Water Resources (Gordonstone Water Supply Agreement) Order 1992 (Qld)

Queensland Subordinate Legislation 1992 No. 430 Water Resources Act 1989 WATER RESOURCES (GORDONSTONE WATER SUPPLY AGREEMENT) ORDER 1992 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Agreement to supply water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 3 GORDONSTONE AGREEMENT 1992

2 Water Resources (Gordonstone Water Supply Agreement) No. 430, 1992 ˙ Short title 1. This order in council may be cited as the Water Resources (Gordonstone Water Supply Agreement) Order 1992 . ˙ Definitions 2. In this order in council— “Gordonstone” means those parties collectively referred to as “Gordonstone” in the agreement contained in the Schedule. ˙ Agreement to supply water 3. The Corporation agrees to supply water to Gordonstone on the terms contained in the agreement contained in the Schedule.

3 Water Resources (Gordonstone Water Supply Agreement) No. 430, 1992 ¡ SCHEDULE GORDONSTONE AGREEMENT 1992 section 3 THIS AGREEMENT is made the Twenty-Ninth day of September, 1992 between THE WATER RESOURCES COMMISSION the corporation sole constituted by the Water Resources Act 1989 (the “Commission”) of the One Part and ARCO COAL AUSTRALIA INC. (“ACAI”) [A.R.B.N. 009 738 407], ARCO RESOURCES LIMITED (“ARL”) [A.C.N. 010 565 554], MITSUI GORDONSTONE INVESTMENT PTY LTD (“Mitsui”) [A.C.N. 002 429 763] and LEND LEASE DEVELOPMENT CAPITAL PTY. LTD. (“Lend Lease”) [A.C.N. 000 001 114] care of 19th Floor, 15-23 Adelaide Street, Brisbane, Queensland (ACAI, ARL, Mitsui and Lend Lease collectively called “Gordonstone”) of the Other Part. WHEREAS (A) The Commission has constructed works including Selma Weir to regulate flow in the Nogoa River adjacent to the town of Emerald in the State of Queensland; (B) ACAI, ARL, Mitsui and Lend Lease are parties to the Gordonstone Joint Venture in the following shares (hereinafter called “Share” or “Shares”): ACAI 50% ARL 30% Mitsui 15% Lend Lease 5% The Gordonstone Joint Venture is managed by Gordonstone Coal Management Pty Ltd (“GCM”).

4 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 (C) Gordonstone desires to draw water from Selma Weir on the Nogoa River for purposes associated with the development of and the production of coal from Mining Lease No. 1978 (which has been granted or deemed to have been granted under the Mineral ResourcesAct 1989 of the State of Queensland) or from any mining lease granted in respect of Exploration Permit 389 (“EPC 389”) or in each case any extension or renewal thereof or substitution therefore (hereinafter collectively called “the Mining Lease”); (D) Gordonstone and GCM have entered into an agreement with BHP Minerals Limited, Mitsubishi Development Pty Limited, Australian Mutual Provident Society, Utah Queensland Coal Limited, Bowen Basin Minerals Pty Limited, QCT Mining Pty Limited, Pancontinental Mining Limited and BHP-Utah Coal Limited (the “Gregory Joint Venture”) for joint use of a pump station and associated pipeline (“the Gregory Pipeline”) which takes water from Selma Weir, and proposes to construct a new pipeline (“the Gordonstone Spur”) from an offtake on the Gregory Pipeline to the area of Mining Lease 1978; (E) The Commission has agreed to supply water to Gordonstone from the regulated section of the Nogoa River subject to the terms hereinafter set forth. NOW THEREFORE in consideration of the foregoing recitals and of the terms, covenants and agreements hereinafter set forth the parties hereto HEREBY COVENANT AND AGREE with each other as follows - 1. DURATION OF AGREEMENT 1.01 Subject to the following provisions, this Agreement shall continue and remain in full force and effect for so long as the Mining Lease is held by Gordonstone, or any of them.

