[LOGO]
Allens Xxxxxx Xxxxxxxx [LOGO]
Facility Agreement
Lihir Australian Holdings Pty 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
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 4
1.1 Definitions 4
1.2 Interpretation 13
1.3 Determination, statement and certificate 14
1.4 Document or agreement 14
1.5 Listing requirements included as law 14
1.6 Accounting terms 15
1.7 Code of Banking Practice (2003) 15
2. FACILITY 15
2.1 Commitment 15
2.2 Purpose 15
2.3 Existing agreements 15
3. DRAWDOWN 15
3.1 Drawdown 15
3.2 Drawdown Notices 15
3.3 Rollover 16
3.4 Failure to give Drawdown Notice requesting rollover 16
4. SELECTION OF FUNDING PERIODS 16
5. FEES 17
5.1 Establishment fee 17
5.2 Commitment fee 17
6. CANCELLATION OF UNDRAWN COMMITMENT AND COMMITMENT 17
6.1 Tranche A 17
6.2 During Availability Period 17
6.3 At end of Availability Period 17
6.4 On prepayment 17
6.5 On maturity 17
7. MARKET DISTURBANCE 18
7.1 Market disturbance - Disruption Notice 18
7.2 Alternative basis 18
8. REPAYMENT 18
9. PREPAYMENTS 19
9.1 Voluntary prepayments 19
9.2 Mandatory Prepayments 19
9.3 Cash deposit in lieu of break cost 19
9.4 Interest 19
9.5 Limitation on prepayments 19
9.6 Cancellation of Commitments 19
10. PAYMENTS 20
10.1 Manner 20
Page (i)
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
10.2 Payment to be made on Business Day 20
10.3 Appropriation where insufficient moneys available 20
10.4 Rounding 20
11. TAXATION 20
11.1 Payments to be made without deductions 20
11.2 Additional payments 20
12. CHANGE IN LAW 21
12.1 Illegality 21
12.2 Increased costs 21
12.3 Voluntary prepayment on Change in Law 21
12.4 Minimisation 22
12.5 Change in Law 22
13. CONDITIONS PRECEDENT 22
13.1 Conditions precedent to Tranche A Drawdown Notice 22
13.2 Conditions precedent to Tranche B Drawdown Notice 23
14. REPRESENTATIONS AND WARRANTIES 24
14.1 Representations and warranties 24
14.2 Reliance on representations and warranties 28
15. UNDERTAKINGS 28
15.1 General undertakings 28
15.2 Undertakings relating to asset and balance sheet maintenance 30
15.3 Undertakings relating to the Transaction 30
15.4 Undertakings relating to the assets 32
15.5 Undertakings relating to structure and corporate matters 33
15.6 Term of undertakings 34
16. EVENTS OF DEFAULT 34
16.1 Events of Default 34
16.2 Consequences 37
17. INTEREST ON OVERDUE AMOUNTS 37
17.1 Accrual and payment 37
17.2 Rate 38
18. INDEMNITIES 38
19. CURRENCY INDEMNITY 39
19.1 General 39
19.2 Liquidation 39
19.3 Reimbursement 40
20. EXPENSES 40
21. STAMP DUTIES AND GST 40
21.1 Stamp duties 40
21.2 GST 41
22. SET-OFF 41
23. LIMITED RECOURSE 41
Page (ii)
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
23.1 Limit and release 41
23.2 Exceptions 42
23.3 Unrestricted remedies 42
23.4 Restricted remedies 42
24. WAIVERS, REMEDIES CUMULATIVE 43
25. SEVERABILITY OF PROVISIONS 43
26. SURVIVAL OF OBLIGATIONS 43
27. MORATORIUM LEGISLATION 43
28. ASSIGNMENTS 44
28.1 Assignment by Borrower 44
28.2 Assignment by Lender 44
28.3 Disclosure 44
28.4 Change of Lending Office 44
28.5 No increased costs 44
29. CONFIDENTIALITY 45
29.1 Confidentiality 45
29.2 Permitted disclosure 45
29.3 Survival of obligation 45
30. NOTICES 45
31. AUTHORISED OFFICERS 46
32. CONSENTS AND OPINIONS 46
33. GOVERNING LAW AND JURISDICTION 46
33.1 Governing Law 46
33.2 Jurisdiction 46
34. COUNTERPARTS 46
35. ACKNOWLEDGEMENT BY BORROWER 47
SCHEDULE 1 48
Notice Details 48
SCHEDULE 2 49
Facility 49
ANNEXURE A 51
Drawdown Notice 51
ANNEXURE B 53
Verification Certificate 53
Page (iii)
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
DATE 17 october 2006
PARTIES
1. LIHIR AUSTRALIAN HOLDINGS PTY LIMITED ACN 121 554 443 of Xxxxx 0, 000
Xxxxx Xxxxxx, Xxxxxxxx (the BORROWER)
2. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522,
having an office at Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx (the
LENDER)
RECITALS
A The Borrower has requested the Lender to provide the Borrower with
facilities under which financial accommodation of up to a maximum
amount of $ 50,000,000 may be made available to the Borrower.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
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.
APPROVED PURPOSE means:
(a) in relation to Tranche A of the Facility:
(i) to finance the acquisition of Shares under the Private Placement;
(ii) to pay for transaction costs associated with the Private
Placement;
(iii) to pay interest and fees in relation to the Facility;
(iv) to pay for transaction costs associated with the Merger; and
(v) any other purpose agreed between the Lender and the Borrower, and
(b) in relation to Tranche B of the Facility:
(i)
(ii) to be applied by the Borrower to finance capital requirements of
the Ballarat East Gold Project; and
Page 4
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
(iii) any other purpose agreed between the Lender and the Borrower.
ASSOCIATE in relation to an entity means:
(a) a Related Entity of that entity;
(b) an entity, or the trustee or manager of a trust, which has a
Controlling Interest in that entity, the Trust, or the manager or
trustee of the Trust or a Related Entity of that entity;
(c) a Related Entity of an entity included in paragraph (b) or (e);
(d) an executive director of that entity or of an entity included in
paragraph (a), (b) or (c) or of the manager or of the trustee of any
trust included in paragraph (a), (b) or (c) or a spouse, child, parent
or sibling of that director;
(e) a corporation, or the trustee or manager of a trust, in which one or
more entity or person mentioned in paragraph (a), (b), (c), (d), (e),
(f) or (g) alone or together has a Controlling Interest;
(f) the trustee of a discretionary trust of which an entity or person
included in paragraph (a), (b), (c), (d), (e) or (g) is a beneficiary
(whether or not through one or more other discretionary trusts); or
(g) an entity of which an executive director of that entity or a Related
Entity of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust, that person
will be taken to own, and control, all the assets of that trust;
(ii) DIRECTOR has the meaning given in the Corporations Xxx 0000; and
(iii) a person has a CONTROLLING INTEREST in a corporation or trust if:
(A) the corporation or its directors, or the trustee or manager of
the trust or its directors, are accustomed, or under an
obligation, whether formal or informal, to act in accordance with
the directions, instructions or wishes of that person or of that
person in concert with others; or
(B) the person has a relevant interest (as defined in the
Corporations Act 2001) in total in more than 20% of the issued or
voting shares, units or other interests in the corporation or
trust (in number, voting power or value), or would have that
relevant interest if any rights were exercised to subscribe for,
or acquire or convert into, shares, units or other interests
which are issued or unissued. The definition of relevant interest
applies as if units or other interests were shares.
AUD, $ OR DOLLAR means the lawful currency of Australia.
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
Page 5
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
(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 any Relevant Company, any director, chief financial
officer or secretary, or any person from time to time nominated as an
Authorised Officer by it 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
AND PRESIDENT or cognate expressions, or any secretary or director.
AVAILABILITY PERIOD means:
(a) in relation to (i) and (ii) of the Approved Purpose for Tranche A,
commencing on the date that:
(i) the Borrower becomes the registered and legal owner of all
relevant Shares under the Private Placement; and
(ii) all the conditions precedent under the Transaction Documents as
applicable to Tranche A have been fulfilled,
and ending 14 days thereafter.
(b) in relation to (iii) of the Approved Purpose for Tranche A, commencing
on the date that the Availability Period for (a) above commences and
terminating on the Maturity Date,
(c) in relation to (iv) and (v) of the Approved Purpose for Tranche A,
commencing on the date that the Availability Period for (a) above
commences and terminating on the earliest of:
(i) the date the Merger is completed;
(ii) the date the Merger Implementation Agreement is terminated; or
(iii) 31 March 2007.
(d) in relation to Tranche B, commencing on the date that:
(i) the Merger Implementation Agreement becomes fully effective and
enforceable;
(ii) the Implementation Date has been reached; and
(iii) all the conditions precedent under the Transaction Documents as
applicable to Tranche B have been fulfilled,
and ending on the date 30 days prior to the Maturity Date.
BALLARAT EAST GOLD PROJECT means the project of that name being undertaken
by the Target Company.
page 6
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
BBR for a period means:
(a) the average bid rate displayed at or about 10.30am (Sydney time) on
the first day of that period on the Reuters screen BBSY page for a
term equivalent to the period; or
(B) IF:
(i) for any reason that rate is not displayed for a term equivalent
to that period; or
(ii) the basis on which that rate is displayed is changed and in the
opinion of the Lender it ceases to reflect the Lender's costs of
funding to the same extent as at the date of this Agreement,
then BBR will be the rate determined by the Lender to be the average
of the buying rate of the Lender and the buying rates quoted to the
Lender by 2 Australian banks selected by the Lender at or about that
time on that date. The buying rates must be for bills of exchange
accepted by an Australian bank and which have a term equivalent to the
period. If there are no buying rates the rate will be the rate
determined by the Lender to be its cost of funds.
Rates will be expressed as a yield per cent per annum to maturity.
BREAK FEE means the break fee described in clause 13 of the Merger
Implementation Agreement, or any other amount that becomes payable to the
Borrower if the Merger does not proceed.
BUSINESS DAY means a weekday on which banks are open in Brisbane and
Melbourne.
CHARGE means a deed under which the Borrower charges all of its assets and
its undertaking, including in particular all Shares from time to time
acquired, to secure the Secured Money.
CHESS SPONSORSHIP COLLATERAL AGREEMENT means an agreement between the
Lender, the Borrower and a broker participant or non-broker participant
acceptable to the Lender (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.
COMMITMENT means in relation to the Facility, the amount against the
Lender's name in column 2 of Schedule 2 (being Tranche A and Tranche B), as
reduced or cancelled under this Agreement.
CURRENT ACCOUNTING PRACTICE at any time, means accounting principles and
practices applying by law or otherwise generally accepted in Australia (in
the case of the Borrower) and Papua New Guinea (in the case of the Parent)
at that time, consistently applied.
DISTRIBUTION ACCOUNT means the account contemplated in clause 11.6(a) of
the Syndicated Facilities Agreement.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn using any Undrawn Commitment.
