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CEMENT WORKS (COCKBURN CEMENT LIMITED) AGREEMENT AMENDMENT BILL 2010

                    Western Australia


Cement Works (Cockburn Cement Limited)
    Agreement Amendment Bill 2010

                       CONTENTS


 1.   Short title                                               2
 2.   Commencement                                              2
 3.   Act amended                                               2
 4.   Section 2 amended                                         2
 5.   Section 6 inserted                                        2
      6.       Ratification of Third Variation Agreement   2
 6.   Fifth Schedule inserted                                   3
      Fifth Schedule -- Third Variation Agreement




                           138--1                               page i
                           Western Australia


                     LEGISLATIVE ASSEMBLY



   Cement Works (Cockburn Cement Limited)
       Agreement Amendment Bill 2010


                               A Bill for


An Act to amend the Cement Works (Cockburn Cement Limited)
Agreement Act 1971.



The Parliament of Western Australia enacts as follows:




                                                         page 1
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 1



 1   1.          Short title
 2               This is the Cement Works (Cockburn Cement Limited)
 3               Agreement Amendment Act 2010.

 4   2.          Commencement
 5               This Act comes into operation as follows --
 6                (a) sections 1 and 2 -- on the day on which this Act
 7                      receives the Royal Assent;
 8                (b) the rest of the Act -- on the day after that day.

 9   3.          Act amended
10               This Act amends the Cement Works (Cockburn Cement Limited)
11               Agreement Act 1971.

12   4.          Section 2 amended
13               In section 2 insert in alphabetical order:
14

15                     the Third Variation Agreement means the agreement a
16                     copy of which is set forth in the Fifth Schedule;
17


18   5.          Section 6 inserted
19               After section 5 insert:
20


21          6.         Ratification of Third Variation Agreement
22               (1)   The Third Variation Agreement is ratified.
23               (2)   The implementation of the Third Variation Agreement
24                     is authorised.
25               (3)   Without limiting or otherwise affecting the
26                     Government Agreements Act 1979, the Third Variation


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                                                                         s. 6


 1               Agreement operates and takes effect despite any other
 2               Act or law.
 3


 4   6.    Fifth Schedule inserted
 5         After the Fourth Schedule insert:
 6


 7          Fifth Schedule -- Third Variation Agreement
 8                                                                   [s. 2]
 9                                    2010
10            THE HONOURABLE COLIN JAMES BARNETT
11         PREMIER OF THE STATE OF WESTERN AUSTRALIA
12                                     and
13          THE HONOURABLE SIMON MCDONNELL O'BRIEN
14                  MINISTER FOR TRANSPORT
15                                     and
16                    FREMANTLE PORT AUTHORITY
17                                     and
18                    COCKBURN CEMENT LIMITED
19                             ACN 008 673 470
20
21

22           CEMENT WORKS (COCKBURN CEMENT LIMITED)
23                      AGREEMENT 1971
24                  VARIATION AGREEMENT
25

26

27

28                             [Solicitor's details]


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     s. 6


 1          THIS AGREEMENT is made this 14 day of June 2010
 2          BETWEEN
 3          THE HONOURABLE COLIN JAMES BARNETT MEc., M.L.A.,
 4          Premier of the State of Western Australia, acting for and on behalf of
 5          the Government of the said State and its instrumentalities (State)
 6          AND
 7          THE HONOURABLE SIMON McDONNELL O'BRIEN M.L.A.,
 8          Minister for Transport, being the Minister in the Government of the
 9          State of Western Australia for the time being responsible for the
10          administration of the Port Authorities Act 1999 (Port Authorities
11          Minister)
12          AND
13          FREMANTLE PORT AUTHORITY, a body corporate established
14          pursuant to the Port Authorities Act 1999 (Authority)
15          AND
16          COCKBURN CEMENT LIMITED ACN 008 673 470 of Level 1,
17          157 Grenfell Street, Adelaide, South Australia (Company).
18

19          RECITALS
20          A.    The parties to this Agreement are now the parties to the
21                agreement dated 18 February 1971 (as amended by an
22                agreement dated 25 August 1971), the execution of which by
23                the State was ratified by the Cement Works (Cockburn Cement
24                Limited) Agreement Act 1971, as varied by:
25                (a)   an agreement dated 24 October 1986, ratified by the
26                      Cement Works (Cockburn Cement Limited) Agreement
27                      Amendment Act 1986; and
28                (b)   an agreement dated 14 May 1997, ratified by the Cement
29                      Works (Cockburn Cement Limited) Agreement
30                      Amendment Act 1997.




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                                                                            s. 6


 1        The first mentioned agreement as so amended and varied is
 2        referred to in this Agreement as the Principal Agreement.
 3   B.   The parties wish to add to and vary the provisions of the
 4        Principal Agreement on the terms and conditions set out in this
 5        Agreement.
 6   THE PARTIES AGREE AS FOLLOWS:
 7   1.   Subject to the context, the words and expressions used in this
 8        Agreement have the same meanings respectively as they have in
 9        and for the purpose of the Principal Agreement.
10   2.   The State shall introduce and sponsor a Bill in the Parliament of
11        Western Australia to ratify this Agreement and shall endeavour
12        to secure its passage as an Act prior to 30 September 2010 or
13        such later date as the parties may agree.
14   3.   (a)   Clause 4 of this Agreement shall not come into operation
15              unless or until an Act passed in accordance with clause 2
16              of this Agreement ratifies this Agreement.
17        (b)   If by 10 December 2010 or such later date as may be
18              agreed pursuant to clause 2 of this Agreement, clause 4 of
19              this Agreement has not come into operation then unless
20              the parties otherwise agree, this Agreement will then
21              cease and determine and no party hereto will have any
22              claim against any other party hereto with respect to any
23              matter or thing arising out of, done, performed or omitted
24              to be done or performed under this Agreement.
25   4.   The Principal Agreement is hereby varied as follows:
26        (1)   in clause 1(2):
27              (a)    by inserting in the appropriate alphabetical
28                     positions the following new definitions:
29                     "Area A" means the area marked "Area A"
30                     outlined in red on the Plan (excluding that part
31                     shaded grey on the Plan);
32                     "Area B" means the area marked "Area B"
33                     outlined in orange on the Plan;


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     s. 6


 1                       "Environmental Approvals" means:
 2                       (a)   Ministerial Statement No. 000494 that a
 3                             proposal may be implemented issued under
 4                             the EP Act, as amended from time to time
 5                             under the EP Act;
 6                       (b)   Ministerial Statement No. 000599 that a
 7                             proposal may be implemented issued under
 8                             the EP Act, as amended from time to time
 9                             under the EP Act;
10                       "Exploration Licences" means:
11                       (a)   exploration licence number 70/1247;
12                       (b)   exploration licences number 70/1136,
13                             70/1298 and 70/1300; and
14                       (c)   any exploration licences issued to the
15                             Company under the laws from time to time
16                             of Western Australia wholly in respect of all
17                             or part of Area B and in substitution wholly
18                             or in part for any of the abovementioned
19                             exploration licences;
20                       "lapse" for the purposes of clause 6, is given its
21                       usual meaning of "a slight error" provided
22                       however a "lapse" will not be deemed to have
23                       occurred in the following circumstances:
24                       (a)   where the Company has failed to perform
25                             the Company's obligations in clause 6(1b)
26                             and any such act or omission causes or
27                             contributes to any loss, damage or
28                             inconvenience to the Authority that is
29                             substantial, such that any loss, damage or
30                             inconvenience has a material effect on the
31                             Authority's operation of the Port (as
32                             determined by the Authority acting
33                             reasonably);
34                       (b)   if port services are obstructed, delayed or a
35                             hazard exists which is caused or contributed

