Deed of Charge
Lihir Australian Holdings Pty Limited
Australia and New Zealand Banking Group Limited
BALLARAT GOLDFIELDS FACILITY
Riverside Centre
000 Xxxxx Xxxxxx
Xxxxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2006
Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx [LOGO]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Facility Agreement definitions 5
1.3 Interpretation 5
1.4 Document or agreement 6
2. CHARGE 6
2.1 Charge 6
2.2 Prospective liability 6
2.3 Increase in prospective liability 7
3. NATURE OF CHARGE 7
3.1 Priority 7
3.2 Nature of charge 7
3.3 Dealing with Mortgaged Property 8
3.4 Enter into CHESS Sponsorship Collateral Agreement 8
3.5 Crystallisation 8
3.6 De-crystallisation 9
3.7 Dealing with proceeds 9
3.8 Uncertificated Securities 10
4. UNDERTAKINGS 11
5. LIMITED RECOURSE 11
5,1 Limit and release 11
5.2 Exceptions 12
5.3 Unrestricted remedies 12
5.4 Restricted remedies 12
6. FURTHER ASSURANCES 13
6.1 Further assurances 13
6.2 Legal or statutory mortgage 13
6.3 Title documents 13
7. APPOINTMENT OF CONTROLLER 13
7.1 Appointment 13
7.2 Agent of Mortgagor 14
7.3 Receiver's powers 14
7.4 Receiver appointed after commencement of Liquidation 16
7.5 Powers exercisable by the Mortgagee 17
7.6 Withdrawal 17
8. POWER OF ATTORNEY 17
9. COMPLETION OF BLANK SECURITIES 17
10. PERFORMANCE OF XXXXXXXXX'S OBLIGATIONS 18
11. INSPECTION 18
12. STATUTORY POWERS 18
12.1 Powers in augmentation 18
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12.2 Leasing 18
12.3 Notice not required 18
13. APPLICATION OF MONEY RECEIVED 19
13.1 Order 19
13.2 Money actually received 19
13.3 Amounts contingently due 20
13.4 Notice of subsequent Security Interests 20
13.5 Conversion of currencies on application 20
14. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY 20
15. PROTECTION OF MORTGAGEES, CONTROLLERS AND ATTORNEYS 21
16. PROTECTION OF THIRD PARTIES 21
16.1 No enquiry 21
16.2 Receipt 22
17. INTEREST ON OVERDUE AMOUNTS 22
17.1 Accrual and payment 22
17.2 Rate 22
18. CERTIFICATE AS TO AMOUNT OF SECURED MONEY 22
19. SURVIVAL OF OBLIGATIONS 22
20. CONTINUING SECURITY 23
21. OTHER SECURITIES 23
22. XXXXXXX, REMEDIES CUMULATIVE 23
23. CONSENTS AND OPINION 23
24. SEVERABILITY OF PROVISIONS 23
25. MORATORIUM LEGISLATION 24
26. ASSIGNMENTS 24
27. NOTICES 24
28. AUTHORISED OFFICERS 24
29. GOVERNING LAW AND JURISDICTION 25
30. THIRD PARTY PROVISIONS 25
30.1 Security not to be affected 25
30.2 Principal and independent obligation 26
30.3 No marshalling 26
30.4 No competition 26
30.5 Suspense account 26
30.6 Rescission of payment 27
30.7 Variation 27
30.8 Indemnity 27
31. SET-OFF 28
32. COUNTERPARTS 28
33. ACKNOWLEDGMENT BY XXXXXXXXX 28
SCHEDULE 29
Notice Details 29
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx[LOGO]
DATE 19 OCTOBER 2006
PARTIES
1. LIHIR AUSTRALIAN HOLDINGS PTY LIMITED ACN 121 554 443 of Level 9, 000
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx (the Mortgagor).
2. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522,
having an office at Level 17, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
(the MORTGAGEE).
RECITALS
A From time to time the Mortgagor may wish the Mortgagee to provide
financial accommodation to or for the account of the Mortgagor.
B This Deed is given to secure repayment of that accommodation, among
other things.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AGENT means any person appointed as the Mortgagee's agent under this Deed
or any Collateral Security.
ANZ NOMINEES means ANZ Nominees Limited ABN 96 005 357 568 and includes:
(a) any body of which ANZ Nominees is a successor or transferee;
(b) if ANZ Nominees is reconstituted or amalgamated with any body - the
new person formed; and
(c) a person to which some or all of ANZ Nominees' business is
transferred.
ANZ NOMINEES' COSTS means any fees, costs and expenses which ANZ Nominees
has incurred or will incur:
(a) in transferring and maintaining the Mortgaged Property;
(b) in connection with investigating, protecting or defending the title
to the Mortgaged Property;
(c) in connection with any transaction under or relating to this Deed or
the Mortgaged Property; or
(d) as a result of exercising, trying to exercise or not exercising its
rights under a law or under this charge,
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and they include:
(e) ANZ Nominees' charges and commissions;
(f) any stamp duty, financial institutions duty, bank account debit tax
or other tax or duty on this Deed or on any transaction under or
relating to this Deed or the Mortgaged Property;
(g) the fees and expenses of any consultant engaged by ANZ Nominees for
any purpose relating to this Deed or the Mortgaged Property;
(h) the cost of time spent by any ANZ Nominees' officer; and
(i) ANZ Nominees' legal costs on a full indemnity basis.
ATTORNEY means any attorney appointed under this Deed or any Collateral
Security.
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 Mortgagor, any director or secretary, or any
person from time to time nominated as an Authorised Officer by the
Mortgagor by a notice to the Mortgagee accompanied by certified
copies of signatures of all new persons so appointed; and
(b) in respect of the Mortgagee, any person whose title or acting title
includes the word Chief, Counsel, Executive, Head, Manager, Director
or President or cognate expressions, or any secretary or director.
CHESS SPONSORSHIP COLLATERAL AGREEMENT means an agreement between the
Mortgagee, the Mortgagor and a broker participant or non-broker
participant acceptable to the Mortgagee (which would include ANZ Nominees)
in relation to dealing with the Shares issued pursuant to the Private
Placement and the Merger.
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security for
any Secured Money.
CONTROLLER means a Receiver or Agent.
FACILITY AGREEMENT means the Facility Agreement dated on or about the date
of this Deed between the Mortgagor and the Mortgagee.
FINANCE DOCUMENT means:
(a) this Deed;
(b) the Facility Agreement;
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(c) any Collateral Security;
(d) the CHESS Sponsorship Collated Agreement;
(e) the Tranche A CHESS Agreement; and
(f) a document or agreement entered into or provided under or in
connection with, or for the purpose of amending or novating, any of
the above.
It includes a written undertaking by or to a party or its lawyers under or
in relation to any of the above.
INTELLECTUAL PROPERTY means any intellectual or industrial property
including:
(a) a patent, trade mark or service mark, copyright, registered design,
trade secret or confidential information; or
(b) a licence or other right to use or to grant the use of any of the
above or to be the registered proprietor or user of any of the
above.
