Exhibit
Exhibit 10.42



Wodgina Joint Venture Agreement
Wodgina Project


Wodgina Lithium Pty Ltd
Albemarle Wodgina Pty Ltd
Wodgina Lithium Operations Pty Ltd










Contents
 
Page

1
Defined terms and interpretation
1

 
1.1
Definitions in the Dictionary
1

 
1.2
Interpretation
1

2
Joint Venture
1

 
2.1
Formation of Joint Venture
1

 
2.2
Purposes of Joint Venture
1

 
2.3
Reserved Rights
2

 
2.4
Exercise of Iron Ore Rights
2

 
2.5
Transfer of incomplete Project Facilities
4

 
2.6
Name
4

 
2.7
Relationship of Participants
4

 
2.8
Entitlement to Product
5

 
2.9
Tenants in common
5

 
2.1
No partition
5

 
2.11
Rights and obligations several
5

 
2.12
Mutual obligations
6

 
2.13
Protection of Tenements and Pipeline Licences
6

 
2.14
Maintain Tenements and Pipeline Licences
6

 
2.15
Rehabilitation
6

 
2.16
Party warranties
7

3
Term and termination
8

 
3.1
Term of Joint Venture
8

 
3.2
Disposal of Joint Venture Assets upon termination
8

 
3.3
Certain obligations continue beyond termination
9

4
Manager
9

 
4.1
Initial Manager
9

 
4.2
Shareholding in the Manager
9

 
4.3
Removal of Manager
9


 
 
    




 
4.4
No transfer of Manager’s interest
10

 
4.5
Delivery of property on change of Manager
10

 
4.6
Liability of Manager and indemnity
11

 
4.7
Attorney
11

5
Powers and duties of Manager
11

 
5.1
Conduct of Joint Venture Operations
11

 
5.2
Insurance
14

 
5.3
Funding of the Manager
15

 
5.4
Conduct of operations
15

 
5.5
Independent status of Manager
15

 
5.6
Delegation
15

 
5.7
Manager's custody of Joint Venture Assets
15

 
5.8
Contracts with Affiliates of Manager
16

 
5.9
Contracts with Third Parties
17

 
5.10
No profit or loss by Manager
18

 
5.11
Good faith
18

 
5.12
Ratify actions of Manager
18

6
Management Committee
18

 
6.1
Establishment of Management Committee
18

 
6.2
Composition of Management Committee
19

 
6.3
Meetings
19

 
6.4
Notice of meetings
20

 
6.5
Quorum
20

 
6.6
Chairperson
20

 
6.7
Senior management personnel of the Manager
20

 
6.8
Voting rights
21

 
6.9
Ordinary Resolutions
22

 
6.10
Special Resolutions
22

 
6.11
Deadlocks
22

 
6.12
Stage 2 Decision
23


 
 
    




 
6.13
Advisers
27

 
6.14
Authority of Representatives
27

 
6.15
Resolution without meeting
27

 
6.16
Manager’s delegate
27

 
6.17
Minutes
28

 
6.18
Sub-committees
28

 
6.19
Services
28

 
6.20
Recommendations and decisions of sub-committees
29

7
Budgets, planning and contributions
29

 
7.1
Commencement under Initial Mine Plan and Budget
29

 
7.2
Preparation and approval of the Business Plan
29

 
7.3
Contents of Business Plan
29

 
7.4
Revision of Business Plan
32

 
7.5
Approval of Business Plan and revisions
32

 
7.6
Temporary operating plan if Business Plan not approved
32

 
7.7
Business Plan is binding on the Manager
33

 
7.8
Urgent action
33

8
Provision of funds
34

 
8.1
Obligation to contribute
34

 
8.2
Manager may apply funds held
34

 
8.3
Monthly Cash Call
34

 
8.4
Payment of Called Sum
35

 
8.5
Emergency Cash Call
36

 
8.6
Bank account
36

 
8.7
Disbursements from bank accounts
37

 
8.8
Repayment of surplus funds
37

 
8.9
Accounting for Called Sums
37

9
Records, accounts and reports
37

 
9.1
Manager to keep records and accounts
37

 
9.2
Place for records
38


 
 
    




 
9.3
Annual financial statement
38

 
9.4
Monthly report
38

 
9.5
Forecasts
39

 
9.6
Other reporting requirements
40

 
9.7
Information and data
40

 
9.8
Copies of reports to Participants
42

 
9.9
Format
42

 
9.10
Additional reporting
42

10
Audit and access
42

 
10.1
Audit
42

 
10.2
Participant’s access to records
43

 
10.3
Access to Joint Venture Area and Joint Venture Assets
43

11
Confidential Information
44

 
11.1
Information to be kept confidential
44

 
11.2
Protection of Confidential Information
45

 
11.3
Announcements
45

 
11.4
Continuing confidentiality obligation
45

 
11.5
MRL Standstill
45

 
11.6
Albemarle Standstill
46

12
Assignments and charges
47

 
12.1
Restrictions on assignments and charges
47

 
12.2
Permitted transfer to Subsidiaries
48

 
12.3
Sale of Participant's lithium business
48

 
12.4
Transfer of Participant’s Joint Venture Interest
48

 
12.5
Right of last refusal
49

 
12.6
Requirements of offer to Continuing Participants
51

 
12.7
Charge of Participant’s Joint Venture Interest
52

 
12.8
Notice of intention to create Security Interest
52

 
12.9
Sale of Joint Venture Interest by Chargee
52

 
12.10
Set-off
53


 
 
    




 
12.11
Assumption of Joint Venture obligations by Transferee
53

 
12.12
Change in Control
54

13
Defaults and remedies
58

 
13.1
Event of Default
58

 
13.2
Notices of default
58

 
13.3
Payment of interest upon default
59

 
13.4
Rights following an Event of Default
59

 
13.5
Payment of Unpaid Called Sum
60

 
13.6
Delivery of Cross Security
60

 
13.7
Option to acquire Joint Venture Interest of Defaulting Participant
61

 
13.8
Value of Joint Venture Interest of Defaulting Participant
64

 
13.9
Remedies not exclusive
65

14
Force Majeure
65

15
Notices
66

 
15.1
General
66

 
15.2
How to give a communication
66

 
15.3
Particulars for delivery
66

 
15.4
Communications by post
67

 
15.5
Communications by email
67

 
15.6
Process service
68

 
15.7
After hours communications
68

16
GST
68

 
16.1
Construction
68

 
16.2
Consideration GST exclusive
68

 
16.3
Payment of GST
69

 
16.4
Timing of GST payment
69

 
16.5
Tax invoice
69

 
16.6
Adjustment event
69

 
16.7
Reimbursements
69

 
16.8
Calculations based on other amounts
69


 
 
    




 
16.9
No merger
69

 
16.10
GST joint venture
70

17
Expert determination
70

 
17.1
When appointed
70

 
17.2
Appointment
70

 
17.3
Instructions
71

 
17.4
Procedure
71

 
17.5
Costs
71

18
Dispute resolution
71

 
18.1
Dispute resolution process
71

 
18.2
Dispute Notice
71

 
18.3
Meeting of the parties' designated representatives
72

 
18.4
Meeting of Senior Executives and Chief Executive Officers
72

 
18.5
Court proceedings
72

 
18.6
Urgent interlocutory relief
72

19
General
72

 
19.1
Consents and approvals
72

 
19.2
Duty
72

 
19.3
Legal costs
73

 
19.4
No liability for consequential losses
73

 
19.5
Entire agreement
73

 
19.6
Further assurances
73

 
19.7
Rights cumulative
73

 
19.8
Severability
73

 
19.9
Survival and merger
74

 
19.10
PPS Act
74

 
19.11
Variation
74

 
19.12
Waiver
74

 
19.13
Governing law
74

 
19.14
Counterparts
74


 
 
    




 
19.15
Ipso Facto Stay
74

 
19.16
Relationship with Shareholders' Deed
75

 
19.17
Remote conferencing
75

Schedule 1
 
Dictionary
76

Schedule 2
 
Tenements
92

Schedule 3
 
Special Resolutions
93

Schedule 4
 
Accounting Procedure
95

Schedule 5
 
Deed of Assignment and Assumption
96

Execution page
 
 
97

Attachment A
 
Initial Mine Plan and Budget
Attachment B
 
Confidentiality Undertaking
Attachment C
 
Deed of Cross Security
 
 
 
 


 
 
    




Date:                         

Parties
1
Wodgina Lithium Pty Ltd
ACN 611 488 932
of 1 Sleat Road, Applecross WA 6153
(WLPL)
2
Albemarle Wodgina Pty Ltd
ACN 630 509 303
of [insert address]
(AWPL)
3
Wodgina Lithium Operations Pty Ltd
ACN [insert ACN]
of [
insert address]
(
WLOPL)
The parties agree

1
Defined terms and interpretation
1.1
Definitions in the Dictionary
A term or expression starting with a capital letter:
(a)
which is defined in the Dictionary in Schedule 1, has the meaning given to it in the Dictionary;
(b)
which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act; and
(c)
which is defined in the GST Law, but is not defined in the Dictionary or the Corporations Act, has the meaning given to it in the GST Law.
1.2
Interpretation
The interpretation clause in Schedule 1 sets out rules of interpretation for this agreement.

2
Joint Venture
2.1
Formation of Joint Venture
The Participants agree to associate themselves on and from the Effective Date as an unincorporated joint venture under which the initial Joint Venture Interests of the Participants are as follows:
WLPL’s Joint Venture Interest
AWPL’s Joint Venture Interest
50%
50%

2.2
Purposes of Joint Venture

 
 
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The purposes of the Joint Venture are:
(a)
the exploration, development, mining, processing and production of Minerals from the Joint Venture Area upon the terms and conditions set out in this agreement;
(b)
the construction and operation of a Refinery Plant on such part of the Joint Venture Area as determined by the Management Committee upon the terms and conditions set out in this agreement;
(c)
to implement the Business Plan;
(d)
to carry out any other activities as the Participants may agree; and
(e)
all such other matters and things as may be incidental to the foregoing, including Rehabilitation of the Tenements and Mine Closure.
2.3
Reserved Rights
(a)
The parties acknowledge that:
(i)
WLPL is the holder of Iron Ore Rights, and such rights permit WLPL to conduct certain exploration and mining activities on the Tenements in respect of Iron Ore, for so long as the Iron Ore Rights exist, and such rights do not form part of the Joint Venture Assets; and
(ii)
pursuant to the GAMG Mineral Rights Agreement, rights to conduct certain exploration and mining activities on the Tenements in respect of Tantalum were granted to GAMG, and such rights do not form part of the Joint Venture Assets.
(b)
AWPL acknowledges that WLPL may apply for a variation to the terms of grant of the Tenements to the extent necessary so that the terms of grant include the right to explore or mine for Iron Ore and that upon such variation being granted, such Iron Ore Rights will be reserved to WLPL (and in such case AWPL will consent to such application and sign any required forms and applications in that regard), subject to WLPL indemnifying AWPL in relation to any taxes or duties (including stamp duty) payable by AWPL in relation to such variation or reservation).
2.4
Exercise of Iron Ore Rights
(a)
Except as may be expressly permitted under the terms of a Notice of Consent, WLPL must exercise its Iron Ore Rights in such a manner so as to not adversely interfere with or impair the Exploration Operations and/or Mining Operations of the Joint Venture, which WLPL acknowledges takes precedence over WLPL’s rights to conduct Exploration Operations and Mining Operations in respect of Iron Ore.
(b)
If WLPL intends to commence any Exploration Operations or Mining Operations pursuant to its Iron Ore Rights it must first give a notice (Notice of Proposed Activity) to the Manager containing the following particulars (Proposed Activity):
(i)
in the case of Exploration Operations:
(A)
    the general nature and methods of Exploration Operations proposed on any part of the area of the Tenements;
(B)
    the approximate number of Personnel and the general nature of the plant and machinery which it proposes to take on to the area of the Tenements for the purpose of conducting such Exploration Operations; and

 
 
   page | 2




(C)
    the areas within each of the Tenements which it proposes to enter upon for the purpose of conducting such Exploration Operations; and
(ii)
in the case of Mining Operations:
(A)
    a proposed Mine Development plan;
(B)
    such relevant information as is reasonably necessary for the Manager to effectively consider the proposal to commence Mining Operations; and
(C)
    the date that it intends to commence Mining Operations.
(c)
Upon receipt of a Notice of Proposed Activity, the Manager must convene a meeting of the Management Committee to consider the Notice of Proposed Activity. The Manager will give the Participants at least 45 days’ prior notice of such meeting.
(d)
If the Management Committee resolves (acting reasonably) that WLPL’s Proposed Activity may adversely interfere with or impair the Joint Venture's Mining Operations or currently existing Exploration Operations or areas identified as prospective for Minerals other than Iron Ore and Tantalum (Other Minerals) through any prior Exploration Operations, then the Manager must within five (5) Business Days of such resolution give a notice of objection to WLPL (Notice of Objection).
(e)
If the Management Committee resolves (acting reasonably) that WLPL’s Proposed Activity will not adversely interfere with or impair the Joint Venture's Mining Operations or currently existing Exploration Operations or areas identified as prospective for Other Minerals through any prior Exploration Operations (or, subject to clause 2.4(f)(ii), will not if WLPL complies with conditions determined by the Management Committee), the Manager must within five (5) Business Days of such resolution give a notice of consent to WLPL (Notice of Consent).
(f)
If the Manager:
(i)
does not issue a notice in accordance with either clause 2.4(d) or clause 2.4(e); or
(ii)
issues a notice in accordance with clause 2.4(e) and, within five (5) Business Days of receipt of such notice, WLPL notifies the Manager that it does not accept the conditions determined by the Management Committee which attach to such notice,
it shall be deemed to have issued a Notice of Objection.
(g)
A resolution of the Management Committee to issue a Notice of Objection or a Notice of Consent shall be by a Special Resolution.
(h)
WLPL may not proceed with its Proposed Activity unless it has received a Notice of Consent from the Manager.
(i)
Subject to clause 2.4(f), upon receipt of a Notice of Consent from the Manager, WLPL may proceed to implement its Exploration Operations or Mining Operations (as applicable) in accordance with the relevant Notice of Proposed Activity subject to and in compliance with any conditions set out in the Notice of Consent, and provided it continues to use its best endeavours to minimise any adverse interference with the Joint Venture Operations.

 
 
   page | 3




(j)
Within five (5) days of a Notice of Objection being given, the Manager, AWPL and WLPL shall meet and discuss WLPL’s Proposed Activity and any objections to it in a bona fide endeavour to resolve the matter by agreement, and such discussions may include amendment or variation by:
(i)
WLPL of the extent or timing of the Proposed Activity or conditions it will comply with in relation to the Proposed Activity; or
(ii)
    the Manager of the affected Mining Operations or Exploration Operations program given in its Notice of Objection.
(k)
If, notwithstanding the discussions between WLPL, AWPL and the Manager, they are unable to resolve the Manager’s objections set out in the Notice of Objection within fourteen (14) days of the Notice of Objection being received by WLPL, then a Participant may issue a Dispute Notice in accordance with clause 18.2 to attempt to resolve the matter.
(l)
If the Participants are unable to resolve the matter in accordance with clause 18.2, then the Proposed Activity may not proceed.
(m)
The Participants agree that (as between themselves):
(i)
the area of the Wodgina Resource is deemed to be a Development Area (as defined in the Mineral Rights Agreement) for Minerals other than Iron Ore and WLPL will not during the term of the Joint Venture issue a Notice of Proposed Activity in the exercise of its Iron Ore Rights in that area;
(ii)
subject to clause 2.4(m)(i), the process in this clause 2.4 will apply in substitution of the 'Notice of Proposal to Mine' process in clause 6.9 of the Mineral Rights Agreement, which for the avoidance of doubt means that the Participants (including AWPL) are not required to comply clause 6.9 of the Mineral Rights Agreement; and
(iii)
this agreement prevails to the extent of any inconsistency with the Iron Ore Rights.
2.5
Transfer of incomplete Project Facilities
The parties acknowledge that certain Project Facilities may not have reached practical completion at the Effective Date. The parties acknowledge that the transfer of ownership of such Project Facilities will occur in accordance with clause the Asset Sale and Share Subscription Agreement and will at that time become Joint Venture Assets.
2.6
Name
The name of the Joint Venture is the “Wodgina Joint Venture”.
2.7
Relationship of Participants
(a)
Nothing contained in a Joint Venture Document will be deemed to constitute a Participant being the partner of any other Participant.
(b)
Except as otherwise specifically provided for in a Joint Venture Document, nothing contained in a Joint Venture Document will be construed so as to constitute a Participant an agent or representative of any other Participant or to create any trust for any purpose howsoever, except to the extent to which the Manager is the agent of the Participants.

 
 
   page | 4




(c)
No Participant shall be under any fiduciary or other duty to the other which will prevent it from engaging in or enjoying the benefits of any competing endeavours, subject to the express provisions of this agreement.
2.8
Entitlement to Product
(a)
Each Participant shall be entitled and obliged, unless otherwise agreed by the Participants, to take in kind and separately dispose of, in proportion to its Joint Venture Interest, all Product as and when produced by the Joint Venture.
(b)
The Manager must deliver each Participant’s Joint Venture Interest share of Product to the Participant at the Delivery Point, and if separately delivered, by use of equipment and techniques which are specifically designed and intended not to favour any one Participant over another.
(c)
Title to, and the risk of loss of, or damage to, the Product passes to the relevant Participant at the Delivery Point.
(d)
Upon commencement of operation of the Refinery Plant, each Participant will cause such amount of its Lithium recovered from the Tenements to be refined using the Refinery Plant as specified in the Refinery Plant Business Plan.
(e)
If the Sole Risk Participant develops the Alternative Refinery Plant in accordance with clause 6.12(h), the Sole Risk Participant will not be obliged to refine any of the Non-consenting Participant’s Product in the Alternative Refinery Plant.
2.9
Tenants in common
(a)
The Joint Venture Assets will be beneficially owned by the Participants as tenants in common in proportion to their respective Joint Venture Interests, notwithstanding that the legal title may be held by one or some only of the Participants or the Manager.
(b)
The Manager or any Participant which holds the legal title to any Joint Venture Asset, holds such Joint Venture Asset as agent for the Participants in proportion to their respective Joint Venture Interests.
2.10
No partition
Each Participant waives its rights to partition of the Joint Venture Assets and, to that end, agrees that it will not seek or be entitled to partition of any Joint Venture Asset, whether by way of physical partition, judicial sale or otherwise, until after termination of the Joint Venture.
2.11
Rights and obligations several
The rights and obligations of each Participant in respect of the Joint Venture will be, in every case, several in proportion to their respective Joint Venture Interests from time to time and will not be, or be construed to be, either joint or joint and several.

