THIS MINING LEASE
is made the 29th day of June, 2001 between THE GOVERNMENT OF THE REPUBLIC OF
GHANA (hereinafter called "the Government") acting by Xx. XXXXX XXXXXXX, the
Minister of Lands, Forestry and Mines (hereinafter called "the Minister") of
the one part and BOGOSO GOLD LIMITED having its registered office at XX. 00
XXXXXXXX XXXX, XXXXXXX XXXXXXXXXXX AREA, X.X. XXX 00000, XXXXXXX XXXX XXXXXX,
XXXXX, XXXXX (hereinafter called "the Company") of the second part:
WHEREAS:
The Government is desirous of developing its mineral resources in such manner
as will ensure that the maximum possible benefits accrue to the nation from the
exploitation of minerals and has agreed to grant the Company a Mining Lease on
the terms and conditions hereinafter following:
NOW THIS AGREEMENT WITNESSETH that:
1. GRANT OF MINING RIGHTS
(a) The Government hereby grants to the Company mining rights to ALL that
piece of land described in the schedule hereto and more particularly
delineated on the Plan attached and shown edged red (hereinafter
called "the Lease Area") together with mines, beds, seams veins,
channels and strata of gold and associated mineral substances lying
and being within and under the surface to a 200 metre depth from
surface which corresponds with a depth of 150.7 metre below the sea
level using CENTRAL SHAFT PILLAR 1 with coordinates: X - 84378.45, Y -
148029.06, Z - 49.63 as bench xxxx, for a term of thirty (30) years
from the date of this Agreement. Such term shall be renewable from
time to time in accordance with the Minerals and Mining Law, 1986,
PNDC. 153;
(b) The Government hereby grants to the Company the exclusive rights to
work, develop and produce gold and associated mineral
substances in the Lease Area for the said term of thirty (30) years
(including, the processing, storing and transportation of ore and
materials together with the rights and powers reasonably incidental
thereto) subject to the provisions of this Agreement;
(c) The Company shall not, however, conduct any operations in a sacred
area and shall not, without the prior consent in writing of the
Minister conduct any operations:
(i) within 50 yards of any building, installation, reservoir of dam,
public road, railway or area appropriated for railway;
(ii) in an area occupied by a market, burial ground cemetery or
Government office, or situated within a town or village or set
apart for, used, appropriated or dedicated to a public purpose.
(d) The Company shall commence commercial production of gold within two
(2) years from the date of this Mining Lease.
(e) The Company shall conduct its operations in a manner consistent with
good commercial mining practices so as not to interfere unreasonably
with vegetation in the Lease Area or with the customary rights and
privileges of persons to farm, xxxx and snare game, gather firewood
for domestic purposes or to collect snails.
(f) The public shall be permitted at their sole risk to use without
charge, any road constructed by the Company in the Lease Area, in a
manner consistent with good mining practices, safety and security,
provided that such use does not unreasonably interfere with the
operations of the Company hereunder and provided also that such
permission shall not extend to areas enclosed for mining operations.
(g) Nothing contained in this Agreement shall be deemed to confer any
rights on the Company conflicting with provisions contained in the
Minerals and Mining Law, 1986, P.N.D.C.L. 153 or to permit the
Company to dispense with the necessity of applying for and
obtaining any permit or authorization which the Company may be
required by law or regulation to obtain in respect of any work or
activity proposed to be carried out hereunder.
2. GRANT OR RIGHTS TO THIRD PARTIES IN THE MINING AREA:
(a) Subject to satisfactory arrangements between the Government and
the Company, the Government shall grant the first option to the
Company to work minerals other than gold discovered in the Lease
Area.
(b) Failing such satisfactory arrangements between the Government and
the Company, the Government reserves the right to grant licenses
to third parties to prospect for or to enter into agreements for
the production of minerals other than gold in the Lease Area,
provided that any such activity shall not unreasonably interfere
with the rights granted to the Company hereunder.
3. POWER OF GOVERNMENT TO EXCLUDE PARTS OF THE MINING AREA:
(a) The Government may by reasonable notice in writing to the Company
exclude from the Lease Area, at any time and from time to time,
any part which may be required for any stated public purposes
whatsoever, provided that:
(i) The parts so excluded shall not have a surface area in the
aggregate greater than ten percent of the Lease Area.
(ii) Any parts of the Lease Area so excluded shall continue to
form part of the Lease Area subject to this Agreement
except that no mining operations shall be conducted on the
parts so excluded.
(iii) No part of the Lease Area shall be so excluded in respect
of which the Company shall have given prior notice
specifying that such part is required for mining operations
hereunder or
on which active operations have commenced or are in
progress (such as digging, construction, installation or
other works related to gold mining) but, in lieu thereof, a
part equal in area to any such part shall be excluded for
such public purposes; and
(iv) The Government shall not take to itself or grant to third
parties the right to mine gold from any part so excluded.
