Exhibit 10.15
Dated this 21st day of August 1987
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GOVERNMENT OF THE REPUBLIC OF GHANA
AND
CANADIAN BOGOSU RESOURCES LIMITED
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Indenture
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Gold Mining Lease
WR.2762/278
[illegible signature]
SOLICTOR FOR
THE SUPREME COURT
THIS INDENTURE AGREEMENT AND LEASE is made the 21st day of August, 1987
BETWEEN THE GOVERNMENT OF THE REPUBLIC OF GHANA (hereinafter called "THE
GOVERNMENT") Acting by XXXXXXX XXXXX XXXXXX, P.N.D.C. Secretary for Lands and
Natural Resources (hereinafter called "THE SECRETARY") of the one part And
CANADIAN BOGOSU RESOURCES LIMITED having its registered office in Accra
(hereinafter called "THE COMPANY") of the other part:
W H E R E A S:
1. The COMPANY was granted a Prospecting License dated 12th May, 1986 to
prospect for gold in the Bogosu area of Western Region covering 149.41 square
kilometres and the Company has applied to the Government for a Mining Lease to
work develop and produce gold within 50 square kilometres out of the total area
covered by the Prospecting License.
2. The Government is desirous of developing its mineral resources in such manner
as will ensure that the maximum possible benefits accrue to the nation from the
exploitation of minerals and has agreed to grant the Company a Gold Mining Lease
on the terms and conditions hereinafter following.
NOW THIS AGREEMENT WITNESSES as follows:
1. GRANT OF SURFACE AND MINING RIGHTS
(a) "The Government" hereby grants to the Company ALL that piece of land
described in the Schedule hereto and more particularly delineated on
the Plan hereto attached and shown edged pink (hereinafter called "The
Mining Area" together with mines, beds, seams, veins, channels, and
stratas of gold and other associated mineral substances lying and
being within and under the surface for a term of Thirty years from the
date of this Agreement.
(b) "The Government" hereby grants to the Company the exclusive rights to
work, develop and produce gold in the Mining Area (including, the
processing, storing and transportation of ore and materials together
with the rights and powers reasonably incidental thereto subject to
the provisions of this Agreement for the said term of Thirty years.
(c) "The Company" shall not, however, conduct any operations in a sacred
area and shall not, without the prior consent of the "Secretary"
conduct any operations:
(i) within 50 yards of any building, installation, reservoir or dam,
public road, railway or area appropriated for railway; or
(ii) in an area occupied by a market, burial ground/cemetery or
Government office, or situated within a town or village or set
apart for, used, appropriated or dedicated to a public purpose
(d) The Company shall conduct its operations in a manner consistent with
good commercial mining practices so as not to interfere unreasonably
with vegetation in the Mining Area or with the customary rights and
privileges of persons to xxxx and snare game, gather firewood for
domestic purposes and to collect snails.
(e) The public shall be permitted at their sole risk to use without charge
any road constructed by the Company in the Mining Area in a manner
consistent with good mining practices, safety and security, provided
that such use does not unreasonably interfere with the operations of
The Company hereunder and provided also that such permission shall not
extend to areas enclosed for mining operations.
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(f) The Company may use the existing trees in the Mining Area to the
extent that such use is necessary for its operations hereunder,
subject to the payment of Royalty as hereinafter provided, and shall
cultivate for its exclusive use such trees, wood or timber species as
may be required for purposes of firewood, timber or mine support.
(g) Nothing contained in this Agreement shall be deemed to confer any
rights on the Company other than those set forth herein nor to permit
the Company to dispense with the necessity of applying for and
obtaining any permit or authority which the Company may be required by
law or regulation to obtain in respect of any work or activities
proposed to be carried out hereunder.
2. RIGHTS OF THIRD PARTIES IN THE MINING AREA:
(a) Subject to satisfactory arrangements between "the Government" and the
Company, "the Government" shall grant the first option to the Company
to work minerals other than gold discovered in the Mining Area.
(b) Failing such satisfactory arrangements between "the Government" and
the Company, "the Government" reserves the rights to grant licences to
third parties for prospecting or to enter into agreements for the
production of minerals other than gold in the Mining Area, provided
that any such activity shall not unreasonably interfere with the
rights granted to the Company hereunder.
3. POWER OF GOVERNMENT TO EXCLUDE PARTS OF THE MINING AREA
(a) "The Government" may by reasonable notice in writing to the Company
exclude from the Mining Area, at any time and from time to time, any
part which may be required for any stated public purpose whatsoever,
provided that:
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(i) The parts so excluded shall not have a surface area in the
aggregate greater than ten percent of the Mining Area.
