STRAITS MINING PTY LTD
NORD AUSTRALEX NOMINEES PTY LTD
TRITTON SALE AGREEMENT
CORRS CHAMBERS WESTGARTH
Lawyers
Level 32, Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
AUSTRALIA
Tel: (02) 9210 6500
Fax: (02) 9210 6611
DX: 133 SYDNEY
Ref: MGG
STRA3333-2700278
S/993010/4
6
CONTENTS
1 INTERPRETATION 7
2 SALE AND PURCHASE OF TRITTON PROJECT INTEREST 10
3 DEFERRED PAYMENTS 11
4 DELAYED TRANSFER OF MINING LEASE 12
5 NORD INDEMNITY 13
6 STRAITS INDEMNITY AND PAYMENT FOR ENVIRONMENTAL LIABILITIES 13
7 WARRANTIES 13
8 VARIATION OF GIRILAMBONE EXPLORATION JOINT VENTURE 14
9 VARIATION OF GIRILAMBONE NORTH MINING JOINT VENTURE 14
10 MISCELLANEOUS 15
7
THIS AGREEMENT is made on the 1st day of June 2000
BETWEEN Straits Mining Pty Ltd ACN 055 020 614 of Level 3,
Goldfields House, 1 Alfred Street Sydney ("Straits")
AND Nord Australex Nominees Pty Ltd ACN 001 657 272 of
Level 15, 3 Spring Street Sydney ("Nord")
RECITALS
A Straits and Nord are party to the Girilambone Exploration
Joint Venture and also to the Girilambone North Mining Joint
Venture.
B Straits has agreed to sell and assign to Nord and Nord has
agreed to purchase from Straits the Tritton Project Interest, on
the terms set out in this Agreement.
IT IS AGREED
1 INTERPRETATION
1.1 Definitions
In this document:
"Act" means the Mining Act 1992.
"Ancillary Licences" means any Ancillary Licences granted
under the Act as at the date of this Agreement within the
Tritton Project Area.
"Application" means Mining Lease Application 86 lodged 13
May 1997 by the parties under the Girilambone Exploration
Joint Venture and any mining lease granted from such
application.
"Approval" means an approval or approvals from the Minister
in accordance with section 121 of the Act to the transfer
(but not the registration of the transfer) to Nord of all
interests in the Mining Lease under this Agreement, without
the addition of further conditions to those tenements or on
terms otherwise acceptable to Nord.
"Closure Plan" means the Decommissioning and Rehabilitation
Plan section in the August 1999 Annual Environmental
Management Review prepared for the Girilambone North Mining
Joint Venture for the mining operations on the Mining
Lease, as amended by the Girilambone North Mining Joint
Venture, from time to time.
"Completion" means completion of the sale and purchase of
the Tritton Project Interest under this Agreement."
8
"Copper Oxide" means any copper mineralisation that can be
extracted by heap leaching techniques.
"Deferred Payments" means the Instalment Payments forming
part of the Purchase Price and payable by Nord in
accordance with clause 3.
"Freehold Land" means the land identified in Schedule 1.
"Girilambone Copper Project" means the mining operations
located on Mining Lease 1280 known by that name, owned and
operated by the parties in joint venture.
"Girilambone Exploration Joint Venture" means the joint
venture between the parties constituted by the Girilambone
Exploration Joint Venture Agreement.
"Girilambone Exploration Joint Venture Agreement" means the
agreement of that name between the parties, dated 26 August
1992.
"Girilambone North Mining Joint Venture" means the joint
venture between the parties to conduct the mining
operations located on the Mining Lease, constituted by the
Girilambone North Mining Joint Venture Agreement.
"Girilambone North Mining Joint Venture Agreement" means
the Agreement of that name between the parties, dated 19
February 1997.
"Interest Rate" means the indicator reference rate for
commercial loans quoted by National Australia Bank from
time to time, plus 3%.
"Life of Mine Plan" means the life of mine plan adopted by
the parties under the Girilambone Mining Joint Venture at
the date of this Agreement.
"Mining Lease" means Mining Lease 1383.
"Minister" means the Minister conferred with the power to
administer the Act.
"Option Agreement" means the Option Agreement in the form
attached as Attachment A.
"Purchase Price" means $9,000,000, made up of the Up-front
Payment and the Deferred Payments.
"Security Documents" means:
(a) the charge in the form attached as Attachment B; and
(b) the tenement mortgage in the form attached as
Attachment C; and
(c) the real property mortgage in the form attached as
Attachment D.
"Transfer Forms" means the Form 12 application for the
Approval and the Form 13 application for registration of
transfer of the Mining Lease, prepared in accordance with
the regulations under the Act.
9
"Tritton Project Area" means:
(a) the area of the Application; and
(b) the area of the Mining Lease.
"Tritton Project Assets" means:
(a) the interest of the parties under the Girilambone
Exploration Joint Venture in the Tritton Project Area;
(b) the interest of the parties under the Girilambone North
Mining Joint Venture in the Tritton Project Area;
(c) all Mining Information existing under the Girilambone
Exploration Joint Venture Agreement related to the Tritton
Project Area;
(d) the interest of the parties under the Girilambone
Exploration Joint Venture in the Application;
(e) the interest of the parties under the Girilambone North
Mining Joint Venture in the Mining Lease;
(f) the interest of the parties under the Girilambone North
Mining Joint Venture in the Ancillary Licences;
(g) the interest of the parties under the Girilambone North
Mining Joint Venture or the Girilambone Exploration Joint
Venture, as the case may be, in the Freehold Land;
(h) the interest of the parties in all other Joint Venture
Property (as that term is defined the Girilambone North Mining
Joint Venture Agreement) under the Girilambone North Mining Joint
Venture related to the Tritton Project Area (other than Mining
Information); and
(i) the interest of the parties in all other Joint Venture
Property (as that term is defined the Girilambone Exploration
Joint Venture Agreement) under the Girilambone Exploration Joint
Venture related to the Tritton Project Area.
"Tritton Project Interest" means Straits' 50% Percentage
Interest in the Tritton Project Assets.
"Tritton Prospect" means the area currently subject to the
Girilambone Exploration Joint Venture known as the Tritton
copper project, and identified as that area lying within
the Application and coloured red in the location map
forming Attachment E.
"Up-front Payment" means $3,000,000.
1.2 Terms defined in the Girilambone Exploration Joint Venture
Agreement
Unless the context otherwise requires, terms defined in the
Girilambone Exploration Joint Venture Agreement have the
same meaning where used in this Agreement.
10
1.3 Construction
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
(c) a reference to:
(i) $ or dollars is a reference to Australian dollars;
(ii) a person includes a firm, unincorporated association,
corporation and a government or statutory body or authority;
(iii) a person includes its legal personal representatives,
successors and assigns;
(iv) a statute, ordinance, code or other law includes regulations
and other statutory instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(v) a right includes a benefit, remedy, discretion, authority or
power; and
(vi) an obligation includes a warranty or representation and a
reference to a failure to observe or perform an obligation
includes a breach of warranty or representation;
2 SALE AND PURCHASE OF TRITTON PROJECT INTEREST
2.1 Sale and purchase
Straits agrees to sell to Nord free from encumbrances and
Nord agrees to purchase, the Tritton Project Interest for
the Purchase Price.
2.2 Completion
Completion shall take place on the date of this Agreement.
2.3 Straits' obligations on Completion
On Completion Straits must deliver to Nord:
(a) the Transfer Forms duly signed by Straits (in the form
prepared by Nord and submitted to Straits prior to Completion);
11
(b) a letter to the NSW Department of Mineral Resources, in a
form approved by Nord prior to Completion, nominating Nord as the
sole grantee of the Application;
(c) the Option Agreement duly executed by Straits;
(d) transfers, in registrable form (except for the payment
of stamp duty), in respect of the Freehold Land;
(e) title deeds to the Freehold Land; and
(f) all originals of the titles to mining tenements to be
transferred under this Agreement, and the Ancillary Licences, in
the possession of Straits, or its lenders.
2.4 Nord's obligation on Completion
On Completion Nord must deliver to Straits:
(a) the Up-front Payment by bank cheque;
(b) the Security Documents and Option Agreement, duly executed
by Nord;
(c) Australian Securities and Investments Commission Forms 309
and such other documents as are reasonably required by Straits,
duly completed and executed by Nord;
(d) a cheque payable to the Commissioner of Stamp Duties for the
amount of stamp duty payable on Security Documents; and
(e) a cheque payable to the Department of Mineral Resources for
the amount of the registration fees payable on the Security
Documents.
2.5 Possession and title
Subject to clause 4, full title to the Tritton Project
Assets shall transfer to Nord on Completion and Nord shall
take full possession of the Tritton Project Assets on
Completion.
3 DEFERRED PAYMENTS
3.1 Nord agrees to pay to Straits by bank cheque the balance of
the Purchase Price not paid on Completion (being $6,000,000) in
10 instalments (each an "Instalment Payment") on each of the
following dates (each a "Due Date"), as follows:
(a) by no later than the date 6 calendar months after
Completion, $750,000;
(b) by no later than the date 12 calendar months after
Completion, $750,000;
(c) by no later than the date 18 calendar months after
Completion, $750,000;
(d) by no later than the date 24 calendar months after
Completion, $750,000;
(e) by no later than the date 12 calendar months after the date
on which the first tonne of copper concentrate is produced from
the Tritton Project Area (which tonne must form part of a program
for substantial planned production, and not merely trial mining),
$500,000;
12
(f) by no later than the date 24 calendar months after the date
in paragraph (e), $500,000 ;
(g) by no later than the date 36 calendar months after the date
in paragraph (e), $500,000 ;
(h) by no later than the date 48 calendar months after the date
in paragraph (e), $500,000 ;
(i) by no later than the date 60 calendar months after the date
in paragraph (e), $500,000 ; and
(j) by no later than the date 72 calendar months after the date
in paragraph (e), $500,000 .
3.2 Interest on overdue payments
Nord shall pay interest on so much of any Instalment Payment
as is unpaid on the Due Date at the Interest Rate until the
full Instalment Payment plus interest is paid, such interest
to be capitalised monthly until the date of payment.
4 DELAYED TRANSFER OF MINING LEASE
4.1 Transfer of Mining Lease
The parties agree that Nord will arrange for lodgement of
the Transfer Forms for approval under the act to the
transfer of the Mining Lease, but that Nord need not seek
that transfer until after the Girilambone North Mining Joint
Venture completes its planned rehabilitation program on the
area of the Mining Lease. Nord agrees that Straits may at
any time following completion of that rehabilitation program
give notice to Nord that it requires that Nord lodge and
procure registration of the Transfer Forms and Nord agrees
that it will on receipt of such notice immediately take such
actions.
4.2 Straits not to encumber Mining Lease
Straits agrees that it will not attempt to pledge or
encumber its registered interest in the Mining Lease after
Completion.
4.3 Nord access to the Mining Lease area
Straits agrees to permit Nord access to the Mining Lease
area for purposes unrelated to the purposes of the
Girilambone North Mining Joint Venture, including allowing
Nord, to the extent permitted by law, the benefit of the
rights granted under the Ancillary Licences, provided that:
(a) Nord gives to Straits reasonable prior written notice
setting out the activities proposed to be undertaken by Nord;
(b) the proposed activities are permitted under the terms of the
Mining Lease or Ancillary Licence, as the case may be; and
13
(c) Nord provides to Straits a written confirmation that the
terms of the indemnity under clause 5 shall apply in respect of
all such proposed activities undertaken by Nord upon obtaining
access.
5 NORD INDEMNITY
5.1 Subject to clause 8.3, from Completion Nord agrees to
indemnify and hold harmless Straits against any damage, loss,
cost, expense, claim, liability or proceeding, suffered, incurred
or brought against Straits arising out of or relating to any
activities undertaken solely by or on behalf of Nord after
Completion on any part of the area of the Application.
5.2 Subject to clause 6.2, from Completion Nord agrees to
indemnify and hold harmless Straits against any damage, loss,
cost, expense, claim, liability or proceeding, suffered, incurred
or brought against Straits arising out of or relating to any
activities undertaken solely by or on behalf of Nord after
Completion on any part of the area of the Mining Lease.
6 STRAITS INDEMNITY AND PAYMENT FOR ENVIRONMENTAL LIABILITIES
6.1 Straits agrees to indemnify and hold harmless Nord against
any damage, loss, cost, expense, claim, liability or proceeding,
suffered, incurred or brought against Nord arising out of or
relating to any of the warranties contained in clause 7.
6.2 Straits agrees to bear the cost of and indemnify and hold
Nord harmless from and against 50% of all environmental
rehabilitation work to be undertaken on, or in relation to, the
Mining Lease as provided in the Closure Plan (including providing
bonds equal to 50% of any environmental bonds sought by the
Minister or his Department in respect of such liability). Upon
completion of the Closure Plan, Nord will procure the immediate
release of any bonds lodged by or on behalf of Straits in respect
of the Mining Lease.
