DATED 4 June 1993
BETWEEN
ACM (NEW ZEALAND) LIMITED
AND
AMAX GOLD INC.
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DEED OF INDEMNITY
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BELL GULLY BUDDLE WEIR
SOLICITORS
WELLINGTON & AUCKLAND
DCS:236
DATED THE 4TH DAY OF JUNE 1993
BETWEEN
(1) ACM (NEW ZEALAND) LIMITED, a duly incorporated company having its principal
office at 15th Floor, National Mutual Centre, 37-41 Shortland Street,
Auckland, New Zealand ("ACMNZ");
(2) AMAX GOLD INC. a duly incorporated company having its principal office at
350 Indiana Street, Golden, Colorado, United States of America ("AMAX")
RECITALS
A. ACMNZ is the "Subscriber" under a Share Subscription Agreement dated 4 June
1993 ("Share Subscription Agreement") with Amax and Waihi Financing Limited
("Waihi") whereby ACMNZ has agreed from time to time to subscribe to and
pay for redeemable preference shares issued in the capital of Waihi.
B. ACMNZ, in satisfaction of an undertaking given to AMAX as a condition for
AMAX's entry into the Share Subscription Agreement, has agreed to execute
this Deed.
IN CONSIDERATION of AMAX at the request of ACMNZ entering into and becoming
bound by the Share Subscription Agreement, ACMNZ agrees for the benefit of AMAX
as follows:
DEFINITIONS
1. TO the extent any capitalised terms and expressions are used in this Deed
(including the recitals hereto) without specific definition, unless the context
otherwise requires those terms and expressions shall have the same meaning as
ascribed to them in the Share Subscription Agreement.
INTERPRETATION
2. IN the interpretation of this Deed unless the context otherwise requires:
2.1 the singular number shall include the plural number and vice versa,
and words importing any gender include all other genders;
2.2 references to "person" include any company, association, society, firm
or other institution whether incorporated or unincorporated.
2.3 references to a "claim" include both oral and written demands or
notices of breach of contract, default or violation of duties under
statute, regulations or conditions of permits and licences.
2.4 the word "including" and similar expressions do not imply any
limitation; and
2.5 the word "AMAX" includes all related companies of AMAX Gold Inc within
the meaning of Section 2(5) of the Companies Act of 1955 New Zealand or any
corresponding legislation of any other jurisdiction applicable to AMAX Gold
Inc. other than Waihi, AHNZ, ARNZ, AGMNZ.
INDEMNITY
3. AS a separate, continuing and primary obligation, with effect (unless
otherwise provided) from the First Issue Date ACMNZ hereby agrees to indemnity
AMAX and to hold AMAX harmless and defended against all losses, claims or costs
suffered or incurred by AMAX whatsoever (including, without limitation, claims
made by any third party) directly or indirectly arising out of or in respect of
or resulting from:
3.1 the Share Subscription Agreement and other agreements entered into
contemporaneously with that agreement including the Share Sale Agreement,
and Call Option Agreement, this obligation to be effective upon execution
of this Deed;
3.2 the Joint Venture Agreement as amended and all ancillary agreements as
modified, amended or entered into subsequently including the Principal's
Deed, this obligation to be effective upon execution of this Deed.
3.3 the ownership and operation of the Martha Hill Gold Mine including the
Management Agreement with the Project Manager, approved budgets and
authorisations for expenditure, contracts with vendors, labour awards and
employment contracts and all other contracts and arrangements.
3.4 the statutory and regulatory obligations for operation of the Martha
Hill Gold Mine and mining licence including the provisions of the Mining
Act 1971 Resource Management Act 1991, Crown Minerals Act 1991, work
programmes, permits, regional and district council plans, orders and
consents;
3.5 any environmental liability connected with ownership and operation of
the Martha Hill Gold Mine, whether imposed administratively or judicially,
arising as a result of any
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environmental law, rule, regulation, permit, order or policy of any
governmental entity with jurisdiction, or arising under the common law,
relating to damage to or the protection, preservation, reclamation, or
rehabilitation of the environment, or arising out of conditions
constituting a nuisance, such as blasting, dust, or noise.
