EXHIBIT 10.7
AGREEMENT
This Agreement is made and entered into effective as of
the 26th day of February, 1997 (the"Effective Date") by and
among Freeport-McMoRan Copper & Gold Inc. ("FCX"); Bre-X
Minerals Ltd., on behalf of itself and its subsidiaries,
including without limitation, Dorchester Holdings B.V. and
Bre-X Minerals Amsterdam B.V. (collectively, "Bre-X"); PT
Askatindo Karya Mineral, onbehalf of itself and all persons
or entities claiming under or through any arrangement with
it (collectively, "PTAKM"); and PT Amsya Lyna, on behalf of
itself and all persons or entities claiming under or through
any arrangement with it (collectively, "PTAL") (Bre-X,
PTAKM, and PTAL being sometimes collectively referred to as
the "Current Owners") .
WITNESSETH
WHEREAS, Bre-X, through its majority stock ownership in
PT Westralian Atan Minerals ("Westralian"), controls the
Mineral Rights (as defined below) with respect to the Busang
I Site (asdefined below);
WHEREAS, Bre-X and PTAKM (the "Busang II Owners")
jointly own or control the Mineral Rights with respect to
the Busang II Site (as defined below);
WHEREAS, Bre-X and PTAL (the "Busang III Owners")
jointly own or control the Mineral Rights with respect to
the Busang III Site (as defined below);
WHEREAS, FCX has agreed to provide financial and
operational assistance for the further exploration for gold
and other minerals, and for the construction and operation
of the initial mine or mines, processing plants and
associated facilities to exploit such commercially viable
mineral resources as are located at the Busang II and Busang
III Sites, and under certain circumstances the Busang I
Site, with an initial production objective of 100,000 to
150,000 tonnes of ore per day (the"Planned Operations");
WHEREAS, FCX, the Busang II Owners and the Busang III
Owners int end to enter atransaction with respect to the
ownership and development of such sites and with respect to
the Planned Operations (the "Proposed Transaction"); and
WHEREAS, FCX, Bre-X, PTAKM and PTAL executed a "Heads
of Agreement" on February 16, 1997 outlining the basic terms
of the Proposed Transaction and now wish to enter into this
binding Agreement which supersedes the Heads of Agreement
and specifies the rights and obligations of the parties with
respect to the Proposed Transaction;
NOW, THEREFORE, for and in consideration of the mutual
covenants herein contained, and subject to the terms and
conditions hereof, it is agreed that:
1. Certain Definitions. In addition to the terms that
are defined elsewhere in this Agreement, the following terms
shall have the meanings set forth below:
"Budget" shall have the meaning assigned to such term
in Section 4(a) hereof.
"Busang II Owners" shall have the meaning assigned to
such term in the
Recitals hereof.
"Busang III Owners" shall have the meaning assigned to
such term in the Recitals hereof.
"Busang I Site" means those mineral exploration areas
located in the Province of East Kalimantan, Republic of
Indonesia over which Westralian holds Mineral Rights
pursuant to that certain Contract of Work dated as of
December 21, 1987 between Westralian and theGovernment.
"Busang II Site" and "Busang III Site" means those
mineral exploration areas located in the Province of East
Kalimantan, Republic of Indonesia that are currently
described in the draft sixth generation Contracts of Work
which have been initialed by the Busang II Owners and the
Busang III Owners, respectively, together with the Ministry,
and are awaiting Presidential Approvaland in certain
exploration permits previously issued to one or more of the
Busang II Owners and the Busang III Owners.
"Current Owners" shall have the meaning assigned to
such term in the Preamble hereof.
"Effective Date" means February 26, 1997.
"Exploration Period" shall have the meaning assigned to
such term in Section3 hereof.
"Government" means the Government of the Republic of
Indonesia or any duly authorized agency or subdivision
thereof.
"Implementing Agreements" include, without limitation
(i) a Joint Venture Agreement among FCX and the Busang II
Owners, (ii) a Joint Venture Agreement among FCX and the
Busang III Owners, (iii) Articles of Association for each of
the Operating Companies, (iv) one or more Operating
Agreements between an FCX affiliate, as the Operator, and
the Operating Companies, (v) Shareholders Agreements among
the owners of the Operating Companies, (vi) a Joint
Implementation Agreement among FCX, the Busang II Owners and
the Busang III Owners, (vii) an Option Agreement evidencing
the option provided for under Section 6 hereof and(viii)
such financing agreements, security agreements and other
related documents or instruments as may be necessary or
appropriate to accomplish the Proposed Transaction.