5 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 2. SUPPLY OF WATER AND ANNUAL PAYMENTS 2.01 Commencing on the day upon which the approval of the Governor in Council in accordance with section 3.20(1) of the WaterResourcesAct1989 is notified in the Queensland Government Gazette, (hereinafter called “the commencing date”) and thereafter during the currency of this Agreement the Commission agrees to supply to Gordonstone a quantity of water not exceeding 1 300 megalitres from the Nogoa River during each succeeding twelve months’ period (hereinafter called “a year” and references to “annual” shall be references to such a period). 2.02 In consideration of the Commission so supplying water, Gordonstone agrees to make to the Commission an annual capital payment comprising: a. $97,500, and b. $171 per megalitre for all water used. 2.03 In addition to the capital payment referred to in Clause 2.02, Gordonstone agrees to make a further annual payment to the Commission in relation to operation, maintenance, repairs and administration costs, for all water used. Initially, payment will be at a rate of $20.00 per megalitre, of which the amount of $15.80 per megalitre will remain unchanged subject to Clause 2.06 during the currency of this Agreement whereas the balance will be reviewed each year by the Commission. The yearly variation will not exceed the variation in the Consumer Price Index (all groups index numbers for Brisbane) for the preceding twelve months as determined by the indices at the end of the immediately preceding March quarter. Where the charge is varied the Commission must notify Gordonstone in writing of the details of the variation and the effective date thereof.

6 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 2.04 If Gordonstone receives approval to take additional water under the provisions of Clause 4.02, Gordonstone must pay to the Commission for each additional megalitre used an annual amount equal to $296.00 plus the rate per megalitre payable under the provisions of Clause 2.03. 2.05 The amount of $97,500 specified in Clause 2.02(a) is payable in two equal instalments each year. The first instalment is due on A DATE TO BE AGREED BETWEEN THE PARTIES Subsequent instalments will be payable six-monthly on or before the thirty first day of January and thirty first day of July. The charge component set out in Clause 2.02(b) and those charges specified in Clauses 2.03 and 2.04 will be payable six-monthly in arrears following the commencement of taking water. 2.06 Gordonstone shall reimburse the Commission for additional power costs payable by the Commission to the Gregory Joint Venture pursuant to Clause 13.09 of an agreement made between the Commission and the Gregory Joint Venture on 23 May 1979 (the “1979 Agreement”) resulting from the increased flow rate of water through the Gregory Pipeline by paying to the Commission one hundred and forty five three hundredths (145/300) of all costs for power paid by the Commission to the Gregory Joint Venture pursuant to the 1979 Agreement. 2.07 All payments by Gordonstone under this Agreement are to be made within 30 days of receipt of an appropriate invoice from the Commission. 2.08 The charging system set out in Clauses 2.02 to 2.05 will continue unchanged until 30 June 2001. The Commission may specify a change in that charging system (including a change in the level of charges) to apply after 30 June 2001 and may set the subsequent period of effectiveness of those charges provided that any change to the charging system, the level of charges and the relevant period shall be on the same basis and level as for other users in the position of Gordonstone. The Commission must notify

7 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 Gordonstone in writing of the new charges six months in advance of their application. After 30 June 2001 the charges set out in Clauses 2.02 to 2.05 will be charged until new charges become effective. 2.09 1989 - For the purposes of section 3.20(1) of the Water Resources Act (a) the minimum quantity of water that is to be paid for in each year is 1 litre; (b) the charge for the minimum quantity is to be 1 dollar ($1); and (c) the charge is payable on demand by the Commissioner of Water Resources. 3. OPERATION AND MAINTENANCE OF WEIR 3.01 Gordonstone acknowledges that Selma Weir is, and remains, the sole property of the Commission. 3.02 The Commission will supervise, operate and maintain, at its cost, Selma Weir during the currency of this Agreement and will use its best endeavours to ensure that a supply of 1 300 megalitres of water during each year is available to Gordonstone except as provided for in Clause 9.01. 4. VARIATIONS IN SUPPLY OF WATER 4.01 If, during any year after the commencing date, Gordonstone takes less than 1 300 megalitres of water from the Nogoa River, no refund of the whole or any part of the capital payment referred to in Clause 2.02(a) hereof will be made to Gordonstone.