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                                                                         s. 6


 1                       to by the Company and which obstruction,
 2                       delay or hazard continues for a period of
 3                       more than 12 hours (or such longer period as
 4                       the Authority may in its discretion allow)
 5                       after either:
 6                       (i)    the Company becomes aware, or
 7                              should have been aware, of the
 8                              obstruction to port services; or
 9                       (ii)   the Authority has notified the
10                              Company of such non-performance of
11                              the Company's obligations,
12                       whichever is the sooner; or
13                 (c)   in respect of port works or port facilities,
14                       where the Authority has given the Company
15                       reasonable time to remove the obstruction or
16                       hazard or to cease the delay to port works or
17                       port facilities and that obstruction, hazard or
18                       delay continues after the expiration of that
19                       reasonable time specified in the notice to the
20                       Company by the Authority;
21                 "mining lease" means any mining lease granted
22                 pursuant to clause 6D and according to the
23                 requirements of the context shall describe the area
24                 of land demised as well as the instrument by which
25                 it is demised;
26                 "Minister for Mines" means the Minister in the
27                 Government of the State for the time being
28                 responsible for the administration of the
29                 Mining Act;
30                 "Plan" means the Plan marked "C" initialled by or
31                 on behalf of the parties for the purpose of
32                 identification;
33                 "Port" means the Port of Fremantle, for which the
34                 Authority is established under the Port Authorities
35                 Act;


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     s. 6


 1                         "Port Authorities Act" means the Port Authorities
 2                         Act 1999;
 3                         "Port Authorities Minister" means the Minister in
 4                         the Government of the State for the time being
 5                         responsible for the administration of the Port
 6                         Authorities Act;
 7                         "port facilities" has, in respect of the Port, the
 8                         meaning given by section 3(1) of the Port
 9                         Authorities Act;
10                         "port services" has, in respect of the Port, the
11                         meaning given by section 35(9) of the Port
12                         Authorities Act;
13                         "port works" has, in respect of the Port, the
14                         meaning given by section 35(9) of the Port
15                         Authorities Act;
16                         "Shipping Channels" means the areas delineated as
17                         "Existing Shipping Channel" and "Proposed
18                         Second Shipping Channel" respectively on the
19                         Plan;
20                         "vessel" has the meaning given by sections 3(2)
21                         and 3(3) of the Port Authorities Act;
22                   (b)   by deleting the existing definitions of "Fremantle
23                         Port Authority Act", "Minister for Minerals and
24                         Energy", "Minister for Works" and "shell sand";
25                         and
26                   (c)   in the definition of "Land Act" by deleting "Land
27                         Act 1933" and substituting "Land Administration
28                         Act 1997";
29             (2)   in clause 4:
30                   (a)   by deleting in subclause (1) "Minister for Works"
31                         and substituting "Port Authorities Minister"; and




     page 8
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                                                                             s. 6


 1             (b)   by inserting after subclause (2) the following new
 2                   subclause:
 3                   "(3)     Subject to obtaining all necessary
 4                            approvals under the EP Act the Company
 5                            may with the approval of the Authority
 6                            (such approval not to be unreasonably
 7                            withheld) dredge its approach channel to
 8                            the jetty.";
 9       (3)   by deleting clause 5;
10       (4)   by deleting the heading to clause 6 and substituting it
11             with the following new heading:
12             "Right to Dredge Shell Sand in Area A";
13       (5)   in clause 6:
14             (a)   by deleting subclause (1) and substituting the
15                   following new subclause:
16                   "(1)     The State and the Authority shall permit
17                            the Company, subject to the EP Act and to
18                            the Company complying with its
19                            obligations under this Agreement, during
20                            the currency of this Agreement and free of
21                            rent or other charges (other than royalty as
22                            hereinafter provided) payable to the State
23                            or the Authority but at its own cost in all
24                            other respects to dredge and use for the
25                            purposes of the Company's cement and
26                            clinker manufacturing operations and any
27                            other operations approved by the State
28                            from time to time (which approval shall
29                            not be unreasonably withheld):
30                            (a)      shell sand from those areas of the
31                                     Port within Area A that are
32                                     approved for dredging by or
33                                     pursuant to the Environmental
34                                     Approvals; and



                                                                         page 9
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     s. 6


 1                                (b)   shell sand from those areas,
 2                                      approved by the Authority from time
 3                                      to time, of the Port within Area A
 4                                      and in respect of which approval to
 5                                      dredge for shell sand (other than by
 6                                      or pursuant to the Environmental
 7                                      Approvals) has been granted to the
 8                                      Company under the EP Act.";
 9                  (b)   by deleting subclause (1a) and substituting the
10                        following new subclauses:
11                        "(1a)   In considering applications from the
12                                Company for approval for areas of the Port
13                                within Area A from which shell sand may
14                                be obtained as referred to in paragraph (b)
15                                of subclause (1) of this clause, the
16                                Authority will have regard for (but not be
17                                bound by) technical and economic
18                                considerations related to the Company's
19                                operations and where the area requested is
20                                not approved, the Authority will give its
21                                reasons and will use its best endeavours to
22                                mutually agree with the Company on
23                                alternative locations within areas of the
24                                Port within Area A from which shell sand
25                                may be obtained.
26                        (1b)    In obtaining shell sand as provided in this
27                                Agreement from areas of the Port within
28                                Area A including without limitation from a
29                                stockpile of shell sand, the Company shall
30                                comply with any reasonable terms and
31                                conditions set by the Authority and
32                                communicated to the Company by notice
33                                and shall not in any event do or omit to do
34                                anything which creates a hazard to or
35                                obstructs or delays navigation nor anything
36                                which is detrimental to the navigable
37                                channels or port works or will probably
38                                interfere (as determined by the Authority)
39                                with the efficient working of the Port.";

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                                                                           s. 6


 1            (c)   in subclause (2):
 2                  (i)     by deleting "any areas approved in
 3                          accordance with subclause (1) of this
 4                          clause" and substituting "the Port within
 5                          Area A"; and
 6                  (ii)    by inserting "including without limitation
 7                          from any stockpile of shell sand" after
 8                          "obtaining of shell sand";
 9            (d)   in subclause (3) by deleting "port installations" and
10                  substituting "port works";
11            (e)   in subclause (4):
12                  (i)     by inserting "(and without limiting the
13                          generality of the foregoing being the
14                          Shipping Channels)" after "the navigable
15                          channels";
16                  (ii)    by deleting "port installations" and
17                          substituting "port works";
18                  (iii)   by deleting "the port" (in both places where
19                          it appears) and substituting "the Port";
20                  (iv)    by inserting "(as determined by the
21                          Authority)" after the first substituted
22                          reference to "the Port"; and
23                  (v)     by deleting "Minister for Works" (in both
24                          cases where it appears) and substituting
25                          "Port Authorities Minister";
26            (f)   by deleting subclause (5) and substituting the
27                  following new subclause:
28                  "(5)     The Company shall not be entitled during
29                           the currency of this Agreement to dredge
30                           shell sand from within Area A otherwise
31                           than in accordance with this Agreement
32                           including, without limitation, the dredging
33                           and management programme as approved