 
 
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2.12
Mutual obligations
Each Participant will perform, observe and fulfil each and every one of its obligations under or arising out of each of the Joint Venture Documents.
2.13
Protection of Tenements and Pipeline Licences
A Participant will not knowingly do or omit to do, and will at all times take proper care to ensure that it does not do or omit to do, any act, deed, matter or thing which may place any Tenement or Pipeline Licences at risk of being cancelled, forfeited, lost, refused or surrendered, or which may otherwise jeopardise any Tenement in any way.
2.14
Maintain Tenements and Pipeline Licences
Unless otherwise determined by a Special Resolution of the Management Committee, the Tenements and Pipeline Licences will be maintained in force and renewed during the term of this agreement, and each Participant will take all action necessary on its part to maintain and renew the Tenements and the Pipeline Licences.
2.15
Rehabilitation
(a)
Subject to clause 2.15(b), with effect from the Effective Date, the Participants shall bear the responsibility for Rehabilitation Obligations and the payment of the Rehabilitation Levy applicable to the Tenements in accordance with their respective Joint Venture Interests.
(b)
WLPL agrees that it is responsible for such amount of the Rehabilitation Levy paid by AWPL under clause 2.15(a) (or by the Manager on behalf of AWPL) and any costs incurred by AWPL in respect of Rehabilitation Obligations which are attributable to:
(i)
acts, errors or omissions of WLPL, its Affiliates or their Personnel which were in breach of a law, Approval or Tenement condition, during the WLPL Ownership Period;
(ii)
any exploration for or mining of Iron Ore on the Tenements occurring after the Effective Date; and
(iii)
any exploration for or mining of Tantalum on the Tenements occurring after the Effective Date pursuant to the exercise of mining or exploration rights for Tantalum in circumstances where GAMG is no longer the holder of the rights under the GAMG Mineral Rights Agreement and such rights have reverted to WLPL (including by WLPL becoming the successor to the GAMG under the GAMG Mineral Rights Agreement),
(Rehabilitation Liability Costs).
(c)
WLPL must reimburse AWPL within 5 Business Days after it receives evidence of the payment by AWPL of any Rehabilitation Liability Costs.
(d)
As soon as reasonably practicable after the Effective Date, WLPL must provide AWPL with any information WLPL has compiled in relation to the Tenements for the purposes of calculating the Rehabilitation Levy.
(e)
Without limitation to clause 2.15(a), WLPL must indemnify AWPL against any loss, cost, damage or liability in relation to the exploration, mining and other related activities occurring on or after the Effective Date in respect of:

 
 
   page | 6




(i)
Iron Ore; and
(ii)
Tantalum (but only in circumstances where GAMG is no longer the holder of the rights under the GAMG Mineral Rights Agreement and such rights have reverted to WLPL),
including in relation to the reservation of those rights to WLPL, any statutory and private royalties, any compensation payment to any persons, the holding of and exercise of the rights by WLPL, and taxes and duties (including stamp duty) on any dealing with such rights (whether before, on or after the Effective Date) by WLPL and any dealing by AWPL with its Joint Venture Interest to the extent related to the holding by and reservation of such rights to WLPL.
To the extent that AWPL is required to include any amount payable under the indemnity provided in this clause 2.15(e) for tax purposes as assessable income or capital gain in a year and is not entitled to a tax deduction in that year for the full amount of any such loss, cost, damage or liability, the amount payable under the indemnity provided in this clause 2.15(e) must be increased by a factor calculated as follows:
where Tax Rate means the applicable Australian income tax rate for AWPL.
2.16
Party warranties
(a)
Each party represents and warrants to each of the other parties that each of the following statements is true, accurate and complete and not misleading as at the Effective Date:
(i)
it is duly incorporated and validly exists under the law of its place of incorporation;
(ii)
    the execution and delivery of this agreement has been properly authorised by all necessary corporate action;
(iii)
it has full corporate power and lawful authority to execute and deliver this agreement and to consummate and perform or cause to be performed its obligations under this agreement;
(iv)
this agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its terms;
(v)
the execution, delivery and performance by it of this agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(A)
any provision of its constitution;
(B)
any material term or provision of any security arrangement (including any Security Interest), undertaking, agreement or deed to which it is bound;
(C)
any writ, order or injunction, judgement or law to which it is a party or is subject or by which it is bound;
(vi)
no Insolvency Event has occurred in relation to it; and

 
 
   page | 7




(vii)
so far as it is aware, there are no facts, matters or circumstances which give any person the right to apply to liquidate it or wind it up.
(b)
Each party acknowledges that each of the other parties has entered into this agreement in reliance on the warranties provided in clause 2.16(a).
(c)
Each of the warranties in clause 2.16(a) must be construed independently and is not limited by reference to another warranty provided in clause 2.16(a).
(d)
Each party indemnifies each of the other parties against any Loss which the other party may incur to the extent caused by any breach of the warranties provided in clause 2.16(a).

3
Term and termination
3.1
Term of Joint Venture
This agreement and the Joint Venture will commence on the Effective Date and, subject to the provisions of this agreement, will continue until completion of the winding up of all Joint Venture Operations after the first to occur of:
(a)
the Participants agreeing to terminate the Joint Venture;
(b)
the Management Committee by a Special Resolution determining:
(i)
that there are no economically recoverable reserves of Minerals in the Joint Venture Area and that the Tenements should be surrendered; or
(ii)
that all the reserves of economically recoverable Minerals in the Joint Venture Area have been recovered; or
(c)
there being less than two (2) Participants holding an interest in the Joint Venture Assets.
3.2
Disposal of Joint Venture Assets upon termination
(a)
Upon the occurrence of a termination event under clause 3.1 (other than clause 3.1(c)), the Manager must commence winding up the Joint Venture Operations including:
(i)
satisfying all Rehabilitation Obligations and Mine Closure Obligations;
(ii)
taking such steps to dispose of the Joint Venture Assets in accordance with such instructions (if any) as the Manager may receive from the Management Committee; and
(iii)
otherwise complying with the Approved Closure Plan.
(b)
The net proceeds of realisation of the Joint Venture Assets, after satisfying all Rehabilitation Obligations and Mine Closure Obligations, will be distributed to the Participants in proportion to their respective Joint Venture Interests.
(c)
For the avoidance of doubt, all costs and expenses incurred by the Manager as a result of the termination of the Joint Venture will be Joint Venture Costs and will be paid by the Participants in proportion to their respective Joint Venture Interests.

 
 
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3.3
Certain obligations continue beyond termination
Upon termination of this agreement for any reason, all rights and obligations of the parties cease, other than:
(a)
the obligation to pay any actual or contingent liabilities relating to Joint Venture Operations, including the cost of all Rehabilitation Obligations and Mine Closure Obligations and any severance, sickness and other employee benefit costs incurred or imposed in connection with Joint Venture Operations, or otherwise arising from this agreement, that have not been discharged as at the date of termination; and
(b)
any other obligations expressed to survive termination.

4
Manager
4.1
Initial Manager
The Participants appoint WLOPL as the manager of the Joint Venture from the Effective Date, and WLOPL accepts that appointment upon and subject to the terms and conditions contained in this agreement.
4.2
Shareholding in the Manager
(a)
As at the date of this agreement, the entire issued share capital in the Manager is held by the Participants in the same proportions as their respective Joint Venture Interests.
(b)
If a Participant transfers the whole or any part of its Joint Venture Interest under clause 12 or clause 13, the transferring Participant must ensure that such number of shares in the Manager are transferred to the applicable transferee as is necessary to ensure that a Participant’s shareholding in the Manager remains in proportion to its Joint Venture Interest.
4.3
Removal of Manager
(a)
The Manager may only be removed by Special Resolution of the Management Committee, provided that the Manager may only be removed if the Management Committee, in the same meeting, appoints a replacement Manager by Special Resolution as the new Manager on the terms and conditions contained in this agreement, provided that if no new Manager can be appointed by such a vote, then, in circumstances where the Participants do not hold equal Joint Venture Interests, the Participant with the largest Joint Venture Interest will be deemed to be the Manager. If there is more than one Participant with the largest Joint Venture Interest, then those Participants will appoint the Manager and failing agreement between them, the matter will be referred to an Expert to be determined in accordance with clause 17.
(b)
The removal of the Manager under clause 4.3(a) will take effect immediately, but such removal does not prevent the Manager from recovering Joint Venture Costs incurred up to that date from the Participants, as well as other unavoidable, pre-committed or existing Joint Venture Costs incurred after that date.

 
 
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4.4
No transfer of Manager’s interest
The Manager must not, without the prior written consent of the Participants, transfer any of its rights or interest under this agreement.
4.5
Delivery of property on change of Manager
On the effective date of the removal of the Manager under clause 4.3(a), the Manager will:
(a)
deliver to its successor (or as the Participants may otherwise direct):
(i)
all Joint Venture Assets in its possession or under its control;
(ii)
the Joint Venture Records and Accounts;
(iii)
all Confidential Information;
(iv)
the results of all work undertaken by or for the Manager for the purposes of the Joint Venture, including all Mining Information and the results of any tests undertaken by or for the Manager; and
(v)
all exploration, mining, engineering and other reports or studies prepared by or for the Manager;
(b)
transfer title to any Joint Venture Assets to its successor (or as the Participants, acting unanimously, may otherwise direct);
(c)
transfer any Security Interest it holds over Joint Venture Assets to its successor;
(d)
deliver documents regarding the novation or assignment of the rights and liabilities of the Manager under any contract entered into in its capacity as Manager to the successor which takes effect on and from the effective date of the Manager’s removal, and where the novation or assignment of such a contract has not occurred by the effective date of the Manager’s removal, the Participants and the outgoing Manager must each continue to use all reasonable endeavours to procure the novation or assignment of the contract as soon as reasonably practicable;
(e)
to the maximum extent legally permissible, transfer any authorisations from any Government Agency that can be transferred in relation to the Joint Venture Assets, and in respect of any such authorisations which cannot be transferred by the Manager to its successor, it must do all things reasonably necessary to assist the successor in applying for new authorisations, and if requested by the successor, terminate, surrender or cancel those authorisations once the successor has obtained the relevant authorisation or to enable the successor to apply for a replacement authorisation; and
(f)
provide assistance to the Participants as requested, for up to 90 days and on a cost reimbursement basis, to allow the management, supervision and conduct of Joint Venture Operations to continue without interruption or adverse effect and to facilitate the orderly transfer of responsibility for and conduct of the Joint Venture Operations to its successor,
and the outgoing Manager and the Participants must sign, and must ensure the replacement Manager signs, all documents necessary to effect the assignment to the replacement Manager of the rights and interests of the outgoing Manager under the Deed

 
 
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of Cross Security with effect as at the effective date of the appointment of the replacement Manager.
4.6
Liability of Manager and indemnity
The Manager shall not have any liability to the Participants for losses sustained or liabilities incurred by the Joint Venture, and the Manager, its directors, officers, employees, agents and contractors (Indemnified Persons) shall be indemnified by each Participant, severally to the extent of its Joint Venture Interest, in respect of the same except where such loss or liability arises as a direct result of the Indemnified Person’s fraud, Wilful Misconduct or Gross Negligence.
4.7
Attorney
Each Participant hereby irrevocably appoints the Manager from time to time as its lawful attorney to act for it in its name or otherwise as the Manager (acting reasonably) deems fit for the purposes of doing all such acts and executing all such documents, as may reasonably appear to the Manager to be necessary or desirable to keep the Joint Venture Assets in good standing. The Participants shall be bound by all acts of the Manager as attorney pursuant to this clause 4.9 and shall, subject to clause 4.8, indemnify the Manager for all costs and liabilities incurred or arising from the exercise of the Manager’s powers pursuant to this clause 4.9.

5
Powers and duties of Manager
5.1
Conduct of Joint Venture Operations
(a)
Subject to the terms and conditions of this agreement, and to such instructions as it may from time to time receive from the Management Committee, the Manager will, and is empowered to exercise all powers necessary to:
(i)
manage, supervise and conduct Joint Venture Operations on behalf of, and as agent for, the Participants; and
(ii)
implement the Business Plan and exercise and discharge its powers and duties under this agreement in accordance with the Business Plan.
(b)
Without limiting the generality of the foregoing, the Manager will:
(i)
perform and attend to all acts, matters and things required of the Manager in accordance with the Joint Venture Documents;
(ii)
subject to clause 5.1(d), perform on behalf of the Participants their obligations under the Tenements and the Pipeline Licences, and their obligations under any agreement entered into by the Participants (or by the Manager on behalf of the Participants) for the purposes of Joint Venture Operations;
(iii)
pay:
(A)
all rentals and other charges payable under the Tenements and the Pipeline Licences;
(B)
all rates and taxes (other than taxes based upon or measured by income) payable on or assessed with respect to Joint Venture Operations or any Joint Venture Asset; and

 
 
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(C)
the Rehabilitation Levy in respect of the Tenements, subject to the terms set out in clause 2.15(b);
(iv)
generally do all things necessary to maintain the Tenements and the Pipeline Licences in good standing and perform the Joint Venture Operations;
(v)
prepare and file all reports and returns (except returns with respect to taxes based upon or measured by income) required by law or by the Tenements, the Pipeline Licences or any agreement with the State, the Commonwealth or other Government Agency with respect to Joint Venture Operations or the Joint Venture Assets;
(vi)
comply with all laws applicable to Joint Venture Operations, including laws pertaining to safety and environmental protection;
(vii)
comply with any decision or instruction of the Management Committee or the Participants made or given in accordance with this agreement;
(viii)
maintain the Project Facilities and the Refinery Plant in good working order;
(ix)
act as the Participant's representative in respect of matters relating to Native Title Claims and Native Title Rights, and negotiate agreements with persons holding Native Title Rights and with parties to Native Title Claims, provided that the Manager may not execute any such agreements, without the prior approval of the Management Committee by Ordinary Resolution;
(x)
comply or procure compliance with all contracts entered into by the Manager or the Participants in relation to the Joint Venture Operations (including any native title or heritage agreement) and ensure any proposed Business Plans are prepared to ensure compliance with any requirements under those agreements;
(xi)
replace any Project Facilities as the Manager determines are necessary or desirable so that Joint Venture Operations may be safely, efficiently and lawfully conducted at all times;
(xii)
sell or otherwise dispose of any Project Facilities or supplies that may be worn out, surplus or no longer required for Joint Venture Operations, provided that any contract or arrangement for sale of such assets which have a book value, net of accumulated depreciation of:
(A)
more than $100,000 but less than $250,000 must be first approved by the Management Committee by an Ordinary Resolution; and
(B)
$250,000 or more must be first approved by the Management Committee by a Special Resolution;
(xiii)
ensure that health, safety and environmental management systems are developed, implemented and maintained in respect of the Joint Venture Operations to the satisfaction of the Management Committee;
(xiv)
endeavour to ensure that contractors engaged for the Joint Venture Operations develop, implement and maintain health, safety and environmental management systems to standards that comply with health, safety and environment plans approved by the Management Committee;

 
 
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(xv)
in the case of any emergency or accident, take such action as the Manager considers is necessary or advisable for the protection of life or the Joint Venture Assets;
(xvi)
acquire all materials, supplies, machinery, equipment and services necessary for the conduct of Joint Venture Operations;
(xvii)
subject to the requirements of Schedule 3, engage (which may be by secondment), dismiss, supervise and control all management, technical and labour personnel necessary for the performance of its obligations under this agreement including determining the terms and conditions of such engagement and conducting all industrial relations;
(xviii)
arrange for the transportation, handling, loading, treatment and delivery of Product to the Delivery Point;
(xix)
notify the Participants as soon as practicable after becoming aware of any event or circumstance of which it is aware which is likely to result in:
(A)
litigation, arbitration or similar proceedings;
(B)
a material breach of any licence, authority, approval, direction, instrument or other similar matter;
(C)
a material breach of any applicable legal requirement;
(D)
a material breach of any Joint Venture Document or of any other material agreement of the Joint Venture; or
(E)
Force Majeure;
(xx)
subject to the requirements of Schedule 3, institute, defend, compromise or settle any court or arbitration proceedings or insurance claims commenced or threatened by or against the Manager or a Participant affecting or relating to Joint Venture Operations or Joint Venture Assets, provided that unless otherwise instructed by a Participant, the Manager may conduct such proceedings or claims for and on behalf of and in the name of each Participant;
(xxi)
subject to the requirements of Schedule 3, take forward cover for, or hedge, foreign currency obligations or pre-pay or take any other appropriate action to avoid currency losses, in each case in relation to Joint Venture Operations, but in no circumstances is the Manager responsible for or entitled to any currency gains and losses, such losses and gains being borne by or credited to the Participants pro rata in proportion to their respective Joint Venture Interests;
(xxii)
carry out the Rehabilitation Obligations and Mine Closure Obligations and comply with the Approved Closure Plan;
(xxiii)
keep each of the Participants fully informed on all current material matters and developments arising out of Joint Venture Operations; and
(xxiv)
generally do all such acts and things as may be necessary or desirable for the efficient conduct of Joint Venture Operations, the protection of the Joint Venture Assets and the attainment of the objects of the Joint Venture.

 
 
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(c)
Subject always to this agreement, the Manager has the power to enter into agreements and bind the Participants in the exercise of its duties in accordance with this agreement.
(d)
Despite any other provision of this agreement, the Participants agree that if GAMG gives a notice of proposed activity under the GAMG Mineral Rights Agreement then:
(i)
subject to 5.1(d)(ii), if the proposed activity might materially adversely affect a known or possible deposit of Iron Ore capable of commercial exploitation, then WLPL may determine whether to issue a notice of objection to GAMG and may have conduct of any expert determination process under the GAMG Mineral Rights Agreement on behalf of the tenement holders in relation to that notice of objection and will indemnify AWPL against the costs of any such expert determination process;
(ii)
if the proposed activity might materially adversely affect known or possible deposits of both Iron Ore and any other Mineral (excluding Tantalum), which are each capable of commercial exploitation, including in respect of Iron Ore and any other Mineral (excluding Tantalum) in the Wodgina Resource, then either WLPL or AWPL may determine whether to issue a notice of objection to GAMG and have conduct of any expert determination under the GAMG Mineral Rights Agreement on behalf of the tenement holders in relation to that notice of objection, and if WLPL has issued a notice of objection in respect of Iron Ore only, WLPL will indemnify AWPL against the costs of any such expert determination process; and
(iii)
in all other circumstances, the Participants agree to jointly exercise their rights under the GAMG Mineral Rights Agreement through the Manager.
(e)
A Participant has the right to participate, at its own expense, in litigation or administrative proceedings initiated by the Manager on behalf of the Participants.
5.2
Insurance
The Manager shall in respect of Joint Venture Operations and the Joint Venture Assets:
(a)
take out and keep in full force and effect, all in the name of the Participants, insurance required by the laws in force in Western Australia or by virtue of any contractual obligations entered into for the purposes of the Joint Venture;
(b)
effect and maintain in the name of the Participants public and product liability insurance for an amount of not less than $50,000,000 in respect of each occurrence and unlimited in the aggregate in respect of all incidents occurring during the period of insurance;
(c)
without limiting clause 5.2(d), effect and maintain in the name of the Participants such other insurances suitable for the Joint Venture Operations which may (without limitation) include pollution legal liability insurance, excess liability insurance, motor vehicle insurance, transit insurance and mining operations insurance, each for amounts and on such terms as may be determined by the Management Committee from time to time;
(d)
effect and maintain in the name of the Participants such other insurances as may be determined by the Management Committee from time to time; and

 
 
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(e)
if requested, provide full details of all such insurances and certificates of currency to a Participant.
5.3
Funding of the Manager
The performance by the Manager of its duties under this agreement will be subject to it receiving sufficient funds from each Participant in accordance with this agreement.
5.4
Conduct of operations
The Manager will perform all of its duties under this agreement in a good, safe, workmanlike and commercially reasonable manner in accordance with good exploration and mining and other applicable industry standards and practices.
5.5
Independent status of Manager
(a)
The Manager will report to, and be subject to, the general supervision and direction of the Management Committee. Subject to that supervision, and to the terms of this agreement, the Manager will have the authority, discretions and powers of an independent contractor in its management, supervision and conduct of Joint Venture Operations.
(b)
The Manager may perform its obligations under this agreement itself or through its employees or such agents or contractors as it may decide (subject to clause 5.8). However, the use of an agent or contractor by the Manager in the performance of any of the duties of the Manager will not relieve the Manager of responsibility to the Participants for those duties.
5.6
Delegation
The Manager may delegate its rights and obligations as Manager, provided that:
(a)
any delegation of the whole or a large part of its obligations requires the prior approval by Special Resolution of the Management Committee;
(b)
any delegation of any of its obligations to a Participant or an Affiliate of a Participant requires the prior approval by Special Resolution of the Management Committee;
(c)
it remains liable for any acts or omissions of its delegates as if they were the acts or omissions of the Manager;
(d)
the Manager promptly informs the Management Committee of the identity of the delegate and the matter which has been delegated; and
(e)
the delegation is at no additional cost to the Participants.
5.7
Manager's custody of Joint Venture Assets
(a)
Subject to the provisions of this agreement, the Manager will have the custody and control of the Joint Venture Assets.
(b)
The Manager will hold any Joint Venture Asset which stands in its name as agent for the Participants in proportion to their respective Joint Venture Interests.
(c)
Except:

 
 
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(i)    where permitted by this agreement;
(ii)    with the prior approval of the Management Committee; or
(iii)    in the case of Permitted Security Interests,
the Manager must not mortgage, pledge, charge, encumber, sub-lease or otherwise dispose of or create any Security Interest or lien over or trust in respect of (or purport or attempt to do so) the Joint Venture Assets or any other real or personal property or money in which any Participant has an interest.
5.8
Contracts with Affiliates of Manager
(a)
Subject to clause 5.8(b), the Manager agrees that:
(i)
any agreements which are entered into by the Manager in the performance of its duties under this agreement with any of its Affiliates or with a Participant or any of its Affiliates (Related Party Contracts), will be on normal ‘arm's length’ commercial terms consistent with the provisions of this clause;
(ii)
the terms of such agreements will be no less commercially reasonable in the particular circumstances of such agreements than would have been the case had such agreements been entered into with Third Parties which are not Affiliates of the Manager or any Participant; and
(iii)
any such agreements (or material amendments to such agreements) will be submitted to the Management Committee for approval by Special Resolution before the Manager enters into them.
(b)
The Participants will procure that the Manager enters into (as Manager for and on behalf of the Participants):
(i)
the Crushing Services Agreement with the Crushing Services Provider;
(ii)
the Camp Services Agreement with the Camp Services Provider; and
(iii)
the Intellectual Property Licence Agreement with the Licence Provider,
on or after the Effective Date and acknowledge and agree that:
(iv)
each of the Crushing Services Provider and the Camp Services Provider is an Affiliate of WLPL;
(v)
the Licence Provider is an Affiliate of AWPL; and
(vi)
the provisions of clause 5.8(a) do not apply in relation to the entry into the agreements listed in this clause 5.8(b).
(c)
Notwithstanding clause 5.8(b), the Manager agrees that any material amendment to any of the agreements listed in clause 5.8(b)(i) to 5.8(b)(iii) will be submitted to the Management Committee for approval by Special Resolution before the Manager agrees to such amendment.

