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EXHIBIT 2.2
SHARE SALE AGREEMENT
AMPOLEX (WESTERN AUSTRALIA) INC
AMPOLEX (PNG HOLDINGS) INC
Acn 000 113 217
and
APACHE CORPORATION
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THIS AGREEMENT is made 8th October 1997
BETWEEN
AMPOLEX (PNG HOLDINGS) INC a company incorporated in Delaware having its
registered office at 0000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of New
Castle, Delaware, United States of America (Seller)
AND
APACHE CORPORATION (a corporation incorporated under the laws of Delaware,
United States of America) of 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 (Buyer)
RECITALS:
A. The Company is engaged in the business of producing oil and gas in
Western Australia.
B. The Seller is the legal and beneficial owner of the Shares being the
whole of the issued share capital of the Company.
C. The Seller has agreed to sell the Shares to the Buyer, and the Buyer
has agreed to purchase the Shares from the Seller on the terms and
conditions set out in this Agreement.
The Parties AGREE:
1. DEFINITIONS
1.1 Unless otherwise required by the context or subject matter:
ADJUSTMENT AMOUNT is defined in clause 6.4;
AGREED RATE means the THIRTY (30) day Bank Xxxx Swap Reference Rate
(source Bloomberg) published in the Australian Financial Review in
respect of the first Business Day of each month or part month for
which interest is to be calculated;
AGREEMENT means this agreement as amended, supplemented or varied
from time to time;
ASSETS means the interest of the Company as listed in Schedule One
and in Schedule Five in and under:
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(a) the Titles and all other rights, titles and interests in the
Titles subject to the terms and conditions of their grant;
(b) the Joint Venture Contracts, including any joint venture
property held under those contracts;
(c) the Information; and
(d) all other miscellaneous assets, rights, property and interests
associated or employed in relation to the Assets, including
the right to produce Petroleum in accordance with that
interest;
BALANCE SHEET means the balance sheet of the Company as audited by
Ernst & Young annexed as Schedule 7 prepared on the basis set out in
the notes to the Balance Sheet;
BANK ACCOUNT means any bank account in the name of the Company;
BUSINESS DAY means a day (during the hours of 9.00am to 5.00pm Perth
time) on which trading banks are open for business in Perth, Western
Australia;
BUYER ACCOUNT means an account of amounts owed by the Buyer to the
Seller determined under Schedule 4;
BUYER'S SOLICITORS means Xxxxxx, Xxxxxxxx & Hedderwicks of 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx;
COMPANY means Ampolex (Western Australia) Inc (ARBN 009 473 241);
COMPLETION means completion of the sale and purchase of the Shares
under Clause 9;
COMPLETION DATE means the later of:
(a) 14 November 1997; or
(b) the day falling FIVE (5) Business Days after the Conditions
are satisfied; or
such other date as the Parties may agree in writing;
CONDITION means any conditions specified in clauses 3 and 4 inclusive
and CONDITIONS means all of them;
DOLLARS or $ means Australian dollars unless otherwise stated;
EFFECTIVE DATE means 00.01am, 1 July 1997 (Perth time);
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ENCUMBRANCE means a mortgage, charge, whether fixed or floating, xxxx
of sale, pledge, lien, charging order, stop order, writ of execution,
title retention or conditional sales agreement, hire or hire purchase
agreement, lease, licence to use or occupy, option, restriction as to
transfer, use or possession, easement, caveat and the claim stated in
that caveat, equity interest and any other security interest or other
third party right or interest;
GOVERNMENTAL AGENCY means any government or governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
INDEPENDENT ACCOUNTANT means the chartered accountant referred to in
Schedule Six;
INFORMATION means geological, geophysical or technical information
within the custody or control of the Company being material
information that relates to the presence, absence or extent of
hydrocarbon deposits in the area of the Assets and has been obtained
from the exploration and prospecting for or production of
hydrocarbons within Assets including, without limitation, the books,
records, seismic and interpretive data, notes, drawings, maps and
other information (in various media) related to the Assets;
INTERIM PERIOD means the period between the Effective Date and the
Completion Date;
JOINT VENTURE means all or any of, as the context requires, the
relationships established under the Joint Venture Contracts;
JOINT VENTURE CONTRACTS means the contracts listed as such in
Schedule Five;
OPERATOR means Apache North West Pty Ltd except in relation to
Exploration Licence WA-192-P, in respect of which Tap (Xxxxxxx) Pty
Ltd has been appointed the Operator;
OTHER AGREEMENTS means:
(a) an agreement entered into on the date of this Agreement
between Ampolex Limited and the Buyer or a Related Body
Corporate of the Buyer for the sale of the issued shares in
Ampolex (A.O.E.) Pty Limited;
(b) an agreement entered into on the date of this Agreement
between Ampolex Limited and the Buyer or a Related Body
Corporate of the Buyer for the sale of the issued shares in
Ampolex Varanus Pty Limited;
PARTY means the Seller or the Buyer according to the context and
Parties means both the Seller and the Buyer;
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PETROLEUM has the meaning given in the Petroleum (Submerged Lands)
Act (WA) 1982;
PETROLEUM LEGISLATION means the Petroleum Act (WA) 1967, the
Petroleum (Submerged Lands) Act (Cth) 1967, the Petroleum (Submerged
Lands) Act (WA) 1982, the Petroleum Pipelines Act (WA) 1969 any other
Act of Parliament with which each Act is incorporated, as well as all
regulations, administrative directions and determinations made under
any of those Acts;
PURCHASE PRICE means the cash consideration of ONE HUNDRED AND THIRTY
TWO MILLION NINE HUNDRED AND SEVEN THOUSAND SIX HUNDRED AND EIGHTEEN
DOLLARS AND FIFTY NINE CENTS ($132,907,618.59) (which amount includes
working capital as at the Effective Date) as adjusted in accordance
with Clause 6 and Schedule Four, plus interest at the Agreed Rate
calculated daily and compounded monthly during the Interim Period;
RELATED BODY CORPORATE has the meaning given to that expression in
the Corporations Law;
SALE means the sale and purchase of the Shares in accordance with the
terms of this Agreement;
SALES CONTRACTS means the contracts listed as such in Schedule 5;
SCHEDULE means a schedule to this Agreement;
SELLER ACCOUNT means an account of amounts owed by the Seller to the
Buyer determined under Schedule 4;
SELLER'S SOLICITORS means Xxxxxxxx Hollingdale & Page of 000 Xx
Xxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx;
SHARES means the 10,000 partly paid shares in the Company having a
par value of US$2,500.00 being all the issued shares in the capital
of the Company;
SPECIFIED ENCUMBRANCES means the encumbrances specified in Schedule
One;
TAX means all federal, state, local or foreign taxes and charges
including but not limited to income, gross receipts, windfall
profits, goods and services, value added, transfer, property, sales,
production, use, license, excise, franchise, withholding or similar
taxes, together with any interest, additions or penalties and any
interest in respect of such additions or penalties;
TITLES means the petroleum titles and licences specified in Schedule
One; and
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WARRANTIES mean the warranties and representations set out in:-
(a) Schedule Two in the case of the Seller; and
(b) Schedule Three in the case of the Buyer.
2. SALE SUBJECT TO CONDITIONS
The Sale is conditional on satisfaction of each and every Condition.
3. XXXX-XXXXX-XXXXXX CONDITION
This Agreement is subject in all respects to and conditional upon
compliance by the Parties with the Xxxx- Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (HSR Act), and rules and regulations
promulgated pursuant thereto, to the extent the HSR Act, rules and
regulations are applicable to the transactions contemplated by this
Agreement and the Other Agreements. The Parties shall make such
filings with and provide such information to the Federal Trade
Commission as are required in connection with the HSR Act as soon as
practicable after the date of this Agreement.
4. FIRB CONDITION
4.1 DEFINITION
In this subclause:
ACT means the Foreign Acquisitions and Takeovers Xxx 0000; and
TREASURER means the Treasurer of Australia.
4.2 SALE SUBJECT TO APPROVAL
The Sale is conditional on the Treasurer either:
(a) advising the Buyer that the Treasurer has no objection to the
acquisition of the Shares by the Buyer and the transactions
contemplated by the Other Agreements either:
(i) unconditionally; or
(ii) subject to conditions with which the Buyer (or its
Related Body Corporate, as the case may be) is
willing to comply; or
(b) ceasing to be empowered under the Act to make an order
prohibiting the acquisition of the Shares by the Buyer and the
transactions contemplated by the Other Agreements;
whichever occurs first.
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4.3 NOTICE TO BE GIVEN TO TREASURER
The Buyer must:
(a) give notice to the Treasurer under section 25 of the Act in
the prescribed form; and
(b) comply with all directions on that form;
within TEN (10) Business Days from the date of this Agreement.
4.4 PARTIES' OBLIGATIONS
(a) The Buyer must use all reasonable endeavours to obtain the
approval of the Treasurer to the Sale under the Act.
(b) The Parties must (and the Seller must ensure that the Company
will) do all things and provide all information and documents
required by the Treasurer or the Foreign Investment Review
Board in connection with the application for approval of the
Sale under the Act as soon as reasonably practicable after
being notified of the required things, information or
documents.
4.5 BENEFIT OF CONDITION
This Condition:
(a) is for the benefit of the Seller and the Buyer; and
(b) may not be waived.
4.6 CONDITION NOT FULFILLED
If approval of the Treasurer is denied, then:
(a) the Sale will terminate automatically without notice; and
(b) subject to the rights of either Party in respect of any
antecedent breach of the provisions of this Agreement:
(i) neither the Seller nor the Buyer will have any claim
against the other; and
(ii) this Agreement, other than this subclause, will have
no further effect.