(ii) Any parts of the Mining Area so excluded shall continue to form
part of the mining Area subject to this Agreement except that no
mining operations shall be conducted on the parts so excluded
(iii) No part of the Mining Area shall be so excluded in respect of
which the Company shall have given prior notice specifying that
such part is required for mining operations hereunder or on which
active operations have commenced or are in progress (such as
digging, construction of installations or other works related to
gold mining) but, in lieu thereof, a part equal in area to any
such part shall be excluded for such public purposes, and
(iv) "The Government" shall not take to itself nor grant to third
parties the right to mine gold from any parts so excluded.
(b) "The Company" shall be relieved of all liabilities or obligations
hereunder in respect of any part excluded under this paragraph except
liabilities or obligations accrued prior to such exclusion.
4. WORKING OBLIGATIONS
"The Company" shall continuously operate in the Mining Area in accordance
with good mining practices until such time as the reserves or deposits may
be exhausted or the mine can no longer be economically worked or until this
Agreement expires, whichever shall be the sooner.
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5. CONDUCT OF OPERATIONS:
(a) The Company shall conduct all of its operations hereunder with due
diligence, efficiency, safety and economy, in accordance with good
mining practice and in a proper and workmanlike manner, observing
sound technical and engineering principles using appropriate modern
and effective equipment, machinery, materials and methods, and to pay
particular regard to reclamation, conversation and environmental
protection.
(b) The Company shall mine and extract ore in accordance with Par. 5(a)
herein utilizing methods which include quarrying, pitting, trenching,
stoping, shaft sinking, and dredging in the Mining Area.
(c) The Company shall maintain all equipment in good and safe condition,
normal wear and tear excluded, and shall keep all excavated areas,
shafts, pits and trenches in good and safe condition and take all
practical steps:-
(i) To prevent damage to adjoining farms and villages;
(ii) To avoid damage to trees, crops, buildings, structures and other
property in the Mining Area. To the extent, however, that any
such damage is unavoidable, the Company shall pay fair and
reasonable compensation.
(d) The Company shall fence off effectually from the adjoining lands all
pits, shafts and other works made or used under the powers hereof.
(e) The Company shall as far as is necessary or practicable provide and
maintain in good repair and condition roads, gates, xxxxxx and fences
for the convenient occupation of the surface of the Mining Area.
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(f) The Company shall provide and maintain proper and sufficient drains,
culverts, arches to passageways for carrying off any waters which
shall arise or be produced or interrupted by any of the works hereby
6. NOTIFICATION OF DISCOVERY OF OTHER MINERALS
(a) The Company shall report forthwith to "the Secretary", the Chief
Inspector of Mines, the Chief Executive of the Minerals Commission,
and the Director of Geological Survey, the discovery in the Mining
Area of any other mineral deposits and the Company shall be given the
first option to prospect further and to work the said minerals,
subject to satisfactory arrangements between the Government and the
Company.
(b) Failing any arrangements to the contrary the Company shall not produce
any minerals from the Mining Area other than gold except they are
unavoidably linked with the production of gold.
7. SAMPLES:
(a) The Company shall not during the currency of this Agreement dispose of
or destroy, except in analyses, any cores or samples obtained from the
Mining Area without the prior consent in writing of the Chief
Inspector of Mines.
(b) The Company shall provide the Director of Geological Survey with such
samples from the Mining Area as he may from time to time reasonably
request.
8. HEALTH, SAFETY AND ENVIRONMENTAL PROTECTION:
(a) The Company shall comply with all such reasonable instructions as may
from time to time be given by the Chief Inspector of Mines for
securing the health and safety of persons engaged in or connected with
the operations hereunder.
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(b) The Company shall adopt all necessary and practical precautionary
measures to prevent undue pollution of rivers and other potable water
and to ensure that such pollution does not cause harm or destruction
to human or animal life or fresh water fish or vegetation.
9. POWER OF CHIEF INPECTOR OF MINES TO EXECUTE CERTAIN WORKS:
If the Company shall at any time fail to comply with any provisions of
this Agreement or applicable law and such failure is likely, in the
opinion of the Chief Inspector of Mines, to:
(i) endanger the health or safety of person, or
(ii) cause harm or destruction to potable water; or
(iii) result in damage to mining equipment or other structure and
installation, the Chief Inspector of Mines, shall after giving
the Company reasonable notice, execute any works which in his
opinion are necessary and practicable in the circumstances and
the costs and expenses of such works shall be borne by the
Company.
10. LIABILITY FOR DAMAGE OR INJURY AND INDEMNITY:
(a) Nothing in this Agreement shall exempt the Company from liability for
any damage or injury caused to any person, property or interest as a
result of the exercise by the Company of any rights or powers granted
to it under this Agreement.