 
 
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5.9
Contracts with Third Parties
(a)
Unless otherwise decided by the Management Committee, all contracts or other arrangements with Third Parties entered into by the Manager for the purposes of or in the course of Joint Venture Operations will be entered into by the Manager as agent for the Participants, with the result that:
(i)
wherever possible, using the Manager’s reasonable endeavours, the Participants will be severally liable under such contracts and arrangements as principals in proportion to their respective Joint Venture Interests, and not jointly or jointly and severally liable; and
(ii)
in the event of any breach or default on the part of a Third Party under such contracts and arrangements, proceedings may be brought against such Third Party to recover each Participant's loss.
(b)
Where, despite the Manager’s reasonable endeavours under clause 5.9(a)(i), the Participants are or become jointly or jointly and severally liable under a contract or other arrangement with a Third Party, the Participants agree that as between themselves, all liabilities under or in respect of any such contract (Contract Liability) will be borne by the Participants in proportion to their respective Joint Venture Interests, notwithstanding the terms of the contract.
(c)
In respect of clause 5.9(b):
(i)
if a Participant (Discharging Participant) or any person on behalf of a Participant pays, performs or discharges a Contract Liability of another Participant, then that Participant must reimburse or compensate the Discharging Participant within 5 Business Days after it receives evidence of that payment, performance or discharge; and
(ii)
each Participant (Indemnifying Participant) indemnifies each of the other Participants (Other Participants) for and against all Contract Liability suffered or incurred by the Other Participants:
(A)
arising from or in connection with the Other Participants taking any reasonable action to avoid, resist or defend themselves against any Contract Liability of the Indemnifying Participant; and
(B)
arising from or in connection with the Indemnifying Participant failing to comply with this clause 5.9(c).
(d)
The Manager must not enter into any contract where:
(i)
it does not have sufficient approval to commit to the Operating Costs or Capital Cost in accordance with clauses 7.7 or 7.8;
(ii)
the expected expenditure would be worth greater than $1,000,000 (annualised if applicable) unless the contract has first been submitted to the Management Committee and approved by an Ordinary Resolution; or
(iii)
there is a multi-year expenditure commitment (whether by reason of minimum expenditure, take or pay, termination fees or inability to terminate the contract without a claim for damages) of at least $1,000,000 (annualised), unless the contract has first been submitted to the Management Committee and approved by a Special Resolution.

 
 
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(e)
The Manager must not enter into any contract requiring a Special Resolution unless the contract has first been submitted to the Management Committee and approved by a Special Resolution.
(f)
The Manager must, upon a request by any Participant, disclose to the Participants details and, if requested, copies of all contracts or other arrangements with Third Parties entered into by the Manager for the purposes of or in the course of Joint Venture Operations.
5.10
No profit or loss by Manager
Unless otherwise agreed between the Manager and all of the Participants, the Manager will perform its duties under this agreement on a no profit or loss basis to the intent that:
(a)
the Manager will neither gain nor lose by performing its duties under this agreement;
(b)
the Manager will not be entitled to any fee margin or other remuneration from the Participants for the performance of its duties under this agreement; and
(c)
all costs, expenses and liabilities of the Manager arising out of the proper performance by the Manager of its obligations under this agreement, in accordance with the terms of this agreement, will be Joint Venture Costs and will be borne by the Participants in proportion to their respective Joint Venture Interests.
5.11
Good faith
(a)
The Manager will at all times act reasonably and in good faith in all its dealings with the Participants and in the performance of its duties under this agreement.
(b)
The Manager will at all times act in the best interests of the Joint Venture as a whole.
5.12
Ratify actions of Manager
Each Participant agrees to ratify and confirm all actions taken by the Manager in the due and proper performance of its duties and in accordance with the terms of this agreement.

6
Management Committee
6.1
Establishment of Management Committee
(a)
The Participants will prior to the Effective Date establish a Management Committee in accordance with this clause 6.
(b)
The Management Committee is empowered to make all decisions in relation to matters within the scope of the Joint Venture, other than:
(i)
matters expressly reserved by this agreement for the Participants’ determination, decision, approval or consent; or
(ii)
matters which have been expressly delegated in accordance with this agreement to a Participant or the Manager.

 
 
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6.2
Composition of Management Committee
(a)
Each Participant will be entitled to appoint Representatives on the Management Committee as follows:
(i)
a Participant with a Joint Venture Interest of 10% or greater, but less than 25%, may appoint one (1) Representative;
(ii)
a Participant with a Joint Venture Interest of 25% or greater, but less than 50%, may appoint two (2) Representatives; and
(iii)
a Participant with a Joint Venture Interest of 50% or greater may appoint three (3) Representatives.
(b)
Each Participant may also appoint an alternate for each of its Representatives who will be entitled to attend and vote at meetings of the Management Committee in which the relevant Representative does not participate.
(c)
Each Participant will appoint its Representatives and alternates (if any) by notice in writing to the Manager and the other Participants.
(d)
A Participant may replace any of its Representatives or alternates, or revoke any such appointment, at any time by giving notice in writing to the Manager and the other Participants. The relevant appointment or removal will take effect immediately on receipt of that notice.
(e)
A Participant whose Joint Venture Interest falls below 10% will cease to have any right to appoint Representatives to the Management Committee, and any such appointments will cease to have effect immediately upon its Joint Venture Interest falling below 10%.
6.3
Meetings
(a)
Meetings of the Management Committee will (unless otherwise agreed by Special Resolution of the Management Committee):
(i)
be held at the Manager’s office in Perth or at such other place in Perth as the Management Committee may from time to time determine; and
(ii)
be held at least once in each Quarter or at such other intervals as the Management Committee may determine.
(b)
In addition, the Manager may at any time, and will within five (5) Business Days of being requested to do so by a Participant or Participants who, in aggregate, hold a Joint Venture Interest of 25% or more, convene a meeting of the Management Committee. Any request by a Participant or Participants for a meeting to be convened must set out the matters to be considered at the meeting.
(c)
Each Participant will bear the travel and other expenses of its Representatives attending meetings.
(d)
Meetings of the Management Committee may be held in person or by telephone, video conference or other means of instantaneous communication.
(e)
Each Participant will ensure its Representatives convene and attend meetings expeditiously to ensure the continuity of Joint Venture Operations.

 
 
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6.4
Notice of meetings
(a)
Except as otherwise expressly stated otherwise in this agreement, the Manager will give to each Participant at least ten (10) Business Days’ notice of each meeting of the Management Committee (or at least two (2) Business Days' notice for a reconvened meeting), which notice must outline the business to be conducted at the meeting. Such notice will not be required where the Representatives of each Participant agree to waive notice of the meeting. Each Participant may give a notice to the Manager and each other Participant at least five (5) Business Days prior to the meeting to include any additional items of business to be conducted at the meeting.
(b)
Business not mentioned in a notice of meeting will not be dealt with at the meeting unless all Representatives (not just those present at the meeting) unanimously agree.
6.5
Quorum
(a)
The quorum for a meeting of the Management Committee will be at least one Representative of each Participant entitled to vote.
(b)
If a quorum is not present within one hour after the time appointed for the meeting:
(i)
the meeting will stand adjourned to the same hour on the next Business Day at the same venue; and
(ii)
the Manager will endeavour to contact the Representatives who were not present at the first meeting to advise them of the adjourned meeting.
(c)
The quorum at an adjourned meeting will be those Representatives present at the adjourned meeting.
6.6
Chairperson
(a)
The chairperson at meetings of the Management Committee (Chairperson) will be selected by the Participant with the largest Joint Venture Interest from the Representatives of that Participant.
(b)
If two or more Participants have equal Joint Venture Interests and are the largest Joint Venture Interest holders, then the Chairperson will be selected by those Participants (from their appointed Representatives) respectively on a 12 month rotating basis (such 12 Month periods to cover a Financial Year).
(c)
From the Effective Date until 30 June 2020, one of the Representatives of WLPL shall be the Chairperson.
(d)
The Chairperson will not have a casting vote.
6.7
Senior management personnel of the Manager
(a)
WLPL will have the right to appoint the initial chief executive officer of the Manager from the Effective Date (for a period of no more than 2 years (unless agreed otherwise by AWPL) and after that AWPL, and then WLPL on rotation on the same basis.
(b)
AWPL will have the right to appoint the initial chief financial officer of the Manager from the Effective Date (for a period of no more than 2 years (unless agreed otherwise by WLPL) and after that WLPL, and then AWPL on rotation on the same basis.

 
 
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(c)
The salary of any chief executive officer or chief financial officer to be paid by the Manager or secondment fee if seconded by the relevant appointor shall be capped at an equal amount agreed by the Participants or as otherwise determined by Ordinary Resolution of the Management Committee.
(d)
AWPL will have the right to appoint the manager of the Refinery Plant, other than any Alternative Refinery Plant developed by WLPL.
(e)
In exercising their appointment rights under this clause 6.7, WLPL and AWPL must consult with the other, and must appoint suitably qualified persons with the requisite expertise and demeanour.
(f)
Clauses 6.7(a) and 6.7(b) only apply while the Joint Venture Interest of each Participant is 50% of the aggregate Joint Venture Interests of all Participants.
6.8
Voting rights
(a)
The Representatives of a Participant present and entitled to vote at any meeting of the Management Committee will have between them that number of votes which is equal to the Joint Venture Interest of the Participant who appointed those Representatives. By way of example, the Representatives of a Participant whose Joint Venture Interest is 50% will have between them 50 votes. Any one Representative appointed by a Participant shall be entitled to cast all votes of the Representatives appointed by such Participant.
(b)
Subject to clause 6.8(d), a Representative may attend and vote on a matter at a meeting of the Management Committee notwithstanding there is a conflict of interest in respect of that matter with the Participant appointing that Representative. However at the start of the relevant meeting before the vote is taken, the existence of this conflict of interest must be declared if not already known by the other Participants. Subject to the foregoing, clause 6.8(d) does not prevent a Representative who has a personal conflict of interest in respect of a matter from attending and voting on a matter at a meeting of the Management Committee, provided that the matter does not relate to the matters described in clauses 6.8(d)(i) to 6.8(d)(v).
(c)
A Representative who decides (at his or her election) to withdraw from a meeting of the Management Committee due to a conflict of interest will be treated as not being entitled to vote at that meeting and such withdrawal will not result in the meeting lacking quorum.
(d)
In circumstances where there is a meeting of the Management Committee at which a resolution is proposed regarding:
(i)
the enforcement by the Manager of a right against a Participant, or any Affiliate of the Participant, in relation to a right under or performance in accordance with any contract, or a liability, loss, cost, charge or expense paid, suffered or incurred by the Joint Venture from an act or omission of that person;
(ii)
the execution of any Related Party Contract (other than the execution of the Related Party Contracts by the Manager in accordance with clause 5.8(b));

 
 
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(iii)
the enforcement or waiver of any rights of the Manager under any Related Party Contract;
(iv)
the issuing by the Manager of a Notice of Objection or a Notice of Consent under clause 2.4; or
(v)
any delegation by the Manager under clause 5.6(b),
and the resolution is not passed at such meeting of the Management Committee, then the Deadlock procedure in clause 6.11 shall not apply and any Participant other than a Participant which is or is an Affiliate of the applicable person (including delegate or counterparty) referred to in sub-clauses (i) to (v) of this clause 6.8(d) (Conflicted Participant) may, immediately following such meeting, convene another meeting of the Management Committee. At the reconvened meeting, the Representatives of the Conflicted Participant:
(vi)
will not have the right to vote at the meeting;
(vii)
will not be counted for the purpose of determining the quorum for the meeting; and
(viii)
any resolution dealing with that matter may be passed pursuant to the decision making threshold applicable to that decision, with those thresholds being adjusted such that the voting entitlement of the Representatives appointed by the Participants other than the Conflicted Participant will in aggregate be deemed equal to 100% total votes of all Representatives present and entitled to vote (and which for the avoidance of doubt shall exclude the Representatives appointed by the Conflicted Participant).
(e)
For the purposes of clause 6.8(d), if the Manager resolves to commence enforcement action against a Conflicted Participant or any of its Affiliates in respect of a Related Party Contract, the Conflicted Participant and its Representatives shall have no involvement in (other than its independent rights to defend against such action), and no right to receive information in respect of the conduct of, that enforcement action by the Manager on behalf of the Joint Venture and the Manager shall implement appropriate information handling protocols.
6.9
Ordinary Resolutions
Subject to clause 6.10, decisions at any meeting of the Management Committee will be made by the affirmative vote of one or more Representatives of those Participants present and entitled to vote at the meeting having more than 50% of the total votes of all Representatives present and entitled to vote.
6.10
Special Resolutions
Decisions taken by the Management Committee with respect to the matters set out in Schedule 3 and as otherwise specified in this agreement will require the affirmative vote of one or more Representatives of those Participants present and entitled to vote at the meeting having 75% or more of the total votes of all Representatives present and entitled to vote.
6.11
Deadlocks
(a)
Following a meeting of the Management Committee at which one (or more) Participants (via their Representatives) have voted in favour of a proposed resolution and other Participants (via their Representatives) have voted against the proposed resolution of the decision that is the subject matter of the proposed resolution and such proposed resolution was not passed in accordance with the agreement (Deadlock), a Participant

 
 
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(Initiating Participant) may give written notice (Deadlock Notice) to the other Participants (Other Participants) which:
(i)
identifies the proposed resolution which was not passed at the meeting of the Management Committee; and
(ii)
designates a senior representative of the Initiating Participant who will have the authority to resolve the Deadlock on its behalf.
(b)
Within five (5) Business Days of the date of the Deadlock Notice, the Other Participants must promptly designate, by written notice to the Initiating Participant, senior representatives who will have authority to resolve the Deadlock on their behalf.
(c)
Each Participant's senior representatives designated under clauses 6.11(a) and 6.11(b) must meet and use all reasonable endeavours acting in good faith to resolve the Deadlock within ten (10) Business Days after the date of the Deadlock Notice.
(d)
If the Deadlock is not resolved under clause 6.11(c), then within fifteen (15) Business Days of the date of the Deadlock Notice, each chief executive officer of the Ultimate Holding Company of each Participant must (including by telephone or video conference) meet and use all reasonable endeavours acting in good faith to resolve the Deadlock.
(e)
Any resolution of a Deadlock under this clause 6.11 will be a valid resolution of the Management Committee to the extent that the senior representatives or chief executive officers (as applicable) agree that the resolution will have such effect.
(f)
If:
(i)
the Joint Venture Interest of each Participant is no longer 50% of the aggregate Joint Venture Interests of all Participants; or
(ii)
Albemarle and MRL cease to be the Ultimate Holding Companies of AWPL and WLPL, respectively (or of any of their respective Transferee Subsidiaries under clause 12.2),
then the Participants will use reasonable endeavours to negotiate and agree to amend this agreement to make provision for the resolution of Deadlocks other than on, or in addition, to the terms of this clause 6.11.
6.12
Stage 2 Decision
(a)
Without limiting any other provision of this agreement, the Participants agree that they will proceed with the construction and commissioning of the Initial Refinery Plant.
(b)
The Participants agree to act reasonably and work together to progress the Initial Refinery Plant, including by agreeing the budget for preparation of and directing the Manager to prepare, as soon as reasonably practicable, a Refinery Plant Business Plan for a Refinery Plant Development for consideration and, if appropriate, approval by the Management Committee as soon as practicable after the Effective Date.

