160
EXHIBIT 10.05
Agreement dated 30 October 1997.
Between
BORAL ENERGY RESOURCES NZ LIMITED of 38 Bruce Mclaron
Road, Henderson, Auckland, New Zealand ("BORAL ENERGY")
AND
INDO-PACIFIC ENERGY (NZ) LIMITED of 284 Karori Road,
Wellington, New Zealand ("INDO-PACIFIC")
AND
MOONDANCE ENERGY PTY LTD of 133 Edward Street, Perth,
Western Australia, 6849 ("MOONDANCE")
together the Parties ("Parties");
RECITALS
A Indo-Pacific and Moondance are the beneficial owners of a
70% Participating Interest and a 20% Participating Interest
respectively in and under the Permit:
B Pursuant to a letter agreement dated 4 November 1996,
Indo-Pacific agreed to assign to Boral Energy the
Indo-Pacific Assigned Interest and Moondance agreed to
assign to Boral Energy the Moondance Assigned Interest,
which Boral Energy agreed to acquire and the Parties have
set out the terms and conditions of the assignments in this
Agreement.
OPERATIVE PART
1 DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Agreement ( including the Recitals), unless the
context otherwise requires:
1.1.1 "Act" means the Crown Minerals Act (NZ) 1991 and
any regulations thereto.
1.1.2 "Affiliate" means a corporation that controls a
Party or is controlled by a Party or a corporation that is
controlled by a corporation that also controls the Party and
control means the right to exercise 100% of the voting right
thereof.
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1.1.3 "Area" means, at any time, the area subject of the
Permit.
1.1.4 "Agreement" means this agreement between the
Parties.
1.1.5 "Indo-Pacific Assigned Interest" means a 20%
Participating Interest owned by Indo-Pacific assigned to Boral
Energy.
1.1.6 "Effective Date" means 2 November 1996.
1.1.7 "Joint Venturers" means together Indo-Pacific,
Moondance and Croft Exploration Ltd.
1.1.8 "Moondance Assigned Interest" means a 10%
Participating Interest owned by Moondance assigned to Boral
Energy.
1.1.9 "Operator" means Indo-Pacific.
1.1.10 "Participating Interest" means a percentage
interest of a Party in the Permit.
1.1.11 "Permit" means petroleum exploration permit PEP
38328 or any renewal or extension thereof and any mining permit
granted pursuant thereto.
1.1.12 "Well Costs" means all costs (including permit
management, pre-planning and inventory purchase) incurred by the
Operator in drilling the Kereru 1 Well but which expressly
excludes the cost of purchase of the 7" casing and spool.
1.1.13 "Kereru 1 Well" means the well referred to as
Kereru 1 at a location defined by the coordinates 39' 39' 40.5"
south and 176' 26' 12.3" east, being Peg 216 on seismic line
C91-04 to be drilled, to either a programmed depth of 1700 metres
or 100 metres deeper than the Miocene/Pliocene unconformity,
whichever is the lesser, or as otherwise may be agreed.
1.1.14 "Minister" means the Minister of Energy as defined
in the Act who administers the approval and registration
procedure under the Act.
1.1.15 "Boral Energy Participating Interest" means
together the Indo-Pacific Assigned Interest and the Moondance
Assigned Interest assigned to Boral Energy.
1.2 Interpretation Rules
In this Agreement, unless a contrary intention appears:
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1.2.1 a reference to this Agreement is a reference to
this Agreement as amended, varied, novated or substituted from
time to time;
1.2.2 a reference to any legislation or any provision
of any legislation includes:
(a) all regulations, orders or instruments issued under
the legislation or provisions; and
(b) any modification, consolidation, amendment,
re-enactment, replacement or codification of such legislation or
provision;
1.2.3 a word:
(a) importing the singular includes the plural and vice
versa; and
(b) denoting an individual includes corporations, firms,
unincorporated bodies, authorities and instrumentalities;
1.2.4 a reference to a Party to this Agreement or any
other instrument includes that Party's executors, administrators,
successors or permitted assigns;
1.2.5 where a word or phrase is given meaning, any
other part of speech or grammatical form has a corresponding
meaning; and
1.2.6 a reference to a clause number, schedule number
or annexure number (or letter) is a reference to a clause,
schedule or annexure of this Agreement;
1.2.7 words and expressions used in this Agreement
which are used in the Act shall where the context admits have the
same meaning as they have in the Act.