(b) The company shall be relieved of all liabilities or obligations
hereunder in respect of any part excluded under this paragraph
except liabilities or obligations accrued prior to such
exclusion.
4. WORK OBLIGATION:
The Company shall continuously operate in the Lease Area in accordance
with good mining practices until such time as the reserves or deposits
may be exhausted or the mine can no longer be economically worked or
until this Agreement expires, whichever shall be sooner.
5. CONDUCT OF OPERATIONS:
(a) The Company shall conduct all of its operations hereunder with
due diligence, efficiency, safety and economy, in accordance with
good mining practices and in a proper and workmanlike manner,
observing sound technical and engineering principles using
appropriate modern and effective equipment, machinery, materials
and methods, and pay particular regard to conservation of
resources, reclamation of land and environmental protection
generally.
(b) The Company shall mine and extract ore in accordance with
paragraph 5(a) herein utilizing methods which include dredging,
quarrying, pitting, trenching, stoping and shaft sinking in the
Lease Area.
(c) The company shall maintain all equipment in good and safe
condition, normal wear and tear excluded, and shall keep all
excavated areas, shafts, pits and trenches in good and safe condition
and take all practical steps:-
(ii) to prevent damage to adjoining farms and villages;
(ii) to avoid damage to trees, crops, buildings structures and other
property in the Lease Area; to the extent, however, that any
such damage is necessary or unavoidable, the Company shall pay
fair and reasonable compensation.
(d) The Company shall fence off effectually from the adjoining lands, all
pits, shafts and other works made or used under the powers hereof.
(e) The company shall as far as is necessary or practicable provide and
maintain in good repair and condition roads, gates, xxxxxx and fences
for the convenient occupation of the surface of the Lease Area.
(f) The Company shall provide and maintain proper and sufficient drains,
culverts, arches and passageways for carrying off any waters which
shall arise or be produced or interrupted by any of the works hereby
authorized so that the drainage of the Lease Area may not be
prevented or prejudiced.
6. NOTIFICATION OF DISCOVERY OF OTHER MINERALS:
(a) The Company shall report forthwith to the Minister, the Chief
Executive of the Minerals Commission, the Chief Inspector of Mines
and the Director of Geological Survey, the discover in the Lease Area
of any other mineral deposits apart from gold and the Company shall
be given the first option to prospect further and to work the said
minerals, subject to satisfactory arrangements between the Government
and the Company.
(b) Failing any such satisfactory arrangements the Company shall not
produce any minerals from the Lease Area other than gold except where
they are unavoidably linked with the production of gold.
7. SAMPLES:
(a) The Company shall not during the currency of this agreement remove,
dispose of or destroy, except in analyses, any cores or samples
obtained from the Lease Area without the prior consent in writing of
the Chief Inspector of Mines.
(b) The Company shall provide the Director of Geological Survey with such
samples from the Lease Area as he may from time to time reasonably
request, and shall keep such samples as he may be directed to do so by
the Chief Inspector of Mines.
8. HEALTH, SAFETY AND ENVIRONMENTAL PROTECTION:
(a) The Company shall comply with all such reasonable instructions as may
from time to time be given by the Chief Inspector of Mines for
securing the health and safety of persons engaged in or connected with
the operations hereunder.
(b) The Company shall adopt all necessary and practical precautionary
measures to prevent undue pollution of rivers and other potable water
and to ensure that such pollution does not cause harm or destruction
to human or animal life or fresh water fish or vegetation.
9. POWER OF CHIEF INSPECTOR OF MINES TO EXECUTE CERTAIN WORKS:
If the Company shall at any time fail to comply with any provisions of this
Agreement or applicable law and such failure is likely, in the opinion of
the Chief Inspector of Mines, to:
(i) endanger the health or safety of persons, or
(ii) endanger the environment, or
(iii) cause harm or destruction to potable water; or
(iv) result in damage to mining equipment or other structures or
installation;
the Chief Inspector of Mines, shall after giving the Company reasonable
notice, execute any works which in his opinion are necessary and
practicable in the circumstances and the costs and expenses of such works
shall be borne by the Company.
10. LIABILITY FOR DAMAGE OR INJURY AND INDEMNITY:
(a) Nothing in this Agreement shall exempt the Company from liability for
any damage, loss or injury caused to any person, property or interest
as a result of the exercise by the Company of any rights or powers
granted to it under this Agreement.