 
 
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(c)
If following a meeting of the Management Committee at which one Participant (via its Representatives) has proposed a resolution regarding a Stage 2 Decision and voted in favour of such proposed resolution and the other Participant (via its Representatives) has voted against the proposed resolution, then if the Deadlock process in clause 6.11 has been followed and the Deadlock has not been resolved, or if the Participant who voted against the proposed resolution failed to comply with the Deadlock process, then subject to clause 6.12(e), the Participant who voted in favour of the resolution (Sole Risk Participant) may no later than 3 months after the date of the Management Committee meeting at which the proposed resolution was not passed, give written notice (Alternative Refinery Plant Notice) to the other Participant (Non-consenting Participant) of its intention to develop an Alternative Refinery Plant outside the terms of the Joint Venture, which such notice shall include a detailed design of the Alternative Refinery Plant.
(d)
If, after the Effective Date, a Participant or any of its Affiliates commences construction of any new facilities (or enters into contractual arrangements, including arrangements for the acquisition of such facilities, which have substantially the same effect as the construction of new facilities by that Participant or any of its Affiliates) located anywhere in the world (excluding AWPL and its Affiliates' modules with designed production capacity at Kemerton of up to 75ktpa plus debottlenecking or efficiency improvements) which will provide that Participant or any of its Affiliates with additional production capacity for lithium hydroxide monohydrate or lithium carbonate fed by spodumene of greater than 20ktpa, other than as a result of debottlenecking or efficiency improvements at existing or new lithium production facilities (Additional Production Capacity), that Participant must (in good faith) and as soon as reasonably practicable issue a notice in writing to the other Participant(s) notifying the other Participant(s) of such occurrence (Notice of Additional Production Capacity).
(e)
An Alternative Refinery Plant Notice may only be issued in circumstances where prior to the issue of the Alternative Refinery Plant Notice, the Non-consenting Participant or any of its Affiliates has issued a Notice of Additional Production Capacity, provided that a Notice of Additional Production Capacity will be deemed to have been issued if no Notice of Additional Production Capacity has been given and the Sole Risk Participant can provide evidence, acting reasonably, to each Non-consenting Participant that such Additional Production Capacity of the Non-consenting Participant has commenced construction and the Non-consenting Participant (acting reasonably) has not, within ten (10) Business Days of being provided with such evidence, issued a Dispute Notice to the Sole Risk Participant in relation to such matter.
(f)
Within twenty (20) Business Days of the date of the Alternative Refinery Plant Notice, the Non-consenting Participant must:
(i)
confirm in writing its intention to participate in the Stage 2 Refinery Plant, in which case the Stage 2 Decision will be deemed to have been passed;
(ii)
confirm in writing that it will not participate in the Stage 2 Refinery Plant at that time; or
(iii)
request in writing a meeting with the chief executive officer of the Ultimate Holding Company of the Sole Risk Participant.
(g)
If the Non-consenting Participant issues a request under clause 6.12(f)(iii), each chief executive officer of the Ultimate Holding Company of each Participant must meet within five (5) Business Days of the date of the request issued under clause 6.12(f)(iii) and use all reasonable endeavours (acting in good faith) to resolve the matter in respect of the proposed Stage 2 Decision. Any resolution of a matter under this clause 6.12(g) will be deemed to be a valid resolution of the Management Committee approving a Stage 2 Decision.

 
 
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(h)
If:
(i)
the Non-consenting Participant does not comply with clause 6.12(d) and the Sole Risk Participant has given a notice to the Non-consenting Participant in accordance with clause 6.12(e) and in relation to which no Dispute Notice has been given to the Sole Risk Participant in accordance with clause 6.12(e);
(ii)
the Non-consenting Participant issues a confirmation under clause 6.12(f)(ii) that it will not participate; or
(iii)
the steps set out in clauses 6.12(f)(iii) and 6.12(g) have been taken and the matter in respect of the proposed Stage 2 Decision is not resolved within the ten (10) Business Days of the date of the request issued under clause 6.12(f)(iii),
then subject to clause 6.12(i) and clause 6.12(n), the Sole Risk Participant may (subject to clause (j)6.12(j)) in its absolute discretion construct, commission and operate the Alternative Refinery Plant outside the terms of the Joint Venture (such that the Alternative Refinery Plant will not be a Joint Venture Operation, will not form part of the Joint Venture Assets and this agreement will not govern the Alternative Refinery Plant) and the Non-consenting Participant will not participate in the Alternative Refinery Plant.
(i)
The Sole Risk Participant must not construct, commission and operate the Alternative Refinery Plant in circumstances where it would have an adverse impact on the costs of, operation of or production output of the Initial Refinery Plant or other Joint Venture Operations, including in relation to the availability of water, power, feedstock or other utilities, accommodation and site facilities. In such circumstances the Sole Risk Participant will be permitted to alter the method or design of construction, commissioning or operation of the Alternative Refinery Plant to the extent required to remedy such adverse impact.
(j)
If a Sole Risk Participant has not commenced construction of the Alternative Refinery Plant notified under an Alternative Refinery Plant Notice within 12 months of the date it is permitted to proceed with the construction, commissioning and operation of the Alternative Refinery Plant, then the right to do so will end, and the Sole Risk Participant may give another Alternative Refinery Plant Notice (without the need to first call a meeting of the Management Committee or propose a resolution regarding a Stage 2 Decision) and the Participants must again comply with this clause 6.12.
(k)
If the Sole Risk Participant, at its own cost and risk, develops the Alternative Refinery Plant outside of the Joint Venture in accordance with clause 6.12(h), it will be entitled to:
(i)
construct and operate the Alternative Refinery Plant on an appropriate area of the Tenements which is suitable for a lithium hydroxide monohydrate plant (Designated Area), provided that the Sole Risk Participant must not deliver any of its share of Lithium recovered from the Tenements into the Alternative Refinery Plant unless the Sole Risk Participant delivers on an ongoing basis its proportionate share of Lithium recovered from the Tenements to facilitate the operation of the Initial Refinery Plant at its maximum production capacity;

 
 
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(ii)
access (for itself, its Affiliates and its and its Affiliates' Personnel) the Designated Area for the purposes of constructing and operating the Alternative Refinery Plant;
(iii)
use any Intellectual Property Rights in any Joint Venture feasibility studies conducted in respect of the development of a lithium hydroxide monohydrate plant;
(iv)
receive from the Joint Venture all required goods and services which are requested by the Sole Risk Participant to construct and operate the Alternative Refinery Plant on a cost basis (including but not limited to power, accommodation and site facilities), provided that any expansion of any facilities which are required to accommodate the needs of the Sole Risk Participant will be borne solely by the Sole Risk Participant, and subject to such goods and services being available without adversely impacting on the production output of the Initial Refinery Plant; and
(v)
where WLPL is the Sole Risk Participant, enter into an agreement with the Licence Provider on terms equivalent to the Intellectual Property Licence Agreement.
(l)
The Sole Risk Participant must obtain any further Approvals required for the development of the Alternative Refinery Plant and must indemnify the Non-consenting Participant against:
(i)
the costs of developing, operating and maintaining and ultimately closing the Sole Risk Participant's Alternative Refinery Plant; and
(ii)
any:
(A)
Rehabilitation Obligations; and
(B)
any other losses sustained or liabilities incurred (except where such loss or liability arises as a direct result of the Non-Consenting Participant's fraud, Wilful Misconduct or Gross Negligence),
arising from or in connection with the Alternative Refinery Plant.
(m)
Prior to commencing construction of the Alternative Refinery Plant, the Sole Risk Participant must offer to the Non-consenting Participant to construct any foundations, pipework or other shared or potentially shared infrastructure at the cost of the Non-consenting Participant, which would facilitate the future construction by the Non-consenting Participant of a further Alternative Refinery Plant under clause 6.12(n) and facilitate its interconnection and integration with the Sole Risk Participant's Alternative Refinery Plant.
(n)
If the Sole Risk Participant develops an Alternative Refinery Plant in accordance with this clause 6.12, the Non-consenting Participant may at any time develop its own Alternative Refinery Plant, subject to the requirements and principles in clauses 6.12(i) to 6.12(l) at the cost and risk of the Non-consenting Participant, which shall not form part of the Joint Venture Assets and shall not be governed by this agreement. If the Non-consenting Participant has developed an Alternative Refinery Plant in accordance with this clause 6.12(n), the Participants may agree to include each Alternative Refinery Plant in the Joint Venture Assets, to be governed by the terms of this agreement.

 
 
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(o)
No Alternative Refinery Plant Notice may be given and the Sole Risk Participant may not commence construction of an Alternative Refinery Plant the Joint Venture Interest of any Participant is less than 50% of the aggregate Joint Venture Interests of all Participants.
(p)
Upon request from the Sole Risk Participant, and subject to clause 6.12(q), the Manager shall, in good faith, acting reasonably, consider reasonable modifications to the manner in which it operates the Initial Refinery Plant in order to avoid an adverse impact on the production output of the Initial Refinery Plant resulting from the operation of the Alternative Refinery Plant.
(q)
The Sole Risk Participant agrees to indemnify the Manager and the Non- consenting Participant for the costs of any modifications to the Initial Refinery Plant and any related future costs (including in operation and maintenance) which are made under clause 6.12(p) (including any increase in the cost of goods and services procured by the Joint Venture in connection with the Initial Refinery Plant).
6.13
Advisers
A Participant may arrange at its own expense for consultants or other technical personnel (Advisers) and up to two other persons (Observers) to be present at meetings of the Management Committee to assist its Representatives, or in the case of the Observers to observe but not participate in the meeting, provided that:
(a)
the Participant must ensure that each Adviser and Observer is under a duty of confidentiality in relation to all information and materials to which the Adviser or Observer gains access as a consequence of the Adviser or Observer being present at a meeting of the Management Committee; and
(b)
a Participant must inform the other Participants of its intention to have an Adviser or Observer attend a meeting of the Management Committee on behalf of the Participant at least two (2) Business Days before the meeting (and such notice must include the name and origin of each Adviser and Observer).
6.14
Authority of Representatives
Each Representative will have full power and authority to represent the Participant who appointed the Representative in all matters within the powers of the Management Committee and all acts done by the Representative under this authority will be deemed to be the act of the Participant who appointed the Representative.
6.15
Resolution without meeting
(a)
A resolution of the Management Committee which is signed by a Representative of each Participant who is entitled to vote (Circular Resolution) will be as valid and effective as if it had been passed at a meeting of the Management Committee properly convened and held.
(b)
A Circular Resolution may consist of one or more documents in identical terms, signed by a Representative of each Participant.
6.16
Manager’s delegate
(a)
The Manager will by notice in writing to the Participants designate a delegate to the Management Committee.

 
 
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(b)
The Manager may change its delegate at any time by giving notice in writing to the Participants.
(c)
The Manager will cause its delegate, who may be accompanied by Advisers, to be present at each meeting of the Management Committee. Such delegate and Advisers will have no voting rights and the Manager must ensure that its delegate and Advisers are under a duty of confidentiality in relation to all information and materials to which the delegate or the Advisers gains access as a consequence of the Adviser or delegate being present at a meeting of the Management Committee.
(d)
The Manager’s delegate is not entitled to vote at meetings of the Management Committee.
6.17
Minutes
(a)
The Manager must arrange for minutes of each Management Committee meeting and each sub-committee meeting as described under clause 6.18 to be taken. The Manager’s costs and expenses in providing this service will be included in Joint Venture Costs.
(b)
A copy of the minutes of each Management Committee meeting and each sub-committee meeting must be given to each Participant as soon as practicable, but no later than 21 days after each meeting.
(c)
If a Participant wishes to make any comments in respect of the minutes, it must do so within 21 days after receiving the minutes by providing a notice to the Manager.
(d)
The minutes of a Management Committee meeting or subcommittee meeting, respectively, will be considered and approved (with or without amendments) at the next meeting of the Management Committee or relevant sub-committee (as applicable), and are to be signed by the Chairperson of the relevant Management Committee meeting or the chairperson of the relevant sub-committee meeting as described in clause 6.18(c), and are then conclusive evidence of the proceedings and decisions of the meeting to which they relate.
6.18
Sub-committees
(a)
The Management Committee may establish one or more sub-committees to consider and make recommendations or, if the Management Committee unanimously and expressly confers such a power, decisions on such matters as the Management Committee may from time to time refer to any such sub-committee.
(b)
Each Participant will be entitled, but will not be obliged, to be represented on each sub-committee.
(c)
The Participant who has nominated the Chairperson of the Management Committee will appoint the chairperson of any sub-committee.
6.19
Services
The Management Committee may:
(a)
require the Manager to provide it with such services as the Management Committee may request; and
(b)
engage advisers and consultants as required,

 
 
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and all expenses incurred in connection with the exercise of this power will be regarded as Joint Venture Costs and may be paid by the Manager accordingly even if not included in an Approved Budget.
6.20
Recommendations and decisions of sub-committees
Recommendations and (where applicable) decisions of any sub-committee of the Management Committee must be by unanimous vote. If unanimity cannot be achieved on any matter, such inability and the reasons for that will be reported to the Management Committee.

7
Budgets, planning and contributions
7.1
Commencement under Initial Mine Plan and Budget
The parties agree that in respect of the period from the Effective Date until 30 June 2020, the Manager, on behalf of the Participants, will undertake Joint Venture Operations in accordance with the Initial Mine Plan and Budget.
7.2
Preparation and approval of the Business Plan
The parties agree that, subject to constraints of applicable competition rules:
(a)
prior to 28 February of each year, the Manager will consult with each of the Participants to discuss and agree the assumptions (including metal price, exchange rates, diesel price and other key commodities consumed, discount rate and inflation rate) to be used in preparing the draft Business Plan and Proposed Budget;
(b)
prior to 30 April of each year, the Manager will submit to each Participant a draft Business Plan (incorporating a Proposed Budget) which, among other periods, covers the period commencing on the following 1 July;
(c)
the Participants will promptly review the draft Business Plan (incorporating a Proposed Budget) in consultation with the Manager. The Manager will update the draft Business Plan (incorporating a Proposed Budget) to include agreed changes, prior to submission of the Business Plan (incorporating a Proposed Budget) to the Management Committee for consideration and approval at least a Month prior to the end of the current Financial Year; and
(d)
at the relevant meeting of the Management Committee in the final Quarter of each Financial Year, or at such other time as the Participants may otherwise agree, the Management Committee will consider and may approve all or part of the draft Business Plan and the Proposed Budget in accordance with clause 7.5(a), with or without amendment; and
(e)
the Participants agree to, and will procure that the Manager completes, a similar process to the process described in clauses 7.2(a) to 7.2(d) for the purpose of updating the Business Plan approved by the Management Committee under clause 7.2(d) to facilitate AWPL or its Affiliates' fiscal year (currently on a calendar year basis), if any are different (at no cost to AWPL or its Affiliates).
7.3
Contents of Business Plan
(a)
Each Business Plan will set out and cover the following separate areas:

 
 
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(i)
detailed information in relation to the proposed Joint Venture Operations and Joint Venture Costs in each Month during the first two Financial Years covered by the Business Plan, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan); and
(ii)
to the extent reasonably practical, information in relation to proposed Joint Venture Operations and Joint Venture Costs for each subsequent Financial Year during the then estimated Life of Mine, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan).
(b)
Each Proposed Budget will set out detailed information in relation to the proposed Joint Venture Operations and Joint Venture Costs in each Month during the new Financial Year, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan).
(c)
For the purposes of clauses 7.3(a) and 7.3(b), the monthly and annual information set out in a LOM Business Plan must be divided into the following separate plan categories (except to the extent that no expenditure or activity is anticipated for the relevant category):
(i)
(Mine Development / evaluation plan): this must contain details of proposed Mine Development and reasonable justification for projects proposed for Mine Development and evaluation activities.
(ii)
(mining physicals / mine metal plan): this must contain details of ore tonnes moved, waste, production risk rating.
(iii)
(Capital Costs plan): this must contain details and reasonable justification for any proposed Capital Works and a ranking of the priority of each proposed Capital Work. Assets to be scrapped or disposed of as a result of proceeding with any new Capital Work should be identified.
(iv)
(Operating Costs plan): this must reflect the guidance and directions of the Management Committee as to the grade of ore to be mined, the amount of Minerals to be produced, and other matters relating to Operating Costs, including utilisation and availability of equipment.
(v)
(exploration plan): A plan for Exploration Operations including details and reasonable justification for projects together with a budget for those works, split into work on the Development Area (if appropriate) and work on other areas of the Tenements as proposed.
(vi)
(Rehabilitation plan): this must describe anticipated works to be carried out to meet Rehabilitation Obligations and clearly identify the expenditure to be charged against existing provisions and the expenditure which is not covered by existing provisions.
(vii)
(care and maintenance plan): this must describe the care and maintenance activities to be undertaken (if any) and the associated costs.
(viii)
(Closure Plan): this must describe the anticipated activities to be carried out to meet the Mine Closure Obligations.

 
 
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(ix)
(manpower plan): this must be a plan setting out the staffing and manpower required in connection with the implementation of any proposed Joint Venture Operations referred to in this clause 7.3(c) or any other approved work programme or Joint Venture Operations under this agreement.
(x)
(budget): this must show:
(A)
working capital: expected movement in the individual significant components of working capital for the following year.
(B)
cash flow: the relevant periodic cash requirements for each of the categories in the LOM Business Plan and clearly distinguish between Capital Costs and Operating Costs.
(C)
Called Sum forecast: the extent to which the periodic cash requirements can be satisfied from cash on hand, and will include a Called Sums forecast showing the estimated periodic contribution required from each Participant.
(d)
For the purposes of clauses 7.3(a) and 7.3(b), the monthly and annual information set out in a Refinery Plant Business Plan must be divided into the following separate plan categories (except to the extent that no expenditure or activity is anticipated for the relevant category):
(i)
(Refinery Plant Development / evaluation plan): this must contain details of the proposed Refinery Plant Development and reasonable justification for projects proposed for Refinery Plant Development and evaluation activities.
(ii)
(Capital Costs plan): this must contain details and reasonable justification for any proposed Capital Works and a ranking of the priority of each proposed Capital Work. Assets to be scrapped or disposed of as a result of proceeding with any new Capital Work should be identified.
(iii)
(Operating Costs plan): this must reflect the guidance and directions of the Management Committee as to the grade and amount of lithium hydroxide monohydrate to be produced, and other matters relating to Operating Costs, including utilisation and availability of equipment.
(iv)
(manpower plan): this must be a plan setting out the staffing and manpower required in connection with the implementation of any proposed Joint Venture Operations referred to in this clause 7.3(d) or any other approved work programme or Joint Venture Operations under this agreement.
(v)
(budget): this must show:
(A)
working capital: expected movement in the individual significant components of working capital for the following year.
(B)
cash flow: the relevant periodic cash requirements for each of the categories in the Refinery Plant Business Plan and clearly distinguish between Capital Costs and Operating Costs.
(C)
Called Sum forecast: the extent to which the periodic cash requirements can be satisfied from cash on hand, and will include a Called Sums forecast showing the estimated periodic contribution required from each Participant.

 
 
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7.4
Revision of Business Plan
(a)
At any time prior to the approval and adoption of the next succeeding Business Plan (including the Proposed Budget), the Manager may propose revisions to the Business Plan (incorporating the Approved Budget) for approval by the Management Committee in accordance with the terms of this agreement.
(b)
The Manager must prepare proposed revisions to the Business Plan (incorporating the Approved Budget) if, at any time, it becomes necessary to make a material alteration in respect of any of the plans specified in the most recent Business Plan and/or Approved Budget (including if there is a Refinery Plant Decision), or if the Management Committee otherwise requests such an amendment, and submit the proposed revisions for approval by the Management Committee in accordance with the terms of this agreement.
(c)
The Manager must promptly provide the Participants with any revisions to the Business Plan (incorporating the Approved Budget) approved by the Management Committee.
7.5
Approval of Business Plan and revisions
(a)
A proposed Business Plan (incorporating a Proposed Budget) may be approved in whole or in part by the Management Committee by Ordinary Resolution.
(b)
Subject to clause 7.7(d), a revision or variation to the approved Business Plan (including the Approved Budget) requires approval by the Management Committee by Ordinary Resolution.
7.6
Temporary operating plan if Business Plan not approved
If the Management Committee has not approved all or part of a proposed Business Plan (including the Proposed Budget) for the following Financial Year (Relevant Year), by no later than one Month prior to the commencement of the Relevant Year, the following provisions will apply for so long as the unapproved part of that proposed Business Plan or Proposed Budget has not been so approved:
(a)
the portions of the Business Plan and Proposed Budget for the Relevant Year which are approved by the Management Committee will apply (to the extent practicable);
(b)
the relevant portions of the Business Plan for the Relevant Year from the most recently approved Business Plan will apply (to the extent they are applicable and were approved and including, at a minimum, ensuring that the expenditure obligations prescribed under each of the Tenements and all unavoidable obligations contained in agreements related to the Joint Venture Operations are properly met) to the portions of the Business Plan and Proposed Budget for the Relevant Year which are not approved by the Management Committee;
(c)
the portions of the plans and budgets referred to in clauses 7.6(a) and 7.6(b) will together be deemed to be an Approved Budget for the Relevant Year and implemented by the Manager in accordance with this agreement; and
(d)
when the Management Committee approves any unapproved portion of the new Business Plan under the terms of this agreement, the Manager will, as soon as practicable, vary its activities and expenditure so as to continue in accordance with the new and approved Business Plan (including the Approved Budget).