(b) The Company shall at all times indemnify "the Government" and its
officers and agents against all claims and liabilities in respect of
any loss suffered by or damage done to third parties arising out of
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the exercise by the Company of any rights or powers granted to it
under this Agreement provided that the Company shall not so indemnify
"the Government", its officers and agents where the claim or liability
arises out of the wrongful or negligent acts of "the Government", its
officers and agents.
11. EMPLOYMENT AND TRAINING:
(a) Citizens of Ghana shall be given preference for employment by the
Company in all phases of its operations hereunder to the maximum
possible extent, consistent with safety, efficiency and economy.
(b) Except with respect to unskilled personnel, the Company may employ
non-Ghanaian personnel in the conduct of its operations provided that
the number of such non-Ghanaian personnel employed shall not exceed
the quota permitted by the Government.
(c) The Company shall provide appropriate programmes of instruction and
theoretical and practical training to ensure the advancement,
development, improved skills and qualification of Ghanaian employees
in all categories of employment.
12. PREFERENCE FOR GHANAIAN GOODS AND SERVICES:
In the conduct of its operations and in the purchase, construction and
installation of facilities, The Company shall give preference to:-
(a) materials and products made in Ghana, if such materials and products
are comparable or better in price, quality and delivery dates than
materials and products from foreign sources;
(b) service agencies located in Ghana owned by Ghanaian citizens or
companies organized pursuant to Ghanaian law, including but not
limited to, insurance agencies, bidding contractors, import brokers,
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dealers and agents if such agencies give or provide equal or better
price and quality of service than competing foreign firms and can
render services at such times as the Company may require.
13. AFFILIATED COMPANY TRANSACTIONS:
(a) Any services including services in respect of the purchase and
acquisition of materials outside Ghana provided by an affiliated
company, which are normally required by the Company in accordance with
good mining practice shall be obtained only at a price which is fair
and reasonable. The Company shall, at the request of the "Secretary",
provide such justification of costs as may be required duly supported
by an Auditor's certificate if necessary.
(b) Any other transactions between the Company and an affiliated Company
shall be on the basis of competitive international prices and such
other terms and conditions as would be fair and reasonable had such
transactions taken place between unrelated parties.
(c) The Company shall notify the "Secretary" of any and all transactions
between the Company and an affiliated Company and shall supply such
details relating to such transactions as "The Secretary" may by notice
reasonably require.
14. TECHNICAL RECORDS:
(a) The Company shall maintain at its registered or mine offices complete
records of pits and trenches (location, depths or overburden and
gravel and assay value) in the Mining Area in such form as may from
time to time be approved by the Chief Inspector of Mines, Chief
Executive of the Minerals Commission and the Director of Geological
Survey.
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(b) The Company shall maintain at the said offices copies of all reports
including interpretations dealing with gold prospects in the Mining
Area in the course of its operations hereunder and copies of all tests
and analyses, geological and geophysical maps, diagrams or charts
relevant to its operations hereunder. These reports and records may be
examined by persons in the service or acting on behalf of "The
Government" and authorized in writing by "the Secretary".
(c) The Company shall maintain at the said offices correct and
intelligible plans and sections of all mines which plans and sections
shall show the operations and workings which have been carried on as
well as xxxxx, veins, faults and other disturbances which have been
encountered in such workings and operations. All such plans and
sections shall be made, amended and completed from actual surveys
conducted for that purpose.
(d) Upon expiration or termination of this Agreement or the surrender of
any part of the Mining Area, such records and data as are required to
be maintained pursuant to this paragraph which relate to the Mining
Area, or such part of the Mining Area as may have been surrendered
shall be delivered to the Chief Inspector of Mines, Chief Executive of
the Minerals Commission and the Director of Geological Survey and
become the property of the Government without charge.
15. PRODUCTION RECORDS:
The Company shall maintain at the said offices complete and accurate
technical records of its operations and production in the Mining Area
in such form as may from time to time be approved by the Chief
Inspector of Mines.
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16. FINANCIAL RECORDS:
(a) The Company shall maintain at its registered and Mine Offices detailed
and complete accounts and systematic financial records of its
operations as may be required by law. The books of account shall show
all revenues received by the Company from all sources including its
operations hereunder, as well as all its expenditure. The Company
shall provide for a clear basis for understanding and relating the
financial records and accounts to its operations.
(b) The Company's books of account shall be kept on the basis of generally
accepted accounting principles.
(c) The Company shall keep separately records and financial statements in
terms of Ghana currency and also in terms of U.S. Dollars or other
international currency and may record such claims and liabilities as
arise in such foreign currency.