"Mineral Rights" means the exclusive rights to survey,
explore for, mine, develop, process, produce, own, store,
transport, market and sell or otherwise transfer all
minerals, along with all other rights incident thereto,
including without limitation all rights under all issued and
outstanding Kuasa Pertambangans ("KPs"), "SIPP" permits,
Contracts of Work (COWs) and other permits, authorizations
and approvals issued by the Government.
"Ministry" means the Ministry of Mines and Energy of
the Government.
"Operating Companies" means PT Busang II and PT Busang
III.
"Operator" shall have the meaning assigned to such term
in Section 5 hereof.
"Planned Operations" shall have the meaning assigned to
such term in the Recitals hereof.
"Proposed Transaction" shall have the meaning assigned
to such term in the Recitals hereof.
"PT Busang II" means the Indonesian limited liability
company referred to in Section 2(a) hereof.
"PT Busang III" means the Indonesian limited liability
company referred to in Section 2(b) hereof.
"Related Assets" means (i) all of Bre-X s materials,
supplies, equipment, inventories and structures located in
Province of East Kalimantan, Republic of Indonesia and (ii)
all geologic surveys, maps, exploration data, drill cores,
assay reports, engineering reports, consultant reports and
other proprietary and non-proprietary information in the
possession of or available to the Busang II Owners and the
Busang III Owners that are used or usable in connection with
the exploration, development or commercial exploitation of
the Busang II Site or the Busang III Site.
"Westralian" shall have the meaning assigned to such
term in the Recitals hereof.
2. Creation and Capitalization of Operating Companies.
(a) Promptly after receipt of all necessary Government
approvals, PTAKM, Bre-X and FCX shall subscribe for 40%, 45%
and 15%, respectively, of the equity interests in PT Busang
II. PTAKM and Bre-X shall also contribute to PT Busang II
all Mineral Rights and Related Assets held by them with
respect to the Busang II Site, and FCX shall commit to
certain undertakings as described in Section 4 below. The
owners of PT Busang II shall cause it to enter into a
Contract of Work with the Government that will permit it to
continue to survey, explore for, mine, develop, process,
produce, own, store, transport, market and sell or otherwise
transfer minerals at or from the Busang II Site.
(b) Promptly after receipt of all necessary Government
approvals, PTAL, Bre-X and FCX shall subscribe for 40%, 45%
and 15%, respectively, of the equity interests in PT Busang
III. PTAL and Bre-X shall also contribute to PT Busang III
all Mineral Rights and Related Assets held by them with
respect to the Busang III Site, and FCX shall commit to
certain undertakings as described in Section 4 below. The
owners of PT Busang III shall cause it to enter into a
Contract of Work with the Government that will permit it to
continue to survey, explore for, mine, develop, process,
produce, own, store, transport, market and sell or otherwise
transfer minerals at or from the Busang III Site.
(c) The organizational documents, capital structures
and the governance structures of the Operating Companies
shall be satisfactory in all respects to each of the parties
and shall contain appropriate provisions, including negative
consent rights, to protect the interests of each of the
parties. The parties agree to use their good faith best
efforts to negotiate and enter into the Implementing
Agreements as soon as practicable after the Effective Date
and to cooperate in structuring the capital of the Operating
Companies and otherwise meet their obligations hereunder and
under the Implementing Agreements in the most tax efficient
manner for all parties.
3. Exploration Period. Promptly following the Effective
Date and continuing through April 30, 1997 (the "Exploration
Period"), FCX shall perform or cause to be performed such
exploration and other activities with respect to the Busang
II Site and the Busang III Site as it deems necessary for
the purpose of confirming in its good faith judgment that
either or both of such sites contain one or more
commercially viable gold or other mineral resources. The
Exploration Period shall be extended for the number of days,
if any, during which FCX is prevented from engaging in such
activities for reasons beyond its control. If by the end of
the Exploration Period FCX has confirmed the existence of
one or more commercially viable mineral resources, then FCX
will so notify the Operating Companies and an affiliate of
FCX will undertake the Planned Operations at such location
or locations within either or both of the Busang II Site or
the Busang III Site as FCX deems appropriate. If no
commercially viable mineral resource has been confirmed by
FCX by the end of the Exploration Period, then all rights
and obligations of FCX under this Agreement and any
Implementing Agreements shall terminate and the 15%
interests in PT Busang II and PT Busang III acquired by FCX
pursuant to Sections 2(a) and 2(b) shall revert to Bre-X at
no cost to Bre-X.
