(LOGO)
Allens Xxxxxx Xxxxxxxx (LOGO)
Parent Deposit Agreement
Lihir Gold Limited
Australia and New Zealand Banking Group Limited
BALLARAT GOLDFIELDS FACILITY
Allens Xxxxxx Xxxxxxxx
Riverside Centre
000 Xxxxx Xxxxxx
Xxxxxxxx XXX 0000
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C)Copyright Allens Xxxxxx Xxxxxxxx 2006
Parent Deposit Agreement Allens Xxxxxx Xxxxxxxx (LOGO)
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 2
1.3 Document or agreement 2
1.4 Code of Banking Practice (2003) 3
1.5 Facility Agreement 3
2. DISTRIBUTION ACCOUNT AND DEPOSIT 3
2.1 Establish Distribution Account 3
2.2 Payments to Distribution Account 3
2.3 The Deposit 3
2A. TERMINATION OF EARLIER AGREEMENT 3
2A.1 Approval by the Bank of Papua New Guinea 3
2A.2 Termination of the Earlier Document 4
3. INTEREST 4
4. PURPOSE 4
5. MATURITY 4
6. WITHHOLDING TAX 4
7. EVIDENCE OF INDEBTEDNESS 4
8. LIMITED RECOURSE AGAINST LENDER 4
9. GUARANTEE 5
9.1 Consideration 5
9.2 Guarantee 5
9.3 Indemnity 5
9.4 Payment obligation 5
9.5 Unconditional nature of obligation 6
9.6 Principal and independent obligation 6
9.7 No marshalling 7
9.8 No competition 7
9.9 Suspense account 7
9.10 Rescission of payment 7
9.11 Continuing guarantee and indemnity 8
9.12 Variations 8
9.13 Judgment 8
9.14 Conditions precedent 8
9.15 Limited Recourse against Depositor 8
10. SET-OFF 9
11. ACKNOWLEDGEMENT BY DEPOSITOR 9
12. EXPENSES 9
13. STAMP DUTIES AND GST 9
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13.1 Stamp duties 9
13.2 GST 9
14. ASSIGNMENT 10
14.1 Assignment by Depositor 10
14.2 Assignment by Lender 10
15. NOTICES 10
16. GOVERNING LAW AND JURISDICTION 11
17. WHOLE AGREEMENT 11
18. BUSINESS DAYS 11
19. CONDITION PRECEDENT 11
SCHEDULE 12
Notice Details 12
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Parent Deposit Agreement Allens Xxxxxx Xxxxxxxx (LOGO)
DATE 12 FEBRUARY 2007
PARTIES
1. LIHIR GOLD LIMITED ARBN 069 803 998, incorporated in Papua New
Guinea, of Xxxxx 0, Xxxxxxx Xxxxx, Xxx Xxxxxxxx Xxxxxx and Xxxxxxxx
Street, Port Moresby, Papua New Guinea (the DEPOSITOR); and
2. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522,
having an office at Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 0000 (the LENDER).
RECITALS
A The Depositor has requested that the Lender make the Loan to the
Borrower.
B The Depositor has agreed to deposit funds with the Lender on the
terms set out in this Agreement and under the Syndicated Facilities
Agreement, as security for the Borrower's obligations under the
Facility Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Government Agency; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a Government Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry of that period without intervention or
action.
AUTHORISED OFFICER means:
(a) in respect of the Depositor, any director or secretary, or any
person from time to time nominated as an Authorised Officer by the
Depositor by a notice to the Lender accompanied by certified copies
of signatures of all new persons so appointed; and
(b) in respect of the Lender, any person whose title or acting title
includes the word CHIEF, COUNSEL, EXECUTIVE, HEAD, DIRECTOR, MANAGER
OR PRESIDENT or cognate expressions, or any secretary or director.
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BORROWER means Lihir Australian Holdings Pty Limited ACN 121 554 443.
BUSINESS DAY means a weekday on which banks are open in Brisbane and
Melbourne.
DEPOSIT has the meaning in clause 2.
DISTRIBUTION ACCOUNT means the account to be set up pursuant to clause
11.6(a) of the Syndicated Facilities Agreement.