8 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 4.02 The Commission acknowledges that Gordonstone’s water requirements may from time to time exceed 1 300 megalitres during any year. Before using more than 1 300 megalitres in any year Gordonstone must first obtain written authority from the Commission. On receipt of an application from Gordonstone, the Commission must, after taking into account the quantity of water available, the requirements of other users and such other matters as it deems necessary, notify Gordonstone of its decision on the application. The decision of the Commission in respect of an application for additional water is final and not subject to arbitration. 4.03 If Gordonstone in more than 50 percent of years in any five year period of this Agreement takes annual quantities of more than the quantity of water specified in Clause 2.01, or if Gordonstone so requests, the Commission may, after taking into account the availability of water and the actual use of water by Gordonstone, increase the quantity of water so specified. Upon the quantity of water specified in Clause 2.01 being increased in accordance with this Clause the Commission may reassess the charges to be paid in respect of the quantity representing the increase. 4.04 If Gordonstone consistently uses less than the quantity of water specified in Clause 2.01 the Commission may with the prior consent of Gordonstone reduce the quantity so specified. 5. FORFEITURE OF COAL MINING LEASE 5.01 If at any time during the term of the Agreement, Gordonstone forfeits or relinquishes the Mining Lease except for the purpose of obtaining an amended or substituted mining lease, the following provisions will apply:- (a) Gordonstone must forthwith notify the Commission in writing of such forfeiture or relinquishment;

9 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 (b) the said annual charges will be payable by Gordonstone up to and including the date of forfeiture as aforesaid; and (c) this Agreement may be terminated forthwith by the Commission. 6. METERING 6.01 Gordonstone must, to the satisfaction of the Commission, supply, install and maintain, at its expense, a meter to record the quantity of water allocated under this Agreement and taken from the Gregory Pipeline pursuant to an Agreement with the owners of that Pipeline. The location of the meter must be as close as practicable to the point of offtake from the Gregory Pipeline. Gordonstone must furnish to the Commission through its District Engineer at Emerald, within fourteen days from the end of each quarter, particulars of the readings of the meter evidencing the quantity of water taken during that quarter. 6.02 Persons authorised by the Commission may, from time to time, inspect the works hereinafter referred to, and read the meter. 6.03 The register of the meter shall be prima facie evidence of the quantities of water taken for the purposes of this Agreement. 6.04 As and when required by the Commission, Gordonstone must, at Gordonstone’s expense, appoint a competent person approved by the Commission to test the accuracy of the meter and Gordonstone must at its expense adjust, repair or replace the meter as directed by the Commission. 6.05 During any period that the meter is under repair or the Commission is of the opinion that the meter is not registering or is registering incorrectly, the quantity of water taken by Gordonstone may be

10 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 determined by the Commission in consultation with Gordonstone and taking into consideration use by others taking water from the Gregory Pipeline. 7. PIPELINE AND OTHER WORKS 7.01 Gordonstone will cause to be constructed a pipeline together with all works in connection therewith including, but without limiting the generality of the foregoing, all such valves, fittings, pumping facilities, meters, connections and all other equipment and appurtenances whether or not similar to the foregoing as may be useful or convenient in connection therewith or incidental thereto (hereinafter collectively referred to as “the pipeline”) for the purposes of conveying water from the offtake from the Gregory Pipeline to the area of Gordonstone’s operations. The Commission acknowledges Gordonstone’s ownership of the pipeline and associated structures and equipment. 7.02 Gordonstone will be responsible for the investigation, design, construction, operation and maintenance of the pipeline. 7.03 The Gregory Joint Venture has supplied original design drawings, amended as constructed, of the Gregory Pipeline to Gordonstone for purposes of the upgrading of the Gregory Pipeline (hereinafter called the “upgrading”). Based upon those drawings Gordonstone has caused to be devised specifications that in their opinion (without representing or warranting it to be the case) would enable the Gregory Pipeline, after upgrading to those specifications, to be fit for the purpose of carrying 3000 megalitres of water per annum. 7.04 In respect of the upgrading Gordonstone expressly warrants to the Commission that: (a) the engineering services that Gordonstone have caused to be carried out shall be performed in a neat, skilful, diligent,