4. FCX Commitments and Undertakings. (a) If its
exploration activities confirm to the satisfaction of FCX
the existence of one or more commercially viable gold or
other mineral resources, then FCX shall undertake to prepare
or cause to be prepared a bankable feasibility study to be
completed for presentation to the Boards of Commissioners of
the respective Operating Companies no later than June 30,
1998. The feasibility study shall contain information about
and FCX's assessment of (i) mineral reserves and resources,
(ii) the optimum production rate to maximize the net present
value thereof (with an initial production rate objective of
100,000 to 150,000 tonnes of ore per day, but the actual
planned production rate to be based on the economic analyses
reflected in the feasibility study), (iii) the estimated
capital costs of and schedule for constructing a mine,
processing plant and such related facilities as the
Operating Companies will need to construct for the project,
(iv) infrastructure facilities needed to support the
project, (v) operating costs, (vi) markets for the Operating
Companies products and estimated prices therefor, and (vii)
such other information as is customarily included in
feasibility studies. Subsequent to the approval of such
feasibility study for the Planned Operations by the Boards
of Commissioners of the respective Operating Companies and
the Board of Directors of FCX, FCX shall contribute to the
capital of the Operating Companies an amount equal to 25% of
the capital costs contemplated by such feasibility study to
delineate a proven reserve and construct the initial mine or
mines, processing plant and associated facilities pertaining
to that reserve pursuant to a budget (the "Budget") to be
established by FCX and provided to the Operating Companies
(the "Projected Development Cost"), provided that FCX shall
not be required to contribute in the aggregate more than
$400 million U.S. Dollars (the "Capital Commitment"). FCX
shall arrange for the financing of the remaining Projected
Development Cost through public and/or private debt
placements, commercial bank loans, and lease financings or
similar arrangements made available to the Operating
Companies (on a non-recourse, project finance basis without
any guarantee or other credit support from FCX or the other
owners of the Operating Companies, except, if necessary, the
pledge to the lenders of shares of the Operating Companies).
FCX shall secure the entire amount of the projected Capital
Commitment with a stand-by letter of credit issued in favor
of the Operating Companies by The Chase Manhattan Bank, NA.
(b) At such time as an affiliate of FCX becomes the
Operator, it will arrange for working capital financing for
the Planned Operations and related business activities by
advancing its own funds at market rates to, or arranging a
working capital credit facility on behalf of, the Operating
Companies. Costs incurred during the Exploration Period by
the Current Owners for exploration activities at the Busang
II Site and Busang III Site or by FCX with respect to the
Planned Operations and related business activities will be
reimbursed by the Operating Companies from such working
capital financing.
(c) Except for (i) the amounts agreed to be expended
by FCX under Section 3 above and (ii) a cash payment equal
to the stated nominal or par value of the shares of each
Operating Company to be issued to FCX, the Capital
Commitment shall be funded by FCX monthly as required to
fund the Planned Operations in accordance with the Budget.
(d) If, in the reasonable judgment of FCX and the
relevant Operating Company or Operating Companies, the cost
of completing the Planned Operations will exceed $1.6
billion, or if expansions to Planned Operations are later
undertaken which cannot be funded from internal cash flow,
FCX shall, if requested by the relevant Operating Company or
Operating Companies, use its best efforts to obtain
additional project financing. If such additional project
financing is not available to the relevant Operating Company
or Operating Companies on commercially reasonable terms,
then each of the owners of such Operating Company or
Operating Companies may fund its proportionate share of such
excess costs through additional capital contributions
and/or, if otherwise permitted and agreed by the owners, by
shareholder loans.