EARLIER DOCUMENT means the Parent Deposit Agreement dated 17 October 2006
between the Depositor and the Lender.
FACILITY AGREEMENT means the facility agreement between the Borrower and
the Lender dated on or about the date of this Agreement.
GST means any goods and services or similar tax, together with any related
interest, penalties, fines or other charge.
LOAN means a loan under the Facility Agreement.
SYNDICATED FACILITIES AGREEMENT means the Syndicated Facilities Agreement
between the Lender, the Depositor and others dated 13 December 2005.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a chause is a reference to a clause of this
Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(h) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(i) The meaning of terms is not limited by specific examples introduced
by INCLUDING, or FOR EXAMPLE, or similar expressions.
1.3 DOCUMENT OR AGREEMENT
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
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(b) a document includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this Agreement.
1.4 CODE OF BANKING PRACTICE (2003)
The Code of Banking Practice (2003) does not apply to the Transaction
Documents or any banking service provided under them.
1.5 FACILITY AGREEMENT
Any word or expression which is defined in clause 1.1 of the Facility
Agreement has the same meaning when used in this Agreement, unless that
word or expression is also defined in clause 1.1 of this Agreement, in
which case it will have that meaning when used in this Agreement.
2. DISTRIBUTION ACCOUNT AND DEPOSIT
2.1 ESTABLISH DISTRIBUTION ACCOUNT
The Depositor must as soon as practicable after the execution of this
Agreement (subject to clause 19) establish the Distribution Account with
the Lender.
2.2 PAYMENTS TO DISTRIBUTION ACCOUNT
The Depositor must make payments (or ensure that payments are made) into
the Distribution Account of all amounts permitted under the Syndicated
Facilities Agreement to be deposited in the Distribution Account at the
earliest practicable time pursuant to clause 11.6(b)(i) of the Syndicated
Facilities Agreement.
2.3 THE DEPOSIT
Fifty percent (50%) of the aggregate of all funds which are deposited into
the Distribution Account (or, if a higher amount, 50% of all funds
required by clause 2.2 to be deposited in the Distribution Account),
together with all interest accrued on that aggregate amount pursuant to
clause 3, constitutes the DEPOSIT in this Agreement.
2A. TERMINATION OF EARLIER AGREEMENT
2A.1 APPROVAL BY THE BANK OF PAPUA NEW GUINEA
The parties acknowledge and agree that:
(a) this Agreement has been submitted to the Bank of Papua New Guinea
for approval prior to its execution;
(b) the Bank of Papua New Guinea has now given approval for this
Agreement; and
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(c) this Agreement will replace the Earlier Document with effect
immediately following its execution.
2A.2 TERMINATION OF THE EARLIER DOCUMENT
The Earlier Document shall terminate immediately upon the execution of this
Agreement and this Agreement shall commence immediately thereafter.
3. INTEREST
The Lender will pay interest on funds from time to time in the Distribution
Account at its usual rate of interest on similar accounts. That interest
will be payable to the Distribution Account at monthly intervals, or such
other intervals as the Lender customarily pays interest on similar
accounts.
4. PURPOSE
The rights of the Lender under this Agreement in respect of the Deposit are
intended to provide security for the Lender for repayment of the facility
provided to the Borrower pursuant to the Facility Agreement.
5. MATURITY
(a) Subject to this Agreement, the Lender will repay the Deposit (or
release it from the constraints on its repayment to the Depositor) on
the date which the Loan is repaid under the Facility Agreement, but it
will in no circumstances be required to do so before that date, and
the Distribution Account is established with the Lender and amounts
paid to it on that basis.
(b) For clarification, nothing in this clause prohibits the Parent from at
any time withdrawing from the Distribution Account any amount not
comprised in the Deposit.
6. WITHHOLDING TAX
The Lender may make any deduction from the Distribution Account required by
law on account of withholding tax or otherwise.
7. EVIDENCE OF INDEBTEDNESS
Any certificate delivered by the Lender's Authorised Officer as to any
amount payable under this Agreement is conclusive and binds the Depositor
unless proven wrong.