3.6 the actions and omissions of Waihi, AHNZ, ARNZ, AGMNZ, and MML done or
omitted after the First Issue Date or pursuant to or in accordance with the
Share Subscription Agreement, Share Sale Agreement, or with the consent or
ratification of ACMNZ;
3.7 the Guarantee and Indemnity Agreements in favour of Chase Manhatten
Bank Australia Limited to secure the financial obligations of AGMNZ and
MML, until these obligations are discharged by the release of AMAX, AGMNZ
and MML from said agreements;
3.8 the Carrick Joint Venture Exploration Licence but only in so far as
the act, fact, matter or circumstance of the claim occurs after the First
Issue Date;
3.9 AMAX continuing to hold shares in the capital of Waihi after the First
Issue Date or continuing to be a related company of AHNZ, ARNZ or AGMNZ
after the First Issue Date but, unless otherwise covered by another
paragraph of this clause, only if and to the extent that AMAX would not
have incurred that loss, claim or cost had it ceased to hold any shares in
Waihi on the First Issue Date or had it ceased to be such a related company
on the First Issue Date.
INDEMNITY IRREVOCABLE AND ENFORCEABLE
4. THIS indemnity is unconditional and irrevocable, and is a continuing
indemnity which other than as expressly limited in Clause 7, shall extend to all
losses, claims or costs (if any) from time to time and at any time suffered or
incurred by AMAX in the matters described in clause 3.
5. EACH of the AMAX related companies may enforce this Deed against ACMNZ as
envisaged by and pursuant to section 4 of the Contracts (Privity) Act 1982.
INDEMNITY NOT DISCHARGED
6. ACMNZ'S liability hereunder shall not be discharged or impaired by:
6.1 any amendment or variation consented to in writing by ACMNZ of the
agreements described in clause 3, or any assignment by ACMNZ or consented
to by ACMNZ;
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6.2 any granting of time or any other indulgence to ACMNZ or by ACMNZ to a
third party or any agreement by or on behalf of ACMNZ that AMAX will not
make any claim or initiate any proceedings against or otherwise seek
recourse from a third party under or in connection with the matters
described in clause 3;
6.3 any other act, event, neglect or omission which subject to the
provisions of this Deed would or might but for this clause operate to
decrease, impair or discharge ACMNZ's liability hereunder except to the
extent such act event neglect or omission was under the control of AMAX and
has caused ACMNZ's exposure hereunder to be increased, without ACMNZ's
consent.
ACMNZ'S LIABILITY LIMITED
7. ACMNZ'S liability or obligation to AMAX in connection with any losses,
claims or costs suffered or incurred by AMAX shall be reduced to the extent that
the circumstances of the claim, loss or cost are directly related to:
7.1 any amount which may become payable by AMAX pursuant to or in
consequence of breach of the Share Sale Agreement or Share Subscription
Agreement or the other agreements referred to in Clause 3.1 or the direct
and intended effect on Amax of the express provisions of such agreements
(not being the effect of a third party claim against Amax); or
7.2 any act, fact or omission which is not subject to either clause 7.2 of
the Share Subscription Agreement or clause 7.4 of the Share Sale Agreement
that is, or gives rise to a material breach of any provision of the Share
Subscription Agreement or Share Sale Agreement which is intended to be
binding upon or observed by AMAX; or
7.3 any undisclosed agreement arrangement or understanding to which AMAX
is or becomes a party to; or
7.4 any other act or omission of AMAX done or committed after the date of
this Deed not falling within clauses 7.1 or 7.2 of this Deed except as done
in accordance with the Share Subscription Agreement, Share Sale Agreement
or in compliance with a compulsion under relevant statutes or regulations
applying to AMAX, or which have been consented to or ratified by ACMNZ.
7.5 the making of the disclosure in paragraph (g) of Appendix (9) to
Schedule 2 to the Share Sale Agreement or the giving or the content of the
warranty in paragraph (8) of Schedule 2 to the Share Subscription
Agreement.
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NOTICE OF CLAIM
8. AMAX hereby undertakes that upon becoming aware of circumstances likely to
give rise to a claim being made under clause 3, AMAX must promptly give notice
to ACMNZ of those circumstances and must at the time of giving notice supply to
ACMNZ [all information and material regarding the circumstances and likely
claims as may be available to AMAX].
CONTROL OF DEFENSE
9. IF so required by ACMNZ, on the condition of ACMNZ providing to AMAX a bank
guarantee of other security acceptable to AMAX for the amount of AMAX's claim
against ACMNZ under clause 3, AMAX must permit ACMNZ (subject to clause 10) at
its own cost and expense (including legal costs and expenses and the internal
management costs and expense and cost of employees time incurred by AMAX in
providing any assistance to ACMNZ), to take the action ACMNZ deems fit to
negotiate, settle, compromise, defend or otherwise contest any third party claim
or suit giving rise to AMAX's claim against ACMNZ under clause 3 or to make such
counterclaim which AMAX may have against that third party and to take over the
conduct of any proceedings commenced by AMAX in connection with any such claim
or suit. PROVIDED THAT AMAX shall have the option to take over control of
negotiations, litigation and related action with respect to any particular third
party claim or suit, in which case ACMNZ shall have no liability in respect of
such third party claim or suit other than for the costs and expenses referred to
in this clause.