5. Mining Operations. FCX shall designate an affiliate
that is authorized to conduct such activities in Indonesia
to be the sole operator (the "Operator") of the Planned
Operations, and the Operator shall have the authority,
subject to the general direction and policies of the Boards
of Commissioners of the Operating Companies in significant
matters, to develop and operate the Busang II Site and the
Busang III Site with respect to the exploration,
construction, mining and production operations, product
marketing and transportation, infrastructure development and
all other related business operations. The Operator shall
be entitled to charge the Operating Companies for services
rendered and goods supplied by FCX, the Operator and their
affiliates at prices that are comparable to those that would
be charged by an unrelated third party to develop and
operate a first class mining operation of the size, scope
and complexity of that required to effectively and
economically exploit the Busang II Site and the Busang III
Site, provided that such charges shall be not less than the
fully allocated direct and indirect costs of such services
and goods to FCX, the Operator or such affiliates, as
appropriate. Further details of the relationship between
the Operator and the Operating Companies are expected to be
set forth in the Operating Agreement.
6. Option. As further consideration for FCX's willingness
to enter into this Agreement and provide the Capital
Commitment, Bre-X shall grant an option to FCX to acquire,
for no additional compensation, an interest equivalent to
15% (at the time of the exercise of the option) of the
outstanding capital stock of Westralian (or its successor),
and agrees to recommend to the Board of Commissioners or the
appropriate governing body of Westralian that the Operator
act as the sole operator of the Busang I Site on the same
terms as apply to the Busang II Site and the Busang III
Site. Such option shall become exercisable, and such
obligation to recommend FCX as the sole operator of the
Busang I Site shall become enforceable, if at any time a
proven reserve is established that covers an area lying both
within the Busang I Site and either or both of the Busang II
Site or Busang III Site.
7. Authority of Current Owners. Each of the Busang II
Owners and the Busang III Owners represents and warrants to
FCX that it has full power and authority to enter into this
Agreement and the Proposed Transaction, and that this
Agreement and the Proposed Transaction do not violate or
conflict with (i) their respective organizational documents
or (ii) any other agreement to which they, or any person or
entity controlled by any of them, may be bound.
8. Exclusive Dealing. Each of the Current Owners agrees
that, until April 30, 1997, it will not, directly or
indirectly, (i) solicit or encourage the submission of, or
consider, any Proposal (as defined below), (ii) participate
in any discussions or negotiations regarding any Proposal,
(iii) furnish any information or otherwise cooperate in any
way with any effort or attempt by any person with respect to
a Proposal or (iv) enter into any agreement relating to a
Proposal. Furthermore, each Current Owner will immediately
terminate any current discussions with any third party
(other than FCX or its affiliates) regarding any Proposal.
As provided elsewhere in this Agreement and notwithstanding
the expiration of the period specified above, the parties
acknowledge that FCX is hereby being provided the right to
serve as the sole operator for the Operating Companies and
to own a 15% interest in the Operating Companies free from
any competing claims. In the event any other person
initiates and seeks to pursue substantive discussions
involving any alteration of FCX's status as Operator or as a
15% owner of such interest, each of the Current Owners
agrees to notify FCX of the foregoing in writing in
reasonable detail, identifying the persons involved. As used
herein, "Proposal" means any inquiry, proposal, request to
negotiate or offer from any person (other than FCX or its
affiliates) relating to (i) any direct or indirect interest
in one or more of the Busang I Site, the Busang II Site or
the Busang III Site, (ii) any direct or indirect rights to
develop and/or operate the Busang I Site, the Busang II Site
or the Busang III Site, or (iii) any transaction similar in
nature to the Proposed Transaction or with respect to the
subject matter of the Proposed Transaction, but does not
include any such inquiry, proposal, request to negotiate or
offer relating to a merger or other acquisition of capital
stock of Bre-X Minerals Ltd. or its subsidiaries (other than
the Operating Companies).
9. Conditions. The obligations of the parties under this
Agreement are subject to fulfillment of each of the
following conditions:
(a) the receipt by each party of satisfactory
assurances, including affidavits and legal opinions, to the
effect that each of the parties has all requisite power and
authority to enter into and perform its obligations under
this Agreement and the Implementing Agreements without the
consent or approval of any other person and that the
Proposed Transaction is lawful under all applicable laws,
rules, regulations and decrees including, without
limitation, the U.S. Foreign Corrupt Practices Act; and
(b) the receipt of any necessary approvals from the
Government or other governmental authorities or agencies,
including without limitation the receipt by the Operating
Companies of Contracts of Work satisfactory in form and
substance to the parties.
