Western Australian Numbered Acts Western Australian Numbered Acts After Schedule 2
insert:
Schedule 3 -- Termination agreement
[s. 3]
2017
THE HONOURABLE MARK McGOWAN
PREMIER OF THE STATE OF WESTERN AUSTRALIA
and
BURU ENERGY LIMITED
ACN 130 651 437
DIAMOND RESOURCES (FITZROY) PTY LTD
ACN 145 113 177
DIAMOND RESOURCES (CANNING) PTY LTD
ACN 145 113 186
and
MITSUBISHI CORPORATION
NATURAL GAS (CANNING BASIN JOINT VENTURE) AGREEMENT 2012
TERMINATION AGREEMENT
[Solicitor's details]
THIS AGREEMENT is made this 27 th day of November 2017
BETWEEN
THE HONOURABLE MARK McGOWAN , BA LLB, M.L.A., Premier of the State of Western
Australia, acting for and on behalf of the said State and its
instrumentalities from time to time ( State ) of the one part,
AND
BURU ENERGY LIMITED ACN 130 651 437 of Level 2, 16 Ord Street, West
Perth, Western Australia, DIAMOND RESOURCES (FITZROY) PTY LTD ACN
145 113 177 of Level 36, 120 Collins Street, Melbourne, Victoria and
DIAMOND RESOURCES (CANNING) PTY LTD ACN 145 113 186 of Level 36, 120
Collins Street, Melbourne, Victoria (hereinafter collectively called the Joint
Venturers in which term shall be included their successors and permitted
assigns) of the second part
AND
MITSUBISHI CORPORATION of 3-1, Marunouchi 2-Chome, Chiyoda-Ku, Tokyo, Japan (
Guarantor ) of the third part.
WHEREAS:
A. The State, the Joint Venturers and the
Guarantor are now the parties to the agreement dated
7 November 2012, which agreement was ratified by the
Natural Gas (Canning Basin Joint Venture) Agreement Act 2013 (WA), and
as varied by agreement dated 1 July 2015 is referred to in this
Agreement as the Principal Agreement .
B. The State, the Joint Venturers and the
Guarantor wish to terminate the Principal Agreement in the manner and on the
terms set out in this Agreement.
NOW THIS AGREEMENT WITNESSES:
1. Definitions
In this Agreement subject to the context:
Operative Date has the meaning given in clause 3(2).
Petroleum Act means the Petroleum and Geothermal Energy Resources
Act 1967 (WA).
Petroleum Minister means the Minister responsible for the administration of
the Petroleum Act.
Petroleum Titles has the same meaning as in the Principal Act and at the date
of this Agreement comprises the titles listed in the Schedule.
Ratifying Act means the Act of the Parliament of Western Australia to ratify
this Agreement referred to in clause 3.
this Agreement , hereof and hereunder refer to this Agreement, whether in its
original form or as from time to time added to, varied or amended.
2. Interpretation
In this Agreement:
(a)
clause headings do not affect interpretation or construction;
(b)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(c) a
reference to one gender includes the other genders;
(d) a
covenant or agreement by more than one person binds, and is enforceable
against, those persons jointly and each of them severally;
(e) a
reference to a "person" includes a body corporate;
(f) a
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder;
(g) a
reference to any document includes that document as from time to time added
to, varied or amended and notwithstanding any change in the identity of the
parties;
(h) a
reference to a clause or schedule is a reference to a clause in or schedule to
this Agreement, and a reference to a subclause or paragraph is a reference to
the subclause of the clause or paragraph of the clause or subclause as the
case may be in, or in relation to, which the reference is made;
(i)
a reference to this Agreement includes all recitals,
schedules and annexures; and
(j)
"including" means "including, but not limited to".
3. Ratification and operation
(1) This Agreement,
other than this clause and clauses 1 and 2, does not come into operation
except in accordance with subclause (2).
(2) This Agreement,
other than this clause and clauses 1 and 2, comes into operation on the
day after the date on which it is ratified by an Act of the Parliament of
Western Australia ( Operative Date ) unless, before that day, it terminates
under subclauses (4) or (5).
(3) The State must
introduce in the Parliament of Western Australia before
31 March 2018, or a later date agreed between the parties to this
Agreement, a Bill to ratify this Agreement and must endeavour to secure its
passage as an Act.
(4) If by
31 December 2018 or such later date agreed between the parties to
this Agreement, this Agreement has not been ratified by an Act of the
Parliament of Western Australia then, unless the parties to this Agreement
otherwise agree, this Agreement terminates on that day and no party hereto
will have any claim against any other party hereto with respect to any matter
or thing arising out of, done, performed, or omitted to be done or performed
under this Agreement.
(5) The parties agree
that if the Principal Agreement is otherwise determined in accordance with its
provisions on a day prior to the Operative Date, then this Agreement shall
also terminate on and from that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
4. Termination of Principal Agreement
(1) Subject to this
clause, the Principal Agreement is hereby terminated with effect on and from
the Operative Date and, except as otherwise provided in this Agreement,
neither the State nor the Joint Venturers shall have any claim against the
other with respect to any matter or thing in or arising out of the Principal
Agreement.
