THIS AGREEMENT is made the 15th day of October 2001
BETWEEN
THE HONOURABLE GEOFFREY IAN GALLOP BEc, MA, MPhi1, DPhi1, MLA, Premier of the State of Western Australia, acting for and on behalf of the said State and its instrumentalities from time to time (hereinafter called “the State”) of the one part
CAPRICORN DIAMONDS LIMITED ACN 009 102 621, ASHTON ARGYLE HOLDINGS PTY LIMITED ACN 083 175 991 and AML NOMINEES LIMITED ACN 006 378 329 each of 2 Kings Park Road, West Perth, Western Australia (hereinafter called “the Joint Venturers”) of the other part
WHEREAS:
(a) the State and the Joint Venturers are now the parties to the agreement ratified by the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 which agreement has been varied by the agreement ratified by the Diamond (Ashton Joint Venture) Agreement Amendment Act 1983 and which (as so varied) is hereinafter called “the Principal Agreement”;
(b) pursuant to Clause 18 of the Principal Agreement Mining Lease No. 275SA (hereinafter called “the Ellendale Mining Lease”) has been granted in respect of the area defined in the Principal Agreement as the Ellendale mining area; and
(c) the Joint Venturers desire to sell the Ellendale Mining Lease and for such purpose the parties hereto desire to further vary the Principal Agreement and the Ellendale Mining Lease as provided herein.
NOW THIS AGREEMENT WITNESSES —
Subject to the context words and phrases used in this Agreement have the same meanings respectively as they have in and for the purpose of the Principal Agreement.
The State shall introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act prior to 30 June 2002 or such later date as the parties hereto may agree.
(1) The provisions of this Agreement other than this Clause and Clauses 1 and 2 shall not commence to operate until the Bill referred to in Clause 2 has been passed by the Parliament of Western Australia and comes into operation as an Act.
(2) If before 30 June 2002 or such later date as may be agreed pursuant to Clause 2 the said Bill has not come into operation as an Act then unless the parties hereto otherwise agree this Agreement shall cease and determine and no party hereto shall 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.
(3) On the said Bill coming into operation as an Act all provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law.
In clauses 5 and 6 of this Agreement, “Sale Date” means the date on which the Ellendale Mining Lease is transferred by the Joint Venturers to —
(a) Kimberley Diamond Company NL (ACN 061 899 634) pursuant to the Asset Sale Agreement dated 5 September 2001 and made between Argyle Diamond Mines Pty Limited (ACN 008 912 418) as manager for the Argyle Diamond Mines Joint Venture, the Joint Venturers and the said Kimberley Diamond Company NL;
(b) any other party that the Minister responsible for the administration of the Principal Agreement shall consent to.
Subject to Clause 6 of this Agreement, the Principal Agreement and the Ellendale Mining Lease are respectively varied with effect on and from the Sale Date as follows —
(A) The Principal Agreement:
(1) Clause 1 —
(a) by deleting the definition of “Ellendale mining area”;
(b) in the definition of “mining leases” —
(i) by amending the definition to be a definition of “mining lease”;
(ii) by deleting “or mining leases”; and
(iii) by deleting “Clauses 15 and 18” and substituting the following —
“Clause 15”;
(c) in the definition of “ore”, by deleting “leases” and substituting the following —
“lease”;
(d) in the definition of “relevant town” —
(i) by deleting “and the Ellendale mining area respectively”; and
(ii) by deleting “in either case”.
(2) by deleting Clause 9.
(3) by deleting Clause 18.
(4) by deleting Clause 19.
(5) Clause 20 —
by deleting “or the Ellendale mining area”.
(6) Clause 21 —
(i) by deleting subclause (2);
(ii) in subclause (3), by deleting “subclauses (1) and (2)” and substituting the following —
“subclause (1)”.
(7) by deleting Clause 23.
(8) Clause 24A —
(i) by deleting “and the Ellendale mining area respectively”; and
(ii) by deleting “relevant” in both cases where it occurs in paragraph (a).
(9) Clause 32 —
(10) Clause 37(1)(a) —
(11) Clause 37(2) —
(12) Clause 37(3)(a)
(13) Clause 41(1)(a)(i) —
(14) Clause 42 —
in subclauses (1)(a) and (2), by deleting “leases” and substituting the following —
(i) by deleting “(except as otherwise provided by the Agreement described in the Second Schedule to this lease)”.
(ii) by deleting “subject to the Agreement”.
(iii) by deleting “except as otherwise provided by the Agreement”.
(iv) by deleting “for the time being and from time to time” and substituting the following —
“and royalties for the time being and from time to time respectively”.
(v) by deleting “and the royalties as provided in the Agreement with the right during the currency of the Agreement and in accordance with the provisions of the Agreement to take successive renewals of the term each for a further period of 21 years upon the same terms and conditions subject to the sooner determination of the said term upon cessation or determination of the Agreement PROVIDED ALWAYS that this lease and any renewal thereof shall not be determined or forfeited otherwise than in accordance with the Agreement.”.
(3) by deleting the Second Schedule.
(4) by inserting at the end of the Third Schedule the following —
“The boundary of the land being identical to the external boundaries of the following former contiguous surveyed mineral claims:
04/2230
04/2277
04/2308
04/2731
04/10420
04/10439
04/2231
04/2278
04/2309
04/2732
04/10421
04/10440
04/2232
04/2279
04/2310
04/2733
04/10422
04/10441
04/2233
04/2283
04/2311
04/2736
04/10423
04/10442
04/2234
04/2284
04/2419
04/5270
04/10424
04/10443
04/2235
04/2285
04/2420
04/9016
04/10425
04/10444
04/2236
04/2286
04/2421
04/9022
04/10426
04/10445
04/2238
04/2287
04/2470
04/9023
04/10427
04/10446
04/2239
04/2289
04/2471
04/9024
04/10428
04/10447
04/2240
04/2290
04/2472
04/9025
04/10429
04/10448
04/2241
04/2291
04/2474
049028
04/10430
04/10449
04/2242
04/2292
04/2475
04/9029
04/10431
04/10450
04/2243
04/2293
04/2476
04/9030
04/10432
04/10451
04/2244
04/2302
04/2477
04/9031
04/10433
04/10452
04/2246
04/2303
04/2480
04/10415
04/10434
04/10456
04/2247
04/2304
04/2481
04/10416
04/10435
04/10457
04/2249
04/2305
04/2582
04/10417
04/10436
04/10458
04/2250
04/2306
04/2583
04/10418
04/10437
04/10735
04/2269
04/2307
04/2584
04/10419
04/10438
04/10736.”.
(5) by deleting Conditions 8 and 9 of the Schedule of Conditions attached to the lease.
From and including the Sale Date the Ellendale Mining Lease (as amended by this Agreement) shall continue in force and effect under and subject to the Mining Act 1978 (notwithstanding the provisions of section 73 of that Act restricting the area of land in respect of which a mining lease may be granted) and the provisions of the Principal Agreement shall no longer apply to the Ellendale Mining Lease which shall thenceforth be assigned to the West Kimberley Mineral Field and be designated Mining Lease 04/372 on the tenement register maintained under the Mining Act 1978 in lieu of the designation Mining Lease No. 275SA.
If the transfer of the Ellendale Mining Lease referred to in Clause 4 of this Agreement is not effected by 31 December 2002 or such later date as the parties hereto may agree, this Agreement shall on that date cease and thenceforth have no effect.
IN WITNESS WHEREOF this Agreement has been executed by the parties as a Deed.
SIGNED by THE HONOURABLE )
GEOFFREY IAN GALLOP in the ) Geoff Gallop