1.3 Entire Agreement
This Agreement is the entire agreement between the Parties
as to its subject matter and supersedes all prior agreements,
representations and understandings.
1.4 Amendments
No amendment of, or addition to this Agreement is binding
unless it is in writing and executed by the Parties.
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1.5 Headings
Any heading, index, table of contents or marginal note is
for convenience only and does not affect the interpretation of
this Agreement.
1.6 Recitals
The Recitals of this Agreement form part of the Agreement
and have effect as if set out in full in this Agreement.
2 APPROVALS
2.1 Each dealing evidenced by this Agreement that would,
apart from the terms of this Clause or Section 41 of the Act,
have an effect of a kind referred to in Section 41 of the Act in
relation to the Permit shall be of no force or effect until the
dealing, insofar as it relates to the Permit has been approved
and registered by the Minister and an entry has been made in the
register in relation to the dealing by the Minister in accordance
with Section 41 of the Act.
2.2 All provisions of this Agreement which are not of the
nature described in clause 2.1 shall, unless otherwise expressly
provided, come into effect on the Effective Date. Upon the
approval and registration referred to in clause 2.1 being
obtained, those provisions of the Agreement which are subject to
that approval and registration shall be deemed to relate back to
and take effect as between the Parties on and from the Effective
Date.
2.3 As soon as practical after the date of this Agreement,
Boral Energy shall apply for all approvals and registrations of
the dealings as evidenced by this Agreement.
2.4 Each of the Parties will use all reasonable efforts to
enable the dealings evidenced by this Agreement to be approved as
expeditiously as possible and, with all convenient despatch, will
execute all such documents and do all such acts and things as are
necessary or desirable to achieve that approval.
2.5 If any dealing evidenced by this Agreement is not
approved and registered in accordance with clause 2.1 within 12
months after the date on which it is lodged for approval and
registration (or such later date as the Parties may agree), any
Party may terminate this Agreement in respect of that dealing
only at any time by notice to the other Parties and this
Agreement in respect of that dealing only (except for this clause
2.5 and clause 2.6) shall terminate on the receipt of that
notice.
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2.6 On the termination of this Agreement under clause 2.5,
Indo-Pacific and Moondance (as the case may be) shall reimburse
Boral Energy, within 7 days, for all amounts which Boral Energy
has paid pursuant to this Agreement and the Parties shall execute
all documents and do all other things necessary or desirable to
place each other in the same position as they would have been in
had this Agreement not been executed or acted upon.
3. ASSIGNMENTS
With effect on and from the Effective Date, Indo-Pacific and
Moondance respectively assign to Boral Energy and Boral Energy
accepts the assignment of the Indo-Pacific Assigned Interest and
Moondance Assigned Interest.
4. BORAL ENERGY'S OBLIGATIONS
4.1 In consideration of Indo-Pacific agreeing to assign the
Indo-Pacific Assigned Interest to Boral Energy and Moondance
agreeing to assign the Moondance Assigned Interest to Boral
Energy, Boral Energy will fund 60% of all Well Costs cash called
in accordance with accepted petroleum joint venture operating
practice until the earliest to occur of the
following;
4.1.1 the plugging and abandonment of the Kereru 1 Well;
or
4.1.2 the setting of production casing at the Kereru 1
Well; or
4.1.3 the expenditure by Boral Energy of NZ$1.1 million.
4.2 The Parties agree that the costs of procuring the 7"
casing and spool are not Well Costs and those 7" casing and spool
costs and other Permit costs (but excluding the Well Costs) are
borne by the Joint Venturers and Boral Energy in accordance with
each of their Participating Interest percentages.
5. BORAL ENERGY'S FURTHER RIGHTS
The Parties acknowledge and agree that:
5.1 On and from the Effective Date Boral Energy shall have
all the rights and obligations of a joint venture party and shall
be able to vote the Boral Energy Participating Interest.
5.2 Indo-Pacific will transfer to Boral Energy operatorship
of all matters pertaining to petroleum production in the Permit
including without limitation all activities related to:
5.2.1 field development and production;
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5.2.2 plant and process engineering; and
5.2.3 product distribution and marketing.