LEASE means an agreement under which an asset may be used, exploited,
operated or managed by a person other than the owner. It includes a lease,
licence, charter, hire purchase or hiring arrangement.
LIQUIDATION includes receivership or other appointment of a controller,
deregistration, compromise, deed of arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for
the benefit of creditors, arrangement or compromise with creditors or
bankruptcy.
MARKETABLE SECURITY has the meaning given to securities in s92(3) of the
Corporations Act 2001, but also includes:
(a) an undertaking referred to in the exceptions in paragraph (a), (b)
and (d) of the definition of debenture in the Corporations Act 2001;
(b) a unit or other interest in a trust or partnership;
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security, whether
issued or unissued including any of the above.
MERGER means the merger proposed in the Merger Implementation Agreement.
MERGER IMPLEMENTATION AGREEMENT means the agreement between the Mortgagor
and the Target Company relating to the implementation of the merger
proposed between the Mortgagor and the Target Company, in the form of the
draft last given to the Mortgagee prior to the execution of this Deed, or
any other basis of merger relating to the Target Company which is
acceptable to the Mortgagee.
MORTGAGED PROPERTY means the property mortgaged or charged under this Deed
or any Collateral Security.
NOMINATED ACCOUNT means any bank account opened by the Mortgagor before or
after the execution of this Deed at the request of the Mortgagee, at a
bank and branch of the Mortgagee specified by the Mortgagee and, if no
such account is specified, an account with the Mortgagee.
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POWER means a power, right, authority, discretion or remedy which is
conferred on the Mortgagee, any Controller or any Attorney:
(a) by this Deed or any Collateral Security; or
(b) by law in relation to this Deed or any Collateral Security.
PRIVATE PLACEMENT means the purchase of 149 million newly issued fully
paid up ordinary Shares in the Target Company by the Mortgagor pursuant to
the Share Subscription Agreement.
RECEIVER means a receiver or receiver and manager appointed under this
Deed or any Collateral Security.
SECURED MONEY means all money which the Mortgagor (whether alone or not)
is or at any time may become actually or contingently liable to pay to or
for the account of the Mortgagee (whether alone or not) for any reason
whatever under or in connection with a Finance Document.
It includes money by way of principal, interest, fees, costs, indemnity,
Guarantee, charges, duties or expenses, or payment of liquidated or
unliquidated damages under or in connection with a Finance Document, or as
a result of a breach of or default under or in connection with, a Finance
Document.
It also includes money that the Mortgagor would have been liable to pay
but for its Liquidation, or some other reason.
SHARE means any share in the Target Company.
SHARE SUBSCRIPTION AGREEMENT means the agreement relating to the
subscription for Shares by the Mortgagor, in the form of the last draft
given to the Mortgagee prior to the execution of this Deed, or any other
agreement relating to the subscription of Shares by the Mortgagor in form
and substance acceptable to the Mortgagee.
TARGET COMPANY means Ballarat Goldfields NL ACN 006 245 441
TAX Includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a Government
Agency, and any related interest, penalty, charge, fee or other amount.
TRANCHE A CHESS AGREEMENT means an undertaking by the Target Company in a
form acceptable to the Mortgagee that all Shares to be issued under or
pursuant to the Private Placement will be immediately listed in CHESS on
the date of issue with a broker participant or non-broker participant
acceptable to the Mortgagee (which would include ANZ Nominees).
UNCERTIFICATED SECURITY means a share or security which, for the purposes
of trading on the Australian Stock Exchange, is an Uncertificated security
and includes a share or other security which is:
(a) registered in a subregister maintained by ASX Settlement and
Transfer Corporation Pty Ltd under CHESS;
(b) registered in a subregister maintained by the issuer of the share or
other security under CHESS; or
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(c) registered under the Flexible Accelerated Security Transfer System
established under the business rules and listing rules of Australian
Stock Exchange Limited.
UNPAID CAPITAL means any uncalled or unpaid share capital or premiums of
the Mortgagor.
1.2 FACILITY AGREEMENT DEFINITIONS
Definitions in the Facility Agreement apply in this Deed unless the
context requires otherwise or the relevant term is defined in this Deed.
1.3 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 clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Deed.
(f) A reference to a party to this Deed or another agreement or document
includes the party's successors and permitted substitutes or
assigns.
(g) A reference to legislation or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) The meaning of terms is not limited by specific examples introduced
by INCLUDING, or for example, or similar expressions.
(k) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset (including
Intellectual Property) and any right, interest, revenue or benefit
in, under or derived from the property or asset.
(1) An Event of Default SUBSISTS until it has been waived in writing by
the Mortgagee or cured to the satisfaction of the Mortgagee (acting
reasonably) before action is taken in respect of it.
(m) A reference to an amount for which a person is CONTINGENTLY LIABLE
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
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(n) Nothing in this Deed is to be interpreted against a party on the
ground that the party put it forward.
1.4 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
(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 Deed.
2. CHARGE
2.1 CHARGE
(a) The Mortgagor charges to the Mortgagee, all its present and future
assets and undertaking including Unpaid Capital.
(b) The charge secures the due and punctual payment of the Secured
Money.
(c) The charge is given in consideration of the Mortgagee entering the
Finance Documents, providing or continuing advances or financial
accommodation from time to time, or both, and for other valuable
consideration received.
2.2 PROSPECTIVE LIABILITY
(a) Subject to clause 2.3 (INCREASE IN PROSPECTIVE LIABILITY), for the
purpose of the Corporations Act 2001 the maximum prospective
liability (as defined in the Corporations Act 2001) secured by this
Deed is AS 100,000,000 or its equivalent but this clause does not
limit the amount of actual liability at any time secured by or
recoverable under this Deed.
(b) In addition to that prospective liability, this Deed also secures a
prospective liability (as defined in the Corporations Act 2001) of
an unspecified amount, being all other money which may become due or
owing or payable to the Mortgagee under this Deed and, except for
the purposes of s282(3) of the Corporations Act 2001, this Deed is
not in any way limited to the amount in paragraph (a).
(c) The nature of that prospective liability is advances, interest,
fees, costs, indemnities and other amounts included in the
definition of Secured Money.
(d) Despite any other provision of this Deed the total principal amount
recoverable under this Deed is limited to AS 100,000,000. In this
clause PRINCIPAL AMOUNT includes amounts payable with respect to any
principal amount under or in respect of any Guarantee or indemnity.
It excludes amounts of or with respect to interest, Tax, fees,
charges, costs and expenses and any amount payable under clause 14
(OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY) and any similar
provision.
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2.3 INCREASE IN PROSPECTIVE LIABILITY
From time to time, the Mortgagee may lodge a notice under s268(2) of the
Corporations Act 2001 on behalf of the Mortgagor specifying an increase in
the maximum prospective liability secured by this Deed. From the date of
lodgement the sum specified in clause 2.2 (PROSPECTIVE LIABILITY) will be
taken to be varied to the sum specified in the notice.