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5. SALE AND PURCHASE
At Completion, the Seller agrees to sell and transfer to the Buyer,
and the Buyer agrees to purchase from the Seller the Shares free from
Encumbrances for the Purchase Price on the terms and conditions of
this Agreement.
6. CONSIDERATION
6.1 PURCHASE PRICE
The Buyer shall pay the Seller the Purchase Price subject to any
adjustments required by this Agreement.
6.2 BUYER ACCOUNT
The Buyer must pay to the Seller in addition to the Purchase Price
the amount charged to the Buyer Account plus interest at the Agreed
Rate calculated daily and compounded monthly.
6.3 SELLER ACCOUNT
The Seller must pay by way of a deduction to the Purchase Price the
amount charged to the Seller Account plus interest at the Agreed Rate
calculated daily and compounded monthly.
6.4 PAYMENT
Other than in respect of the amounts agreed or determined under
Schedule Four, the payments under this Clause shall be paid at
Completion and the Buyer Account and the Seller Account may be offset
so that only one payment is made as between the Buyer and the Seller
(Adjustment Amount).
6.5 POST COMPLETION/FINAL ADJUSTMENT
Any matters not finally determined by and paid on the Completion Date
will be resolved and payment made pursuant to the procedure described
in Schedule Four.
6.6 FURTHER ADJUSTMENT
If at any time during the period of THREE (3) years following the
Completion Date the:
(a) Buyer becomes:
(i) entitled to or receives funds, revenues, refunds,
credits or payments; or
(ii) liable to pay (and subject to this clause, does or
agrees to pay) costs, expenses and expenditure;
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which are attributable to the Assets and relate to the period
before the Effective Date; or
(b) Seller becomes:
(i) entitled to or receives funds, revenues, refunds,
credits or payments; or
(ii) liable to pay (and subject to this clause, does or
agrees to pay) costs, expenses and expenditure;
which are attributable to the Assets and relate to the period
after the Effective Date;
(in all cases, which amounts or liabilities were not otherwise
specifically adjusted for in this Agreement), in an amount or amounts
aggregating or exceeding not less than TEN THOUSAND DOLLARS
($10,000.00), then
(c) the Buyer shall account to the Seller within THIRTY (30) days
of such adjustments in respect of paragraphs 6.6(a)(i) and
6.6(b)(ii); and
(d) the Seller shall account to the Buyer within THIRTY (30) days
of such adjustments in respect of paragraphs 6.6(a)(ii) and
6.6(b)(i),
for such funds, revenues, liabilities, costs, expenses, refunds,
credits or payments and, where an amount relates partially to periods
before and after the Effective Date, then the amount shall be
equitably apportioned between the Seller and the Buyer. A Party shall
be entitled to set off amounts payable by the other Party in making
account to that other Party. A reference to the Buyer and the Seller
in paragraphs (a) and (b) of this Clause includes a reference to the
Company, where the Company receives an amount or incurs a liability
to be adjusted under this clause.
7. ACCESS TO COMPANY RECORDS
From the date of this Agreement, the Seller shall and shall cause the
Company to allow reasonable access by the Buyer to all of the
Company's books, accounts and documents in connection with the
Company and the Shares, and information concerning the Company
relevant to the Sale.
8. PERIOD BEFORE COMPLETION
8.1 CARRYING ON OF BUSINESS
The Seller shall cause that between the date of execution of this
Agreement and the Completion Date:
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(a) the Company informs and consults with the Buyer on all
material matters relating to the conduct of the business of
the Company and will procure that such business is conducted
in a diligent and ordinary and usual manner. In particular,
but without prejudice to the generality of the foregoing, the
Seller will procure that the Company consults with the Buyer
before the Company:
(i) approves any new or varied programme and budget of
operations;
(ii) approves any drilling operations which are not at
the date of this Agreement approved or identified in
an approved programme and budget;
(iii) approves any other matter likely to affect in any
material respect the nature or extent of expenditure
obligations of the Company;
(iv) in any other respect, exercises any voting right
under any Joint Venture Contract;
(b) the Company does not acquire or dispose of any Asset, other
than acquisitions or disposals of Petroleum, stocks or
receivables in the ordinary course of business without the
prior written consent of the Buyer;
(c) the Company does not create any Encumbrances over any of the
Assets without the prior written consent of the Buyer;
(d) the Company pays when due all cash calls under the Joint
Venture Contracts;
(e) the Company does not vary the terms of sale of its share of
Petroleum derived from the Assets pursuant to the Sale
Contracts;
(f) without the prior written approval of the Buyer (which
approval shall not be unreasonably withheld), the Company will
not:
(i) give notice of or otherwise institute in any sole
risk or non-consent operation;
(ii) farm-out the Assets;
(iii) surrender or relinquish of any part of the Assets;
or
(iv) execute any instrument amending, waiving or
cancelling any provision of the Joint Venture
Contracts;
(g) the Company provides to the Buyer copies of all material
notices issued by the Operator in respect of the Assets;
(h) the Company does not issue any shares, options or securities
which are convertible into shares in the Company;
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(i) the Company does not engage any employees;
(j) the Company does not alter its memorandum or Articles of
Association without the prior written consent of the Buyer;
(k) the Company does not incur any liabilities, enter into any
contract or commitment or engage in any activity other than in
the ordinary course of business; and
(l) the business of the Company is conducted so as to comply in
all material respects with all applicable laws and regulations
PROVIDED THAT the Seller will not be liable to the Buyer for any
breach of an obligation imposed in this Clause 8.1 which arises from
any course of action, to the extent that the Seller has consulted
with the Deputy Managing Director of Apache Energy Limited prior to
undertaking such course of action and she has not objected in writing
as soon as practicable after such consultation.
8.2 ACCESS TO INFORMATION
(a) In addition to its obligations under Clause 8.1, the Seller
will procure that the Company will, subject to any
confidentiality restrictions contained in the Joint Venture
Contracts and this Agreement and subject to reasonable notice,
give the Buyer reasonable access to the Information and any
other matters relating to the Assets during normal working
hours and provide copies thereof, at the Buyer's cost.
(b) In exercising its rights under Clause 8.2(a), the Buyer will
not unreasonably interfere with the business or operations of
the Seller or the Company.
(c) If this Agreement is terminated for whatever reason, the Buyer
must promptly return all Information to the Seller.
8.3 INSURANCE
During the Interim Period, the Seller will ensure that the Company
maintains the insurances taken out in respect of the Assets as at the
Effective Date. These insurances will be at the cost of the Buyer and
adjusted for under Schedule 4.
9. COMPLETION
9.1 COMPLETION LOCATION
Completion will take place at the Seller's Solicitors' office.
9.2 COMPLETION DATE
The Parties must effect Completion on the Completion Date at a time
agreed by
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the Buyer and the Seller.
9.3 SELLER'S OBLIGATIONS
At Completion, the Seller must deliver to the Buyer:
(a) a duly executed but unstamped transfer of the Shares, together
with the relevant share certificates;
(b) (i) the common seal and any duplicate or official seals;
(ii) any Memorandum and Articles of Association of the
Company in the possession of the Seller;
(iii) all minutes of meetings of directors and
shareholders of the Company;
(iv) all registers of the Company;
(v) copies of all income tax returns lodged by the
Company before the Completion Date and supporting
tax return work papers in possession of the Company;
(vi) all books, ledgers, records and other documents and
data of the Company in either written or electronic
form; and
(vii) a signed notice to each Purchaser under the Sale
Contracts nominating a new Bank Account into which
proceeds of sale of Petroleum can be made;
(c) a legal opinion by the Seller's Solicitors (or by an attorney
qualified to give such an opinion in the jurisdiction in which
the Seller is incorporated) in a form reasonably satisfactory
to the Buyer and the Buyer's Solicitors stating that this
Agreement is, and will be, enforceable against the Seller in
all respects in accordance with its terms;
(d) a certificate signed on behalf of the Seller by two authorised
officers (AUTHORISED OFFICERS) stating that all the
representations and warranties given by the Seller in this
Agreement are true and correct as at Completion and that the
Seller is not in breach of any of its obligations under this
Agreement;
(e) copies of board resolutions certified as true and correct by
an Authorised Officer in which the directors of the Seller
authorise the execution of this Agreement and the performance
of the Seller of the transactions contemplated by this
Agreement;
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(f) certificates of incumbency in respect of each Authorised
Officer confirming the authority of each of them to sign the
certificate referred to in Clause 9.3(e) on behalf of the
Seller; and
(g) the Adjustment Amount, if the Seller Account plus interest at
the Agreed Rate calculated daily and compounded monthly is
greater than the Buyer Account plus interest at the Agreed
Rate calculated daily and compounded monthly.
9.4 OTHER OBLIGATIONS OF SELLER ON COMPLETION
As part of Completion, on payment of the Purchase Price and subject
to Clause 9.5(a), payment of the Adjustment Amount to the Seller, the
Seller shall cause the directors of the Company to hold a meeting
with effect at Completion at which the directors, in accordance with
the Company's articles of association:
(a) appoint the Buyer's nominees as additional directors of the
Company;
(b) appoint the Buyer's nominee as an additional secretary of the
Company;
(c) approve for registration, subject to payment of stamp duty,
the transfer of the Shares to the Buyer;
(d) (i) authorise the signature of all authorities necessary
to revoke all existing authorities to bankers in
relation to the operation of the Bank Accounts; and
(ii) appoint, in the manner the Buyer directs, the
Buyer's nominees as the persons authorised to
operate the Bank Accounts.
(e) table and accept resignations of:
(i) the public officer;
(ii) the secretary, other than the secretary nominated by
the Buyer; and
(iii) the directors, other than the directors nominated by
the Buyer;
to take effect on and from the close of business of the
meeting; and
(f) sign all forms required to be signed by the outgoing directors
and secretary under the Corporations Law.
