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Facility Agreement

 

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Title:

Facility Agreement

Entities:

Durban Roodepoort Deep Ltd.; McGraw-Hill Companies Inc.

Date:

2006

Size:

Preview shows 77KB of 219KB total

Price:

$47

ID:

#2675399

 

 

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Facility Agreement
DRD (Porgera) Limited
Tolukuma Gold Mines Limited
as Borrowers
Australia and New Zealand Banking Group (PNG) Limited
as Primary Lender
The Bank and Financial Institutions named in Schedule 1
as LC Participants
ANZ Fiduciary Services Pty Ltd
as Security Trustee
Australia and New Zealand Banking Group Limited
as Agent
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Facility Agreement

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Page (ii)
Allens Arthur Robinson
Stock Exchange Centre
530 Collins Street
Melbourne VIC 3000
Tel 61 3 9614 1011
Fax 61 3 9614 4661
www.aar.com.au
Copyright Allens Arthur Robinson 2006
Table of Contents
1.
Definitions and Interpretation
1
1.1          Definitions
1
1.2          Interpretation
16
1.3
Document or agreement
16
1.4          Determination,
statement and certificate
17
1.5
Listing requirements included as law
17
1.6
Agent's failure to notify
17
1.7          Obligations
several
17
1.8          GST
17
1.9
Joint and Several Liability of each Borrower
17
2.            Purpose
18
3.            Facility
18
3.1
Advance of Loans
18
3.2
Working Capital Facility Repayments
18
4.            Drawdown Notices
19
4.1
When notice to be given
19
4.2          Notification
19
5.            Selection Notices
19
5.1
When Notice to be given
19
5.2
Failure to give Selection Notice
19
5.3          Notification
19
6.
Principal amount and number of Loans
19
6.1
Principal amount of Loans
19
6.2
Number of Loans made utilising the Project Debt Facilities
20
6.3
Splitting and combination
20
7.
Selection of Funding Periods
20
8.            Interest
20
8.1
Notification of rates
20
8.2          Interest
rate
20
8.3          Payment
of
interest
21
9.           Market disturbance
21
9.1
Market disturbance - Suspension Notice
21
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Page (iii)
9.2
Market disturbance before drawing
21
9.3
Market disturbance relating to subsequent Loans
22
9.4          Alternative basis
22
10.
Letter of Credit
22
10.1
Issue of Letters of Credit
22
10.2
Liability of LC Participants
23
10.3        Form
23
11.
Payments under Letters of Credit
23
11.1
Authority to make payments
23
11.2
Borrowers' undertaking to reimburse
23
11.3
Indemnity of Borrowers
23
11.4
Letter of Credit Fees
24
12.          Preservation
of
Borrowers' Liability
24
13.          Fees
25
14.
Cancellation of commitments
25
14.1
At end of Availability Period
25
14.2
Reduction on repayment or prepayment
25
14.3
Optional reduction of Undrawn Commitments
25
15.          Repayment
26
15.1        Repayments
26
15.2
Allocation among Loans
26
16.          Prepayments
26
16.1        Voluntary prepayments
26
16.2        Mandatory
Prepayments
27
16.3        Review
Event
27
16.4
Interest and break costs
27
16.5        Limitation
on
prepayments
28
16.6
Application against repayment and prepayments
28
17.          Payments
28
17.1        Manner
28
17.2
Payment to be made on Business Day
28
17.3
Distribution by Agent
28
17.4
Appropriation where insufficient moneys available
28
17.5        Unanticipated
default
28
17.6        Rounding
29
17.7        Blocked Payments
29
17.8
Balance to the Borrowers
29
18.          Taxation
29
18.1        Additional payments
29
18.2        Reimbursement
30
18.3
Acceleration on non-payment of Tax
30
18.4
Survival of obligations
31
19.
Changes in Law
31
19.1        Definitions
31
