SILICON (KEMERTON) AGREEMENT ACT 1987 - SCHEDULE 2
SILICON (KEMERTON) AGREEMENT ACT 1987 - SCHEDULE 2
[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made this sixth day of June 1988 BETWEEN THE HONOURABLE
PETER McCALLUM DOWDING, LL.B., 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 (hereinafter called “the
State”) of the first part BARRACK SILICON PTY. LTD. a company
incorporated in the State of Western Australia and having its registered
office at 614 Newcastle Street, Leederville (hereinafter called “the
Company” which term shall include its successors and permitted assigns)
of the second part and BARRACK MINES LIMITED a company incorporated in the
State of Western Australia and having its registered office at 614 Newcastle
Street, Leederville (hereinafter called “the Guarantor”) of the
third part.
WHEREAS:
(a) on the 12th day of November 1987 the parties
hereto entered into an agreement relating to the establishment of a plant for
the manufacture of silicon which agreement was ratified by the Silicon
(Picton) Agreement Act 1987 and is hereinafter referred to as “the
principal Agreement”;
(b) the parties have agreed that the said plant
shall be established at Kemerton in the said State in lieu of Picton as
provided in the principal Agreement and desire to vary the principal Agreement
for such purpose.
NOW THIS AGREEMENT WITNESSETH:
1. Subject to the context the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the principal Agreement.
2. The provisions of this Agreement shall not come
into operation until a Bill to approve and ratify this Agreement is passed by
the Legislature of the said State and comes into operation as an Act.
3. The principal Agreement is hereby varied as
follows —
(1) Clause 1 —
(a) by
inserting, in the appropriate alphabetical positions, the following
definitions —
“
“approved project” means the project as described in the bound
volume entitled ‘Project Description’ initialled by or on behalf
of the Minister and the Company for the purpose of identification;
“commissioning” means the earlier of —
(a) 30
days after the second furnace assembly and its auxiliaries have been erected
and are ready for operation; or
(b)
completion of 2 consecutive days of operation of the second furnace at the
following figures —
(i)
Power consumption: Electric power consumption shall not
be greater than 12,000 kWh/tonne of silicon metal tapped;
(ii)
Production rate: The rate of silicon metal production
shall not be less than an average of 1.5 tonnes/hour; and
(iii)
Active power of furnace: The active power of the furnace
shall not
be less than 18MW; ”;
(b) in
the definition of “silicon plant”, by deleting
“Picton” and substituting the following —
“ Kemerton
”;
(c) by
substituting for the plan marked “A” referred to in the principal
Agreement the plan marked “B” initialled by or on behalf of the
parties hereto for the purpose of identification;
(d) in
the definition of “silicon plant site”, by deleting “Picton
being the land hatched on the plan marked “A” ” and
substituting the following —
“ Kemerton being
the land shown shaded on the plan marked “B”
”.
(2) Clause 5 —
by deleting Clause 5
and the clause heading thereto and substituting the following clause —
“ Implementation
of approved project
5. The Company shall
subject to and in accordance with the EP Act and any approvals and licences
required under that Act implement the approved project in accordance with the
terms thereof. ”.
(3) Clause 6 —
by deleting Clause 6
and the clause heading thereto and substituting the following clause —
“ Silicon plant
site
6. (1)
The State shall cause the silicon plant site to be granted free
from encumbrances and vacant possession thereof to be given to the Company at
such time and on such terms as agreed between the parties.
(2) The State shall to
the extent reasonably necessary for the purposes of this Agreement allow the
Company to have access to the silicon plant site prior to the grant thereof to
the Company for the purpose of carrying out surveys and preparatory building
works and otherwise as agreed by the Minister.
(3) If the Company has
not proceeded with the implementation of the approved project in accordance
with the terms thereof by 31 March 1990, or if this Agreement ceases or
determines pursuant to Clause 22 on or before that date as a consequence of a
matter mentioned in paragraph (a)(ii) or paragraph (b) of Clause 22(1) without
the Company having completed the construction of the silicon plant or as a
consequence of a failure by the Company to proceed with the implementation of
the approved project in accordance with the terms thereof the Company shall
—
(a) pay
to the State on demand by the State an amount equal to the value of the
silicon plant site (but not including the value of any buildings or other
improvements erected thereon); or
(b)
alternatively if the Company so desires and the State agrees, transfer the
silicon plant site and all buildings and other improvements erected thereon to
the State free from encumbrances and free of cost to the State.
”.
(4) By inserting after
Clause 6 the following clauses —
“ 6A.