                                                                      page 11
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     s. 6


 1                                 from time to time under clauses 6A-6C to
 2                                 be implemented by the Company.";
 3                   (g)   in subclause (6):
 4                         (i)    by deleting "pursuant to this clause" and
 5                                substituting "from within Area A pursuant to
 6                                this Agreement"; and
 7                         (ii)   by inserting at the end of that subclause the
 8                                following new sentence:
 9                                "This subclause shall cease to apply after
10                                18 February 2021.";
11                   (h)   in subclause (7) by deleting "the proviso to
12                         subclause (1)" and substituting "subclause (1b)";
13                   (i)   by inserting after subclause (7) the following new
14                         subclause:
15                         "(8)    The Company shall as soon as reasonably
16                                 practicable after they have been prepared
17                                 provide the Minister with a copy of all
18                                 reports, plans and other documentation
19                                 required to be prepared by the Company in
20                                 compliance with the Environmental
21                                 Approvals and any other approval given
22                                 under the EP Act during the currency of
23                                 this Agreement to operations of the
24                                 Company within Area A.";
25             (6)   in clause 6A by:
26                   (a)   in subclause (1):
27                         (i)    deleting "the 31st day of December, 1986
28                                and thereafter not later than the expiration of
29                                each successive two years" and substituting
30                                "31 December 2010 and thereafter not later
31                                than 31 December of each successive year";
32                                and
33                         (ii)   deleting "upon the sand banks" and
34                                substituting "within Area A (including, but

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     Cement Works (Cockburn Cement Limited) Agreement Amendment
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                                                                            s. 6


 1                           not limited to, that part of Area A shown
 2                           cross hachured on the Plan upon the grant to
 3                           the Company of the mining lease)"; and
 4             (b)   in paragraph (d) of subclause (2):
 5                   (i)     deleting all the words from the beginning of
 6                           the paragraph up to and including
 7                           "subsequent DMPs"; and
 8                   (ii)    deleting "since that date" and substituting
 9                           "since 31 December 1986";
10       (7)   in clause 6B by:
11             (a)   in subclause (1):
12                   (i)     inserting "subject to the EP Act" after "On
13                           receipt of a DMP the Minister shall";
14                   (ii)    deleting the full stop at the end of
15                           paragraph (b) and substituting a comma; and
16                   (iii)   inserting the following proviso to
17                           paragraphs (a) and (b):
18                           "provided always that where implementation
19                           of dredging and other activities referred to in
20                           the DMP have been approved pursuant to
21                           the EP Act subject to conditions or
22                           procedures, any approval or decision of the
23                           Minister under this subclause shall, if the
24                           case so requires, incorporate a requirement
25                           that the Company make such alterations to
26                           the DMP as may be necessary to make them
27                           accord with those conditions or
28                           procedures.";
29             (b)   deleting subclause (2) and inserting the following
30                   new subclause:
31                   "(2)     The Minister shall within two months after
32                            the receipt of a DMP give notice to the
33                            Company of his decision provided that in
34                            respect of a DMP, all or part of which

                                                                      page 13
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     s. 6


 1                                 contains a proposal (as defined in the EP
 2                                 Act) which is to be assessed under Part IV
 3                                 of the EP Act, the Minister shall give
 4                                 notice to the Company of his decision in
 5                                 respect of that DMP within two months
 6                                 after the later happening of receipt of the
 7                                 DMP and service on him of an authority
 8                                 under section 45(7) of the EP Act in
 9                                 respect of that proposal."; and
10                   (c)   by inserting after subclause (5) the following new
11                         subclause:
12                         "(6)    The parties acknowledge that pending the
13                                 approval by the Minister of the DMP
14                                 required to be submitted by the Company
15                                 under clause 6A(1) by 30 September 2010,
16                                 the dredging and management programme
17                                 for the period 2009-2018 marked "A" and
18                                 initialled by or on behalf of the Company
19                                 and the Minister for the purpose of
20                                 identification is the current approved DMP
21                                 to be implemented by the Company under
22                                 this Agreement.";
23             (8)   in clause 6C by:
24                   (a)   deleting subclause (2) and inserting the following
25                         new subclause:
26                         "(2)    Such necessary variations to any approved
27                                 DMP may be implemented from time to
28                                 time following agreement to them:
29                                 "(a)    in respect of areas of the Port
30                                         within Area A, between the
31                                         Company and the Authority; and
32                                 (b)     in respect of other areas of Area A,
33                                         between the Company and the
34                                         Minister."; and
35                   (b)   in subclause (3) by deleting "regarding" and
36                         substituting "between the Company and the

     page 14
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                                                                           s. 6


 1                    Authority regarding, in respect of an area of the
 2                    Port within Area A,";
 3       (9)   by re-designating clause 6D as clause 6G and inserting
 4             the following new clauses:
 5             "6D.    (1)    On application made not later than
 6                            20 December 2010 (or such later date as
 7                            the Minister may approve pursuant to
 8                            clause 16) by the Company to the Minister
 9                            for Mines in such manner as the Minister
10                            for Mines may direct for a mining lease of
11                            the land within Area A shown cross
12                            hachured on the Plan and which is then
13                            held by the Company under exploration
14                            licence number 70/1247, the State shall
15                            subject to the EP Act and the conditions set
16                            out in the following subclauses and insofar
17                            as is permitted by laws relating to native
18                            title cause a mining lease of the land so
19                            applied for to be granted to the Company.
20                     (2)    The grant of the mining lease referred to in
21                            subclause (1) of this clause shall be subject
22                            to the conditions that:
23                            (a)     the mining lease may be granted
24                                    before the area leased has been
25                                    surveyed but in that case shall be
26                                    granted subject to the condition
27                                    that the area leased shall be
28                                    surveyed by or on behalf of the
29                                    State at the Company's expense
30                                    and shall accord with that survey;
31                            (b)     the mining lease shall only permit
32                                    the Company to mine shell sand in
33                                    accordance with this Agreement;
34                            (c)     the mining lease shall only be
35                                    granted on the surrender of
36                                    exploration licence number
37                                    70/1247 in respect of all of that