6.3 From Completion Straits agrees to indemnify and hold
harmless Nord against 50% of any damage, loss, cost, expense,
claim, liability or proceeding, suffered, incurred or brought
against Nord arising out of or relating to any activities
undertaken solely by or on behalf of the Girilambone Exploration
Joint Venture or the Girilambone North Mining Joint Venture prior
to Completion on any part of the Tritton Project Area, other than
any actions or activities undertaken by Nord as manager of the
Girilambone Exploration Joint Venture.
7 WARRANTIES
Straits covenants, represents and warrants to Nord that:
(a) it is the sole legal and beneficial owner of the
Tritton Project Interest and has full and free right to
sell the Tritton Project Interest free of all third
party interests, royalties (other than statutory
royalties) and other encumbrances;
(b) there are no claims, actions, suits, arbitrations,
proceedings or disputes in process or to the knowledge
of Straits threatened against or affecting its interest
in the Tritton Project Interest;
(c) Straits has not gone into liquidation or provisional
liquidation, no receiver, receiver and manager or
administrator of the undertaking or assets of Straits
has been appointed and there are no outstanding
judgements current against Straits in respect of the
Tritton Project Interest;
14
(d) it will allow Nord, on reasonable prior written request,to
have access to and to copy any part of the Mining Information
held by Straits in relation to the Tritton Project Assets.
8 VARIATION OF GIRILAMBONE EXPLORATION JOINT VENTURE
8.1 Amendment to Joint Venture
On and with effect from Completion, the Girilambone
Exploration Joint Venture Agreement shall be varied by:
(a) removing from the Girilambone Exploration Joint Venture
the Tritton Project Assets; and
(b) excluding the Tritton Project Assets from the operation of
clause 7 of the Girilambone Exploration Joint Venture Agreement.
8.2 Confirmation of Joint Venture
Other than as provided under clause 8.1, the parties confirm
the continuation of the Girilambone Exploration Joint
Venture and the terms of the Girilambone Exploration Joint
Venture Agreement shall continue to apply to all areas
outside the Tritton Project Area.
8.3 Participation in Copper Oxide Mineralisation
If any copper oxide body lying within the Tritton Project
Area is found to be economic, Straits shall have a right to
a 50% interest in such Copper Oxides and to participate in
the development of this ore body in joint venture with Nord,
on the basis that:
(a) the provisions of the Girilambone Exploration Joint Venture
shall apply to the development of that ore body;
(b) the Girilambone Exploration Joint Venture fully indemnifies
Nord against any liabilities Nord may incur as owner of the
Application or Mining Lease, as a result of the Girilambone
Exploration Joint Venture's operations;
(c) the Girilambone Exploration Joint Venture's operations
do not interfere with Nord's own activities on the
Application or Mining Lease; and
(d) Straits must reimburse Nord for 50% of all costs and
expenses incurred by Nord after Completion in respect
of that ore body, including for exploration,
feasibility and development work carried out by Nord on
exploration programes in respect of Copper Oxide
bodies.
15
9 VARIATION OF GIRILAMBONE NORTH MINING JOINT VENTURE
9.1 Amendment to Joint Venture
On and with effect from transfer of the Mining Lease in
accordance with clause 4, the Girilambone North Mining Joint
Venture Agreement shall be varied by removing from the
Girilambone North Mining Joint Venture the Tritton Project
Assets.
9.2 Confirmation of Joint Venture
Other than as provided under clause 9.1, the parties confirm
the continuation of the Girilambone North Mining Joint
Venture and the terms of the Girilambone North Mining Joint
Venture Agreement shall continue to apply to all areas
outside the Mining Lease.
10 MISCELLANEOUS
10.1 Stamp duty
(a) NordNord shall, as between the parties, be liable for and
duly pay all stamp duty (including any fine or penalty except
where it arises from default by the other party) on or relating
to this document and any document executed under it.
(b) If a party other than Nord pays any stamp duty (including
any fine or penalty) on or relating to this document or any
document executed under it, Nord shall pay that amount to that
party upon demand.
10.2 Legal costs
Subject to any express provision in this document to the
contrary, each party shall bear its own legal and other
costs and expenses relating directly or indirectly to the
preparation of, and performance of its obligations under,
this document.
10.3 Further assurance
Each party shall promptly execute all documents and do all
things that any other party from time to time reasonably
requires of it to effect, perfect or complete the provisions
of this document and any transaction contemplated by it,
including:
(a) Straits doing all things reasonably required by Nord in
connection with Nord obtaining the Approval;
(b) to the extent that any Tritton Project Assets are not
identified at the time of Completion, Straits will upon
request by Nord at any time after Completion do any
things reasonably required to transfer to Nord any
Tritton Project Assets not transferred at Completion;
(c) promptly following Completion the parties agree to make any
financial adjustment necessary between themselves in respect of
rates, fees, royalties or other charges in respect of the Tritton
Project Assets, such that Nord is solely responsible for all such
rates, fees, royalties or other charges for the period after
Completion and will reimburse to Straits any pre-payment made by
Straits in respect of the period after Completion; and
16
(d) the parties doing all things reasonbly necessary to transfer
the Ancillary Licenses or to enable Nord to obtain a substitute
right, as soon as possible after those Ancillary Licenses are no
longer required for the purposes of the Girilambone North Mining
Joint Venture.
10.4 Governing law and jurisdiction
(a) This document is governed by and is to be construed in
accordance with the laws in force in New South WalesNew South
Wales.
(b) Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales and
any courts which have jurisdiction to hear appeals from any of
those courts and waives any right to object to any proceedings
being brought in those courts.
10.5 Entire understanding
(a) This document embodies the entire understanding and
agreement between the parties as to the subject matter of this
document.
(b) All previous negotiations, understandings, representations,
warranties, memoranda or commitments in relation to, or in any
way affecting, the subject matter of this document are merged in
and superseded by this document and shall be of no force or
effect whatever and no party shall be liable to any other party
in respect of those matters.
(c) No oral explanation or information provided by any party to
another shall:
(i) affect the meaning or interpretation of this document, or
(ii) constitute any collateral agreement, warranty or
understanding between any of the parties.
10.6 Confidentiality
Except as may require disclosure pursuant to the listing
rules of any stock exchange on which Straits is listed, or
as is otherwise in the public domain, Straits will keep
confidential:
(a) the terms of this Agreement; and
(b) all mining information forming part of the Tritton
Project Assets.
10.7 Merger
The obligations in this Agreement continue until satisfied
in full.
17
EXECUTION
Executed as an agreement.
EXECUTED by )
STRAITS MINING PTY LIMITED )
by its duly authorised officer in )
the presence of: )
C H Lim B J Rear
Company Secretary Director
C H Lim B J Rear
Name of Company Secretary (print) Name of Director (print)
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LIMITED )
by the party's attorney pursuant )
to power of attorney registered )
Book 4276 No 698 who states that
no notice of revocation of the
power of attorney has been
received in the presence of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
18
SCHEDULE 1
FREEHOLD LAND
Lot No Deposited Plan Area (HA) Location
11 751315 16.19 Giri North
13 751315 16.19 Giri North
14 751315 78.10 Giri North
30 751315 18.82 Giri North
40 751315 183.93 Giri North
51 751315 77.19 Giri North
108 751315 16.19 Giri North
138 751315 390.11 Giri North
139 751315 343.98 Giri North
140 751315 354.91 Giri North
141 751315 244.83 Giri North
147 824129 48.56 Giri North
1 827919 24.06 Giri North
12 858163 18.42 Giri North
61 875925 104.40 Tritton
41 879206 202.30 Tritton
19
ATTACHMENT A
OPTION AGREEMENT
20
ATTACHMENT B
CHARGE
21
ATTACHMENT C
TENEMENT MORTGAGE
22
ATTACHMENT D
REAL PROPERTY MORTGAGE
23
NORD AUSTRALEX NOMINEES PTY LTD
AND
STRAITS MINING PTY LTDNORD
AUSTRALEX NOMINEES PTY LTD
OPTION AGREEMENT
GIRILAMBONE SX-EW PLANT
CORRS CHAMBERS WESTGARTH
Lawyers
Level 32, Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
AUSTRALIA
Tel: (02) 9210 6500
Fax: (02) 9210 6611
DX: 133 SYDNEY
Ref: MGG
STRA3333-2700278
S/1025227/2
24
THIS DEED is made on the 1st day of June 2000
BETWEEN Straits Mining Pty Ltd ACN 055 020 614 of Level 3,
Goldfields House, 1 Alfred Street Sydney ("Straits")
AND Nord Australex Nominees Pty Ltd ACN 001 657 272 of
Level 15, 3 Spring Street Sydney ("Nord")
IT IS AGREED
1 INTERPRETATION
1.1 Definitions
In this document:
"End of Mine Life" means the termination of mining of ore
from the Girilambone Copper Project and of processing at
site of ore mined from that Project, in accordance with the
Life of Mine Plan, or any replacement life of mine plan
adopted by the Girilambone Mining Joint Venture.
"Exercise Price" means the consideration provided for under
clause 2.1, or clause 2.3, whichever applies.
"Girilambone Copper Project" means the mining operations
known by that name, owned and operated by the parties under
the Girilambone Mining Joint Venture.
"Girilambone Mining Joint Venture" means the joint venture
between the parties to conduct the mining operations known
as the Girilambone Copper Project, constituted by the
Girilambone Mining Joint Venture Agreement.
"Girilambone Mining Joint Venture Agreement" means the
Agreement of that name between the parties, dated 26 August
1992.
"Independent Engineer" means the person agreed between the
parties, or failing that, the person determined under clause
2.8.
"Life of Mine Plan" means the life of mine plan adopted by
the parties under the Girilambone Mining Joint Venture.
"Option Term" means the period commencing on the Completion
Date (as that term is defined in the Tritton Sale Agreement
between the parties of even date with this Agreement) and
ending on the date on which the End of Mine Life occurs.
"Replacement Plant" means a SX-EW plant suitably sized to
carry on the operations at the Girilambone Copper Project,
taking account of the stage of the operations then required
at the Girilambone Copper Project as calculable in
accordance with the Life Of Mine Plan.
25
"SX-EW Plant" means that part of the plant and equipment
currently in use at the Girilambone Copper Project defined
as the equipment within the PLS Pump-cathode stripping-
Rafinate Return Pump circuit.
1.2 Terms Defined in the Girilambone Mining Joint Venture
Agreement
Unless the context otherwise requires terms defined in the
Girilambone Mining Joint Venture Agreement have the same
meaning where used in this deed.
1.3 Construction
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
(c) a reference to:
(i) $ or dollars is a reference to Australian dollars;
(ii) a person includes a firm, unincorporated association,
corporation and a government or statutory body or authority;
(iii) a person includes its legal personal representatives,
successors and assigns;
(iv) a statute, ordinance, code or other law includes regulations
and other statutory instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(v) a right includes a benefit, remedy, discretion, authority or
power; and
(vi) an obligation includes a warranty or representation and a
reference to a failure to observe or perform an obligation
includes a breach of warranty or representation;
2 OPTION
2.1 Grant of option
For the period of the Option Term Nord irrevocably grants to
Straits its consent to Straits acquiring from the
Girilambone Mining Joint Venture the SX-EW Plant, including
an option to purchase Nord's Percentage Interest in the SX-
EW Plant, for:
(a) the sum of $1.00 ; plus
26
(b) if Straits exercises the Option before the End of Mine Life,
the provision to the Girilambone Joint Venture by delivery to the
site of the Girilambone Copper Project, of the Replacement Plant
at no cost to the Girilambone Joint Venture and without affecting
the Parties' Percentage Interests; or
(c) if Straits exercises the Option at or after the End of Mine
Life at the Girilambone Copper Project, the payment by Straits of
$1,000,000 by bank cheque to Nord.
2.2 Exercise of Option
Straits may exercise the Option:
(a) under clause 2.1(b) or 2.3(b), at any time up to the date
which is 6 months prior to the expiry of the Option Term; and
(b) under clause 2.1(c) or 2.3(c), at or after the End of Mine
Life.
by written notice to that effect given to Nord and delivery
of the Exercise Price (other than the Replacement Plant, if
applicable, which must be delivered in accordance with
clause 2.4).