The State in recognition of the decentralised location of
the project and the change in the silicon plant site from Picton to Kemerton
has advanced to the Company by way of loan the sum of $8,000,000 which amount
(without interest) shall be repaid by the Company to the State upon demand by
the State if the Company has not proceeded to implement the approved project
in accordance with the terms thereof by 30 September 1989 (or such later date
as may be agreed) or if this Agreement ceases or determines as a consequence
of a matter mentioned in paragraph (a)(ii) or paragraph (b) of Clause 22(1) on
or before 30 September 1989 but otherwise the said loan shall be repaid by the
Company to the State by instalments of $400,000 free of all deductions for
every fiscal year in which in excess of 20,000 tonnes of silicon metal is
manufactured by the Company at the silicon plant after 30 June 1990 until the
said loan is repaid in full. After each fiscal year in which the said minimum
quantity of silicon metal has been manufactured as aforesaid, the Company
shall forthwith give to the State notice of that fact and the Company shall
within 30 days after the date of that notice pay to the State the said
instalment in reduction of the said loan.
6B. In the event that
commissioning of the silicon plant’s electric furnaces does not occur by
30 June 1989 or such later date as may be agreed, the State, except where or
to the extent to which it can reasonably demonstrate that the delay in
commissioning the said furnaces by that date or any delay in commissioning the
said furnaces thereafter was due to lack of diligence on the part of the
Company or arose otherwise than as a specific result of the transfer of the
project from Picton to Kemerton or of a matter associated with the silicon
plant site at Kemerton but which would not have been associated with the
proposed site at Picton, shall pay to the Company the sum of $1,100,000 per
month (or pro rata for any part of a month) in respect of the period from 1
July 1989 or such later date as may be agreed to whichever shall first occur
of the commissioning of the said furnaces or 31 December 1989. Payment of a
monthly amount or a pro rated monthly amount under this Clause shall be made
at the end of the month in respect of which it is payable and without any
deduction or set off whatsoever. ”.
(5) By inserting after
Clause 7 the following clause —
“ 7A.
The State in recognition of the expected economic
benefits to the State resulting from maximum utilisation of the installed
capacity of the silicon plant, shall pay to the Company a production grant by
way of incentive of $400,000 for every fiscal year in which in excess of
20,000 tonnes of silicon metal is manufactured by the Company at the silicon
plant after 30 June 1990 providing that the grant shall only be paid in
respect of a maximum of 20 such fiscal years. The said grant shall be paid by
the State to the Company free from all deductions within 30 days of the
receipt by the State of the notice from the Company under Clause 6A. The State
may elect by notice to the Company within 14 days of receipt of the said
notice to apply the said grant by way of offset against the outstanding
balance of the loan under Clause 6A and the Company shall thereupon be
relieved from its obligation to pay the instalment then payable in reduction
of the said loan. ”.
(6) Clause 8 —
by deleting Clause 8
and substituting the following clause —
“ 8.
(1) If the Company at any
time during the continuance of this Agreement desires to significantly modify
expand or otherwise vary its activities carried on pursuant to this Agreement
beyond those specified in the approved project or in any approved proposals or
to mine minerals from the Mining Lease or the Prospecting Licences in addition
to silica or to mine silica for the project from other than the Mining Lease
or Prospecting Licences it shall give notice of such desire to the Minister
and if required by the Minister within 2 months of the giving of such notice
shall submit to the Minister within such period as the Minister may reasonably
allow detailed proposals in respect of all matters covered by such notice and
such other matters, including matters relating to any of the following, namely
—
(a) the
mining of silica;
(b) the
silicon plant;
(c)
manning requirements and manning recruitment policies;
(d)
transport;
(e)
power supply;
(f)
water supply;
(g) use
of local labour professional services manufacturers suppliers contractors and
materials and measures to be taken with respect to the engagement and training
of employees by the Company, its agents and contractors;
(h) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities under this Agreement, for the protection and
management of the environment;
(i)
elements of the project which the Company proposes to be
sourced from outside Australia and the reason therefor; and
(j)
where minerals other than silica are the subject of the proposals, specifying
those other minerals and the proposed mining methods,
and other relevant
information as the Minister may require.
(2) If the Minister
does not require the Company to submit proposals under subclause (1) the
Company may, subject to compliance with all applicable laws, proceed with the
modification, expansion or variation of its activities carried on pursuant to
this Agreement.
(3) Subject to the EP
Act, in respect of proposals pursuant to subclause (1) the Minister shall
—
(a)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(b)
defer consideration of or decision upon the same until such time as the
Company submits a further proposal or proposals in respect of some other of
the matters mentioned in subclause (1) not covered by the said proposals; or
(c)
require as a condition precedent to the giving of his approval of the said
proposals that the Company makes such alteration thereto or complies with such
conditions in respect thereto as he (having regard to the circumstances
including the overall development of and the use by others as well as the
Company of all or any of the facilities proposed to be provided) thinks
reasonable and in such a case the Minister shall disclose his reasons for such
conditions,
PROVIDED ALWAYS that
any approval or decision of the Minister under this clause shall be in
accordance with the conditions and procedures, if any, to which implementation
of the project is made subject pursuant to the EP Act and such approval or
decision shall if the case so requires incorporate a requirement that the
Company make such alterations to the said proposals as may be necessary to
make them accord with those conditions or procedures.