3. NATURE OF CHARGE
3.1 PRIORITY
The charge is a first charge and takes priority over all other Security
Interests except as mandatorily preferred by law.
3.2 NATURE OF CHARGE
The charge operates:
(a) as a fixed charge as regards al! present and future:
(i) freehold and leasehold property or any other interest in real
property;
(ii) Unpaid Capital;
(iii) machinery (other than stock-in-trade), plant or any item of
equipment;
(iv) insurance policies, and all the proceeds of those policies;
(v) books of account, registers, minute books, statements,
invoices, accounting and other records (including those
recorded electronically) and all software;
(vi) interests in any partnership;
(vii) Intellectual Property and goodwill;
(viii) Marketable Securities including, without limitation, Shares
acquired by the Mortgagor in the Target Company;
(ix) Authorisations;
(x) documents and agreements of any kind;
(xi) book and other debts and the proceeds of those debts (other
than proceeds which may be dealt with by the Mortgagor under
clause 3.7(a) (DEALING WITH PROCEEDS));
(xii) accounts opened in the name of the Mortgagor or for the
benefit of the Mortgagor under any Finance Document (including
any Nominated Accounts);
(xiii) other assets that are not acquired for disposal in the
ordinary course of the Mortgagor's business,
and all right, title and interest of the Mortgagor in, under or
derived from, the above (except as expressly provided); and
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(b) subject to clause 3.5 (CRYSTALLISATION), as a floating charge only
as regards all other assets charged.
All sub-paragraphs of paragraph (a) are to be construed independently.
None limits the generality of any other.
3.3 DEALING WITH MORTGAGED PROPERTY
(a) Except with the prior written consent of the Mortgagee or as
expressly permitted in any Finance Document, and subject to clause
3.4 (ENTER INTO CHESS SPONSORSHIP COLLATERAL AGREEMENT), the
Mortgagor shall not:
(i) create or allow to exist any Security Interest over any
Mortgaged Property; or
(ii) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
(C) part with possession of,
any Mortgaged Property, except, subject to the Finance
Documents, any disposal of or dealing with any asset for the
time being subject to the floating charge in the ordinary
course of its ordinary business.
(b) Where by law a mortgagee may not restrict the creation of any
Security Interest- over an asset ranking after the charge created by
this Deed, paragraph (a) will not restrict that creation, but the
Mortgagor shall ensure that before that Security Interest is created
the holder of that Security Interest enters into a deed of priority
in form and substance specified by the Mortgagee.
3.4 ENTER INTO CHESS SPONSORSHIP COLLATERAL AGREEMENT
(a) The Mortgagor shall enter into, and shall cause a broker participant
or a non-broker participant to enter into, the CHESS Sponsorship
Collateral Agreement with the Mortgagee.
(b) The Mortgagor must not deal whatsoever with Shares except as
permitted under the CHESS Sponsorship Collateral Agreement.
3.5 CRYSTALLISATION
The floating charge created by the Mortgagor under clause 2.1 (a) and
referred to in clause 3.2 (NATURE OF CHARGE) will automatically and
immediately crystallise and operate as a fixed charge:
(a) in respect of any asset:
(i) on notice to the Mortgagor from the Mortgagee (which it may
only give after the occurrence of an Event of Default while
that Event of Default subsists);
(ii) if without the prior written consent of the Mortgagee, the
Mortgagor:
(A) creates or allows any Security Interest over;
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(B) sells, Leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Finance Document, or agrees or
attempts to do so or takes any step towards doing so;
(iii) on any step being taken with a view to levying or enforcing
any distress, attachment or other execution on that asset or
to enforcing any Security Interest in respect of that asset;
(iv) on the Commissioner of Taxation or his delegate or successor
signing a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936
(Cth);
(B) s260-5 of Schedule 1 of the Taxation Administration Act
1953 (Cth); or
(C) any similar legislation,
which may affect that asset; or
(v) on a Government Agency taking any step which may result in an
amount of Tax or an amount owing to a Government Agency
ranking ahead of the floating charge with respect to that
asset; or
(b) in respect of all the Mortgaged Property:
(i) if an order is made or a resolution is passed for the winding
up of the Mortgagor; or
(ii) on the security constituted by this Deed being enforced in any
way.
Except where expressly stated, no notice or action by the Mortgagee
is necessary for the charge to crystallise.
3.6 DE-CRYSTALLISATION
By notice to the Mortgagor, the Mortgagee may at any time release from the
fixed charge any asset which has become subject to a fixed charge under
clause 3.5 (CRYSTALLISATION). That asset will then again be subject to the
floating charge and to the further operation of that clause.
3.7 DEALING WITH PROCEEDS
(a) Subject to the Finance Documents, the Mortgagor shall ensure that:
(i) all proceeds of any book or other debt; and
(ii) except as otherwise provided in clause 9.2 of the Facility
Agreement, all the proceeds of any disposal of or other
dealing with any asset the subject of a fixed charge, which
are not immediately applied in acquiring another similar asset
or in payment of the Secured Money or moneys ranking ahead of
the Secured Money,
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are paid immediately into the Nominated Account or, if there is
none, a separate account of which the Mortgagor has notified the
Mortgagee.
(b) Subject to the Finance Documents, so long as no Event of Default
subsists the Mortgagor may withdraw from the Nominated Account
amounts equal to all the proceeds of any book or other debt paid
into that account and deal with it as it thinks fit where:
(i) the book or other debt arose in the ordinary course of its
business;
(ii) the proceeds do not arise from the disposal of, Lease of, or
grant of any interest in, an asset the subject of the fixed
charge;
(iii) the proceeds are received before the floating charge
crystallises in respect of all the Mortgaged Property and
before anything described in clause 3.5(a) (CRYSTALLISATION)
occurs with respect to the debt or those proceeds; and
(iv) no Finance Document provides otherwise.
(c) At any time while an Event of Default subsists:
(i) if the Mortgagee requires, Authorised Officers of the
Mortgagee will be the only signatories to the Nominated
Account or the separate account referred to in paragraph (a);
and
(ii) no withdrawals may be made from it without the approval of the
Mortgagee.
(d) The Mortgagor shall give notices and directions necessary or
requested by the Mortgagee to ensure paragraphs (a) and (c) are
complied with.
(e) Failure by the Mortgagee to require the Mortgagor to comply with
this clause will not constitute a waiver.
(f) Without prejudice to paragraph (e), if for any reason the Mortgagee
waives or is taken to have waived the requirements of this clause,
the charge created by this Deed will still operate as a fixed charge
in respect of the relevant debt or other asset which gives rise to
the relevant moneys or proceeds.
(g) In this clause PROCEEDS includes moneys or consideration payable,
whether or not received by the Mortgagor.