10. EACH Party must on request provide the other Party all reasonable
assistance, including access to any relevant documents in its possession power
or control (including the documents referred to in clause 3) in connection with
investigating and exercising the rights conferred by clause 9. ACMNZ must:
10.1 consult with AMAX regarding the appointment of legal advisors
(including Counsel) and must not appoint any legal adviser to whose
appointment AMAX has objected on reasonable grounds;
10.2 keep AMAX reasonably and promptly informed of all material
negotiations, any proposed settlement, compromise or counterclaim and all
material steps proposed to be taken to defend or otherwise contest a claim
or suit; and
10.3 give reasonable consideration to the wishes of AMAX regarding any
negotiations, settlement, compromise, defense or other contest or
counterclaim (but without being obliged to accede to those wishes).
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AMAX NEUTRAL
11. IF any claim is made on AMAX as a consequence of entering into the Share
Subscription Agreement, ACMNZ as a separate continuing and primary obligation
undertakes to AMAX:
11.1 that it will not seek to avoid, rescind or terminate the Share
Subscription Agreement nor seek by any means a reduction limitation or
modification of its obligations under the Share Subscription Agreement to
subscribe for redeemable preference shares in the capital of Waihi for the
reason only that the transactions contemplated by the Share Sale Agreement
and Share Subscription Agreement taken as a whole or by the Share
Subscription Agreement give rise to the operation of the provisions of
clause 6.03 and 6.05 of the Joint Venture Agreement;
11.2 that if by order of a Court of competent jurisdiction which is final
and binding, otherwise than at the instigation of AMAX, the Share
Subscription Agreement is declared to be void or otherwise to be a nullity
or is set aside or is modified and given effect to and notwithstanding the
foregoing AGMNZ must comply with clause 6.03 of the Joint Venture Agreement
on the grounds only that the Share Subscription Agreement has been entered
into resulting in the price determined by an independent expert pursuant to
clause 6.05 of the Joint Venture Agreement and payable to AGMNZ in
consequence of the operation of clause 6.03 of the Joint Venture Agreement,
for the direct and indirect interest of AGMNZ in the Martha Hill Joint
Venture, being less than the equivalent of NZ$15 million plus the value of
15,500 ounces of gold deliverable in equal half yearly instalments over 5
years as contemplated in the Share Subscription Agreement, ACMNZ shall pay
to AMAX the difference between that equivalent and that price;
PROVIDED THAT the rights of ACMNZ and the obligations of AMAX in connection with
a breach by AMAX of the undertaking in clause 7.1(a) of the Share Subscription
Agreement shall not be diminished, extinguished, limited or otherwise affected
by the undertakings in this clause.
NOTICES
12.1 A notice of other communication in connection with this Deed by or to
ACMNZ to or by AMAX must be in writing and:
12.1.1 delivered by hand;
12.1.2 sent by prepaid airmail; or
12.1.3 sent by international courier; or
12.1.4 sent by facsimile,
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to the address or facsimile number for service described below.
12.2 A notice or other communication is sufficiently given if:
12.2.1 delivered by hand, upon delivery;
12.2.2 airmailed to an address outside New Zealand, seven days after
posting;
12.2.3 couriered internationally, 3 days after dispatch;
12.2.4 sent by facsimile on the date it is sent if this is a Business
Day and it is sent no later than 4.00 pm (receiver's time) and
otherwise on the next Business Day after being sent, if following
transmission the sender receives a transmission confirmation
report or if the sender's facsimile machine is not equipped to
issue a transmission confirmation report then upon the sender
receiving acknowledgement of receipt in legible form from the
addressee.
12.3 A party who receives a notice or other communication by facsimile must
immediately acknowledge receipt to the sender.
12.4 Each party's address or facsimile number for service is:
in the case of AMAX:
Name: Amax Gold Inc.
(Attention: President and General Counsel)
Address: 350 Indiana Street
Colden
Colorado,80401-5081
Facsimile No: (303) 273 0708
in the case of ACMNZ:
Name: ACM (New Zealand) Limited
(Attention: Mr. Steven Dean)
Address: c/-Poseidon Gold Limited
100 Hutt Street
Adelaide, South Australia, 5000
Facsimile No: (618) 232 0198
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12.5 ACMNZ or AMAX may change its address or facsimile number for service by
giving notice of that change to the other of them.