(2) Notwithstanding
subclause (1) the Joint Venturers shall remain liable for any antecedent
breach or default under the Principal Agreement and in respect of any
indemnity given under the Principal Agreement.
(3) Notwithstanding
subclause (1) the Guarantor shall remain liable in respect of any
guarantee given under the Principal Agreement in relation to any antecedent
breach or default by Diamond Resources (Fitzroy) Pty Ltd or Diamond Resources
(Canning) Pty Ltd under the Principal Agreement.
(4) On and from the
Operative Date:
(a) each
Petroleum Title shall continue in force only under and, except as provided in
this subclause, subject to the provisions of the Petroleum Act and, for the
avoidance of doubt, each Petroleum Title shall cease to have the benefit of
the rights and privileges conferred by, and be subject to the obligations or
restrictions imposed by, the Principal Agreement;
(b) any
modification of the Petroleum Act made by the Principal Agreement in relation
to a Petroleum Title shall cease to apply and each Petroleum Title shall
continue in force under and subject to the Petroleum Act for the balance of
its term as extended in accordance with paragraphs (c) and (d) below;
(c) the
State shall cause the Petroleum Minister to enter as soon as reasonably
practicable a memorial in the register referred to in section 70 of the
Petroleum Act recording that Petroleum Titles EP 371, EP428, EP431 and EP 436
shall continue in force until 30 July 2023 and the year end for each
work requirement relating to these titles shall be suspended and extended for
the additional period of 4 years and such extension of the term of the
titles and variation of work requirements shall be effective for all purposes
on and from the date of entry of the memorial in the register;
(d) the
State shall cause the Petroleum Minister to enter as soon as reasonably
practicable a memorial in the register referred to in section 70 of the
Petroleum Act recording that Petroleum Title EP 391 shall continue in force
until 31 January 2024 and the year end for each work requirement
relating to this title shall be suspended and extended for the additional
period of 4 years and such extension of the term of the title and
variation of work requirement shall be effective for all purposes on and from
the date of entry of the memorial in the register;
(e) in
relation to the STP-LNA-0006 declaration of location over the Valhalla-Asgard
Field affecting Petroleum Title EP371 the period in which application may be
made for a retention lease under section 48A of the Petroleum Act or a
production licence under section 50 of the Petroleum Act shall end on
30 June 2021; and
(f) for
the avoidance of doubt, clauses 39 and 45 of the Principal Agreement will
not survive termination of the Principal Agreement.
(5) On and from the
Operative Date the Joint Venturers will indemnify and keep indemnified the
State and the State's employees, agents and contractors in respect of all
actions, suits, claims, demands or costs of third parties arising out of or in
connection with any work carried out by the Joint Venturers pursuant to the
Principal Agreement or relating to its operations under the Principal
Agreement or arising out of or in connection with the construction,
maintenance or use by the Joint Venturers or their employees, agents,
contractors, assignees or sublessees of the Joint Venturers' works or services
the subject of the Principal Agreement. This indemnity shall remain in force
for a period ending on the date which is 20 years after the Operative
Date.
5. Mitsubishi Corporation guarantee of
subsidiaries' performance
The Guarantor hereby guarantees to the State the due performance by each of
Diamond Resources (Fitzroy) Pty Ltd and Diamond Resources (Canning) Pty Ltd of
all of their obligations under this Agreement.
6. Applicable law and submission to jurisdiction
This Agreement is to be interpreted according to the law for the time being in
force in the State of Western Australia and the parties to this Agreement
submit to the jurisdiction of the courts of Western Australia in relation to
any action or proceeding to settle any dispute or question arising out of or
in connection with this Agreement.
SCHEDULE
Petroleum Titles
Petroleum Exploration Permits No.
Blocks
EP371*
45
EP391
26
EP428
79
EP431
52
EP436
30
•
*Includes STP-LNA-0006 Declaration of Location over the
Valhalla-Asgard Field
EXECUTED as a deed.
|
SIGNED by the HONOURABLE MARK McGOWAN in the presence of: |
) |
|
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EXECUTED by BURU ENERGY LIMITED ACN 130 651 437 in accordance
with section 127 of the Corporations Act 2001 (Commonwealth):
|
) |
[Signature] |
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EXECUTED by DIAMOND RESOURCES (FITZROY) PTY LTD ACN 145 113 177 in
accordance with section 127 of the Corporations Act 2001
(Commonwealth): Masashi Shiraishi |
) |
[Signature] Tadashi Hara |
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EXECUTED by DIAMOND RESOURCES (CANNING) PTY LTD ACN 145 113 186 in
accordance with section 127 of the Corporations Act 2001
(Commonwealth): Masashi Shiraishi |
) |
[Signature] Tadashi Hara |
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SIGNED for and on behalf of MITSUBISHI CORPORATION in the presence of:
Tadashi Hara |
) |
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By Authority: KEVIN J. McRAE, Government Printer