(b) The Company shall at all times indemnify the Government and its
officers and agents against all claims and liabilities in respect
of any loss suffered by or damage done to third parties arising out
of the exercise by the Company of any rights or powers granted to it
under this Agreement provided that the Company shall not so indemnify
the Government, its officers and agents where the claim or liability
arises out of the wrongful or negligent acts of the Government, its
officers and agents.
11. EMPLOYMENT AND TRAINING:
(a) Citizens of Ghana shall be given preference for employment by the
Company in all phases of its operations hereunder to the maximum
possible extent, consistent with safety, efficiency and economy.
(b) Except with respect to unskilled personnel, the Company may employ
non-Ghanaian personnel in the conduct of its operations provided that
the number of such non-Ghanaian personnel employed shall not exceed
the quota permitted by the Government.
(c) The Company shall provide appropriate programmes of instruction and
theoretical and practical training to ensure the advancement,
development, improved skills and qualification of Ghanaian employees
in all categories of employment.
12. PREFERENCE FOR GHANAIAN GOODS AND SERVICES
In the conduct of its operations and in the purchase, construction and
installation of facilities, the Company shall give preference to:-
(a) materials and products made in Ghana, if such materials and products
are comparable or better in price, quality and delivery dates than
materials and products from foreign sources;
(b) service agencies located in Ghana owned by Ghanaian citizens or
companies organized pursuant to Ghanaian law, including but not
limited to, insurance agencies, bidding contractors, import brokers,
dealers and agents if such agencies give or provide equal or better
price and quality of service than competing foreign firms and can
render services at such times as the Company may require.
13. AFFILIATED COMPANY TRANSACTIONS:
(a) Any services including services in respect of the purchase and
acquisition of materials outside Ghana provided by an affiliated
company, shall be obtained only at a price which is fair and
reasonable. The Company shall, at the request of the Minister, provide
such justification of costs as may be required, duly supported by an
Auditor's certificate if necessary.
(b) Any other transactions between the Company and an affiliated company
shall be on the basis of competitive international prices and upon
such terms and conditions as would be fair and reasonable had such
transactions taken place between unrelated parties.
(c) The Company shall notify the Minister of any and all transactions
between the Company and an affiliated company and shall supply such
details relating to such transactions as the Minister may be notice
reasonably require.
14. TECHNICAL RECORDS:
(a) The Company shall maintain at its registered or mine offices complete
records of pits and trenches (location, depths of overburden and
gravel and assay value) in the Lease Area in such form as may from
time to time be approved by the Chief Inspector of Mines, Chief
Executive of the Minerals Commission and the Director of Geological
Survey.
(b) The Company shall maintain at the said offices copies of all reports
including interpretations dealing with gold and other precious
minerals prospects in the Lease Area in the course of its operations
hereunder and copies of all tests and analyses, geological and
geophysical maps, diagrams or charts relevant to its operations
hereunder. These reports and records may be examined by persons in
the service or acting on behalf of the Government and authorized in
writing by the Minister.
(c) The Company shall maintain at the said offices correct and
intelligible plans and sections of all mines which plans and sections
shall show the operations and workings which have been carried on as
well as xxxxx, veins, faults and other disturbances which have been
encountered in such workings and operations. All such plans and
sections shall be made, amended and completed from actual surveys
conducted for that purpose.
(d) Upon expiration or termination of this Agreement or the surrender of
any part of the Lease Area, such records and data as are required to
be maintained pursuant to this paragraph which relate to the Lease
Area, or such part of the Lease Area as may have been surrendered
shall be delivered to the Chief Inspector of Mines, Chief Executive of
the Minerals Commission and the Director of Geological Survey and
shall become the property of the Government without charge.
15. PRODUCTION RECORDS:
The Company shall maintain at its registered or mine offices complete and
accurate technical records of its operations and production in the Lease
Area in such form as may from time to time be approved by the Chief
Inspector of Mines.
16. FINANCIAL RECORDS:
(a) The Company shall maintain at its registered or mine offices detailed
and complete accounts and systematic financial records of its
operations as may be required by law. The books of account shall show
all revenues received by the Company from all sources including its
operations hereunder, as well as all its expenditure. The Company
shall provide for a clear basis for understanding and relating the
financial records and accounts to its operations.
(b) The Company's books of account shall be kept on the basis of
generally accepted accounting principles.
(c) The Company shall keep separately records and financial statements in
terms of Ghana currency and also in terms of U.S. Dollars or other
international currency and may record in foreign currency such claims
and liabilities as arise in such foreign currency.
(d) The Company's books of account shall be audited within six (6) months
after the close of each Financial Year by a qualified Accountant and
member of the Ghana Institute of Chartered Accountants. Such auditing
shall not in any way imply acceptance of its results by the
Government or preclude the Government from auditing such books of
account. The Company shall deliver to the Minister without charge,
copies of all or any part of such financial records as he may from
time to time reasonably request.