(d) The Company's books of account shall be audited within six months
after the close of each Financial Year by a qualified Accountant,
member of the Ghana Institute of Chartered Accountants. Such audit
shall not in any way imply acceptance of such audit by "the
Government" or preclude "the Government" from auditing such books of
account. The Company shall deliver to "The Secretary" without charge
copies of any part of such records as he may from time to time
reasonably request.
17. REPORTS:
(a) The Company shall furnish a report each quarter, to "The Secretary",
the Chief Inspector of Mines, the Chief Executive of the Minerals
Commission and the Director of Geological Survey, in such form as may
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from time to time be approved by the Secretary, of the quantities of
gold won in that quarter, quantities sold, the revenue received and
royalties payable for that quarter and such other information as may
be required. Such reports shall be submitted not later than 30 days
after the end of each quarter.
(b) The Company shall furnish a report each half-year to "the Secretary",
the Chief Inspector of Mines, the Chief Executive of the Minerals
Commission and the Director of Geological Survey in such form as may
from time to time be approved by "the Secretary" summarizing the
results of its operations in the Mining Area during the half-year and
records to be kept by the Company pursuant to paragraphs 14, 15 and 16
hereof. Each such report shall include a description of any geological
or geophysical work carried out by the Company in that half-year and a
plan upon a scale approved by the Chief Inspector of Mines showing
mine workings and dredging areas. Such reports shall be submitted not
later than 40 days after the half-year to which they relate.
(c) The Company shall furnish a report each Financial Year to "the
Secretary", the Chief Inspector of Mines, and the Chief Executive of
the Minerals Commission in such form as may from time to time be
approved by "the Secretary" summarizing the results of its operations
in the Mining Area during that Financial Year and the records required
to be kept by "the Company" pursuant to paragraphs 14, 15 and 16
hereof. Each such report shall include a description of the proposed
operations for the following year with an estimate of the production
and revenue to be obtained therefrom. Such reports shall be submitted
not later than sixty days after the end of each Financial Year.
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(d) The Company shall furnish "the Secretary", the Chief Inspector of
Mines, the Chief Executive of the Minerals Commission and the Director
of Geological Survey not later than three months after the expiration
or termination of this Agreement, with a report giving an account of
the geology of the Mining Area including the stratigraphic and
structural conditions, together with a geological map on a scale
prescribed in the Mining Regulations.
(e) The Company shall furnish the Secretary and the Chief Executive of the
Minerals Commission, with a report of the particulars of any proposed
alteration to its regulations together with a report of the
particulars of any proposed transfer of any share of its capital stock
representing one percent or more of the total number of such shares of
the capital stock then issued and outstanding. The Company shall also
furnish "the Secretary" and the Chief Executive of the Minerals
Commission with a report of the particulars of any fresh issues of
shares of its capital stock or borrowings in excess of an amount
equivalent to the Stated Capital of the Company. All such reports
shall be in such form as "the Secretary" may require and shall be
submitted not less than sixty days in advance of the proposed
alteration, transfer, issue or borrowing, as the case may be.
(f) The Company shall, not later than 180 days after the end of each
financial year, furnish "the Secretary" and the Chief Executive of the
Minerals Commission with a copy each of its annual financial reports
including a balance sheet, profit and loss account, and all notes
pertaining thereto, duly certified by a qualified accountant who is a
member of the Ghana Institute of Chartered Accountants. Such
certificate shall not in any way imply acceptance of such reports by
"the Government" or preclude the Government from auditing the
Company's books of account.
(g) The Company shall furnish "the Secretary", the Chief Inspector of
Mines, the Chief Executive of the Minerals Commission and the Director
of Geological Survey with such other reports concerning its operations
hereunder as they may from time to time reasonably require.
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18. INSPECTION:
(a) Any person or persons in the service of or acting on behalf of "the
Government" and authorized in writing by "the Secretary" shall be
entitled at all reasonable times to enter into and upon any part of
the Mining Area and the Company's registered office, for any of the
following purposes:
(i) to examine the mine workings, equipment, buildings, installation
and any other structures used in the Mining operation;
(ii) to inspect the samples which the Company is required to keep in
accordance with the provisions of this Agreement;
(iii) to inspect and check the accuracy of the weights and measures
and weighing and measuring devices, which the Company is required
to keep or make in accordance with the provisions of this
Agreement;
(iv) to examine and make abstracts of the books and records kept by
the Company pursuant to this Agreement; (v) to ensure compliance
by the Company with all applicable laws and regulations and with
its obligations hereunder;
(vi) to execute any works which the Chief Inspector of Mines may be
entitled to execute in accordance with the provisions of the
Mining Laws and Regulations or of this Agreement.