                                                                      page 15
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     s. 6


 1                                      part of Area A shown cross
 2                                      hachured on the Plan;
 3                              (d)     the rental payable in respect of the
 4                                      mining lease shall be that
 5                                      prescribed from time to time under
 6                                      the Mining Act;
 7                              (e)     royalties in respect of shell sand
 8                                      from the mining lease shall be
 9                                      payable as provided in clause 6E;
10                              (f)     any assignment or other disposal
11                                      of the mining lease shall be subject
12                                      to clause 15;
13                              (g)     the Company shall not be entitled
14                                      to a renewal of the term of the
15                                      mining lease; and
16                              (h)     the mining lease shall be granted
17                                      under and except as otherwise
18                                      provided in this Agreement subject
19                                      to the Mining Act but in the form
20                                      of Schedule 2 hereto.
21                        (3)   Notwithstanding any provisions of the
22                              Mining Act to the contrary, the term of the
23                              mining lease shall be for a period
24                              commencing on the date of grant of the
25                              mining lease and ending on
26                              18 February 2031, subject to the sooner
27                              determination of the said term upon the
28                              earlier determination of this Agreement.
29                        (4)   For the purposes of this Agreement and
30                              without limiting the operation of
31                              subclauses (1) to (3) above, the application
32                              of the Mining Act is specifically modified:
33                              (a)     in section 71 by deleting "after
34                                      receiving a recommendation of the
35                                      mining registrar or the warden in
36                                      accordance with section 75,";

     page 16
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                                                                         s. 6


 1                         (b)     by deleting sections 74(1)(a), (ca)
 2                                 and (d), 74(2), 74(3) and 75; and
 3                         (c)     in section 82(1b) by deleting ", in
 4                                 accordance with proposals
 5                                 approved, deemed to be approved
 6                                 or determined under the
 7                                 agreement."
 8                   (5)   The State shall ensure that during the
 9                         currency of this Agreement and subject to
10                         compliance with its obligations hereunder
11                         the Company shall not be required to
12                         comply with the expenditure conditions
13                         imposed by or under the Mining Act in
14                         regard to the mining lease.
15                   (6)   The Company shall at all times permit the
16                         State and third parties to have access to
17                         and to pass over the mining lease so long
18                         as (except in the case of access or passage
19                         by naval ships or civilian ships supporting
20                         military functions) that access and passage
21                         does not unduly prejudice or interfere with
22                         the activities of the Company under this
23                         Agreement.
24                   (7)   Notwithstanding the provisions of this
25                         clause and the Mining Act, with the
26                         approval of the Minister the Company may
27                         from time to time (with abatement of
28                         future rent in respect to the area
29                         surrendered but without any abatement of
30                         rent already paid or any rent which has
31                         become due and has been paid in advance)
32                         surrender to the State all or any portion or
33                         portions of the mining lease.
34                   (8)   Notwithstanding any provisions of the
35                         Mining Act to the contrary, the holding by
36                         the Company of exploration licence
37                         number 70/1247 over that part of Area A


                                                                  page 17
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     s. 6


 1                               shown cross hachured on the Plan shall not
 2                               entitle it to be granted a mining lease over
 3                               that land otherwise than in accordance with
 4                               this clause.
 5                         (9)   If the Company does not apply for a
 6                               mining lease as contemplated by this
 7                               clause by the latest date for such
 8                               application under subclause (1), then
 9                               exploration licence number 70/1247 shall
10                               on that date be deemed surrendered (if then
11                               still current) in respect of all of that part of
12                               Area A shown cross hachured on the Plan.
13                  Royalties on Shell Sand or Alternative Material
14                  6E.    The Company shall in respect of all shell sand
15                         mined by the Company from within Area A
16                         (excluding the area shown cross hachured on the
17                         Plan), from the mining lease or otherwise
18                         pursuant to this Agreement, and on all alternative
19                         material mined by the Company on Crown land
20                         pursuant to this Agreement, pay to the State
21                         royalties at the rates from time to time prescribed
22                         under the Mining Act and shall comply with the
23                         provisions of the Mining Act and regulations
24                         made thereunder with respect to the filing of
25                         production reports and payment of royalties
26                         provided that:
27                         (a)   the quantity of shell sand or alternative
28                               material on which royalty is to be paid is
29                               that quantity which has been fully prepared
30                               for presentation to kiln processes
31                               quantified at the nearest measurement
32                               point prior to kiln entry and adjusted to a
33                               dry basis; and
34                         (b)   royalties on shell sand so mined shall be
35                               paid at the rates from time to time
36                               prescribed under the Mining Act as
37                               payable in respect of limestone used for


     page 18
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                          s. 6


 1                          metallurgical purposes as a neutralising
 2                          agent.
 3                  This clause does not limit any obligation that the
 4                  Company may have under the Mining Act or any
 5                  other Act to pay royalties in respect of shell sand
 6                  or alternative material mined by the Company
 7                  from the area shown cross hachured on the Plan
 8                  before the grant of the mining lease, from Area B
 9                  or otherwise than pursuant to this Agreement or in
10                  respect of other minerals mined by the Company.
11            Continuation of Exploration Licences
12            6F.    Each of the Exploration Licences shall in respect
13                   of the land from time to time the subject thereof
14                   and subject to compliance by the Company with
15                   the terms and conditions applicable thereto (as
16                   modified by this clause) be, until the earlier of:
17                   (a)    its forfeiture under the Mining Act or other
18                          Act under which it may from time to time
19                          be held or its surrender in whole or
20                          conversion in full to another title or titles;
21                          and
22                   (b)    11 December 2025 or the expiration of the
23                          term of this Agreement if the Minister so
24                          approves on application made by the
25                          Company not earlier than 1 January 2024,
26                   held under and subject to the provisions of the
27                   Mining Act or other Act under which it may at
28                   the time be held modified as follows:
29                   (c)    the Company shall not be required to
30                          surrender any part or parts of the licence as
31                          otherwise may be required by the Mining
32                          Act or other Act under which it may from
33                          time to time be held;
34                   (d)    the Company shall be entitled to 2 yearly
35                          extensions of its term upon application for
36                          such extension made by the Company in

                                                                     page 19
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                                 accordance with the Mining Act, or other
 2                                 Act under which it may from time to time
 3                                 be held;
 4                          (e)    the Company shall not be required to
 5                                 comply with any expenditure conditions
 6                                 imposed by or under the Mining Act or
 7                                 other Act under which it may from time to
 8                                 time be held in regard thereto;
 9                          (f)    any assignment or other disposal thereof
10                                 shall be subject to clause 15; and
11                          (g)    if during the term of a licence it ceases to
12                                 have the benefit of this clause pursuant to
13                                 paragraph (b) it shall continue in force
14                                 under and subject to the Mining Act or
15                                 other Act under which it is at the time held
16                                 for the balance of its term then current.";
17             (10) by inserting immediately above the re-designated
18                  clause 6G, the following new heading:
19                   "Surrender of lease from the Commonwealth";
20             (11) in re-designated clause 6G by:
21                   (a)   inserting the subclause designation "(1)" before the
22                         existing provisions;
23                   (b)   in the re-designated subclause (1) deleting "the
24                         Schedule" and inserting "Schedule 1"; and
25                   (c)   inserting after the subclause (1) the following new
26                         subclause:
27                         "(2)    On application made by the Company not
28                                 later than 31 December 2010 the State
29                                 shall grant to the Company an extension to
30                                 18 February 2031 of the term of the lease
31                                 and licence referred to in subclause (1) of
32                                 this clause which was granted to the
33                                 Company on 28 October 1988 (if such
34                                 lease and licence is then still current)


     page 20
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                            s. 6