Page 7
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
DRAWDOWN NOTICE means a notice under clause 3.
ENVIRONMENTAL LAW means a provision of a law or a law, which relates to an
aspect of planning, the environment, heritage, health or safety.
EVENT OF DEFAULT means any of the events specified in clause 16.1.
EXCLUDED TAX means a Tax imposed by a jurisdiction on the net income of the
Lender because the Lender has a connection with that jurisdiction but not a
Tax:
(a) calculated by reference to the gross amount of a payment under a
Finance Document (without the allowance of a deduction); or
(b) imposed because the Lender is taken to be connected with that
jurisdiction solely because it is party to a Finance Document or a
transaction contemplated by a Finance Document.
FACILITY means the cash advance facility provided by the Lender under
clause 2.
FINANCE DEBT means indebtedness (whether actual or contingent) in respect
of money borrowed or raised or other financial accommodation. It includes
indebtedness under or in respect of:
(a) a Guarantee of Finance Debt or a Guarantee given to a financier;
(b) a finance Lease;
(c) a swap, option, hedge, forward, futures or similar transaction;
(d) an acceptance, endorsement or discounting arrangement;
(e) a redeemable share or redeemable stock; or
(f) the deferred purchase price (for more than 90 days) of an asset or
service,
or an obligation to deliver assets or services paid for in advance by a
financier or otherwise relating to a financing transaction.
FINANCE DOCUMENT means:
(a) this Agreement;
(b) each Security;
(c) the Parent Representation and Undertaking Agreement;
(d) the CHESS Sponsorship Collateral 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.
FINANCIAL REPORTS means financial performance, financial position and
cashflow statements together with any statements, reports (including any
directors' and auditors' reports) and notes attached to or intended to be
read with any of them.
Page 8
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
FUNDING PERIOD means a period for the fixing of interest rates for, and the
funding of, a Loan. That period commences on the Drawdown Date of the Loan
or the last day of the preceding Funding Period of the Loan (as applicable)
and has a duration specified in the Drawdown Notice in respect of the Loan
in accordance with clause 3.
GOVERNMENT AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GST means any goods and services or similar tax, together with any related
interest, penalties, fines or other charge.
GUARANTEE means any guarantee, indemnity, letter of credit, legally binding
letter of comfort or suretyship. It includes any other obligation or
irrevocable offer (whatever called and of whatever nature);
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of assets,
rights or services, or otherwise) for the payment or discharge of;
(c) to indemnify against the consequences of default in the payment of; or
(d) to be responsible otherwise for,
an obligation or debt of another person, a dividend, distribution, capital
or premium on shares or other interests, or the solvency or financial
condition of another person.
IMPLEMENTATION DATE has the meaning given to it in the Merger
Implementation Agreement,
INTELLECTUAL PROPERTY means any intellectual or industrial property
including;
(a) a patent, trade xxxx or service xxxx, 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.
INSOLVENCY EVENT means the occurrence of any of the following:
(a) An administrator of an entity is appointed.
(b) Except for the purpose of a solvent reconstruction or amalgamation
previously approved by the Lender:
(i) an order is made, proceedings are commenced, a resolution is
passed or an application to a court is made for:
(A) the winding up, dissolution or administration of an entity;
or
(B) an entity entering into an arrangement, compromise or
composition with or assignment for the benefit of its
creditors or a class of them,
Page 9
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
and, in the case of proceedings or an application, such
action is not discontinued, withdrawn or dismissed within 14
days of its commencement.
(c) An entity;
(i) is, or under legislation is presumed or taken to be, insolvent
(other than as the result of a failure to pay a debt or claim the
subject of a good faith dispute); or
(ii) stops or suspends or threatens to stop or suspend payment of all
or a class of its debts,
(d) A receiver, receiver and manager, administrative receiver, trustee or
similar officer is appointed to all or any of the assets and
undertaking of an entity unless such appointment is contested in good
faith by appropriate proceedings and such appointee is removed within
7 days of the appointment.
(e) A Security Interest becomes enforceable or is enforced over any asset
of an entity having a value exceeding $500,000 or its equivalent.
(f) Any distress or execution is levied on an entity's assets for an
amount equal to or greater than $500,000 or its equivalent, unless the
levy is dismissed, discontinued, set aside or satisfied within 30
days.
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.
LENDING OFFICE means the office of the Lender described above or another
office designated by it as a Lending Office by notice to the Borrower.
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.
LOAN means each portion of the accommodation made available under the
Facility which has the same Funding Period.
MARGIN means 1.75% pa.
MARKETABLE SECURITY has the meaning given to securities in s92(3) of the
Corporations Xxx 0000, but also includes:
(a) an undertaking referred to in the exceptions in paragraphs (a), (b)
and (d) of the definition of DEBENTURE in the Corporations Xxx 0000;
(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.
Page 10
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
MATERIAL ADVERSE EFFECT means a material adverse effect on the ability of a
Relevant Company to perform its obligations under a Transaction Document,
on the security of the Lender or on the financial condition or business of
a Relevant Company.
MATURITY DATE means the date 364 days from the execution of this Agreement
(or if that date is not a Business Day, the Business Day which immediately
precedes it).
MERGER means the merger proposed in the Merger Implementation Agreement,
MERGER IMPLEMENTATION AGREEMENT means the agreement between the Parent, the
Borrower and the Target Company relating to the implementation of the
merger proposed between the Borrower and the Target Company, in the form of
the draft last given to the Lender prior to the execution of this
Agreement, or any other basis of merger relating to the Target Company
which is acceptable to the Lender.
MORTGAGED PROPERTY means the property mortgaged or charged by the Charge or
any Collateral Security.
PARENT means Lihir Gold Limited ARBN 069 803 998.
PARENT DEPOSIT AGREEMENT means a limited recourse set-off agreement by the
Parent over 50% of all funds deposited by it from time to time in the
Distribution Account and interest-payable on those funds.
PARENT REPRESENTATION AND UNDERTAKING AGREEMENT means an agreement between
the Parent and the Lender in which the Parent makes representations and
undertakings to the Lender in respect of the Facility.
PERMITTED SECURITY INTEREST means a Security Interest permitted under
clause 15.2(b).
POTENTIAL EVENT OF DEFAULT means anything which with notice, time or both
would become an Event of Default.
PRINCIPAL OUTSTANDING means the total principal amount of all outstanding
Loans.
PRIVATE PLACEMENT means the purchase of 149 million newly issued fully paid
up ordinary Shares in the Target Company by the Borrower pursuant to the
Share Subscription Agreement.
PROJECT DOCUMENT means:
(a) the Merger Implementation Agreement;
(b) the Share Subscription Agreement;
(c) all other documents relating to the Private Placement; and
(d) all other documents relating to the Merger.
RELATED ENTITY means, in relation to an entity (the FIRST ENTITY):
(a) a Subsidiary of the first entity;
(b) an entity of which the first entity is a Subsidiary; or
(c) a Subsidiary of another entity of which the first entity is also a
Subsidiary,
Page 11
Facility Agreement Allens Xxxxxx Xxxxxxxx[LOGO]
RECORD DATE has the meaning given to it in the Merger Implementation
Agreement.
RELEVANT COMPANY means the Borrower and the Parent and a Subsidiary of the
Borrower.
SAME DAY FUNDS means, for Australian dollars, immediately available funds.
SECURED MONEY means all money which the Borrower (whether alone or not) is
or at any time may become actually or contingently liable to pay to or for
the account of the Lender (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,
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 Borrower would have been liable to pay but
for its Liquidation, or some other reason.
SECURITY means:
(a) the Charge;
(b) the Parent Deposit Agreement;
(c) the Target Company Charge (but only from the time that it is given or
required to be given under this Agreement);
(d) the Guarantee required to be given by the Parent under clause 3.3(e)
of the Parent Representation and Undertaking Agreement (but only from
the time that it is given or required to be given under the Parent
Representation and Undertaking Agreement); and
(e) any other Collateral Security.
SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind. It includes:
(a) anything which gives a creditor priority to other creditors with
respect to any asset; and
(b) retention of title other than in the ordinary course of day-to-day
trading and a deposit of money by way of security.
SHARE means any share in the Target Company.
SHARE SUBSCRIPTION AGREEMENT means the agreement relating to the
subscription for Shares by the Borrower, in the form of the last draft
given to the Lender prior to the execution of this Agreement, or any other
agreement relating to the subscription of Shares by the Borrower in form
and substance acceptable to the Lender.
SUBSIDIARY has the meaning given in the Corporations Xxx 0000, but an
entity will also be taken to be a Subsidiary of an entity if it is
controlled by that entity (as defined in s50AA of the Corporations Act
2001) and, without limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit or other
beneficial interest will be regarded as a share; and
Page 12
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(b) an entity may be a Subsidiary of a trust if it would have been a
Subsidiary if that trust were a corporation.
SYNDICATED FACILITIES AGREEMENT means the Syndicated Facilities Agreement
between the Lender, the Parent and others dated 13 September 2005.
TARGET COMPANY means Ballarat Goldfields NL. ACN 006 245 441.
TARGET COMPANY CHARGE means a deed under which the Target Company charges
as a first ranking charge all of the assets and undertaking of the Target
Company to secure all that part of the Secured Money which relates to
Tranche B.
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 means Tranche A or Tranche B.
TRANCHE A means Tranche A of the Facility as identified in Schedule 2.
TRANCHE A CHESS AGREEMENT means an undertaking by the Target Company in a
form acceptable to the Lender 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 Lender.
TRANCHE B means Tranche B of the Facility as identified in Schedule 2.
TRANSACTION means each of the Private Placement and the Merger.
TRANSACTION DOCUMENT means a Finance Document or a Project Document.
UNDRAWN COMMITMENT means, at a relevant time, the Commitment at that time
less the total principal amount of all outstanding Loans.
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 clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, 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 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.
Page 13
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(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 Lender or cured to the satisfaction of the Lender (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.
(n) All references to TIME are to Melbourne time.
(o) Nothing in this Agreement is to be interpreted against a party on the
ground that the party put it forward.
(p) A reference to the use of BEST EFFORTS by the Borrower means to take
all steps reasonably open to and able to be done by (in all relevant
circumstances) the Borrower, including by the exercise of voting and
other rights under the Project Documents.
1.3 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Lender or an Authorised Officer of the
Lender provided for in this Agreement is sufficient evidence unless proven
wrong.
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 Agreement.
1.5 LISTING REQUIREMENTS INCLUDED AS LAW
A listing rule or business rule of a financial market (as defined in the
Corporations Act 2001) will be regarded as a LAW.
Page 14
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
1.6 ACCOUNTING TERMS
Accounting terms are to be interpreted according to Current Accounting
Practice.
1.7 CODE OF BANKING PRACTICE (2003)
The Code of Banking Practice (2003) does not apply to the Finance Documents
or any banking service provided under them.
2. FACILITY
2.1 COMMITMENT
Subject to this Agreement, the Lender agrees with the Borrower to make
available the Facility to the Lender.