(b) The Company shall make reasonable arrangements to facilitate any such
inspection, including making available employees of the Company to
render assistance with respect to any such inspection. All such
inspections shall be listed by the Company in the reports furnished
each half year.
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19. CONFIDENTIAL TREATMENT:
"The Government" shall treat all information supplied by the Company
hereunder as confidential (for a period of five years from the date of
submission of such information or upon termination of this Agreement
whichever is sooner) and shall not reveal such information to third
parties except with the written consent of the Company which consent
shall not be unreasonably withheld. The Government and persons
authorized by "the Government" may nevertheless use such information
received from the Company for the purpose of preparing and publishing
general reports on Minerals in Ghana and in connection with any dispute
between "the Government" and the Company.
20. RENTALS:
(a) The Company shall pay rent to "the Government" at the rate of
(cent)19,300.00 per annum ((cent)386.10 per square kilometre).
(b) The said rent shall be paid half yearly in advance on or before the
first day of January and on or before the first day of July in each
year.
(c) In the event of a surrender of any part of the Mining Area pursuant to
paragraph 25 hereof, no rental payments shall be refunded in whole or
in part in respect of any area so surrendered for which yearly rental
has been paid in advance nor shall rental payments be refunded in the
event of termination.
21. ROYALTIES:
(a) The Company shall pay to "the Government" royalty prescribed by
legislation.
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(b) The Company shall pay royalties to "the Government" each quarter
through the Commissioner of Internal Revenue based on the production
for that quarter, within 30 days from the end of the quarter. Any
necessary adjustments shall be made annually within 60 days of the end
of each Financial Year, except that any over-payment of royalties
shall not be refunded by "the Government" but shall be credited
against royalties due and payable in the next quarter.
(c) In the event of a dispute with respect to the amount of royalties
payable hereunder the Company shall first make payment of the lower of
the disputed amounts and shall pay any further royalty which shall be
found to be payable forthwith upon the amount being agreed upon or
determined by arbitration in accordance with paragraph 35 hereof. Such
further royalty shall carry interest at the ruling prime rate in Ghana
at the time of the award or agreement from the date on which such
amount was originally payable.
(d) The Company shall also pay royalties on all timber felled by the
Company in accordance with existing legislation.
22. LATE PAYMENTS:
(a) Anything herein to the contrary notwithstanding, the Company shall pay
as penalty for any late payment to "the Government" of any amounts due
hereunder, an additional amount calculated at the Bank of Ghana
re-discount rate for every thirty-day period or part thereof for the
period of the delay in paying the amounts that is to say the period
between the actual payment date and the date on which each such
payment should have been made.
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(b) In the event the Company shall fail to make payment to "the
Government" of any amount due hereunder, "the Government" without
prejudice to any other rights and remedies to which it may be
entitled, may, after giving 30 days notice in writing, enter into and
upon the Mining Area and seize and distrain and sell as landlords may
do for rent in arrears, all or any of the stocks of gold produced
therefrom, and the plant and equipment, materials and supplies
belonging to the Company which shall be thereon and out of the monies
obtained from the sale of such distress may retain and pay all of the
arrears of any amounts due hereunder and the costs and expenses
incidental to any such distress and sale and deliver up the surplus
(if any) to the Company.
23. TAXATION:
The Company shall pay tax in accordance with the laws of Ghana.
24. FOREIGN EXCHANGE:
All foreign exchange transactions shall be in accordance with the laws
of Ghana.
25. SURRENDER:
(a) The Company may surrender at any time and from time to time, by giving
not less than three months' notice to "the Secretary" all its rights
hereunder in respect of any part of the Mining Area not larger in the
aggregate than 20% of said Area. The Company may surrender a larger
part of the Mining Area by giving not less than twelve months' notice
to "the Secretary". The Company shall be relieved of all obligations
in respect of the part or parts of the Mining Area so surrendered
except those obligations which accrued prior to the effective date of
surrender.
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(b) The Company shall leave the part of the Mining Area surrendered and
everything thereon in a good and safe condition, provided, however
that the Company shall have no such obligations for areas surrendered
on which the Company has not undertaken any works or which have not
been affected by the operations of the Company. In addition to
complying with the provisions of paragraph 29 hereof, the Company
shall take all reasonable measures, in accordance with good mining
practices to leave the surface of such part of the Mining Area
surrendered in good and usable condition having regard to the ecology,
drainage, reclamation and environmental protection. In the event that
the Company fails to do so, "the Secretary" shall make such part and
everything thereon safe and in good, usable condition at the expense
of the Company. The provisions of sub-paragraphs (a) and (c) of
Paragraph 28 hereof shall apply.