8. LIMITED RECOURSE AGAINST LENDER
Despite anything to the contrary contained in this Agreement (whether
express or implied):
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(a) the obligation of the Lender to repay, and pay interest on, the
Deposit is conditional;
(b) the Lender is only required to pay or repay the Deposit to the extent
that it receives from the Borrower the corresponding payment of
principal or interest under the Facility Agreement (or receives from
the Parent the corresponding amount under this Agreement) and is
satisfied that the corresponding payment of principal or interest
under the Facility Agreement will not be liable to be repaid to the
Borrower, the Parent or any other person;
(c) if the Depositor receives moneys from the Lender under this clause and
the Lender is subsequently required by law to repay those moneys to
the Borrower or to any other person, then the Depositor shall refund
those moneys to the Lender; and
(d) despite any allocation or appropriation made by the Borrower, the
Lender is entitled to appropriate any moneys paid under the Facility
Agreement to moneys payable by the Borrower under the Facility
Agreement other than principal and interest in priority to payments of
principal and interest.
9. GUARANTEE
9.1 CONSIDERATION
The Depositor enters into this Agreement for valuable consideration which
includes the Lender entering into the Facility Agreement at its request.
Subject to the limitation of the Depositor's liability in clause 9.15, its
obligations are unconditional and irrevocable.
9.2 GUARANTEE
The Depositor guarantees to the Lender the due and punctual payment of the
Secured Money.
9.3 INDEMNITY
If the Secured Money is not recoverable from the Borrower for any reason
including any legal limitation, disability or incapacity or an obligation
in any Transaction Document becoming unenforceable, void or illegal and
whether or not:
(a) any transaction relating to the Secured Money was void or illegal or
has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought to have
been within the knowledge of the Lender,
the Depositor indemnifies the Lender in respect of that money and shall pay
that money to the Lender. The amount of that money will be equal to the
amount the Lender would otherwise have been entitled to recover.
9.4 PAYMENT OBLIGATION
On demand from time to time the Depositor shall pay an amount equal to the
Secured Money which is then due and payable or would have been due and
payable but for some
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reason. It shall pay that amount in the same manner and currency which the
Borrower is, or would have been, required to pay the Secured Money. A
demand need only specify the amount owing. It need not specify the basis or
calculation of that amount.
9.5 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Agreement nor the obligations of the Depositor under it will
be affected by anything which but for this provision might operate to
release, prejudicially affect or discharge them or in any way relieve the
Depositor from any obligation. This includes:
(a) the grant to any person of any time, waiver or other indulgence, or
the discharge or release of any person;
(b) any transaction or arrangement between the Lender and any person;
(c) the Lender becoming party to or bound by any compromise, moratorium,
assignment of property, scheme of arrangement, deed of company
arrangement, composition of debts or scheme of reconstruction by or
relating to any person;
(d) the Lender exercising or delaying or refraining from exercising or
enforcing any document or agreement or any right, power or remedy
conferred on it by law or by any document or agreement;
(e) all or any part of any document or agreement held by the Lender at any
time or of any right, obligation, power or remedy changing, ceasing or
being transferred (this includes amendment, variation, novation,
replacement, rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure, expiry,
termination, loss, release, discharge, abandonment or assignment);
(f) the taking or perfection of any document or agreement or failure to
take or perfect any document or agreement;
(g) the failure by any person or the Lender to notify the Depositor of any
default by any person under any document or agreement or other
circumstance;
(h) the Lender obtaining a judgment against any person for the payment of
any Secured Money;
(i) any change in any circumstance (including in the members or
constitution of any person);
(j) any increase in the Secured Money for any reason (including as a
result of anything referred to above;
(k) any reason,
whether with or without the consent or knowledge of the Depositor. None of
the paragraphs above limits the generality of any other.
9.6 PRINCIPAL AND INDEPENDENT OBLIGATION
This clause is a principal and independent obligation. Except for stamp
duty purposes, it is not ancillary or collateral to another document,
agreement, right or obligation.
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9.7 NO MARSHALLING
The Lender is not obliged to marshal or appropriate in favour of the
Depositor or to exercise, apply or recover:
(a) any Security Interest, Guarantee, document or agreement held by the
Lender at any time; or
(b) any of the funds or assets that the Lender is entitled to receive or
has a claim on.