10. Free Access and Confidentiality.
(a) The Current Owners shall grant, and shall cause
all persons and entities controlled by them to grant, to FCX
and FCX s representatives full and free access during all
reasonable times to all premises, properties, employees,
consultants, books, documents, records, data and other
information as FCX in its sole discretion deems relevant to
this Agreement and the Proposed Transaction. Without
limiting the foregoing, such access will include, for
example, the right to drill additional holes in the Busang
II Site and the Busang III Site as well as the right to
conduct physical and chemical tests on existing cores. The
Current Owners shall also provide FCX and FCX s
representatives with all assistance reasonably requested by
FCX in connection with this Agreement.
(b) Without limiting the generality of the foregoing,
the Current Owners shall promptly provide FCX with access to
all Related Assets, and FCX shall provide the Current Owners
with access to all information in the nature of the Related
Assets that is developed by FCX in its exploration of the
Busang II Site and the Busang III Site.
(c) All information, whether in document form, in
electronic form or otherwise, furnished to a party, its
affiliates, directors, officers, employees, agents or
representatives, including, without limitation, its lawyers,
accountants, consultants, financial advisors and, in the
case of FCX, its financing sources (collectively
"representatives"), and all notes, analyses, summaries,
compilations, data studies or other documents prepared by a
party or its representatives containing, based upon or
derived from, in whole or in part, any such furnished
information is herein referred to as the "Information." The
"Information" shall also include the matters the disclosure
of which is prohibited pursuant to paragraph (e).
(d) The parties agree that the Information will be
kept strictly confidential and will not, without the prior
written consent of the party disclosing the Information (the
"disclosing party"), be disclosed by a party or its
representatives, in any manner whatsoever, in whole or in
part, and will not be used by a party or its
representatives, directly or indirectly, for any purpose
other than in connection with the Proposed Transaction.
Notwithstanding the foregoing, a party may disclose the
Information (i) to the extent that disclosure is legally
required, as determined by the party in good faith and (ii)
as permitted pursuant to paragraph (g) below but only after
compliance with the provisions thereof. Moreover, the
parties agree to furnish the Information only to those
representatives who need to know the Information in
connection with this Agreement and who are informed by the
party of the confidential nature of the Information and who
agree to be bound by the terms of this Agreement. Each
party agrees to be responsible for any breach of the
confidentiality provisions of this Agreement by any of its
representatives. Each party will make all reasonable,
necessary and appropriate efforts to safeguard the
Information from disclosure to anyone other than as
permitted hereby.
(e) The parties agree that they will not, and that
they will direct their respective representatives not to,
disclose to any other person that the Information has been
made available or that this Agreement has been entered into,
that discussions or negotiations are taking place with
respect to this Agreement, or any of the terms, conditions
or other facts with respect to this Agreement, without the
prior consent of the other party. The parties agree to
consult with each other prior to issuing any press releases
relating to the Proposed Transaction. Notwithstanding the
foregoing, a party may disclose the Information (i) to the
extent that disclosure is legally required, as determined by
such party in good faith and (ii) as permitted pursuant to
paragraph (g) and only after compliance with the provisions
thereof.
(f) The confidentiality provisions of this Agreement
shall be inoperative as to such portions of the Information
which: (i) are or become generally available to the public
other than as a result of a disclosure by a party or its
representatives; (ii) become available to a party on a non-
confidential basis from a source other than a party or its
representative, provided that such source, to the best of
the party s knowledge after due inquiry, is not bound by a
confidentiality agreement with the disclosing party or
otherwise prohibited from transmitting the Information to
the party by a contractual, legal or fiduciary obligation;
or (iii) were known to the party on a non-confidential basis
prior to their disclosure to the party by the disclosing
party.
(g) In the event that a party or anyone to whom a
party has transmitted the Information pursuant to this
Agreement (i) becomes legally compelled (by oral questions,
interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to
disclose any of the Information or (ii) is requested by a
government official to disclose such Information voluntarily
in connection with an investigation, the party will provide
the disclosing party with prompt written notice so that the
disclosing party may seek a protective order or other
appropriate remedy and/or waive compliance with the
provisions of this Agreement. In the event that such
protective order or other remedy is not obtained, or that
the disclosing party waives compliance with the provisions
of this Agreement, the party or its representatives will
furnish only that portion of the Information which it
determines in good faith is legally required and the party
will exercise its best efforts to obtain reliable assurance
that confidential treatment will be accorded such
Information.