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Page (iv)
19.2        Increased costs
31
19.3        No
defence
32
19.4
Prepayment or transfer on increased costs
32
19.5        Illegality
32
19.6        Mitigation
33
20.          Conditions
Precedent
33
20.1
Conditions Precedent to first Drawdown Notice in respect of the Working Capital Facility        33
20.2
Conditions Precedent to first Drawdown Notice in respect of the Project Debt Facility
36
20.3
Conditions precedent to each Loan
37
21.          Representations
and
Warranties
37
21.1
Representations and Warranties
37
21.2
Reliance on Representations and Warranties
40
21.3
Repetition of Representations and Warranties
40
22.         Undertakings
40
22.1        General Undertakings
40
22.2
Determination of Ratios
47
22.3
Offshore Proceeds Account and Debt Service Reserve Account
47
22.4
Control of the Offshore Proceeds Account following Event of Default
49
22.5
Provisions relating to the Offshore Proceeds Account and the Debt Service Reserve
Account
49
22.6        Hedging Arrangements
50
22.7
Term of undertakings
50
23.
Events of Default
51
23.1
Events of Default
51
23.2
Consequences of an Event of Default
54
23.3        Review Event
54
24.          Indemnities
55
25.
Interest on overdue amounts
56
25.1
Accrual and payment
56
25.2        Rate
56
26.          Currency
indemnity
56
26.1        General
56
26.2        Reimbursement
57
27.          Control
accounts
57
28.          Expenses
57
29.          Stamp
duties
57
30.          Set-off
57
31.
Waivers, remedies cumulative
58
32.
Severability of provisions
58
33.
Survival of representations
58
34.
Indemnities and reimbursement obligations
58
35.          Moratorium
legislation
59
36.          Consents
and
opinions
59
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Page (v)
37.          Assignments
59
37.1
Assignment by Borrower
59
37.2
Assignment by Financiers
59
37.3
Borrowers' consent not required
60
37.4        Substitution
certificates
60
37.5        Disclosure
60
37.6
No increased costs
61
37.7        No
illegality
61
38.
Relationship of Financiers to Agent and Security Trustee
61
38.1        Authority
61
38.2
Instructions; extent of discretion
61
38.3
No obligation to investigate authority
62
38.4
Agent not a fiduciary
62
38.5        Exoneration
62
38.6        Delegation
62
38.7
Reliance on documents and experts
62
38.8        Notice
of
transfer
63
38.9        Notice
of
default
63
38.10      Agent as Financier and banker
63
38.11      Indemnity to Agent
63
38.12      Independent investigation of credit
63
38.13      No
monitoring
64
38.14      Information
64
38.15      Replacement
of
Agent
64
38.16      Amendment of Finance Documents
65
39.          Proportionate
sharing
65
39.1        Sharing
65
39.2
Refusal to join in action
66
40.          Agent
dealings
66
41.          Notices
66
42.          Authorised
officers
66
43.
Governing law and jurisdiction
67
43.1        Governing
Law
67
43.2
Service of process
67
44.         Counterparts
67
45.         Acknowledgement
by
Borrowers
67
46.         Confidentiality
67
46.1        Confidentiality
67
46.2        Permitted
disclosure
67
46.3        Notice
of
disclosure
68
46.4
Survival of obligation
68
Schedule 1
72
LC Participants
72
Schedule 2
73
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Page (vi)
Material Contracts
73
Schedule 3
74
Repayment Schedule
74
Annexure A
75
Drawdown Notice
75
Annexure B
77
Selection Notice
77
Annexure C
79
Form of Project Debt Facility LC (Clause 10.3(b))
79
Annexure D
82
Form of Working Capital Facility LC (Clause 10.3(c))
82
Annexure E
85
Verification Certificate
85
Annexure F
87
Substitution Certificate
87
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Facility Agreement