 1                            subject to its provisions in respect of
 2                            earlier determination of its term and to it
 3                            being varied to also provide for
 4                            re-appraisement of the annual rent payable
 5                            thereunder in respect of each three (3) year
 6                            period of the extended term commencing
 7                            on 1 April 2011 and to confirm that the
 8                            rights conferred by it in respect of Lot 51
 9                            on L.T.O. Plan 14756 and Lot 56 on
10                            L.T.O. Plan 14758 have ceased and
11                            determined. The Company shall sign an
12                            extension and variation of the lease and
13                            licence in such form as the State shall
14                            reasonably require. The State and the
15                            Company may further vary that lease and
16                            licence to provide for the Company's
17                            rights under it in respect of Lot 61 on
18                            L.T.O. Diagram 67078 to cease and
19                            determine in exchange for the Company
20                            being granted a pipeline easement over that
21                            Lot 61, portion of Lot 51 on L.T.O. Plan
22                            14756 and portion of Lot 501 on Deposited
23                            Plan 56133 under the Land Act.";
24       (12) in clause 7:
25             (a)   by deleting subclause (1);
26             (b)   in subclause (2) by:
27                   (i)     inserting "(not being within Area A or Area
28                           B)" after "aforesaid, or such other land";
29                   (ii)    deleting in paragraph (c) "this subclause"
30                           and substituting "subclause (2a)"; and
31                   (iii)   by deleting the semi-colon at the end of the
32                           paragraph (2)(c) and all the words in that
33                           paragraph immediately after that
34                           semi-colon;
35             (c)   by deleting the subclause designation "(2a)" and
36                   substituting the subclause designation "(2b)"; and


                                                                     page 21
     Cement Works (Cockburn Cement Limited) Agreement Amendment
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     s. 6


 1                  (d)   by inserting immediately before the redesignated
 2                        sub-clause (2b) the following new subclause (2a):
 3                        "(2a)    The Company shall during the currency of
 4                                 this Agreement in respect of:
 5                                 (a) the works site;
 6                                 (b) other sites approved pursuant to
 7                                     clause 3(1) hereof;
 8                                 (c) other land approved in accordance
 9                                     with subclause (2) of this clause; and
10                                 (d) those parts of Area A referred to in
11                                     clause 6(1)(a) or approved by the
12                                     Authority as referred to in
13                                     clause 6(1)(b),
14                                 be exempted from all provisions of the
15                                 Mining Act (subject to subclause (2b) of
16                                 this clause) and of the Land Act (other than
17                                 the payment of royalties as provided in,
18                                 and any provision of the Mining Act
19                                 applying pursuant to, clause 6E and any
20                                 provision of the Mining Act and the Land
21                                 Act or either of them made applicable as a
22                                 condition of any approval of the State
23                                 given in accordance with subclause (2) of
24                                 this clause)."
25                  (e)   in the re-designated subclause (2b):
26                        (i)     by deleting "subclause (2)" and substituting
27                                "subclause (2a)";
28                        (ii)    by deleting "that subclause" and substituting
29                                "subclause (2) of this clause"; and
30                        (iii)   by deleting in paragraph (ii) "Minister for
31                                Minerals and Energy" and substituting
32                                "Minister for Mines";
33                  (f)   by deleting the heading "Expenditure Conditions"
34                        immediately above subclause (3):

     page 22
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                                                        Bill 2010



                                                                          s. 6


 1             (g)   in subclause (3):
 2                   (i)    by deleting the bracket after "the Mining
 3                          Act" and substituting "but excluding the
 4                          mining lease and all other mining tenements
 5                          held by the Company pursuant to this
 6                          Agreement in respect of Area A or Area B)
 7                          held by the Company";
 8                   (ii)   by deleting "Minister for Minerals and
 9                          Energy" and substituting "Minister for
10                          Mines"; and
11             (h)   by deleting the heading "Licences" immediately
12                   above subclause (4);
13       (13) in clause 7A by inserting immediately above clause 7A
14            the following new heading:
15             "Disposal of part of works site";
16       (14) in clause 10A:
17             (a)   by inserting immediately above clause 10A, the
18                   following new heading:
19                   "Reporting on environmental measures";
20             (b)   by inserting "and" after the semi-colon in
21                   paragraph (d);
22             (c)   by inserting "and under the mining lease."
23                   immediately after "hereof " in paragraph (e); and
24             (d)   by deleting all the words immediately after
25                   subclause (e) and replacing them with the
26                   following:
27                   "However, if the Company has already provided
28                   such information under clause 6(8) it will be
29                   sufficient for the Company to respond by reference
30                   to the relevant programme, plan or report already
31                   provided. As and when required by the Minister
32                   the Company shall liaise and cooperate with the
33                   Minister on measures it is taking and take

                                                                     page 23
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                        additional reasonable measures with respect to the
 2                        monitoring, protection and management of the
 3                        environment arising from its operations.";
 4             (15) in clause 10B:
 5                  (a)   by inserting immediately above clause 10B, the
 6                        following heading:
 7                        "Modification, expansion or variation of
 8                        operations";
 9                  (b)   by inserting in subclause (2) "(including without
10                        limitation the EP Act)" after "all applicable laws";
11                  (c)   by inserting in subclause (3) "subject to the EP Act
12                        in respect of each proposal submitted" after "shall"
13                        and immediately before the colon in the opening
14                        words of that subclause;
15                  (d)   by deleting the full stop at the end of
16                        subclause (3)(c) and substituting a comma and by
17                        inserting at the end of subclause (3) the following
18                        proviso:
19                        "PROVIDED ALWAYS that where
20                        implementation of any proposals pursuant to
21                        subclause (1) of this clause have been approved
22                        pursuant to the EP Act subject to conditions or
23                        procedures, any approval or decision of the
24                        Minister under this clause shall, if the case so
25                        requires, incorporate a requirement that the
26                        Company make such alterations to the proposals as
27                        may be necessary to make them accord with those
28                        conditions or procedures.";
29                  (e)   by deleting the full stop at the end of subclause (4)
30                        and inserting the following at the end of that
31                        subclause and immediately after "same":
32                        "PROVIDED THAT:
33                        (a)   where a proposal is to be assessed under
34                              part IV of the EP Act the Minister shall be


     page 24
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                             s. 6


 1                          required to give notice to the Company of
 2                          his decision in respect to the proposal within
 3                          2 months after the later happening of the
 4                          receipt of the proposal and the service on
 5                          him of an authority under section 45(7) of
 6                          the EP Act; and
 7                    (b)   where implementation of a proposal by the
 8                          State will or may require the State to do any
 9                          act which affects any native title rights and
10                          interests the Minister shall be required to
11                          give notice to the Company of his decision
12                          in respect to the proposal not later than
13                          2 months after the later happening of the
14                          receipt of the proposal and the completion of
15                          all processes required by laws relating to
16                          native title to be undertaken by the State
17                          before that act may be done by the State.";
18       (16) by inserting the following heading immediately above
19            subclause 10C:
20             "Compliance with the EP Act";
21       (17) by inserting after clause 12 the following new clauses:
22             "No resumption
23             12A.    Subject to the performance by the Company of its
24                     obligations under this Agreement the State shall
25                     not during the currency of this Agreement
26                     without the consent of the Company resume or
27                     suffer or permit to be resumed by any State
28                     instrumentality or by any local or other authority
29                     of the State any of the works installations plant
30                     equipment or other property for the time being
31                     belonging to the Company and the subject of or
32                     used for the purpose of this Agreement nor any
33                     lands or sea bed the subject of any lease or
34                     licence granted to the Company in terms of this
35                     Agreement.