2.3 Exercise of Option in stages
Straits is entitled to exercise the Option in stages, by
nominating and acquiring in accordance with this clause 2
part only of the SX-EW Plant, in which case the Exercise
Price will be:
(a) the sum of $1.00, for each partial exercise of the Option;
plus
(b) if Straits exercises the Option before the End of Mine Life,
the provision to the Girilambone Joint Venture by delivery to the
site of Girilambone Copper Project, of Replacement Plant at no
cost to the Girilambone Joint Venture and without affecting the
Parties' Percentage Interests, provided that the Replacement
Plant for the purposes of this clause 2.3(b) will mean only that
part of the SX-EW Plant as is the subject of the exercise of the
Option; or
(c) if Straits exercises the Option at or after the End of Mine
Life, the payment by Straits by bank cheque to Nord of that
fractional portion of $1,000,000 as the parties agree is equal to
the value of that part of the SX-EW Plant in respect of which the
Option is exercised, as a proportion of the whole of the SX-EW
Plant, or failing agreement between the parties on such
proportion, the proportion determined by an Independent Engineer,
and all other references in this clause 2 to the Option and
to the SX-EW Plant and the Replacement Plant shall be deemed
to refer to the relevant part the subject of the exercise of
the partial option under this clause 2.3.
2.4 Removal of SX-EW Plant
Straits must within 6 months of the exercise of the Option
or approval of the Replacement Plant under clause 2.5(a) or
(b), as the case may be:
(a) disassemble and remove the SX-EW Plant at Straits own cost;
and
27
(b) if Straits exercises the Option before the End of Mine Life
at the Girilambone Copper Project deliver and assemble at site
the Replacement Plant in such manner and time so that ore
processing operations at the Girilambone Copper Project are not
materially interrupted.
2.5 Certification from Independent Engineer
(a) If a Replacement Plant is required to be delivered by
Straits under this deed, Straits must, as soon as practicable
after:
(i) agreement by the parties that the Replacement Plant proposed
to be supplied by Straits is fit for purpose; or
(ii) failing such agreement, provision by an Independent Engineer
of an opinion that the proposed Replacement Plant is fit for
purpose,
take such steps as are required to deliver and assemble
the Replacement Plant.
(b) Within 3 months after assembly of the Replacement Plant,
Straits must deliver to Nord a certification from the Independent
Engineer certifying that the Replacement Plant is fit for
purpose.
(c) To be "fit for purpose" the Replacement Plant must at least:
(i) be capable of processing ore at a rate sufficient to meet
the Life of Mine Plan; and
(ii) be capable of producing London Metal Exchange grade A
copper, and
(iii) not in any way disadvantage the Girilambone Mining
Joint Venture including by increasing copper ore processing
costs or causing increased environmental harm.
(d) If Straits is unable to deliver a certification as required
under clause 2.5(b), then Straits shall be liable to compensate
Nord for any actual loss suffered by Nord due to the fact that
the Replacement Plant is not fit for purpose, until such time as
the Replacement Plant is made fit for purpose. In the event of
any dispute as to the amount of loss suffered by Nord for the
purpose of this clause, the parties agree to refer the
calculation of such loss to dispute resolution in accordance with
clause 4.
2.6 Condition of use
If Straits exercises the option granted under this deed
Straits may not dispose of the SX-EW Plant for a period of 2
years from the date of Straits removing the SX-EW Plant
under clause 2.4 and during that period, Straits may only
utilise the SX-EW Plant at a mine site controlled by
Straits.
2.7 Rights in Replacement Plant
If Replacement Plant has been supplied to the Girilambone
Mining Joint Venture in accordance with this clause:
28
(a) it shall immediately become Joint Venture Property under the
Girilambone Mining Joint Venture; and
(b) at the End of the Mine Life of the Girilambone Copper
Project, both Straits and Nord will have the opportunity to
submit a bid to purchase the other party's Percentage Interest in
the Replacement Plant, with the party with the highest bid being
entitled to buy the Replacement Plant from the Girilambone Mining
Joint Venture at that bid price.
2.8 Independent Engineer
If the parties are unable to agree on the Independent
Engineer, the Independent Engineer shall be that person
appointed by the president of the Australasian Institute of
Mining and Metallurgy on the application of either party.
Nord must pay the costs of an Independent Engineer appointed
under clause 2.5(a)(ii) and Straits must pay the costs of
the Independent Engineer appointed under clause 2.5(b).
2.9 Expiry of option
The option granted under this deed shall expire at the end
of the Option Term.
3 VARIATION OF GIRILAMBONE MINING JOINT VENTURE
On and with effect from the date of this document, the
Girilambone Mining Joint Venture shall be varied by
permitting the removal of the SX-EW Plant and, if required,
the provision of the Replacement Plant in accordance with
this document and the subsequent rights to purchase the
Replacement Plant under clause 2.7(b). Anything in the
Girilambone Mining Joint Venture Agreement inconsistent with
the rights and obligations under this clause is deemed
amended to the extent required to enable this clause to have
effect.
4 DISPUTE RESOLUTION
4.1 If any dispute or difference arises between the parties
under clause 2.5(d), then any party may by notice in writing to
the other, specify the nature of the dispute and call for
submission of the dispute to an independent Expert.
4.2 The Expert to be appointed will be agreed between the
parties or failing agreement, within 14 days after receipt of the
notice determined in the following manner:
(a) if the dispute or difference relates to the conduct of
mining operations or usual industry practices or matters related
thereto, then the Expert will be nominated by the President of
the Australasian Institute of Mining and Metallurgy;
(b) if the dispute relates to any financial or accounting matter
including the computation of costs and the keeping of accounts,
then the Expert will be nominated by the President of the
Institute of Chartered Accountants;
in any event, the Expert must have a reasonable commercial
and practical experience in the area of dispute.
29
4.3 The Expert must be required to accept submissions from the
parties as to the subject matter of the dispute within 14 days of
his appointment and must be required to state his determination
in writing within 28 days of appointment.
4.4 The Expert must be required to undertake to keep
confidential matters coming to his knowledge by reasons of his
appointment.
4.5 The Expert has the following powers:
(a) to inform himself independently as to facts and if necessary
technical matters to which the dispute relates;
(b) to receive written submissions sworn or unsworn, written
statements and photocopy documents and to act upon the same;
(c) to consult with such other professionally qualified persons
as he in his absolute discretion thinks fit;
(d) to take such measures as he thinks fit to expedite the
completion of the dispute resolution.
The dispute resolution will be held in Sydney, New South
Wales unless the parties to the dispute agree otherwise.
4.6 The determination of the Expert will be final and binding on
the Parties. The costs of the Expert will be borne in the
manner determined by the Expert.
5 MISCELLANEOUS
5.1 Stamp duty
(a) Straits shall, as between the parties, be liable
for and duly pay all stamp duty (including any fine or
penalty except where it arises from default by the
other party) on or relating to this document and any
document executed under it.
(b) If a party other than Straits pays any stamp duty (including
any fine or penalty) on or relating to this document or any
document executed under it, Straits shall pay that amount to that
party upon demand.
5.2 Governing law
This document is governed by and is to be construed in
accordance with the laws applicable in New South Wales.
5.3 Further assurances
Each party must do, sign, execute and deliver and must
procure that each of its employees and agents does, signs,
executes and delivers all agreements, documents, instruments
and acts as reasonably required of it or them by notice from
another party effectively to carry out and give full effect
to this document and the rights and obligations of the
parties under it.
30
5.4 Counterparts
The deed may consist of one or more counterpart copies and
all counterparts, when taken together, constitute the one
document.
EXECUTION
Executed as a deed.
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LIMITED by the )
party's attorney pursuant to )
power of attorney registered )
Book 4276 No 698 who states )
that no notice of revocation )
of the power of attorney has
been received in the presence
of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
EXECUTED by STRAITS MINING PTY )
LIMITED )
C H Lim B J Rear
Company Secretary Director
C H Lim B J Rear
Name of Company Secretary Name of Director (print)
(print)
31
NORD AUSTRALEX NOMINEES PTY LIMITED
NORD PACIFIC LIMITED
STRAITS MINING PTY LIMITED
FIXED AND FLOATING CHARGE
CORRS CHAMBERS WESTGARTH
Lawyers
Level 32, Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
AUSTRALIA
Tel: (02) 9210 6500
Fax: (02) 9210 6611
DX: 133 SYDNEY
Ref: AJM/MCM
2700278
S/969512/10
32
CONTENTS
1 INTERPRETATION 36
1.1 DEFINITIONS 36
1.2 CONSTRUCTION 41
1.3 TERMS DEFINED IN THE TRITTON SALE AGREEMENT 42
1.4 HEADINGS 42
1.5 CORPORATIONS LAW AND ACCOUNTING STANDARDS 43
1.6 SUBSISTING EVENTS AND POTENTIAL EVENTS OF DEFAULT 43
1.7 CHARGOR 43
2 CONSIDERATION 43
3 CHARGE AND DISCHARGE 43
3.1 CHARGE 43
3.2 DISCHARGE 43
3.3 PRIORITY AMOUNT 43
4 CHARGE 44
4.1 NATURE 44
4.2 CHATTEL SECURITIES ACT 44
4.3 REAL PROPERTY MORTGAGE 44
5 PAYMENT OF SECURED MONEY 45
5.1 PLACE, MANNER AND TIME OF PAYMENT 45
5.2 CURRENCY OF PAYMENT 45
5.3 APPROPRIATION 45
5.4 PAYMENTS IN GROSS 45
6 INTEREST 45
6.1 INTEREST 45
6.2 RATE 46
6.3 CAPITALISATION 46
6.4 MERGER 46
7 WARRANTIES AND REPRESENTATIONS 46
7.1 NATURE 46
7.2 GENERAL 48
8 GENERAL OBLIGATIONS 48
33
8.1 PROHIBITED DEALINGS 48
8.2 VARIATION OF OTHER SECURED INDEBTEDNESS 48
8.3 INFORMATION TO BE GIVEN 49
8.4 INSURANCE 49
8.5 COMPENSATION EVENT 50
8.6 TITLE DOCUMENTS 51
8.7 REPAIR 51
8.8 TAXES 51
8.9 CAVEATS 51
8.10 DEFAULT 51
8.11 CHARGOR'S OTHER OBLIGATIONS 51
8.12 CHARGEE'S RIGHT TO ENTER 51
8.13 REPLACEMENT OF IMPROVEMENTS 52
8.14 NOTICE TO CONTRACTORS AND FUTURE CONTRACTORS 52
8.15 DEED OF PRIORITY 52
9 EVENTS OF DEFAULT 53
9.1 EVENTS OF DEFAULT 53
10 CRYSTALLISATION 54
10.1 BY NOTICE 54
10.2 AUTOMATIC 54
10.3 REINSTATEMENT OF FLOATING CHARGE 55
10.4 FIXED CHARGE OVER CHARGED DEBT PROCEEDS 55
11 DEFAULT POWERS 56
11.1 GENERAL 56
11.2 ACCELERATION 56
11.3 STATUTORY AND IMPLIED POWERS 56
11.4 SALE 56
11.5 GENERAL DEALINGS 57
11.6 BANKRUPTCY 58
11.7 RAISE AND LEND MONEY 58
11.8 INVESTMENT OF MONEYS 58
11.9 ANCILLARY POWERS 59
11.10RECEIVERS 59
12 RECEIVERS 60
12.1 AGENT 60
12.2 POWERS 60
13 EXERCISE OF DEFAULT RIGHTS 60
13.1 NO HINDRANCE 60
13.2 CHARGEE IN POSSESSION 60
13.3 EXCLUSION OF LEGISLATION 61
34
13.4 DEFAULT NOTICE 61
14 APPLICATION OF MONEY 61
14.1 METHOD 61
14.2 CHARGEE'S CERTIFICATE AND DISPUTES 62
14.3 NO INTEREST ON REMEDY PROCEEDS 62
14.4 PAYMENT INTO BANK ACCOUNT 62
14.5 CONTINGENT AND PROSPECTIVE INDEBTEDNESS 62
14.6 PAYMENTS DURING DEFAULT NOTICE PERIOD 63
14.7 ACCOUNTING FOR REMEDY PROCEEDS 63
15 THIRD PARTY DEALINGS 63
15.1 CHARGEE'S RECEIPTS AND DISCHARGES 63
15.2 NO DUTY TO ENQUIRE 63
16 PRESERVATION OF CHARGEE'S RIGHTS 64
16.1 CONTINUING SECURITY 64
16.2 PRIMARY OBLIGATIONS 64
16.3 PRESERVATION OF CHARGOR'S OBLIGATIONS 64
16.4 SUSPENSION OF CHARGOR'S RIGHTS 64
16.5 REINSTATEMENT OF RIGHTS OF CHARGEE 64
16.6 NO MERGER 65
16.7 BANKRUPTCY OF DEBTOR 65
17 COSTS AND EXPENSES 65
17.1 NATURE 65
17.2 GOODS AND SERVICES TAX 66
17.3 LEGAL COSTS 66
17.4 REMUNERATION 66
18 INDEMNITIES 66
18.1 NATURE 66
18.2 CURRENCY DEFICIENCY 67
18.3 INDEPENDENCE AND SURVIVAL 67
19 ATTORNEY 67
19.1 APPOINTMENT 67
19.2 GENERAL 67
20 MISCELLANEOUS 68
20.1 CHARGEE'S DETERMINATION AND CERTIFICATE 68
20.2 SUPERVENING LEGISLATION 68
20.3 TIME OF THE ESSENCE 68
20.4 BUSINESS DAYS 68
35
20.5 EXCHANGE RATE 69
20.6 FURTHER ASSURANCES 69
20.7 AMENDMENT 69
20.8 WAIVER AND EXERCISE OF RIGHTS 70
20.9 RIGHTS CUMULATIVE 70
20.10APPROVAL AND CONSENT 70
20.11ASSIGNMENT 70
20.12COUNTERPARTS 70
20.13SOVEREIGN IMMUNITY 70
20.14GOVERNING LAW AND JURISDICTION 71
20.15JOINT AND SEVERAL LIABILITY 71
21 NOTICES 71
21.1 GENERAL 71
21.2 METHOD OF SERVICE 71
21.3 ADDRESS FOR SERVICE 71
21.4 SERVICE 72
21.5 SERVICE AFTER HOURS 72
21.6 PROCESS SERVICE 72
SCHEDULE - NOTICE TO CONTRACTOR
36
THIS DEED is made on the 1st day of June 2000
BETWEEN NORD AUSTRALEX NOMINEES PTY LIMITED ACN
001 657 272 ("Nord Australex") of Level 15, 3 Spring
Street Sydney NSW 2000 and NORD PACIFIC LIMITED
ARBN 062 482 900 ("Nord Pacific") of Level 15, 3
Spring Street Sydney (each a "Chargor")
AND STRAITS MINING PTY LIMITED ACN 055 020 614 of
Level 3, Goldfields House, 1 Alfred Street Sydney
NSW 2000 ("Chargee")
IT IS AGREED
1 INTERPRETATION
1.1 Definitions
In this document:
"Accounting Standards" means accounting principles and
practices consistently applied which are generally
accepted in Australia and are consistent with any
applicable legislation.