5.3 should Boral Energy;
5.3.1 elect not to accept the transfer of operatorship
referred to in clause 5.2; or
5.3.2 assign the Boral Energy Participating Interest in
whole or part to a third party which is not a Joint Venturer;
then Boral Energy will support re-assignment of operatorship (if
it was accepted by Boral Energy) to Indo-Pacific for as long as
Indo-Pacific and its Affiliates retain equity in the Permit that
is greater than that of Boral Energy and its Affiliates or that
of Boral Energy's assignees.
5.4 Boral Energy shall be entitled to participate in the
negotiation of the joint venture operating agreement for the
management of all operations within the Permit and Indo-Pacific
and Moondance agree that they have procured the agreement of
Croft Exploration Ltd to this clause 5.4.
6 DEFAULT
6.1 If Boral Energy fails to pay any of the costs at the
times required under this Agreement then Indo-Pacific and/or
Moondance may after giving Boral Energy 14 days notice to remedy
the default, pay such costs and recover the sum (if applicable)
not so paid as a liquidated debt, together with interest on the
amount outstanding at the rate charged from time to time by
Indo-Pacific's or Moondance's bankers on overdrafts in excess of
$100,000 such interest being calculated on a daily basis from the
date of payment by Indo-Pacific or Moondance until the date of
recovery from Boral Energy, capitalised on the last day of each
month.
6.2 In the event that Boral Energy fails to remedy the
default in clause 6.1 after a further 30 days then Indo-Pacific
or Moondance may require Boral Energy to forthwith assign to
Indo-Pacific and Moondance the Indo-Pacific Assigned Interest and
the Moondance Assigned Interest as the case may be assigned to
Boral Energy under this Agreement for no consideration other than
the complete discharge of all liability of Boral Energy under,
and in respect of, this Agreement.
6.3 The Parties acknowledge and agree that the provisions
of clause 6.1 and 6.2 arise out of a genuine attempt to
compensate Indo-Pacific and Moondance for any loss and damage
estimated by the Parties to be suffered by Indo-Pacific and
Moondance as a result of an unremedied default of Boral Energy
and Boral Energy shall not be liable for any costs charges or
damages whether direct indirect or consequential.
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7 INDO-PACIFIC'S REPRESENTATIONS, WARRANTIES AND
INDEMNITY
7.1 Indo-Pacific represents and warrants to Boral Energy
that:
7.1.1 it has the power and authority, and all necessary
corporate and other action has or will be taken, to enable it to
enter into and perform its obligations under this Agreement and
each further document and assurance required under clause 10
hereof;
7.1.2 Indo-Pacific Assigned Interest is free of all
mortgages, charges, liens, secured interests, royalties and
encumbrances other than royalties and encumbrances necessarily
imposed by the Act and Indo-Pacific further warrants that once
the obligations under clause 4 of this Agreement have been
satisfied, Boral Energy shall only by liable to the extent of the
Indo-Pacific Assigned Interest;
7.1.3 it is not engaged in any litigation or
arbitration proceeding in respect of the Permit, and there are no
actions, suits or other proceedings pending or threatened against
it in relation to the Permit or which affects or may affect the
validity of the Permit or this Agreement;
7.1.4 the Permit is valid, subsisting and in good
standing and all obligations imposed by the Act in relation
thereto have been duly performed and complied with;
7.1.5 no part of the Area comprised in the Permit has
been surrendered or forfeited or is subject to surrender and
forfeiture;
7.1.6 Indo-Pacific has not entered into any contract
other than with Boral Energy disposing of or granting an option
over or creating any interest in the Permit except as disclosed
to Boral Energy; and
7.1.7 Indo-Pacific is not in breach of any of its
obligations under the Permit.
7.2 Indo-Pacific shall indemnify Boral Energy and keep
Boral Energy indemnified against all liability, cost, loss and
damage which Boral Energy suffers or incurs as a result of a
breach of any representation and warranty contained in clause
7.1.