9.8 NO COMPETITION
Until the Secured Money has been irrevocably paid and discharged in full
the Depositor is not entitled to and shall not, except as directed by the
Lender:
(a) be subrogated to the Lender or claim the benefit of any Security
Interest or Guarantee held by the Lender at any time;
(b) either directly or indirectly prove in, claim or receive the benefit
of, any distribution, dividend or payment arising out of or relating
to the Liquidation of the Borrower or any security provider without
the consent of the Lender; or
(c) have or claim any right of contribution or indemnity from the Borrower
or any security provider.
The receipt of any distribution, dividend or other payment by the Lender
out of or relating to any Liquidation will not prejudice the right of the
Lender to recover the Secured Money by enforcement of this Agreement.
The Depositor must comply with any direction under this clause. Such a
direction may require that any proceeds (not exceeding the amount of the
Secured Money) be held on trust for, and promptly paid to, the Lender.
9.9 SUSPENSE ACCOUNT
In the event of a Liquidation of any person, the Depositor authorises the
Lender to do the following until the Lender has been paid the Secured Money
in full:
(a) prove in respect of all moneys which the Depositor has paid the Lender
under this Agreement; and
(b) (i) retain and carry to a suspense account; and
(ii) appropriate at the discretion of the Lender,
any dividend received in that Liquidation and any other money received in
respect of the Secured Money.
9.10 RESCISSION OF PAYMENT
Whenever any of the following occurs for any reason:
(a) all or part of any transaction of any nature (including any payment or
transfer) made during the term of the Agreement which affects or
relates in any way to the Secured Money is void, set aside or
voidable;
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(b) any claim of a nature contemplated by paragraph (a) is upheld,
conceded or compromised; or
(c) the Lender is required to return or repay any money or asset received
by it under any such transaction or the equivalent in value of that
money or asset,
the Lender will again have all right against the Depositor in respect of
the Secured Money and the Mortgaged Property which it would have had if all
or the relevant part of the transaction or receipt had not taken place. The
Depositor shall indemnify the Lender against any resulting loss, cost or
expense. This clause continues after this Agreement is discharged.
9.11 CONTINUING GUARANTEE AND INDEMNITY
This clause:
(a) is a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by the payment
at any time of any Secured Money or by any settlement or account or
other matter or thing; and
(c) remains in full force until the Secured Money has been paid in full
and the Depositor has completely performed its obligations under this
Agreement.
9.12 VARIATIONS
This clause covers the Secured Money as varied from time to time including
as a result of:
(a) any amendment to, or waiver under, any Finance Document; or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Depositor. This
does not limit any other provision.
9.13 JUDGMENT
A judgment obtained against the Borrower will be conclusive against the
Depositor.
9.14 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Lender and not the Depositor. Any
waiver of or failure to satisfy such a condition or condition precedent
will be disregarded in determining whether an amount is part of the Secured
Money.
9.15 LIMITED RECOURSE AGAINST DEPOSITOR
Despite any other provision of this Agreement, the liability of the
Depositor to the Lender under or in connection with this Agreement is
limited to the amount of the Deposit or funds which should comprise the
Deposit from time to time.
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10. SET-OFF
(a) If an amount is owed under clause 9 (GUARANTEE), the Lender may, at
any time, apply all or part of the Deposit towards satisfaction of
that amount. The Lender need not make that application.
(b) The Lender may exchange currencies to make that application.
11. ACKNOWLEDGEMENT BY DEPOSITOR
The Depositor confirms that:
(a) the Lender is not obliged to enforce or monitor and may waive any of
the Borrower's obligations under the Facility Agreement;
(b) the Lender gives no advice, warranty, representation or undertaking to
the Depositor except as expressly set out in this Agreement;
(c) it has not entered into this Agreement in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of the Lender
(including any advice, warranty, representation or undertaking) except
as expressly set out in this Agreement; and
(d) it enters into this Agreement entirely at its own risk.