"Accounts" means profit and loss accounts and balance
sheets together with statements, reports and notes,
including a director's report or an auditor's report,
attached to or intended to be read with any of those
profit and loss accounts or balance sheets.
"Attorney" means any attorney appointed under this
document and any person who by delegation directly or
indirectly derives a right from an Attorney.
"Authorised Representative" means, in relation to any
party to this document, a person with the right to act
as the agent of that party for the purposes of this
document. It includes a director or company secretary
of that party (if it is a corporation) and, in the case
of the Chargee, an employee of the Chargee whose title
contains the word "manager" or a cognate term and a
lawyer for the Chargee. It also includes a person
appointed by a party as an Authorised Representative of
that party whose appointment is notified by the
appointor to the other party in a written notice which
contains the specimen signature of the appointee.
"Bankruptcy" means:
(a) in relation to a corporation, its winding up or
dissolution or its administration, provisional liquidation or
any administration having a similar effect;
(b) in relation to an individual, his or her bankruptcy; and
(c) in relation to a person, any arrangement (including a
scheme of arrangement), composition or compromise with, or
assignment for the benefit of, all or any class of that
person's creditors or members or a moratorium involving any of
them.
37
"Break Costs" means any liability or costs incurred by
the Chargee by reason of:
(a) liquidating or re-deploying deposits or other funds
acquired or contracted for by or on account of the Company or
the Chargee; or
(b) terminating or reversing any agreement or arrangement
(including by entering into new agreements or arrangements to
close out or net off existing agreements or arrangements)
entered into by or on account of the Company or the Chargee
with a counterparty or an internal department of the Chargee
responsible for such agreements or arrangements to hedge, fix,
swap or limit its effective cost of funding; or
(c) any loss of any margins in relation to future lending or
loss of any fees,
in relation to any financial accommodation provided or
to be provided by the Chargee under or in connection
with any Transaction Document.
"Business Day" means a day which is not a Saturday,
Sunday, public or bank holiday in Sydney.
"Charged Debt" means any actual or contingent debt or
monetary obligation from time to time forming part of
the Charged Property.
"Charged Property" means, in relation to each Chargor,
all present and future interest and rights of that
Chargor in or in relation to the Tritton Project
including but not limited to those in or in relation to:
(a) all mining information belonging to that Chargor related
to the Tritton Project;
(b) the Tritton Project Tenements;
(c) the Freehold Land;
(d) any of that Chargor's present or future property of any
kind including, but not limited to,
(i) plant, equipment, fixtures and buildings installed on
the Tritton Project Area;
(ii) any machinery and stores related to the Tritton Project;
(e) any contracts (including but not limited to forward sale
contracts), agreements, deeds or instruments to which that
Chargor is a party or to which that Chargor and the Chargee
are parties jointly, in each case related to the Tritton
Project; and
(f) all minerals produced from time to time from or on the
Tritton Project Area.
"Compensation Event" means any confiscation, resumption,
appropriation, forfeiture, repurchase, redemption or
compulsory acquisition of any Charged Property by any
person under a statute or otherwise.
38
"Encumbrance" means any interest in or right over
property and anything which prevents, restricts or
delays the registration of any interest in or dealing
with property. It includes a Security Interest.
"Environmental Law" means a law which relates to an
aspect of the environment or health.
"Event of Default" means any event or circumstance
described in clause 9.
"Financial Indebtedness" means any indebtedness or other
liability (present or future, actual or contingent)
relating to any financial accommodation including,
without limitation, indebtedness or other liability:
(a) for money borrowed or raised;
(b) relating to the sale or negotiation of any negotiable
instrument;
(c) as lessee under any finance lease, as hirer under any
hire purchase agreement or as purchaser under any title
retention agreement;
(d) relating to any redeemable preference share;
(e) under any commodity, currency or interest rate swap
agreement, forward exchange rate agreement or futures contract
(as defined in any statute); or
(f) under any Guarantee relating to any financial
accommodation.
"Financial Year" means a period of 12 months ending on
30 June.
"Government Body" means any person or body exercising an
executive, legislative, judicial or other governmental
function. It includes any public authority constituted
under a law of any country or political sub-division of
any country. It also includes any person deriving a
power directly or indirectly from any other Government
Body.
"Guarantee" means:
(a) a guarantee, indemnity, undertaking, letter of credit,
Security, acceptance or endorsement of a negotiable instrument
or other obligation given by any person to secure compliance
with an obligation by another person;
(b) an obligation (actual or contingent) of a person to
ensure the solvency of another person or the ability of
another person to comply with an obligation, including,
without limitation, by the advance of money or the acquisition
for valuable consideration of property or services; and
(c) an option under which a person is obliged upon the
exercise of the option to buy:
(i) any debt or liability owed by another person; or
(ii) any property which is subject to a Security Interest.
39
"Improvements" means any improvements, fixtures, plant
or machinery affixed to or used with any land which is
part of the Charged Property.
"Insurance" means insurance which the Chargor is obliged
to take out or maintain under a Transaction Document.
"Material Adverse Effect" means a material adverse
effect upon either:
(a) the ability of Nord Australex to comply with its payment
obligations under the Tritton Sale Agreement; or
(b) the effectiveness, priority or enforceability of any
Transaction Document.
"Mortgage of Mining Property" means the mortgage dated
on or about the date of this document of Mining Lease
1383 and the Ancillary Licences granted by the Chargor
to the Chargee.
"Permitted Encumbrance" means:
(a) an Encumbrance which has been approved by the Chargee
(including the Security Interests created by this document);
or
(b) an Encumbrance created in respect of Project Financing
provided that the Chargee may withhold its consent to such
financing if it demonstrates the Project Financing is not
advanced on reasonable and commercial terms; or
(c) a lien which arises by operation of law to secure the
payment of Taxes or moneys for services performed in relation
to property while the moneys the payment of which is secured
by that lien are not due for payment; or
(d) any royalties or other interests in favour of a
Government Body imposed by statute.
"Potential Event of Default" means any thing which with
the giving of notice, lapse of time or determination of
materiality will constitute an Event of Default.
"Project Financing" means financing arrangements into
which the Chargor enters with financier(s) pursuant to
which the Chargor obtains facilities to be used to carry
out or develop a project on the Tritton Project Area but
does not mean such arrangements where the financier is a
related body corporate of the Chargor.
"Real Property Mortgage" means the Real Property Act
mortgage dated on or about the date of this document
over the Freehold Land granted by the Chargor to the
Chargee.
"Receiver" means a receiver or receiver and manager
appointed by the Chargee under any Transaction Document
and any person who derives a right directly or
indirectly from a Receiver.
"Relevant Securities" means
(a) this document;
40
(b) the Mortgage of Mining Property;
(c) the Real Property Mortgage; and
(d) any other document which the parties agree in writing is
a Relevant Security.
"Remedy Proceeds" means moneys received from the
exercise of any right against the Charged Property.
"Representative" of a person means an officer, employee,
contractor or agent of that person.
"Secured Money" means any and all amounts which may
become due and owing by Nord Australex under or in
relation to the Transaction Documents.
Where Nord Australex would have been liable to pay such
amounts but for its Bankruptcy, it will be taken still
to be liable.
"Security" means any document or transaction which
reserves or creates a Security Interest.
"Security Interest" means any interest or right which
secures the payment of a debt or other monetary
obligation or the compliance with any other obligation.
It includes any retention of title to any property and
any right to set off or withhold payment of any deposit
or other money.
"Tax" means a tax (including, without limitation, any
tax in the nature of a goods and services tax), rate,
levy, impost and duty (other than a tax on the net
overall income of the Chargee) and any interest,
penalty, fine or expense relating to any of them.
"Threshold Amount" means $100,000 or its equivalent.
"Title Document" in relation to any property includes a
document:
(a) that is or evidences title to that property;
(b) used in the ordinary course of business as proof of
possession or control, or the right to possession or control,
of that property; or
(c) authorising or purporting to authorise, whether by
endorsement or delivery, the possessor of the document to
transfer or receive that property.
"Transaction Documents" means:
(a) the Tritton Sale Agreement;
(b) the Relevant Securities;
(c) any agreement relating to the priority of this document
or any Security which is a Relevant Security; and
41
(d) any agreement or instrument created under them.
"Tritton Project" means the copper mining project
carried out on the Tritton Project Area.
"Tritton Project Area" has the same meaning as in the
Tritton Sale Agreement.
"Tritton Project Tenements" means in relation to each
Chargor, any present or future interest and rights of
that Chargor in:
(a) the Application or arising from the Application;
(b) any mining lease granted pursuant to the Application;
(c) the Mining Lease;
(d) the Ancillary Licences; and
(e) any other present or future mining tenements, leases,
permits, easements, licences, claims, subleases, rights of way
or other rights to carry out or conduct mining operations or
matter connected with or in relation to the Tritton Project
including, but not limited to, part or all of the grant the
subject of the mining tenements issued or transferred to or
held by or held wholly or partially on behalf of that Chargor
or in which that Chargor has or acquires any interest or
shares,
including but not limited to, any present or future
applications for, or mining tenements issued in place of
those referred to in paragraphs (a), (b), (c) and (d) of
this definition and the mining tenements referred to in
paragraphs (a), (b), (c) and (d) of this definition as
renewed, extended, modified, varied, converted,
substituted or amalgamated from time to time whether
extending over the same or a greater or lesser area.
"Tritton Sale Agreement" means the agreement of that
name dated on or about the date of this document between
Nord Australex and the Chargee.
1.2 Construction
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
42
(c) a reference to:
(i) a person includes a firm, unincorporated association,
corporation and a government or statutory body or authority;
(ii) a person includes the person's legal personal
representatives, successors, assigns and substitutes,
including, without limitation, persons substituted by
novation;
(iii) a statute, ordinance, code or other law includes
regulations and other statutory instruments under it and
consolidations, amendments, re-enactments or replacements
of any of them;
(iv) a right includes a benefit, remedy, discretion and
power;
(v) an obligation includes any warranty or representation
and a reference to a failure to comply with an obligation
includes a breach of warranty or representation;
(vi) this or any other document includes the document as
varied or replaced and notwithstanding any change in the
identity of the parties;
(vii) provisions or terms of this document or another
document, agreement, understanding or arrangement includes
a reference to both express and implied provisions and
terms;
(viii) time is to local time in Sydney;
(ix) "$" or "dollars" is a reference to the lawful currency
of Australia;
(x) writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and includes
facsimile transmissions; and
(xi) any thing (including, without limitation, any amount) is
a reference to the whole or any part of it and a reference
to a group of things or persons is a reference to any one or
more of them; and
(d) a reference to this document includes all schedules,
annexures and appendices referred to in it and a reference to
an item means an item in the schedule to this document.
1.3 Terms defined in the Tritton Sale Agreement
Unless the context otherwise requires, terms defined in
the Tritton Sale Agreement have the same meaning where
used in this document.
1.4 Headings
Headings do not affect the interpretation of this
document.
43
1.5 Corporations Law and Accounting Standards
Unless expressed to the contrary:
(a) marketable security, related body corporate, share,
maximum prospective liability and subsidiary each have the
meaning which they are defined to have in the Corporations
Law; and
(b) finance lease and economic entity each have the meaning
which they are defined to have for the purposes of the
Accounting Standards.