2.2 PURPOSE
The Borrower shall use the net proceeds of all accommodation provided under
this Agreement for the relevant Approved Purpose and for no other purpose.
2.3 EXISTING AGREEMENTS
This Agreement replaces any other existing agreements between the Borrower
and the Lender in relation to the Facility.
3. DRAWDOWN
3.1 DRAWDOWN
(a) A Loan for the purpose in item (i) in the Approved Purpose of Tranche
A is only available to be drawn in one amount at one time.
(b) Subject to this Agreement, Undrawn Commitment in respect of the
balance of Tranche A and Tranche B may be drawn in one or more amounts
(each being not less than $250,000, other than interest or fees under
the Facility Agreement) at any time during the relevant Availability
Period for Tranche A or Tranche B (as applicable).
(c) The Lender is not obliged to provide a Loan under the Facility if the
total principal amount of all outstanding Loans would exceed the
Commitment.
3.2 DRAWDOWN NOTICES
(a) Whenever the Borrower wishes to make a drawing using any of the
Undrawn Commitment for a relevant Tranche, it shall give to the Lender
an irrevocable Drawdown Notice substantially in the form of annexure
A. That Drawdown Notice must be received by the Lender by 11am
(Melbourne time) three Business Days (or such shorter period as the
Lender agrees) before the proposed Drawdown Date (which must be a
Business Day).
Page 15
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(b) The Lender may make a Loan to pay accrued interest or fees without a
Drawdown Notice being given by the Borrower.
3.3 ROLLOVER
By 11am (Melbourne time) three Business Days before the last day of each
Funding Period for a Loan the Borrower shall give to the Lender an
irrevocable Drawdown Notice requesting a new Funding Period for the Loan
(which will be taken to be a request for the continuation of the Loan),
unless the Borrower is obliged to repay or prepay the relevant Loan on that
last day of that Funding Period in accordance with this Agreement.
3.4 FAILURE TO GIVE DRAWDOWN NOTICE REQUESTING ROLLOVER
If the Borrower fails to give a Drawdown Notice electing to continue a Loan
in accordance with clause 3.3 it will be taken to have served a Drawdown
Notice electing to continue the Loan under the same Facility and with a
Funding Period (subject to clause 4) of one month and making without
qualification the statements set out in paragraph 5(a) and 5(b) of Annexure
A.
4. SELECTION OF FUNDING PERIODS
(a) Subject to this clause, the Borrower may only select Funding Periods
of 1, 2 or 3 months or such other period as the Lender may agree.
(b) The Borrower may select any other period agreed by the Lender to
enable consolidation of Loans under a Facility.
(c) Should a Funding Period end on a day which is not a Business Day, that
Funding Period will be extended to the next Business Day in the same
calendar month or, if none, the preceding Business Day.
(d) If a Funding Period of a number of months commences on a date in a
month and there is no corresponding date in the month in which it is
to end, it will end on the last Business Day of the latter month.
(e) No Funding Period may extend beyond the Maturity Date for the
Facility. The Borrower shall select Funding Periods so as to ensure
that the Maturity Date for the Facility coincides with the last day of
Funding Periods of all outstanding Loans under the Facility which has
a principal amount not less than the principal amount to be repaid on
that day.
(f) If the Borrower fails to select Funding Periods complying with this
clause, the Lender may vary any Drawdown Notice (or deemed Drawdown
Notice) to ensure compliance.
Page 16
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
5. FEES
5.1 ESTABLISHMENT FEE
On the date of the first drawdown pursuant to this Agreement (or, if
earlier, the day five Business Days after the execution of this Agreement)
the Borrower shall pay an establishment fee equal to 0.80% of the total
amount of the Facility to the Lender.
5.2 COMMITMENT FEE
(a) A commitment fee accrues at 0.70% pa on the daily amount of the
Undrawn Commitment (if any) from the date of this Agreement.
(b) The Borrower shall pay to the Lender any accrued commitment fee in
arrears on the last Business Day of each calendar quarter and on the
last day of the Availability Period for each Tranche.
6. CANCELLATION OF UNDRAWN COMMITMENT AND COMMITMENT
6.1 TRANCHE A
If only part of Tranche A is drawn, the Undrawn Commitment in respect of
Tranche A will thereafter be reduced to nil.
6.2 DURING AVAILABILITY PERIOD
On giving not less than five Business Days irrevocable notice to the Lender
the Borrower may cancel all or part of the Undrawn Commitment during the
Availability Period. A partial cancellation must be in a minimum of
$5,000,000 and in a whole multiple of $1,000,000 unless the Lender agrees
otherwise. Any part of a Commitment cancelled by a Borrower may not be
drawn or redrawn.
6.3 AT END OF AVAILABILITY PERIOD
At the close of business (Melbourne time) on the last day of the
Availability Period for each Tranche the Undrawn Commitment for that
Tranche will be permanently cancelled.
6.4 ON PREPAYMENT
On any prepayment under clause 9 (PREPAYMENT) of all or part of the
Principal Outstanding the Commitment in respect of that Tranche repaid will
be reduced by an amount equal to the principal amount so repaid or prepaid.
Any amounts reduced by a Borrower in accordance with this clause 6.4 may
not be drawn or redrawn.
6.5 ON MATURITY
All Commitments will reduce to nil on the Maturity Date, to the extent that
they have not already done so.
Page 17
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
7. MARKET DISTURBANCE
7.1 MARKET DISTURBANCE - DISRUPTION NOTICE
Whenever, before the start of a Funding Period of a Loan:
(a) the Lender determines that:
(i) because of circumstances affecting the relevant interbank market,
adequate and fair means do not exist for ascertaining the rate of
interest applicable to that Loan during that Funding Period under
the preceding provisions and the definition of BBR in clause 1.1;
or
(ii) deposits in the relevant interbank market are not available in
the ordinary course of business in Australian dollars and for a
term equal to such Funding Period;
(b) because of circumstances affecting the relevant interbank market, the
cost to the Lender of deposits obtained in that market to fund its
participation in that Loan exceeds BBR in respect of that Funding
Period; or
(c) because of any change in or in the application of any applicable law
or of any change in national or international financial, political or
economic conditions, exchange rates or exchange controls (in each case
applicable generally and not specifically to the Lender (as
applicable)), it is impracticable for it to fund or continue to fund
that Loan during that Funding Period by deposits obtained in the
relevant interbank market,
the Lender shall promptly give notice (a DISRUPTION NOTICE) to the
Borrower.
7.2 ALTERNATIVE BASIS
If the Borrower receives a Disruption Notice relating to a Loan under the
Facility:
(a) (CONSULTATION) the Lender shall consult in good faith with the
Borrower with a view to agreeing an alternative base rate to BBR in
respect of the Loan;
(b) (TEMPORARY BASIS) pending that consultation subject to paragraphs (c)
and (d), the most recent prevailing BBR shall apply;
(c) (ALTERNATIVE BASIS) if an alternative basis is agreed, it will apply
in accordance with its terms; and
(d) (CESSATION OF NOTICE IF NO AGREEMENT) if an alternative basis is not
agreed within 30 days of the Disruption Notice, instead of BBR the
rate per cent per annum certified by the Lender, acting in good faith,
as its cost of funds to provide and maintain the Loan under the
Facility shall replace BBR with effect from the date of the Disruption
Notice and the amount of interest accruing due in the meantime shall
be adjusted accordingly.
8. REPAYMENT
The Borrower shall repay the Principal Outstanding on the Maturity Date.
Page 18
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
9. PREPAYMENTS
9.1 VOLUNTARY PREPAYMENTS
(a) Subject to this clause, if it gives at least five days' prior notice
to the Lender the Borrower may prepay all or part of the Principal
Outstanding. That notice is irrevocable. The Borrower shall prepay in
accordance with it.
(b) Unless the Lender agrees otherwise, prepayment of part only of a Loan
may only be made in a minimum principal amount of $5,000,000 and a
whole multiple of $1,000,000.
9.2 MANDATORY PREPAYMENTS
(a) The Borrower shall promptly apply the proceeds of any sale, forfeiture
or other disposal of the Shares in prepayment of the Principal
Outstanding under the Facility and any other Secured Money.
(b) If the Target Company pays the Break Fee to the Borrower, the Borrower
shall promptly apply the Break Fee (less any reasonable amount
approved by the Lender in payment of the costs of the Transaction, to
the extent that they have not been drawn as accommodation under this
Agreement, and Taxes relating to the Break Fee) in prepayment of the
Principal Outstanding under the Facility and any other Secured Money,
9.3 CASH DEPOSIT IN LIEU OF BREAK COST
If a prepayment on a date other than the last day of an Funding Period
would require payment of an amount pursuant to clause 18(f), the Lender
shall, if requested by the Borrower in writing, place the amount of the
prepayment in an interest bearing deposit with the Lender, to be applied in
reduction of the Principal Outstanding on the last day of the Funding
Period current at the date of the prepayment.
9.4 INTEREST
When the Borrower prepays any amount it shall pay any interest accrued on
that amount.
9.5 LIMITATION ON PREPAYMENTS
The Borrower may not prepay all or any part of the Principal Outstanding
except as set out in this Agreement.
9.6 CANCELLATION OF COMMITMENTS
The Commitments for the Facility will be cancelled by an amount equal to
any amount prepaid or require to be prepaid under the Facility in
accordance with this clause 9. Any amount prepaid by a Borrower may not be
redrawn.
Page 19
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
10. PAYMENTS
10.1 MANNER
The Borrower shall make all payments under any Finance Document in Same Day
Funds by 11am (Melbourne time) on the due date to the address for service
of notices of the Lender, or to the account specified by the Lender,
without set-off, counterclaim or other deduction except any compulsory
deduction for Taxation.
10.2 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due on a day which is not a Business Day, the
due date will be the next Business Day in the same calendar month or, if
none, the preceding Business Day.
10.3 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Lender may appropriate amounts it receives as among amounts due as it
sees fit. This will override any appropriation made by the Borrower.
10.4 ROUNDING
In making any allocation or appropriation under any Finance Documents, the
Lender may round amounts to the nearest dollar.
11. TAXATION
11.1 PAYMENTS TO BE MADE WITHOUT DEDUCTIONS
The Borrower agrees to make each payment to the Lender under this
Agreement:
(a) without any set-off or counterclaim; and
(b) to the extent permitted by law, free and clear of, and without any
deduction or withholding for or on account of, any Taxes.
11.2 ADDITIONAL PAYMENTS
If the Borrower is obliged to make a deduction in respect of Tax from a
payment under a Finance Document:
(a) (PAY DEDUCTION) it shall promptly pay the amount deducted to the
appropriate Government Agency;
(b) (RECEIPT) promptly on request, it shall give the Lender the original
receipt (or other documents acceptable to the Lender) evidencing the
payment; and
(c) (GROSS-UP) unless the Tax is an Excluded Tax, on the due date it shall
pay the Lender an additional amount so that the Lender receives a net
amount (after allowance for any further deduction and any Tax on the
additional amount) equal to the amount it would have received if no
deduction had been made. It shall indemnify the Lender against the Tax
and any amounts recoverable from the Lender in respect of the Tax.