 
 
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7.7
Business Plan is binding on the Manager
(a)
The most recent Business Plan (including the component plans and Approved Budget), as approved or revised and amended by the Management Committee in accordance with this agreement, will be binding on the Manager and the Participants.
(b)
Except as otherwise required or allowed under this agreement, the Manager must carry on the development, construction, maintenance and conduct of the Joint Venture Operations in accordance with the Business Plan (including the Approved Budget).
(c)
The Manager is obliged and authorised to conduct Joint Venture Operations and to incur expenditure and make disbursements approved, or for which an allowance or provision is made, in an Approved Budget and in accordance with the Approved Budget.
(d)
The Manager must use all reasonable endeavours not to incur any expenditure (including Capital Costs and Operating Costs) in excess of the amount budgeted in an Approved Budget except as provided below:
(i)
aggregate over-expenditure on Operating Costs of:
(A)
10% or less of the total expenditure under the Approved Budget is permitted without approval of the Management Committee;
(B)
more than 10% but less than 20% of the total expenditure under the Approved Budget is permitted if approved in advance by Ordinary Resolution of the Management Committee; and
(C)
20% or more of the total expenditure under the Approved Budget is permitted if approved in advance by Special Resolution of the Management Committee;
(ii)
aggregate unbudgeted Capital Costs (including any overruns on budgeted Capital Costs) of:
(A)
the lesser of 20% of the individual line item or up to $5,000,000 from that under the Approved Budget is permitted without approval of the Management Committee;
(B)
between $5,000,000 and $25,000,000 from that under the Approved Budget is permitted if approved in advance by Ordinary Resolution of the Management Committee; and
(C)
$25,000,000 or more from that under the Approved Budget is permitted if approved in advance by Special Resolution of the Management Committee; and
(iii)
reasonable expenditure to fund urgent action under clause 7.8 is permitted without approval of the Management Committee.
7.8
Urgent action
(a)
Subject to clause 7.8(c), the Manager may take such emergency action as, in the Manager’s judgement, is necessary to preserve property, avoid, mitigate or prevent material risk of harm or damage to persons, property or the environment and to ensure Participants comply with their respective contractual and legal obligations in relation to the Joint Venture Operations.

 
 
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(b)
The Manager must promptly notify the Participants as and when any costs of the nature referred to in clause 7.8(a) above are incurred.
(c)
To the extent that time permits, the Manager must use reasonable endeavours to:
(i)
seek the approval of the Management Committee as otherwise required of it under this agreement; or
(ii)
consult with the Participants and the Management Committee,
as soon as reasonably practicable after becoming aware of the need to take urgent action.

8
Provision of funds
8.1
Obligation to contribute
Each Participant must contribute to Joint Venture Costs in proportion to their respective Joint Venture Interests, and Cash Calls issued under this clause 8 will be prepared accordingly.
8.2
Manager may apply funds held
The Manager will be entitled to apply funds held by the Manager for the account of a Participant under this agreement to satisfy that Participant’s share of Joint Venture Costs.
8.3
Monthly Cash Call
(a)
At or prior to the Effective Date, the Manager will notify the Participants of the estimated funding requirements required by the Manager for the period from the Effective Date up to the date the next Called Sum is payable by Participants under clause 8.4(a), including details of the estimated disbursements to be made for Joint Venture Costs during that period. The amount specified will comprise a Called Sum and is payable within five (5) Business Days after the Effective Date in accordance with clause 8.4(b).
(b)
Based upon the Business Plan (including the Approved Budget, as revised by the Management Committee from time to time) or where applicable any Approved Budget under clause 7.6, the Manager must submit to each Participant, on or before the 15th day of each Month, a statement (Cash Call) showing:
(i)
the estimated disbursements to be made for Joint Venture Costs during the following Month (showing Operating Costs and Capital Costs separately);
(ii)
the extent, if any, to which such disbursements can be satisfied by funds already held by the Manager for the account of the Participants under this agreement;
(iii)
the amount (Called Sum) required to be paid by each Participant (which, for the avoidance of doubt, is the cash amount which is required to be paid by a Participant after application of funds held by the Manager to the account of the Participant in accordance with clause 8.3(b)(ii));

 
 
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(iv)
the place or places where, and manner in which, payment is to be made; and
(v)
such other details as the Management Committee may from time to time direct.
(c)
Subject to clause 8.5, a Called Sum for a Month may be for an amount which is:
(i)
under 120% of the monthly Called Sum forecast for that Month under the then current Approved Budget without approval of the Management Committee;
(ii)
120% or more, but less than 140%, of the monthly Called Sum forecast for that Month under the then current Approved Budget, if approved by an Ordinary Resolution of the Management Committee; or
(iii)
140% or more of the monthly Called Sum forecast for that Month under the then current Approved Budget, if approved by a Special Resolution of the Management Committee,
provided that:
(iv)
if at any time after the first three (3) Months of the Financial Year, the “Year to Date” Called Sum and the proposed Called Sum for the next Month would be greater than 110% of the Called Sum forecast for that period under the then current Approved Budget, the proposed Called Sum requires approval by an Ordinary Resolution of the Management Committee; and
(v)
if at any time after the first three (3) Months of the Financial Year, the “Year to Date” Called Sum and the proposed Called Sum for the next Month would be greater than 120% of the Called Sum forecast for that period under the then current Approved Budget, the proposed Called Sum requires approval by a Special Resolution of the Management Committee.
8.4
Payment of Called Sum
(a)
Each Participant must pay to the Manager the Called Sum applicable to it by the later of:
(i)
10 Business Days after a Cash Call is made; and
(ii)
the fifth Business Day of the Month following the Month in which the Cash Call is made.
(b)
Called Sums must be paid to the Manager:
(i)
within the timeframe prescribed by this clause 8.4;
(ii)
in Immediately Available Funds;
(iii)
free of set-off, deduction or counterclaim;
(iv)
unless specified in an Approved Budget or as otherwise agreed, in the currency requested by the Manager (Requested Currencies), it being agreed that unless otherwise agreed between the Participants, the Requested Currencies are limited to $Australian, $US, the Euro and Chinese Yuan and the breakdown of denominations requested must be consistent with the denomination of Manager expenditures; and

 
 
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(v)
at the place or places, and in the manner, specified in the Cash Call.
(c)
Nothing in this clause 8.4 prevents a Participant paying a Called Sum on behalf of another Participant pursuant to any agreement which may exist between them or their Affiliates, and any such payment shall be credited as a payment by the Participant against whom the Cash Call was made.
8.5
Emergency Cash Call
(a)
If at any time the Manager is, or is likely to be, required to take urgent action under clause 7.8 which requires funds in excess of the funds then available to the Manager, and which have not been provided for in the most recent Cash Call, the Manager may issue an emergency Cash Call to each Participant stating:
(i)
the amount of funds required for Joint Venture Costs;
(ii)
the Called Sum required to be paid by each Participant;
(iii)
the place or places where, and manner in which, payment is to be made; and
(iv)
the circumstances, in reasonable detail, giving rise to the necessity for obtaining such funds.
(b)
Each Participant must, as soon as practicable (and in any event within five (5) Business Days) after receipt of an emergency Cash Call, pay to the Manager the Called Sum applicable to it.
(c)
The parties acknowledge that clause 8.3(a) does not apply to any Cash Calls made under this clause 8.5.
8.6
Bank account
(a)
All Called Sums and other moneys received or earned by the Manager on behalf of the Joint Venture will be deposited into a designated account or accounts in the name of the Manager, as manager of the Joint Venture, maintained at a branch or branches of a bank authorised to carry on a banking business under the Banking Act 1959 (Cth) selected by the Manager. Such bank must offer full on-line account visibility (on a read-only basis) to Participants.
(b)
Subject to clause8.6(d), the Manager alone will be entitled to operate such account or accounts and may from time to time temporarily invest any surplus funds in such account in accordance with such short term investment policies as may from time to time be approved by the Management Committee.
(c)
No such investment will have a maturity exceeding the time within which the funds so invested are required to be disbursed on account of Joint Venture Costs.
(d)
All funds in any account opened by the Manager (including any short term investments acquired with such funds) will remain the beneficial property of the Participants in proportion to their Joint Venture Interests until such time as those funds are disbursed on account of Joint Venture Costs.

 
 
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(e)
The Manager may only open a bank account with the approval of the Participants by Special Resolution and must notify the Participants when the Manager opens or closes any such bank account acting as agent for the Participants.
8.7
Disbursements from bank accounts
The Manager will make from the accounts referred to in clause 8.6 all disbursements which are required to be made from time to time on account of Joint Venture Costs.
8.8
Repayment of surplus funds
(a)
The Manager will, if directed by the Management Committee, repay to each Participant (other than a Participant in respect of which there is an Event of Default or which is in default in the payment of any Called Sum) any funds which are in excess of that Participant’s share of the estimated disbursements for the following Month and the amount of working capital deemed necessary by the Manager for Joint Venture Operations as set out in the Cash Call provided to that Participant in accordance with clause 8.3.
(b)
The Manager will not be obliged to repay any such funds to a Participant if the amount is less than $100,000, unless requested to do so by that Participant.
8.9
Accounting for Called Sums
The Manager will use Called Sums, and any assets acquired by the use of such funds, for the purpose of Joint Venture Operations or for payment to Participants as provided in clause 8.8, and for no other purpose.

9
Records, accounts and reports
9.1
Manager to keep records and accounts
(a)
The Manager will, in accordance with the Accounting Procedure and generally accepted accounting principles and customary cost accounting practices in the mining industry, keep, or cause to be kept, comprehensive, true and accurate records and accounts of:
(i)
Joint Venture Operations;
(ii)
the Joint Venture Assets;
(iii)
all Called Sums received by the Manager from (or on behalf of) each Participant;
(iv)
all contracts and transactions entered into by or on behalf of the Participants in connection with the Joint Venture;
(v)
the Joint Venture Cost and expenses of all transactions entered into by or on behalf of the Participants;
(vi)
all approvals of requisitions, purchase orders, invoices, contracts, authorisation for capital expenditure requests;
(vii)
all approvals required in connection with this agreement, including minutes of meetings, Ordinary Resolutions and Special Resolutions;

 
 
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(viii)
agendas, minutes and documents provided to members for the Management Committee and any sub committees; and
(ix)
Personnel of the Manager subject to applicable laws, including in relation to privacy,
(Joint Venture Records and Accounts).
(b)
Without limiting the generality of the foregoing, the Joint Venture Records and Accounts will be maintained in such manner as may be reasonably necessary to enable each Participant to meet its reporting, accounting and tax return requirements (including deadlines).
9.2
Place for records
(a)
The Manager will determine the place or places within Australia where the Joint Venture Records and Accounts are kept.
(b)
The Manager must keep each Participant informed as to each location where the Joint Venture Records and Accounts are kept.
(c)
The Manager will make appropriate use of IT systems, including separate instances of systems and software utilised by the respective Participants, so as to maximise efficiency, effectiveness, transparency and visibility of the Joint Venture Records for the Participants and the Manager's costs in performing its obligations under this clause will form part of the Joint Venture Costs.
9.3
Annual financial statement
(a)
The Manager must, in respect of each Financial Year, provide to each Participant as soon as practicable (and no later than 30 days) after the end of each Financial Year (commencing with the Financial Year in which the Effective Date occurs) a financial statement reflecting:
(i)
all receipts, expenditures and transactions made by the Manager on behalf of the Participants in connection with the Joint Venture during that Financial Year;
(ii)
all Joint Venture Assets in the custody or control of the Manager as at the end of that Financial Year; and
(iii)
all Joint Venture liabilities as at the end of that Financial Year.
(b)
The Manager will also provide comparable information to the information described in clause 9.3(a) as required by AWPL, including GAAP adjustments as applicable, as of the end of each AWPL or its Affiliates' fiscal years (currently ending 31 December).
(c)
All costs incurred by the Manager in complying with this clause will form part of Joint Venture Costs.
9.4
Monthly report
The Manager will provide to each Participant, within five (5) Business Days after the end of each Month, a written report detailing:

 
 
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(a)
the progress and results of Joint Venture Operations during the Month just ended (with commentary on any material departures from the Business Plan, including the Approved Budget);
(b)
all outgoings incurred and payments made during that Month;
(c)
a running reconciliation of actual incurred expenditures to date against costs under the Approved Budget (with commentary on any material departures);
(d)
all proposed outgoings and payments to be incurred or made during the next Month (with commentary on any material proposed departures from the Approved Budget);
(e)
estimate on quantity of stockpiles and estimated Mineral content including Lithium; and
(f)
a statement of the assets and liabilities of the Joint Venture and each Participant’s investment in the Joint Venture,
in sufficient detail to satisfy the respective Participant’s (or if requested by the Participant those of its Ultimate Holding Company) corporate reporting requirements and to a level which is at least the same or similar to that which the Manager may provide to its senior management or Affiliates. Notwithstanding the foregoing, the Manager will make available sufficient financial information for each Participant to close their books within their normal procedures and timelines as will be communicated by each Participant to the other and to the Manager, and to avoid doubt, the Manager's costs in complying with this obligation will form part of the Joint Venture Costs.
9.5
Forecasts
The Manager will prepare the following forecasts each Month (except as otherwise specified below) and issue such forecasts to each Participant within five Business Days of Month end:
(a)
operational forecasting for the next three full calendar Months (broken down by Month) which includes:
(i)
spodumene production forecast in metric tonnes per day;
(ii)
maintenance plan on the Processing Plant; and
(iii)
if the Initial Refinery Plant or other lithium hydroxide monohydrate plant that is a Joint Venture Asset is to operate in the relevant period:
(A)
lithium hydroxide monohydrate production in metric tonnes per day;
(B)
maintenance plan on lithium hydroxide monohydrate plant sodium; and
(C)
sulphate production forecast in metric tonnes per day;
(b)
operational forecasting for the next 18 full calendar Months which includes:
(i)
spodumene production forecast in metric tonnes per day;

 
 
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(ii)
if the Initial Refinery Plant or other lithium hydroxide monohydrate plant that is a Joint Venture Asset is to operate in the relevant period, lithium hydroxide monohydrate production in metric tonnes per day; and
(iii)
timing of expected extended plant maintenance and turnarounds;
(c)
financial forecasting for the next 12 full calendar Months, including at a minimum:
(i)
sales volume and cost of production by product family;
(ii)
other cost of goods sold;
(iii)
selling and administrative;
(iv)
depreciation and amortisation;
(v)
any other items that would be included in the income statement;
(vi)
operational spending broken down by cost centre; and
(vii)
capital project spending;
(d)
cash forecasting for the next full 12 calendar weeks, broken down by week, to be provided weekly; and
(e)
cash forecasting for the next full 12 calendar Months, broken down by Month.
9.6
Other reporting requirements
The Manager must provide the following reports to each Participant:
(a)
immediately after the occurrence of any event which causes, or is likely to cause, material damage to the Joint Venture Assets or delay or adversely affect the Joint Venture Operations, a report of the event and an estimate of likely resultant costs, to the extent it can be reasonably estimated at that time;
(b)
as soon as practicable after the occurrence of any lost time injury, any legal or threatened claim valued above $250,000, significant environmental incident, damage or destruction of property valued at over $250,000 or other event that requires a report to be filed or notification to be lodged with a Government Agency, notice of that occurrence or event;
(c)
within ten (10) Business Days after a written request from a Participant, all reports and information required by a Participant (or any of its Affiliates) to comply with its (or any of its Affiliates’) periodic reporting and disclosure obligations under the rules of any applicable stock exchange, including in respect of mineral reserves and resources; and
(d)
as soon as practicable after notice to the Manager, a report on the status and conduct of any actual or threatened court or arbitration proceedings or insurance claims.
9.7
Information and data
(a)
The Manager will provide all information, data and material concerning Joint Venture Operations which the Participant (or its Affiliate) may reasonably require to meet its statutory reporting, audit and disclosure obligations under the

 
 
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Corporations Act, the ASX Listing Rules, the rules and regulations of the New York Stock Exchange, the applicable laws or the rules of any other recognised stock exchange or Government Agency as applicable.
(b)
The Manager will ensure that Exploration Information and Resources and Reserves are calculated and reported to the Participants in a manner that complies with the JORC Code.
(c)
Subject to clause 9.9, the Manager will provide reports on the Exploration Information and Resources and Reserves that are in a format reasonably required by a Participant (or its Affiliate) to meet its reporting and disclosure requirements referred to in clause 9.7(a). To the extent compliance with those reporting and disclosure requirements requires the consent of a Competent Person, the Manager must obtain that consent on behalf of the Participants (or its Affiliate) in the form reasonably required by the Participant (or its Affiliate).
(d)
The Manager will (in conjunction with the relevant Competent Person) be responsible for determining the assumptions to be used for the calculation of Resources and Reserves but will, so far as is practical, notify the Participants of those assumptions in advance of finalising any estimates of Resources and Reserves. Subject to being advised by the Participants of the relevant deadlines, the Manager will use all reasonable endeavours to provide the details of those assumptions to enable the Participant to comply with applicable regulatory reporting deadlines (of the Participant and/or its Affiliates), if it disagrees with the assumptions adopted by the Manager. If any Participant does not agree with the assumptions used by the Manager, the Manager will, upon request of any Participant, promptly provide to the Participants an electronic copy of the model used to generate the estimates of Resources and Reserves in such a form and with such content as will enable the Participant (or its Affiliate) to alter the relevant assumptions and generate its own estimates of Resources and Reserves. The Manager must provide the Participant (or its Affiliate) with such reasonable assistance as the Participant (or its Affiliate) may require in order to operate and assess the model for that purpose. In that event, the Participant (or its Affiliate) will be responsible for obtaining the necessary Competent Person consent for the estimates of Resource and Reserves that it generates.
(e)
To enable Participants (and their Affiliates) who have a financial year end of 30 June, or 31 December, or is required to publish a half-yearly or quarterly report to comply with their statutory reporting obligations, the Manager will provide those Participants (and their Affiliates) with the following information in relation to the Joint Venture for (as applicable) the year ending on, or as at, 30 June and/or 31 December or half year ending 30 June, or quarter year ending 31 March, 30 June, 30 September:
(i)
statement of financial position;
(ii)
income statement;
(iii)
cash flow statement;
(iv)
trial balance;
(v)
asset register of the Joint Venture Assets;
(vi)
inventory;
(vii)
employee leave balance, payroll tax returns and superannuation payments;

 
 
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(viii)
cash balance;
(ix)
details of calculation of contingent liabilities and capital commitments;
(x)
Business Activity Statements, all sales tax, fringe benefits tax, customs duty, excise duty and diesel fuel rebates returns or statements;
(xi)
royalty statements in relation to the royalties payable to the State; and
(xii)
accounting policies,
prepared in accordance with International Financial Reporting Standards or GAAP (as applicable) and any supporting materials prepared by or on behalf of the Manager in preparing this information.
9.8
Copies of reports to Participants
Upon request by a Participant, the Manager must provide to the Participant:
(a)
copies of all reports prepared by the Manager in connection with Joint Venture Operations; and
(b)
copies of all material reports and other significant written communications to or from any government, government minister or Government Agency relating to any Tenement or Joint Venture Operations.
9.9
Format
The Manager must consult with the Participants, when requested by a Participant, in relation to the format of reports to be provided pursuant to this clause 9 and have regard to the information requirements of the Participants (and its Affiliates). The Manager also acknowledges that, accordingly, the format of the reports may change from time to time.
9.10
Additional reporting
Except where expressly provided otherwise, where a Participant (or its Affiliate) requires any particular reporting or information requirements that differ from that which the Manager would otherwise give under this clause, the additional external costs incurred by the Manager in providing information requested under this clause must be paid by the requesting Participant, provided that the costs are material. To the extent any costs are not required to be met by the requesting Participant under this clause, they will constitute Joint Venture Costs under this agreement.