(h) The parties shall keep a record of each location
of the Information. If this Agreement terminates pursuant
to Sections 19(i) or 19(ii) hereof, each party will promptly
deliver to the other parties (without retaining copies
thereof) all Information furnished by such of the other
parties who provided the Information and who request the
return thereof; and all other Information will be destroyed,
except that any Information that has been prepared by a
party from publicly available information or from
information not obtained from another party pursuant to this
Agreement may be retained by the parties.
11. Other Agreements/Covenants.
(a) Each of the Current Owners shall resolve or cause
the resolution of all currently pending claims, suits and
other proceedings against any of the Current Owners related
to the Busang II Site and the Busang III Site or shall
provide satisfactory assurances, warranties or pledges to
assure that neither FCX's 15% interest, nor its rights to be
operator for the Operating Companies as provided in this
Agreement, can be diluted or affected by any competing
claims. Until such time as all currently pending claims,
suits or proceedings related to the Busang I Site, the
Busang II Site and the Busang III Site, as applicable, have
been finally resolved, Bre-X shall not transfer or otherwise
dispose of all or any part of its interest therein (other
than as contemplated by Sections 2(a) and 2(b), and Section
6 hereof) if such transfer or other disposition might result
in a reduction of its interest below that necessary to fully
satisfy any judgment or other adverse determination which
might result from such claims, suits or proceedings.
(b) Notwithstanding the expiration of the period
specified in Section 8 hereof, FCX s 15% equity interest in
the Operating Companies and, if FCX should exercise the
option described in Section 6, in Westralian, and/or its
right to be the sole operator for the Operating Companies as
provided in this Agreement, may not be diluted or otherwise
affected to satisfy adverse claims against any of the
Current Owners.
(c) The Implementing Agreements may contain provisions
for an appropriate allocation of the respective rights and
obligations of the parties if it is determined by FCX that
the resources to be developed are located in an area
covering more than one of the Busang I Site, the Busang II
Site and/or the Busang III Site.
(d) The parties agree to pursue diligently and to use
their best efforts to obtain all necessary and appropriate
governmental and third party approvals, promptly to enter
into the Implementing Agreements, and to take all other
actions reasonably necessary or appropriate in order to
effectuate the intent of this Agreement.
(e) The parties agree to furnish upon request such
further information, to execute and deliver such other
documents, and to do or refrain from doing such other acts
and things as are reasonably requested by the parties to
effectuate the purposes of this Agreement and to enable each
party hereto to comply with laws, rules, regulations and
decrees applicable to it.
(f) The parties agree that, for a period of three
years from the date of this Agreement, the parties will not,
directly or indirectly, solicit for employment or hire any
employee of the other party or any of its affiliates with
whom the party has had contact or who became known to the
party in connection with the party s consideration of the
Proposed Transaction; provided, however, that the foregoing
provision will not prevent a party from employing any such
person who contacts a party on his or her own initiative
without any direct or indirect solicitation by or
encouragement from the other party or to prevent the
Operator from offering employment to individuals currently
engaged in exploration, administration or other activities
affecting the Busang II Site and the Busang III Site.
(g) The parties are aware, and will advise their
representatives who are informed of the matters that are the
subject of this Agreement, of the restrictions imposed by
the Canadian and United States securities laws on the
purchase or sale of securities by any person who has
received material, non-public information from the issuer of
such securities and on the communication of such information
to any other person when it is reasonably foreseeable that
such other person is likely to purchase or sell such
securities in reliance upon such information.
12. Remedies. The parties acknowledge that remedies at law
may be inadequate to protect a party against any actual or
threatened breach of this Agreement by the other party or by
its representatives, and, without prejudice to any other
rights and remedies otherwise available to the parties, the
parties agree to the granting of injunctive relief in favor
of the non-breaching party without proof of irreparable harm
or of actual damages. In the event of litigation relating
to this Agreement, if a court of competent jurisdiction
determines in a final, nonappealable order that this
Agreement has been breached by a party or by its
representatives, then (in addition to any other remedies
awarded by the court) the breaching party will reimburse the
non-breaching party for its costs and expenses in connection
with this Agreement and such litigation (including
reasonable legal fees and expenses). It is further
understood and agreed that no failure or delay by the
parties in exercising any right, power or privilege under
this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or
future exercise of any right, power or privilege hereunder.