                                                                     page 25
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                  Non-Interference with the Company's rights
 2                  12B    (1)   Subject to the performance by the
 3                               Company of its obligations under this
 4                               Agreement the State shall not during the
 5                               currency of this Agreement register or
 6                               grant or permit to be registered or granted
 7                               any lease or other mining tenement under
 8                               the Mining Act in respect of Area A
 9                               (excluding the area shown cross hachured
10                               on the Plan) by which:
11                               (a)   any person will obtain any rights to
12                                     prospect or explore for, mine or take
13                                     shell sand; or
14                               (b)   any person will obtain any rights to
15                                     prospect or explore for, mine or take
16                                     other minerals unless the Minister
17                                     reasonably determines that it is not
18                                     likely to unduly prejudice or to
19                                     interfere with the operations of the
20                                     Company hereunder assuming the
21                                     taking by the Company of all
22                                     reasonable steps to avoid the
23                                     interference.
24                         (2)   Subject to the performance by the
25                               Company of its obligations under this
26                               Agreement the State shall not during the
27                               currency of the mining lease register or
28                               grant or permit to be registered or granted
29                               any lease or other mining tenement under
30                               the Mining Act in respect of the land the
31                               subject of the mining lease by which any
32                               person will obtain any rights to prospect or
33                               explore for, mine or take other minerals
34                               unless the Minister reasonably determines
35                               that it is not likely to unduly prejudice or
36                               to interfere with the operations of the
37                               Company hereunder assuming the taking



     page 26
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                              s. 6


 1                             by the Company of all reasonable steps to
 2                             avoid the interference.
 3             No discriminatory charges
 4             12C.     Except as provided in this Agreement the State
 5                      shall not impose, nor shall it permit or authorise
 6                      any of its agencies or instrumentalities or any
 7                      local government or authority of the State to
 8                      impose, discriminatory taxes, rates or charges of
 9                      any nature whatsoever on or in respect of the
10                      titles, property or other assets, products materials
11                      or services used or produced by or through the
12                      activities of the Company in the conduct of its
13                      business hereunder nor will the State take or
14                      permit to be taken by any such State authority
15                      any other discriminatory action which would
16                      deprive the Company of the full enjoyment of the
17                      rights granted or intended to be granted under
18                      this Agreement. In the application of this clause
19                      the conferral of rights upon parties to other
20                      Government agreements (as defined in the
21                      Government Agreements Act 1979) shall be
22                      disregarded.";
23       (18) in clause 13:
24             (a)    by deleting:
25                    (i)     "the Minister for Works and the Authority"
26                            and substituting "the Port Authorities
27                            Minister, the Authority, the Minister for
28                            Mines and the Minister";
29                    (ii)    "wish" and substituting "with"; and
30             (b)    by inserting the following new sentence at the end
31                    of the existing provisions:
32                    "The Company will also indemnify and keep
33                    indemnified the State and the Authority from and
34                    against all liability (if any) to pay compensation to
35                    native title holders (as defined in the Native Title
36                    Act 1993 (Commonwealth)) for, or in respect of,

                                                                       page 27
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                         the grant to, or exercise by, the Company of rights,
 2                         as referred to in clause 6(1), to dredge shell sand in
 3                         Area A."; and
 4                   (c)   by inserting the subclause designation "(1)" before
 5                         the existing provisions and by inserting after
 6                         subclause 13(1) the following new subclause:
 7                         "(2) The Company shall indemnify the Authority
 8                              for any damage to the seabed, port works or
 9                              any loss or damage that the Authority suffers
10                              as a result of the Shipping Channels or either
11                              of them, port works or port services of the
12                              Authority being obstructed or delayed
13                              provided that:
14                                (a)   this indemnity only applies to loss or
15                                      damage that is caused by the
16                                      Company or an employee, agent or
17                                      contractor of the Company; and
18                                (b)   this indemnity shall not apply to
19                                      consequential damages, business
20                                      disruption or loss of profits.";
21             (19) in clause 14 by inserting the subclause designation "(1)"
22                  before the existing provisions and by inserting after
23                  subclause 14(1) the following new subclauses:
24                   "(2) The Minister shall cause any agreement made
25                        pursuant to subclause (1) of this clause in respect
26                        of any addition to, variation or cancellation of the
27                        provisions of this Agreement to be laid on the
28                        Table of each House of Parliament within
29                        12 sitting days next following its execution.
30                   (3)   Either House may, within 12 sitting days of that
31                         House after the agreement has been laid before it,
32                         pass a resolution disallowing the agreement, but if
33                         after the last day on which the agreement might
34                         have been disallowed neither House has passed
35                         such a resolution the agreement shall have effect
36                         from and after that last day.";


     page 28
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                          s. 6


 1       (20) in clause 15 by deleting the existing wording and
 2            substituting the following:
 3             "The Company shall not assign or otherwise dispose of
 4             the whole or any part of its rights hereunder (including
 5             without limitation to or as the holder of the mining lease
 6             or of the Exploration Licences while such licences have
 7             the benefit of clause 6F), without the prior consent of the
 8             Minister and, in the case of rights conferred by clause 6
 9             hereof, without also the prior consent of the Port
10             Authorities Minister and the Authority. The Minister, the
11             Port Authorities Minister and the Authority may each of
12             them in their absolute discretion give or withhold consent
13             or give consent subject to such conditions as they may
14             determine. Notwithstanding the provisions of the Mining
15             Act insofar as the same may apply, no assignment or
16             other disposal made or given by the Company pursuant to
17             this clause of or over the mining lease or any of the
18             Exploration Licences shall require any approval or
19             consent other than such consent as may be necessary
20             under this clause.";
21       (21) in clause 16:
22             (a)   by deleting "the State" and substituting "the
23                   Minister"; and
24             (b)   by deleting the comma and all the words
25                   immediately after "thinks fit";
26       (22) in clause 18 by deleting "the Minister for Works or the
27            Authority" and substituting "the Port Authorities
28            Minister, the Authority, the Minister for Mines or the
29            Minister";
30       (23) in clause 20:
31             (a)   by inserting in paragraph (i) "or from the Minister"
32                   after "from the State";
33             (b)   by deleting in paragraph (ii) "Minister for Works"
34                   and substituting "Port Authorities Minister";