Page 20
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
It waives any statutory or other right to recover from the Lender any
amount paid under this clause.
12. CHANGE IN LAW
12.1 ILLEGALITY
(a) If a Change in Law makes it illegal or impracticable for the Lender to
provide financial accommodation under the Finance Documents, the
Lender may by notice to the Borrower:
(i) terminate the Commitment; and
(ii) direct the Borrower to prepay any financial accommodation
affected, together with all other amounts owing under the Finance
Documents.
(b) The Borrower shall make the prepayment immediately, or if later, the
latest day (in the Lender's opinion) on which the prepayment can be
made without the illegality or impracticability arising.
12.2 INCREASED COSTS
(a) (REIMBURSEMENT) Whenever the Lender determines that as a result of a
Change in Law any of the following occurs in connection with its
Commitment or financial accommodation provided or to be provided under
the Finance Documents:
(i) (INCREASED COSTS) its costs are increased;
(ii) (REDUCED RECEIPTS) an amount received or receivable by it is
reduced;
(iii) (REDUCED RETURN) its or its holding company's return on capital
or other effective return is reduced (including because more
capital needs to be allocated to the facility and cannot be used
elsewhere),
the Lender may notify the Borrower. The Borrower shall pay the Lender
on demand the amounts certified by an Authorised Officer of the Lender
to be necessary to compensate the Lender or the relevant holding
company for the increase or reduction.
That certificate must give an outline of the calculation of the amount
demanded and will be conclusive and bind the Borrower unless proven
wrong.
(b) (LIMIT ON RETROSPECTIVITY) A demand under paragraph (a) may not claim
compensation for an increase or reduction suffered more than 90 days
before the Lender notified the Borrower of the relevant Change in Law
except to the extent the Change in Law is retrospective.
12.3 VOLUNTARY PREPAYMENT ON CHANGE IN LAW
If the Borrower becomes aware that as a result of a Change in Law it is or
may be obliged to make a payment under clause 11.2(a) (TAXATION -
ADDITIONAL PAYMENTS) or 12.2 (INCREASED COSTS), the Borrower may notify the
Lender that it wishes to prepay any financial accommodation affected. That
notice is irrevocable. The Borrower shall prepay
Page 21
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
in accordance with it on the last day of the relevant Funding Period
current when the notice is given.
12.4 MINIMISATION
The Borrower may not refuse a demand on the ground that the relevant
consequences could have been avoided.
12.5 CHANGE IN LAW
In this clause, a CHANGE IN LAW is the introduction after the date of this
Agreement of, or a change in, any law, official directive, ruling or
request or a change in its interpretation or application. If it does not
have the force of law, it must be one with which responsible Australian
banks would comply. It includes any with respect to capital adequacy,
special deposit, liquidity, reserve, prime assets, tax or prudential
requirements (except a change in tax on overall net income).
13. CONDITIONS PRECEDENT
13.1 CONDITIONS PRECEDENT TO TRANCHE A DRAWDOWN NOTICE
The right of the Borrower to give the Drawdown Notice in relation to
Tranche A and the obligations of the Lender under this Agreement are
subject to the condition precedent that the Lender receives all of the
following in form and substance satisfactory to the Lender.
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the Borrower
given by a director of the Borrower substantially in the form of
annexure B with the attachments referred to and dated not earlier than
five Business Days before the first Drawdown Date.
(b) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower in the Finance Documents are true as at the date of the first
Drawdown Notice as though they had been made at that date in respect
of the facts and circumstances then subsisting;
(c) (FINANCE DOCUMENTS) duly executed counterparts of each Finance
Document, together with all ancillary documentation required to
register them (as relevant).
(d) (SECURITY) evidence that the Charge is in a form registerable by the
Australian Securities and Investments Commission or other applicable
office or registry at which registration is required free from all
prior Security Interests and third party rights and interests (other
than Permitted Security Interests).
(e) (PROJECT DOCUMENTS) a certified copy of each Project Document, duly
executed by the parties to it.
(f) (TITLE DOCUMENTS) any relevant documents or evidence of title (if any)
to the Mortgaged Property.
(g) (OPINIONS)
(i) an opinion of Allens Xxxxxx Xxxxxxxx, Australian legal advisers
to the Lender in relation to the Finance Documents;
Page 22
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(ii) an opinion from independent, appropriately experienced legal
advisers to the Borrower that:
(A) the Borrower is (or will unconditionally become) the direct
legal and beneficial owner of the relevant Shares pursuant
to the Private Placement, free from all Security Interests;
(B) the Borrower and the Target Company have the proper
capacity, corporate approvals and Authorisations necessary
to validly enter into the Private Placement; and
(C) the Share Subscription Agreement is binding and effective in
accordance with its terms;
(h) (FEES) payment (which may be from the first drawdown) of all fees and
expenses payable or reimbursable to the Lender on or before the first
Drawdown Date, including fees of the Lenders' consultants or advisers;
(i) (CONSTITUTION) if the Borrower is a corporation, a certified copy of
the Borrower's constitution and certificate of incorporation;
(j) (POWERS OF ATTORNEY) if the Borrower executes any Transaction Document
under power of attorney, a copy of that power of attorney;
(k) (NO EVENT OF DEFAULT) evidence that no Event of Default or Potential
Event of Default, or any other event of default (however defined)
under a Transaction Document has occurred and is subsisting;
(1) (LATEST FINANCIAL REPORTS) the latest Financial Reports of the Parent;
(m) (SUFFICIENT FUNDS) evidence that the Borrower has sufficient funds
from the Facility and from other sources of income to pay all fees and
charges payable in connection with this Agreement and complete the
Private Placement; and
(n) (NO PRIOR ACTIVITY) evidence that the Borrower is a newly incorporated
company, and has not incurred and will not incur any liability or
entered into any transaction, agreement or arrangement other than in
respect of the Private Placement, the Merger, matters relating to its
corporate existence, accounting and audit, and this Agreement.
13.2 CONDITIONS PRECEDENT TO TRANCHE B DRAWDOWN NOTICE
The obligations of the Lender to make available each drawing under the
Tranche B is subject to the conditions precedent in clause 13.1 having
been fulfilled and these further conditions precedent:
(a) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower in the Finance Documents are true as at the date of the
relevant Drawdown Notice as though they had been made at that date in
respect of the facts and circumstances then subsisting;
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice or will result
from the provision of the Loan;
Page 23
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(c) (AUTHORISATION) all necessary Authorisations for the provision of that
Loan have been obtained;
(d) (TRANCHE A DRAWN) Tranche A has been drawn and no further drawings are
required under it;
(e) (MERGER DOCUMENTS DELIVERED) a certified copy of all documentation
relating to the Merger has been delivered to the Lender; and
(f) (OPINIONS) an opinion from Australian legal advisers to the Borrower
has been delivered to the Lender that confirms:
(i) the Borrower, the Parent and the Target Company have the proper
Authorisations to enter into the Merger; and
(ii) the Merger has been completed by the Scheme becoming Effective
and the New Lihir Shares have been issued by the Parent (all as
contemplated in and defined by the Merger Implementation
Agreement),
in form and substance satisfactory to the Lender.
14. REPRESENTATIONS AND WARRANTIES
14.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties:
(a) (STATUS) It is a corporation validly existing under the laws of the
place of its incorporation specified in this Agreement.
(b) (NO PRIOR ACTIVITY) it is a newly incorporated corporation, and has
not incurred and will not incur any liability or entered into any
transaction, agreement or arrangement other than in respect of the
Private Placement, the Merger, matters relating to its corporate
existence, accounting and audit, and this Agreement, and all its
liabilities and indebtedness have been fully disclosed to the Lender.
(c) (POWER) It has the power to enter into and perform its obligations
under the Transaction Documents to which it is expressed to be a
party, to carry out the transactions contemplated by those documents
and to carry on its business as now conducted or contemplated.
(d) (CORPORATE AUTHORISATIONS) it has taken all necessary corporate action
to authorise the entry into and performance of the Transaction
Documents to which it is expressed to be a party, and to carry out the
transactions contemplated by those documents.
(e) (CORPORATE BENEFIT) It achieves a valuable corporate benefit from
entering into the Finance Documents to which it is a party.
(f) (DOCUMENTS BINDING) Each Transaction Document to which it is expressed
to be a party is its valid and binding obligation enforceable in
accordance with its terms, subject to any necessary stamping and
registration and subject to equitable principles. To the best of its
knowledge and belief, each Project Document is valid
Page 24
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
and binding on the parties to it and enforceable against each of
them in accordance with its terms. The Securities are effective
security over the Mortgaged Property with the priority stated.
(g) (TRANSACTIONS PERMITTED) The execution and performance by it of the
Transaction Documents to which it is expressed to be a party and
each transaction contemplated under those documents did not and will
not violate in any respect a provision of:
(i) a law or treaty or a judgment, a legally binding ruling, order
or decree of a Government Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets (including the Syndicated Facilities Agreement),
where violation is likely to have a Material Adverse Effect, and,
except as provided by the Transaction Documents, did not and will
not:
(iv) create or impose a Security Interest on any of its assets; or
(v) allow a person to accelerate or cancel an obligation with
respect to Finance Debt, or constitute an event of default,
cancellation event, prepayment event or similar event
(whatever called) under an agreement relating to Finance Debt,
whether immediately or after notice or lapse of time or both.
(h) (FINANCIAL REPORTS)
(i) Its most recent consolidated and unconsolidated audited
Financial Reports give a true and fair view of the matters
with which they deal.
(ii) There has been no subsequent change since the date of its most
recent consolidated and unconsolidated audited or unaudited
Financial Reports (and the case may be) in its and its
Subsidiaries' state of affairs which may have a Material
Adverse Effect.
(iii) Those Financial Reports comply with Current Accounting
Practice except to the extent disclosed in them and with all
applicable laws.
(iv) No Relevant Company has executed a Guarantee for the purpose
of obtaining an order under part 2M.6 of the Corporations Xxx
0000 or an equivalent provision or for the purpose of
complying with any such order.
(i) (NO LITIGATION) At the date of each drawdown, no litigation,
arbitration, Tax claim, dispute or administrative or other
proceeding is current or pending or, to its knowledge, threatened,
which may have a Material Adverse Effect.
(j) (NO DEFAULT) At the date of each drawdown:
(i) no Event of Default or undisclosed Potential Event of Default
of which it is aware has occurred and is subsisting.
Page 25
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(ii) it is not and none of its Subsidiaries is in default under a
document or agreement (including an Authorisation) binding on
it or its assets which relates to Finance Debt or is material.
(iii) nothing has occurred which constitutes an event of default,
cancellation event, prepayment event or similar event
(whatever called) under those documents or agreements, whether
immediately or after notice or lapse of time or both.