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Page 1
Date
20 March 2006
Parties
1.
DRD (Porgera) Limited, incorporated in PNG, with company number 114729c of Level 5,
Defens Haus, Corner Hunter Street and Champion Parade, Port Moresby (DRD Porgera) and
Tolukuma Gold Mines Limited, incorporated in PNG, with company number 1-16395 of
Level 5, Defens Haus, Corner Hunter Street and Champion Parade, Port Moresby
(Tolukuma) (each of DRD Porgera and Tolukuma being a Borrower).
2.
Australia and New Zealand Banking Group (PNG) Limited incorporated in PNG, with of
Level 3, Defens Haus, Corner Hunter Street and Champion Parade, Port Moresby (the
Primary Lender).
3.
The Banks and Financial Institutions named in Schedule 1 (each an LC Participant).
4.
ANZ Fiduciary Services Pty Ltd (ABN 91 100 709 493) of Level 12, 530 Collins Street,
Melbourne, Victoria 3000 (the Security Trustee).
5.
Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) of Level 17,
530 Collins Street, Melbourne, Victoria, 3000 (the Agent).
Recitals
The Borrowers have requested:
A
The Primary Lender to provide the Borrowers with a Project Debt Facility of up to
US$35,000,000 and a Working Capital Facility of up to $7,000,000.
B
The LC Participants to provide the Borrowers with a letter of credit facility to support the
amount outstanding to the Primary Lender in respect of the Project Debt Facility and the
Working Capital Facility,
on the terms and conditions of this Agreement.
It is agreed as follows.
1.
Definitions and Interpretation
1.1 Definitions
The following definitions apply unless the context requires otherwise.
Accommodation Date means a Drawdown Date or a Selection Date.
Account Bank means Australia and New Zealand Banking Group Limited.
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Accounting Principles means generally accepted accounting practice as defined in s172 of the
Companies Act.
Accounts means profit and loss accounts, balance sheets 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.
Additional Security means the Security Interests created or existing under the Additional Security
Documents.
Additional Security Documents means:
(a)
the Porgera Tenement Mortgage;
(b)
the Porgera Project Charge;
(c)
the Porgera Tripartite Deed; and
(d)
any other document entered into by DRD Porgera in respect of its Porgera Interest as a
result of the discharge by it of the undertaking contained in clause 22.1(aa).
Anniversary of any day shall mean the day falling twelve months after such day.
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,
or a Related Entity of that entity;
(c)
a Related Entity of an entity included in paragraph (b) or (e);
(d)
a director of that entity or of an entity included in paragraph (a), (b) or (c) 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 a 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 Act 2001; 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
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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.
Authorisation includes:
(a)
any consent, authorisation, registration, filing, lodgement, agreement, notarisation,
certificate, permission, licence, approval, authority or exemption from, by or with a
Government Agency; or
(b)
in relation to anything which will be fully or partly prohibited or restricted by law if a
Government Agency intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry of that period without intervention
or action.
Authorised Investment means any full recourse monetary obligation denominated in (or hedged
into) US dollars or Kina and payable in full, or readily marketable, within six months of its
acquisition which is owed or guaranteed by:
(a)
Australia, the United States of America, Canada, Japan or any member of the European
Union which are rated not less than A-1, P-1 or equivalent by a Rating Agency or, in the
case of obligations denominated in Kina only, PNG;
(b)
any prime bank of any jurisdiction described in paragraph (a) (but only, in the case of PNG,
obligations denominated in Kina) or any branch, wherever located, of any such bank;
(c)
in the case of commercial paper, any corporation or entity the short-term obligations of
which are rated not less than A-1, P-1 or equivalent by a Rating Agency; or
(d)
such other investment as the Agent agrees for the purposes of clause 22.3.
Authorised Officer means:
(a)
in respect of a Relevant Company, any director or secretary, or any person from time to
time nominated as an Authorised Officer by the Relevant Company by a notice to the
Agent accompanied by certified copies of signatures of all new persons so appointed; and
(b)
in respect of the Agent, a Financier or the Security Trustee, any person whose title or acting
title includes the word Manager, Director, Head or Executive or cognate expressions, or
any secretary or director.
Availability Period means, in respect of a Loan Facility, the period commencing on the date (the
Commencement Date) on which the conditions precedent set out in clause 20 applicable to the
relevant Facility have been satisfied and ending on:
(a)
in the case of the Project Debt Facility, 31 December 2006 date as the Agent acting on the
instructions of the Majority Financiers may agree in writing); and
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(b)
in the case of the Working Capital Facility, the date which is 2 years from the
Commencement Date or, if the Agent (acting on the instructions of the Majority Financiers)
in its absolute discretion agrees in writing to extend the Availability Period of the Working
Capital Facility from the Expiry Date or from each Anniversary of the Expiry Date, the date
which falls twelve months after the Expiry Date or such Anniversary (as the case may be).
Base Case Financial Model means the audited base case financial model prepared by the Borrowers
(and, on Financial Close, initialled by the Borrowers and the Agent for identification) and updated
by the Borrowers (in consultation with the gent) quarterly in accordance with information provided
by the Borrowers.
Beneficiary Accession Deed has the meaning given to that expression in the Security Trust Deed.
Business Day means a weekday on which:
(a)
(only for the purpose of determining LIBOR) the relevant financial markets are open in
London;
(b)
(except for the purpose of determining LIBOR) banks are open for business in Melbourne,
Johannesburg and Port Moresby; and
(c)
in the case of determining the length of a Funding Period or where a payment is to be made
banks are open for business in Melbourne.
Cashflow Available for Debt Service (or CFADs) means, for any period, the sum of all amounts
received or, as appropriate, projected in the Base Case Financial Model and shown against the line

 

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