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DEED OF RELEASE
HIGHLANDS PACIFIC LIMITED
RAMU NICKEL LIMITED
AND
NORD PACIFIC LIMITED
NORD AUSTRALEX NOMINEES (PNG)
LIMITED
Gadens Lawyers
Level 39
Central Plaza One
345 Queen Street
BRISBANE QLD 4000
Telephone: 3231-1666
Facsimile: 3229-5850
981690
FCH
CLAUSE |
HEADING |
PAGE |
1. |
DEFINITIONS AND INTERPRETATION |
30 |
2. |
CONDITION PRECEDENT |
34 |
3. |
SALE AGREEMENT |
34 |
4. |
RELEASE BY NORD PACIFIC AND NORD |
34 |
5. |
RELEASE BY HPL AND RNL |
35 |
6. |
NO ADMISSION OF LIABILITY |
36 |
7. |
REPRESENTATIONS & WARRANTIES |
36 |
8. |
CONFIDENTIALITY |
37 |
9. |
ADMINISTRATIVE PROVISIONS |
37 |
DATED:
26 November, 1999PARTIES
BACKGROUND
OPERATIVE PROVISIONS
20. DEFINITIONS AND INTERPRETATION
20.1 In this Deed unless the context otherwise requires:
"Business Days"
"Commencement of Commercial Production" means the last day of the calendar month in which for the first time:
(a) the Refinery treats nickel and cobalt ore from the Special Mining Lease at an average daily rate over the month equivalent to 80% of the target rate set out in the Feasibility Study; and
(b) the recovery rates for LME grade nickel cathode and cobalt product from the ore treated by the Refinery during that month are not less than 74% and 70% respectively.
"Completion" means the completion of the sale and purchase of the Sale Interest in accordance with clause 5 of the Sale Agreement.
"Financial Close" means the date upon which the lender or lenders under the Project Financing have given an irrevocable commitment in writing to provide the Project Financing, subject only to conditions precedent to drawdown imposed as a term of the Project Financing.
"Kina Equivalent" means, in respect of a particular US$ amount on a particular date, the amount of kina required to purchase that amount of US$ at the average of the US$/Kina exchange rate quoted by Australia and New Zealand Banking Group (PNG) Limited (or any successor or replacement bank) at the close of currency trading by that bank on each of the five Business Days prior to that date.
"National Court Proceedings" means the proceedings commenced on behalf of RNL in the National Court at Waigani in Papua New Guinea commenced by way of Originating Summons number OS 435/99 filed on 13 August 1999 and referred to in Recital D.
"OML" means Orogen Minerals Limited;
"OMR" means Orogen Minerals (Ramu) Limited, a wholly owned subsidiary of Orogen Minerals Limited;
"Payment One" means the payment of the Kina Equivalent of US$250,000 to be paid by OMR at Completion to RNL on behalf of Nord;
"Payment Two" means the payment of the Kina Equivalent of US$500,000 to be paid by OMR five Business Days after Financial Close to RNL on behalf of Nord;
"Payment Three" means the payment of the Kina Equivalent of US$500,000 at the Commencement of Commercial Production to be paid by OMR five Business Days after Commencement of Commercial Production to RNL on behalf of Nord;
"Project Financing" means the financing approved by the Operating Committee of the Ramu Joint Venture from time to time in accordance with the Joint Venture Agreement, and obtained by the participants in the Ramu Joint Venture for the purpose of implementing the Ramu Nickel Project (but for the avoidance of doubt does not include any finance obtained by a participant individually for such purpose or to finance payment or performance of its obligations under the Ramu Joint Venture Agreement);
"Ramu Joint Venture" means the unincorporated joint venture established by the Ramu Joint Venture Agreement;
"Ramu Joint Venture Agreement" means the agreement dated 17 November 1978 between Carpentaria Exploration Company Pty Ltd, Nord Exploration Company (Pty.) Limited and Eastern Pacific Mines Pty. Limited, as amended by a Deed of Variation dated 28 November 1986 between Carpentaria Exploration Company Pty Ltd, Nord Exploration Company (Pty.) Limited, Nord Australex Nominees (PNG) Pty Ltd and Eastern Pacific Mines Pty. Limited and by Agreement dated 14 May 1992 between Highlands Gold Properties Pty Limited, Nord Exploration Company (Pty.) Limited, Nord Australex Nominees (PNG) Pty Ltd and Eastern Pacific Mines Pty. Limited.
"Ramu Nickel Project" means the project to be established and undertaken by the Ramu Joint Venture involving:
"Related Entity" means ``related entity'' , in relation to a body corporate, means any of the following:
(a) a promoter of the body;
(b) a relative, or de facto spouse, of such a promoter;
(c) a relative of a spouse, or of a de facto spouse, of such a promoter;
(d) a director or member of the body or of a related body corporate;
(e) a relative, or de facto spouse, of such a director or member;
(f) a relative of a spouse, or of a de facto spouse, of such a director or member;
(g) a body corporate that is related to the first-mentioned body;
(h) a beneficiary under a trust of which the first-mentioned body is or has at any time been a trustee;
(i) a relative, or de facto spouse, of such a beneficiary;
(j) a relative of a spouse, or of a de facto spouse, of such a beneficiary;
(k) a body corporate one of whose directors is also a director of the first-mentioned body;
(l) a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first-mentioned body because of any other application or applications of this definition;
"Sale Agreement" means the agreement dated on or about the date of this Deed under which Nord has agreed to sell and OMR has agreed to purchase the Sale Interest on the terms and conditions set out in that agreement.