17. REPORTS:
(a) The Company shall furnish a report each quarter, to the Minister, the
Chief Inspector of Mines, the Chief Executive of the Minerals
Commission and Director of Geological Survey, in such forms as may
from time to time be approved by the Minister, regarding the
quantities of gold and other precious minerals won in that quarter,
quantities sold, the revenue received and royalties payable for that
quarter and such other information as may be required. Such reports
shall be submitted not later than thirty (30) days after the end of
each quarter.
(b) The Company shall furnish a report each half-year to the Minister,
the Chief Inspector of Mines, the Chief Executive of the Minerals
Commission and the Director of Geological Survey in such form as may
from time to time be approved by the Minister summarising the results
of its operations in the Lease Area during the half-year and records
to be kept by the Company pursuant to paragraphs 14, 15 and 16
hereof. Each such report shall include a description of any
geological or geophysical work carried out by the Company in that
half-year and a plan upon a scale approved by the Chief Inspector of
Mines showing dredging areas and mine workings. Such reports shall be
submitted not later than forty (40) days after the half-year to which
they relate.
(c) The Company shall furnish a report each Financial Year in such form
as may from time to time be approved by the Minister to the Chief
Inspector of Mines, the Chief Executive of the Minerals Commission
and the Director of Geological Survey Department summarising the
results of its operations in the Lease Area during that Financial
Year and the records required to be kept by the Company pursuant to
paragraphs 14, 15, and 16 hereof. Each such report shall include a
description of the proposed operations for the following year with an
estimate of the production and revenue to be obtained therefrom. Such
reports shall be submitted not later than sixty (60) days after the
end of each Financial Year.
(d) The Company shall furnish the Minister, the Chief Inspector of Mines,
the Chief Executive of the Minerals Commission and the Director of
Geological Survey not later than three (3) months after the
expiration or termination of this Agreement, with a report giving an
account of the geology of the Lease Area including the stratigraphic
and structural conditions, together with a geological map on a scale
prescribed in the Mining Regulations.
(e) The Company shall furnish the Minister and the Chief Executive of the
Minerals Commission, with a report of the particulars of any proposed
alteration to its regulations. The Company shall also furnish the
Minister and the Chief Executive of the Minerals Commission with a
report on the particulars of any fresh issues of shares of its
capital stock or borrowings in excess of an amount equivalent to the
Stated Capital of the Company. All such reports shall be in such form
as the Minister may require and shall be submitted not less than
twenty-one (21) days (or such lesser period as the Minister may
agree) in advance of any proposed alteration, fresh issue or
borrowing, as the case may be.
(f) The Company shall, not later than 180 days after the end of each
Financial Year, furnish the Minister and the Chief Executive of the
Minerals Commission with a copy each of its annual financial reports
including a balance sheet, profit and loss account, and all notes
pertaining thereto, duly certified by a qualified accountant who is a
member of the Ghana Institute of Chartered Accountants. Such
certificate shall not in any way imply acceptance of such reports by
the Government or preclude the Government from auditing the Company's
books of account.
(g) The Company shall furnish the Minister, the Chief Inspector of Mines,
the Chief Executive of the Minerals Commission and the Director of
Geological Survey with such other reports and
information concerning its operations as they may from time to time
reasonably require.
18. INSPECTION:
(a) Any person or persons in the service of or acting on behalf of the
Government and authorized in writing by the Minister shall be entitled
at all reasonable times to enter into and upon any part of the Lease
Area and the Company's registered office, for any of the following
purposes:
(i) to examine the mine workings, equipment, buildings, installation
and any other structures used in the mining operation;
(ii) to inspect the samples which the Company is required to keep in
accordance with the provisions of this Agreement;
(iii) to inspect and check the accuracy of the weights and measures
and weighing and measuring devices, used or kept by the Company;
(iv) to examine and make abstracts of the books and records kept by
the Company pursuant to this Agreement;
(v) to verify or ensure compliance by the Company with all
applicable laws and regulations and with its obligations
hereunder;
(vi) to execute any works which the Chief Inspector of Mines may be
entitled to execute in accordance with the provisions of the
Mining Laws and Regulations of Ghana, or of this Agreement.
(b) The Company shall make reasonable arrangements to facilitate any such
work or inspection, including making available employees of the
Company to render assistance with respect to any such work or
inspection. All such works and inspections shall be listed by the
Company in the reports and furnished each half year.
19. CONFIDENTIAL TREATMENT:
The Government shall treat all information supplied by the Company
hereunder as confidential for a period of five (5) years from the date of
submission of such information or upon termination of this Agreement
whichever is sooner and shall not reveal such information to third parties
except with the written consent of the Company which consent shall not be
unreasonably withheld. The Government and persons authorized by the
Government may nevertheless use such information received from the Company
for the purpose of preparing and publishing general reports on Minerals in
Ghana and in connection with any dispute between the Government and the
Company.
