of processing ore
from the Sale Tenements in consideration for charges to be
determined under clause 4.
3.2 The Mining Joint Venturers agree to consider any
application by Nord under clause 3.1 to determine whether:
(a) there exists sufficient existing excess capacity in the
Facilities to accommodate Nord's requested use;
(b) the Mining Joint Venture has any future plans for
existing excess capacity which would prohibit the availability
of the Facilities requested by Nord;
(c) Nord's intended use would interfere with any plans or
other uses the Mining Joint Venture has in regard to the
Facilities;
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(d) any other party has requested access to the Facilities
which would prohibit the availability of the Facilities
requested by Nord, prior to the Mining Joint Venture receiving
the application from Nord.
3.3 If a third party seeks access to the Facilities, the Mining Joint
Venturers must:
(a) give priority to Nord's application provided it offers
equal or better commercial terms; and
(b) (if Nord is not then a Mining Joint Venturer) notify Nord
of the existence and material terms of the third party's
application.
3.4 If the Mining Joint Venturers determine that they can
accommodate Nord's request, the Mining Joint Venturers will
advise Nord accordingly and the Mining Joint Venturers and
Nord will proceed to negotiate commercial terms for such
access, including charges for such use in accordance with
clause 4 and terms to ensure non-disturbance of Nord's rights
in the event of sale to a third party or enforcement action by
a financier.
3.5 The Mining Joint Venturers will following determination
of commercial terms in accordance with clause 3.4 make the
Facilities available to Nord or to any Nord Group Company for
any purpose in connection with the use or enjoyment by Nord of
the Sale Tenements or the conducting of exploration or mining
operations on the Sale Tenements, including without limitation
for the purpose of processing ore from the Sale Tenements.
3.6 In relation to any ore from the Sale Tenements supplied
by Nord, processed at the Facilities:
(a) Nord must deliver the ore to a site in the vicinity of
the Facilities specified by the Manager;
(b) the parties must agree weighing, assaying, sampling and
metallurgical procedures to be following by the Manager to
determine the amount of production derived from the treatment
through the Facilities from the ore;
(c) the Mining Joint Venturers must procure the Manager to
deliver the production derived as a result of treating the ore
to a site in the vicinity of the Facilities specified by the
Manager.
4. CHARGES FOR USE OF THE FACILITIES
4.1 If the Mining Joint Venturers agree to make the
Facilities available to process ore on behalf of Nord (or any
Nord Group Company) as referred to in clause 3.2, the Mining
Joint Venturers may charge Nord a tolling fee for these
services, determined in accordance with clause 4.2.
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4.2 Any charge for the use of the Facilities (including the
toll for the processing operations), to be charged by the
Mining Joint Venturers must reflect market rates and be agreed
or determined as follows:
(a) the parties must for a period of 14 days negotiate in
good faith with a view to agreeing an appropriate charge;
(b) if the parties are unable to agree within the 14 day
period, then Nord may request the president of the
Australasian Institute of Mining and Metallurgy to appoint an
Expert in order to determine a reasonable charge. In making
his determination, the Expert will have regard to all relevant
factors including the following:
(i) the costs incurred in establishing and maintaining the
Facilities;
(ii) the prevailing market rates for tolling and other
services being sought by Nord;
(iii) the extent to which ore from other sources is
available for processing through the Facilities; and
(iv) the costs incurred in operating the Facilities.
The costs of the Expert must be borne equally
between Nord and Straits.
4.3 The Mining Joint Venturers shall not be required at any
time to incur any additional capital costs in complying with
their obligations to provide Facilities under this Agreement.