1.6 Subsisting Events and Potential Events of Default
(a) An Event of Default subsists if it has occurred and has
not been waived by the Chargee in accordance with this
document.
(b) A Potential Event of Default subsists if it exists and
has not been waived by the Chargee in accordance with this
document.
1.7 Chargor
A reference to the Chargor is a reference to each of Nord Australex
and Nord Pacific.
2 CONSIDERATION
The Chargor has entered into this document for valuable
consideration from the Chargee and receipt of the
consideration is acknowledged.
3 CHARGE AND DISCHARGE
3.1 Charge
Each Chargor charges its Charged Property to the Chargee
to secure the payment of the Secured Money.
3.2 Discharge
The Chargee shall at the request of the Chargor
discharge the Security Interests created by this
document if Nord Australex's obligation to pay the
Secured Money is satisfied and in the Chargee's
reasonable opinion no payment towards the satisfaction
of Nord Australex's obligation to pay the Secured Money
is likely to be void, voidable or refundable under any
law (including, without limitation, any law relating to
Bankruptcy).
3.3 Priority amount
(a) The maximum prospective liability secured by this
document for the purpose of fixing priorities under section
282 of the Corporations Law but for no other purpose is
$9,000,000.
(b) This document secures the payment of all prospective
liabilities from time to time of Nord Australex to the Chargee
comprising the Secured Money and the amount secured is not
limited to the amount referred to in clause 3.3(a).
44
4 CHARGE
4.1 Nature
This document, subject to the provisions of this
document, constitutes, in relation to each Chargor:
(a) a fixed charge over any present or future interest of
that Chargor in or in relation to:
(i) all mining information belonging to that Chargor related
to the Tritton Project;
(ii) the Tritton Project Tenements;
(iii) the Freehold Land;
(iv) any plant, equipment, fixtures and buildings installed
on the Tritton Project Area;
(v) any contracts (including but not limited to forward sale
contracts), agreements, deeds or instruments to which that
Chargor is a party or to which that Chargor and Chargee are
parties jointly, in each case related to the Tritton
Project; and
(b) a floating charge over the balance of the Charged
Property including without limitation over:
(i) any machinery or stores related to the Tritton Project;
(ii) any proceeds of any contracts (including but not limited
to forward sale contracts), agreement, deeds or instruments
to which that Chargor is a party or to which that Chargor
and the Chargee are parties jointly, in each case related to
the Tritton Project; and
(iii) all minerals produced from time to time from or on the
Tritton Project Area.
4.2 Chattel Securities Act
The Security Interests created by this document will be
a legal interest over that part of the Charged Property
to which the Chattel Securities Act, 1987 of Victoria or
any corresponding legislation of any other jurisdiction
applies.
4.3 Real Property Mortgage
Nord Pacific consents to Nord Australex entering into
the Real Property Mortgage.
45
5 PAYMENT OF SECURED MONEY
5.1 Place, manner and time of payment
Nord Australex, subject to clause 11.2, shall pay the
Secured Money to the Chargee in accordance with any
agreement which obliges Nord Australex to pay it and in
the absence of agreement:
(a) upon demand and at a place and in a manner reasonably
required by the Chargee;
(b) by 11.00 a.m. local time in the place where payment is
to be made; and
(c) in immediately available funds and without set-off,
counter claims, conditions or, unless required by law,
deductions or withholdings.
5.2 Currency of payment
(a) Nord Australex shall pay the Secured Money in the
currency in which it is payable under any agreement which
obliges Nord Australex to pay it and in the absence of
agreement in the currency reasonably required by the Chargee.
(b) If the Chargee accepts a payment under this document in
a currency other than that in which payment is required by
clause 5.2(a), that payment will not satisfy the amount due
for payment except to the extent that the Chargee could in the
ordinary course of its business buy (either directly or
through a currency other than that in which the payment is
due) with the payment received the required currency within a
reasonable time of receipt after the deduction of all costs
relating to the purchase.
5.3 Appropriation
The Chargee may, subject to any express provision in
this document to the contrary, appropriate any payment
towards the satisfaction of any moneys due for payment
by Nord Australex in relation to this document in any
way that the Chargee thinks fit and notwithstanding any
purported appropriation by Nord Australex.
5.4 Payments in gross
The Chargee in applying towards satisfaction of the
Secured Money any moneys received by it shall credit
Nord Australex only with that part of those moneys which
is actually received by the Chargee in immediately
available funds.
6 INTEREST
6.1 Interest
Nord Australex shall pay interest on that part of the
Secured Money which is from time to time owing by Nord
Australex to the Chargee in accordance with the
Transaction Documents and in respect of any monies that
become payable under this document, in accordance with
this clause 6.
46
6.2 Rate
(a) Interest shall be paid in accordance with any agreement
requiring interest to be paid on the Secured Money.
(b) In the absence of any agreement, interest will accrue
from day to day at a rate of interest determined by the
Chargee from time to time, be computed from and including the
day when the moneys upon which interest is payable become
owing to the Chargee by Nord Australex until but excluding the
day of payment of those moneys, be calculated on the actual
number of days elapsed on the basis of a 365 day year and be
paid by Nord Australex upon demand.
6.3 Capitalisation
The Chargee may:
(a) capitalise, upon a monthly or such other periodical
basis as the Chargee may determine, any part of any interest
which becomes due and owing or due on demand, and interest is
payable in accordance with this document upon capitalised
interest; and
(b) continue to capitalise interest notwithstanding that as
between the Chargee and Nord Austalex the relationship of
financier and customer may have ceased, any composition
entered into or agreed to by the Chargee, any judgment or
order against Nord Australex or any other thing.
6.4 Merger
If the liability of Nord Australex to pay to the Chargee
any moneys payable under this document becomes merged in
any deed, judgment, order or other thing, Nord Australex
shall pay interest on the amount owing from time to time
under that deed, judgment, order or other thing at the
higher of the rate payable under this document and that
fixed by or payable under that deed, judgment, order or
other thing.
7 WARRANTIES AND REPRESENTATIONS
7.1 Nature
The Chargor warrants and represents that:
(a) it is duly incorporated in accordance with the laws of
its place of incorporation as stated in the Transaction
Documents or as notified to the Chargee prior to the date of
this document, validly exists under those laws and has the
capacity to sue or be sued in its own name and to own its
property and conduct its business as it is being conducted;
(b) (i) each Transaction Document is the valid and legally
binding obligation of the Chargor and is enforceable against
the Chargor by the Chargee in accordance with its terms;
(ii) each Security Interest which each Transaction Document
purports to create exists and has the priority which the
Chargee has agreed to;
47
(c) the Chargor has capacity unconditionally to execute and
deliver and comply with its obligations under the Transaction
Documents;
(d) the Chargor has taken all necessary action to authorise
the unconditional execution and delivery of and the compliance
with its obligations under the Transaction Documents;
(e) each authorisation from and filing and registration with
a Government Body necessary to enable the Chargor to
unconditionally execute and deliver and comply with its
obligations under the Transaction Documents and carry on its
principal business or activity has been obtained, effected and
complied with;
(f) the unconditional execution and delivery of and
compliance with its obligations by the Chargor under the
Transaction Documents does not contravene:
(i) any law or directive from a Government Body;
(ii) the constituent documents of the Chargor;
(iii) any agreement or instrument to which the Chargor is a
party; or
(iv) any obligation of the Chargor to any other person;
(g) except as notified to the Chargee in writing prior to
the date of this document, no litigation, arbitration or
administrative proceeding is current, pending or, to the
knowledge of the Chargor, threatened, which has or the
adverse determination of which would be likely to have a
Material Adverse Effect;
(h) except as notified to the Chargee in writing prior to
the date of this document, the Chargor has entered into a
Transaction Document as trustee of any trust;
(i) no Event of Default or Potential Event of Default
subsists;
(j) each obligation of the Chargor under this document ranks
at least pari passu with all unsecured and unsubordinated
obligations of the Chargor except obligations mandatorily
preferred by law;
(k) the warranties and representations given by the Chargor
in any Transaction Document are correct and not misleading or
will be when given;
(l) the Chargor and its property are free of any right of
immunity from set-off, proceedings or execution in respect of
its obligations under any Transaction Document;
(m) the Insurances are enforceable against the insurer in
accordance with their terms and are not void or voidable; and
(n) the Chargor is (or will become) the sole legal and
beneficial owner of the Charged Property to which is free from
Encumbrances other than Permitted Encumbrances.
48
7.2 General
(a) The interpretation of any statement contained in any
warranty or representation shall not be restricted by
reference to or inference from any other statement contained
in any other warranty or representation.
(b) The Chargor acknowledges that the Chargee enters into
the Transaction Documents in reliance upon the warranties and
representations.
(c) Each warranty and representation will survive the
execution of this document and be deemed to be repeated with
reference to the facts and circumstances then existing
whenever financial accommodation is requested or given and on
each day that moneys are owing (actually or contingently) by
the Chargor to the Chargee under a Transaction Document.
8 GENERAL OBLIGATIONS
8.1 Prohibited dealings
(a) The Chargor shall not transfer or otherwise dispose of
any part of the Charged Property which is for the time being
subject to the fixed charge or cause or permit any person to
acquire any interest (except, subject to clause 8.15, a
Permitted Encumbrance) in any such Charged Property.
(b) The Chargor, subject to clause 8.1(c), may in the
ordinary course of its ordinary trading business dispose of
any estate or interest in that part of the Charged Property
which is for the time being subject to the floating charge.
(c) The Chargor shall ensure the Charged Property is not
Encumbered except, subject to clause 8.15, by Permitted
Encumbrances.
8.2 Variation of other secured indebtedness
Subject to clause 8.16, the Chargor shall not incur any
debt or monetary obligation (whether actual or
contingent) to a holder, other than the Chargee, of a
Security Interest over the Charged Property the payment
of which is secured by that Security Interest except
Financial Indebtedness incurred as a consequence of that
holder granting financial accommodation to the Chargor
or a person whose obligations are Guaranteed by the
Chargor to that holder, in accordance with an existing
agreement:
(a) which has been fully disclosed to and approved by the
Chargee; and
(b) under which the holder is, at the time this document is
made, actually or contingently obliged to grant that financial
accommodation.
8.3 Information to be given
The Chargor shall give to the Chargee:
49
(a) upon demand, full particulars of the whereabouts of the
Charged Property;
(b) upon demand, any other information in the possession or
under the control of the Chargor which in the Chargee's
reasonable opinion is relevant to the Charged Property or this
document;
(c) upon the happening of an Event of Default or a Potential
Event of Default, a certificate signed on behalf of the
Chargor by 2 directors or a director and company secretary of
the Chargor certifying whether or not an Event of Default or a
Potential Event of Default has occurred and, if one has
occurred, giving full written particulars of it and of the
action taken or proposed to be taken by the Chargor to remedy
it;
(d) upon receipt, a copy of any notice or order received
from any Government Body relating to any proposal of the
Government Body in relation to the Charged Property which if
implemented may have or be likely to have a Material Adverse
Effect;
(e) upon being notified of it, full particulars of any
Compensation Event; and
(f) full particulars of any litigation, arbitration or
administrative proceeding which affects the Chargor or the
Charged Property and which has or the adverse determination of
which would be likely to have a Material Adverse Effect, as
soon as it is commenced or to the knowledge of the Chargor is
threatened.
8.4 Insurance
(a) The Chargor shall:
(i) effect and maintain insurance over and in relation to
the Charged Property with insurers, for amounts, against risks
and upon terms that a prudent and reasonable owner of the
Charged Property would effect and maintain;
(ii) ensure that each such Insurance is taken out in the
names of the Chargor and the Chargee as co-insureds and
insures their respective insurable interests in the Charged
Property;
(iii) upon demand, give to the Chargee a certificate in form
and substance satisfactory to the Chargee from the insurer to
the effect that the required Insurances are current and no
premiums or other moneys are due and owing to the insurer; and
(iv) upon demand, give to the Chargee all policies and
documents relating to the Insurances, including, without
limitation, all renewal certificates, certificates of currency
and endorsement slips.
(b) After an Event of Default has occurred, the Chargee may,
but the Chargor shall not without the prior written consent of
the Chargee (not to be unreasonably withheld), enforce,
conduct, settle or compromise claims under any Insurances in
relation to the Charged Property for any amount exceeding the
Threshold Amount irrespective of whether the Insurance also
relates to other property.
50
(c) Any moneys paid by an insurer under any Insurance shall,
subject to the provisions of the Insurance, be applied as
follows:
(i) first, as the Chargee requires:
(A) towards replacement or reinstatement of the Charged
Property in respect of which the money is paid; or
(B) in payment of any part of the Secured
Money which is then actually owing
whether or not it is due for payment;
(ii) secondly, the balance (if any) shall be paid to any
person entitled to them or authorised to give receipts for
them.