(c) The Company shall, on such terms and conditions as may be agreed upon
between the Government and the Company, be entitled to such wayleaves,
easements or other rights through or across the surrendered part or
parts as may be necessary for its operations and such wayleaves shall
not form part or be included in the calculation of the amount of the
retained part.
(d) "The Government" may require that there be reserved over any part
surrendered such wayleaves, easements or other rights as shall in its
opinion be necessary or convenient for the benefit of any party to
whom "the Government" may subsequently grant a Gold Prospecting
Licence or Gold Mining Lease.
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26 EXTENSION:
If the Company, not less than six months before expiration of this
Agreement applies to "the Secretary" for an extension of the term
hereof and if the Company shall not be in default at that time in the
performance of any of its obligations hereunder, the Company shall be
entitled to an extension of the Agreement upon such terms and
conditions as the parties may then agree.
27 COMPANY'S RIGHT TO TERMINATE AGREEMENT:
The Company may, if in its opinion the Mine can no longer be
economically worked, terminate this Agreement by giving not less than
nine (9) months' notice to "the Government". Such termination shall be
without prejudice to any obligation or liability incurred by the
Company hereunder prior to the effective date of such termination.
28. GOVERNMENT'S RIGHT TO TERMINATE AGREEMENT:
(a) "The Government" may, subject to the provisions of this paragraph,
terminate this Agreement if any of the following events shall occur:-
(i) The Company shall fail to make any of the payments described in
this Agreement on the payment date;
(ii) The Company shall contravene or fail to comply with any other
conditions of this Agreement; or
(iii) The Company shall become insolvent or bankrupt to enter into any
agreement or composition with its creditors or take advantage of
any law for the benefit of debtors or go into liquidation,
whether compulsory or voluntary, except for the purposes of
reconstruction or amalgamation; or
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(iv) The Company makes a written statement to "the Government" on any
material matter in connection with this Agreement which the
Company knows is false or makes recklessly without due regard as
to whether it was true or false.
(b) If and whenever the Government decides there are grounds to terminate
this Agreement pursuant to clauses (i) and (ii) of preceding
sub-paragraph, "the Government" shall give the Company notice
specifying the particular contravention or failure and permit the
Company to remedy the same within three months of such notice, or such
longer period as the Secretary may specify in such notice as being
reasonable in the circumstances.
(c) If the Company shall fail to remedy any event specified in clauses (i)
and (ii) of sub-paragraph (a) of this Paragraph within the stated
period, or an event specified in clauses (iii) and (iv) of the said
sub-paragraph shall occur "the Government" may by notice to "the
Company" terminate this Agreement, provided that if the Company
disputes whether there has been any contravention or failure to comply
with the conditions hereof (including any dispute as to the
calculation of payments by the Company to the Government hereunder),
and the Company shall, within such period as aforesaid refer the
dispute to arbitration in accordance with Paragraph 35 hereof and,
thereafter, diligently prosecute its claim thereunder, "the
Government" shall not terminate this Agreement except as the same may
be consistent with the terms of the arbitration award.
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(d) No delay or omission or course of dealing by "the Government" shall
impair any of its rights hereunder or be construed to be a waiver of
any event specified in sub-paragraph (a) of this Paragraph or an
acquiescence therein.
(e) Upon termination of this Agreement by "the Government" every right of
the Company hereunder shall cease (save as otherwise specifically
provided hereunder) but subject nevertheless and without prejudice to
any obligation or liability imposed or incurred under this Agreement
prior to the effective date of termination and to such rights as "the
Government" may have under law.
29 ASSETS ON TERMINATION OR EXPIRATION:
(a) Upon the termination or expiration of this Agreement, immovable assets
of the Company in the Mining Area and all other appurtenances, pits,
trenches and boreholes shall become the property of "the Government"
without charge on the effective date of the termination or expiration.
(b) All materials, supplies, vehicles and other movable assets of the
Company in the Mining Area which are fully depreciated for tax
purposes, shall become the property of the Government without charge
on the effective date of termination or expiration. Any such property
which is not then fully depreciated for tax purposes shall be offered
for sale to The Government within sixty days from the effective date
of such termination or expiration at the depreciated cost. If the
Government shall not accept such offer within sixty days, the Company
may sell, remove or otherwise dispose of all such property during a
period of one hundred and eighty days after the expiration of such
offer. All such property not sold, removed or otherwise disposed of
shall become the property of "the Government" without charge.