(k) (AUTHORISATIONS) To the best of its knowledge each Authorisation
which is required and able to be obtained at the applicable time in
relation to:
(i) the execution, delivery and performance by it of the
Transaction Documents to which it is expressed to be a party
and the transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) its business as now conducted or contemplated and which is
material (including under Environmental Law),
where failure to obtain or effect it is likely to have a Material
Adverse Effect, has been obtained or effected. Each is in full force
and effect. It has complied with each of them.
(l) (NO MISREPRESENTATION)
(i) All information (other than forecasts and projections)
provided by it to the Lender is true in all material respects
at the date when it is provided or as otherwise specified in
it. Neither that information nor its conduct and the conduct
of anyone on its behalf in relation to the transactions
contemplated by the Transaction Documents, was or is
misleading, by omission or otherwise. To the best of the
Borrower's knowledge (after due enquiry), the Borrower has
supplied all information which is material to the Transaction
to the Lender.
(ii) Any financial projections so provided have been prepared on
the basis of the most recently available historical
information and on the basis of reasonable assumptions as at
the time they are provided.
(m) (AGREEMENTS DISCLOSED) Each document or agreement which is material
to the Transaction Documents or which has the effect of varying a
Transaction Document has been disclosed to the Lender in writing.
(n) (COPIES OF DOCUMENTS) All copies of documents (including its latest
audited Financial Reports and all Authorisations) given by it or on
its behalf to the Lender are true and complete copies as at the date
given. Those documents are in full force and effect.
Page 26
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(o) (TITLE) It is or will become on acquisition the sole beneficial
owner of the Mortgaged Property free of any other third party right
or interest whatever (including arising out of native title claims
and sacred sites) other than as permitted by clause 15.2(b)
(NEGATIVE PLEDGE).
(p) (LAW) It has complied with ail laws (including, without limitation,
any Environmental Law) binding on it where breach may have a
Material Adverse Effect.
(q) (ENVIRONMENTAL LAW) At the date of each drawdown, no act or omission
has occurred and there is no circumstance relating to the assets or
business of it or the Target Company which has given rise or may
give rise to:
(i) a substantial claim against it or any of its Subsidiaries;
(ii) a requirement of substantial expenditure by it or any of it
Subsidiaries; or
(iii) a requirement that it or any of its Subsidiaries ceases or
substantially alters an activity,
under Environmental Law.
Without limitation none of its assets is contaminated, all assets
are within applicable environmental standards and all emissions and
discharges are within standards or limits imposed by all relevant
laws and Authorisations.
(r) (TRUST) Except as disclosed to the Lender in writing, it does not
hold any assets as the trustee of any trust and it does not enter
into any Transaction Documents as trustee of any trust.
(s) (TAXES) It has paid all Taxes payable by it when due other than
Taxes for which it has set aside sufficient reserves and which are
being contested in good faith.
(t) (SOLVENCY) It is solvent and no Insolvency Event has occurred in
relation to it. It will not become insolvent and no Insolvency Event
will occur upon completion of the Private Placement or the Merger.
(u) (CORPORATE TREE) The Parent is the sole direct and beneficial owner
of all shares in the Borrower.
(v) (NO LIQUIDATION) It is not in Liquidation and, to the best of its
knowledge, no steps have been taken in relation to its Liquidation.
(w) (NO IMMUNITY) Neither it not any of its assets has any immunity from
suit or execution.
(x) (PROJECT DOCUMENTS) At the date of each drawdown:
(i) no default, event of default (however defined) or breach of
any obligation has occurred or is subsisting under any Project
Document in respect of it, or to its knowledge, any other
person; and
(ii) no event has occurred in respect of it or, to its knowledge,
any other person,
Page 27
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
which, in each case, is likely to result in the cancellation,
termination, forfeiture of such a Project Document or is likely to
have a Material Adverse Effect.
(y) (TRANSACTION) It has not incurred any liability or obligation with
respect to the Transaction which has not been disclosed to the
Lender.
(z) (PRIORITY) Its obligations under the Finance Documents to which it
is a party rank in point of security ahead of all its other
obligations (actual or contingent, present or future) except
obligations mandatorily preferred by law or which are secured by a
Security Interest which is permitted by clause 15. 2(b) (NEGATIVE
PLEDGE).
14.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
(a) The Borrower acknowledges that the Lender has entered the
Transaction Documents in reliance on the representations and
warranties in this clause.
(b) The representations and warranties given in this clause are taken to
be repeated on each Drawdown Date by reference to the circumstances
then existing.
15. UNDERTAKINGS
15.1 GENERAL UNDERTAKINGS
The Borrower undertakes to the Lender as follows (except to the extent
that the Lender consents):
(a) (CORPORATE REPORTING AND INFORMATION) It will provide to the Lender:
(i) (ANNUAL FINANCIAL REPORTS) as soon as practicable (but within
120 days) after the close of each of its financial years
copies of its audited Financial Reports in respect of that
financial year;
(ii) (SEMI-ANNUAL FINANCIAL REPORTS) as soon as practicable (but
within 120 days) after the first half of each of its financial
years copies of its unaudited Financial Reports in respect of
that half-year;
(iii) (DOCUMENTS ISSUED TO SHAREHOLDERS) promptly, all documents
provided by it to a stock exchange or holders of Marketable
Securities issued by it;
(iv) (INFORMATION PROVIDED TO ASX) to the extent not already
provided under this paragraph (a) and the Parent has not
already done so, within 7 days of issue, copies of all reports
and press releases made by the Parent to Australian Stock
Exchange Limited;
(v) (NOTICES UNDER MERGER IMPLEMENTATION AGREEMENT) promptly, any
notifications or other information given or received by it
under or in connection with the Merger Implementation
Agreement;
(vi) (LITIGATION) promptly, written particulars of any litigation,
arbitration, Tax claim, dispute or administrative or other
proceeding in relation to it or its Subsidiaries involving a
claim exceeding $500,000 or its equivalent other than a claim
for worker's compensation;
Page 28
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(vii) (GOVERNMENT AGENCY) promptly, any notice, order or material
correspondence from or with a Government Agency relating to
its or its Subsidiaries' business or assets which may have a
Material Adverse Effect; and
(viii) (OTHER INFORMATION) promptly, any other information in
relation to its or its Subsidiaries' financial condition or
business which the Lender may reasonably request.
(b) (ACCOUNTING PRINCIPLES) It will ensure that the Financial Reports
provided to the Lender under paragraph (a):
(i) comply with Current Accounting Practice except to the extent
disclosed in them and with all applicable laws; and
(ii) give a true and fair view of the matters with which they deal.
(c) (AUTHORISATIONS) It will ensure that each Authorisation required
for:
(i) the execution, delivery and performance by it of the Finance
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) the carrying on by it and its Subsidiaries of its and their
business as now conducted or contemplated (including under
Environmental Law),
is obtained and promptly renewed and maintained in full force and
effect. It will provide copies promptly to the Lender when they are
obtained or renewed.
(d) (NOTICE TO LENDER) It will notify the Lender as soon as it becomes
aware of:
(i) any Event of Default or Potential Event of Default;
(ii) any substantial dispute between it or any of its Subsidiaries
and a Government Agency;
(iii) any force majeure event or any event or circumstance which is
likely to result in the termination or suspension of any
Project Document or any material provision of a Project
Document;
(iv) any proposal by a Government Agency to acquire compulsorily a
material part of its Mortgaged Property;
(v) termination (other than through performance), rescission or
suspension of a Transaction Document or other material
Authorisation;
(vi) any actual or alleged breach of or event under a Project
Document or other material Authorisation which with notice,
time or both could lead to its termination, revocation,
cancellation, suspension or variation or is otherwise material
in the context of the Project Document or Authorisation;
(vii) any amendment to a Project Document or other Authorisation
which could have a Material Adverse Effect;
Page 29
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(viii) any default, breach or other event under a document relating
to material Finance Debt;
(ix) any Security Interest becoming enforceable over any Mortgaged
Property; and
(x) any change in its Authorised Officers, giving specimen
signatures of any new Authorised Officer appointed, and,
where reasonably requested by the Lender, evidence
satisfactory to the Lender of the authority of any
Authorised Officer.
15.2 UNDERTAKINGS RELATING TO ASSET AND BALANCE SHEET MAINTENANCE
The Borrower undertakes to the Lender as follows (except to the extent
that the Lender otherwise consents):
(a) (DISPOSAL OF ASSETS) It will not sell or otherwise dispose of, part
with possession of, or create an interest in, any of its Mortgaged
Property or agree or attempt to do so (whether in one or more
related or unrelated transactions) without the prior written consent
of the Lender.
(b) (NEGATIVE PLEDGE) it will not create or allow to exist a Security
Interest over its assets other than the Charge.
(c) (FINANCE DEBT) It will not incur any new Finance Debt without the
written consent of the Lender.
(d) (SECURITY DEPOSIT) It will not deposit or lend money on terms that
it will not be repaid until its or another person's obligations or
indebtedness are performed or discharged. It will not deposit money
with or lend money to a person (other than the Lender) to whom it
is, or is likely to become, actually or contingently indebted.
(e) (TITLE RETENTION) It will not enter into an agreement with respect
to the acquisition of assets on title retention terms except in the
ordinary course of day-to-day trading.
(f) (SALE AND LEASE BACK) It will not sell or otherwise dispose of any
of its assets to a person where, under the terms of that sale or
disposal, or under a related transaction, that asset is or may be
Leased to a Relevant Company or its Associate.
15.3 UNDERTAKINGS RELATING TO THE TRANSACTION
The Borrower undertakes to the Lender as follows (except to the extent
that the Lender otherwise consents):
(a) (PROCEEDS OF PRIVATE PLACEMENT) It will:
(i) use its best endeavours to ensure that the Target Company uses
the proceeds of the Private Placement only to fund the
development of the Ballarat East Gold Project; and
(ii) ensure that the Project Documents contain covenants requiring
the Target Company to use the proceeds of the Private
Placement only to fund the development of the Ballarat East
Gold Project.
Page 30
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(b) (COMPLIANCE AND ENFORCEMENT OF PROJECT DOCUMENTS) It will:
(i) comply with its obligations under the Project Documents;
(ii) enforce each Project Document to which it is a party and
exercise its rights, authorities and discretions under those
documents prudently and, while an Event of Default or
Potential Event of Default subsists, in accordance with the
directions (if any) of the Lender;
(iii) use its Best Efforts to keep the Project Documents to which it
is a party valid and enforceable;
(iv) not avoid, release, surrender, rescind, terminate or discharge
(other than by performance) any of the Project Documents to
which it is a party;
(v) not amend, vary or supplement in any material respect, or
grant a material waiver in respect of, any Project Document
where that has or might reasonably be expected to have a
Material Adverse Effect without the prior consent of the
Lender, such consent will be taken to be given if the Lender
has failed to notify the Borrower of its decision on the later
of 15 Business Days of it being notified of the intended
action by the Borrower (the EXPIRY DATE) and such reasonable
later date notified by the Lender prior to the Expiry Date if
the Lender has not been provided with all information
reasonably required by it to make such a decision by the
Expiry Date;
(vi) notify the Lender within 30 days of any material amendment or
supplement to, or any waiver granted by it in respect of, any
of the Project Documents to which it is a party;
(vii) not do anything and will refrain from doing anything which
gives another party grounds to terminate or discharge (other
than by performance) any of the Project Documents to which it
is a party; and
(viii) not give any discretionary consent in connection with, an
assignment, novation or transfer by a counterparty to a
Project Document of any of that counterparty's rights or
obligations under that Project Document without the consent of
the Lender, such consent will be taken to be given if the
Lender has failed to notify the Borrower of its decision on
the later of 15 Business Days of it being notified of the
intended action by the Borrower (the EXPIRY DATE) and such
reasonable later date notified by the Lender prior to the
Expiry Date if the Lender has not been provided with all
information reasonably required by it to make such a decision
by the Expiry Date.