9.5 THE BUYER'S OBLIGATIONS AT COMPLETION
At Completion, the Buyer must:
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(a) by means of confirmed electronic funds transfer to a bank
account in the name of the Seller as nominated by the Seller
to the Buyer for value at Completion in Australian dollars pay
to the Seller the Purchase Price and, if the Buyer Account
plus interest at the Agreed Rate calculated daily and
compounded monthly is greater than the Seller Account plus
interest at the Agreed Rate calculated daily and compounded
monthly, the Adjustment Amount; and
(b) deliver to the Seller:
(i) a legal opinion by the Buyer's Solicitors (or by an
attorney qualified to give such an opinion in the
jurisdiction in which the Buyer is incorporated) in
a form reasonably satisfactory to the Seller and the
Seller's Solicitors, stating that this Agreement is,
and will be, enforceable against the Buyer in all
respects in accordance with its terms;
(ii) a certificate signed on behalf of the Buyer by two
authorised officers (AUTHORISED OFFICERS) stating
that all the representations and warranties given by
the Buyer in this Agreement are true and correct as
at Completion and that the Buyer is not in breach of
any of its obligations under this Agreement;
(iii) copies of board resolutions certified as true and
correct by an Authorised Officer in which the
directors of the Buyer authorise the execution of
this Agreement and the performance of the Buyer of
the transactions contemplated by this Agreement; and
(iv) certificates of incumbency in respect of each
Authorised Officer confirming the authority of each
of them to sign the certificate referred to in
paragraph (ii) on behalf of the Buyer.
9.6 COMPLIANCE
Neither the Buyer nor the Seller will be obliged to proceed to
Completion unless:
(a) there is no material breach of Clause 8 which remains
unremedied; and
(b) the other of them complies with all of its obligations under
this Clause 9.
9.7 OTHER DOCUMENTS
As soon as possible after Completion, the Seller will cause to be
delivered at the Buyer's cost to the Buyer:
(a) all technical and other data, books, records, accounts,
contracts, maps, notes, drawings and other information
(regardless of form) constituting the
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Information in the possession and the control of the
Seller requested by the Buyer; and
(b) all original Joint Venture Contracts and Sales Contracts
(to the extent that they are in the possession of or
under the control of the Seller) or otherwise copies
thereof and any other document that evidences the
Company's title to Assets.
10. POST COMPLETION
10.1 EXERCISE OF RIGHTS
From Completion and until the Shares are registered in the name of
the Buyer, the Seller agrees, in relation to the Shares, at the
cost of the Buyer, to act in accordance with the directions of the
persons appointed under clause 9.4(a).
10.2 CHANGE OF NAME
The Buyer shall cause the Company to change its name to a name not
associated with the Seller or any Related Body Corporate of the
Seller and register the proposed change of name with the
appropriate regulatory authority for approval within ten (10)
Business Days of Completion.
10.3 INDEMNITY
The Buyer indemnifies and holds harmless the Seller from any and
all liability whatsoever arising out of the implementation of any
direction given under Clause 10.1.
10.4 POST COMPLETION AUDIT OF OPERATOR'S ACCOUNTS
(a) The Buyer acknowledges that for a period of THREE (3) years
after the Completion Date the Seller retains its rights to
participate in the audits of the Operator's books to be
conducted under the terms of the Joint Venture Contracts
(subject to any confidentiality restrictions contained in
the Joint Venture Contracts and the Buyer agrees to use its
reasonable endeavours to enable the Seller to so
participate) in respect of the period prior to the Effective
Date (and may nominate a representative to attend as a
representative of the Buyer at its own cost) and will be
entitled to and responsible for any adjustment made to any
account maintained under the Joint Venture Contracts arising
as a result of any such audit in respect of the period prior
to the Effective Date.
(b) If as a consequence of such audit, adjustments are made to
any of the entries in the Working Capital Statement referred
to in Schedule Four, a further adjustment will be paid to
the Party entitled within THIRTY (30) Business Days of the
results of that audit, provided that no claim can be made
under this clause unless the net balance due is greater than
TEN THOUSAND DOLLARS ($10,000).
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10.5 PRESERVATION OF RECORDS
(a) The Buyer must, at its own expense, preserve and keep the
records held by it or the Company relating to the business of
the Company for a period of SIX (6) years from the Completion
Date and shall make such records and personnel available to
Seller as may be reasonably required by Seller in connection
with, among other things, any insurance claim, legal
proceedings, the tax affairs of the Seller or any governmental
investigation (including investigation and audits by any
taxing authority) relating to the business of the Company
prior to the Completion Date.
(b) The Buyer consents to the Seller retaining copies of all
corporate and Tax records relating to the Company or the
Assets provided that the Seller shall not use or disclose them
for any purpose other than as contemplated under Clause
10.5(a).
11. TAX REQUIREMENTS
11.1 INFORMATION
The Seller agrees to make available to the Buyer all information in
its custody or control relating to the Company or relating to the
Assets in respect of any period before the Completion Date which the
Buyer needs to know to enable it to cause the Company to complete any
Tax return or to make any claim for the undeducted allowable
expenditure and the undeducted allowable capital expenditure.
11.2 REASONABLE ASSISTANCE
The Seller agrees to give to the Buyer all reasonable assistance in
connection with any tax audit of the Company after the Completion
Date in respect of any period before the Completion Date, provided
that the Seller's obligation under this clause terminates THREE (3)
years after the Completion Date.
11.3 BUYER OBLIGATIONS
The Buyer will not:
(a) in relation to any Tax, amend any declaration, election or
selection, the giving of a notice or the exercise of an option
by the Company in respect of the period ending before the
Completion Date without the Seller's prior written consent,
which consent shall not be unreasonably withheld;
(b) fail to submit any income tax return in relation to the
Company for any period which includes the period commencing on
the day following the Completion Date and ending at the end of
the tax year in which the Completion Date occurs; or
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(c) amend any income tax return of the Company for any tax year
ending at or prior to the end of the tax year in which the
Completion Date occurs without the Seller's prior written
consent, which consent shall not be unreasonably withheld.
In this clause, "tax year" means a year ending on 30 June or, where
the company has a substituted accounting period (within Section 18 of
the Income Tax Assessment Xxx 0000, as amended) ending on some date
other than 30 June, that date.
11.4 SELLER OBLIGATIONS
The Seller will not submit any income tax return in relation to the
Company for any period ending before the Completion Date without the
Buyer's prior written consent, which consent must not be unreasonably
withheld.
11A. US TAX PROVISIONS
11A.1 DEFINITIONS:
(a) UNITED STATES INCOME TAX means any and all Tax arising under
or relation to provisions of Subtitles A and F of Title 26 of
the Code;
(b) OTHER TAXES means any Tax other than United States Income Tax;
and
(c) CODE means the United States Code (the Internal Revenue Code
of 1986, as amended).
11A.2 TAXES
(a) The Company is a member of an affiliated group of corporations
filing consolidated United States federal income tax returns
of which the Seller is the common parent (the U.S. GROUP). The
taxable income or loss and any tax credits realised or
generated by the Company from July 1, 1997 through to
Completion (the SHORT PERIOD) shall be included in the
consolidated United States federal income tax return of the
U.S. Group.
(b) All United States Income Tax returns required to be filed for
the Company for all periods prior to and including Completion
will be filed in a timely manner (taking into account all
extensions of due dates), and each return will be complete and
accurate in all material respects. All United States Income
Tax imposed upon or payable by the Company for all periods
prior to and including Completion will be duly paid by the
Seller.
(c) Buyer shall bear and pay any sales, use, transfer or other
taxes of a similar nature assessed on this Agreement and the
transfer of the Shares by Seller to Buyer.
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11A.3 SECTION 338
Neither the Buyer nor the Seller shall make, nor shall either of them
permit any Related Body Corporate to make, an election under Sec.
338(a), (g) or (h)(10) of the Code with respect to the sale of the
Shares of the Company pursuant to this Agreement.
11A.4 SECTION 341(f) CONSENT
The Company has not filed a consent pursuant to the collapsible
corporation provisions of Sec. 341(f) of the Code (or any
corresponding provision of state, local, or foreign income tax law)
or agreed to have Sec. 341(f)(2) of the Code (or any corresponding
provision of state, local, or foreign income tax) apply to any
disposition of any asset owned by it.
11A.5 COOPERATION
(a) After the Completion and for as long thereafter as is
appropriate, the Buyer shall cause the Company or any such
entity to make available to Seller, at the request of
Seller and during normal business hours and in a manner
which will not unreasonably interfere with its business,
the personnel of the Company involved with the preparation
and review of the Tax returns and schedules thereto for all
taxable periods prior to Completion. Such personnel shall
advise or assist with Seller as to the preparation and
manner of the inclusion of the items in such returns and
schedules and shall provide all other reasonable assistance
as Seller shall request relating thereto including, without
limitation, furnishing to, or permitting the copying by
Seller of any records, returns, schedules, documents,
workpapers, or other relevant materials which might
reasonably be expected to be of use in connection with any
return, examination or proceeding whether ongoing or
anticipated.
(b) The Buyer and Seller will provide each other with such
assistance as may reasonably be requested by either of them
in connection with the preparation of any return of Tax,
any audit (financial or tax) or other examination by any
taxing authority, or any judicial or administrative
proceedings relating to liability for Taxes, and each will
retain and, upon the request of the other, provide the
other with any records or information which may be relevant
to such return, audit, examination or proceedings. Such
assistance shall include making employees available on a
mutually convenient basis to prove additional information
and explanation of any material provided hereunder and
shall include, without limitation, furnishing to or
permitting the copying by the requesting party of any
records, returns, schedules, documents, workpapers or other
relevant materials which might reasonably be expected to be
of use in connection with such return, audit, examination
or proceeding. The Party requesting assistance hereunder
shall reimburse the Party whose assistance is requested for
reasonable out of pocket expenses incurred by it in
providing such assistance.