3.8 UNCERTIFICATED SECURITIES
Insofar as any of the Mortgaged Property is Uncertificated Securities, the
Mortgagor shall ensure that:
(a) the Uncertificated Securities are registered in the Mortgagor's name
and that the Mortgagor is the owner of the Uncertificated Securities
free from any interest or claim of any other person;
(b) the Mortgagor is able to charge the Uncertificated Securities to the
Mortgagee under this Deed;
(c) the Mortgagor:
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(i) enters into a Sponsorship Agreement with, and arranges for the
Uncertificated Securities to be sponsored by, ANZ Nominees or
another person acceptable to the Mortgagee for the purpose of
protecting the Mortgagee's rights under this Deed; or
(ii) provides an undertaking from the Mortgagor's controlling
participant whereby the controlling participant:
(A) acknowledges the existence of this Deed;
(B) undertakes not to initiate dealings in the
Uncertificated Securities (including the transfer of the
Uncertificated Securities to another controlling
participant) without having first obtained the consent
of the Mortgagee; and
(C) undertakes that if this Deed becomes enforceable, the
controlling participant will act on the Mortgagee's
instructions and not on the instructions of the
Mortgagor, and
(d) the Mortgagor pays ANZ Nominee's Costs or, where applicable, the
costs and expenses of that other person.
4. UNDERTAKINGS
(a) The Mortgagor shall duly and punctually pay the Secured Money in
accordance with the Finance Documents. After an Event of Default it
shall pay all Secured Money on demand if that demand is made while
the Event of Default is subsisting.
(b) The Mortgagor shall ensure that no Event of Default occurs. Without
affecting the liability of the Mortgagor or the Powers of the
Mortgagee in any other respect (including where a breach of this
paragraph is also a breach of another provision), the Mortgagor is
not liable in damages for a breach of this clause 4(b) but the
Mortgagee may exercise its Powers following the breach.
5. LIMITED RECOURSE
5.1 LIMIT AND RELEASE
(a) (LIMIT) Subject to clause 5.2 (EXCEPTIONS) and subject to paragaph
(c), but despite any other provision of this Deed, the liability of
the Mortgagor to the Mortgagee under or in connection with this Deed
is limited to the total amount available to the Mortgagee as a
result of a realisation of the Mortgaged Property in accordance with
this Deed (after payment of enforcement costs etc).
(b) (RELEASE) The Mortgagee waives all claims (including in respect of
deceptive and misleading conduct) it may have against the Mortgagor
under or in connection with this Deed in respect of which the
Mortgagor is not liable under paragraph (a).
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(c) (DURATION OF LIMIT) Despite anything else in this clause 5:
(i) the limit referred to in paragraph (a) will only apply until
such time as the Mortgagor acquires or becomes unconditionally
entitled to acquire Shares pursuant to the Merger
Implementation Agreement; and
(ii) after that dates, this clause 5 will be taken to no longer
apply to this Deed.
5.2 EXCEPTIONS
(a) Nothing in clause 5.1 (LIMIT AND RELEASE) limits the liability of
the Mortgagor in respect of any loss, cost or expense suffered or
incurred by the Mortgagee arising from the Mortgagor's fraud or
negligence under or in connection with this Deed.
(b) Failure by the Mortgagor to pay all or any part of any amount due
under or in connection with this Deed does not of itself constitute
fraud or negligence on its part.
5.3 UNRESTRICTED REMEDIES
(a) (CHARGES AND GUARANTEES) Subject to paragraph (b), nothing in clause
5.1 (LIMIT AND RELEASE) limits the Mortgagee in:
(i) exercising its rights or powers under this Deed:
(ii) obtaining an injunction or other order to restrain any breach
of any Finance Document by any party; or
(iii) obtaining declaratory relief.
(b) (LIMITED AGENCY) In exercising any right, power or remedy under this
Deed, neither the Mortgagee nor any receiver, receiver and manager,
agent or attorney appointed under this Deed shall incur, or have the
authority to incur, any liability on behalf of or for the account of
the Mortgagor except a liability which is itself subject to the
limitation in clause 5.1 (LIMIT AND RELEASE).
(c) (SECURED MONEY) For the purpose of determining the liability of the
Mortgagor in relation to the Secured Money and the amount of Secured
Money recoverable under any Security, the limit on the liability of
the Mortgagor under clause 5.1 (LIMIT AND RELEASE) will be
disregarded.
5.4 RESTRICTED REMEDIES
Except as provided in clause 5.1(c) (DURATION OF LIMIT) and clause 5.3
(UNRESTRICTED REMEDIES), the Mortgagee shall not, in relation to any
liability for which the Mortgagor is not liable under clause 5.1 (LIMIT
AND RELEASE):
(a) (JUDGMENT) obtain a judgment for the payment of money or damages by
the Mortgagor;
(b) (STATUTORY DEMAND) issue any demand under s549E(1) of the
Corporations Act 2001 (or any analogous provision under any other
law) against the Mortgagor;
(c) (WINDING UP) apply for the winding up of the Mortgagor;
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(d) (EXECUTION) levy or enforce any distress or other execution to, on
or against any asset of the Mortgagor;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court of a
receiver to any of the assets of the Mortgagor; and
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any set-off
or counterclaim against the Mortgagor,
or take proceedings for any of the above and the Mortgagee waives its
rights in respect of those applications and proceedings.
6. FURTHER ASSURANCES
6.1 FURTHER ASSURANCES
Whenever the Mortgagee requests the Mortgagor to do anything:
(a) for more satisfactorily mortgaging, assuring or securing the
Mortgaged Property to the Mortgagee in a manner not inconsistent
with this Deed or any Collateral Security; or
(b) for aiding in the execution or exercise of any Power,
the Mortgagor shall do it immediately at its own cost. It may include
registering this Deed, the execution or registering of any other document
or agreement, the delivery of documents or evidence of title and the
execution and delivery of blank transfers.
6.2 LEGAL OR STATUTORY MORTGAGE
Without limiting clause 6.1 (FURTHER ASSURANCES), whenever requested by
the Mortgagee, the Mortgagor shall execute a legal or statutory mortgage
over any of the Mortgaged Property. The mortgage must be in favour of the
Mortgagee, secure the Secured Money, and be in the form and substance
required by the Mortgagee. The Mortgagor shall use its best endeavours to
register the mortgage,
6.3 TITLE DOCUMENTS
Without limiting clause 6.1 (FURTHER ASSURANCES), the Mortgagor shall
deliver to the Mortgagee immediately all documents of title to interests
in real property or Marketable Securities received by it, other than any
such document held under another Security Interest affecting the Mortgaged
Property with the written consent of the Mortgagee.
7. APPOINTMENT OF CONTROLLER
7.1 APPOINTMENT
To the extent permitted by law, at any time after an Event of Default
(whilst it is subsisting) the Mortgagee or any Authorised Officer of the
Mortgagee may:
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(a) appoint any person or any two or more persons jointly and/or
severally to be a receiver or receiver and manager of ail or any of
the Mortgaged Property or to act as agent of the Mortgagee to
exercise any of the Mortgagee's Powers;
(b) remove any Controller;
(c) appoint another Controller in addition to or in place of any
Controller; and
(d) fix or xxxx the remuneration of any Controller.