13. Expenses. Each party hereto shall be responsible for
the payment of all of expenses incurred by it in entering
into this Agreement and any Implementing Agreements,
including without limitation the fees and expenses of its
counsel and its financial and other advisors.
14. No Assignment. This Agreement may not be assigned by
any party hereto without the prior written consent of each
other party hereto, which consent will not be unreasonably
withheld.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed
within such jurisdiction, and each of the parties agree to
consent to the jurisdiction of the Federal District Court of
the Southern District of New York to resolve any legal
controversy or dispute hereunder.
16. Counterparts. This Agreement may be executed in
counterparts and all counterparts taken together will be
deemed to constitute the same instrument.
17. Waiver. Any provision of this Agreement may be waived
by the party or parties entitled to the benefit of such
provision. Any such waiver shall constitute a waiver only
with respect to the specific matter waived, and shall not
constitute a waiver of any other provision of this
Agreement.
18. Notices. All notices required or permitted hereunder
to any party shall be in writing and shall be addressed to
the parties as follows:
if to FCX:
Freeport-McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, LA 70112
Attn: Richard Adkerson
Executive Vice President
Facsimile: (001) 504-582-1611
with a copy to:
Henry A. Miller
General Counsel
Facsimile: (001) 504-582-1833
if to Bre-X:
Bre-X Minerals Ltd.
119 - 14th Street N.W.
Calgary, Alberta
Canada T2N 1Z6
Attn: David G. Walsh
Chairman, President & CEO
Facsimile: (001) 403-543-7060
with a copy to:
Rolando C. Francisco
Executive Vice President and Chief Financial Officer
Facsimile: (001) 403-543-7060
if to PTAKM:
PT Askatindo Karya Mineral
Complex Gudang Peluru Block D/118
Tebet, Jakarta Selatan
Indonesia
Attn: President Director
Facsimile: (62)(21) 829-4013
if to PTAL:
PT Amsya Lyna
_________________
_________________
Indonesia
Attn: President Director
Facsimile: (62)(21) _____________
All notices shall be given (a) by personal delivery to
the party, (b) by electronic communication, capable of
producing a printed transmission, (c) by registered or
certified mail return receipt requested, or (d) by overnight
or other express courier service. All notices shall be
effective and shall be deemed given on the date of receipt
at the principal address if received during normal business
hours and, if not received during normal business hours, on
the next business day following receipt, or if by electronic
communication, on the date of such communication. Any party
may change its address by notice to the other parties.
19. Term of Agreement. This Agreement shall become
effective as of the Effective Date and shall remain in full
force and effect until the earlier of (i) its termination by
the mutual consent of the parties hereto, (ii) FCX fails to
give the notice contemplated by the third sentence of
Section 3 hereof, or (iii) the effective date of the
Implementing Agreements.
20. Survival of Certain Oblgations. Notwithstanding the
termination of this Agreement, the obligations of the
parties under Sections 10(c) through 10(g) and 12 shall
survive such termination for a period of 3 years.
21. Entire Agreement. (a) This Agreement shall constitute
the entire agreement among the parties hereto with respect
to the subject matter hereof and shall supersede all
previous negotiations, commitments, understandings and
agreements, written or oral, with respect thereto, including
without limitation, the Heads of Agreement referred to in
the Recitals and the Confidentiality Agreement dated
February 18, 1997 between Bre-X and FCX.
(b) No modification of the terms and provisions of
this Agreement shall be or become effective except in
writing in the English language executed by all parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
FREEPORT-McMoRan COPPER & GOLD INC.
By: _________________________________
Name: Richard C. Adkerson
Title: Executive Vice President
BRE-X MINERALS LTD., on behalf of itself and its
subsidiaries including, without limitation, Dorchester
Holdings B.V. and Bre-X Minerals Amsterdam B.V.
By: __________________________________
Name: David G. Walsh
Title: Chairman, President and Chief Executive Officer
AND
By: __________________________________
Name: Rolando C. Francisco
Title: Executive Vice President
and Chief Financial Officer
PT ASKATINDO KARYA MINERAL
By: __________________________________
Name:
Title: President Director
PT AMSYA LYNA
By: _________________________________
Name:
Title: President Director