10
Audit and access
10.1
Audit
(a)
The Manager must provide to each Participant, within 30 days (or such later date agreed by the Participants) after the relevant end of each Financial Year, a report by an internationally recognised and qualified independent auditor registered in accordance with Part 9.2 of the Corporations Act appointed by AWPL after having first obtained the consent of WLPL (not to be unreasonably withheld) (Auditor), in which the Auditor reports to the Participants that the Auditor has examined the Joint Venture Records and Accounts, the basis for provision of funds to the Manager and the financial statement for the relevant Financial Year and is satisfied

 
 
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as to their accuracy or, if the Auditor is not so satisfied, the reason why the Auditor is not so satisfied.
(b)
The audit will be conducted in accordance with Australian Auditing Standards ASQC1 – Quality Control for Firms that Perform Audits and Reviews of Financial Reports and Other Financial Information, Other Assurance Engagements and Related Services Engagements (Complied) and will confirm that the financial report presents fairly, the financial position of the Joint Venture as at the balance date in accordance with the basis of preparation described in the Joint Venture financial statements. An objective of the audit is that the Participants and their Affiliates may rely on that audit for the purposes of preparing its audited financial statements as required by applicable laws. Notwithstanding, the audit will also be conducted in a manner consistent with the standards of the US PCAOB or of other US regulators applicable to audits of US publicly-held companies.
(c)
Each Participant will have the right of direct communication with the Auditor.
(d)
Without limiting this clause 10.2, AWPL has the right to request that in addition to the above audit, a similar audit be performed under GAAP and PCAOB auditing standards for relevant periods corresponding to AWPL or its Affiliates’ fiscal years' end (currently ending 31 December) and such costs will constitute Joint Venture Costs under this agreement.
10.2
Participant’s access to records
The Manager will, if requested:
(a)
permit a Participant to inspect and copy;
(b)
provide to a Participant copies of; and
(c)
provide to a Participant statements compiled from,
the Joint Venture Records and Accounts and the results of all work undertaken by, or on behalf of, the Manager for the purposes of the Joint Venture (including plans, maps, geological and engineering reports, cores, samples, logs and surveys and other documents under the control of the Manager or any sub-contractor of the Manager). The requesting Participant will be required to pay any external costs and copying costs incurred by the Manager in providing information requested under this clause provided that the costs are material and to the extent that any such information may require further interpretation/clarification, the Manager will make relevant Personnel available to the requesting Participant. To the extent any costs are not required to be met by the requesting Participant under this clause, they will constitute Joint Venture Costs under this agreement.
10.3
Access to Joint Venture Area and Joint Venture Assets
(a)
Each Participant and its properly authorised representatives will be entitled at all reasonable times, and at the risk and expense of such Participant, to have:
(i)
access to, and the right to inspect, the Joint Venture Assets and the Joint Venture Area, provided the Participants and their officers, employees, agents and contractors must comply with the directions of the Manager when doing so;
(ii)
the right to consult with the employees of the Manager and with any independent contractors (and their employees) which have been engaged by the Manager concerning

 
 
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Joint Venture Operations and the performance by the Manager of its duties under this agreement;
(iii)
the right to take such samples of material employed by or produced from the Joint Venture Operations as are reasonably requested; and
(iv)
the right to appoint an independent Auditor to audit the affairs of the Joint Venture and the Manager, including the basis for the provision of funds by the Participants under clause 8.
(b)
Information and access will be provided promptly on request, provided that it does not unreasonably disrupt the conduct of the Joint Venture Operations.
(c)
The Manager must co-operate with Participants and any Auditor appointed to enable them to obtain information and samples contemplated by clause 10.3(a).

11
Confidential Information
11.1
Information to be kept confidential
This agreement, and all information which is made available to or obtained by a Participant or the Manager from or in connection with Joint Venture Operations, or under any Joint Venture Document, and which is not a matter of public knowledge or lawfully available from any other source and the Mining Information (collectively Confidential Information) will be and will remain confidential between the Participants and the Manager, and will not, without the prior written consent of the other Participants (which consent must not be unreasonably withheld), be disclosed to any third person other than:
(a)
a Participant or its directors, officers, employees and agents;
(b)
an Affiliate of a Participant or that Affiliate’s directors, officers, employees and agents;
(c)
the Manager;
(d)
any government, government minister, or Government Agency, which requires it or has power to require it under any applicable law, rule or regulation;
(e)
any court of competent jurisdiction which has directed it;
(f)
any bank or other recognised financial institution making a loan or giving accommodation to a Participant or to an Affiliate of a Participant;
(g)
any person to whom disclosure is permitted under the terms of any Joint Venture Document;
(h)
any person which in good faith is seeking to purchase or otherwise acquire the whole or part of the Joint Venture Interest of a Participant, or shares in a Participant or an Affiliate of a Participant, provided that an undertaking as to confidentiality by the person in a form set out in Attachment B is first obtained;
(i)
any professional legal adviser subject to professional obligations of confidentiality;
(j)
any other professional or other independent consultant or adviser engaged by a Participant or the Manager provided that an undertaking as to confidentiality by the person, in a form set out in Attachment B, is first obtained;

 
 
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(k)
as may be required by law or by the rules of any recognised stock exchange on which shares or other securities of a Participant or its Affiliates are listed, except that the parties agree to the extent permitted that they will not disclose information of the kind described by section 275(1) of the PPS Act, except as permitted by any other provision of this clause or required by any other law or regulation. For the avoidance of doubt, this does not permit the disclosure of information under section 275(4) of the PPS Act unless section 275(7) applies;
(l)
to satisfy legal disclosure obligations in a disclosure document issued by a Participant or its Affiliates to raise funds or implement or propose a corporate transaction involving the Participant or its Affiliates; or
(m)
for the purposes of any arbitration or court proceeding in respect of any dispute arising out of any Joint Venture Document.
11.2
Protection of Confidential Information
Each Participant and the Manager must take or cause to be taken such reasonable precautions as may be necessary to prevent the disclosure of any Confidential Information.
11.3
Announcements
If any Participant (or its Affiliate) wishes to publish any public statement (including a press release) relating to or in any way connected with Joint Venture Operations or the terms of any Joint Venture Document, then, to the extent permitted by law or the rules of any recognised stock exchange applying to the Participant or its Affiliates, that Participant must notify and, where practicable, provide a copy of the public statement to, the Manager and the other Participants before issuing the public statement.
11.4
Continuing confidentiality obligation
(a)
This clause 11 will apply to:
(i)
any Participant which ceases to be a Participant for a period of three (3) years after the date upon which such Participant ceases to be a Participant; and
(ii)
a Manager which ceases to be a Manager for a period of three (3) years after the date upon which such Manager was removed.
(b)
Upon the termination of this agreement, this clause 11 will, notwithstanding such termination, apply to the Participants and the Manager at the date of termination, for a period of three (3) years after such termination.
11.5
MRL Standstill
(a)
The Participants acknowledge and agree that some or all of the Confidential Information may be relevant to the price or value of the securities of MRL. Each Participant (other than WLPL) undertakes (which undertaking is given for the benefit of MRL) that it will not (and must ensure that its Affiliates will not) do anything that breaches the insider trading provisions of the Corporations Act from time to time.
(b)
During the period commencing on the date of this agreement and ending on the earliest of the following dates:

 
 
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(i)
two (2) months after a Participant ceases to be a Participant;
(ii)
the date a person or persons jointly or in concert (other than a Participant or its Affiliates), publicly announce their intention to commence a Control Transaction which, at the time of announcement, is unanimously recommended by the board of directors of MRL; and
(iii)
the date MRL publicly announces that its board of directors has approved an agreement which contemplates a Control Transaction,
the Participants must not, and must ensure that no Affiliates:
(iv)
announce any intention to commence a Control Transaction in relation to MRL;
(v)
enter into any swap, derivative or other similar instrument the effect of which is to give the Participant an economic interest in securities (including shares) in the capital of MRL;
(vi)
acquire, agree to acquire or make any invitation or proposal to acquire, a relevant interest (as defined in the Corporations Act) directly or indirectly in any securities (including shares) in the capital of MRL; or
(vii)
advise, assist or encourage any other person in connection with any of the foregoing,
unless this restriction is first waived in writing by MRL.
(c)
The Participants acknowledge that MRL may enforce the undertaking given by the Participants in this clause 11.5 despite the fact that it is not a party to this agreement.
(d)
For the avoidance of doubt, the provisions of this clause 11.5 will cease to apply if neither WLPL nor any of its Affiliates is a Participant.
(e)
The provisions of this clause 11.5 will cease to apply if MRL ceases to be the Ultimate Holding Company of any Participant.
11.6
Albemarle Standstill
(a)
The Participants acknowledge and agree that some or all of the Confidential Information may be relevant to the price or value of the securities of Albemarle. Each Participant (other than AWPL) undertakes (which undertaking is given for the benefit of Albemarle that it will not (and must ensure that its Affiliates will not) do anything that breaches the insider trading provisions of the Corporations Act or any other law or regulation from time to time.
(b)
During the period commencing on the date of this agreement and ending on the earliest of the following dates:
(i)
two (2) months after a Participant ceases to be a Participant;
(ii)
the date a person or persons jointly or in concert (other than a Participant or its Affiliates), publicly announce their intention to commence a Control Transaction which, at the time of announcement, is unanimously recommended by the board of directors of Albemarle; and

 
 
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(iii)
the date Albemarle publicly announces that its board of directors has approved an agreement which contemplates a Control Transaction,
the Participants must not, and must ensure that no Affiliates:
(iv)
announce any intention to commence a Control Transaction in relation to Albemarle;
(v)
enter into any swap, derivative or other similar instrument the effect of which is to give the Participant an economic interest in securities (including shares) in the capital of Albemarle;
(vi)
acquire, agree to acquire or make any invitation or proposal to acquire, a beneficial interest directly or indirectly in any securities (including shares) in the capital of Albemarle; or
(vii)
advise, assist or encourage any other person in connection with any of the foregoing,
unless this restriction is first waived in writing by Albemarle.
(c)
The Participants acknowledge that Albemarle may enforce the undertaking given by the Participants in this clause 11.6 despite the fact that it is not a party to this agreement.
(d)
For the avoidance of doubt, the provisions of this clause 11.6 will cease to apply if neither AWPL nor any of its Affiliates is a Participant.
(e)
The provisions of this clause 11.6 will ceases to apply if Albemarle ceases to be the Ultimate Holding Company of any Participant.

12
Assignments and charges
12.1
Restrictions on assignments and charges
(a)
Subject to clause 12.1(b), except as permitted in this clause 12, or as required under clause 13, no Participant will:
(i)
sell, convey, assign, transfer, novate, lease, sublease or otherwise dispose of; or
(ii)
create or permit to exist any Security Interest (other than a Permitted Security Interest) in respect of,
the whole or any part of its Joint Venture Interest.
(b)
Nothing in this clause 12 will operate to prevent a Participant from selling or otherwise disposing of its share of Product in the ordinary course of the Participant’s business.
(c)
Notwithstanding any other provision of this agreement (and, in particular, clauses 12.2 and 12.3), a Participant must not make any sale, transfer or other disposition if, upon completion of that sale, transfer or other disposition, that Participant or the assignee would have a Joint Venture Interest less than 10% but greater than zero (in other words, each Participant must have a Joint Venture Interest of at least 10%).

 
 
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(d)
For the purposes of clause 12 and 13 of this agreement, a Participant's Joint Venture Interest will be deemed to include the whole or the same proportionate part of that Participant's ownership interest in an Alternative Refinery Plant not forming part of the Joint Venture Assets.
12.2
Permitted transfer to Subsidiaries
A Participant which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence (Transferor), may at any time, subject to the provisions of clause 12.11, transfer the whole or any part of its Joint Venture Interest to a Subsidiary of the Ultimate Holding Company of the Transferor (Transferee).
12.3
Sale of Participant's lithium business
(a)
A Participant that is WLPL (or any Transferee Subsidiary of WLPL under clause 12.2) which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence, and provided that MRL is the Ultimate Holding Company of that Participant, may at any time subject to provisions of clause 12.11, transfer the whole of its Joint Venture Interest to a Third Party, provided that the transfer is affected as part of a sale of all or substantially all of MRL's lithium business which, as at the Effective Date, includes MRL's and its Affiliates' direct and indirect legal and beneficial ownership interest of:
(i)
the Participant's Joint Venture Interest; and
(ii)
its share of the Mount Marion Lithium Project.
(b)
A Participant that is AWPL (or any Transferee Subsidiary of AWPL under clause 12.2), which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence, and provided that Albemarle is the Ultimate Holding Company of that Participant, may at any time, subject to provisions of clause 12.11, transfer the whole or any part of its Joint Venture Interest to a Third Party, provided that the transfer is affected as part of a sale of all or substantially all of its global lithium business as described in its annual corporate filings from time to time.
12.4
Transfer of Participant’s Joint Venture Interest
A Participant which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence (Selling Participant), may at any time, subject to the provisions of clause 12.11, agree to sell for a cash consideration or a non-cash consideration which is readily convertible to a cash equivalent, the whole or any part of its Joint Venture Interest, provided that the sale must not proceed to completion unless:
(a)
the provisions of clause 12.5 have first been complied with; and
(b)
in the case of an assignment to a person who is not a Participant or its Affiliate, that assignee must be approved by the other Participants, which approval cannot be withheld if the assignee has:
(i)
the financial capacity to meet both the purchase price for acquiring the Selling Participant’s Joint Venture Interest, and the financial commitments of a Participant under this agreement to the extent of the assigned Joint Venture Interest, whether through its own financial standing or through the provision of satisfactory security, which may include

 
 
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a parent company guarantee from an entity with the requisite financial capacity or other satisfactory security; and
(ii)
the technical and operational capacity to meet the obligations of a Participant under this agreement.
12.5
Right of last refusal
The following provisions apply in respect of any sale referred to in clause 12.4:
(a)
the Selling Participant must give notice of the proposed sale to each of the other Participants, and must include in the notice (Proposed Sale Notice):
(i)
the name and address of the person to whom the Selling Participant’s Joint Venture Interest is proposed to be sold (Proposed Buyer);
(ii)
the portion of the Selling Participant’s Joint Venture Interest which is the subject of the proposed sale (Sale Interest);
(iii)
the cash consideration or cash equivalent of the non-cash consideration for which the Selling Participant’s Joint Venture Interest is proposed to be sold; and
(iv)
all the other terms and conditions of the proposed sale;
(b)
the Selling Participant must include with the Proposed Sale Notice an offer to sell the Sale Interest to such of the other Participants who are not then in default in the payment of any Called Sums, and with respect to which an Event of Default is not then in existence (Continuing Participants), in proportion to their respective Joint Venture Interests, at the same price (being in the case of non-cash consideration, unless the Continuing Participants agree otherwise in relation to a royalty, the cash equivalent determined under this clause 12.5) and, subject to clause 12.6, on the same terms and conditions on which it is willing to sell the Sale Interest to the Proposed Buyer. The offer must be in a form which is capable of immediate acceptance by the Continuing Participants;
(c)
if the consideration notified by the Selling Participant to the Continuing Participants under the Proposed Sale Notice is non-cash consideration, the Selling Participant must bona fide convert the non-cash consideration to a cash equivalent on a basis that is transparent and disclosed in the Proposed Sale Notice;
(d)
if any Continuing Participant does not agree with the basis on which the non-cash consideration has been converted to a cash equivalent, that party must so notify the Selling Participant and the other Continuing Participants within seven (7) days of it receiving the Proposed Sale Notice;
(e)
on a Continuing Participant so notifying the Selling Participant, all of the Participants will promptly meet and endeavour to reach agreement on the amount of the cash equivalent of the non-cash consideration. If agreement is reached, the Selling Participant must issue a new Proposed Sale Notice including the agreed cash equivalent. The period of 60 days referred to in clause 12.5(h) will be deemed to commence on the date that the Selling Participant issues a fresh Proposed Sale Notice and the original notification to the Continuing Participants will be deemed never to have been made. If within 14 days after their first meeting, the Selling Participant and the Continuing Participants have not reached agreement on the amount of the cash equivalent of the non-cash consideration, the matter will be referred to an Expert in accordance with clause 17 to determine whether or not the Selling Participant’s calculation of the cash equivalent was fair

 
 
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and reasonable and, if not, to determine the Expert’s calculation of the amount of the cash equivalent;
(f)
if the Expert determines that the Selling Participant’s calculation of the cash equivalent was fair and reasonable:
(i)
the period of 60 days referred to in clause 12.5(h) will be deemed to have commenced on the date the Proposed Sale Notice was given provided that if the period of 60 days has expired or would expire prior to 14 days after the date upon which the Expert notifies the Participants of his determination, the 60 day period will be extended to the date which is 14 days after the date upon which the Expert notifies the Participants of the Expert’s determination; and
(ii)
the Expert’s costs will be borne by the Continuing Participant who objected to the Selling Participant’s calculation of the cash equivalent;
(g)
if the Expert determines that the Selling Participant’s calculation of the cash equivalent was not fair and reasonable:
(i)
the Selling Participant must issue a fresh Proposed Sale Notice to the Continuing Participants in accordance with the requirements of clause 12.5(a) including the cash equivalent as determined by the Expert and the original Proposed Sale Notice will be deemed never to have been made; and
(ii)
the Expert’s costs will be borne by the Selling Participant;
(h)
the Continuing Participants will have the right to accept the offer set out in the Proposed Sale Notice at any time within a period of 60 days from the date the Proposed Sale Notice is given (subject to any extension under clause 12.5(f)), and such offer must remain open for that period;
(i)
if one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Selling Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Sale Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Selling Participant’s notice is given to accept the unaccepted part of the Sale Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price and on the same terms and conditions;
(j)
if:
(i)
the whole of the Sale Interest is not accepted by one or more of the Continuing Participants; or
(ii)
the whole of the Sale Interest is accepted by one or more of the Continuing Participants but the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants is terminated before completion for reasons other than for a default on the part of the Selling Participant,
then the Selling Participant may complete the sale of the Sale Interest to the Proposed Buyer in accordance with the terms and conditions of the proposed sale as set out in the Proposed Sale Notice (or on other terms no more favourable to the Proposed Buyer than those terms and conditions), within a period of 60 days (which period shall be extended until the 5th day following receipt of all Transfer Approvals (which must be sought with all reasonable dispatch), to the extent not

 
 