An appointment may be made on any terms the Mortgagee thinks fit and
whether or not the Mortgagee at any time has taken, or entered into
possession of, any of the Mortgaged Property. Without limiting any other
method of appointment permitted by law, an appointment may be made by an
instrument signed by an Authorised Officer of the Mortgagee or by, or on
behalf of, the Mortgagee.
7.2 AGENT OF MORTGAGOR
Subject to clause 7.4 (RECEIVER APPOINTED AFTER COMMENCEMENT OF
LIQUIDATION), every Receiver is the agent of the Mortgagor. The Mortgagor
alone is responsible for a Receiver's acts and defaults.
7.3 RECEIVER'S POWERS
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of appointment, every Receiver has
power to do anything in respect of the Mortgaged Property that an absolute
beneficial legal owner of the property could do. That includes power to do
any of the following, in each case on such terms as the Receiver thinks
fit.
(a) (TAKE POSSESSION AND MANAGE) Take possession of, get in and manage
the Mortgaged Property.
(b) (SELL)
(i) Sell any of the Mortgaged Property (whether or not the
Receiver has taken possession).
(ii) Without limitation any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of payment of
purchase money or otherwise;
(E) with power to allow the whole or any part of the
purchase money to be deferred (whether with or without
any security); and
(F) whether or not in conjunction with the sale of any
property by any person.
(c) (OPTIONS) Grant or take put or call options.
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(d) (LEASE) Lease any of the Mortgaged Property for any term (whether or
not the Receiver has taken possession).
(e) (CARRY ON BUSINESS) Carry on or concur in carrying on any business.
(f) (ACQUIRE ANY ASSET) Acquire in any manner any asset (including to
take it on Lease). After that acquisition it will be included in the
Mortgaged Property.
(g) (MAINTAIN AND IMPROVE THE MORTGAGED PROPERTY) Anything to maintain,
protect or improve any of the Mortgaged Property or to obtain income
or returns from any of the Mortgaged Property (including by
development, sub-division, construction, alteration, or repair, of
any property or by pulling down, dismantling or scrapping, any
property).
(h) (RAISE MONEY)
(i) Borrow or raise any money from the Mortgagee or any other
person approved by the Mortgagee;
(ii) give Guarantees; and
(iii) grant any Security Interest over any of the Mortgaged Property
to secure that money or Guarantee. That Security Interest may
rank in priority to or equally with or after, the security
created by this Deed. It may be given in the name of the
Mortgagor or otherwise.
(i) (LEND) Lend money or provide financial accommodation.
(j) (SEVER FIXTURES) Sever fixtures.
(k) (EMPLOY) Employ or discharge any person as employee, contractor,
agent, professional adviser, consultant or auctioneer for any
purpose and at any remuneration and on any other terms as the
Receiver thinks fit.
(1) (COMPROMISE) Make or accept any arrangement or compromise.
(m) (GIVE RECEIPTS) Give receipts for money and other assets.
(n) (AUTHORISATION) Apply for, take up, transfer or surrender any
Authorisation or any variation of any Authorisation.
(o) (PERFORM AND ENFORCE AGREEMENTS)
(i) Perform or enforce;
(ii) exercise or refrain from exercising the Mortgagor's rights and
powers under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered into in
exercise of any Power.
(p) (VARY AND TERMINATE AGREEMENTS) Vary, rescind or terminate any
document or agreement (including surrender or accept the surrender
of Leases).
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(q) (TAKE INSOLVENCY PROCEEDINGS) Make debtors bankrupt, wind up
companies and do any thing in relation to any actual or contemplated
Liquidation (including attend and vote at meetings of creditors and
appointing proxies for meetings).
(r) (TAKE PROCEEDINGS) Commence, defend, conduct, settle, discontinue or
compromise proceedings in the name of the Mortgagor or otherwise.
(s) (EXECUTE DOCUMENTS) Enter into and execute documents or agreements
on behalf of the Receiver or the Mortgagor. This includes using the
Mortgagor's seal and signing, accepting and endorsing cheques,
promissory notes and bills of exchange.
(t) (OPERATE BANK ACCOUNTS) Operate any bank account comprising part of
the Mortgaged Property and open and operate any further bank
account.
(u) (SURRENDER MORTGAGED PROPERTY) Surrender, release or transfer any of
the Mortgaged Property or exchange it with any person for other
property.
(v) (PROMOTE COMPANIES) Promote the formation of companies with a view
to purchasing any of the Mortgaged Property or assuming the
obligations of the Mortgagor or otherwise.
(w) (DELEGATE) Delegate to any person approved by the Mortgagee any
Powers conferred on the Receiver (including delegation).
(x) (HAVE ACCESS) Have access to and make use of the premises, plant,
equipment, and records and accounting and other services of the
Mortgagor and the services of its staff.
(y) (VOTE) Exercise any voting or other rights or powers in respect of
any of the Mortgaged Property and do anything in relation to
Marketable Securities.
(z) (OTHER OUTGOINGS) Pay any outgoing or indebtedness of the Mortgagor
or any other person.
(aa) (SECURITY INTERESTS) Redeem any Security Interest or acquire it and
any debt secured by it.
(bb) (MAKE CALLS) Make calls on the members of the Mortgagor in respect
of any Unpaid Capital.
(cc) (INSURE) Take out insurance and make, enforce, compromise and settle
all claims in respect of insurance.
(dd) (INCIDENTAL POWER) Do anything incidental to the exercise of any
other Power.
All of the above paragraphs are to be construed independently. None limits
the generality of any other.
7.4 RECEIVER APPOINTED AFTER COMMENCEMENT OF LIQUIDATION
The power to appoint a Receiver may be exercised even if:
(a) an order is made or a resolution is passed for the Liquidation of
the Mortgagor; and
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(b) a receiver or receiver and manager appointed in those circumstances
may not, or may not in some respects, act as the agent of the
Mortgagor.
7.5 POWERS EXERCISABLE BY THE MORTGAGEE
Whether or not a Receiver has been appointed, to the extent permitted by
law the Mortgagee may exercise any Power of a Receiver at any time after
an Event of Default (whether or not it is continuing) in addition to any
Power of the Mortgagee and without giving notice. It may exercise those
Powers and its Powers without taking possession or being liable as
mortgagee in possession. Without limitation it may exercise those Powers
and its Powers directly or through one or more agents. In the latter event
anything done or incurred by an agent will be taken to be done or incurred
by the Mortgagee.
7.6 WITHDRAWAL
The Mortgagee may give up possession of any Mortgaged Property and
withdraw any receivership at any time.
8. POWER OF ATTORNEY
(a) For valuable consideration and by way of security the Mortgagor
irrevocably appoints each Authorised Officer of the Mortgagee
severally its attorney to do anything which:
(i) the Mortgagor is obliged, but has failed, to do under or in
relation to any Finance Document; or
(ii) the Mortgagee or any Receiver is authorised or empowered to do
under any Finance Document or any law, but only at the times
that the Mortgagee or that Receiver (if a Receiver had been
appointed) would have been able to do it.