(c) (TARGET COMPANY CHARGE) The Target Company will promptly after the
Record Date (and in any event within 60 days after the Record Date)
enter into and delivers to the Lender the Target Company Charge in
form and substance acceptable to the Lender.
(d) (PROCEEDS RAISED AGAINST BALLARAT EAST GOLD PROJECT) The Borrower
will ensure that the proceeds of any financing or fundraising raised
after the Merger occurs for
Page 31
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
the purpose of developing the Ballarat East Gold Project are applied
in the following order:
(i) firstly, towards repaying the Principal Outstanding (on the
basis that the proceeds) of this facility will have been used
for short-term funding of the Ballarat East Gold Project); and
(ii) secondly, (if the Principal Outstanding has been reduced to
nil) towards any other purpose relating to the Ballarat East
Gold Project.
The Borrower shall also produce to the Lender on or before such
repayment to the Lender evidence that no transaction in relation to
it breaches section 260A of the Corporations Xxx 0000.
15.4 UNDERTAKINGS RELATING TO THE ASSETS
The Borrower undertakes to the Lender as follows (except to the extent
that the Lender otherwise consents):
(a) (COMMERCIAL DEALINGS) It will not and will ensure that each of its
Subsidiaries does not enter into any material transactions with any
third person or any Related Entity (other than an Obligor) except on
arm's length commercial terms.
(b) (DISPUTE) It will:
(i) promptly notify the Lender of any material dispute with a
party to a Project Document;
(ii) subject to sub-paragraph (iii), use all reasonable efforts to
resolve the dispute in accordance with any dispute resolution
procedure under the Project Document;
(iii) give the Lender a reasonable opportunity to comment on the
resolution proposed and not agree to resolve the dispute
except as required by the dispute resolution procedure without
the consent of the Lender (acting reasonably); and
(iv) not agree to the settlement or resolution of any dispute under
a Project Document if that settlement or resolution would be
likely to have a Material Adverse Effect.
(c) (PAY OUTGOINGS)
(i) Subject to sub-paragraph (ii), it will promptly pay all
material outgoings payable by it in respect of the Mortgaged
Property (including Taxes).
(ii) It need not pay Taxes which are being contested in good faith
except where failure to pay is reasonably likely to have a
Material Adverse Effect. To the extent liable, it will pay
those outgoings on the final determination or settlement of
the contest.
(d) (PRESERVATION AND PROTECTION OF SECURITY)
(i) It will promptly:
Page 32
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(A) do everything necessary or reasonably required by the
Lender to preserve and protect the value of the
Mortgaged Property; and
(B) do everything necessary or reasonably required by the
Lender to protect and enforce its title.
(e) (OTHER SECURITY INTERESTS) It will comply with all Security
Interests by which it is bound affecting the Mortgaged Property and
the obligations secured by those Security Interests.
(f) (RANKING) it will ensure that its obligations under the Finance
Documents rank in point of security ahead of all its other
obligations (actual or contingent, present or future) except
obligations mandatorily preferred by law.
15.5 UNDERTAKINGS RELATING TO STRUCTURE AND CORPORATE MATTERS
The Borrower undertakes to the Lender as follows (except to the extent
that the Lender otherwise consents):
(a) (PARTNERSHIP AND JOINT VENTURES) It will not enter into a
partnership or joint venture with another person.
(b) (CORPORATE EXISTENCE) It will do everything necessary to maintain
its corporate existence in good standing. It will not transfer its
jurisdiction of incorporation or enter any merger or consolidation.
(c) (CONSTITUENT DOCUMENTS) It will not and will ensure that each of its
Subsidiaries does not amend its constituent documents if that
amendment is likely to have a Material Adverse Effect.
(d) (CHANGE OF BUSINESS) It will not and will ensure that each of its
Subsidiaries does not cease or substantially change the nature or
its business as conducted when the Borrower becomes bound the this
Agreement.
(e) (INSPECTION) It will permit the Lender (or such persons authorised
by it) at any time during normal business hours and on reasonable
notice to inspect and take copies of the records, and to inspect any
relevant Mortgaged Property which inspection shall, unless an Event
of Default is subsisting or the lender has reasonable grounds to
suspect that an Event of Default has occurred, be at the risk and
expense of the Lender.
(f) (COMPLIANCE WITH LAW) It will comply with all laws binding on it in
all material respects.
(g) (PAY TAXES) It will pay all Taxes payable by it when due, but:
(i) it need not pay Taxes for which it has set aside sufficient
reserves and which are being contested in good faith, except
where failure to pay may have a Material Adverse Effect; and
(ii) to the extent liable, it will pay those Taxes which it is
liable to pay on the final determination or settlement of the
contest.
Page 33
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(h) (COMMERCIAL DEALINGS)
(i) It will not deal in any way with any person except at arm's
length in the ordinary course of business for valuable
commercial consideration.
(ii) It may only deal with an Associate if a person satisfactory to
the Lender verifies the adequacy of the consideration or
otherwise verifies compliance with sub-paragraph (i).
(i) (FINANCIAL ASSISTANCE) It will not:
(i) advance money or make available financial accommodation to or
for the benefit of; or
(ii) give a Guarantee or Security Interest in connection with an
obligation or liability of,
a person who is not a Relevant Company, but it may;
(iii) deposit funds with a bank in the ordinary course of its
business; and
(iv) allow its customers to acquire goods and services on extended
terms in the ordinary course of trading.
(j) (DISTRIBUTIONS) It will not pay or distribute any money or other
asset (including by management or other fee, interest, dividend, buy
back, return of capital, repayment or redemption) to or for the
benefit of a shareholder in that capacity or to an Associate at any
time while there is any Principal Outstanding.
(k) (FINANCE DEBT) The Borrower will not incur any Finance Debt except
under the Finance Documents.
15.6 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this Agreement
until the Secured Money is fully and finally paid.
16. EVENTS OF DEFAULT
16.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in the
control of the Borrower).
(a) (OBLIGATIONS UNDER FINANCE DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Finance Document when
due;
(ii) to comply with any of its other obligations under a
Transaction Document or any of the undertakings in clause 15
except, where in the opinion of the Lender that failure can be
remedied within 10 Business Days, if it remedies the failure
within that period; or
(iii) to satisfy within the time stipulated anything which the
Lender made a condition of its waiving compliance with a
condition precedent or undertaking in a Finance Document.
Page 34
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(b) (MISREPRESENTATION) A representation, warranty, undertaking or
statement by or on behalf of a Relevant Company in a Finance
Document, or in a document provided under or in connection with a
Finance Document, is not true in a material respect or is misleading
when made or repeated.
(c) (CROSS DEFAULT)
(i) Finance Debt of a Relevant Company totalling and amount at
least equal to US$10 million or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable before its stated maturity or
expiry or if no period is specified, within 30 Business
Days of becoming payable; or
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Finance Debt totalling at least US$10
million or its equivalent is prematurely terminated; or
(iii) a breach or other event or circumstance (however defined)
entitling a party to terminate occurs under a Project Document
and the Lender is not satisfied with that state of affairs 10
Business Days after that breach, event or circumstance occurs,
despite any representations made by the Borrower to the Lender
and discussions between the Borrower and the Lender in the
interim.
For the purpose of this paragraph, if a person is required to
provide cash cover for Finance Debt as a result of an actual, likely
or threatened default or an event of default or termination,
cancellation, special prepayment or similar event, whatever called,
that Finance Debt will be taken to be due and payable.
Sub-paragraphs (i)(B) and (ii) will not apply if a Relevant Company
exercises an optional right of prepayment or termination in the
absence of actual or likely default or an event of default or
termination, cancellation, special prepayment or similar event,
whatever called.
(d) (INSOLVENCY EVENT) An Insolvency Event occurs in relation to a
Relevant Company or the Target Company.
(e) (REDUCTION OF CAPITAL) Without the prior consent of the Lender, a
Relevant Company or the Target Company:
(i) reduces its capital (including a purchase of its shares);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under Chapter 2J of the
Corporations Xxx 0000 or an equivalent provision, or calls a
meeting to consider such a resolution; or
(iii) applies to a court to call any such meeting or to sanction any
such resolution or reduction.
Page 35
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(f) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (d) to (e) inclusive, or which has substantially similar
effect, occurs with respect to any Relevant Company under any
overseas law or any law which commences or is amended after the date
of this Agreement.
(G) (REVOCATION OF AUTHORISATION) An Authorisation which is material to
the performance by the Borrower of a Transaction Document, or to the
validity or enforceability of a Transaction Document or to the
security of Lender is repealed, revoked or terminated or has
expired, or is modified or amended or conditions are attached to it
in a manner which the Lender considers to be likely to have a
Material Adverse Effect and is not replaced by another Authorisation
reasonably acceptable to the Lender within 30 days after notice from
the Lender.
(h) (CEASING BUSINESS) The Borrower or the Target Company stops, or
threatens to stop, carrying on all or a material part of its
business.
(i) (VITIATION OF DOCUMENTS) All or any material part of a Transaction
Document is terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
(j) (CONTROL OF BORROWER)
(i) Without the prior consent of the Lender the Borrower ceases to
be a wholly owned Subsidiary of the Parent; or
(ii) in the opinion of the Lender (acting reasonably) there is a
material change in the financial structure or control of the
Borrower
(k) (COMPULSORY ACQUISITION)
(i) All or any material part of the Mortgaged Property or other
assets of a Relevant Company is compulsorily acquired (other
than for fair value in the case of the Parent) by or by order
of a Government Agency or under law; or
(ii) a Government Agency orders the sale, vesting or divesting of
all or any substantial part of the Mortgaged Property or other
assets of a Relevant Company.
(l) (GOVERNMENTAL INTERFERENCE) A law or anything done by a Government
Agency wholly or partially to a material extent renders illegal,
prevents or restricts the performance or effectiveness of a
Transaction Document or otherwise has a Material Adverse Effect.