12.6 A certificate signed by or on behalf of a party giving a notice or other
communication by any officer or employee of that party stating the date on which
that notice or other communication was delivered or sent is prima facie evidence
of the date on which that notice or other communication was delivered or sent.
FURTHER ASSURANCES
13. EACH party agrees to execute and deliver any documents, and to do all
things as may reasonably be required by the other party to obtain the full
benefit of this deed according to its true intent.
CONFIDENTIALITY
14. THE provisions of clause 21 of the Share Subscription Agreement shall
apply mutatis mutandis to this Deed and to the negotiations and dealings between
AMAX and ACMNZ connected with this Deed.
NO WAIVER
15. NO failure, delay or indulgence by either party in exercising any power
or right conferred on that party by this deed shall operate as a waiver of such
power or right. A single or partial exercise of any such power or right shall
not preclude further exercises of that power or right or the exercise of any
other power or right.
ASSIGNMENT
16. NEITHER party shall transfer, assign, create any charge over or deal in
any manner with the benefit or burden of this deed.
EXPIRATION OF DEED
17. EXCEPT as to ACMNZ's liability and obligation to AMAX under clause 11 of
this Deed, the indemnity contained in this Deed shall expire if the Share
Subscription Agreement or Share Sale Agreement is either declared to be void or
otherwise becomes a nullity or either of them is modified so as to deprive ACMNZ
of the benefit intended by those agreements under a final judgment entered by a
Court of competent jurisdiction or AMAX consents to the recission of the Share
Subscription Agreement or Share Sale Agreement; PROVIDED THAT any claims arising
from any fact matter circumstance or omission occurring after the date of this
Deed but prior to such expiration shall be preserved and the conditions of this
Deed shall survive expiration as to those claims.
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GOVERNING LAW
18. THIS Agreement shall be governed by and construed in accordance with the
law of New Zealand, and the parties hereby submit to the non-exclusive
jurisdiction of the courts of New Zealand and hereby waive any defence to the
enforcement of judgments rendered on such disputes.
IN WITNESS WHEREOF these presents have been executed the day and year first
hereinbefore written.
EXECUTED for and on behalf of )
ACM (NEW ZEALAND) LIMITED )
by being SIGNED SEALED and )
DELIVERED by P.W. O'Regan )
and R.A. Fisher two of its )
attorneys under power of ) /s/ PW O'Regan
attorney dated 31 May 1993 ) /s/ RA Fisher
(who by their execution )
warrants that neither of )
them has notice of the )
revocation of power of )
attorney) in the presence )
of: )
/s/ A Miller
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Witness Adrienne Miller
Occupation: Solicitor
Address: Wellington
EXECUTED for and on behalf of )
AMAX GOLD INC. by being )
DELIVERED by Richard Clement )
Driver its attorney under )
power of attorney dated )
2 June 1993 (who by his ) /S/ RC Driver
or her execution warrants )
that he or she has no notion )
of the revocation of power )
of attorney) in the presence )
of: )
/s/ John McLean
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Witness John McLean
Occupation: Solicitor
Address: Wellington
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CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
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I, P.W. O'REGAN of Wellington, Solicitor, hereby certify that by Power of
Attorney dated 31 May 1993 ACM (NEW ZEALAND) LIMITED appointed me as its
attorney on and subject to the conditions set out in the said Power of Attorney
and that, as at the date hereof, I have not received any notice or information
of the revocation of the said Power of Attorney by any means whatsoever.
SIGNED at Wellington this 4th day of June 1993
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/s/ PW O'Regan
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P.W. O'Regan
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CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
--------------------------------------------------
I, R.A. FISHER of Auckland, Solicitor, hereby certify that by Power of Attorney
dated 31 May 1993 ACM (NEW ZEALAND) LIMITED appointed me as its attorney on and
subject to the conditions set out in the said Power of Attorney and that, as at
the date hereof, I have not received any notice or information of the revocation
of the said Power of Attorney by any means whatsoever.
SIGNED at Wellington this 4th day of June 1993
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s/ RA Fisher
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R.A. Fisher
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CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
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I, RICHARD CLEMENT DRIVER, of Kenthurst, New South Wales, Australia, HEREBY
CERTIFY:
1. That by deed dated 2 June 1993 Amax Gold Inc. appointed me its attorney on
the terms and conditions set out in such deed; and
2. That at the date of this certificate I have not received any notice or
information of the revocation of such appointment.
SIGNED at Wellington this 4th day of June 1993
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/s/ RC Driver
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Signature of attorney
giving certificate
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