(b) Without limitation, the Attorney may at any time:
(i) do anything which in the opinion of the Mortgagee or the
Attorney is necessary or expedient to secure, preserve,
perfect or give effect to the security contained in this Deed
(including anything under clause 9 (COMPLETION OF BLANK
SECURITIES) or 10 (PERFORMANCE OF MORTGAGOR'S OBLIGATIONS))
and for this purpose, without limitation, the Attorney may
execute a legal mortgage, transfer, assignment and other
assurance in favour of the Mortgagee; and
(ii) delegate the Attorney's powers (including delegation).
(c) No Attorney appointed under this Deed may act, nor has power to act,
inconsistently with this Deed or any other Finance Document.
9. COMPLETION OF BLANK SECURITIES
The Mortgagee, any Authorised Officer of the Mortgagee, any Receiver or
any Attorney may complete any document executed by or on behalf of the
Mortgagor and deposited with the
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Mortgagee pursuant to this Deed. It may complete it in favour of the
Mortgagee, any appointee of the Mortgagee or any purchaser.
10. PERFORMANCE OF XXXXXXXXX'S OBLIGATIONS
If at any time the Mortgagor fails duly to perform any obligation in any
Finance Document (and any cure period in relation to that obligation has
expired), the Mortgagee or any person it authorises may do anything which
in its opinion is necessary or expedient to make good or to attempt to
make good that failure to its satisfaction.
11. INSPECTION
The Mortgagee or any person it authorises may inspect and copy the records
of the Mortgagor related to the Mortgaged Property and inspect the
premises of the Mortgagor and its Subsidiaries and inspect the Mortgaged
Property at any time during normal business hours and on reasonable notice
or while an Event of Default subsists. The Mortgagor will do everything in
its power to assist that inspection and copying and ensure that its
employees and officers and its Subsidiaries and their employees and
officers do the same.
12. STATUTORY POWERS
12.1 POWERS IN AUGMENTATION
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this Deed or any
Collateral Security;
(b) (to the extent permitted by law) may be exercised by the Mortgagee
immediately an Event of Default occurs and at any time subsequently;
and
(c) are excluded or varied only so far as they are inconsistent with the
express terms of this Deed or any Collateral Security.
12.2 LEASING
The Mortgagor may not surrender any Lease, accept any surrender of Lease
or to exercise any power of Leasing conferred on the Mortgagor by law
except as expressly permitted or contemplated in any Finance Document.
12.3 NOTICE NOT REQUIRED
To the extent permitted by law (but without prejudice to any express
requirement in a Finance Document):
(a) the Mortgagor dispenses with any notice or lapse of time required by
law before enforcing this Deed or any Collateral Security or
exercising any Power; and
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(b) without limitation the Mortgagor agrees that:
(i) the Mortgagee is not required to give notice to any person
before enforcement or exercise;
(ii) any law requiring the giving of notice or the compliance with
a procedure or the lapse of time before enforcement or
exercise is excluded; and
(iii) where a law which cannot be excluded requires a period of
notice to be given but allows the period to be specified or
changed, that period is one day.
13. APPLICATION OF MONEY RECEIVED
13.1 ORDER
To the extent permitted by law, all moneys received by a Controller, an
Attorney or the Mortgagee under or by virtue of this Deed will be applied
in the manner and order determined by the Mortgagee. If the Mortgagee does
not make a determination, the following order will apply.
(a) First: all costs, charges and expenses of the Mortgagee, any
Controller or any Attorney which are incurred in or are incidental
to the exercise or performance or attempted exercise or performance
of a Power or otherwise in relation to this Deed or any Collateral
Security.
(b) Second: any other outgoings which the Controller, Attorney or the
Mortgagee thinks fit to pay.
(c) Third: the Controller's remuneration.
(d) Fourth: to each holder of a Security Interest of which the Mortgagee
is aware and which has priority over this Deed in relation to the
relevant Mortgaged Property, to the extent, and in order, of
priority.
(e) Fifth: to the Mortgagee towards satisfaction of the Secured Money.
(f) Sixth: to each holder of a Security Interest of which the Mortgagee
is aware and which ranks after this Deed in relation to the relevant
Mortgaged Property, to the extent, and in order, of priority.
(g) Seventh: the surplus (if any) belongs to the Mortgagor.
The surplus will not carry interest. If it pays the surplus to the credit
of an account in the name of the Mortgagor with any bank carrying on
business in Australia, the Controller, Mortgagee or Attorney (as the case
may be) will be under no further liability in respect of it.
13.2 MONEY ACTUALLY RECEIVED
(a) In applying any moneys towards satisfaction of the Secured Money the
Mortgagor will be credited only with the moneys available for that
purpose which is actually received by the Mortgagee. The credit will
date from the time of receipt.
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(b) That money will be appropriated as between principal, interest and
other amounts due as the Mortgagee determines. Any such
appropriation by the Mortgagee will override any appropriation made
by the Mortgagor.
13.3 AMOUNTS CONTINGENTLY DUE
If any of the Secured Money is contingently owing to the Mortgagee at the
time of a distribution of an amount under clause 13.1 (ORDER), the
Mortgagee may retain any of that amount. If it does, it shall place the
amount retained on short term interest bearing deposit until the relevant
Secured Money becomes actually due or ceases to be contingently owing, and
the Mortgagee shall then apply the balance of the amount retained
(together with interest earned on the deposit) in accordance with clause
13.1 (ORDER).
13.4 NOTICE OF SUBSEQUENT SECURITY INTERESTS
(a) If the Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any Mortgaged Property it may
open a separate account in the name of the Mortgagor in its books.
(b) If the Mortgagee does not open a new account it will be treated as
if it had done so at the time it received actual or constructive
notice of the Security Interest.
(c) From the time the new account is opened or is taken to be opened:
(i) all advances and accommodation made available by the Mortgagee
to the Mortgagor;
(ii) all payments and repayments made by the Mortgagor to the
Mortgagee; and
(iii) moneys to be applied towards the Secured Money under clause
13.l(e) (ORDER),
will be or will be taken to be debited or credited, as appropriate,
to the new account. Payments, repayments and other moneys will only
be applied in reduction of other Secured Money to the extent that
there is no debit balance in that account.
13.5 CONVERSION OF CURRENCIES ON APPLICATION
For the purpose of making an application under clause 13.1 (ORDER) the
Mortgagee, any Controller or any Attorney may purchase one currency with
another, whether or not through an intermediate currency, whether spot or
forward, in the manner and at the time it thinks fit.
14. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY
--------------------------------------------------------------------------------
(a) The Mortgagee, any Controller or any Attorney may rely on the
certificate of a holder of another Security Interest affecting or
purporting to affect the Mortgaged Property as to the amount and
property secured by the Security Interest.