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12. WARRANTIES
12.1 SELLER
The Seller makes the Warranties in favour of the Buyer as at the
Effective Date and as at the Completion Date. The Warranties are
made subject to the qualifications made in this Agreement and in the
Schedules and subject to any disclosures made by the Seller in
writing on or prior to the date of this Agreement.
12.2 BUYER
The Buyer makes the Warranties in favour of the Seller as at the
Effective Date and as at the Completion Date. The Warranties are
made subject to the qualifications made in this Agreement and in the
Schedules.
12.3 NO WARRANTY UNLESS EXPRESSLY INCLUDED
(a) Save as and only to the extent set forth in Clause 12.1, the
Seller makes no representations or warranties in respect of
any matter or thing and disclaims all liability and
responsibility for any representation, warranty, statement,
opinion or information made or communicated (orally or in
writing) to the Buyer (including, without limiting the
generality of the foregoing, any representation, warranty,
statement, opinion, information or advice made and
communicated to the Buyer by any officer, stockholder,
director, employee, agent, consultant, counsel or adviser of
the Seller or a tender document) and the Buyer acknowledges
and affirms that it has not relied upon any such
representation, warranty, statement, opinion or information in
entering into or carrying out the transactions contemplated by
this Agreement.
(b) Subject to the Warranties, the Buyer acknowledges and affirms
that it has made its own independent investigation, analysis
and evaluation of the geological, geophysical and engineering
interpretations, economic valuations and assessment of tax
allowances and prospects for development of the Assets and
acknowledges and affirms that in making the decision to
purchase the Assets, it has relied to that extent upon its
independent investigation and those of its representatives,
including professional, legal, tax, economic, financial,
business and other advisers.
(c) The Buyer acknowledges that subject in all respects to the
Warranties:
(i) it has made its own enquiries and has undertaken
assessments and due diligence with respect to the
Company, the Assets and the business conducted by
the Company and has satisfied itself as to the
Company's interest in the Titles as set out in
Schedule 1 and the Joint Venture Contracts set out
in Schedule 5, prior to entering into this
Agreement;
(ii) it and its advisers have completed a review of the
financial records of the Company for the purpose of
verifying the accounts of the Company;
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(iii) it has not relied on any representation made by or
on behalf of the Seller in making its decision to
enter into this Agreement other than the Warranties;
(iv) the Seller gives no representation or warranty in
respect of the existence or absence of common law or
statutory native title rights in respect of the
Assets or whether any claim for native title rights
exists or will arise in respect of the Assets and
the Buyer acknowledges that it has conducted its own
enquiries with respect to native title matters;
(v) the Seller is induced to enter into this Agreement
in consequence of these acknowledgments; and
(vi) the Seller gives no representation or warranty as to
any Tax balances of the Company, and to the extent
Tax balances can be calculated from or derived from
the Balance Sheet, any warranty and representation
in respect of such balances, their calculation or
derivation is denied and the Buyer shall have no
claim whatsoever against the Seller in respect
thereof.
(d) The Buyer agrees that it has actual or constructive knowledge
of some of the subject matter of the Warranties and any breach
of Warranty will not be enforceable against the Seller to the
extent it is shown that the inaccuracy, error or omission
underlying the alleged breach was known or was constructively
known by the Buyer at or prior to the time the Buyer entered
into this Agreement.
(e) Without prejudice to the generality of the foregoing, the
Seller makes no representations or warranties as to:
(i) the amounts of reserves attributable to and the
field life of the Assets;
(ii) any geological, geophysical, engineering, economic
or other interpretations, forecasts or evaluations;
or
(iii) whether any Tax allowances will in fact be
deductible in the hands of the Company.
12.4 REASONABLE ENQUIRY
Where any Warranty is qualified by any reference to the knowledge or
awareness or belief of any Party, there shall be implied in that
warranty or representation a warranty that such Party has made
reasonable enquiries concerning the subject
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matter of that warranty or representation, save that it shall not be
deemed to have made enquiries of any third party.
12.5 WARRANTIES - DURATION
The Warranties shall survive the Completion Date for a period of ONE
(1) year.
12.6 CONSEQUENTIAL LOSS
Notwithstanding any other provision of the Agreement, a Party shall
not under any circumstances be liable to the other under, arising out
of or in any way connected with this Agreement for any consequential
loss or damage whether arising in contract or tort (including
negligence or breach of any statutory duty). For the purposes of this
clause, consequential loss includes but is not limited to, any
obligation or inability to produce Petroleum, lost production or loss
of profits howsoever arising.
12.7 LIMITATION ON CLAIMS
The Buyer's right to claim for and seek indemnity in respect of any
claim (whether relating to a breach of the Warranties or otherwise
relating to the subject matter of this Agreement) is limited as
follows:
(a) the Buyer must give written notice to the Seller of the
specific claim in question with reasonable details of the
relevant claim, including, if possible, the Buyer's estimate
of the amount of the claim, on or before the first anniversary
of the Completion Date;
(b) the Buyer can only bring a claim for breach of a Warranty or
otherwise relating to the subject matter of this Agreement if
the amount reasonably claimed exceeds (or where there is more
than one claim they exceed the aggregate) ONE HUNDRED THOUSAND
DOLLARS ($100,000.00);
(c) the maximum aggregate amount which the Buyer may recover from
the Seller for breach of the Warranties is the Purchase Price.
12.8 CONDUCT OF CLAIMS
If the Buyer receives a claim from a third party which may give rise
to a claim against the Seller under this Agreement, the Buyer must
within TEN (10) Business Days of receipt, notify the Seller of the
claim giving full details so far as practicable and, if the Seller
indemnifies the Buyer and the Company to their reasonable
satisfaction against all and any costs, charges and expenses which
may be incurred or for which they may become liable, the Buyer must
take such action as the Seller reasonably instructs to avoid,
dispute, resist, appeal, compromise or defend any such claim and any
adjudication in respect of it.
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12.9 BUYER'S REMEDIES
(a) Prior to the Completion Date, the Buyer may only rescind this
Agreement in accordance with Clause 12.9(b).
(b) If not less than THREE (3) Business Days before the Completion
Date, the Buyer becomes aware that the Seller is in breach of
any of the Warranties of the Seller or any other material
provision of this Agreement that has a material adverse effect
on the value of the Shares as at the Effective Date, the Buyer
shall promptly provide the Seller with written notice
containing reasonable details of the said breach in which case
the Completion Date shall be automatically extended for a
period of TEN (10) Business Days. The Parties will use all
reasonable efforts to resolve the matter, failing which the
Buyer may not less than THREE (3) Business Days prior to the
extended Completion Date, by notice in writing to the Seller:
(i) elect to proceed to Completion on the Completion
Date, whereupon no Party shall have any further
liabilities or obligations to the other whatsoever
in respect of the breach notified; or
(ii) at its option (without prejudice to any other right
or other remedy it may have and subject always to
Clause 12.7) rescind this Agreement.
12.10 NON-MERGER OF WARRANTIES
No Warranties merge on Completion.
12.11 RECLAMATION OBLIGATIONS
All costs, expenses, risks, liabilities and obligations respecting
the abandonment of any xxxxx which are part of the Assets, closure,
decommissioning and dismantling the facilities of the Company and any
reclamation and restoration of all sites shall be borne and paid for
solely by the Buyer, its successors or assigns, and the Buyer, its
successors or assigns shall indemnify, defend and save harmless the
Seller from and against any claims or demands (including breach of
statutory duty) by any person for or resulting in expense, liability,
loss, costs, claims or damages direct or indirect (including the
effects of, and the costs of complying with any order direction, or
claim of any government or agency having jurisdiction) pertaining to
the foregoing operations conducted or failed to be conducted by the
Buyer, its successors or assigns after Completion.
12.12 BUYER'S INDEMNITY-ENVIRONMENTAL DAMAGE
(a) The Buyer, its successors or assigns, shall, after
Completion, be liable to the Seller for all loss, costs,
damages or expenses which the Seller may suffer and, in
addition, shall indemnify, defend and save harmless the
Seller from and against any claims or demands (including
breach of statutory duty) or damages, direct or indirect,
before, on and after Completion (including the
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effects of, and the costs of complying with, any
order, direction, or claim of any government or
agency having jurisdiction) arising out of or
resulting from Environmental Damage caused or
alleged to have been caused in respect of the
Assets.
(b) For the purpose of this clause:
ENVIRONMENTAL DAMAGE means any one or more of:
(i) ground water, surface water or aquifer
contamination;
(ii) soil contamination;
(iii) corrosion or deterioration of structures,
equipment, fences and other property;
(iv) toxic or hazardous substance releases or
emissions;
(v) death or injury to human beings caused in
whole or in part by any of items (i) through
(iv) above;
(vi) death or injury to plants and animals caused
in whole or in part by any of items (i) through
(iv) above; and
(vii) natural resource damages.
13. TERMINATION AND DAMAGES
13.1 RIGHT TO TERMINATE
If not less than THREE (3) Business Days before the Completion Date,
the Buyer is in breach of any of the Warranties of the Buyer or any
other material provision of this Agreement such that the interest of
the Seller under this Agreement is materially adversely affected,
then the Seller shall promptly provide the Buyer with written notice
containing reasonable details of the said breach in which case the
Completion Date shall be automatically extended for a period of TEN
(10) Business Days. The Parties will use all reasonable endeavours to
resolve the matter, failing which the Seller may not less than THREE
(3) Business Days prior to the extended Completion Date, by notice in
writing to the Buyer elect to:
(a) complete this Agreement on the extended Completion Date,
whereupon no Party shall have any further liabilities or
obligations to the other whatsoever in respect of the breach
notified; or
(b) terminate its obligations under this Agreement, without
prejudice to any right or other remedy it may have against the
Buyer.