(m) (ENVIRONMENTAL EVENT)
(i) (A) Any person takes action;
(B) there is a claim; or
(C) there is a requirement of expenditure or of cessation or
alteration of activity,
under Environmental Law, which in the opinion of the Lender is
likely to have a Material Adverse Effect; or
Page 36
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(ii) a circumstance arises which in the opinion of the Lender may
give rise to an action, claim or requirement within
sub-paragraph (i).
(n) (TARGET COMPANY CHARGE) The Target Company does not enter into and
deliver the Target Company Charge to the Lender within 60 days of
the Record Date.
(o) (USE OF PRIVATE PLACEMENT PROCEEDS) The Target Company uses any of
the proceeds of the Private Placement for a purpose other than the
Ballarat East Gold Project.
(p) (MATERIAL ADVERSE CHANGE) Any other event or series of events,
whether related or not, occurs which in the opinion of the Lender
(acting reasonably) is likely to have a Material Adverse Effect.
16.2 CONSEQUENCES
In addition to any other rights provided by law or any Finance Document,
at any time after an Event of Default (whether or not it is continuing)
the Lender may do all or any of the following:
(a) by notice to the Borrower declare all sums actually or contingently
owing under the Finance Documents:
(i) immediately due and payable, and the Borrower shall
immediately pay the Principal Outstanding together with
accrued interest and fees and all other sums; or
(ii) payable upon demand, and the Borrower shall pay the same on
demand being made;
(b) by notice to the Borrower cancel the Commitment;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the Lender on
the affairs, financial condition and business of any Relevant
Company;
(d) enforce the Securities.
Each Relevant Company shall do everything in its power to ensure the
review and report can be carried out promptly, completely and
accurately. Without limitation, it shall co-operate fully with the
review and ensure that the accountants and experts are given access
to all premises and records of each Relevant Company and are given
all information concerning any Relevant Company which they require
from time to time. It shall ensure that all officers and employees
of each Relevant Company do the same.
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 Borrower under or in respect of any Finance Document
(including interest under this clause):
Page 37
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(i) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable
by way of reimbursement or indemnity, the date of disbursement
or loss, if earlier;
(ii) both before and after judgment (as a separate and independent
obligation); and
(iii) at the rate provided in clause 17.2 (RATE),
except where the relevant Finance Document provides otherwise.
(b) (PAYMENT) The Borrower 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 sum of 2% pa plus the sum of
the Margin and:
(a) the rate which is the average bid rate displayed at or about 10.30am
(Sydney time) on the day immediately before the due date on the
Reuters screen BBSY page for a term equivalent to the funding
period; or
(b) if:
(i) for any reason that rate is not displayed for a term
equivalent to that funding period; or
(ii) the basis on which that rate is displayed is changed and in
the opinion of the Lender, acting reasonably, it ceases to
reflect the Lender's costs of funding to the same extent as at
the date of this Agreement,
the rate determined by the Lender to be the average of the buying
rate of the Lender and the buying rates quoted to the Lender by 2
Australian banks selected by the Lender at or about that time on
that date. The buying rates must be for bills of exchange accepted
by an Australian bank and which have a term equivalent to the
funding period. If there are no buying rates the rate will be the
rate determined by the Lender to be its cost of funds.
18. INDEMNITIES
The Borrower shall indemnify the Lender against any loss, cost, liability
or expense (including legal costs on a full indemnity basis) which the
Lender (or any officer or employee of the Lender) incurs as a result of or
in connection with:
(a) any Event of Default or breach, by a party other than the Lender,
of a Finance Document;
(b) any exercise or attempted exercise of any right, power or remedy
under any Finance Document;
(c) the Mortgaged Property or the existence of any interest in or
control, right, power or remedy with respect to the Mortgaged
Property;
(d) any statement in, conduct relying on or omission or alleged omission
from:
Page 38
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(i) any information memorandum or loan proposal; or
(ii) any document or information prepared or authorised by the
Borrower,
or any claim in respect of any of the above.
(e) a Loan requested in a Drawdown Notice not being provided for any
reason (including failure to fulfil a condition precedent but
excluding default by the Lender);
(f) the Lender receiving payments of principal in respect of any Loan
before the last day of a Funding Period relating to the Loan or any
period under clause 7 (MARKET DISTURBANCE) or clause 17 (INTEREST ON
OVERDUE AMOUNTS) for any reason, including prepayment in accordance
with this Agreement; or
(g) the Lender acting in connection with a Finance Document in good
faith on facsimile instructions purporting to originate from the
offices of the Borrower or to be given by an Authorised Officer of
the Borrower.
Without limitation the indemnity will cover any amount determined by the
Lender to be incurred because of the liquidation or re-employment of
deposits or other funds acquired or contracted for by the Lender to fund
or maintain any Loan or amount (including loss of margin) and because of
the termination or reversing of any agreement or arrangement entered into
by the Lender to fix, hedge or limit its effective cost of funding or
maintaining any Loan or amount.
19. CURRENCY INDEMNITY
19.1 GENERAL
The Borrower shall indemnify the Lender against any deficiency which
arises whenever for any reason (including as a result of a judgment or
order):
(a) the Lender receives or recovers an amount in one currency (the
PAYMENT CURRENCY) in respect of an amount denominated under a
Finance Document in another currency (the DUE CURRENCY); and
(b) the amount actually received or recovered by the Lender under its
normal practice when it converts the Payment Currency into the Due
Currency is less than the relevant amount of the Due Currency.
19.2 LIQUIDATION
In the event of the Liquidation (or analogous process) of the Borrower,
the Borrower shall indemnify the Lender against any deficiency resulting
from any variation between:
(a) the exchange rate actually applied for the purposes of the
Liquidation (or analogous process) in converting into another
currency an amount expressed in one currency due or contingently
owing under a Finance Document or under a judgment or order
relating to a Finance Document; and
(b) the exchange rate at which the Lender in accordance with its normal
practice would be able to purchase the last-mentioned currency with
the first-mentioned
Page 39
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
currency as at the final date or dates for the filing of proof or
other claim in the Liquidation or the nearest available prior date
including any premiums and costs of exchange payable in connection
with the purchase.
19.3 REIMBURSEMENT
Where an amount to be reimbursed or indemnified against under a Finance
Document is denominated in a currency other than Australian dollars, if
the Lender so requests, the Borrower shall reimburse or indemnify it
against the amount of Australian dollars which the Lender certifies that
it used to buy the relevant amount of the Other currency in accordance
with its normal procedures. If the Lender does not so request, the
Borrower shall reimburse or indemnify it in that other currency.
20. EXPENSES
The Borrower shall reimburse the Lender for its expenses in relation to:
(a) the preparation, execution and completion of the Finance Documents
and any subsequent consent, agreement, approval, waiver or
amendment; and
(b) (i) any actual or contemplated enforcement of the Finance
Documents, or the actual or contemplated exercise,
preservation or consideration of any rights, powers or
remedies under the Finance Documents or in relation to the
Mortgaged Property; and
(ii) any enquiry by a Government Agency concerning any Relevant
Company or the Mortgaged Property or a transaction or activity
the subject of the Finance Documents or in connection with
which, financial accommodation or funds raised under a Finance
Document are used or provided.
This includes legal costs and expenses (including in-house lawyers charged
at their usual rates) on a full indemnity basis, expenses incurred in
retaining consultants to evaluate matters of material concern to the
Lender and administrative costs including time of its executives (whose
time and costs are to be charged at reasonable rates).
21. STAMP DUTIES AND GST
21.1 STAMP DUTIES
(a) The Borrower shall pay or reimburse the Lender for all stamp,
transaction, registration and similar Taxes (including fines and
penalties) on or in relation to the execution, delivery, performance
or enforcement of any Finance Document or any payment, receipt or
other transaction contemplated by any Finance Document.
(b) The Borrower shall indemnify the Lender against any liability
resulting from delay or omission to pay those Taxes except to the
extent the liability results from failure by the Lender to pay any
Tax after having been put in funds (with all necessary documents) to
do so by the Borrower.
Page 40
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
21.2 GST
All payments to be made by the Borrower under or in connection with any
Finance Document 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 Borrower makes the
payment:
(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 Borrower a tax invoice
complying with the relevant GST legislation.
(b) Where under any Finance Document the Borrower is required to
reimburse or indemnify for an amount, the Borrower 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.
22. SET-OFF
(a) If an Event of Default subsists the Lender may apply any credit
balance in any currency (whether or not matured) in any account of
the Borrower with any branch of the Lender towards satisfaction of
any sum then due and payable by the Borrower to the Lender under or
in relation to any Finance Document. The Lender need not make the
application.
(b) The Lender may exchange currencies to make that application.
23. LIMITED RECOURSE
23.1 LIMIT AND RELEASE
(a) (LIMIT) Subject to clause 23.2 (EXCEPTIONS) and subject to paragaph
(c), but despite any other provision of any Finance Document, the
liability of the Borrower to the Lender under or in connection with
the Finance Documents is limited to the total amount available to
the Lender as a result of a realisation of the Mortgaged Property
and the Deposit in accordance with the Finance Documents (after
payment of enforcement costs etc).
(b) (RELEASE) The Lender waives all claims (including in respect of
deceptive and misleading conduct) it may have against the Borrower
under or in connection with the Finance Documents in respect of
which the Borrower is not liable under paragraph (a).
(c) (DURATION OF LIMIT) Despite anything else in this clause 23:
(i) the limit referred to in paragraph (a) will only apply until
such time as the Borrower acquires or becomes unconditionally
entitled to acquire Shares pursuant to the Merger
Implementation Agreement; and
Page 41
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(ii) after that dates, this clause 23 will be taken to no longer
apply to this Agreement.
23.2 EXCEPTIONS
(a) Nothing in clause 23.1 (LIMIT AND RELEASE) limits the liability of
the Borrower in respect of any loss, cost or expense suffered or
incurred by the Lender arising from the Borrower's fraud or
negligence under or in connection with any Finance Document.
(b) Failure by the Borrower to pay all or any part of any amount due
under or in connection with this Agreement does not of itself
constitute fraud or negligence on its part.
23.3 UNRESTRICTED REMEDIES
(a) (CHARGES AND GUARANTEES) Subject to paragraph (b), nothing in clause
23.1 (LIMIT AND RELEASE) limits the Lender in:
(i) exercising its rights or powers under this Agreement:
(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
Agreement, neither the Lender nor any receiver, receiver and
manager, agent or attorney appointed under this Agreement shall
incur, or have the authority to incur, any liability on behalf of or
for the account of the Borrower except a liability which is itself
subject to the limitation in clause 23.1 (LIMIT AND RELEASE).
(c) (SECURED MONEY) For the purpose of determining the liability of the
Borrower in relation to the Secured Money and the amount of Secured
Money recoverable under any Security, the limit on the liability of
the Borrower under clause 23.1 (LIMIT AND RELEASE) will be
disregarded.