5. FIRST RIGHT OF PURCHASE OF FACILITIES
5.1 If the Mining Joint Venturers wish to Transfer all or any
of the Facilities at any time to a third party (not being a
related party of the party to the Mining Joint Venture), the
Mining Joint Venturers may not Transfer those Facilities
without giving Nord a first right of refusal on the following
basis:
(a) the Mining Joint Venturers must give notice to Nord,
setting out the terms on which the Mining Joint Venturers
intend to Transfer the Facilities and offering to Transfer the
Facilities to Nord;
(b) Nord has a period of 30 days after notice under
paragraph (a) to:
(i) accept the offer;
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(ii) not accept the offer;
(c) if Nord accepts the offer, the parties must complete the
Transfer within 30 days after Nord's acceptance;
(d) if Nord does not accept the offer, the Mining Joint
Venturers may Transfer the Facilities within 90 days to any
other person, on terms no less favourable to the Mining Joint
Venturers than those contained in the notice under
paragraph (a), and if the Mining Joint Venturers do not
Transfer the Facilities then the pre-emptive right granted
under this clause is reinstated.
5.2 For the avoidance of doubt, the terms of this clause 5
are subject to the terms of an option with respect to the
SX-EW Plant contained in the Sale Agreement, and any
restriction on the rights of the Mining Joint Venturers to
sell the SX-EW Plant contained in the Sale Agreement is not in
any way diminished, waived or removed by the terms of this
Agreement. If there is any inconsistency, the terms of the
option in the Sale Agreement prevails.
5.3 Nord may at any time make written application to the
Mining Joint Venturers to purchase the Land or any parcel of
the Land (the Land Parcel).
5.4 The Mining Joint Venturers agree to consider any
application by Nord under clause 5.3 to determine whether the
Land Parcel is surplus to the requirements of the Mining Joint
Venturers. If the Mining Joint Venturers determine that the
Land Parcel is so surplus, the Mining Joint Venturers shall
advise Nord accordingly and Nord may require the Mining Joint
Venturers to sell to it the Land Parcel at a price determined
under clause 5.5.
5.5 The Mining Joint Venturers and Nord must negotiate in
good faith with a view to agreeing the purchase price for the
Land Parcel. If the parties are unable to agree the purchase
price for the Land Parcel within 30 days, Nord may request the
President of the Australian Property Institute (NSW Division)
to appoint an experienced, qualified and licensed valuer to
determine the fair market value of the Land Parcel. The costs
of the valuer must be borne equally between Nord and Straits.
6. DISPUTE RESOLUTION
6.1 If any dispute or difference arises between the parties
with respect to any technical matter or matter requiring the
exercise of professional or specialist knowledge or expertise,
then any party may by notice in writing to the other, specify
the nature of the dispute and call for submission of the
dispute to an independent Expert.
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6.2 The Expert to be appointed will be agreed between the
parties or failing agreement, within 14 days after receipt of
the notice determined in the following manner:
(a) if the dispute or difference relates to the conduct of
mining operations or usual industry practices or matters
related thereto, then the Expert will be nominated by the
President of the Australasian Institute of Mining and
Metallurgy;
(b) if the dispute relates to any financial or accounting
matter including the computation of costs and the keeping of
accounts, then the Expert will be nominated by the President
of the Institute of Chartered Accountants;
(c) in any event, the Expert must have a reasonable
commercial and practical experience in the area of dispute.
6.3 The Expert must be required to accept submissions from
the parties as to the subject matter of the dispute within
14 days of his appointment and must be required to state his
determination in writing within 28 days of appointment.
6.4 The Expert must be required to undertake to keep
confidential matters coming to his knowledge by reasons of his
appointment.
6.5 The Expert has the following powers:
(a) to inform himself independently as to facts and if
necessary technical matters to which the dispute relates;
(b) to receive written submissions sworn or unsworn, written
statements and photocopy documents and to act upon the same;
(c) to consult with such other professionally qualified
persons as he in his absolute discretion thinks fit;
(d) to take such measures as he thinks fit to expedite the
completion of the dispute resolution.
6.6 The dispute resolution will be held in Sydney, New South
Wales unless the parties to the dispute agree otherwise.
6.7 The determination of the Expert will be final and binding
on the Parties.
7. ASSIGNMENT
7.1 If Straits wishes to transfer any part of its interest in
the Mining Joint Venture, at the time of issuing a pre-emption
notice in accordance with the Mining Joint Venture Agreement,
it will issue a notice to Nord under this Agreement.