11 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 professional and workmanlike manner in accordance with generally accepted practises for the nature of those services; (b) any errors or omissions or other deficiencies in those services which are reported to Gordonstone by the Commission and the Gregory Joint Venture (acting together) within one year after completion of upgrading shall be corrected promptly without cost to the Commission; (c) the contractor (which term shall include any servants, agents, sub-contractors, contractors or consultants of Gordonstone or the contractor) that shall perform the upgrading shall do so in a good, professional and workmanlike manner in accordance with generally accepted practices for the nature of the work. If any part of the work is found to be defective in any respect by the Commission and the Gregory Joint Venture (acting together) whether in materials or workmanship, within one year after completion of upgrading, then Gordonstone shall correct the defect or replace it with non-defective work at no cost to the Commission. Gordonstone does not give any other express or implied warranties or conditions, statutory or otherwise, in relation to any work to be carried out or caused to be carried out by Gordonstone or GCM directly or indirectly associated with the upgrading (except those warranties and conditions, if any, implied by law and which cannot be excluded and which if implied will be, to the extent permitted by law, subject to Clause 7.05). For purposes of this Clause 7.04, the completion of the upgrading shall be deemed to have occurred when the commissioning of the upgraded Gregory Pipeline has been completed to the satisfaction of both Gordonstone and the Gregory Joint Venture. 7.05 The Commission’s sole and exclusive remedies in respect of any work to be carried out or caused to be carried out by Gordonstone or GCM directly or indirectly associated with the upgrading and in respect of a breach by Gordonstone of any warranty set out in Clause 7.04 shall be the specific remedies provided for in Clause 7.04(b) and (c). Without limiting

12 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 the generality of the foregoing, Gordonstone shall under no circumstances be liable to the Commission for any indirect, special, incidental or consequential damages which otherwise might be recoverable by the Commission under Clause 7.04 including without limitation, claims based upon the loss of use, lost profits or revenue, work stoppage, increased expenses of operation or otherwise, whether or not such damages are based upon contract, tort, strict liability in tort, negligence or other theories of law. 7.06 Gordonstone does not give any express or implied warranties or conditions, statutory or otherwise, in relation to any work to be carried out or caused to be carried out by Gordonstone or GCM directly or indirectly associated with the pipeline (except those warranties and conditions, if any, implied by law and which cannot be excluded and which, if implied, will be, to the extent permitted by law, subject to Clause 7.05 (which Clause for this purpose shall be applied mutatis mutandis)). 8. POINT OF DELIVERY 8.01 For the purposes of this Agreement, the delivery point for water shall be at the inlet to the pump station on the storage of Selma Weir. 9. NON-ACTIONABLE DEFAULT 9.01 Neither party shall be liable to the other for failure to comply with its obligations under this Agreement if such failure is due to:- (i) war, whether declared or undeclared, revolution or act of public enemies; (ii) riot or civil commotion; (iii) strike or lock-out or labour dispute; (iv) act of God; (v) drought, flood, storm, tempest or washaway;

13 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 (vi) act of restraint of Government; (vii) happenings beyond the control of either party against which it could not reasonably have been expected to take effective precautions. Provided That upon cessation of the said happenings which cause the failure, the party affected shall take all reasonable steps to resume with the least possible delay the performance of its obligations hereunder. 10. ASSIGNMENT 10.01 Neither ACAI, ARL, Mitsui nor Lend Lease shall, without the prior written approval of the Commission (which approval shall not be unreasonably or arbitrarily withheld) assign all or part of its rights, benefits and obligations under this Agreement PROVIDED THAT each such party may assign without such approval all or part of its rights, benefits and obligations under this Agreement to a purchaser of all or part of its Share, the extent of such assignment corresponding to the portion of its Share purchased and PROVIDED FURTHER THAT any such assignment must be subject to the continuing exploration, development or operation of the Mining Lease by such assigns. Each party shall do all that is necessary to give full effect to any assignment contemplated by this Clause. 10.2 References in this Agreement to ACAI, ARL, Mitsui and Lend Lease include each of their successors and permitted assigns. 11. ARBITRATION OF DISPUTES 11.01 Any dispute arising out of or in connection with this Agreement or as to the construction thereof or any failure to agree where agreement is required to be reached by the parties must be referred to the arbitration of a single arbitrator, mutually acceptable to each of the parties in accordance with and subject to the provisions of the Commercial