23.4 RESTRICTED REMEDIES
Except as provided in clause 23.1(c) (DURATION OF LIMIT) and clause 23.3
(UNRESTRICTED REMEDIES), the Lender shall not, in relation to any
liability for which the Borrower is not liable under clause 23.1 (LIMIT
AND RELEASE);
(a) (JUDGMENT) obtain a judgment for the payment of money or damages by
the Borrower;
(b) (STATUTORY DEMAND) issue any demand under s459E(l) of the
Corporations Xxx 0000 (or any analogous provision under any other
law) against the Borrower;
(c) (WINDING UP) apply for the winding up of the Borrower;
(d) (EXECUTION) levy or enforce any distress or other execution to, on
or against any asset of the Borrower;
Page 42
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court of a
receiver to any of the assets of the Borrower; and
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any set-off
or counterclaim against the Borrower,
or take proceedings for any of the above and the Lender waives its rights
in respect of those applications and proceedings.
24. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any right, power
or remedy under any Finance Document operates as a waiver. Nor does
any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other right,
power or remedy.
(b) The rights, powers and remedies provided to the Lender in the
Finance Documents are in addition to, and do not exclude or limit,
any right, power or remedy provided by law.
25. 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.
26. 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 (TAXATION) and 12 (CHANGE IN LAW):
(i) is a continuing, separate and independent obligation;
(ii) is payable on demand; and
(iii) survives termination or discharge of the relevant Finance
Document and repayment of financial accommodation.
27. 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 Borrower any obligation
under a Finance Document; or
Page 43
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
(b) delays, prevents or prejudicially affects the exercise by the Lender
of any right, power or remedy conferred by a Finance Document,
is excluded from the Finance Documents.
28. ASSIGNMENTS
28.1 ASSIGNMENT BY BORROWER
The Borrower may only assign or transfer any of its rights or obligations
under this Agreement with the prior consent of the Lender.
28.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or obligations
under the Finance Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) except after an Event of Default has occurred the transferee or
assignee is a Related Entity of the Lender or the Borrower has given
its prior consent, which consent:
(i) must not be withheld unreasonably; and
(ii) will be taken to have been given if no response is received
within 15 days of the request for consent or if an Event of
Default subsists;
(c) except after an Event of Default has occurred in the case of a
transfer of obligations, the transfer is effected by a novation in
form and substance satisfactory to the Borrower; and
(d) except after an Event of Default has occurred the assignment or
transfer does not incur any material additional cost to the
Borrower.
28.3 DISCLOSURE
The Lender may:
(a) without the consent of any Relevant Company, disclose to any ratings
agency or Government Agency; or
(b) with the prior consent of the Borrower (who shall not unreasonably
withhold that consent) disclose to a proposed assignee, transferee
or sub-participant,
any information which relates to any Relevant Company or Finance Document
or was furnished in connection with the Finance Documents.
28.4 CHANGE OF LENDING OFFICE
The Lender may change its Lending Office if it first notifies and consults
with the Borrower.
28.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if the Lender assigns
its rights under this Agreement or changes its Lending Office (other than
if the change is requested by the Borrower), the Borrower will not be
required to pay any net increase in the total amount
Page 44
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
of costs, Taxes, fees or charges which is a direct result of the
assignment or change and of which the Lender or its assignee was aware or
ought reasonably to have been aware on the date of the assignment or
change.
29. CONFIDENTIALITY
29.1 CONFIDENTIALITY
Subject to the following sub-clause, the Lender will not disclose any
unpublished information or documents supplied by any Relevant Company in
connection with the Finance Documents which are specifically indicated by
any Relevant Company to be confidential and are not in the public domain.
29.2 PERMITTED DISCLOSURE
The Lender may disclose any confidential information or documents:
(a) in enforcing a Finance Document or in a proceeding arising out of or
in connection with a Finance Document or to the extent that
disclosure is regarded by the Lender as necessary to protect its
interests;
(b) if required under a binding order of a Government Agency or under a
procedure for discovery in any proceedings;
(c) if required under any law or any administrative guideline,
directive, request or policy whether or not having the force of law
and, if not having the force of law, the observance of which is in
accordance with the practice of responsible bankers or financial
institutions similarly situated;
(d) as required or permitted by any Finance Document;
(e) to a ratings agency and its advisers (on a "need to know" basis);
(f) to a trustee associated with any financing conduit and its advisers
(on a "need to know" basis);
(g) to its legal advisers and its consultants; or
(h) with the prior consent of the Borrower.
29.3 SURVIVAL OF OBLIGATION
This clause survives the termination of this Agreement.
30. 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 schedule 1 or
to any other address or fax number which it may have notified the
sender but, if delivery or receipt is on a day
Page 45
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
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.
31. AUTHORISED OFFICERS
The Borrower irrevocably authorises the Lender 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 Borrower warrants that those
persons have been authorised to give notices and communications under or
relating to the Finance Documents.
32. CONSENTS AND OPINIONS
Except where expressly stated the Lender may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied,
may form opinions, and may exercise its rights, powers and remedies, at
its absolute discretion.
33. GOVERNING LAW AND JURISDICTION
33.1 GOVERNING LAW
This Agreement is governed by the laws of Victoria. The Borrower submits
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
33.2 JURISDICTION
With respect to any legal action or proceedings relating to a Finance
Document or any transaction contemplated in a Finance Document (each, a
RELEVANT ACTION), the Borrower irrevocably:
(a) submits to and accepts, for itself and in respect of its assets,
generally and unconditionally the non-exclusive jurisdiction of any
of the courts of Australia or any of its states or territories
selected by the Lender; and
(b) waives any objection to the venue and any claim that the Relevant
Action has been brought in an inconvenient forum.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
Page 46
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
35. ACKNOWLEDGEMENT BY BORROWER
The Borrower 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 Lender or any Related Entity of the Lender (including any
advice, warranty, representation or undertaking); and
(b) neither the Lender nor any Related Entity of the Lender is obliged
to do anything (including disclose anything or give advice),
except as expressly set out in the Finance Documents.
Page 47
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
SCHEDULE 1
NOTICE DETAILS
BORROWER
Lihir Australian Holdings Pty Ltd
Address: Xxxxx 0, 000 Xxxxx Xxxxxx, Xxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Email: Xxxx.Xxxxxx@Xxxxx.xxx.xx
Attention: Chief Financial Officer
PARENT
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 and New Zealand Banking Group Limited
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxxxxxx Xxxxxxxxxxxx
Page 48
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
SCHEDULE 2
FACILITY
LENDER TRANCHE COMMITMENT FOR TRANCHE (A$)
Australia and New Tranche A 45,000,000
Zealand Banking Group Limited Tranche B 5,000,000
----------
TOTAL 50,000,000
ABN 11 005 357 522
Page 49
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
EXECUTED as an agreement
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
EXECUTED in accordance with s127 of the
Corporations Act by LIHIR AUSTRALIAN
HOLDINGS PTY LIMITED ACN 121 554 443
/s/ A Hood /s/ G Xxxxxxx
--------------------------------------- --------------------------------------
Director Signature Director/Secretary Signature
A Hood G Xxxxxxx
--------------------------------------- --------------------------------------
Print Name Print Name
SIGNED for AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED ABN 11 005 357
522 by its attorney
/s/ Feliciky Bridges /s/ X. X. Xxxxxx
--------------------------------------- --------------------------------------
Witness Signature Attorney Signature
Feliciky Bridges X. X. Xxxxxx
--------------------------------------- --------------------------------------
Print Name Print Name
Page 50
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
ANNEXURE A
DRAWDOWN NOTICE
TO: Australia and New Zealand Banking Group Limited
[address]
LIHIR AUSTRALIAN HOLDINGS PTY LIMITED -- DRAWDOWN NOTICE NO [*]
This is an irrevocable notice under clause 3 of the Facility Agreement dated [*]
(the FACILITY AGREEMENT).
(1) We wish to [draw][continue an existing drawing] under the Facility on [*]
(the DRAWDOWN DATE).
NOTE: DATE IS TO BE A BUSINESS DAY.
(2) The total principal amount to be [drawn][continued as a drawing] is [*].
NOTE: AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2.
(3) Particulars of each Loan of the Facility to be [drawn/continued] are as
follows:
FACILITY PRINCIPAL AMOUNT FUNDING PERIOD
(STATED IN
AUSTRALIAN DOLLARS)
[*] [*] [*]
NOTE; AMOUNTS TO COMPLY WITH CLAUSE 3. LENGTH OF FUNDING PERIOD TO COMPLY
WITH CLAUSE 4.
(4) Please remit the proceeds to account number [*] at [*] (NOTE: FOR NEW
DRAWING).
(5) We represent and warrant as follows.
(a) [Except as disclosed in paragraph (c)] the representations and
warranties in the Facility Agreement are true as though they had
been made at the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting.
(b) [Except as disclosed in paragraph (c)] no Event of Default or
Potential Event of Default subsists or will result from the drawing.
[(c) Details of the exceptions to paragraphs (a) and (b) are as follows:
[*], and we [have taken/propose] the following remedial action [*].]
NOTE: INCLUSION OF A STATEMENT UNDER PARAGRAPH (C) WILL NOT
PREJUDICE THE CONDITIONS PRECEDENT IN THE AGREEMENT
Definitions in the Facility Agreement apply in this Drawdown Notice.
On behalf of LIHIR AUSTRALIAN HOLDINGS PTY LIMITED
By: [Authorised Officer]
Dated [*]
Page 51
Facility Agreement Allens Xxxxxx Xxxxxxxx [LOGO]
ANNEXURE B
VERIFICATION CERTIFICATE
NOTE: TO BE SIGNED BY A SECRETARY OR DIRECTOR OF THE RELEVANT COMPANY.
TO: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [*]
A$ 50,000,000 FACILITY FOR LIHIR AUSTRALIAN HOLDINGS PTY LIMITED
I am a [secretary | director] of [*] (the COMPANY).
I refer to the Facility Agreement dated [*] (the FACILITY AGREEMENT) between the
Company and [*].
Definitions in the Facility Agreement apply in this Certificate.
Attached are complete copies of the following.
(a) Any power of attorney under which the Company executed any Finance
Document to which it is expressed to be a party relating to the above
facility. Extracts of minutes of a meeting of directors of the Company
authorising the execution.
(b) Extracts of minutes of a meeting of all members of the Company authorising
execution.
(c) A certificate of incorporation and constituent documents for the Company,
if they are not already held by the Lender.
(d) Specimen signatures of all those authorised to give drawdown and other
notices for the Company or to sign the Finance Documents.
If any of the documents in paragraph (c) are already held by the Lender, I
confirm[ they are complete and up-to-date][ the attached amendments are all
subsequent amendments to them].
The Company is solvent. It is not prevented by Chapter 2E or any other provision
of the Corporations Xxx 0000 from entering into and performing any of those
agreements or securities.
The Company is not a "small business" (as that term is defined in the Code of
Banking Practice (2003) (the CODE)) in relation to the "banking services" (as
that term is defined in the Code) provided under the Finance Documents and
therefore the Code does not apply to those banking services.
--------------------------
[Secretary | Director]
Page 53