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(b) The Mortgagee, at any time whilst an Event of Default subsists or
any Controller may pay or agree to pay at any time the amount
certified by the holder of a Security Interest or purported Security
Interest to be necessary to discharge it or some of the indebtedness
secured by it or to acquire it. From the date of payment that amount
will be part of the Secured Money and the Mortgagor will indemnify
the Mortgagee and the Controller against that amount. This applies
whether or not that Security Interest or purported Security Interest
was valid or prior, equal or subsequent ranking or the property or
moneys stated in the certificate was secured by it.
15. PROTECTION OF MORTGAGEES, CONTROLLERS AND ATTORNEYS
To the extent permitted by law, the Mortgagee, any Controller or any
Attorney will not be liable:
(a) in respect of any conduct, delay, negligence or breach of duty in
the exercise or non-exercise of a Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud or gross negligence on the part of the
Mortgagee, any Controller or any Attorney.
16. PROTECTION OF THIRD PARTIES
16.1 NO ENQUIRY
No party to any Dealing (as defined below) and no person asked to register
a Dealing:
(a) is bound to enquire:
(i) whether an Event of Default has occurred or whether this Deed
has become enforceable;
(ii) whether a person who is, or, purports or is purported to be, a
Controller or Attorney is duly appointed;
(iii) as to the amount of Secured Money and whether Secured Money is
due and payable; or
(iv) in any other way as to the propriety or regularity of the
Dealing; or
(b) is affected by express notice that the Dealing is unnecessary or
improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this Deed and will
be valid accordingly, even if there is any irregularity or impropriety in
the Dealing.
In this clause a DEALING is:
(a) any payment, or any delivery or handing over of an asset, to; or
(b) any acquisition, incurring of Finance Debt, receipt, sale, Lease,
disposal or other dealing, by,
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the Mortgagee, any Controller or any Attorney, or any person who purports
or is purported to be a Controller or Attorney.
16.2 RECEIPT
The receipt of any Authorised Officer of the Mortgagee, any Controller or
any Attorney (or person who purports, or is purported, to be a Controller
or Attorney) for any moneys or assets payable to or receivable or received
by it exonerates the person paying those moneys or handing over that asset
from being concerned as to their application, or from being liable or
accountable for their loss or misapplication.
17. INTEREST ON OVERDUE AMOUNTS
17.1 ACCRUAL AND PAYMENT
(a) (ACCRUAL) Interest accrues on each unpaid amount which is due and
payable by the Mortgagor under or in respect of this Deed in
accordance with clause 17 of the Facility Agreement:
(b) (PAYMENT) The Mortgagor shall pay interest accrued under this clause
on demand and on the last Business Day of each calendar quarter.
That interest is payable in the currency of the unpaid amount on
which it accrues.
17.2 RATE
The rate applicable under this clause is the rate provided in clause of
the Facility Agreement.
18. CERTIFICATE AS TO AMOUNT OF SECURED MONEY
A certificate signed by an Authorised Officer of the Mortgagee will be
conclusive evidence against the Mortgagor, unless proven wrong:
(a) as to the amount of Secured Money stated in that certificate;
(b) that a document specified in that certificate is a Finance Document;
and
(c) that the Mortgagee is of the opinion stated in the certificate.
19. SURVIVAL OF OBLIGATIONS
(a) (REPRESENTATIONS AND WARRANTIES) Each representation or warranty in
a Finance Document survives the execution and delivery of the
Finance Documents and the provision of financial accommodation.
(b) (INDEMNITY) Each indemnity, reimbursement or similar obligation in a
Finance Document and clauses 11 and 12 of the Facility Agreement;
(i) is a continuing, separate and independent obligation;
(ii) is payable on demand; and
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(iii) survives termination or discharge of the relevant Finance
Document and repayment of financial accommodation.
Where a party is obliged to indemnify another party against any
loss, cost, charge, liability, expense, deficiency or other amount,
it shall pay on demand from time to time the amount stated by the
other parry to be the amount indemnified against.
20. CONTINUING SECURITY
Each of this Deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
until a final discharge of this Deed and each Collateral Security has been
given to the Mortgagor.
21. OTHER SECURITIES
No Power and nothing in this Deed or any Collateral Security merges in, or
in any other way prejudicially affects or is prejudicially affected by:
(a) any other Guarantee or Security Interest; or
(b) any judgment, right or remedy against any person,
which the Mortgagee or any person claiming through the Mortgagee may have
at any time,
22. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising a Power operates
as a waiver, Nor does any single or partial exercise of a Power
preclude any other or further exercise of that or any other Power.
(b) Powers in the Finance Documents are in addition to, and do not
exclude or limit, any right, power or remedy provided by law.
23. CONSENTS AND OPINION
Except where expressly stated the Mortgagee may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied,
may form opinions, and may exercise its Powers, at its absolute
discretion,
24. SEVERABILITY OF PROVISIONS
Any provision of any Finance Document which is prohibited or unenforceable
in any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of that Finance Document nor affect the validity or
enforceability of that provision in any other jurisdiction.
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25. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Mortgagor any obligation
under a Finance Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Mortgagee, any Controller or any Attorney of any Power,
is excluded from the Finance Document.
26. ASSIGNMENTS
(a) Subject to the other Finance Documents, the Mortgagee may assign all
or any of its rights or transfer all or any of its obligations under
this Deed and each Collateral Security. If the Mortgagee's rights
under this Deed are assigned, the Secured Money will include all
actual and contingent liability of the Mortgagor to the assignee,
whether or not it was incurred before the assignment or in
contemplation of it.
(b) The Mortgagor may only assign or transfer any of its rights or
obligations under this Deed or any Collateral Security with the
prior written consent of the Mortgagee.
27. NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Deed:
(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.
28. AUTHORISED OFFICERS
The Mortgagor irrevocably authorises the Mortgagee to rely on a
certificate by a person purporting to be its director or secretary as to
the identity and signatures of its Authorised Officers. The Mortgagor
warrants that those persons have been authorised to give notices and
communications under or in connection with the Finance Documents.
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29. GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of Victoria. The Mortgagor submits to
the non-exclusive jurisdiction of courts exercising jurisdiction there in
connection with matters concerning this Deed.