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obtained during the initial 60 day period, provided that the initial period can only be extended up to a maximum of 12 months) after:
(iii)
in the circumstances outlined in clause 12.5(j)(i), the end of either the 60 day period referred to in clause 12.5(h) or the 60 day period referred to in clause 12.5(i) as the case may be; and
(iv)
in the circumstances outlined in clause 12.5(j)(ii), the date of termination of the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants;
(k)
if the whole of the Sale Interest is accepted by one or more of the Continuing Participants, then the Selling Participant will transfer the Sale Interest to those Continuing Participants in accordance with the terms and conditions of the resulting contracts with those Continuing Participants. For the avoidance of doubt, the transfer of the Sale Interest to those Continuing Participants is not subject to any further rights of last refusal under this clause 12.5; and
(l)
for the avoidance of doubt, an offer made under clause 12.5(b) must relate only to the Sale Interest and must not include or relate to any other assets.
12.6
Requirements of offer to Continuing Participants
(a)
An offer to sell the Sale Interest to the Continuing Participants under clause 12.5(b) must:
(i)
contain a condition or conditions to the effect that the sale is conditional upon the Continuing Participants who accept the offer obtaining all Transfer Approvals either unconditionally or on conditions acceptable to such Continuing Participants (acting reasonably); and
(ii)
provide for a date for the satisfaction of any conditions precedent, and a date for completion of the sale, which would result in any Continuing Participants who accept the offer having a period of time for satisfaction of conditions precedent (as may have been extended in clause 12.5(j)) and for completion not less than the corresponding periods of time that the Proposed Buyer would have had under the contract signed by it,
and may contain a condition to the effect that if two or more Continuing Participants accept the offer made to them under clause 12.5(b), the sale of the relevant portions of the Sale Interest to each such Continuing Participant will be conditional upon the contemporaneous completion of each such sale occurring.
(b)
For the purposes of the offer to sell the Sale Interest to the Continuing Participants under clause 12.5(b):
(i)
the requirement for a cash consideration does not preclude the consideration for the sale of the Sale Interest consisting partly of cash and partly of other valuable promises (e.g. a royalty to the extent agreed under clause 12.5) that have been offered by the Proposed Buyer, provided that the Continuing Participants are objectively capable of giving and fulfilling those same promises and are not inherently disadvantaged (when compared to the Proposed Buyer) by the inclusion of those promises as part of the consideration;

 
 
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(ii)
the consideration for the sale of the Sale Interest will be a cash consideration even though:
(A)
payment of the purchase price may occur in two or more tranches;
(B)
some or all of the purchase price may be paid after the date of transfer of the Sale Interest to the buyer;
(C)
the payment of some or all of the purchase price may be subject to a contingency (provided that the contingency is not such that it is inherently more likely to be satisfied where the Continuing Participants are the buyer of the Sale Interest than where the Proposed Buyer is the buyer of the Sale Interest); and
(D)
the amount of the purchase price, or some component of it, is not fixed and ascertainable at the date of the offer to sell the Sale Interest to the Continuing Participants (provided that the offer clearly sets out the basis upon which the purchase price, or the relevant component of it, is to be calculated, and the basis of calculation is not inherently likely to result in the Continuing Participants paying a higher price for the Sale Interest than the Proposed Buyer would pay if it were the buyer).
12.7
Charge of Participant’s Joint Venture Interest
(a)
A Participant (Chargor) may create a Security Interest upon all or part of its Joint Venture Interest in favour of any person (Chargee) if the Chargee has entered into a deed (Chargee's Priority Deed) with the other Participants and the Manager, in a form acceptable to the other Participants and the Manager acting reasonably, under which the Chargee agrees that this agreement, the Deed of Cross Security, all other Joint Venture Documents and the constituent documents of the Manager will have priority over the Chargee’s Security Interest and any enforcement of that Security Interest will be subject to compliance with the provisions of this agreement, the Deed of Cross Security, all other Joint Venture Documents and the constituent documents of the Manager.
(b)
The Participants acknowledge that the Chargee’s Priority Deed will also contain provisions under which the Chargee is entitled to receive prior notice of any default by the Chargor or other circumstances that may result in enforcement of remedies under this agreement or the Deed of Cross Security against the Chargor and to take action to step-in or take other measures to avoid the exercise of such remedies. The Participants will negotiate such provisions reasonably and in good faith and will not unreasonably withhold their agreement to provisions proposed by the Chargee which are consistent with normal finance practice.
12.8
Notice of intention to create Security Interest
Any Participant proposing the creation of any Security Interest (other than a Permitted Security Interest) must give prior written notice of its intention to create such Security Interest to the other Participants, together with a copy of the proposed instrument creating such Security Interest and the name and address of the proposed Chargee.
12.9
Sale of Joint Venture Interest by Chargee
(a)
A Chargee of a Participant's Joint Venture Interest may, without the consent of any Participant, in the exercise of any power of sale or the enforcement of any other rights conferred by law or by the instrument creating such Security Interest, upon the happening of any event of default specified in the Security Interest, sell (but not otherwise dispose of) the whole or part of the Joint Venture Interest of such Participant (Defaulting Participant).

 
 
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(b)
Any proposed sale (whether by private treaty or public auction) by a Chargee of the whole or part of a Defaulting Participant’s Joint Venture Interest will be subject to the rights of last refusal of the other Participants under clauses 12.3, 12.5 and 12.6 and the Chargee’s Priority Deed must acknowledge this.
12.10
Set-off
(a)
A Non-Defaulting Participant may, in connection with its purchase of the Joint Venture Interest or part of the Joint Venture Interest of a Defaulting Participant under this clause 12, credit against the purchase price payable by such Participant the amount of any debt due and payable to such Participant by the Defaulting Participant under clause 13.5.
(b)
Except to the extent of such credit, the Chargee must pay to the Manager (for the account of the other Participants) from the proceeds of such sale, all amounts due and payable under any of the Joint Venture Documents by the Defaulting Participant, or in the event such amounts have been paid on behalf of the Defaulting Participant by any other Participant, will reimburse such other Participant the amounts so paid together with interest as provided in clause 13.5.
12.11
Assumption of Joint Venture obligations by Transferee
Any sale, transfer or other disposition of the whole or any part of the Joint Venture Interest by a Participant under this clause 12 will be effective only upon:
(a)
the execution and delivery by the transferee and the other Participants of a deed of assignment and assumption in the form provided in Schedule 5:
(i)
evidencing the agreement of such transferee (to the extent of the Joint Venture Interest being transferred):
(A)
to become a Participant, or if already a Participant, to increase its Joint Venture Interest;
(B)
to be bound by the provisions of the Joint Venture Documents; and
(C)
to assume all of the liabilities and to perform all of the obligations and duties under the Joint Venture Documents of the Participant whose Joint Venture Interest, or part of whose Joint Venture Interest, is to be sold, transferred or disposed of to the extent of the Joint Venture Interest being sold, transferred or disposed of; and
(ii)
evidencing the agreement of the other Participants that such transferee (to the extent of the Joint Venture Interest being transferred) will be entitled to all of the rights and benefits of a Participant under the Joint Venture Documents; and
(b)
the execution and delivery by the transferee of a deed of charge in, or substantially in, the form of the Deed of Cross Security.

 
 
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12.12
Change in Control
(a)
If there is a Change in Control of a Participant or of a Holding Company of a Participant (except when the Participant or Holding Company the subject of the Change in Control is listed on a stock exchange, or in the circumstances described in clause 12.12(b)), then unless the other Participants have consented in writing to such Change in Control, the relevant Participant (Changed Participant) must immediately notify the other Participants of the Change in Control.
(b)
For the purposes of this clause 12.2, no Change in Control of a Participant or of a Holding Company of a Participant will be deemed to have occurred in circumstances where:
(i)
if the Participant is WLPL (or any Transferee Subsidiary under clause 12.2), MRL has affected a sale of all or substantially all of MRL's lithium business which, as at the Effective Date, includes MRL's and its Affiliates' direct and indirect legal and beneficial ownership interest of:
(A)
the Participant's Joint Venture Interest; and
(B)
its share of the Mount Marion Lithium Project; and
(ii)
if the Participant is AWPL (or any Transferee Subsidiary under clause 12.2), Albemarle has affected a sale of all or substantially all of its global lithium business as described in its annual corporate filings from time to time.
For the avoidance of doubt, this clause 12.12(b) will only apply for so long as Albemarle and MRL are Ultimate Holding Companies of AWPL and WLPL respectively, (or of any of their Transferee Subsidiaries of under clause 12.2).
(c)
Any other Participant may, within ten (10) Business Days after receiving the notice under clause 12.12(a), give a notice to the Changed Participant requiring that the Changed Participant must determine the value of its Joint Venture Interest (the Offered Interest). That value will be the value agreed between the parties using reasonable endeavours and acting in good faith to agree the value within 20 days from the date of the notice under clause 12.12(a). If the parties are unable to agree upon the value of the Offered Interest within 30 days from the date of the notice under clause 12.12(a), then the parties must endeavour to agree upon the appointment of two Valuers. If the parties are unable to agree upon the appointment of the Valuers within 40 days from the date of the notice under clause 12.12(a), then the Valuers will be two (2) suitably qualified and experienced persons nominated by the President (or acting President) for the time being of the Minerals Council of Australia or their nominee at the request of any other Participant. The following provisions apply where the value of the Offered Interest is required to be determined by the Valuers:
(i)
the Valuers must be engaged on terms which require the Valuers to use their best endeavours to make independently a determination within 30 days after their appointment, or such other timeframes as the parties may agree;
(ii)
each Valuer will determine the value of the Offered Interest, on the following basis:
(A)
the price that would have been paid by a knowledgeable and willing (but not anxious) buyer to a knowledgeable and willing (but not anxious) seller dealing at arm's length;

 
 
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(B)
any Rehabilitation Obligations and Mine Closure Obligations relating to the Offered Interest are to be taken into consideration;
(C)
the Offered Interest is to be valued on a stand-alone basis, and without taking into account any element of control that the other Participants may obtain as a result of acquiring all or part of the Changed Participant's Joint Venture Interest in addition to the other Participant's existing Joint Venture Interest;
(D)
the valuation is to be determined independently and generally in accordance with the VALMIN Code of the Australasian Institute of Mining and Metallurgy; and
(E)
otherwise the valuation methodologies to be applied are to be determined by the Valuer in its own discretion, taking into account usual and prudent industry practices;
(iii)
the value of the Offered Interest will be deemed to be the average of the two Valuer's determinations;
(iv)
in making the determination, each Valuer will be deemed to be acting as an expert and not as an arbitrator, and the laws relating to commercial arbitration will not apply to either Valuer, the Valuer's determination or the means by which each Valuer makes the determination;
(v)
each Participant will be entitled to submit such evidence to each Valuer as the Valuer may reasonably allow or require, and will provide all information, written or oral, which the Valuer may reasonably request, provided that:
(A)
all oral evidence must be presented in the presence of the other parties; and
(B)
copies of all written evidence must be given to all other parties;
(vi)
each Valuer may consult such legal, technical and financial experts as the Valuer, in his or her absolute discretion, thinks fit;
(vii)
the costs of the Valuers, and of any legal, technical and financial experts consulted by the Valuers, will be borne by the Changed Participant; and
(viii)
the determination of the Valuer will be final and binding on the parties without appeal so far as the law allows and except in the case of manifest error.
(d)
Once the value of the Offered Interest has been agreed or determined as contemplated by clause 12.12(b), the Changed Participant will within 5 Business Days notify the other Participants and will be deemed to have offered to assign the Offered Interest to such of the other Participants who are not then in default of payment of any Called Sums, and with respect to which an Event of Default is not then in existence (Other Participants), in proportion to their respective Joint Venture Interests, at a price equal to the value of the Offered Interest. The Other Participants will be entitled to accept that offer 60 days of the making of the offer.
(e)
If one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Changed Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Offered Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Changed Participant’s notice is given to accept the unaccepted part of the Offered Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price.

 
 
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(f)
If the whole of the Offered Interest is accepted by one or more of the Continuing Participants (Accepting Participants), then the Changed Participant and the Accepting Participants will be deemed to have entered into a contract for the sale to the Accepting Participants (in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests) of the Changed Participant’s Joint Venture Interest upon the following terms and conditions:
(i)
The liability of the Accepting Participants (including obligations to pay money) will be several in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests.
(ii)
The sale will be conditional upon the parties obtaining all Transfer Approvals, which may include, without limitation:
(A)
Ministerial consents required under the Mining Act for the assignment of the Changed Participant's Joint Venture Interest in the Tenements; and
(B)
approval for the sale from the Foreign Investment Review Board (if applicable).
(iii)
The parties must execute all documents and do all other things reasonably necessary to apply for and obtain the Transfer Approvals as expeditiously as possible.
(iv)
If the Transfer Approvals:
(A)
have not all been obtained within 90 days after the date of expiry of the 60 day period referred to in clause 12.12(d), the Accepting Participants may elect to terminate the contract for the sale of the Changed Participant's Joint Venture Interest;
(B)
have all been obtained or the Accepting Participants have not elected to terminate the contract for the sale of the Changed Participant's Joint Venture Interest under clause 12.12(f)(iv)(A), then completion of the sale of the Changed Participant's Joint Venture Interest will take place at the place in Western Australia nominated by the Accepting Participants by notice in writing to the Changed Participant and on the date which is 30 days after the date upon which the last of the necessary Approvals was obtained, or such earlier date agreed by the Accepting Participants, provided that if all Transfer Approvals have not been obtained within 12 months of the offer described in clause 12.12(d), this clause 12.12 shall cease to apply in respect of that Change in Control event;
(C)
have all been obtained by some but not all Accepting Participants within 90 days after the date of expiry of the 60 day period referred to in clause 12.12(d), then:
(1)
those Accepting Participants who have not obtained all necessary Approvals may elect to withdraw from the contract for the sale of the Changed Participant's Joint Venture Interest; and

 
 
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(2)
if, within a further 14 days after the end of the 90 day period (or such longer period agreed by the Accepting Participants), any remaining Accepting Participants who have obtained all Transfer Approvals (within the 12 month limitation period described in clause 12.12(f)(iv)(B)) agree to purchase the Changed Participant's Joint Venture Interest, either in the proportions that those Accepting Participants' respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, or in such other proportions that those remaining Accepting Participants otherwise agree, then:
(AA)
the contract for the sale of the Changed Participant's Joint Venture Interest will be deemed to be between the Changed Participant and those remaining Accepting Participants, and in such proportions as those Accepting Participants agree; and
(BB)
completion of the sale of the Changed Participant's Joint Venture Interest will take place at the place in Western Australia nominated by the relevant Accepting Participants by notice in writing to the Changed Participant on the date which is 14 days after the end of the 14 day period specified in clause 12.12(f)(iv)(C)(2).
(v)
At completion:
(A)
the Changed Participant must transfer its Joint Venture Interest to the relevant Accepting Participants free from all Security Interests (subject to the Permitted Security Interests which apply to the Joint Venture Interest). The relevant Accepting Participants will be entitled to a transfer of the Joint Venture Interest of the Changed Participant in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests or in such other proportions as the relevant Accepting Participants agree;
(B)
the Changed Participant must execute and deliver all instruments of sale, assignment, conveyance and transfer and all other documents, and take such other action, as the relevant Accepting Participants may reasonably request to effect such transfer; and
(C)
in return for the transfer of the Changed Participant's Joint Venture Interest, the relevant Accepting Participants must pay to the Changed Participant, or as the Changed Participant's solicitor may direct, the amount that is equal to the value of the Changed Participant's Joint Venture Interest (as agreed or determined in accordance with clause 12.12(b)).
(g)
For the avoidance of doubt, a Change in Control of a Participant or its Holding Company does not constitute a transfer or proposed transfer for the purposes of clause 12.3.








 
 
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13
Defaults and remedies
13.1
Event of Default
Any one or more of the following events with respect to any Participant is an Event of Default:
(a)
any failure by the Participant to pay a Called Sum (under clauses 8.3 or 8.5) in accordance with clause 8.4 within five (5) Business Days after notice has been given by the Manager or a Participant under clause 13.2;
(b)
subject to clause 19.15, an Insolvency Event occurs in relation to the Participant;
(c)
any default by the Participant in the performance of any material obligation under a Joint Venture Document (other than one referred to in clauses 13.1(a) or 13.1(b) above):
(i)
which is capable of remedy, and which default is not remedied within 30 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2;
(ii)
but if the default is not reasonably capable of being remedied within 30 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2, the Participant fails to commence or has not otherwise taken bona fide steps to remedy the relevant default within 30 Business Days of receiving such notice and does not remedy that default within 50 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2 (or such longer period agreed by the Management Committee, where any Defaulting Participant or its Affiliates does not vote); or
(d)
any default by the Participant in the performance of any material obligation under a Joint Venture Document which is not capable of remedy (other than one referred to in clauses 13.1(a) or 13.1(b) above), where the Defaulting Participant has not paid monetary compensation to the Non-Defaulting Participants within 30 Business Days of receipt of notification of the amount of compensation payable as determined under clause 13.2(d).
13.2
Notices of default
(a)
If any Participant:
(i)
fails to pay when due any amount due by it referred to in clause 13.1(a); or
(ii)
defaults in the performance of any of its material obligations under any of the Joint Venture Documents,
the Manager must, as soon as practicable after it becomes aware of that default, notify the Defaulting Participant and each of the other Participants (Non-Defaulting Participants) of that default.
(b)
Failure by the Manager to give such notice will not release the Defaulting Participant from any of its obligations under the Joint Venture Documents.
(c)
If a Participant becomes aware that another Participant has defaulted in the performance of any of its obligations under the Joint Venture Documents but the Manager has not given a notice of default to the Defaulting Participant under

 
 
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clause 13.2(a), the Participant may notify the Defaulting Participant, the Manager and each of the other Non-Defaulting Participants of that default.
(d)
If a default of a material obligation is not capable of being remedied, the Participants must agree in writing the amount of adequate monetary compensation to be paid by the Defaulting Participant to compensate for that default. If the Participants have not reached agreement within 14 days after the date on which notice of default is given, that amount must be referred to an Expert for determination in accordance with clause 17, who must make such determination within 30 days of his or her appointment. On agreement or determination of the amount of adequate monetary compensation under this clause, that amount, and any interest and costs payable or reimbursable under this agreement, becomes money due and payable under this agreement within the 30 Business Day period referred to in clause 13.1(d).
13.3
Payment of interest upon default
If a Participant defaults in paying the whole or part of any Called Sum, that Defaulting Participant must pay to the Manager, for the account of the Non-Defaulting Participants, interest on such unpaid amount at the Interest Rate calculated on daily balances, and capitalised monthly, from the due date for payment to the date of actual payment.
13.4
Rights following an Event of Default
Subject to clause 19.15, if an Event of Default occurs, then until such Event of Default has been rectified (and the Defaulting Participant has paid all amounts due but unpaid by it in relation to the default under any Joint Venture Document):
(a)
the Representatives of the Defaulting Participant:
(i)
will not have the right to vote at meetings of the Management Committee;
(ii)
will not be counted for the purposes of determining the relevant quorum; and
(iii)
if Chairperson of the Management Committee, will cease to be Chairperson and the next entitled Non-Defaulting Participant may appoint the Chairperson;
(b)
if the Event of Default is a circumstance described in clause 13.1(a), the Defaulting Participant will not have a right to participate in the management of the Joint Venture or to participate in any determinations under this agreement and the Representatives appointed by the Defaulting Participant will not have the right to vote at Management Committee meetings, but will be entitled to attend and otherwise participate in those meetings;
(c)
the Defaulting Participant will have no further right to take and dispose of its share of Product and the Manager may take and dispose of what would otherwise be the Defaulting Participant’s share of Product on such terms as the Manager considers reasonable and must credit the net proceeds of sale after deducting all costs incurred in effecting the sale, towards the moneys owed by the Defaulting Participant;
(d)
the Defaulting Participant will continue to have the right to receive the reports and information from the Manager under clause 9;

 
 
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(e)
the Non-Defaulting Participants and the Manager may exercise each and every power and remedy provided in the Deed of Cross Security executed by the Defaulting Participant and use and apply any moneys realised from such exercise in accordance with the Deed of Cross Security; and
(f)
the Non-Defaulting Participants may acquire the Joint Venture Interest of the Defaulting Participant subject to and in accordance with clause 13.7.
13.5
Payment of Unpaid Called Sum
(a)
Subject to clause 13.5(b), if requested by written notice from the Manager, the Non-Defaulting Participants will, in the proportion that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, pay on behalf of the Defaulting Participant all or any part nominated by the Manager of the amounts owing by such Defaulting Participant (including under clause 13.3), such payment to be made by the Non-Defaulting Participants within such time as the Manager may reasonably determine.
(b)
The Manager will exercise its rights under the Deed of Cross Security (as contemplated in clause 13.4(e)), and take and sell what would otherwise be the Defaulting Participant’s Joint Venture Interest share of Product under clause 13.4(c), in priority to calling upon the Non-Defaulting Participants to pay any amounts owing by the Defaulting Participant (as contemplated in clause 13.5(a)), if the Manager is of the opinion that exercising its rights under the Deed of Cross Security or against the share of Product will result in it obtaining payment of the relevant outstanding amounts, within a timeframe that will enable Joint Venture Operations to continue without disruption.
(c)
If any Non-Defaulting Participant pays any amount on behalf of a Defaulting Participant under clause 13.5(a), the amount so paid will constitute a debt due and payable by the Defaulting Participant to such Non-Defaulting Participant, and will bear interest at the Interest Rate calculated on daily balances, and capitalised monthly, from the date such debt became due to the Non-Defaulting Participant until the date such debt is paid by the Defaulting Participant.
13.6
Delivery of Cross Security
(a)
It is acknowledged that, for the purposes of securing the performance of their obligations under the Joint Venture Documents, each Participant has executed and delivered the Deed of Cross Security, creating a charge upon the Participant's Joint Venture Interest and its shares in the Manager in favour of the other Participants and the Manager and creating a charge upon the Participant's Joint Venture Interest in favour of the Manager.
(b)
Each Participant (and each Transferee of a Joint Venture Interest which has executed a similar deed of charge in accordance with clause 12.11(b)) will as soon as practicable after the creation of the Deed of Cross Security promptly register the Deed of Cross Security, or will file or record such other notices or documents relating to the Deed of Cross Security, in each jurisdiction where such registration, filing or recording may be required to perfect the security created by the Deed of Cross Security and to protect further the rights of the Manager and other Participants under the Deed of Cross Security.