20. FINANCIAL OBLIGATIONS:
(a) Consideration Fees
The Company shall, in consideration of the grant of the Mining Lease
pay to Government an amount of US$30,000.00 (thirty thousand U.S.
Dollars).
(b) Rent:
The Company shall pay rent (which shall be subject to review) at the
rate of:
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i.e. ((cents)5,000 per square kilometre).
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(i) the said rent shall be paid half yearly in advance on or before
the first day of January and on or before the first day of July
in each year.
(ii) in the event of a surrender of any part of the Lease Area
pursuant to paragraph 25 hereof, no rental payments shall be
refunded in whole or in part of any area so surrendered for
which yearly rental has been paid in advance or shall rental
payments be refunded in the event of termination.
21. ROYALTIES:
(a) The Company shall pay to the Government royalty as prescribed by
legislation.
(b) The Company shall pay royalty to the Government each quarter through
the Commissioner of Internal Revenue based on the production for that
quarter, within thirty (30) days from the end of the quarter.
Any necessary adjustments shall be made annually within sixty (60)
days of the end of each Financial Year, except that any over-payment
of royalty shall not be refunded by the Government but shall be
credited against royalty due and payable in the next quarter.
(c) In the event of a dispute with respect to the amount of royalty
payable hereunder, the Company shall first make payment of the lower
of the disputed amounts and shall pay forthwith any further royalty
which shall be agreed upon or determined to be payable by arbitration
in accordance with paragraph 35 hereof. Such further royalty shall
carry interest to be agreed upon or at the ruling prime rate in Ghana
at the time of the award or agreement to take effect from the date on
which such amount ought originally to have been paid.
(d) The Company shall also pay royalty on all timber felled by the Company
in accordance with existing legislation.
22. LATE PAYMENTS:
(a) Anything herein contained to the contrary notwithstanding, the Company
shall pay as penalty for any late payment of any amounts due to the
Government hereunder, an additional amount calculated at the Bank of
Ghana re-discount rate for every thirty-day period or part thereof for
the period of the delay in paying the amounts, that is to say, the
period between the actual payment date and the date on which each such
payment should have been made.
(b) In the event the Company shall fail to make payment to the Government
of any amount due hereunder, the Government without prejudice to any
other rights and remedies to which it may be entitled, may, after
giving 30 days notice in writing, enter into and upon the Lease Area
and seize and distrain and sell as landlords may do for rent in
arrears, all or any of the stocks of gold produced therefrom, and the
plant and equipment, materials and supplies belonging to the Company
which shall be thereon; and out of the monies obtained from the sale
in respect of such distress may retain and pay all of the arrears of
any amounts due hereunder and the costs and expenses incidental to any
such distress and sale and deliver up the surplus (if any) to the
Company.
23. TAXATION:
(a) The Company shall not be required to deduct or withhold any taxes from
any payment made from its external account of which is authorized
under the terms of the Minerals and Mining Law of:
(i) any interest or other costs or fees paid in respect of any
borrowing by or on behalf of the company in foreign currency for
the project;
(ii) any dividends paid to the shareholders.
(b) Save for the above, the Company shall pay tax in accordance with the
laws of Ghana.
24. FOREIGN EXCHANGE:
All foreign exchange transactions shall be in accordance with the laws of
Ghana.
25. SURRENDER:
(a) The Company may surrender at any time and from time to time, by giving
not less than three months' notice to the Minister, all its rights
hereunder in respect of any part of the Lease Area not larger
in the aggregate than 20% of the said Area. The Company may surrender
a larger part of the Lease Area by giving not less than twelve (12)
months' notice to the Minister. The Company shall be relieved of all
obligations in respect of the part or parts of the Lease Area so
surrendered except those obligations which accrued prior to the
effective date of surrender.
(b) The Company shall leave the part of the Lease Area surrendered and
everything thereon in a good and safe condition, provided, however
that the Company shall have no such obligations for areas surrendered
on which the company has not undertaken any works or which have not
been affected by the operations of the Company. The Company shall take
all reasonable measures, in accordance with good mining practices to
leave the surface of such part of the Lease Area surrendered, in good
and usable condition having regard to the ecology, drainage,
reclamation and the protection of the environment. In the event that
the Company fails to do so, the Minister shall make such part and
everything thereon safe and in good, usable condition at the expense
of the Company. The provisions of sub-paragraphs (a) and (c) of
paragraph 29 hereof shall apply.
