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Facility Agreement |
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2007 |
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Preview shows 28KB of 147KB total |
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$46 |
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[LOGO]
Allens Arthur Robinson [LOGO]
Facility Agreement
Lihir Australian Holdings Pty Limited
Australia and New Zealand Banking Group Limited
BALLARAT GOLDFIELDS FACILITY
Allens Arthur Robinson
Riverside Centre
123 Eagle Street
Brisbane QLD 4000
Tel 61 7 3334 3000
Fax 61 7 3334 3444
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2006
{PAGE}
Facility Agreement Allens Arthur Robinson [LOGO]
{TABLE}
{S} {C}
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
{/TABLE}
Page (i)
{PAGE}
Facility Agreement Allens Arthur Robinson [LOGO]
{TABLE}
{S} {C}
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
{/TABLE}
Page (ii)
{PAGE}
Facility Agreement Allens Arthur Robinson [LOGO]
{TABLE}
{S} {C}
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
{/TABLE}
Page (iii)
{PAGE}
Facility Agreement Allens Arthur Robinson[LOGO]
DATE 17 october 2006
PARTIES
1. LIHIR AUSTRALIAN HOLDINGS PTY LIMITED ACN 121 554 443 of Level 9, 500
Queen Street, Brisbane (the BORROWER)
2. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522,
having an office at Level 17, 530 Collins Street, Melbourne (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
{PAGE}
Facility Agreement Allens Arthur Robinson[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 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 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
{PAGE}
Facility Agreement Allens Arthur Robinson[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
{PAGE}
Facility Agreement Allens Arthur Robinson [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
{PAGE}
Facility Agreement Allens Arthur Robinson [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.
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