                                                                     page 29
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                   (c)   by deleting in paragraph (iii) the existing wording
 2                         and substituting the following:
 3                         "if from the Authority, be signed by the
 4                         chairperson of the board of directors of the
 5                         Authority or by the chief executive officer of the
 6                         Authority acting by direction of the board of
 7                         directors of the Authority"; and
 8                   (d)   by amending the paragraph numbering from (i) to
 9                         (iv) to (a) to (d);
10             (24) by inserting after clause 20 the following new clauses:
11                   "Determination of Agreement"
12                   21.     (1)   In any of the following events namely if:
13                                 (a)   (i)    the Company makes default
14                                              which the State considers
15                                              material in the due
16                                              performance or observance of
17                                              any of its covenants or
18                                              obligations in this Agreement
19                                              or in the mining lease or in
20                                              the Company's lease and
21                                              licence referred to in
22                                              clause 6G;
23                                       (ii)   the Company abandons or
24                                              repudiates this Agreement or
25                                              its activities under this
26                                              Agreement,
27                                       and such default is not remedied or
28                                       such activities resumed within a
29                                       period of 6 months after notice is
30                                       given by the State as provided in
31                                       subclause (2) or, if the default or
32                                       abandonment is referred to
33                                       arbitration, then within the period
34                                       mentioned in subclause (3); or



     page 30
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                          s. 6


 1                         (b)   the Company goes into liquidation
 2                               (other than a voluntary liquidation
 3                               for the purpose of reconstruction)
 4                               and unless within 6 months from the
 5                               date of such liquidation the interest
 6                               of the Company is assigned to an
 7                               assignee approved by the Minister
 8                               under clause 15,
 9                         the State may by notice to the Company
10                         determine this Agreement.
11                   (2)   The notice to be given by the State in
12                         terms of paragraph (a) of subclause (1)
13                         shall specify the nature of the default or
14                         other ground so entitling the State to
15                         exercise such right of determination and
16                         where appropriate and known to the State
17                         the party or parties responsible therefor
18                         and shall be given to the Company and all
19                         such assignees and disponees for the time
20                         being of the Company's rights under this
21                         Agreement to or in favour of whom or by
22                         whom an assignment or disposition has
23                         been effected in terms of clause 15, whose
24                         name and address for service of notice has
25                         previously been notified to the State by the
26                         Company or any such assignee or
27                         disponee.
28                   (3)   (a)   If the Company contests the alleged
29                               default abandonment or repudiation
30                               referred to in paragraph (a) of
31                               subclause (1) it shall within 60 days
32                               after notice given by the State as
33                               provided in subclause (2) refer the
34                               matter in dispute to arbitration.
35                         (b)   If the question is decided against the
36                               Company, the Company shall
37                               comply with the arbitration award
38                               within a reasonable time to be fixed


                                                                  page 31
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                                     by that award PROVIDED THAT if
 2                                     the arbitrator finds that there was a
 3                                     bona fide dispute and that the
 4                                     Company was not dilatory in
 5                                     pursuing the arbitration, the time for
 6                                     compliance with the arbitration
 7                                     award shall not be less than 90 days
 8                                     from the date of such award.
 9                         (4)   If the default referred to in paragraph (a) of
10                               subclause (1) shall not have been remedied
11                               after receipt of the notice referred to in that
12                               subclause or within the time fixed by the
13                               arbitration award as aforesaid the State
14                               instead of determining this Agreement as
15                               aforesaid because of such default may
16                               itself remedy such default or cause the
17                               same to be remedied (for which purpose
18                               the State by agents workmen or otherwise
19                               shall have full power to enter upon lands,
20                               water or seabed occupied by the Company
21                               and to make use of all plant machinery
22                               equipment and installations thereon) and
23                               the actual costs and expenses incurred by
24                               the State in remedying or causing to be
25                               remedied such default shall be a debt
26                               payable by the Company to the State on
27                               demand.
28                  Effect of determination or cessation of Agreement
29                  22.    (1)   On the determination or cessation of this
30                               Agreement:
31                               (a)   (i)    subject to paragraph (b),
32                                            except as otherwise agreed by
33                                            the Minister the rights of the
34                                            Company to in or under this
35                                            Agreement and the rights of
36                                            the Company or any
37                                            mortgagee or chargee to in or
38                                            under the mining lease and


     page 32
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                          s. 6


 1                                      any other lease licence or
 2                                      other title or right granted
 3                                      under or pursuant to this
 4                                      Agreement shall thereupon
 5                                      cease and determine but
 6                                      without prejudice to the
 7                                      liability of any of the parties
 8                                      hereto in respect of any
 9                                      antecedent breach or default
10                                      under this Agreement or in
11                                      respect of any indemnity
12                                      given under this Agreement;
13                              (ii)    the Company shall forthwith
14                                      pay to the State all moneys
15                                      which may then have become
16                                      payable or accrued due; and
17                              (iii)   save as aforesaid and as
18                                      otherwise provided in this
19                                      Agreement none of the parties
20                                      shall have any claim against
21                                      the others of them with
22                                      respect to any matter or thing
23                                      in or arising out of this
24                                      Agreement; and
25                        (b)   each of the Exploration Licences
26                              that the Company holds on the
27                              cessation or determination of this
28                              Agreement and which immediately
29                              beforehand had the benefit of
30                              clause 6F shall continue in force
31                              under and subject to the Mining Act
32                              or other Act under which it is held
33                              for the balance of its term then
34                              current and any renewals granted
35                              pursuant to any such Act but without
36                              the benefit of the rights and
37                              privileges conferred by this
38                              Agreement.


                                                                   page 33
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                        (2)   Subject to the provisions of subclause (3)
 2                              and the provisions of the Company's lease
 3                              and licence referred to in clause 6G, upon
 4                              the cessation or determination of this
 5                              Agreement except as otherwise determined
 6                              by the Minister all buildings erections and
 7                              other improvements erected on any land
 8                              then occupied by the Company under the
 9                              mining lease or any other lease licence
10                              easement grant or other title made under or
11                              pursuant to this Agreement shall become
12                              and remain the absolute property of the
13                              State without the payment of any
14                              compensation or consideration to the
15                              Company or any other party and free and
16                              discharged from all mortgages and other
17                              encumbrances and the Company shall do
18                              and execute all such deeds documents and
19                              other acts matters and things (including
20                              surrenders) as the State may reasonably
21                              require to give effect to the provisions of
22                              this subclause.
23                        (3)   Subject to the provisions of the Company's
24                              lease and licence referred to in clause 6G,
25                              in the event of the Company immediately
26                              prior to the cessation or determination of
27                              this Agreement or subsequently thereto
28                              desiring to remove any of its fixed or
29                              movable plant and equipment or any part
30                              thereof from any part of the land occupied
31                              by it at the date of such cessation or
32                              determination it shall give to the State
33                              notice of such desire and thereby shall
34                              grant to the State the right or option
35                              exercisable within 3 months thereafter to
36                              purchase in situ such fixed or moveable
37                              plant and equipment at a fair valuation to
38                              be agreed between the parties or failing
39                              agreement determined by arbitration under
40                              this Agreement.

     page 34
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                             s. 6