(4) The Minister shall
within two months after service on him of an authority under section 45(7) of
the EP Act if applicable and otherwise within two months after receipt of the
said proposals pursuant to subclause (1) give notice to the Company of his
decision in respect to the said proposals.
(5) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(3) the Minister shall afford the Company full opportunity to consult with him
and should it so desire to submit new or revised proposals either generally or
in respect to some particular matter.
(6) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(3) and the Company considers that the decision is unreasonable the Company
within two months after receipt of the notice mentioned in subclause (4) may
elect to refer to arbitration in the manner hereinafter provided the question
of the reasonableness of the decision PROVIDED THAT any requirement of the
Minister pursuant to the proviso to subclause (3) shall not be referable to
arbitration hereunder.
(7) The Company may
withdraw its proposals submitted pursuant to subclause (1) at any time before
approval thereof or, where any decision of the Minister in respect thereof is
referred to arbitration, within 3 months after the award by notice to the
Minister that it shall not be proceeding with the proposed modification
expansion or variation of its activities as so proposed in those proposals.
(8) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Company shall implement the decision of the Minister or an award made
on arbitration (where the proposals are not withdrawn) as the case may be in
accordance with the terms
thereof. ”.
(7) Clause 9 —
(a)
subclause (1) —
(i)
by deleting “matters referred to in paragraph (h)
of subclause (1) of Clause 5 and which are” and substituting the
following —
“ matters
relating to the environment which are referred to in the
approved project or which are ”;
(ii)
by deleting “such approved proposals” and
substituting the following —
“ the approved
project or such approved proposals as the case may be
”;
(b)
subclause (2) —
by deleting “the
date when the Company’s proposals are approved” and substituting
the following —
“ 1 July 1988
”;
(c)
subclause (3) —
(i)
by inserting after “additions to” the
following —
“ the approved
project or ”;
(ii)
by inserting after “addressed in” the
following —
“ the approved
project or ”;
(d)
subclause (5) —
by deleting
“Clause 5 and Clause 6 (other than subclauses (6) and (7))” and
substituting the following —
“ subclauses
(3), (4), (5) and (6) of Clause 8 ”.
(8) By inserting after
Clause 17 the following clause —
“ 17A.
(1) Subject to subclause (2)
the design, construction, commissioning and operation of the silicon plant
shall comply with the lawful requirements of and all regulations and bylaws of
all relevant local and other authorities of the State and the Commonwealth and
all Acts of the State and Commonwealth applicable thereto.
(2) Notwithstanding
the provisions of any Act, regulation, bylaw, interim development order or
town planning scheme the Company may proceed with the development of the
silicon plant site and the construction and commissioning of the silicon plant
in accordance with the approved project. ”.
(9) Clause 22 —
by inserting after
subclause (4) the following subclause —
“ (5)
Without prejudice to the rights of the State under the
preceding subclauses the State may upon any failure by the Company to make
payment to the State under Clause 6(3) or under Clause 6A give notice to the
Company specifying the failure and if such failure is not remedied by the
Company within 14 days after the giving of such notice the State may by
further notice to the Company determine this Agreement.
”.
(10) Clause 23 —
by deleting “all
moneys” and substituting the following —
“ any moneys due
or falling due pursuant to Clause 6(3) or Clause 6A and all other monies
”.
(11) Clause 28 —
subclause (1)
paragraph (c) —
(a) by
deleting “transfer” and substituting the following —
“ grant
”;
(b) by
deleting “subclause (9) of ”.
(12) Clause 32
subclause (1) —
by deleting
“Clause 6(3).”.
4. The Guarantor hereby consents to this
Agreement.
IN WITNESS WHEREOF this Agreement had been executed by or on behalf of the
parties hereto and day and year first hereinbefore written.
SIGNED by the said THE HONOURABLE PETER M’CALLUM DOWDING, L.L.B., M.L.A.
in the presence of: D. PARKER |
|
PETER DOWDING |
THE COMMON SEAL of BARRACK SILICON PTY. LTD. was hereunto affixed by authority
of the Directors in the presence of: Director V. J. NOVAK Secretary DONNA COX |
|
[C.S.] |
THE COMMON SEAL of BARRACK MINES LIMITED was hereunto affixed by authority of
the Directors in the presence of: Director V. J. NOVAK Secretary DONNA COX |
|
[C.S.] |
[Schedule 2 inserted: No. 3 of 1988 s. 8.]