8 MOONDANCE'S REPRESENTATIONS, WARRANTIES AND INDEMNITY
8.1 Moondance represents and warrants to Boral Energy
that:
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8.1.1 it has the necessary power and authority, and all
necessary corporate and other action has or will be taken, to
enable it to enter into and perform its obligations under this
Agreement and each further document and assurance required under
clause 10 hereof;
8.1.2 the Moondance Assigned Interest is free of all
mortgages, charges, liens, secured interests, royalties and
encumbrances other than royalties and encumbrances necessarily
imposed by the Act and Moondance further warrants that once the
farmin obligations under clause 4 of this Agreement have been
satisfied, Boral Energy shall only be liable to the extent of the
Moondance Assigned Interest;
8.1.3 it is not engaged in any litigation or
arbitration proceeding in respect of the Permit, and there are
not actions, suits or other proceedings pending or threatened
against it in relation to the Permit or which affects or may
affect the validity of the Permit or this Agreement;
8.1.4 the Permit is valid, subsisting and in good
standing and all obligations imposed by the Act in relation
thereto have been duly performed and complied with;
8.1.5 no part of the Area comprised in the Permit has
been surrendered or forfeited or is subject to surrender and
forfeiture;
8.1.6 Moondance has not entered into any contract other
than with Boral Energy disposing of or granting an option over or
creating any interest in the Permit except as disclosed to Boral
Energy; and
8.1.7 Moondance is not in breach of any of its
obligations under the Permit.
8.2 Moondance shall indemnify Boral Energy and keep Boral
Energy indemnified against all liability, cost, loss and damage
which Boral Energy suffers or incurs as a result of a breach of
any representation and warranty contained in clause 8.1.
9 BORAL ENERGY'S REPRESENTATION, WARRANTY AND INDEMNITY
9.1 Boral Energy represents and warrants to both
Indo-Pacific and Moondance that it has the necessary power and
authority, and all necessary corporate and other action has been
taken, to enable it to enter into and perform its obligations
under this Agreement and each further document and assurance
required under clause 10 hereof.
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9.2 Boral Energy shall indemnify both Indo-Pacific and
Moondance and keep both Indo-Pacific and Moondance indemnified
against all liability, cost, loss and damage which either
Indo-Pacific or Moondance suffers or incurs as a result of any
breach of the representation and warranty contained in clause
9.1.
10 FURTHER ASSURANCES
10.1 The Parties agree that they will each sign, execute
and complete all further documents and assurances, and do all
further acts and things as may be reasonably required to confirm
or give effect to the intent and object of this Agreement.
10.2 Each further document and assurance required under
clause 10.1 shall be completed in a form approved by the Parties.
11 COSTS AND STAMP DUTY
11.1 Each of the Parties shall bear its own costs and
expenses (including, without limitation, all legal costs and
expenses) in relations to the preparation, negotiation and
execution of this Agreement and each of the documents which this
Agreement requires any of the Parties to execute.
11.2 Boral Energy shall bear all stamp duty and
registration fees payable under the Act on this Agreement and
each of the documents which this Agreement requires any of the
Parties to execute.
12 GOVERNING LAW
12.1 This Agreement shall be deemed to be a contract under,
and shall be governed by and interpreted in accordance with, the
laws of New Zealand.
12.2 The Parties submit to the non-exclusive jurisdiction
of the Courts of New Zealand and any courts competent to hear
appeals therefrom.
13 NOTICES
13.1 How notices may be given
A notice approval, direction, consent, offer, demand or
other communication in connection with this Agreement must
be:
13.1.1 in writing;
13.1.2 signed by an authorised officer of the relevant
Party; and
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13.1.3 given to the recipient Party;
(a) by hand delivery;
(b) by pre-paid mail or courier sent to that Party; or
(c) by facsimile transmission to that Party.
13.2 Where notices must be sent For the purposes of clause
13.1:
13.2.1 deliveries must be delivered to the address of the
recipient Party set out below;
13.2.2 mail must be sent to the address of the recipient
party set out below;
13.2.3 facsimile messages must be transmitted to the
facsimile number of the recipient Party set out below; and in
each case
13.2.4 must be marked for the attention of the person
specified below in relation to the recipient Party:
Name: Boral Energy Resources NZ Limited
Address: Level 3
60 Hindmarsh Square
ADELAIDE SOUTH AUSTRALIA 5000
Attention: Dr. R. Willink
Facsimile: (+61 8) 8223 1851
Name: Indo-Pacific Energy (NZ) Ltd
Address: 284 Karori Road
WELLINGTON NEW ZEALAND
Attention: Dr. D. Bennett
Facsimile: +64 4 476 0120
Name: Moondance Energy Ltd
133 Edward Street
PERTH WESTERN AUSTRALIA 6000
Attention: Mr. C. Crabb
Facsimile: (+61 9) 277 9079
13.3 Change of Details
13.3.1 A Party may from time to time change any of the
details specified in clause 13.2.4 by giving not less than 5
business days notice to each other party.