8.5 Compensation Event
(a) The Chargor shall:
(i) notify the Chargee of any Compensation Event and keep
the Chargee informed of all matters relating to it; and
(ii) subject to clause 8.8(c), use its best endeavours to
cause the prompt payment of any compensation or moneys
payable in relation to that Compensation Event in excess
of the Threshold Amount.
(b) After an Event of Default has occurred, the Chargee may,
but the Chargor shall not without the consent of the Chargee
(not to be unreasonably withheld), enforce, conduct, settle or
compromise claims in relation to any Compensation Event.
(c) Any moneys paid by a person in respect of any
Compensation Event shall be applied as follows:
(i) first, as the Chargee requires in payment of any part of
the Secured Money which is then actually owing whether or not
it is due for payment; and
(ii) secondly, the balance (if any) shall be paid to any
person entitled to them or authorised to give receipts for
them.
8.6 Title Documents
(a) The Chargor shall cause and permit the Title Documents
in relation to the Charged Property to be delivered to the
Chargee.
(b) The Chargee may have possession and control of those
Title Documents until the Chargee is obliged to discharge the
Security Interests created by this document.
(c) The Chargor is not obliged to deliver any Title
Documents to the Chargee if those Title Documents have been
delivered to the holder of another Encumbrance over the
Charged Property which ranks in priority before the Security
Interests created by this document and which the Chargee has
consented to, but the Chargor shall promptly deliver such
Title Documents to the Chargee immediately after that prior
ranking Encumbrance is discharged.
51
8.7 Repair
The Chargor shall keep the Charged Property in good
repair and in good working order.
8.8 Taxes
The Chargor shall promptly pay when they become due for
payment all Taxes payable by it from time to time in its
own right or on behalf of any person where failure to do
so may have a Material Adverse Effect.
8.9 Caveats
The Chargor shall not cause any caveat to be lodged in
respect of the Charged Property.
8.10 Default
The Chargor shall ensure that no Event of Default
occurs.
8.11 Chargor's other obligations
The Chargor shall:
(a) duly comply with its obligations in relation to the
Charged Property, including, without limitation, under any
Encumbrance over the Charged Property, any law applicable to
the Charged Property and any lawful direction from any
Government Body; and
(b) institute or defend any legal proceedings which the
Chargee may reasonably require to protect the Charged
Property.
8.12 Chargee's right to enter
(a) The Chargee and its nominees may at any reasonable time
enter on any part of the Charged Property for the purpose of
inspection of the condition of the Charged Property.
(b) The Chargor shall do everything on its part and cause
and permit its related bodies corporate to do everything on
their part which is necessary or desirable to enable the
Chargee to exercise its rights under clause 8.17(a).
8.13 Replacement of Improvements
The Chargor shall not demolish, alter or remove any
Improvements the value of which exceeds the Threshold
Amount except if the demolition, alteration or removal
is:
(a) pursuant to the refurbishment or refitting in the
ordinary course of the Chargor's business of any Improvements;
52
(b) because the Improvements are worn out, damaged,
destroyed, or otherwise no longer suitable for the purposes
for which they were acquired;
(c) required by law;
(d) necessary for their modification for the purposes of the
Chargor's business or their maintenance or repair (in which
case they shall be replaced as soon as practicable);
(e) necessary to prevent their damage or destruction (in
which case they shall be replaced as soon as practicable); or
(f) in accordance with the written consent of the Chargee.
8.14 Notice to Contractors and Future Contractors
The Chargor shall:
(a) immediately give to each party with whom it has entered
into a contract in relation to the Tritton Project in value
above the Threshold Amount ("Contractor") within 5 Business
Days of entering into the relevant contract; and
(b) give to each party with whom it enters into a contract
in relation to the Tritton Project in value above the
Threshold Amount after the date of the document within 5
Business Days of entering into the relevant contract ("Future
Contractor"),
a notice in the form of the schedule duly completed and
signed by the Chargor and procure that each Contractor
promptly and Future Contractor signs and returns such
notice to the Chargee.
8.15 Deed of Priority
If the Chargor enters into Project Financing, the
Chargee agrees that on request by the Chargor it will
enter into a deed of priority or deeds of priority (as
appropriate) with that financier or those financiers (as
appropriate) by which the Chargee will agree that the
moneys owing to that financier or those financiers (as
appropriate) in relation to the Project Financing will
rank in priority to the Secured Money, provided that
such priority will apply to the Project Financing only
and provided that the Chargee may withhold its consent
to such deeds of priority if it demonstrates the deeds
of priority are not advanced on reasonable and
commercial terms.
53
9 EVENTS OF DEFAULT
9.1 Events of Default
Each of the following is an Event of Default (whether or
not caused by anything outside the control of the
Chargor):
(a) the Chargor does not pay within seven days of receiving
written notice from the Chargee of failure to pay the Secured
Money;
(b) a warranty, representation or statement made or deemed
to be made by the Chargor in any Transaction Document or
document contemplated by or relating to any Transaction
Document is untrue or misleading in any material respect and
which has a Material Adverse Effect;
(c) (i) a Transaction Document is void, voidable or otherwise
unenforceable by the Chargee or is claimed to be so by the
Chargor (other than due to the act or omission of the
Chargee);
(ii) it is unlawful for the Chargor to comply with any of its
obligations under any Transaction Document or it is claimed to
be so by the Chargor (other than due to the act or omission of
the Chargee);
(d) a Security Interest created by or purportedly created by
a Relevant Security does not have or ceases to have the
priority which it purports to have under the relevant
Transaction Document or becomes ineffective to secure the
payment of the moneys or compliance with the obligations which
it purports to secure, otherwise than by any act of the
Chargee;
(e) a default or event occurs which is, is deemed to be or
is defined to be, a default or an event of default by or in
relation to a person (other than the Chargee) under a
Transaction Document;
(f) a distress, attachment or execution is levied or becomes
enforceable against any property of the Chargor for an amount
exceeding the Threshold Amount;
(g) the Chargor ceases or threatens to cease to carry on its
business or a substantial part of its business;
(h) a person who holds a Security over property of the
Chargor becomes entitled to exercise a right under that
Security against the property to recover any moneys the
payment of which is secured by that Security or enforce any
other obligation the compliance with which is secured by it;
(i) the Chargor enters into or takes any action to enter
into an arrangement (including a scheme of arrangement),
composition or compromise with, or assignment for the benefit
of, all or any class of the Chargor's creditors or members or
a moratorium involving any of them;
(j) the Chargor is or states that it is unable to pay from
its own money its debts when they fall due for payment;
54
(k) a receiver or receiver and manager is appointed in
respect of the property of the Chargor;
(l) (i) an administrator, provisional liquidator, liquidator or
person having a similar or analogous function under the laws
of any relevant jurisdiction is appointed in respect of the
Chargor or any action is taken to appoint any such person;
(ii) an application (which is not withdrawn within 21 days of
being made) or order is made for the Chargor's winding up or
dissolution or a resolution is passed or any steps are taken
to pass a resolution for its winding up or dissolution;
(iii) the Chargor is deregistered under the Corporations Law
or notice of its proposed deregistration is given to the
Chargor;
(iv) the Chargor is taken or must be presumed to be insolvent
or unable to pay its debts under any applicable legislation;
(v) anything analogous to or of a similar effect to anything
described above under the law of any relevant jurisdiction
occurs;
10 CRYSTALLISATION
10.1 By notice
The Chargee may serve a written notice upon the Chargor
while an Event of Default subsists stating that the
floating charge is to convert into a fixed charge and
describing the property affected by the notice,
whereupon the floating charge will convert into a fixed
charge in respect of the property described in that
notice.
10.2 Automatic
The floating charge shall automatically convert into a
fixed charge over:
(a) the whole of the Charged Property:
(i) upon any notice being given by the Chargee under clause
10.2;
(ii) upon the Chargor ceasing or threatening to cease to
carry on business or a substantial part of its business except
as permitted under a Transaction Document;
(iii) upon an order being made or a resolution being passed
for the winding up of the Chargor or that it be dissolved;
(iv) upon the appointment of a Receiver; and
(v) upon the appointment of an administrator, provisional
liquidator or liquidator;
55
(b) any proceeds of any Charged Debt, upon any creditor of
the Chargor proposing to take any action to have these
proceeds paid to the creditor pursuant to any statute or other
law;
(c) any part of the Charged Property:
(i) upon the Chargor dealing or attempting to deal with that
part of the Charged Property other than in accordance with
this document;
(ii) upon any person proposing to take any action or any
action being taken to obtain any writ, order, notice or other
thing relating to any distress, attachment or other execution
against that part of the Charged Property;
(iii) which is subject to a Security Interest in favour of any
other person upon that person taking any action to exercise
any right in respect of that Security Interest against that
part of the Charged Property;
(iv) upon the appointment by any person of an administrator,
receiver or receiver and manager of that part of the Charged
Property; and
(v) being the proceeds of a Charged Debt, if any action is
taken or any proposal is made to issue to any person by whom
that Charged Debt is due for payment or accruing or may become
due for payment to the Chargor, a notice under s 218 of the
Income Tax Assessment Act or s 74 of the Sales Tax Assessment
Act 1992 in relation to Taxes owed by the Chargor.
10.3 Reinstatement of floating charge
If the floating charge has converted into a fixed charge
over any part of the Charged Property the Chargee may
serve a written notice upon the Chargor stating that the
fixed charge is to convert into a floating charge and
describing the property affected by the notice,
whereupon the fixed charge will convert into a floating
charge over the property described in that notice.
10.4 Fixed charge over Charged Debt proceeds
The Chargor shall upon receipt of the proceeds of any
Charged Debt which are subject to a fixed charge pay
those moneys into an account nominated by the Chargee
either with the Chargee or another person and of which
the Chargee is the sole or a joint signatory.
11 DEFAULT POWERS
11.1 General
(a) The Chargee may at any time after an Event of Default
has occurred exercise any or all of the rights set out in this
clause 12 in any manner and at any time that it thinks fit and
notwithstanding that a Receiver has been appointed.
(b) The interpretation of any right set out in this clause
12 shall not be restricted by reference to or inference from
any other right.
56
11.2 Acceleration
If an Event of Default occurs, the Chargee may at any
time by notice to the Chargor determine that all
instalments under the Tritton Sale Agreement are either
payable on demand or immediately due for payment, except
that, if the Chargor has not produced the first tonne of
copper concentrate from the Tritton Project Area which
constitutes part of a program for substantial planned
production and not merely trial mining, the instalments
under clauses 3.1(e) to (j) inclusive of the Tritton
Sale Agreement will not be payable.
11.3 Statutory and implied powers
The Chargee may exercise all rights capable of being
conferred by the statutes and other laws of any relevant
jurisdiction upon mortgagees under mortgages, deeds or
otherwise.
11.4 Sale
The Chargee may sell the Charged Property and, without
limitation, any sale may be:
(a) by private treaty, auction, tender or otherwise;
(b) together with the sale of any other property by any
other person;
(c) upon terms and conditions that the Chargee thinks fit,
including, without limitation, terms and conditions:
(i) whereby:
(A) the purchaser is allowed time to pay the whole or any
part of the purchase price either with or without interest and
either with or without security;
(B) any rights over the Charged Property are reserved or
granted;
(C) the consideration is expressed in any currency or
consists of something other than money;
(D) the purchase price or other consideration is payable by
instalments; and
(E) if the sale is by auction or tender, a reserve price
determined by the Chargee is set;
(ii) relating to the title of the property;
and the Chargee may:
(d) buy in at any auction;
57
(e) disclose or not disclose any reserve price;
(f) rescind any contract of sale and resell the property
without being liable for any loss;
(g) advertise or not advertise the sale of the Charged
Property; and
(h) make any agreements or arrangements relating to the
sale.
11.5 General dealings
The Chargee may:
(a) enter, take possession of, take control of and get in
the Charged Property;
(b) carry on any business or activity of the Chargor in
relation to the Charged Property;
(c) manage, develop, quietly enjoy and otherwise deal with
the Charged Property ;
(d) (i) exercise the rights of the Chargor and comply with its
obligations in respect of the Charged Property and cause and
permit any other person to comply with their obligations in
respect of the Charged Property;
(ii) vary, replace or release any right or interest of the
Chargor in or in relation to the Charged Property;
(e) carry out or complete, in any form, the construction of
any works;
(f) lease or hire out the Charged Property;
(g) exchange any part of the Charged Property for any other
property and, if there is a difference in value between the
property exchanged, give or receive, as the case may be, any
moneys or other consideration equal to the difference in value
in order to give or receive equal value for the exchange;
(h) acquire or grant easements, profits a prendre, covenants
or other rights which benefit, burden or relate to the Charged
Property and dedicate for any public purpose any part of the
Charged Property;
(i) subdivide or consolidate any land forming part of the
Charged Property;
(j) grant options and rights of first refusal to acquire the
Charged Property;
(k) insure, maintain, improve and protect the Charged
Property;
(l) sever trees and Improvements from the balance of the
Charged Property and deal with them separately from the
balance of the Charged Property;
(m) take on lease or on hire or otherwise acquire any
property necessary or convenient in relation to the carrying
on of a business or activity of the Chargor in relation to the
Charged Property;
58
(n) use the property and services of the Chargor and the
services of its personnel in the exercise of any rights under
this document; and
(o) vary, replace, rescind, repudiate or terminate any
agreement to which the Chargor is a party and which relates to
the Charged Property.