"Sale Interest" means the whole of Nord's right, title and interest in the Ramu Joint Venture, including, but not limited to, information, plans, specifications, designs and other intellectual property and an interest as a tenant in common in the Tenements;
"Tenements" means Exploration Licences 193, 1178, 1226 and 1247.
20.2 In this Deed unless the context otherwise requires:
reference to a person includes any other entity recognised by law and vice versa;
the singular includes the plural and vice versa;
one gender includes every gender;
reference to party includes their executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
an agreement, representation or warranty on the part of two or more persons binds each and all of them;
an agreement, representation or warranty in favour of two or more persons if for the benefit of each and all of them;
clause headings are for reference purposes only;
reference to an Item is a reference to an Item in the Schedule to this Deed.
This Deed is conditional upon Completion occurring under the Sale Agreement. If the Sale Agreement is terminated before it is completed, this Deed shall have no force or effect.
22.1 Pursuant to clause 3 of the Sale Agreement the purchase price for the Sale Interest consists of:
22.2 Upon receipt by RNL of Payment One
22.3 In consideration for RNL waiving its pre-emptive rights under the Ramu Joint Venture Agreement and agreeing to release Nord and Nord Pacific in accordance with clause 24, Nord Pacific and Nord release HPL and RNL from all claims in the manner set out in clause 23.
23. RELEASE BY NORD PACIFIC AND NORD
23.1 Subject to clause 4.2 below,
23.2 Nothing in clause 4.1 shall operate to release HPL or RNL from any liability to Nord or Nord Pacific or to prevent Nord or Nord Pacific or both of them from instituting any proceedings against HPL and / or RNL to the extent that either or both of Nord Pacific and Nord has any liability to any third party (other than a third party that is a Related Entity to Nord or Nord Pacific) arising howsoever out of any conduct of or act or omission by HPL or RNL in connection with the Ramu Joint Venture; their respective participation in the Ramu Joint Venture including as Operator of the Joint Venture; the Ramu Joint Venture Agreement and the Ramu Nickel Project.
24.1 Subject to clause 5.2 below, upon receipt of Payment One:
24.2 Nothing in clause 5.1 shall operate to release Nord or Nord Pacific from any liability to HPL or RNL or to prevent HPL or RNL or both of them from instituting any proceedings against Nord and / or Nord Pacific to the extent that either or both of HPL and RNL has any liability to any third party (other than a third party that is a Related Entity to HPL and / or RNL) arising howsoever out of any conduct of or act or omission by Nord or Nord Pacific in connection with the Ramu Joint Venture; their respective participation in the Ramu Joint Venture including as Operator of the Joint Venture; the Ramu Joint Venture Agreement and the Ramu Nickel Project.
None of the parties admit any liability to the others in relation to Ramu Joint Venture or the Ramu Joint Venture Agreement.
26. REPRESENTATIONS & WARRANTIES
Nord, Nord Pacific, HPL and RNL each represent and warrant that they:
Except for disclosure required by law or the rules of any Stock Exchange on which any of the parties is listed, the parties to this Deed agree and undertake that they will not disclose the terms of this Deed to any other person except to their own legal and financial advisers.
28. BENEFIT OF DEED TO OML AND OMR
The parties acknowledge that this Deed is also intended to benefit OML and OMR, and may be pleaded as a bar to any action, suit or proceeding commenced at present or taken at any time in the future by HPL or RNL in relation to the interest in the Ramu Joint Venture sold by Nord to OMR pursuant to the Sale Agreement, provided that OMR has made payments to HPL or RNL as required by the Sale Agreement.
29.1
Variation or amendmentNo variation, addition to, deletion from or cancellation of this Deed shall be effective unless in writing and signed by or on behalf of the parties.
29.2
Notices29.3
Stamp Duty, Costs & Interest29.4
Governing LawThis Deed will be governed by the laws of the Independent State of Papua New Guinea. The parties submit to the non-exclusive jurisdiction of the courts of the Independent State of Papua New Guinea.
29.5
WaiverThe failure or omission of a party at any time to:
will not operate as a waiver of them or the rights of a party, whether express or implied, arising under this Deed.
29.6
Further AssuranceEach party must sign, execute and complete all additional documents which may be necessary to effect, perfect, or complete the provisions of this Deed and the transactions to which it relates.
29.7
SeverabilityIf any part of this Deed is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of the Deed will not be affected and this Deed will be read as if the part had been deleted in that jurisdiction only.
29.8
Entire Understanding29.9
No MergerThe obligations contained in this Deed will continue until satisfied in full.
29.10
Execution by CounterpartsThis Deed may consist of one or more counterpart copies and all counterparts will, when taken together, constitute the one document.
EXECUTED as a Deed.
THE COMMON SEAL of HIGHLANDS PACIFIC LIMITED was duly affixed to this document by authority of its board of directors in the presence of:
M A Egert M A Egert |
) ) ) ) ) |
Ian R Holzberger Ian R Holzberger |
THE COMMON SEAL of RAMU NICKEL LIMITED was duly affixed to this document by authority of its board of directors in the presence of:
M A Egert M A Egert |
) ) ) ) ) |
Ian R Holzberger Ian R Holzberger |
SIGNED, SEALED AND DELIVERED for and on behalf of NORD PACIFIC LIMITED by its duly authorised officer Patricia D Solano Patricia D Solano 604 Tyler Rd NW |
) ) ) )
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W Pierce Carson W Pierce Carson President & CEO _______________________________ |
THE COMMON SEAL of NORD AUSTRALEX NOMINEES (PNG) LIMITED was duly affixed to this document by authority of its board of directors in the presence of:
Ray W Jenner Ray W Jenner |
) ) ) ) ) |
W Pierce Carson W Pierce Carson |
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