14 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 Arbitration Act 1990 of the State of Queensland or any statutory amendment or re-enactment thereof for the time being in force. 12. NOTICES 12.01 All notices, certificates, accounts, statements and communications hereunder (“communications”) must be in writing. 12.02 All notices required or permitted to be given under this Agreement shall be sent by prepaid ordinary post, by hand delivery or by facsimile transmission addressed:- (a) (i) in the case of communications by the Commission to Gordonstone, then by any duly authorised officer of the Commission to: Gordonstone Coal Management Pty Ltd 15-23 Adelaide Street GPO Box 634 Brisbane 4000 Brisbane 4001 Facsimile: [phone] Attention: Managing Director (ii) in the case of communications by Gordonstone to the Commission, then by any director, secretary or other duly authorised officer or employee of GCM to: Water Resources Commission Hospital Road GPO Box 258 Emerald 4720 Facsimile [phone] Attention: District Engineer

15 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 or such other addresses as may be nominated in writing from time to time by the parties hereto. Communications shall be deemed to have been duly given: (b) (i) if posted, seven days after being deposited in the mail with postage pre-paid; (ii) if delivered, when delivered; (iii) if sent by facsimile transmission, only when the receiver has confirmed its receipt. 13. ENTIRE AGREEMENT 13.01 This Agreement is made in accordance with and subject to the provisions of the Water Resources Act 1989 of the State of Queensland or any statutory amendment or re-enactment thereof for the time being in force, and constitutes the entire Agreement between the parties and any alterations or amendments to the Agreement must be made in writing and signed by officers authorized by the respective parties. 13.02 The Parties agree to meet their own costs relating to the preparation and execution of this Agreement. 14. LIABILITY 14.01 References to Gordonstone in this Agreement are references to each of the parties indicated in the definition of Gordonstone which are the initial parties to this Agreement or become parties under Clause 10.01. Accordingly, the obligations and liabilities including any warranties of each such party as Gordonstone under this Agreement, bind each of them, not jointly but severally, each to the extent of its Share from time to time and

16 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 any right or benefit given to those parties as Gordonstone under this Agreement is given to the extent of their respective Shares from time to time as tenants in common. 15. GREGORY PIPELINE 15.01 Should the Gregory Pipeline cease to be owned and operated by the Gregory Joint Venture or their successors in title and the 1979 Agreement with the Commission terminates, then the Commission and Gordonstone shall give full and fair consideration to ensuring that water supplied under this Agreement continues to be supplied through the Gregory Pipeline, including the assumption by the Gordonstone of responsibility for operation of the Gregory Pipeline. 16. CLOSURE OF THE GORDONSTONE SPUR Should the Gordonstone Spur no longer be used by Gordonstone or any of them for the conveyance of water and the Gregory Pipeline becomes the property of the Commission in accordance with Clause 7.06 of the 1979 Agreement, Gordonstone agrees, at its cost, to take all steps necessary to isolate the Gordonstone Spur at its junction with the Gregory Pipeline. 17. OWNERSHIP OF GORDONSTONE SPUR ON TERMINATION Should this Agreement be terminated and the Gregory Pipeline become the property of the Commission, then Gordonstone shall, at the request of the Commission, give consideration to any reasonable proposal by the Commission to transfer all of Gordonstone’s legal and equitable interest in the Gordonstone Spur to the Commission.

17 Water Resources (Gordonstone Water Supply Agreement) SCHEDULE (continued) No. 430, 1992 18. APPROVAL OF THE GOVERNOR IN COUNCIL This Agreement shall take effect (and shall not otherwise take effect) upon the Governor in Council approving that the Commission supply water to the Company in accordance with the terms and conditions of this Agreement. IN WITNESS WHEREOF the parties hereto have executed these presents the day and year first hereinbefore written. Signed on behalf of the Water Resources Commission by the Commissioner of Water Resources PETER JOHN CHARLES BEVIN Commissioner of Water Resources P J C Bevin Signed on behalf of ARCO COAL AUSTRALIA INC. by STEVEN JON SHAPIRO Director S J Shapiro Signed on behalf of ARCO RESOURCES LIMITED by WILLIAM R. ASH Director W R Ash Signed on behalf of MITSUI GORDONSTONE INVESTMENT PTY LTD by JUNICHI SATO Director J Sato Signed on behalf of LEND LEASE DEVELOPMENT CAPITAL PTY LTD by Director R A Longes

18 Water Resources (Gordonstone Water Supply Agreement) No. 430, 1992 ENDNOTES 1. Made by the Governor in Council on 17 December 1992. 2. Notified in the Gazette on 18 December 1992. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Primary Industries. The State of Queensland 1992