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13.2 REMEDY
The Seller may not give a notice under Clause 13.1(a) or (b) to the
Buyer where the breach is capable of remedy and has been remedied by
not less than THREE (3) Business Days before the extended Completion
Date.
13.3 OTHER TERMINATION RIGHTS
Either the Buyer or the Seller may terminate this Agreement by
written notice to the other of them where:
(a) the other of them convenes a meeting of its creditors or
proposes or enters into a scheme of arrangement or composition
with its creditors;
(b) there is a liquidation of the other of them;
(c) a receiver or receiver and manager is appointed to the other
of them;
(d) a person holding a security interest over the assets of the
other of them takes or attempts to take possession of those
assets;
(e) an administrator is appointed to the other of them under Part
5.3A of the Corporations Law; or
(f) the other Party repudiates its obligations under this
Agreement.
14. COSTS, EXPENSES AND DELAYED PAYMENT
14.1 STAMP DUTY
(a) The Buyer must pay any stamp duty in respect of the execution,
delivery and performance of this Agreement and any agreement
or document entered into or signed in contemplation of this
Agreement.
(b) The Buyer must pay any fine, penalty or other cost in respect
of a failure to pay any stamp duty for which it is responsible
under Clause 14.1(a), except to the extent that the fine,
penalty or other cost is caused by an act or default on the
part of the Seller.
(c) The Buyer must within FIFTEEN (15) Business Days of the date
of this Agreement submit this Agreement for an assessment of
stamp duty and use its reasonable endeavours to secure and pay
an assessment in respect of this Agreement as soon as
practicable and will keep the Seller appraised of progress.
The Seller agrees to assist the Buyer when requested and, in
particular, to respond to requisitions (if any) for further
information.
14.2 COSTS AND EXPENSES
Subject to Clause 14.1, each Party must pay its own costs and
expenses in respect
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of the negotiation, preparation, execution, delivery and registration
of this Agreement or other Agreement or document entered into or
signed in connection with the subject matter of this Agreement.
14.3 LATE INTEREST
Without prejudice to any other rights under this Agreement, if any
amount payable under this Agreement is not paid when due, the
defaulting Party shall pay interest on a daily basis on such amount
from the due date of payment (after as well as before judgment) at a
rate equal to SIX PER CENT (6%) over the Agreed Rate.
15. CONFIDENTIALITY AND ANNOUNCEMENTS
15.1 AGREED ANNOUNCEMENTS
No Party shall, without the written consent of the other Party (which
consent shall not be unreasonably withheld), issue or make any public
announcement relating to, or disclose anything regarding, this
Agreement.
15.2 LEGAL REQUIREMENTS
(a) If a Party is required to disclose anything in respect of this
Agreement in order to comply with:
(i) applicable law; or
(ii) the requirements of any recognised stock exchange on
which a Parties' or its Related Body Corporates'
shares are listed;
then the Parties shall agree on the form and substance of such
disclosure and a copy of the same shall be furnished to the
other Parties prior to publication or release.
(b) A Party will be deemed to have agreed to the terms of any
disclosure if it has not objected to the form or substance of
such release within ONE (1) Business Day of it being received
by the Party. Each Party agrees to use its best endeavours to
approve releases as soon as possible so that Parties are able
to comply with statutory or stock exchange requirements.
16. ASSIGNMENT
Neither Party may assign the rights under, or the benefit or the
burden of, this Agreement.
17. NOTICE
A notice, demand, consent or authority given or made to a person:
(a) must be in writing;
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(b) may be given or made by:
(i) delivering it to that person personally;
(ii) addressing it to that person and either leaving it
at, or posting it to, the address of that person
appearing in this Agreement or any other address
nominated by that person by notice to the person
giving the notice; or
(iii) sending a facsimile copy of the notice to the
facsimile copier number nominated by that person by
notice to the person giving the notice; and
(c) will be deemed to be given or made:
(i) if by leaving it at the address of that person, when
left at that address;
(ii) if by post, on the second Business Day after the
date of posting (if posted to an address in the same
country) or on the seventh Business Day after the
date of posting (if posted to an address in another
country);
(iii) if by facsimile, on receipt by the sender of a
transmission control report from the despatching
machine showing the relevant number of pages and the
correct destination facsimile machine number and
indicating that the transmission had been made
without error,
but if the result is that a notice would be taken to be given
or made on a day which is not a Business Day in the place to
which the notice is sent or is later than 4.00pm (local time)
it will be taken to have been duly given or made at the
commencement of business on the next Business Day in that
place.
18. PROPER LAW
This Agreement is governed by, and to be interpreted in accordance
with, the laws of Western Australia and where applicable the laws of
the Commonwealth of Australia.
19. JURISDICTION
The Parties agree to submit to the jurisdiction of the courts of
Western Australia and if applicable the Commonwealth of Australia.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which is
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an original instrument and all of which constitute one and the same
instrument.
21. ENTIRE AGREEMENT
21.1 AGREEMENT CONSTITUTES ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter of this Agreement and contains all
of the representations, warranties, covenants and agreements of the
Parties and supersedes all prior agreements and understandings in
relation to the subject matter of the Agreement as at the date of
this Agreement, other than the confidentiality agreement entered into
by the Parties prior to execution of this Agreement which remains in
force until Completion.
21.2 NO RELIANCE ON ORAL REPRESENTATIONS
Each Party acknowledges that it has not relied on any oral statement,
representation, undertaking, covenant or agreement made before the
date of this Agreement relating to the subject matter of this
Agreement and not contained in this Agreement.
22. MORATORIUM NOT TO APPLY
To the fullest extent permitted by law, the provisions of a statute
which would, but for this clause:
(a) extend or postpone the date of payment of money; or
(b) abrogate, nullify, postpone or otherwise affect any condition;
under this Agreement do not apply to limit or affect the terms of
this Agreement.
23. SEVERANCE
(a) If any part of this Agreement is, or becomes, void or
unenforceable, that part is, or will be, severed from this
Agreement so that all parts that are not, or do not become,
void or unenforceable remain in full force and effect and are
unaffected by that severance.
(b) If any provision of this Agreement, or the application thereof
to any person or any circumstance, is invalid or
unenforceable, a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid
or unenforceable provision and the remainder of this Agreement
and the application of such provision to other persons or
circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other
jurisdiction.
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24. WAIVERS
24.1 FAILURE OR DELAY IS NOT WAIVER
Failure to exercise or delay in exercising any right, power or
privilege by a Party does not operate as a waiver of that right,
power or privilege.
24.2 PARTIAL EXERCISE DOES NOT PRECLUDE FURTHER EXERCISE
A single or partial exercise of any right, power or privilege by a
Party does not preclude:
(a) any other or further exercise of that right, power or
privilege; or
(b) the exercise of any other right, power or privilege.
25. VARIATION
This Agreement may be varied only by agreement in writing signed by
the Parties.
26. FURTHER ASSURANCES
Each Party must execute and do all acts and things necessary or
desirable to implement and give full effect to the provisions and
purpose of this Agreement.
27. MERGER
The rights and obligations of the Parties will not merge on the
completion of any transaction contemplated by this Agreement. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
28. INTERPRETATION
28.1 REFERENCE TO A STATUTE
A reference to a statute includes a regulation, by-law, requisition
and order made under that statute and any amendment to or
re-enactment of that statute, regulation, by-law, requisition or
order for the time being in force.
28.2 JOINT AND SEVERAL COVENANTS
If the Buyer comprises two or more persons, the covenants and
agreements on their part bind and must be observed and performed by
them jointly and each of them severally and may be enforced against
any one or any two or more of them.
28.3 LAST DAY NOT A BUSINESS DAY
When the day or last day for doing an act is not a Business Day in
the place where
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that act is to be done, the day or last day for doing the act will be
the next following Business Day in the place where that act is to be
done.
28.4 HEADINGS
Except in the Schedule, headings in this Agreement are for
convenience and identification of clauses only and do not otherwise
affect its interpretation.
28.5 REFERENCE TO OTHER DOCUMENT
Subject to any contrary provision in this Agreement, a reference to
any other deed, agreement, instrument or contract (including the
Joint Venture Contracts and the Sales Contracts) includes a reference
to that other deed, agreement, instrument or contract as amended,
supplemented or varied from time to time.
28.6 REFERENCE TO A PARTY
Unless contrary to the sense or context, a reference to a Party
includes that Party's administrators, personal representatives,
successors and assigns, and if the Buyer comprises two or more
persons, administrators, personal representatives, successors and
assigns of each of those persons.
28.7 SINGULAR, PLURAL AND GENDER
Where applicable:
(a) words denoting the singular include the plural;
(b) words denoting the plural include the singular; and
(c) words denoting a gender include each gender.
28.8 REFERENCE TO A PERSON AND A BODY CORPORATE
Where applicable:
(a) a reference to a body corporate includes a natural person; and
(b) a reference to a person includes a body corporate.
28.9 PROFESSIONAL BODY
A reference to a professional body includes a successor to or
substitute for that body.