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(c) Notwithstanding the foregoing, the Secretary, may by notice to the
Company require the removal or destruction of any assets of the
Company in the Mining Area and if the Company does not remove or
destroy such assets within a period of thirty days from the date of
the Secretary's notice to that effect, the Secretary shall cause such
removal or destruction at the expense of the Company.
(d) The Company shall take all reasonable measures to ensure that all of
the assets to be offered for sale to "the Government" or transferred
to "the Government" in accordance with this Paragraph shall be
maintained in substantially the same condition in which they were at
the date of the termination or the date on which the Company
reasonably knew that such termination would occur and any such assets
shall not be disposed of, dismantled or destroyed except as
specifically provided for in this Paragraph.
(e) Upon the termination or expiration of this Agreement, The Company
shall leave the Mining Area and everything thereon in a good
condition, having regard to the ecology, conservation, reclamation,
environmental protection, drainage and safety provided however that
the Company shall have no obligation in respect of areas where the
Company has not undertaken any work or which have not been affected by
the Company's operations. In this connection, unless the Chief
Inspector of Mines otherwise directs, "The Company" shall, in
accordance with good mining practice, fill up or fence and make safe
all holes and excavations to the reasonable satisfaction of the Chief
23
Inspector of Mines. In addition the Company shall take all reasonable
measures to leave the surface of the Mining Area in useable condition
and to restore all structures thereon not the property of the Company
to their original condition. In the event that the Company fails to do
so, "the Secretary" shall restore and make the Mining Area and
everything there safe at the expense of the Company.
(f) The Company shall have the right to enter upon the Mining Area for the
aforesaid purposes, subject to the rights of surface owners or others,
for a period of six months from the effective date of the termination
or such longer period as the Secretary may decide.
30. FORCE MAJEURE:
(a) All obligations on the part of the Company to comply with any of the
conditions hereof (except the obligation to make payment of monies due
to the Government) shall be suspended during the period the Company is
prevented by force majeure from fulfilling such obligations, the
Company having taken all reasonable precautions, due care and
reasonable alternative measures with the objective of avoiding such
non-compliance and of carrying out its obligations hereunder. The
Company shall take all reasonable steps to remove such causes of the
inability to fulfill the terms and conditions hereof with the minimum
of delay.
(b) For the purpose of this paragraph, force majeure includes government
restraints not arising from the non-compliance by the Company with the
conditions herein, acts of God, war, strikes, insurrection, riots,
earthquakes, storm, flood or other adverse weather conditions or any
other event which the Company could not reasonably be expected to
prevent or control, but shall not include any event caused by a
failure to observe good mining practices or by the negligence of the
Company or any of its employees or contractors.
24
(c) The Company shall notify the "Secretary" within forty-eight hours of
any event of force majeure affecting its ability to fulfil the
conditions hereof or of any events which may endanger the natural
resources of Ghana and similarly notify the Government of the
restoration of normal conditions within forty-eight hours thereof.
This provision shall be in addition to the requirements of the Mining
Regulations.
(d) The terms of this Agreement shall be extended for a period of time
equal to the period or periods during which the Company was affected
by conditions set forth in paragraph (a) and (b) of this sub-paragraph
or for such period as may be agreed by the parties.
31. POLITICAL ACTIVITY:
The Company shall not engage in political activity of any kind in Ghana
or make a donation, gift or grant to any political party. The Company
shall make it a condition of employment that no employee, other than a
citizen of Ghana shall engage in political activity and shall not make
donations, gifts or grants to any political party. In the event of any
such employee acting in disregard to this condition, he shall be
dismissed forthwith.
32. ADVERTISEMENTS, PROSPECTUSES, ETC.
Neither "the Company" nor any affiliated Company shall in any manner
claim or suggest, whether expressly or by implication that "the
Government" or any agency or official thereof, has expressed any
opinion with respect to gold in the Mining Area and a statement to this
effect shall not be included in or endorsed on any prospectus notice,
circular, advertisement, press release or similar document issued by
the Company or any Affiliated Company for the purpose of raising now
capital.
25
33. CO-OPERATION OF THE PARTIES:
Each of the parties hereto undertake that it will from time to time do
all such acts and make, enter into, execute, acknowledge and deliver at
the request of the other party, such supplemental or additional
instruments, documents, agreements, consents or otherwise as may be
reasonably required for the purpose of implementing or assuring the
rights and obligations of the other party under this Agreement.
34. NOTICE:
Any application, notice, consent, approval, direction, instruction or
waiver hereunder shall be in writing and shall be served by hand or by
registered mail. Delivery by hand shall be deemed to be effective at
such time as it would in the ordinary course of registered mail be
delivered to the addressee.