13.3.2 If details are changed in accordance with clause
13.3.1, clause 13.2.4 applies as if those changed details were
set out in clause 13.2.4.
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13.4 Proof of Notices
13.4.1 Proof of posting by pre-paid mail is proof of
receipt on the seventh clear business day after posting or the
fourth clear business day in the case of courier delivery.
13.4.2 Proof of transmission of a facsimile message is
proof of receipt on the date of transmission, but if a
transmission is not made on a business day or not made before
4.00pm, then it will be deemed to have been received at 10.00am
in the time zone of the recipient on the next business day in the
time zone of the recipient after transmission.
14 WAIVER
A Party's failure to exercise or delay in exercising a power
or right is not a waiver of that power or right, and the exercise
of a power or right does not preclude the future exercise of that
or any other power or right.
15 REMEDIES
15.1 All remedies, rights, undertakings, obligations or
agreements of the Parties under this Agreement arising by law in
respect of this Agreement shall be cumulative and none thereof
shall be in limitation of any other rights, remedies,
undertakings, obligations or agreements of the Parties.
15.2 Each of the Parties may follow any such remedy to which
it is entitled by law or otherwise, either concurrently or
successively at its option.
16 SEVERANCE
Each provision of this Agreement shall be deemed to be
separate and severable from the others of them. If any provision
of this Agreement is determined to be invalid or unenforceable in
any jurisdiction, it shall be severed from this Agreement and not
invalidate the rest of this Agreement which shall remain of full
force and effect as if such provision had not been made a part
hereof. Such a determination of invalidity or enforceability
shall not affect the validity or enforceability of that provision
in any other jurisdiction.
17 EXECUTION
This Agreement may be executed by the separate execution and
delivery of counterparts and proof of execution and delivery of
those counterparts may be achievable by the transmission of
executed copies by facsimile.
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18 CONFIDENTIALITY
The Parties agree and undertake to keep the terms of this
Agreement confidential subject to their respective obligations
and rights to disclose to Affiliates and as may be required by
law or rule of stock exchange.
19 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes
all prior agreements, representations, warranties, promises and
understandings between the Parties.
EXECUTED as an Agreement
THE COMMON SEAL of ) The Common Seal of
BORAL ENERGY RESOURCES ) BORAL ENERGY RESOURCES
(NZ) LIMITED ) NZ LIMITED
was affixed in accordance with )
its articles of association: )
/s/ Owen William Poole /s/ Robbert Jan Willink
Signature of Authorised Person Signature of Authorised Person
Director Director
Office Held Office Held
OWEN WILLIAM POOLE ROBBERT JAN WILLINK
Name of authorised person Name of authorised person
(BLOCK LETTERS) (BLOCK LETTERS)
THE COMMON SEAL of ) The Common Seal of
INDO-PACIFIC ENERGY ) INDO-PACIFIC ENERGY
(NZ) LIMITED ) (NZ) LIMITED
was affixed in accordance )
with its articles of )
association )
/s/ Jenni Lean /s/ David Bennett
Signature of Authorised Person Signature of Authorised Person
Corporate Affairs Manager Director
Office Held Office Held
JENNI LEAN DAVID BENNETT
Name of authorised person Name of authorised person
(BLOCK LETTERS) (BLOCK LETTERS)
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THE COMMON SEAL of ) COMMON SEAL
MOONDANCE ENERGY ) MOONDANCE ENERGY PTY LTD
PTY LTD ) A.C.N. 073 213 546
was affixed in accordance )
with its articles of )
association: )
/s/ Colin Crabb /s/ Gregory Alan Corner
Signature of Authorised Person Signature of Authorised Person
Director Secretary
Office Held Office Held
COLIN CRABB GREGORY ALAN CORNER
Name of authorised person Name of authorised person
(BLOCK LETTERS) (BLOCK LETTERS)