11.6 Bankruptcy
The Chargee may prove for a Charged Debt in a
Bankruptcy, receive dividends and assent to any proposal
for an arrangement (including a scheme of arrangement),
composition or a compromise with, or an assignment for
the benefit of, creditors.
11.7 Raise and lend money
The Chargee may upon any terms and conditions that the
Chargee thinks fit:
(a) (i) borrow or otherwise raise moneys or obtain financial
accommodation on the security of the Charged Property; and
(ii) lend or otherwise grant financial accommodation to a
Receiver or an Attorney on the security of the Charged
Property,
for the purposes of enabling the Chargee, a
Receiver or an Attorney to exercise a right under
this document; and
(b) deal with any Security Interest granted by it over the
Charged Property and enter into any agreement relating to the
priority of that Security Interest and discharge it.
11.8 Investment of moneys
Any moneys received by the Chargee which are not
required to be immediately applied in the exercise of
any right or pursuant to clause 14 may be invested in
any way authorised by the laws of any relevant
jurisdiction for the investment of trust moneys and the
Chargee may vary or dispose of the investment.
11.9 Ancillary powers
The Chargee may:
(a) affix and countersign any seal of the Chargor for the
purpose of exercising any of its rights under this document;
(b) employ or engage any person on behalf of the Chargor for
the purpose of exercising any of the Chargee's rights in
respect of the Charged Property and dismiss such person;
(c) on behalf of the Chargor, commence, defend, prosecute,
settle, discontinue and compromise litigation, administrative
or arbitral proceedings in relation to the Charged Property;
(d) on behalf of the Chargor, give receipts and release,
discharge or compromise any Charged Debt;
59
(e) enter into and execute and deliver documents and
agreements in respect of the exercise of its rights under this
document;
(f) delegate to any person any right (including this right
of delegation) under this document; and
(g) do anything incidental or conducive to the exercise of
any of its other rights under this document.
11.10 Receivers
The Chargee may:
(a) (i) either before or after it has taken possession of the
Charged Property appoint in writing any one or more persons to
be a receiver or receiver and manager of the Charged Property
or a part of it; and
(ii) appoint a different receiver or receiver and manager for
different parts of the Charged Property;
(b) if more than one person is appointed as Receiver of any
property, empower them to act jointly or jointly and
severally;
(c) remove the Receiver, appoint another in his or her place
if the Receiver is removed, retires or dies, and reappoint a
Receiver who has retired or been removed; and
(d) fix the remuneration of the Receiver.
12 RECEIVERS
12.1 Agent
(a) A Receiver, subject to clause 12.1(b), will be the agent
of the Chargor who alone shall be responsible for the
Receiver's acts and omissions and remuneration.
(b) The Chargee may appoint a Receiver as the agent of the
Chargee and delegate to a Receiver any of the Chargee's rights
under this document.
12.2 Powers
(a) A Receiver shall have the right in relation to any
property in respect of which the Receiver is appointed to do
everything that the Chargor may lawfully authorise an agent to
do on behalf of the Chargor in relation to that property and,
without limitation, a Receiver may in relation to that
property exercise:
(i) the rights capable of being conferred upon receivers and
receivers and managers by the Corporations Law and the laws
of any relevant jurisdiction;
60
(ii) the rights set out in clauses 11.3 to 11.9 inclusive;
(iii) the rights of the Chargor and the directors of the
Chargor; and
(iv) any other rights the Chargee may by written notice to a
Receiver give to a Receiver.
(b) The Chargee may by written notice to a Receiver at the
time of a Receiver's appointment or any subsequent times give
any rights to a Receiver that the Chargee thinks fit.
13 EXERCISE OF DEFAULT RIGHTS
13.1 No hindrance
The Chargor shall not cause or permit the Chargee, a
Receiver or an Attorney to be prevented or hindered from
exercising its rights under this document.
13.2 Chargee in possession
(a) If the Chargee, a Receiver or an Attorney exercises its
rights under this document or takes possession of the Charged
Property, it will not be liable to account as a mortgagee in
possession.
(b) If the Chargee has taken possession of the Charged
Property it may give up possession of the Charged Property at
any time.
(c) The obligations of the Chargor under this document
relating to the Charged Property shall not be affected by the
Chargee, any Receiver or any Attorney taking possession of the
Charged Property.
13.3 Exclusion of legislation
(a) The provisions implied in mortgages by any statute shall
for the purposes of this document be negatived or varied only
so far as they are inconsistent with the provisions of this
document and are otherwise varied so as to become consistent
with this document.
(b) Any statutory restrictions (other than mandatory
restrictions) upon any right of the Chargee, Receiver or
Attorney to lease or otherwise deal with the Charged Property
shall not apply to the rights of those persons under this
document.
13.4 Default notice
(a) The Chargee, any Receiver and any Attorney may to the
extent that any applicable law permits exercise any right
under this document in relation to an Event of Default without
first giving any notice to the Chargor or allowing the lapse
of any period of time and the Chargor and the Chargee dispense
with any requirement under any statute that notice be given by
the Chargee, Receiver or Attorney, as the case may be, or that
it allow the lapse of any period of time before exercising a
right.
61
(b) If an applicable law requires that a notice be given or
a lapse of time occur before any right can be exercised, then
if no particular period of notice or lapse of time is
required, the period of notice or lapse of time shall be one
day.
14 APPLICATION OF MONEY
14.1 Method
The Remedy Proceeds shall, subject to any mandatory
statutory requirements, be applied by the Chargee, any
Receiver or any Attorney as follows:
(a) first, towards the payment or reimbursement of the costs
and expenses incurred by the Chargee, any Receiver or any
Attorney in the exercise or enforcement or attempted exercise
or enforcement of its rights under this document;
(b) secondly, towards:
(i) the remuneration of any Receiver or Attorney; and
(ii) any moneys owing by the Chargor to any Representative of
the Chargee, any Receiver or any Attorney;
(c) thirdly, towards the Secured Money which is then due for
payment or otherwise in accordance with clause 14.5 and the
Remedy Proceeds shall be appropriated between them as the
Chargee thinks fit; and
(d) fourthly, to any person entitled to the Charged Property
or authorised to give receipts for those moneys.
14.2 Chargee's certificate and disputes
(a) The Chargee may rely upon a certificate issued by any
person who claims to be entitled to receive any of the Remedy
Proceeds to the effect that moneys are owing by the Chargor to
it and stating the amount owing, without being obliged to make
any further enquiry.
(b) If there is any dispute between any persons (other than
the Chargee) as to who is entitled to receive the Remedy
Proceeds, the Chargee may pay those moneys into court and when
that is done the Chargee will have no further obligations in
relation to those moneys.
14.3 No interest on Remedy Proceeds
The Chargee is not obliged to pay interest to any person
upon the Remedy Proceeds.
14.4 Payment into bank account
If the Chargee pays any moneys into a bank account in
the name of any person to whom the Chargee is obliged to
pay moneys under clause 14.1 and notifies that person of
the particulars of the account the Chargee will have no
further obligations in relation to those moneys.
62
14.5 Contingent and prospective indebtedness
If:
(a) part of the Secured Money is contingently owing; or
(b) in the reasonable opinion of the Chargee there is a
prospect that the moneys forming part of the Secured Money may
become owing (whether actually or contingently) by Nord
Australex to the Chargee,
and the Chargee receives any moneys pursuant to this
document, the Chargee may:
(c) pay those moneys into a suspense account and hold them
as security for the payment of the Secured Money; and
(d) at any time appropriate any moneys in the suspense
account towards the satisfaction of any moneys due for payment
by Nord Australex to the Chargee in any way that the Chargee
thinks fit,
and when the Secured Money is satisfied in full or the
Chargee no longer holds that opinion, the Chargee shall
pay the balance to any person entitled to the Charged
Property or authorised to give receipts for those
moneys.
Payments that would become payable under clauses 3.1(e)
to (j) inclusive of the Tritton Sale Agreement will not
for the purposes of this clause 14.5 be included under
paragraph (a) or (b) above unless at that time at least
one tonne of saleable copper has been produced from the
Tritton Project Area and such production constitutes
part of a program for substantial planned production and
not merely trial mining.
14.6 Payments during default notice period
If during the period from the service of a notice
requiring the rectification of a default in the payment
of moneys by Nord Australex under this document until
the expiration of that notice Nord Australex pays any
moneys to the Chargee towards satisfaction of the
Secured Money, the Chargee may apply those moneys first,
towards satisfaction of any moneys due for payment by
Nord Australex to the Chargee other than those which are
the subject of the notice and secondly, towards
satisfaction of the moneys which are the subject of the
notice.
14.7 Accounting for Remedy Proceeds
The Chargee, any Receiver or any Attorney is not obliged
to account to Nord Australex for any moneys relating to
the exercise by any of them of any right until moneys
are actually received in immediately available funds
and, without limitation, if any of them sell the Charged
Property on terms whereby:
(a) any part of the purchase price remains unpaid (whether
secured or unsecured) after transfer of the Charged Property
to the purchaser; or
63
(b) the purchase price is payable in instalments on or
before the transfer of the Charged Property to the purchaser,
they are not obliged to account for the purchase price
before it is actually received in immediately available
funds.
15 THIRD PARTY DEALINGS
15.1 Chargee's receipts and discharges
The Chargee may give valid discharges and receipts for
any moneys payable by any third party in respect of any
exercise of a right by the Chargee, any Receiver or any
Attorney.
15.2 No duty to enquire
(a) Any person dealing with the Chargee, any Receiver or any
Attorney in relation to the exercise by any of them of a right
under this document shall not be concerned to enquire whether:
(i) the right is exercisable or properly exercised;
(ii) the Receiver or Attorney is properly appointed;
(iii) any moneys paid by it to the Chargee, Receiver or
Attorney are properly applied,
and the title of that person to any property
acquired by it from the Chargee, Receiver or
Attorney, will not be adversely affected by the
right not being exercisable or any improper
appointment, exercise of the right or application
of moneys by the Chargee, any Receiver or any
Attorney of which it does not have actual notice.
(b) The benefit of clause 15.2(a) is held on trust for the
benefit of the Chargee and each person dealing with the
Chargee, any Receiver or Attorney.
16 PRESERVATION OF CHARGEE'S RIGHTS
16.1 Continuing security
This document is a continuing Security for the whole of
the Secured Money and is not limited to any transaction
or other thing.
16.2 Primary obligations
The Chargor's obligation to pay the Secured Money is a
primary obligation and the Chargee is not obliged to
proceed against or enforce any other right against any
person or property or demand payment from any other
person before making a demand for payment by the Chargor
of the Secured Money.
64
16.3 Preservation of Chargor's obligations
The Chargor's obligations and the Chargee's rights under
this document will not be affected by anything which but
for this clause 16.3 might abrogate, prejudice or limit
them or the effectiveness of this document.
16.4 Suspension of Chargor's rights
The Chargor:
(a) waives any right to be subrogated to or otherwise have
the benefit of this document until the Secured Money has been
satisfied in full and in the reasonable opinion of the Chargee
any payment towards the satisfaction of the Secured Money is
not void, voidable or otherwise unenforceable or refundable;
and
(b) shall not exercise a right of set-off or counterclaim
available to it or any other person liable to the Chargee in
relation to the Secured Money which reduces or extinguishes
the obligation of the Chargor to pay the Secured Money,
and the Chargee is not obliged to marshall in favour of
the Chargor any Security or any property that the
Chargee has an interest in or may be entitled to
receive.
16.5 Reinstatement of rights of Chargee
If any transaction or payment relating to the Secured
Money is void, voidable or otherwise unenforceable or
refundable:
(a) the Chargee shall be entitled against the Chargor to all
rights under this document that it would have had if the
transaction or payment was not void, voidable or unenforceable
or refundable; and
(b) the Chargor shall do all things and sign such documents
necessary or convenient to restore to the Chargee the Security
Interests created by this document and its rights under this
document immediately before that transaction or payment.
16.6 No merger
This document is in addition to and is not in any way
prejudiced by any judgment, order or other thing and the
Chargee's rights under this document shall not be merged
with any judgment, order or other thing.