35. ARBITRATION AND SETTLEMENT OF DISPUTES:
(a) Any dispute or differences between the parties arising out of or in
connection with this Agreement or any agreed variation thereof or in
respect of the interpretation or enforcement of the provisions of this
document or any agreed variation or as to the rights, duties or
liabilities of either party shall unless the parties agree to submit
to any procedures available in Ghana for the settlement of such
dispute be submitted at the instance of any party to the jurisdiction
of the International Centre for the Settlement of Investment Disputes
for settlement by reconciliation or arbitration pursuant to the
Convention on the Settlement of Investment Disputes between States and
Nationals of other States.
26
(b) The Parties acknowledge and agree that this Agreement was made on the
basis of the laws and conditions prevailing at the date of effective
conclusion of the negotiation of this Agreement and accordingly if
thereafter, new laws and conditions come into existence which unfairly
affect the interest of either party to this Agreement then the party
so unfairly affected shall be entitled to request a re-negotiation and
the parties shall thereupon re-negotiate. The parties hereby undertake
and covenant with each other to make every effort to agree,
co-operate, negotiate and to take such action as may be necessary to
remove the causes of unfairness or disputes.
36. ASSIGNMENT AND TRANSFER OF STOCK:
(a) This Agreement shall not be assignable in whole or in part by the
Company without the consent of "the Government".
(b) "The Government" may impose such conditions precedent to the giving of
such consent as it may deem appropriate in the circumstances. No
assignment, however, may relieve the Company of its obligations under
this Agreement except to the extent that such obligations are actually
assumed by the Assignee.
(c) During the term of this Agreement, no shares of the capital stock of
the Company may be transferred without the prior consent in writing of
"the Government" unless such a transfer will not result in a change in
control of the Company.
27
37. HEADINGS:
The headings given to paragraphs in this Agreement are for convenience
only and shall not affect the construction or interpretation of this
Agreement.
38. GOVERNING LAWS:
This Agreement shall be governed and construed in accordance with the
Laws for the time being in force in Ghana.
28
THE SCHEDULE ABOVE REFERRED TO
All that area covering approximately 50 square kilometres lying
between latitutde 5 32' 30" West and latitude 5 37' 30" West and
longitude 2 05' North and 1 58' 30" North in Bogosu - Western Region
of Ghana which piece of land is more particularly delineated on the
plan annexed hereto for the purpose of identification and not of
limitation.
IN WITNESS WHEREOF the party of the first part has hereunto set his hand and
affixed the seal of the Ministry of Lands and Natural Resources and the party
hereto of the second part has hereunto caused its common Seal to be affixed the
day and year first above written.
SIGNED, SEALED AND DELIVERED:
THE REPUBLIC OF GHANA
BY: Xxxxxxx Xxxxx Xxxxxx
-----------------------------------------
Secretary responsible for and
on behalf of the Government of
Ghana who by his execution
warrants to the other parties [illegible signature]
that he is duly authorized and -------------------------------
empowered to enter into
this Agreement.
In the presence of: [illegible signature]
-------------------------------
Name: Xxxx Xxxxx-Kena
Address: Ministry of Lands and
Natural Resources
29
CANADIAN BOGOSU RESOURCES LIMITED.
[illegible signature]
-------------------------------
Director
In the Presence of [illegible signature]
-------------------------------
Name: Benoni [illegible]
Address: X.X. Xxx 00000, Xxxxxxx, Xxxxx
OATH OF PROOF
I, XXXX. XXXXX-XXXX of ACCRA make oath and say that on the 21st day of August
1987 I was present and saw XXXXXXX XXXXX XXXXXX duly execute the Instrument now
produced to me and marked "A" and that the said XXXXXXX XXXXX XXXXXX can read
and write.
SWORN at Accra, this 30th day ) [illegible signature]
of September One Thousand ) D E P O N E N T
Nine Hundred and Eighty-Seven (1987) )
BEFORE ME
[illegible signature]
REGISTRAR OF LANDS
CERTIFICATE OF PROOF
On the 30th day of September 1987 at 11:30 o'clock in the morning this
Instrument was proved before me by the Oath of the within-named XXXX. XXXXX-XXXX
to have been duly executed by the within-named XXXXXXX XXXXX XXXXXX for and on
behalf of "the Government" of the Republic of Ghana the Lessor herein.
[illegible signature]
REGISTRAR OF LANDS
30
GOLD MINING LEASE AREA
FOR CANADIAN BOGOSU RESOURCES LIMITED
SITUATE AT BOGOSU
SHEWN EDGED PINK
AREA = 50 SQUARE KILOMETRES APPROX.
[MAP]
[graphic omitted]