(c) The Company shall, on such terms and conditions as may be agreed upon
between the Government and the Company, be entitled to such wayleaves,
easements or other rights through or across the surrendered part or
parts as may be necessary for its operations and such wayleaves shall
not form part or be included in the calculation of the area of the
retained part.
(d) The Government may require that there be reserved over any part
surrendered such wayleaves, easements or other rights as will in its
opinion be necessary or convenient to any part to whom the
Government may subsequently grant a prospecting license or mining
lease.
26. EXTENSION:
If the Company, not less than six (6) months before the expiration of this
Agreement, applies to the Minister for an extension of the term hereof and
if the Company shall not be in default at that time in the performance of
any of its obligations hereunder, the Company shall be entitled to an
extension of the period of this Agreement upon such terms and conditions
as the parties may then agree.
27. COMPANY'S RIGHT TO TERMINATE AGREEMENT:
The Company may, if in its opinion the mine can no longer be economically
worked, terminate this Agreement by giving not less than nine (9) months'
notice to the Government. Such termination shall be without prejudice to
any obligation or liability incurred by the Company hereunder prior to the
effective date of such termination.
28. GOVERNMENT'S RIGHT TO TERMINATE AGREEMENT:
(a) The Government may, subject to the provisions of this paragraph,
terminate this Agreement if any of the following events occur:-
(i) the Company shall fail to make any of the payments provided for
in this Agreement on the payment date;
(ii) the Company shall contravene or fail to comply with any other
provisions of this Agreement; or
(iii) the Company shall become insolvent or bankrupt or enter into
any agreement or composition with its creditors or take
advantage of any law for the benefit of debtors or go into
liquidation, whether compulsory or voluntary, except for the
purposes of reconstruction or amalgamation; or
(iv) the Company makes a written statement to the Government on any
material matter in connection with this Agreement or
with its operations which the Company knows to be false or
makes recklessly without due regard as to whether it was
true or false.
(b) If and whenever the Government decides there are grounds to
terminate this Agreement pursuant to clauses (i) and (ii) of the
preceding sub-paragraph, the Government shall give the Company
notice specifying the particular contravention or failure and
permit the Company to remedy same within three (3) months of such
notice, or such longer period as the Minister may specify in such
notice as being reasonable in the circumstances.
(c) If the Company shall fail to remedy any event specified in
clauses (i) and (ii) of sub-paragraph (a) of this paragraph
within the stated period, or an event specified in clauses (iii)
and (iv) of the said sub-paragraph shall occur, the Government
may by notice to the Company terminate this Agreement, provided
that if the Company disputes whether there has been any
contravention or failure to comply with the conditions hereof
(including any dispute as to the calculation of payments by the
Company to the Government hereunder), and the Company shall,
within such period as aforesaid refer to dispute to arbitration
in accordance with paragraph 35 hereof and, thereafter,
diligently prosecute its claim thereunder, the Government shall
not terminate this Agreement except as the same may be consistent
with the terms of the arbitration award.
(d) No delay or omission or course of dealing by the Government shall
impair any of its rights hereunder or be construed to be a waiver
of any event specified in sub-paragraph (a) of this paragraph or
an acquiescence therein.
(e) Upon termination of this Agreement, every right of the Company
hereunder shall cease (save as otherwise specifically provided
hereunder) but subject nevertheless and without prejudice to any
obligation or liability imposed or incurred under this Agreement prior
to the effective date of termination and to such rights as the
Government may have under the law.
29. ASSETS ON TERMINATION OR EXPIRATION:
(a) Upon the termination or expiration of this Agreement, immovable assets
of the Company in the Lease Area and all other appurtenances, pits,
trenches and boreholes shall on the effective date of termination or
expiration, become the property of the Government without charge.
(b) All materials, supplies, vehicles and other movable assets of the
Company in the Lease Area which are fully depreciated for tax
purposes, shall become the property of the Government without charge
on the effective date of termination or expiration. Any such property
which is not then fully depreciated for tax purposes shall be offered
for sale to the Government within sixty (60) days from the effective
date of such termination or expiration at the depreciated cost. If the
Government shall not accept such offer within sixty (60) days, the
Company may sell, remove or otherwise dispose of all such property
within a period of one hundred and eighty (180) days after the
expiration of such offer. All such property not sold, removed or
otherwise disposed of shall become the property of the Government
without charge.
(c) Notwithstanding the foregoing, the Minister, may by notice to the
Company require the removal or destruction of any assets of the
Company in the Leased Area, and if the Company does not remove or
destroy such assets within a period of thirty (30) days from the date
of the Minister's notice to that effect, the Minister shall cause such
removal or destruction at the expense of the Company.