 1             Term of this Agreement
 2             23.     (1)    Subject to the provisions of this Agreement
 3                            relating to sooner determination this
 4                            Agreement shall expire on
 5                            18 February 2031.
 6                     (2)    Unless this Agreement has already
 7                            determined the State will, at the request of
 8                            the Company made after 1 January 2024,
 9                            confer with the Company with respect to
10                            agreeing to commence negotiations for an
11                            extension of the term of this Agreement.
12                            Clause 17 shall not apply to this subclause.
13             Applicable law
14             24.     This Agreement shall be interpreted according to
15                     the law for the time being in force in the State of
16                     Western Australia."; and
17       (25) by redesignating the existing Schedule to the Agreement
18            as "Schedule 1" and inserting immediately after that
19            Schedule the following new Schedule:
20                            "SCHEDULE 2

21                      WESTERN AUSTRALIA

22                           MINING ACT 1978

23                         CEMENT WORKS
24                   (COCKBURN CEMENT LIMITED)
25                       AGREEMENT ACT 1971

26                           MINING LEASE
27             MINING LEASE NO.
28             The Minister a corporation sole established by the Mining
29             Act 1978 (hereinafter called "the Mining Act") with
30             power to grant leases of land for the purposes of mining
31             in consideration of the rents hereinafter reserved and of
32             the covenants on the part of the Lessee described in the

                                                                     page 35
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                  First Schedule to this lease and of the conditions
 2                  hereinafter contained and pursuant to the Mining Act
 3                  (except as otherwise provided by the Agreement
 4                  (hereinafter called "the Agreement") described in the
 5                  Second Schedule to this lease) hereby leases to the
 6                  Lessee the land more particularly delineated and
 7                  described in the Third Schedule to this lease for shell
 8                  sand subject however to the exceptions and reservations
 9                  set out in the Fourth Schedule to this lease and to any
10                  other exceptions and reservations which are by the
11                  Mining Act and by any Act for the time being in force
12                  deemed to be contained herein to hold to the Lessee this
13                  lease for a term commencing on the date set out in part A
14                  of the Fifth Schedule to this lease and expiring on the
15                  date set out in Part B of the Fifth Schedule to this lease
16                  (subject to the sooner determination of the said term upon
17                  the earlier determination of the Agreement) upon and
18                  subject to such of the provisions of the Mining Act
19                  except as otherwise provided by the Agreement as are
20                  applicable to mining leases granted thereunder and to the
21                  terms covenants and conditions set out in the Agreement
22                  and to the covenants and conditions herein contained or
23                  implied and any further conditions or stipulations set out
24                  in the Sixth Schedule to this lease the Lessee paying
25                  therefor the rents for the time being and from time to time
26                  prescribed pursuant to the provisions of the Mining Act at
27                  the times and in the manner so prescribed and royalties as
28                  provided in the Agreement PROVIDED ALWAYS that
29                  this lease shall not be determined or forfeited otherwise
30                  than in accordance with the Agreement.
31                  In this lease -
32                  "Lessee" includes the successors and permitted assigns of
33                  the Lessee.
34                  If the Lessee be more than one the liability of the Lessee
35                  hereunder shall be joint and several.
36                  Reference to an Act includes all amendments to that Act
37                  for the time being in force and also any Act passed in
38                  substitution therefor or in lieu thereof and to the


     page 36
     Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                        Bill 2010



                                                                           s. 6


 1            regulations and by-laws for the time being in force
 2            thereunder.
 3                        FIRST SCHEDULE
 4            (Name and address of "the Lessee")
 5                        SECOND SCHEDULE
 6            The agreement ratified by the Cement Works (Cockburn
 7            Cement Limited) Agreement Act 1971, as varied.
 8                        THIRD SCHEDULE
 9            (Description of land:)
10            Locality:
11            Mineral Field:                                Area, etc.:
12            Being the land delineated on Survey Diagram No.
13            and recorded in the Department of [ ], Perth.
14                        FOURTH SCHEDULE
15            All petroleum as defined in the Petroleum (Submerged
16            Lands) Act 1982 on or below the surface of the land the
17            subject of this lease is reserved to the Crown in right of
18            the State of Western Australia with the right of the
19            Crown in right of the State of Western Australia and any
20            person lawfully claiming thereunder or otherwise
21            authorized to do so to have access to the land the subject
22            of this lease for the purpose of searching for and for the
23            operations of obtaining petroleum (as so defined) in any
24            part of the land."
25                        FIFTH SCHEDULE
26            Part A: Commencement date:
27            Part B: Expiration date: 18 February 2031




                                                                    page 37
     Cement Works (Cockburn Cement Limited) Agreement Amendment
     Bill 2010



     s. 6


 1                                 SIXTH SCHEDULE
 2                     Pursuant to section 25 of the Mining Act the Minister
 3                     consents to the Lessee mining for shell sand in
 4                     accordance with the Agreement subject to the following
 5                     terms and conditions (terms and conditions, consistent
 6                     with the Agreement, imposed by the Minister on his
 7                     consent).
 8                     (Any further conditions or stipulations as during the term
 9                     of the Agreement the Minister may, consistent with the
10                     provisions of the Agreement, determine and thereafter
11                     may impose pursuant to the Mining Act).
12                     In witness whereof the Minister has affixed his seal and
13                     set his hand hereto this      day of
14                     20        ."
15          5.   Upon clause 4 of this Agreement coming into operation
16               ("variation date"), then notwithstanding the provisions of the
17               Mining Act 1978 and the Mining Regulations 1981:
18               (a)   that part of the Company's exploration licence
19                     number 70/1247 shown coloured grey on Plan D shall be
20                     deemed to have been surrendered by the Company on the
21                     variation date; and
22               (b)   that part of the Company's exploration licence number
23                     70/1136 shown coloured green on Plan D shall be
24                     deemed to have been surrendered by the Company on the
25                     variation date.
26               For the purposes of this clause Plan D means the plan marked
27               "D" initialled by or on behalf of the parties for the purpose of
28               identification.
29          EXECUTED as a deed.
30          SIGNED by THE HONOURABLE                     )
31          COLIN JAMES BARNETT                          )            [Signature]
32          in the presence of:                          )
33          [Signature]
34          _________________________________
35          Name: Sean David

     page 38
      Cement Works (Cockburn Cement Limited) Agreement Amendment
                                                         Bill 2010



                                                                     s. 6


 1   SIGNED by THE HONOURABLE                      )
 2   SIMON MCDONNELL O'BRIEN                       )   [Signature]
 3   in the presence of:                           )
 4   [Signature]
 5   ___________________________________
 6   Name: Brett Barton
 7   THE COMMON SEAL of                            )
 8   FREMANTLE PORT                                )   C.S.
 9   AUTHORITY was hereunto affixed                )
10   in the presence of:                           )
11   [Signature]
12   __________________________________
13   Director
14   Name: Robert Pearce
15   [Signature]
16   __________________________________
17   Secretary Chief Executive Officer
18   Name: Christopher Leatt-Hayter
19   THE COMMON SEAL of                            )
20   COCKBURN CEMENT LIMITED                       )   C.S.
21   ACN 008 673 470 was hereunto                  )
22   affixed in accordance with its constitution   )
23   in the presence of:                           )
24   [Signature]
25   __________________________________
26   Director
27   Name: Martin Brydon
28   [Signature]
29   __________________________________
30   Director/Secretary
31   Name: Marcus Clayton
32   [Signature]
33   __________________________________
34   Director
35   Name: Thomas Douglas

36



 


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