28.10 PARTIES IN INTEREST
This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
Nothing in this Agreement,
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express or implied, is intended to confer upon any person other than
the Buyer, the Seller or their respective successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
EXECUTED BY THE PARTIES
THE COMMON SEAL of AMPOLEX )
(PNG HOLDINGS) INC is affixed in ) [SEAL]
accordance with its articles of )
association in the presence of: )
/s/ Xxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------ ----------------------------------------
Signature Director Signature Secretary*
Xxx X. Xxxxxxx Xxxxxx X. Xxxxxxxxx
------------------------------------ ----------------------------------------
Print full name of signatory Print full name of signatory
* Delete if not applicable
SIGNED for and on behalf of )
APACHE CORPORATION by )
XXXX X XXXXX as duly authorised ) /s/ Xxxx X. Xxxxx
----------------------------------------
corporate representative ) Xxxx X Xxxxx
in the presence of: )
/s/ Xxx X. Xxxxxx
-----------------------------------
Witness
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SCHEDULE ONE
1. TITLES
Exploration Permit WA-192-P
Exploration Permit EP 307
Exploration Permit EP 358
Exploration Permit TP/8
Production Licence TL/1
Production Licence TL/5
Production Licence TL/6
Pipeline Licence PL/12
Pipeline Licence PL/17
Pipeline Licence TPL/1
Pipeline Licence TPL/2
Pipeline Licence TPL/5
Pipeline Licence TPL/8
2. INTERESTS
24% interest in the Assets.
3. SPECIFIED ENCUMBRANCES
1. Charge No. 225400 registered on 19/01/1990 given by the
Company pursuant to Section 16.3 of the Joint Operating
Agreement for Exploration and Appraisal of WA-192-P and EP 307
dated 5 August 1985;
2. Charge No. 225386 registered on 19/01/1990 given by the
Company pursuant to Section 16.3 of the Joint Operating
Agreement for Exploration and Appraisal of Production Licences
dated 5 August 1985;
3. Charge No. 225411 registered on 19/01/1990 given by the
Company pursuant to Section 12.4 of an Approved Field Joint
Operating Agreement (WA-192-P Development and Production)
dated 5 August 1985.
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SCHEDULE TWO
SELLER'S WARRANTIES
1. SHARES
1.1 The Seller is the registered holder and beneficial owner of the
Shares and has power to transfer title to the Shares being the only
shares issued in the capital of the Company.
1.2 The Shares have been validly issued and are free from all
Encumbrances.
1.3 There are no restrictions known to the Seller on the transfer of the
Shares, save that the approval of the board of directors of the
Company may be required in order to register the transfers.
1.4 The Company has not granted to any person a right to subscribe for or
acquire or convert any security into any of the Company's unissued
shares.
1.5 No person has any pre-emptive right with respect to any of the
Shares.
1.6 The Company is not under an obligation to issue further shares.
1.7 There are no dividends declared by the Company which are not paid or
credited to a loan account of a shareholder of the Company.
2. STATUS OF THE COMPANY
2.1 The copy of the By Laws of the Company initialled for identification
by an officer of the Company and produced prior to executing this
Agreement is a true copy and includes all amendments made up to the
date of this Agreement.
2.2 No resolution to alter the Company's By Laws has been passed since
the Effective Date.
2.3 The Company is not:
(a) wound up, no resolution for its winding up has been passed and
no meeting of members or creditors has been convened for that
purpose;
(b) the subject of a winding up application which has been made to
a Court, and no event has occurred which would entitle any
person to apply to a Court to wind up the Company;
(c) a party to a composition or arrangement with any of its
creditors;
(d) the recipient of a statutory demand;
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(e) in receivership and none of its assets is in the possession of
or under the control of a mortgagee or chargee; or
(f) subject to administration,
and the Seller is not aware of any facts or circumstances which
would, or are likely to, result in any of the above.
2.4 The Company has not received any notice or warning of possible
cancellation of registration of the Company.
3. BALANCE SHEET
The Balance Sheet, to the best of the knowledge of the Seller and
subject to the notes to the accounts and other matters noted:
(a) presents a true and fair view of the financial position of the
Company as at the Effective Date; and
(b) has been prepared and audited in accordance with the relevant
accounting standards and generally accepted accounting
principles consistently applied.
4. TITLE TO ASSETS
The Company has good title to the Assets.
5. POWER OF ATTORNEY
The Company has not granted any power of attorney which will be
effective at or after Completion.
6. PROCEEDINGS PENDING
6.1 The Company is not engaged in any litigation, arbitration,
prosecution or other legal proceedings, or any proceedings or
hearings before any statutory or governmental body, department, board
or agency.
6.2 To the Seller's best knowledge and belief there are no facts which
are likely to give rise to any litigation, arbitration, prosecution
or other legal proceedings, or any proceedings or hearings before any
statutory or governmental body, department, board or agency.
7. BUSINESS SINCE EFFECTIVE DATE
Since the Effective Date:
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(a) the Company has carried on business and dealt with its
property and assets only as a consequence of trading in the
ordinary course of business, save as disclosed by the Seller;
(b) no alteration has been made to the share capital of the
Company;
(c) the Company has not declared or paid any dividend or any
amount which may be deemed to be a dividend or passed any
special resolution;
(d) the Company has not granted any Encumbrance over or any part
of the Assets other than under the Joint Venture Contracts and
the Specified Encumbrances; and
(e) the Company has no employees.
8. CONTRACTS
8.1 To the best of the Seller's knowledge, all agreements binding on the
Company not entered into in the ordinary course of Business of the
Company have been disclosed to the Buyer.
8.2 To the best of the Seller's knowledge, the Company is not party to
any agreement which may be terminated by any other party by reason of
a change in the ownership of the Shares by reason of the change being
subject to the consent of the other party, which consent has not been
obtained.
8.3 All material agreements entered into by the Company have been
executed in accordance with the Company's Articles of Association,
are within the authority of the Company and are valid and binding on
the Company and, to the best of the Seller's knowledge and belief, on
the other parties to those agreements.
9. SUBSIDIARIES
The Company has no subsidiaries at the Completion Date.
10. AUTHORITY
10.1 The Seller is duly incorporated with limited liability and validly
existing under the laws of its country of incorporation.
10.2 The documents which contain or establish the Sellers' constitution
incorporate provisions which authorise, and all necessary corporate
action has been taken to authorise, the Seller to execute and deliver
this Agreement and this Agreement does, and the further documents to
be executed by the Seller hereunder will, constitute legal, valid and
binding obligations of the Seller enforceable against them in
accordance with their respective terms.
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10.3 The signing and delivery of this Agreement and the performance of the
transaction contemplated by this Agreement will not contravene or
constitute a default under a provision contained in any agreement,
instrument, law, judgment, order, licence, permit or consent by which
the Seller is bound.
10.4 The Seller has not incurred any obligation or liability, contingent
or otherwise, for brokers' or finders' fees in respect of the
transaction under this Agreement for which the Buyer will have any
obligation.
11. COMPLETENESS OF INFORMATION
The Seller has provided to the Buyer all information within its
knowledge which could reasonably be considered to be material in
relation to the Company, the Shares and the Assets or to their value.
12. ASSETS
12.1 The Company's legal and beneficial ownership of the Assets is as set
out in Schedule One, free and clear of all Encumbrances, other than
as there set out or in the Joint Venture Contracts, Specified
Encumbrances, the terms of grant of the Titles or under the Petroleum
Legislation.
12.2 The Joint Venture Contracts are to the best of the knowledge and
belief of the Seller, a complete list of all material agreements
constituting or regulating the interests of the Seller in the Titles.
12.3 The Seller has not received any notice of any material breach of its
obligations under the Joint Venture Contracts or the Sale Contracts.
12.4 The Seller is not in material default under the Joint Venture
Contracts or the Sale Contracts.
13. OPERATIONS
To the best of the knowledge and belief of the Seller:
(a) all material conditions and obligations to which the Assets
are subject have been complied with and performed; and
(b) all Petroleum operations with respect to the Assets have been
and are now conducted in accordance with applicable laws and
good oilfield practice.
14. DEFAULT OF OTHER VENTURERS
The Company has not in the last TWELVE (12) months received any
notice of default in respect of any other party to the Joint Venture
Contracts.
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15. COMPLIANCE
Except in relation to Tax matters:
(a) to the best knowledge and belief of the Seller there are no
material notices of any public or statutory authority
outstanding against the Company; and.
(b) the Company has complied in all material respects with the
provisions of all laws and regulations and all orders, notices,
awards and determinations made by any statutory or other
competent authority in any way relating to or binding on the
Company or the Assets.
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SCHEDULE THREE
BUYER'S WARRANTIES
WARRANTIES OF THE BUYER
(a) The Buyer is duly incorporated with limited liability and
validly existing under the laws of its country of
incorporation.
(b) The signing and delivery of this Agreement and the performance
of the transactions contemplated by this Agreement will not
contravene or constitute a default under the provision
contained in any agreement, instrument, law, judgment, order,
license, permit or consent by which the Buyer is bound.
(c) The Buyer has not incurred any obligation or liability,
contingent or otherwise, for brokers' or finders' fees in
respect of the transaction herein provided for which the
Sellers will have any obligation.
(d) The Shares are being purchased by the Buyer for its own
account for investment and not for the purpose of, or with a
view to, the resale or distribution thereof. The Buyer
acknowledges that the sale or resale of the Shares under this
Agreement has not been registered under the U.S. Securities
Xxx 0000, as amended, and that no further sales of the Shares
can be made unless registration or exemption from registration
under such Act is available.
(e) The documents which contain or establish the Buyer's
constitution incorporate provisions which authorise, and all
necessary corporate action has been taken to authorise, the
Buyer to execute and deliver this Agreement and this Agreement
does, and the further documents to be executed by the Buyer
hereunder will, constitute legal, valid and binding
obligations of the Buyer enforceable against them in
accordance with their respective terms.
(f) The signing and delivery of this Agreement and the performance
of the transaction contemplated by this Agreement will not
contravene or constitute a default under a provision contained
in any agreement, instrument, law, judgment, order, licence,
permit or consent by which the Buyer is bound.
(g) The Buyer, on the Completion Date, will have sufficient funds
to effect Completion and all other transactions contemplated
by this Agreement.