12. EXPENSES
On demand the Borrower shall reimburse the Lender for all costs and
expenses in relation to the preparation, execution and completion of this
Agreement or the actual or contemplated enforcement of, or actual or
contemplated exercise, preservation or consideration of any rights, powers
or remedies under this Agreement, including in each case legal costs and
expenses (including in-house lawyers charged at their usual rates) on a
full indemnity basis.
13. STAMP DUTIES AND GST
13.1 STAMP DUTIES
The Borrower shall pay or reimburse the Lender for all stamp, transaction,
registration, financial institutions, debit and other duties and taxes
(including fines and penalties) on or in relation to the execution,
delivery, performance or enforcement of this Agreement or any payment,
receipt or other transaction contemplated by this Agreement.
13.2 GST
All payments to be made by the Depositor under or in connection with this
Agreement have been calculated without regard to GST.
(a) If all or part of any such payment is the consideration for a taxable
supply for GST purposes then, when the Depositor makes the payment:
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(i) it must pay to the Lender an additional amount equal to that
payment (or part) multiplied by the appropriate rate of GST
(currently 10%); and
(ii) the Lender will promptly provide to the Depositor a tax invoice
complying with the relevant GST legislation.
(b) Where under this Agreement the Depositor is required to reimburse or
indemnify for an amount, the Depositor will pay the relevant amount
(including any sum in respect of GST) less any GST input tax credit
the Lender determines that it is entitled to claim in respect of that
amount.
14. ASSIGNMENT
14.1 ASSIGNMENT BY DEPOSITOR
It is a fundamental term of this Agreement and the Deposit that they are
not capable of being assigned, mortgaged, charged or otherwise dealt with
by the Depositor. The Depositor shall not attempt or purport to do so.
14.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or obligations
under this Agreement at any time if:
(a) any necessary prior Authorisation is obtained;
(b) the transferee or assignee is a Related Entity of the Lender or the
Depositor has given its prior consent, which consent:
(i) it shall not withhold unreasonably; and
(ii) will be taken to have been given if no response is received
within 15 days of the request for consent; and
(c) in the case of a transfer of obligations, the transfer is effected by
a novation in form and substance reasonably satisfactory to the
Depositor.
15. NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement:
(a) must be in writing signed by an Authorised Officer of the sender; and
(b) will be taken to be given or made when delivered, received or left at
the address or fax number of the recipient shown in the schedule or to
any other address or fax number which it may have notified the sender
but, if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4pm (local time), it will be taken to have been given
or made at the commencement of business on the next day on which
business is generally carried on in that place.
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16. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Victoria. The Depositor submits
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
17. WHOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties in
relation to the Deposit.
18. BUSINESS DAYS
If anything falls to be done under this Agreement on a day which is not a
Business Day it must be done on the next Business Day.
19. CONDITION PRECEDENT
(a) This Agreement is subject to, and will not take effect unless and
until, it and the establishment of the Distribution Account have been
approved by The Bank of Papua New Guinea.
(b) The Depositor shall use its best endeavours to obtain that consent at
the earliest practicable date.
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SCHEDULE
NOTICE DETAILS
DEPOSITOR
LIHIR GOLD LIMITED
Address: Xxxxx 0, 000 Xxxxx Xxxxxx, Xxxxxxxx XXX 0000
Fax number: (00)0000 0000
Email: Xxxx.Xxxxxx@xxxxx.xxx.xx
Attention: Chief Financial Officer
LENDER
Australia & New Zealand Banking Group Limited
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxxxxxx Xxxxxxxxxxxx
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EXECUTED as an agreement
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
SIGNED for LIHIR GOLD LIMITED ARBN 069 803 993
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxxxx
---------------------- ----------------------------
Director Signature Director Signature
Xxxxxx Xxxx Xxxx Xxxxxxx
---------------------- ----------------------------
Print Name Print Name
SIGNED for AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED ABN 11 005 357
522 by its attorney
/s/ Xxxxxxxx Xxxxxxxxxxxx /s/ Xxxx Xxxxxx
---------------------- ----------------------------
Witness Signature Attorney Signature
Xxxxxxxx Xxxxxxxxxxxx Xxxx Xxxxxx
---------------------- ----------------------------
Print Name Print Name
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