Previous Clause | Next Clause | Table of Contents

1.1 Definitions
“Affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Company. For purposes of this definition, “control” means ownership of greater than 50% of the share capital of a company and/or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise.

“Applicable Law” means the law of the State as further defined in Section 35.0.

“Central Bank” means the central bank of the State.

“Closure Plan” has the meaning assigned to that term in Section 26.0.

“Company” has the meaning set forth in the Preamble.

“Commercial Production” means production equal to [sixty percent (60.0%)] of the Project’s constructed initial annual design capacity as shown in the Feasibility Study, averaged over a continuous three-month period.

“Community Development Agreement” has the meaning assigned to that term in Section 22.1.

“Confidential Information” has the meaning assigned to that term in Section 30.2.

“Consultation” means an open, inclusive, and non-coercive process, conducted in the native language of the participants, for exchange of information, ideas and viewpoints about the potential benefits and impacts of the Project. Consultation shall strive to include, in socially and culturally acceptable forms, all social elements in the area affected by the subject matter under consideration, including both men and women. Where Indigenous or Tribal Populations are part of the Consultation, the Parties shall refer to international guidelines2 as to the appropriate ways to proceed. Parties shall strive for full prior disclosure of relevant information in advance of any decisions to be taken as part of the Consultation.

“Date of Commencement of Commercial Production” means the first day of the calendar quarter after the calendar quarter in which Commercial Production first occurs.

“Day” means a calendar business day in the State.

“Debt” has the meaning assigned to that term in Section 8.2(a).

“Documents” has the meaning assigned to that term in Section 2.4.

“Effective Date” has the meaning set forth in the Preamble.

“Environmental Assessment” means a systematic study of the environmental character of the Mining Area to establishing a baseline of existing environmental conditions, and assessing the Project-related environmental effects and impacts in order to evaluate their significance.

“Environmental Management Plan” means the plan required to be produced and submitted to the State by the Company under Section 2.4.2.

“Equity” has the meaning assigned to that term in Section 8.2(b).

“Feasibility Study” means the study required to be produced and submitted to the State by the Company under Section 2.4.1.

“Financing Plan” means the plan required to be produced and submitted to the State by the Company under Section 2.4.4.

“Force Majeure” means any event or circumstance which a Party could not reasonably be expected to prevent or control, including among other things, wars, insurrections, civil disturbances, blockades, embargoes, strikes and other labour conflicts, riots, epidemics, earthquakes, storms, floods, or other adverse weather conditions, explosions, fire, lightning, acts of terrorism, or the unavailability or breakdown of materials or equipment.

“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected to be applied by a skilled and experienced person engaged in the international mining industry and includes but is not limited to the guidance provided, as applicable, by the International Council on Mining and Metals, by the IFC Performance Standards, and by ISO 14001 standards.

“State” has the meaning set forth in the Preamble.

“ICSID” has the meaning assigned to that term in Section 32.2.

“IFC Performance Standards” means the International Finance Corporation’s Performance Standards on Social and Environmental Sustainability.

“Independent Sole Expert” means an individual, an employee of an internationally recognized mining consulting firm competent on international mineral markets and prices, or an individual, or employee of an internationally recognised environmental and/or social consultancy firm, competent in the field of international mining operations, as appropriate, as the Parties may agree in writing, or failing such agreement within [ ___ ] days, as shall be appointed for this purpose on the application of either Party by the International Centre for Expertise in accordance with the provision for the appointment of experts under the Rules for Expertise of the International Chamber of Commerce.

“Indigenous or Tribal Populations” means those peoples identified as (i) indigenous or tribal peoples in accordance with the basic principles of the Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO Convention 169, (ii) traditional owners of property, (iii) first nations, or (iv) [other culturally appropriate definition];

“Local Government” means [IDENTIFY RELEVANT LOCAL GOVERNMENT(S)].

“Minerals” means [IDENTIFY RELEVANT MINERALS TO BE MINED AND ASSOCIATED MINERALS].

“Mining Area” means the area specifically delineated in Annex A-1 of this Agreement.

“Mining Operation” means, subject to compliance with Applicable Law and this Agreement, all work related to the various phases in the mineral development process, including exploration, mineral deposit evaluation, mine construction, mine development, mining, the reclamation or rehabilitation of and remediation of land, the extraction, beneficiation, transportation, handling, storage and marketing of a mineral substance extracted, the processing of mine tailings and all other activities necessary or convenient to carry out the Company’s rights and obligations under this Agreement, but not including work performed for others.

“Notice” has the meaning assigned to that term in Section 34.0.

“Parent Company” means ____________________

“Parties” means the Company and the State.

“Party” means the Company or the State as the context requires.

“Project” means the development, production and reclamation of a Mining Operation under this Agreement, all Mining Operations undertaken in the Mining Area, and all activities in connection therewith, pursuant to and in accordance with this Agreement, including all facilities and infrastructure that are reasonable and necessary for the Project according to Good Industry Practice.

“Project Area” means the area specifically delineated in Annex A-2 of this Agreement as such area may be modified by the Environmental Impact Assessment and Environmental Management Plan and the Social Impact Assessment and Action Plan.

“Royalty Rate” has the meaning assigned that term in Section 4.1.

“Social Impact Assessment and Action Plan” means the plan required to be produced and submitted to the State by the Company under Section 2.4.3.

“Stability Period” means that period of time beginning on the Effective Date and ending on [the ___th anniversary of the Date of Commencement of Commercial Production][production of the quantity of commercial Minerals identified in the Feasibility Study][date of termination of this Agreement][the date of recovery of capital costs plus a rate of return identified in the Financing Plan].

“State Official” means anyone who is an elected, appointed or career official, or employee, of any central or local government, central or local government-owned or central or local government–controlled enterprise, company or organization, who is an individual acting for any such a central or local government, enterprise, company or organization, official of a political party or candidate for political office.

“Tax” means any levy imposed by the State under Applicable Law on income, goods and services, and the employment, health and welfare of persons.

“Tax Law” means Applicable Law of the State [but not the Local Government] pertaining to any Tax and any subsidiary and associated legislation or regulation.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a) The singular includes the plural and vice-versa;
(b) Headings do not affect the interpretation of this Agreement;
(c) References to a part, clause, schedule, exhibit and annex refers to a part, clause, schedule, exhibit or annex of, in or to this Agreement;
(d) A reference to this Agreement includes all schedules, exhibits and annexes to this Agreement;
(e) A reference to an agreement, deed, instrument or other document includes the same as amended, notated, supplemented, or replaced from time to time;
(f) A reference to a court is to a court of the State;
(g) A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued under, that legislation or legislative provision;
(h) A reference to a day, month or year is relevantly to a calendar day, calendar month or calendar year;
(i) A reference to [COUNTRY CURRENCY], is to the lawful currency of the State;
(j) The expressions “including”, “includes” and “include” have the meaning as if followed by “without limitation”;
(k) No rule of construction is to apply to the disadvantage of a Party on the basis that that Party drafted the whole or any part of this Agreement; and
(l) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

1.3 Existing Rights

The rights, obligations and liabilities of the Company and the State subsisting prior to the Effective Date under Applicable Law or permits, licenses or approvals issued thereunder, except as superseded herein, shall continue and bind both the Company and the State during the term of this Agreement.

REFER TO MMDA DISCLAIMERS AND MMDA USER’S GUIDE
PRIOR TO ANY USE OF THIS DOCUMENT.

Previous Clause | Next Clause | Table of Contents

Chinese (Simplified) French Portuguese (Brazil) Russian Spanish