(d) The Company shall take all reasonable measures to ensure that all of
the assets to be offered for sale to the Government or
transferred to the Government in accordance with this paragraph shall
be maintained in substantially the same condition in which they were
at the date of the termination or the date on which the Company
reasonably knew that such termination would occur and any such assets
shall not be disposed of, dismantled or destroyed except as
specifically provided for in this paragraph.
(e) Upon the termination or expiration of this Agreement, the Company
shall leave the Lease Area and everything thereon in good condition,
having regard to the ecology, drainage, reclamation, environmental
protection, health and safety; provided however that the Company
shall have no obligation in respect of areas where the Company has
not undertaken any work or which have not been affected by the
Company's operations. In this connection, unless the Chief Inspector
of Mines otherwise directs, the Company shall, in accordance with
good mining practices, fill up or fence and make safe all holes and
excavations to the reasonable satisfaction of the Chief Inspector of
Mines. In addition the Company shall take all reasonable measures to
leave the surface of the Lease Area in usable condition and to
restore all structures thereon not the property of the Company to
their original condition. In the event that the Company fails to do
so, the Minister shall restore and make safe the Lease Area and
everything thereon at the expense of the Company.
(f) The Company shall have the right to enter upon the Lease Area for the
aforesaid purposes, subject to the rights of surface owners or
others, for a period of six (6) months from the effective date of the
termination or such longer period as the Minister may decide.
30. FORCE MAJEURE:
(a) All obligations on the part of the Company to comply with any of the
conditions herein (except the obligation to make payment of
monies due to the Government) shall be suspended during the period
the Company is prevented by force majeure from fulfilling such
obligations, the Company having taken all reasonable precautions, due
care and reasonable alternative measures with the objective of
avoiding such non-compliance and of carrying out its obligations
hereunder. The Company shall take all reasonable steps to remove such
causes of the inability to fulfill the terms and conditions hereof
with the minimum of delay.
(b) For the purpose of this paragraph, force majeure includes Government
restraints not arising from the non-compliance by the Company with
the conditions therein, acts of God, war, strikes, insurrection,
riots, earthquakes, storm, flood or other adverse weather conditions
or any other event which the Company could not reasonably be expected
to prevent or control, but shall not include any event caused by a
failure to observe good mining practices or by the negligence of the
Company or any of its employees or contractors.
(c) The Company shall notify the Minister within forty-eight (48) hours
of any event of force majeure affecting its ability to fulfill the
conditions hereof or of any events which may endanger the natural
resources of Ghana and similarly notify the Government of the
restoration of normal conditions within forty-eight hours of such
restoration. This provision shall be in addition to any requirements
contained in the Mining Regulations in force in Ghana.
(d) The terms of this Agreement shall be extended for a period of time
equal to the period or periods during which the company was affected
by conditions set forth in the sub-paragraph (a) and (b) of this
paragraph or for such period as may be agreed by the parties.
31. POLITICAL ACTIVITY:
make a donation, gift or grant to any political party. The Company
shall make it a condition of employment that no employee, other than a
citizen of Ghana shall engage in political activity and shall not make
donations, gifts or grants to any political party. In the event of any
such employee acting in disregard to this condition, he shall be
dismissed forthwith.
32. ADVERTISEMENTS, PROSPECTUSES, ETC:
Neither the Company nor any affiliated Company shall in any manner
claim or suggest, whether expressly or by implication that the
Government or any agency or official thereof, has expressed any
opinion with respect to gold in the Lease Area and no statement to
this effect shall be included in or endorsed on any prospectus notice,
circular, advertisement, press release or similar document issued by
the Company or any affiliated Company for the purpose of raising new
capital.
33. CO-OPERATION OF THE PARTIES:
Each of the parties hereto undertake that it will from time to time do
all such acts and make, enter into, execute, acknowledge and deliver
at the request of the other party, such supplemental or additional
instruments, documents, agreements, consents, information or otherwise
as may be reasonably required for the purpose of implementing or
further assuring the rights and obligations of the other party under
this Agreement.
34. NOTICE:
Any application, notice, consent, approval, direction, instruction or
waiver hereunder shall be in writing and shall be delivered by hand or
by registered mail. Delivery by hand shall be deemed to be effective
from the time of delivery and delivery by registered mail shall be
deemed to be effective from such time as it would in the ordinary
course of registered mail be delivered to the addressee.
35. ARBITRATION AND SETTLEMENT OF DISPUTES:
(a) Any dispute between the parties in respect of the interpretation
or enforcement of the provisions of this document shall be
settled in accordance with the procedures available in Ghana for
the settlement of such dispute provided that at the instance of
either of the parties any such dispute may be submitted for
settlement by arbitration under the Arbitration Rule of the
United Nations Commission on International Trade Law (the
"UNCITRAL Rule").