(h) Except as specifically set forth in this Agreement, no
consent, approval, waiver or authorisation is required to be
obtained by the Buyer and no notice or filing is required to
be given by the Buyer with any federal, state, local or other
governmental authority in connection with the execution,
delivery and performance by the Buyer of this Agreement.
(i) The Buyer is not:
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(i) wound up, no resolution for its winding up has been
passed and no meeting of members or creditors has
been convened for that purpose;
(ii) the subject of a winding up application which has
been made to a Court, and no event has occurred
which would entitle any person to apply to a Court
to wind up the Buyer;
(iii) a party to a composition or arrangement with any of
its creditors;
(iv) the recipient of a statutory demand under sections
459A-461 of the Corporations Law or any equivalent
or analagous legislation in any jurisdiction
relevant to the Buyer;
(v) in receivership and none of its assets is in the
possession of or under the control of a mortgagee or
chargee; or
(vi) subject to administration under Part 5.3A of the
Corporations Law or any equivalent or analagous
legislation in any jurisdiction relevant to the
Buyer.
(j) The Buyer has not received from any relevant authority any
notice or warning of possible cancellation of registration of
the Company.
(k) The Buyer is not engaged in any litigation, arbitration,
prosecution or other legal proceedings, or any proceedings or
hearings before any statutory or governmental body,
department, board or agency which would be likely to prejudice
the Buyer's performance of its obligations under this
Agreement.
(l) There are no facts known to the Buyer which are likely to give
rise to any litigation, arbitration, prosecution or other
legal proceedings, or any proceedings or hearings before any
statutory or governmental body, department, board or agency
involving the Buyer which would be likely to prejudice the
Buyer's performance of its obligations under this Agreement.
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SCHEDULE FOUR
ACCOUNTS
1. PREPARATION
(a) The initial working capital statement at 30 June 1997 which is
based on the Balance Sheet is attached as Schedule Eight.
(b) The Seller shall procure that the Company prepares a statement
of Working Capital of the Company taking into account the
adjustments under Part 2 of this Schedule (WORKING CAPITAL
STATEMENT) not less than SEVEN (7) days prior to the
Completion Date;
(c) The Seller shall prepare the following statements of account:
(i) a profit and loss account in respect of the Assets
for the period from the Effective Date to the end of
the month immediately prior to the Completion Date
(ADJUSTMENT DATE) (PROFIT AND LOSS ACCOUNT); and
(ii) a statement of capital expenditure in respect of the
Assets from the Effective Date to the Adjustment
Date (CAPITAL STATEMENT).
(d) All amounts in US dollars are to be converted to Australian
dollars based on the transaction settlement date converted at
the Wholesale Market Hedge rate published in the Australian
Financial Review.
(e) The Working Capital Statement, the Profit & Loss Account and
the Capital Statement are referred to as the ACCOUNTS.
2. WORKING CAPITAL
(a) The working capital figure in the Working Capital Statement
will take into account the matters set out in this Part in
respect of the Assets, the Joint Venture Documents and the
hydrocarbons produced from the Assets.
(b) For the purpose of the Working Capital Statement, the working
capital figure will be based on, but not limited to, the
initial items taken from the initial Working Capital
Statement in Schedule Eight, but will be varied, to the extent
that any variation is necessary, to take into account:
(i) the purchase price of the hydrocarbons on hand as at
00:01 on the Effective Date determined in accordance
with paragraphs (c) and (d) (such amounts to be
treated as a current asset);
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(ii) the amount of any calls payable in respect of the
Assets after 00:01 on the Effective Date, which were
paid on or before the Effective Date (such amounts
to be treated as a current asset);
(iii) the amount of any calls payable in respect of the
Assets on or before 00:01 on the Effective Date,
which were unpaid on or before the Effective Date
(such amounts to be treated as a current liability);
(iv) any other outstanding amount by or to the Company in
respect of the Assets that relate to operations of
the Company on or before the Effective Date; and
(v) any over contribution or under contribution in
respect of the Company recorded in the books of the
Operator at the Effective Date.
(c) The Company's interest in the stock of hydrocarbons
attributable to the Assets on hand as at 00:01 on the
Effective Date comprises:
(i) liquids downstream of the wellheads as estimated by
the Operator; and
(ii) gas downsteam of the low temperature separation
plant as estimated by the Operator.
(d) The purchase price of the hydrocarbons on hand will be:
(i) for all of such hydrocarbons, the actual proceeds of
sale; less
(ii) for all of such hydrocarbons, actual or (where no
actual is available) estimated transportation,
wharfage and royalty costs incurred through to the
point of sale, where estimates are based on the
average per barrel implied from actual payments over
the preceding three months.
3. PROFIT & LOSS ACCOUNT
(a) The Profit and Loss Account shall take into account:
(i) the amount of operating costs included in any calls
paid in respect of the Assets from the Effective
Date to the Adjustment Date and the costs of
insurances under Clause 8.3 (such amounts to be
treated as expenses); and
(ii) the amount of any cash received or entitled to be
received in respect of sales of hydrocarbons made
pursuant to the Sales Contracts and invoiced in the
period from the Effective Date to the Adjustment
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Date and any other income otherwise received in
respect of the Assets (such amounts to be treated as
revenue).
(b) In this Part, if the total of revenue exceeds the total of
expenses, then the amount of the difference shall be charged
to the Seller Account, otherwise the amount of the difference
shall be charged to the Buyer Account.
(c) The United States income tax payable with respect to the
Interim Period profits of the Company shall be charged to the
Buyer Account.
4. CAPITAL STATEMENT
(a) The Capital Statement shall take into account the amount of
any capital cost or receipt comprised or adjusted for in any
call paid or received in respect of the Assets from the
Effective Date to the Adjustment Date (such amounts to be
treated as property, plant and equipment).
(b) In this Part, if the total of capital costs under paragraph
(a) exceeds the total of capital receipts, then the amount of
the difference shall be charged to the Buyer Account,
otherwise the amount of the difference shall be charged to the
Seller Account.
5. PROCEDURE TO AGREE ACCOUNTS
(a) Not less than SEVEN (7) Business Days prior to the projected
Completion Date, the Seller agrees to submit the Accounts to
the Buyer. The Seller will provide supporting documentation.
(b) Within FOUR (4) Business Days of the date on which the Seller
provides the Accounts (or such shorter time as the parties
agree), the Buyer agrees to advise the Seller in writing as to
any amounts it does not agree to, including its reasons.
(c) The Parties will in good faith seek to reach agreement without
delay on any amounts not agreed to between them.
(d) If no notice is given by the Buyer under paragraph (b) of this
Part, then the Accounts will be treated as the Accounts for
the purposes of determining the amounts to be paid or allowed
at Completion.
(e) If a notice is given by any Party under paragraph (b) of this
Part and the Parties do not resolve the matter within THREE
(3) Business Days prior to Completion, then the Parties will
pay at Completion the amounts in the Buyer Account and the
Seller Account not in dispute under clause 4 of the Agreement.
(f) If any amount is not agreed nor paid or allowed at Completion,
then either Party may give notice to the other that the matter
be referred to an
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Independent Accountant. The notice must suggest a person to be
the Independent Accountant and process set out in Schedule 6
must be followed.
(g) If a reference is made to the Independent Accountant under
paragraph (f) of this Part, the terms of reference must be to
resolve the matters in dispute in accordance with the
principles set out in Parts 1, 2, 3 and 4 of this Schedule as
soon as possible. The Buyer and Seller must co-operate and
make information available as requested by the Independent
Accountant. The Buyer and the Seller must ensure that the
Company promptly makes available such information as the
Independent Accountant may request in relation to the matters
in dispute. All correspondence between the Independent
Accountant and any Party must be promptly copied to the other
Party.
(h) The Independent Accountant must issue a certificate as to his
determination of the matters referred to him and of the
Accounts, adjusted (if necessary) to take account of his
determinations. The Buyer and Seller agree that in carrying
out this role, the Independent Accountant acts as expert and
not arbitrator and that, in the absence of fraud or mistake or
manifest error, the certificate issues by the Independent
Accountant will be final and binding on them.
(i) The Buyer and the Seller will bear equally the costs of the
Independent Accountant.
6. POST COMPLETION ADJUSTMENTS FOR PERIOD BETWEEN ADJUSTMENT DATE AND
COMPLETION
(a) Within THIRTY (30) days after the end of the month in which
Completion occurs the Seller will prepare the Accounts and
submit them to the Buyer, in each case made up to the
Completion Date.
(b) The Parties will follow the procedures set out in Part 5 of
this Schedule to determine the Buyer Account and the Seller
Account as at the Completion Date.
(c) Any difference between the Buyer Account and the Seller
Account at the Adjustment Date and at the Completion Date will
be paid to the Party entitled by the other Party within FIVE
(5) Business Days of determination of those Accounts.