 
 
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13.7
Option to acquire Joint Venture Interest of Defaulting Participant
(a)
Upon the occurrence of an Event of Default, the Manager (or failing the Manager doing so, any Participant) will notify the Participants of the Event of Default (EOD Notice).
(b)
Upon the occurrence of an Event of Default, and until such Event of Default has been rectified, each Non-Defaulting Participant will have the option to acquire the whole of the Joint Venture Interest of the Defaulting Participant.
(c)
Such option may be exercised by notice in writing (Exercise Notice) given to the Defaulting Participant at any time during the 60 day period immediately following the later of the occurrence of the Event of Default and the date that the Manager (or a Participant) gives the Participants an EOD Notice (Option Exercise Period), provided the Event of Default giving rise to such option remains unremedied as at the date of the Exercise Notice.
(d)
The Non-Defaulting Participant must give a copy of the Exercise Notice to:
(i)
the Manager; and
(ii)
the other Non-Defaulting Participants,
at the same time as giving the Exercise Notice to the Defaulting Participant.
(e)
If:
(i)
one or more Non-Defaulting Participants give an Exercise Notice within the Option Exercise Period; and
(ii)
at least the first of such Exercise Notices was given at a point in time when the Event of Default which gave rise to the option remained unremedied,
then, upon expiry of the Option Exercise Period, the value of the Joint Venture Interest of the Defaulting Participant must be determined in accordance with clause 13.8.
(f)
Within 14 days after the value of the Joint Venture Interest of the Defaulting Participant has been determined in accordance with clause 13.8, any Non-Defaulting Participant who had given an Exercise Notice may, by notice in writing (Notice to Proceed) given to the Defaulting Participant (with copies to the Manager and the other Non-Defaulting Participants) advise that the Non-Defaulting Participant wishes to proceed with the acquisition of the Joint Venture Interest of the Defaulting Participant.
(g)
If one or more Non-Defaulting Participants (Acquiring Participants) give a Notice to Proceed, the Defaulting Participant and the Acquiring Participants will be deemed to have entered into a contract for the sale to the Acquiring Participants (in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests) of the Defaulting Participant’s Joint Venture Interest upon the following terms and conditions:
(i)
The liability of the Acquiring Participants (including obligations to pay money) will be several in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests.

 
 
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(ii)
The sale will be conditional upon the parties obtaining all Governmental Agency consents, approvals or clearances required in respect of the sale (Approvals), which may include, without limitation:
(A)
Ministerial consents required under the Mining Act for the assignment of a Defaulting Participant’s Joint Venture Interest in the Tenements; and
(B)
approval for the sale from the Foreign Investment Review Board (if applicable).
(iii)
The parties must execute all documents and do all other things reasonably necessary to apply for and obtain the necessary Approvals as expeditiously as possible.
(iv)
If the necessary Approvals:
(A)
have not all been obtained within 90 days after the date of expiry of the 14 day period referred to in clause 13.7(f), the Acquiring Participants may elect to terminate the contract for the sale of the Defaulting Participant’s Joint Venture Interest;
(B)
have all been obtained or the Acquiring Participants have not elected to terminate the contract for the sale of the Defaulting Participant’s Joint Venture Interest under clause 13.7(g)(iv)(A), then completion of the sale of the Defaulting Participant’s Joint Venture Interest will take place at the place in Western Australia nominated by the Acquiring Participants by notice in writing to the Defaulting Participant and on the date which is 30 days after the date upon which the last of the necessary Approvals was obtained, or such earlier date agreed by the Acquiring Participants;
(C)
have all been obtained by some but not all Acquiring Participants within 90 days after the date of expiry of the 14 day period referred to in clause 13.7(f), then:
(1)
those Acquiring Participants who have not obtained all necessary Approvals may elect to withdraw from the contract for the sale of the Defaulting Participant’s Joint Venture Interest; and
(2)
if, within a further 14 days after the end of the 90 day period (or such longer period agreed by the Acquiring Participants), any remaining Acquiring Participants who have obtained all necessary Approvals agree to purchase the Defaulting Participant’s Joint Venture Interest, either in the proportions that those Acquiring Participants’ respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, or in such other proportions that those remaining Acquiring Participants otherwise agree, then:
(AA)
the contract for the sale of the Defaulting Participant’s Joint Venture Interest will be deemed to be between the Defaulting Participant and those remaining Acquiring Participants, and in such proportions as those Acquiring Participants agree; and

 
 
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(BB)
completion of the sale of the Defaulting Participant’s Joint Venture Interest will take place at the place in Western Australia nominated by the relevant Acquiring Participants by notice in writing to the Defaulting Participant on the date which is 14 days after the end of the 14 day period specified in clause 13.7(g)(iv)(C)(2).
(v)
At completion:
(A)
the Defaulting Participant must transfer its Joint Venture Interest to the relevant Acquiring Participants free from all Security Interests (subject to the Permitted Security Interests which apply to the Joint Venture Interest). The relevant Acquiring Participants will be entitled to a transfer of the Joint Venture Interest of the Defaulting Participant in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests or in such other proportions as the relevant Acquiring Participants agree;
(B)
the Defaulting Participant must execute and deliver all instruments of sale, assignment, conveyance and transfer and all other documents, and take such other action, as the relevant Acquiring Participants may reasonably request to effect such transfer;
(C)
in return for the transfer of the Defaulting Participant’s Joint Venture Interest, the relevant Acquiring Participants must pay to the Defaulting Participant, or as the Defaulting Participant’s solicitor may direct, the amount that is equal to 95% of the value of the Defaulting Participant’s Joint Venture Interest (as determined in accordance with clause 13.8) less the following amounts:
(1)
all amounts due but unpaid under any of the Joint Venture Documents by the Defaulting Participant, which amounts must, immediately following completion, be paid by the relevant Acquiring Participants on behalf of the Defaulting Participant;
(2)
the amount of the debt owed by the Defaulting Participant to the acquiring Participants under clause 13.5(c); and
(3)
the amount (as reasonably determined by the Non-Defaulting Participants) of all other outstanding liabilities and obligations of the Defaulting Participant under any of the Joint Venture Documents which are to be assumed by the relevant Acquiring Participants; and
(4)
all amounts of any stamp and other duties, levies, imposts or other taxes, together with any interest or penalty thereon, imposed by the State or the Commonwealth or any taxing authority, paid or which may thereafter be payable by the relevant Acquiring Participants in connection with the exercise of the option and the transfers effected consequent upon its exercise; and
(D)
the amount payable to the Defaulting Participant under clause 13.7(g)(v)(C) must be paid by electronic transfer of clear and available funds into a bank account in Australia nominated by the Defaulting Participant for this purpose.

 
 
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(vi)
To secure the rights of the Acquiring Participants under this clause, the Defaulting Participant hereby irrevocably appoints each relevant Acquiring Participant, the Manager and their respective directors as the several attorneys of the Defaulting Participant with power to sign all documents and do all other things in the name of the Defaulting Participant which are reasonably necessary to:
(A)
apply for and obtain the necessary Government Agency consents, approvals and clearances referred to in clause 13.7(g); and
(B)
effect the transfer of the Defaulting Participant’s Joint Venture Interest as contemplated in clauses 13.7(g)(v)(A) and 13.7(g)(v)(B).
(vii)
The Defaulting Participant and the relevant Acquiring Participants must sign any deed of covenant and deed of charge that is required under clause 12.11(b).
13.8
Value of Joint Venture Interest of Defaulting Participant
The following provisions apply where, under clause 13.7, the value of the Joint Venture Interest of a Defaulting Participant is required to be determined:
(a)
The Defaulting Participant and the Non-Defaulting Participants who have given an Exercise Notice must endeavour to agree the value of the Joint Venture Interest of the Defaulting Participant.
(b)
If the parties are unable to agree upon the value of the Joint Venture Interest of the Defaulting Participant within 14 days after the expiry of the Option Exercise Period, the parties must endeavour to agree upon the appointment of two Valuers.
(c)
If the parties are unable to agree upon the appointment of the Valuers within 14 days after the expiry of the Option Exercise Period, then the Valuers will be two (2) suitably qualified and experienced persons nominated by the President (or acting President) for the time being of the Minerals Council of Australia or their nominee at the request of Non-Defaulting Participants who have given an Exercise Notice.
(d)
The Valuers must be engaged on terms which require the Valuers to use their best endeavours to make independently a determination within 30 days after their appointment, or such other timeframes as the Defaulting Participant and Non-Defaulting Participants who have given an Exercise Notice may agree.
(e)
Each Valuer will determine the value of the Joint Venture Interest of the Defaulting Participant, as at the date of the first Exercise Notice given, on the following basis:
(i)
the price that would have been paid by a knowledgeable and willing (but not anxious) buyer to a knowledgeable and willing (but not anxious) seller dealing at arm’s length;
(ii)
any Rehabilitation Obligations and Mine Closure Obligations relating to the Joint Venture Interest are to be taken into consideration;
(iii)
the Joint Venture Interest is to be valued on a stand-alone basis, and without taking into account any element of control that a Non-Defaulting Participant may obtain as a result of acquiring all or part of the Defaulting Participant’s Joint Venture Interest in addition to the Non-Defaulting Participant’s existing Joint Venture Interest;

 
 
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(iv)
the valuation is to be determined independently and generally in accordance with the VALMIN Code of the Australasian Institute of Mining and Metallurgy; and
(v)
otherwise the valuation methodologies to be applied are to be determined by the Valuer in its own discretion, taking into account usual and prudent industry practices.
(f)
The value of the Joint Venture Interest of the Defaulting Participant will be deemed to be the average of the two Valuer’s determinations.
(g)
In making the determination, each Valuer will be deemed to be acting as an expert and not as an arbitrator, and the laws relating to commercial arbitration will not apply to either Valuer, the Valuer’s determination or the means by which each Valuer makes the determination.
(h)
Each Participant will be entitled to submit such evidence to each Valuer as the Valuer may reasonably allow or require, and will provide all information, written or oral, which the Valuer may reasonably request, provided that:
(i)
all oral evidence must be presented in the presence of the other parties; and
(ii)
copies of all written evidence must be given to all other parties.
(i)
Each Valuer may consult such legal, technical and financial experts as the Valuer, in his or her absolute discretion, thinks fit.
(j)
The costs of the Valuers, and of any legal, technical and financial experts consulted by the Valuers, will be borne by the Defaulting Participant.
(k)
The determination of the Valuer will be final and binding on the parties without appeal so far as the law allows and except in the case of manifest error.
13.9
Remedies not exclusive
(a)
Each and every power and remedy given to the Non-Defaulting Participants in this clause 13 are in addition to every other power and remedy existing at law or in equity, and each and every power and remedy may be exercised from time to time and simultaneously and as often and in such order as may be deemed expedient.
(b)
All such powers and remedies will be cumulative, and the exercise of one will not be deemed a waiver of the right to exercise any other or others.
(c)
No delay or omission in the exercise of any such power or remedy will impair any such power or remedy or will be construed to be a waiver of any default.

14
Force Majeure
(a)
If a party (Affected Party) is prevented or hindered by Force Majeure from fully or partly complying with any obligation (except for the payment of money) under this agreement, that obligation is suspended for the duration of, and to the extent affected by, such Force Majeure.
(b)
If the Affected Party wishes to claim the benefit of this clause it must give prompt notice of the Force Majeure occurrence to the other parties including reasonable details of:

 
 
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(i)
the Force Majeure occurrence and why it constitutes Force Majeure;
(ii)
the effect of the Force Majeure occurrence on the performance of the Affected Party’s obligations; and
(iii)
the likely duration of the delay in performance of those obligations.
(c)
The Affected Party must use its best endeavours to remove or overcome the cause and/or effect of the Force Majeure provided that nothing in this clause requires the Affected Party to:
(i)
settle any strike, or other labour dispute; or
(ii)
contest the validity or enforceability of any law or legally enforceable order by way of legal proceedings,
on terms not acceptable to it solely for the purpose of removing the event of Force Majeure.
(d)
If the Force Majeure event cannot be removed or overcome to an extent that allows resumption of performance within six (6) Months (or such other period as the Participants agree) from the date the notice is given under clause 14(b)(i), the parties must consider and determine whether this agreement should be modified or terminated.
(e)
Notwithstanding the Force Majeure, the Participants must continue to pay any Called Sum called by the Manager in accordance with clauses 8.3 and 8.5 to the extent such monies are necessary to maintain the Joint Venture Assets in good condition and keep the Tenements and the Petroleum Pipelines in good standing.

15
Notices
15.1
General
A notice, demand, certification, process or other communication relating to this agreement must be in writing in English and may be given by an agent of the sender.
15.2
How to give a communication
In addition to any other lawful means, a communication may be given by being:
(a)
personally delivered;
(b)
left at the party’s current delivery address for notices;
(c)
sent to the party’s current postal address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail;
(d)
sent by email to the party’s current email address for notices; or
(e)
sent by such other form of communication as the Participants and the Manager may from time to time agree.
15.3
Particulars for delivery

 
 
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(a)
The particulars for delivery of notices are initially:
(i)
in the case of WLPL:
Delivery address:    1 Sleat Road
APPLECROSS WA 6153
Postal address:    Locked Bag 3, Canning Bridge
APPLECROSS WA 6153
Email:             [insert]
Attention:        [insert]
(ii)
in the case of AWPL:
Delivery address:    [insert]
Postal address:    [insert]
Email:            [insert]
Attention:        [insert]
(iii)
in the case of the Manager:
Delivery address:    [insert]
Postal address:    [insert]
Email:            [insert]
Attention:        [insert]
(b)
Each party may change its particulars for delivery of notices by notice to each other party.
15.4
Communications by post
Subject to clause 15.7, a communication is given if posted:
(a)
within Australia to an Australian postal address, three (3) Business Days after posting; or
(b)
outside of Australia to an Australian postal address or within Australia to an address outside of Australia, ten (10) Business Days after posting.
15.5
Communications by email
(a)
Subject to clause 15.7, a communication is given if sent by email, upon the earlier of:
(i)
the time the sender receives an automated message from the intended recipient’s information system confirming delivery of the email;

 
 
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(ii)
the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient; and
(iii)
four (4) hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within that four (4) hour period, an automated message that the email has not been delivered.
(b)
Despite anything to the contrary in this agreement, the following communications must not be given by email:
(i)
a notice given by the Manager under clause 13.2(a) or any Participant under clause 13.2(c); and
(ii)
an EOD Notice given under clause 13.7.
15.6
Process service
Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause 15 or in accordance with any applicable law.
15.7
After hours communications
If a communication is given:
(a)
after 5.00 pm in the place of receipt; or
(b)
on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken to have been given at 9.00am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.

16
GST
16.1
Construction
In this clause 16:
(a)
unless there is a contrary indication, words and expressions which are not defined in this agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law;
(b)
references to GST payable and input tax credit entitlements include:
(i)
notional GST payable by, and notional input tax credit entitlements of the Commonwealth, a State or a Territory (including a government, government body, authority, agency or instrumentality of the Commonwealth, a State or a Territory); and
(ii)
GST payable by, and the input tax credit entitlements of, the representative member of a GST group of which the entity is a member.
16.2
Consideration GST exclusive

 
 
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Unless otherwise expressly stated, all consideration, whether monetary or non-monetary, payable or to be provided under or in connection with this agreement is exclusive of GST (GST-Exclusive Consideration).
16.3
Payment of GST
If GST is or becomes payable on any supply made by:
(a)
a party; or
(b)
an entity that is taken under the GST Law to make the supply by reason of the capacity in which a party acts,
(Supplier) under or in connection with this agreement, the recipient of the supply, or the party providing the consideration for the supply, must pay to the Supplier an amount equal to the GST payable on the supply as calculated in accordance with the GST Law, subject to clause 16.5.
16.4
Timing of GST payment
The amount referred to in clause 16.3 must be paid in addition to and at the same time and in the same manner (without any set-off or deduction) that the GST-Exclusive Consideration for the supply is payable or to be provided.
16.5
Tax invoice
The Supplier must deliver a tax invoice or an adjustment note to the recipient of a taxable supply before the Supplier is entitled to payment of an amount under clause 16.3.
16.6
Adjustment event
If an adjustment event arises in respect of a supply made by a Supplier under or in connection with this agreement, any amount that is payable under clause 16.3 will be calculated or recalculated to reflect the adjustment event and a payment will be made by the recipient to the Supplier or by the Supplier to the recipient as the case requires.
16.7
Reimbursements
Notwithstanding any other provision in this agreement, where a party is required under or in connection with this agreement to pay for, reimburse or contribute to any expense, loss, liability or outgoing suffered or incurred by another party or indemnify another party in relation to such an expense, loss, liability or outgoing (Reimbursable Expense), the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of any input tax credits to which the other party (or the representative member of the GST group of which the other party is a member) is entitled in respect of the Reimbursable Expense.
16.8
Calculations based on other amounts
If an amount of consideration payable or to be provided under or in connection with this agreement is to be calculated by reference to any price, value, sales, proceeds, revenue or similar amount (Revenue), that reference will be to that Revenue determined by deducting from it an amount equal to the GST payable on the supply for which it is consideration.
16.9
No merger

 
 
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