30. THIRD PARTY PROVISIONS
30.1 SECURITY NOT TO BE AFFECTED
None of this Deed, any Collateral Security or any Power nor the
obligations of the Mortgagor under this Deed 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 Mortgagor from any
obligation including:
(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 that may take place between the
Mortgagee and any person;
(c) the Liquidation of any person;
(d) the Mortgagee becoming a party to or bound by any compromise,
moratorium, assignment of property, scheme of arrangement,
composition of debts or scheme of reconstruction by or relating to
any person;
(e) the Mortgagee exercising or delaying or refraining from exercising
any other security or any right, power or remedy conferred on it by
law or by any Finance Document or by any other document or agreement
with any person;
(f) the amendment, variation, novation, replacement, rescission,
invalidity, extinguishment, repudiation, avoidance,
unenforceability, frustration, failure, expiry, termination, loss,
release, discharge, abandonment, assignment or transfer, in whole or
in part and with or without consideration, of any Finance Document,
or of any other Security Interest or Guarantee or other document or
agreement held by the Mortgagee at any time or of any right,
obligation, power or remedy;
(g) the taking or perfection of or failure to take or perfect a Security
Interest or Guarantee or other document or agreement;
(h) the failure by the Mortgagee or any other person to notify the
Mortgagor of any default by any person under any Finance Document or
any other document or agreement with the Mortgagee;
(i) the Mortgagee obtaining a judgment against any person for the
payment of any Secured Money;
(j) any legal limitation, disability, incapacity or other circumstance
relating to any person;
(k) any change in circumstance (including any change in the members or
constitution of any person);
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx (LOGO)
(l) any Guarantee or Security Interest or other document or agreement
not being valid or executed by, or binding on, any person; or
(m) any increase in the Secured Money for any reason (including as a
result of anything referred to above),
whether with or without the consent of the Mortgagor. References to any
person include any Relevant Company. None of the above paragraphs limits
any of the others,
30.2 PRINCIPAL AND INDEPENDENT OBLIGATION
This Deed and each Collateral Security is a principal and independent
obligation. Except for stamp duty purposes, it is not ancillary or
collateral to any other Security Interest, right or obligation.
30.3 NO MARSHALLING
The Mortgagee is not obliged to marshal or appropriate in favour of the
Mortgagor or to exercise, apply or recover:
(a) any Security Interest or Guarantee (including any Finance Document)
held by the Mortgagee at any time; or
(b) any of the funds or assets that the Mortgagee may be entitled to
receive or have a claim on.
30.4 NO COMPETITION
Until the Secured Money has been irrevocably paid and discharged in full
the Mortgagor is not entitled to and shall not, except as directed by the
Mortgagee:
(a) be subrogated to the Mortgagee or claim the benefit of any Security
Interest or Guarantee held by the Mortgagee 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 Mortgagor, or any person who gives a
Guarantee or Security Interest in respect of any Secured Money; or
(c) have or claim any right of contribution or indemnity from the
Mortgagor, or any person who gives a Guarantee or Security Interest
in respect of any Secured Money.
The receipt of any distribution, dividend or other payment by the
Mortgagee out of or relating to any Liquidation will not prejudice the
right of the Mortgagee to recover the Secured Money by enforcement of this
Deed and each Collateral Security.
The Mortgagor 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 Mortgagee.
30.5 SUSPENSE ACCOUNT
In the event of the Liquidation of the Mortgagor or any other person, the
Mortgagor authorises the Mortgagee:
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx (LOGO)
(a) to prove for all moneys received by the Mortgagee, any Controller or
any Attorney under or by virtue of this Deed or any Collateral
Security; and
(b) (i) to retain and carry to a suspense account; and
(ii) to appropriate at the discretion of the Mortgagee;
any dividend received in the Liquidation of the Mortgagor or any
other person and any other money received in respect of the Secured
Money,
until the Mortgagee has been paid the Secured Money in full.
30.6 RESCISSION OF PAYMENT
Whenever for any reason (including under any law relating to Liquidation,
fiduciary obligations or the protection of creditors):
(a) all or part of any transaction of any nature (including any payment
or transfer) made during the term of this Deed which affects or
relates in any way to the Secured Money is void, set aside or
voidable;
(b) any claim that anything contemplated by paragraph (a) is upheld,
conceded or compromised; or
(c) the Mortgagee 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 Mortgagee will immediately become entitled against the Mortgagor to
all rights 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 Mortgagor shall indemnify the Mortgagee
against any resulting loss, cost or expense. This clause continues to
apply after this Deed is discharged.
30.7 VARIATION
Without limiting the above provision, this Deed and any Collateral
Security covers the Secured Money as varied from time to time including as
a result of:
(a) any new Finance Document or any amendment to any Finance Document;
or
(b) the provision of further accommodation to the Mortgagor,
and whether or not with the consent of or notice to the Mortgagor.
30.8 INDEMNITY
If any Secured Money (including moneys which would have been Secured Money
if they were recoverable) is not recoverable from the Mortgagor for any
reason, including any legal limitation, disability or incapacity affecting
the Mortgagor or an obligation in any Finance Document being or 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 Mortgagee,
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx (LOGO)
the Mortgagor shall indemnify the Mortgagee in respect of that money and
shall pay that money to the Mortgagee.
31. SET-OFF
(a) If an Event of Default subsists the Mortgagee may apply any credit
balance in any currency (whether or not matured) in any account of
the Mortgagor with any branch of the Mortgagee towards satisfaction
of any sum then due and payable by the Mortgagor to the Mortgagee
under or in relation to any Finance Document. The Mortgagee need not
make the application.
(b) The Mortgagee may exchange currencies to make that application.
32. COUNTERPARTS
This Deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
33. ACKNOWLEDGMENT BY XXXXXXXXX
The Mortgagor confirms that:
(a) it has not entered into any Finance Document in reliance on, or as a
result of, any statement or conduct of any kind of or on behalf of
the Mortgagee or any associate of the Mortgagee (including any
advice, warranty, representation or undertaking); and
(b) neither the Mortgagee nor any associate of the Mortgagee is obliged
to do anything (including disclose anything or give advice),
except as expressly set out in the Finance Documents.
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx (LOGO)
SCHEDULE
NOTICE DETAILS
MORTGAGOR
LIHIR AUSTRALIAN HOLDINGS PTY LIMITED
Address: Level 0, 000 Xxxxx Xxxxxx, Xxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Email: Xxxx.Xxxxxx@xxxxx.xxx.xx
Attention: Chief Executive Officer
MORTGAGEE
Australia and New Zealand Banking Group Limited
Address: Level 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxxxxxx Thilekaratne
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Deed of Charge Xxxxxx Xxxxxx Xxxxxxxx (LOGO)
EXECUTED AND DELIVERED AS A DEED in Melbourne.
Each attorney executing this Deed states that he or she has no notice of the
revocation or suspension of his or her power of attorney.
EXECUTED as a deed in accordance with s127
of the Corporations Act by LIHIR AUSTRALIAN
HOLDINGS PTY LIMITED ACN 121 554 443:
/s/ Xxxxxx Xxxxxxx /s/ A Hood
------------------------------- ----------------------------
Director Signature Director/Secretary Signature
Xxxxxx Xxxxxxx A Hood
------------------------------- ----------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for AUSTRALIA
AND NEW ZEALAND BANKING GROUP LIMITED
ABN 11 005 357 522 by its attorney
/s/ Xxxxx Xxxx Xxxxxx /s/ Xxx Xxx Xxx
------------------------------- ----------------------------
Witness Signature Attorney Signature
Xxxxx Xxxx Xxxxxx Xxx Xxx Xxx
------------------------------ ----------------------------
Print Name Print Name
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