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7.2 If Nord does not, during the pre-emption period
exercise it preemptive right under the Mining Joint Venture
Agreement, it may instead during that period nominate which
equipment forming part of the Facilities it seeks to purchase
on fair market terms. Unless the equipment nominated is
required for Mining Joint Venture Operations Straits will sell
its interest in the equipment to Nord on those terms. If the
equipment is required for Mining Joint Venture operations
Straits will obtain a covenant from the purchaser of Strait's
Mining Joint Venture interest in favour of Nord, providing
that Nord will have first rights of purchase over the
nominated equipment on the terms set out in clause 5 of this
Agreement.
7.3 The parties agree to waive any restrictions under the
Mining Joint Venture Agreement, on partition of property,
to the extent necessary to comply with this clause.
8. TERM
Subject to clause 2, this Agreement will commence on the
date of this Agreement and continue until the first to
occur of either:
(a) all terms under it are satisfied in full; or
(b) the Mining Joint Venture Agreement terminates in
accordance with its terms.
9. ADMINISTRATIVE PROVISIONS
9.1 Notices
(a) Any notice, approval, request, demand or other
communication (notice) to be given for the purposes of this
Agreement must be in writing and must be:
(i) served personally; or
(ii) sent by ordinary or registered post - person to person
mail (airmail if overseas) to the address of the party
specified in this Agreement (or such other address as that
party notifies in writing); or
(iii) sent by facsimile transmission to the facsimile
number of that party specified in this Agreement, (or such
other facsimile number as that party notifies in writing).
(b) A notice given:
(i) personally will be served on delivery;
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(ii) by post will be served seven days after posting;
(iii) by facsimile transmission will be served on receipt
of a transmission report by the machine from which the
facsimile was sent indicating that the facsimile had been sent
in its entirety to the facsimile number specified in this
Agreement or such other number as may have been notified by
the receiving party. If the facsimile has not been completely
transmitted by 5:00 pm (determined by reference to the time of
day at the recipient's address) it will be deemed to have been
served on the next day.
9.2 Stamp Duty and Costs
(a) Nord must pay all stamp duty on or arising in connection
with this Agreement and any other related documentation.
(b) Each party must bear its own legal and other costs and
expenses arising directly or indirectly with respect to the
preparation, execution, completion and performance of this
Agreement or any related documentation.
9.3 Governing Law
This Agreement will be governed by the laws of New South
Wales. The parties submit to the non-exclusive
jurisdiction of the courts of that State.
9.4 Waiver
The failure or omission of a party at any time to:
(a) enforce or require the strict observance of or compliance
with any provision of this Agreement; or
(b) exercise any election or discretion under this Agreement,
will not operate as a waiver of them or of the rights of
a party, whether express or implied, arising under this
Agreement.
9.5 Further Assurance
Each party must sign, execute and complete all additional
documents which may be necessary to effect, perfect, or
complete the provisions of this Agreement and the
transactions to which it relates.
9.6 Severability
If any part of this Agreement is or becomes illegal,
invalid or unenforceable in any relevant jurisdiction,
the legality, validity or enforceability of the remainder
of the Agreement will not be affected and this Agreement
will be read as if the part had been deleted in that
jurisdiction only.
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9.7 Consistency with Other Agreements
(a) To the extent of any inconsistency between the terms of
this Agreement and any of the Girilambone Agreements, this
Agreement prevails.
(b) To the extent of any inconsistency between the terms of
this Agreement and the Sale Agreement, the Sale Agreement
prevails.
9.8 Merger
The obligations contained in this Agreement will continue
until satisfied in full.
9.9 Execution by Counterparts
This Agreement may consist of one or more counterpart
copies and all counterparts will, when taken together,
constitute the one document.
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SCHEDULE 1
List of Agreements at Girilambone to which Nord and Straits are a party.