(b) Any arbitration under the UNCITRAL Rules shall be by three (3)
arbitrators unless the parties agree to a single arbitrator. The
place of arbitration shall be Accra and the proceedings shall be
in English unless the parties otherwise agree. Ghana Law shall be
the law applicable to the proceedings.
(c) Nothing in clause 35(a) or 35(b) shall prevent either of the
parties from requesting any judicial authority to order
provisional measures prior to the initiation of arbitration
proceedings or during the proceedings for the preservation of
their respective rights.
(d) The parties acknowledge and that this Agreement was made on the
basis of the laws and conditions prevailing at the date of the
effective conclusions of the negotiation of this Agreement and
accordingly, if thereafter, new laws and conditions come into
existence which unfairly affect the interest of either party to
this Agreement, then the party so unfairly affected shall be
entitled to request a re-negotiation and the parties shall
thereupon re-negotiate.
The parties hereby undertake and covenant with each other to make
every effort to agree, co-operate, negotiate and to take such
action as may be necessary to remove the causes of unfairness or
disputes.
36. ASSIGNMENT AND TRANSFER OF RIGHTS:
(a) This Agreement shall not be assignable in whole or in part by the
Company without the prior consent in writing of the Government.
(b) The Government may impose such conditions precedent to the giving of
such consent as it may deem appropriate in the circumstances. No
assignment, however, may relieve the Company of its obligations under
this Agreement except to the extent that such obligations are actually
assumed by the Assignee.
(c) During the term of this Agreement, no shares of the capital stock of
the Company may be transferred except in accordance with the Minerals
and Mining Law.
37. HEADINGS:
The headings given to paragraphs in this Agreement are for convenience only
and shall not affect the construction or interpretation of this Agreement.
38. GOVERNING LAWS:
This Agreement shall be governed and construed in accordance with the Laws
of Ghana.
THE SCHEDULE ABOVE REFERRED TO
OATH OF PROOF
I of ACCRA make oath and say that on the
day of 2001 I was present and saw XX. XXXXX XXXXXXX, Minister
of Lands, Forestry and Mines duly execute the Instrument now produced to me and
marked "A" and that the said
can read and write.
SWORN at Accra, this day of 2001
BEFORE ME
------------------- ------------------
REGISTRAR OF LANDS D E P O N E N T
This is the Instrument Marked "A" Referred to in the Oath of
Sworn before me this day of 2001.
--------------------
REGISTRAR OF LANDS
CERTIFICATE OF PROOF
On the day of 2001 at O'clock in the noon this Instrument was
proved before me by the Oath of the within-named to
have been duly executed by the within-named XX. XXXXX XXXXXXX for and on behalf
of "the Government" of the Republic of Ghana for Lessor herein.
--------------------
REGISTRAR OF LANDS
Dated this day of 2001
--------------- -------------------
IN WITNESS OF WHICH the Parties have respectively executed the original and
counterpart of this Agreement on the date first above written.
SIGNED BY THE GOVERNMENT OF THE ]
REPUBLIC OF GHANA acting by ]
XX. XXXXX XXXXXXX, the Minister of Lands, ]
Forestry and Mines who by this execution ] /s/ [ILLEGIBLE]
Warrants to the other party that he is duly ] -----------------------------
Authorized and empowered to enter into this ] MINISTER
Agreement in the presence of: ] MINISTRY OF LANDS, FORESTRY
& MINES
/s/ XXXXXXXXX TEXPETEY ESQ.
------------------------------------------
CHIEF DIRECTOR
MINISTRY OF LANDS,
FORESTRY & MINES
SIGNED BY THE WITHIN-NAMED ]
BOGOSO GOLD LIMITED ]
acting by its Chief Executive/Managing Director ]
who by this execution warrants to the other ]
party that he is duly authorized and ]
empowered to enter into this Agreement in ] -----------------------------
the presence of: ] MANAGING DIRECTOR
------------------------------------------
DIRECTOR/SECRETARY
GOVERNMENT OF THE REPUBLIC OF GHANA
AND
BOGOSO GOLD LIMITED
--------------------------------------------------------------------------------
MINING LEASE
--------------------------------------------------------------------------------
TERM: THIRTY (30) YEARS
COMMENCEMENT:
EXPIRY DATE:
FILE NO:
SOLICITOR OF
THE SUPREME COURT
GHANA
[BOGOSO SITE MAP]
THIS IS THE PLAN REFERRED TO
IN THE ANNEXED MINING LEASE
DATED THIS 29TH DAY OF JUNE 2001
/s/ [SIGNATURE ILLEGIBLE]
Minister
MINISTRY OF LANDS, FORESTRY & MINES
THE HON. MINISTER OF LANDS, FORESTRY & MINES