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SCHEDULE FIVE
JOINT VENTURE CONTRACTS
Approved Field Joint Operating Agreement (WA-192-P Development and Production)
("Production JOA") dated 5 August 1985 between Bond Corporation Pty Ltd, Texas
Eastern Australia, Inc., Reading & Xxxxx Australia Petroleum Co., Petro Energy
Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio
Broadcasters Limited and New World Oil & Developments Pty Ltd;
Joint Operating Agreement for Exploration and Appraisal of WA-192-P and EP307
("Permit Exploration JOA") dated 5 August 1985 between Bond Corporation Pty
Ltd, Texas Eastern Australia, Inc., Reading & Xxxxx Australia Petroleum Co.,
Petro Energy Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan
Television & Radio Broadcasters Limited and New World Oil & Developments Pty
Ltd;
Joint Operating Agreement for Exploration and Appraisal of Production Licence
("Production Licence Exploration JOA") dated 5 August 1985 between Bond
Corporation Pty Ltd, Texas Eastern Australia, Inc., Reading & Xxxxx Australia
Petroleum Co., Petro Energy Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL,
Swan Television & Radio Broadcasters Limited and New World Oil & Developments
Pty Ltd;
Production - Exploration Co-Ordination Deed (WA-192-P and Production Licence)
dated 5 August 1985 between Bond Corporation Pty Ltd, Texas Eastern Australia,
Inc., Reading & Xxxxx Australia Petroleum Co., Petro Energy Limited, Pontoon
Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio Broadcasters Limited
and New World Oil & Developments Pty Ltd;
Seller's Representative Agreement WA-192-P New Production Licence - Produced
Petroleum dated 5 August 1985 between Bond Corporation Pty Ltd, Texas Eastern
Australia, Inc., Reading & Xxxxx Australia Petroleum Co., Petro Energy Limited,
Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio Broadcasters
Limited and New World Oil & Developments Pty Ltd;
Deed of Cross Charge given by the Company (No. 225400) pursuant to Permit
Exploration JOA created 18 January 1990 and other charges given by New World
Oil & Developments Pty Ltd, Ampolex Varanus Pty Ltd, Apache Northwest Pty Ltd,
Hardy Petroleum Limited, Novus UK (Xxxxxxx) Limited, Tap (Xxxxxxx) Pty Ltd and
Kufpec Australia Pty Ltd in favour of the Company pursuant to that JOA;
Deed of Cross Charge given by the Company (No. 225386) pursuant to Production
Licence Exploration JOA created 18 January 1990 and other charges given by New
World Oil & Developments Pty Ltd, Ampolex Varanus Pty Ltd, Apache Northwest Pty
Ltd, Hardy Petroleum Limited, Novus UK (Xxxxxxx) Limited, Tap (Xxxxxxx) Pty Ltd
and Kufpec Australia Pty Ltd in favour of the Company pursuant to that JOA;
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Deed of Cross Charge given by the Company (No. 225411) pursuant to Production
JOA created 18 January 1990 and other charges given by New World Oil &
Developments Pty Ltd, Ampolex Varanus Pty Ltd, Apache Northwest Pty Ltd, Hardy
Petroleum Limited, Novus UK (Xxxxxxx) Limited, Tap (Xxxxxxx) Pty Ltd and Kufpec
Australia Pty Ltd in favour of the Company pursuant to that JOA;
Xxxxxxx Joint Venture and East Spar Joint Venture Access Agreement (Varanus
Island) dated 12 December 1996 between the Company, Ampolex Varanus Pty Ltd,
Apache Northwest Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd,
Tap (Xxxxxxx) Pty Ltd, Novus UK (Xxxxxxx) Limited, New World Oil & Developments
Pty Ltd, Ampolex (A.O.E.) Limited, Apache Oil Australia Pty Ltd, Xxxxxx (BOL)
Pty Ltd, WMC Resources Ltd and Apache Energy Limited;
Assignment, Farm-in/Farm-out, Assumption, novation and covenant documentation
registered as dealings against the Titles, or any predecessor title thereof in
the Registers maintained under the Petroleum Legislation.
SALES CONTRACTS
GAS
Heads of Agreement for the Purchase of Natural Gas from the Xxxxxxx Area dated
12 December 1990 between SECWA, Hadson Australia Development Pty Ltd, Hardy
Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil Australia Pty Ltd,
Petro Energy Limited, the Company, Ampolex Varanus Pty Ltd, Swedish Exploration
Consortium AB and New World Oil & Developments Pty Ltd;
Heads of Agreement for Gas Supply and Purchase (Normandy Power) dated 24
October 1994 between Normandy Power Pty Ltd, the Company, Ampolex Varanus Pty
Limited, Hadson Australia Development Pty Ltd, Hardy Petroleum Limited, Kufpec
Australia Pty Ltd, Marubeni Oil Australia Pty Ltd, Monument Oil (Australia)
Limited, New World Oil & Developments Pty Ltd and Petro Energy Limited;
Gas Supply and Purchase Agreement dated 21 July 1995 between Apache Northwest
Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil
Australia Pty Ltd, Monument Oil (Australia) Limited, New World Oil &
Developments Pty Ltd, the Company, Ampolex Varanus Pty Ltd, Doral Resources NL,
Pan Pacific Petroleum NL, Haoma Petroleum Pty Ltd, Strata Petroleum Pty Ltd,
Carnarvon Oil & Gas NL and Xxx Xxxxxx Xxxxxxx;
Interim Gas Agreement dated on or about 19 February 1996 between the Company,
Ampolex Varanus Pty Limited, Apache North West Pty Ltd, Hardy Petroleum
Limited, Kufpec Australia Pty Limited, Marubeni Oil Australia Pty Limited,
Novus UK (Xxxxxxx) Limited, New World Oil & Developments Pty Limited, Ampolex
(A.O.E.) Limited, Apache Oil Australia Pty Limited, Xxxxxx & Parsley
Australasia Limited and Western Mining Corporation Limited;
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Gas Supply and Purchase Agreement (Alcoa) dated 5 June 1996 between Alcoa of
Australia Limited, the Company, Ampolex Varanus Pty Limited, Apache North West
Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil
Australia Pty Ltd, New World Oil & Developments Pty Ltd and Novus UK (Xxxxxxx)
Limited;
Wiluna Gas Sales Agreement dated 8 April 1997 between Apache Northwest Pty Ltd,
Hardy Petroleum Limited, Kufpec Australia Pty Ltd, TAP (Xxxxxxx) Pty Ltd, Novus
UK (Xxxxxxx) Limited, New World Oil & Developments Pty Limited, the Company,
Ampolex Varanus Pty Ltd and Wiluna Gold Pty Limited;
Gas Sale Agreement (Boral) dated 17 June 1997 between Boral Gas (WA) Pty
Limited, the Company, Ampolex Varanus Pty Ltd, Apache Northwest Pty Ltd, Hardy
Petroleum Limited, Kufpec Australia Pty Ltd, TAP (Xxxxxxx) Pty Ltd, Novus UK
(Xxxxxxx) Limited and New World Oil & Developments Pty Ltd.
CRUDE
Xxxxxxx Oilfield Royalty Agreement dated 20 September 1989 between Xxxxxxx Xxxx
(Minister for Administration of PSLA (W.A.)), Bond Corporation Pty Ltd, Hadson
Australia Development Pty Ltd, Varanus Pty Ltd, TEA Australia Inc., Petro
Energy Limited and New World Oil & Developments Pty Ltd;
Terms and Conditions of Sale of Varanus Crude dated 18 December 1996 between
Ampolex Varanus Pty Limited and Glencore International AG.
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SCHEDULE SIX
PROCEDURES FOR INDEPENDENT
ACCOUNTANT DETERMINATION
1. REFERRALS TO EXPERT
Wherever in this Agreement any matter is to be referred to the
Independent Accountant, then the terms of this Schedule shall apply.
2. APPOINTMENT
The procedure for appointing the Independent Accountant is as
follows:
2.1 The disputing Party must give written notice including details of the
matter to be resolved by the Independent Accountant to the other
Party.
2.2 If the matter is not resolved within FOURTEEN (14) days from the date
of the notice, the Parties shall agree on a single accountant to
determine the dispute or, if no agreement is reached within FIVE (5)
Business Days, a chartered accountant nominated by the President of
the Institute of Chartered Accountants in Australia being a person
who is not a partner, consultant or employee of the Buyer's
accountants or the Seller's accountants and at which time is not or
which firm for he or she works is not retained by the Buyer, the
Seller or any of their Related Bodies Corporate in any capacity
whatsoever.
2.3 DUTY OF DISCLOSURE
Any person appointed as the Independent Accountant shall fully
disclose any interest which may conflict with the appointment before
accepting such appointment and, with the agreement of both Parties,
shall be entitled to act as such expert, notwithstanding that he or
she has, or may have, some interest which conflicts with such
appointment.
2.4 POWERS AND DUTIES
An Independent Accountant shall, within TEN (10) days of his or her
acceptance of the appointment, fix a reasonable time and place for
receiving submissions or information from the Parties or any other
persons that he or she may think fit and may make further enquiries
and require such other evidence as he or she considers necessary and
shall determine the matter with all due diligence.
2.5 NOT ARBITRATOR
The Independent Accountant shall not be an arbitrator but shall give
his or her decision as an expert and the provisions of the Commercial
Arbitration Act 1985 shall not apply to the expert, the determination
or the determination procedure.
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2.6 DETERMINATION BINDING
The Independent Accountant's determination shall be final and binding
upon the Parties except for fraud, mistake or manifest error.
2.7 COSTS
Each Party shall bear the costs and expenses of any consultants,
witnesses and employees retained by it in connection with the matter,
but the costs and expenses of the Independent Accountant shall be
apportioned equally between the Parties.
2.8 REMOVAL OF INDEPENDENT ACCOUNTANT
If the Independent Accountant has not made a determination within
SIXTY (60) days of his appointment, either Party may, by notice,
terminate such appointment.
2.9 APPOINTMENT OF REPLACEMENT
In the event of such termination, a new Independent Accountant shall
be appointed within TEN (10) days and the matter determined in
accordance with this Schedule.
2.10 CONTINUED PERFORMANCE OF OBLIGATIONS
The referral of a matter to the Independent Accountant shall not
affect the obligations of the Parties to perform or pay any amount
otherwise due in accordance with the terms and conditions of the
Agreement.
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SCHEDULE SEVEN
SPECIAL PURPOSE FINANCIAL REPORT OF THE COMPANY AS AT 30 JUNE 1997
[OMITTED]
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SCHEDULE EIGHT
WORKING CAPITAL STATEMENT
[OMITTED]
48.