1. Agreement between Nord Australex Pty Ltd, Straits
Engineers Contracting Pte Ltd, Nord Pacific Limited and
Nord Gold Company Limited dated 13 December 1991 and
called the "Girilambone Joint Venture Heads of Agreement"
(Heads of Agreement).
2. Agreement between Nord Australex Nominees Pty Ltd,
Straits Resources Pty Limited, GCC Contractors Pty Ltd,
Nord Pacific Limited and Nord Gold Limited dated 20
December 1992 and called the "Girilambone Management
Agreement" (Management Agreement).
3. Agreement between Nord Australex Nominees Pty Ltd and
Staits Resources Pty Ltd dated 26 August 1992 and called
the "Girilambone Exploration Joint Venture Agreement"
(Exploration Joint Venture Agreement).
4. Agreement between Nord Australex Nominees Pty Ltd and
Straits Resources Pty Ltd dated 26 August 1992 and called
the "Girilambone Project Co-ordination Agreement" (Co-
ordination Agreement).
5. Agreement between Nord Australex Nominees Pty Ltd and
Straits Resources Pty Ltd dated 26 August 1992 and called
the "Girilambone Mining Joint Venture Agreement" (Mining
Joint Venture Agreement).
6. Agreement between Nord Australex Nominees Pty Ltd,
Straits Resources Pty Limited and GCC Contractors Pty Ltd
dated 20 December 1992 and called the "Girilambone Mining
Joint Venture Shareholders Agreement" (Shareholders
Agreement).
7. Agreement between Nord Australex Nominees Pty Ltd,
Straits Mining Pty Ltd, Nord Pacific Limited, Nord Gold
Company Limited and called the "Girilambone North Mining
Joint Venture Agreement" (North Mining Joint Venture
Agreement).
8. Agreement between Nord Australex Nominees Pty Limited,
Straits Mining Pty Limited, Nord Pacific Limited and Nord
Gold Company Limited and called the "Agreement Amending
Girilambone Project Co-ordination Agreement" (Amending
Agreement).
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SCHEDULE 2
Facilities
the tailings dams,
access roads,
heap xxxxx pads,
SX-EW plant,
ore crushing facilities,
conveyors;
water rights including water from the pipeline from the
Xxxxx River;
site utilities including power and water;
storage areas; and
ancillary facilities.
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EXECUTED as an agreement.
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LTD by the )
party's attorney pursuant to )
power of attorney registered )
Book 4276 No 698 who states )
that no notice of revocation )
has been received in the )
presence of: )
) J Syriatowicz
X X Xxxxxxxxx ) Attorney
Witness )
)
) X X Xxxxxxxxxxx
X X Xxxxxxxxx Name of Attorney (print)
Name of Witness (print)
EXECUTED by STRAITS MINING )
PTY LTD )
)
)
X X Xxx ) X X Rear
Company Secretary ) Director
)
)
X X Xxx ) X X Rear
Name of Company Secretary ) Name of Director
193
EXECUTED by GIRILAMBONE )
COPPER COMPANY PTY LTD )
)
)
X X Xxx ) X X Rear
Company Secretary ) Director
)
X X Xxx ) X X Rear
Name of Company Secretary ) Name of Director
)
SIGNED by NORD GOLD COMPANY )
LTD by the party's attorney )
pursuant to power of )
attorney registered Book )
No who states that no )
notice of revocation has )
been received in the )
presence of the party'sits )
authorised representative in )
the presence of: )
)
) J Syriatowicz
) Attorney
X X Xxxxxxxxx
Witness
X X Xxxxxxxxxxx
Name of Attorney
X X Xxxxxxxxx
Name of Witness
SIGNED by NORD PACIFIC LTD )
by the party's attorney )
pursuant to power of )
attorney registered Book )
4276 No 699 who states that )
no notice of revocation has )
been received in the )
presence of its authorised )
representative in the )
presence of: )
)
) J Syriatowicz
X X Xxxxxxxxx ) Attorney
Witness
X X Xxxxxxxxxxx
X X Xxxxxxxxx Name of Attorney
Name of Witness