16.7 Bankruptcy of debtor
The Chargor shall not in the Bankruptcy of any person
whose obligations to the Chargee the Chargor has
Guaranteed:
(a) directly or indirectly claim or receive the benefit of
any distribution, dividend or payment; or
(b) prove or claim for any distribution, dividend or payment
in competition with the Chargee,
65
so as to diminish any distribution, dividend or payment
which but for that claim or proof the Chargee would be
entitled to receive, until the Secured Money has been
paid in full and the Chargee is of the opinion that no
payment of those moneys is or is likely to become void,
voidable or otherwise unenforceable or refundable.
17 COSTS AND EXPENSES
17.1 Nature
The Chargor shall pay and if paid by the Chargee
reimburse to the Chargee:
(a) the Chargee's reasonable costs and expenses relating to
stamping and registration of this document or any document
contemplated by it;
(b) the Chargee's costs and expenses in relation to:
(i) the exercise or attempted exercise or the preservation
of any rights of the Chargee under this document;
(ii) the occurrence of any Event of Default or Potential
Event of Default;
(iii) the lodgment or removal of any caveat by any person; and
(c) any Taxes and registration or other fees (including
fines and penalties relating to the Taxes and fees) which are
payable in relation to this document or any document or
transaction contemplated by it.
17.2 Goods and Services Tax
If any tax in the nature of a goods and services tax
(including, without limitation any value added tax,
consumption tax or other similar tax) ("GST") is imposed
on inputs of the Chargee or any supply made by the
Chargee under or in connection with a Transaction
Document, then the Chargee may, by notice to the
Chargor, elect to have the amounts payable or
consideration to be provided by the Chargor redetermined
by the Chargee, with effect from such date as the
Chargee may determine, so as to take into account the
impact of GST and in order to provide the Chargee with
the same rate of return as was originally obtained by
the Chargee on the amounts payable or consideration to
be provided by the Chargor prior to the imposition of
the GST.
17.3 Legal costs
A reference to costs and expenses in this document
includes, without limitation, legal costs and expenses
on a full indemnity basis.
17.4 Remuneration
The Chargee, any Receiver and any Attorney shall be
remunerated by the Chargor for any services rendered by
them in relation to the exercise of any right under this
document and the rate of the remuneration and the manner
of payment will be that determined by the Chargee.
66
18 INDEMNITIES
18.1 Nature
(a) The Chargor indemnifies the Chargee against any
liability, loss, cost or expense (including, without
limitation, any Break Costs caused or contributed to by:
(i) any failure of the Chargor to comply with any obligation
under any Transaction Document;
(ii) any Event of Default;
(iii) the exercise or attempted exercise of any right by the
Chargee, any Receiver or any Attorney under the Transaction
Documents; or
(iv) any act by the Chargee in reliance on any communication
purporting to be from the Chargor or to be given on behalf of
the Chargor.
(b) The Chargor shall indemnify each Receiver and Attorney
and their respective Representatives and the Representatives
of the Chargee against liability, loss, cost and expense
caused or contributed to by anything the Chargee is
indemnified against under this clause 18.1 and the Chargee
holds the benefit of this clause 18.1 upon trust for those
persons.
18.2 Currency deficiency
If there is any deficiency between:
(a) an amount payable by the Chargor under this document
which is received by the Chargee in a currency other than the
currency payable under this document because of a judgment,
order or otherwise; and
(b) the amount produced by converting the payment received
from the currency in which it was paid into the currency in
which it was agreed to be paid either directly or through a
currency other than that in which it was agreed to be paid,
the Chargor shall pay to the Chargee the deficiency and
any loss, costs or expenses resulting from it.
18.3 Independence and survival
Each indemnity in this document is a continuing
obligation, separate and independent from the other
obligations of the Chargor and survives the termination
of this document.
67
19 ATTORNEY
19.1 Appointment
The Chargor irrevocably appoints the Chargee its
attorney with the power:
(a) after an Event of Default has occurred:
(i) do everything which in the Attorney's reasonable opinion
is necessary or expedient to enable the exercise of any right
of the Chargee in relation to this document;
(ii) complete this document; and
(iii) appoint substitutes and otherwise delegate its powers
(including this power of delegation); and
(b) after any Event of Default subsists, to do all acts and
things which the Chargor is obliged to do under this document
or which in the Attorney's opinion is necessary or expedient
in connection with the Charged Property or the protection or
perfection of the Chargee's interest in the Charged Property.
19.2 General
(a) Any Attorney may exercise any right solely for the
benefit of the Chargee and notwithstanding that the exercise
of the right constitutes a conflict of interest or duty.
(b) The Chargor by this document ratifies anything done or
not done by the Attorney within the terms of the power of
attorney.
(c) The power of attorney is granted:
(i) to secure the compliance by the Chargor with its
obligations to the Chargee under this document and any
proprietary interests of the Chargee under this document; and
(ii) for valuable consideration (receipt of which is
acknowledged) which includes the acceptance of this document
by the Chargee at the Chargor's request.
20 MISCELLANEOUS
20.1 Chargee's determination and certificate
(a) A certificate by the Chargee relating to any Transaction
Document or as to its opinion in relation to any matter under
any Transaction Document is, in the absence of manifest error,
prima facie evidence against the Chargor of the matters
certified.
(b) The Chargee is not obliged to give the reasons for its
determination or opinion in relation to any matter under any
Transaction Document.
68
(c) A determination or an opinion of an Authorised
Representative of the Chargee which is given to the Chargor or
otherwise expressed or acted upon by the Chargee as being a
determination or an opinion of the Chargee will be deemed to
be a determination or opinion of the Chargee.
20.2 Supervening legislation
Any present or future legislation which operates:
(a) to lessen or vary in favour of the Chargor any of its
obligations in connection with this document; or
(b) to postpone, stay, suspend or curtail any rights of the
Chargee under this document
is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
20.3 Time of the essence
Time is of the essence of any obligation of the Chargor
under this document.
20.4 Business Days
(a) If the day on which anything, including a payment, is to
be done by the Chargor under this document is not a Business
Day, that thing shall be done on the preceding Business Day.
(b) If a payment would otherwise be due on a day which is
not a Business Day it will be due on the immediately following
Business Day. However, if this would result in the payment
being due in the month after the original due day or after the
Repayment Date it will be due on the immediately preceding
Business Day.
(c) If anything, including a payment, is to be done by the
Chargor on a particular day and it is done:
(i) after the time by which this document states it must be
done or, if this document does not state a time, after 4.00
p.m. in the place where it is to be done; or
(ii) on a day which is not a Business Day in the place where
it is to be done,
it will be deemed to have been done at the
commencement of the next Business Day in the place
where it is to be done.
20.5 Exchange rate
Subject to any express provision to the contrary, if for
the purposes of this document it is necessary to convert
one currency into another currency the conversion shall
be effected using an exchange rate selected by the
Chargee.
69
20.6 Further assurances
The Chargor shall promptly execute all documents and do
all things that the Chargee from time to time reasonably
requires to:
(a) effect, perfect or complete the provisions of this
document or any transaction contemplated by it;
(b) establish the priority of or reserve or create any
Security Interest contemplated by or purported to be reserved
or created by this document;
(c) stamp and register this document in any relevant
jurisdiction and by any person that the Chargee thinks fit;
and
(d) create any type of Security Interest over any part of
the Charged Property upon the same terms and conditions (with
necessary modifications) as this document and any additional
terms and conditions reasonably required by the Chargee having
regard to the nature of that part of the Charged Property and
the type of additional Security Interest being created,
including, without limitation, a registrable Security Interest
over any land and an assignment (by way of mortgage) of any
Charged Debt.
20.7 Amendment
This document may only be varied or replaced by an
instrument duly executed by the parties.
20.8 Waiver and exercise of rights
(a) A right in favour of the Chargee under this document, a
breach of an obligation of the Chargor under this document or
the occurrence of an Event of Default can only be waived by an
instrument duly executed by the Chargee. No other act,
omission or delay of the Chargee will constitute a waiver
binding, or estoppel against, the Chargee.
(b) A single or partial exercise or waiver by the Chargee of
a right relating to this document will not prevent any other
exercise of that right or the exercise of any other right.
(c) The Chargee and its Representatives will not be liable
for any loss, cost or expense of the Chargor caused or
contributed to by the waiver of, exercise of, attempted
exercise of, failure to exercise or delay in exercising a
right and the Chargee holds the benefit of this clause 20.11
upon trust for itself and its Representatives.
70
20.9 Rights cumulative
The rights of the Chargee under this document are
cumulative and are in addition to any of its other
rights.
20.10 Approval and consent
The Chargee may conditionally or unconditionally give or
withhold any consent to be given under this document and
is not obliged to give its reasons for doing so.
20.11 Assignment
(a) Subject to clause 8.16, the Chargor shall not dispose of
or Encumber any right under this document without the written
consent of the Chargee.
(b) The Chargee's rights under this document are assignable.
20.12 Counterparts
This document may consist of a number of counterparts
and if so the counterparts taken together constitute one
and the same instrument.
20.13 Sovereign immunity
The Chargor irrevocably waives any immunity that it or
its property has from:
(a) set-off;
(b) legal, arbitral or administrative proceedings;
(c) any process or order of any court, administrative
tribunal or arbitrator for the satisfaction or enforcement of
a judgment, order or arbitral award or for the arrest,
detention or sale of any property;
(d) service upon it of any process, judgment, order or
arbitral award,
on the grounds of sovereignty or otherwise under any law
of any jurisdiction where any proceedings may be brought
or enforced in relation to any Event of Default under
this document.
20.14 Governing law and jurisdiction
(a) This document is governed by and shall be construed in
accordance with the laws of New South Wales.
(b) The parties irrevocably and unconditionally submit to
the nonexclusive jurisdiction of the courts of New South Wales
and any courts which have jurisdiction to hear appeals from
any of the those courts and the parties waive any right to
object to any proceedings being brought in those courts.
71
20.15 Joint and several liability
Where 2 or more parties comprise the Chargor:
(a) a reference to the Chargor includes each and any 2 or
more of them; and
(b) the obligations on the part of the Chargor bind them
jointly and severally.
21 NOTICES
21.1 General
A notice, demand, certification, process or other
communication relating to this document shall be written
in English and may be given by an Authorised
Representative of the sender.
21.2 Method of service
In addition to any other lawful means, a communication
may be given by:
(a) being personally served on a party;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by
pre-paid ordinary mail or, if the address is outside
Australia, by pre-paid airmail;
(d) facsimile to the party's current number for service; or
(e) electronic mail to the party's current email address.
21.3 Address for service
(a) The initial particulars for service are:
The Chargor:
Address: Level 15, 3 Spring Street Sydney NSW 2000
Facsimile: 9241 5170
Email: johns@nordpacific.com.au
Attention: John Syriatowicz
The Chargee:
Address:Level 15, Goldfields House, 1 Alfred Street Sydney NSW 2000
Facsimile: (02) 9241 2465
Email: brear@ozemail.com.au
Attention: Brian Rear
(b) Each party may from time to time change its particulars
for service by notice to each other party.
72
21.4 Service
If a communication is given by:
(a) post it will be deemed received if posted within
Australia to an Australian address 3 Business Days after
posting and in any other case 10 Business Days after posting
by airmail;
(b) facsimile and the sender's facsimile machine produces a
transmission report indicating that the facsimile was sent to
the addressee's facsimile, the report will be prima facie
evidence that the facsimile was received by the addressee at
the time indicated on that report;
(c) electronic mail and the sender receives a return receipt
indicating that the addressee has received the email, the
receipt will be prima facie evidence that the email was
received by the addressee at the time indicated in that
receipt.
21.5 Service after hours
If a communication to the Chargee is received by it:
(a) after 5.00 p.m; or
(b) on a day which is not a Business Day;
it will be deemed to have been received on the next Business Day.
21.6 Process service
Any process or other document relating to litigation,
administrative or arbitral proceedings relating to this
document may be served by any method contemplated by
this clause 21 or in accordance with any applicable law.
EXECUTED as a deed.
EXECUTED by STRAITS MINING PTY )
LIMITED )
C H Lim B J Rear
Company Secretary Director
C H Lim B J Rear
Name of Company Secretary Name of Director (print)
(print)
73
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LIMITED by the )
party's attorney pursuant to )
power of attorney registered )
Book 4276 No 698 who states )
that no notice of revocation )
of the power of attorney has
been received in the presence
of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
EXECUTED by NORD PACIFIC )
LIMITED by the party's )
attorney pursuant to power of )
attorney registered Book 4276 )
No 699 who states that no )
notice of revocation of the )
power of attorney has been
received in the presence of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
74
SCHEDULE
NOTICE TO CONTRACTOR
Notice to Contractor of Future Contractor
To: [Name of Contractor or Future Contractor]
NOTICE OF SECURITY OVER CONTRACT
We refer to the agreement between you and us entitled
" " and dated ("Document").
We notify you that:
1 By a Fixed and Floating Charge dated [ ] between
ourselves and Straits Mining Pty Limited ACN 055 020 614 (
"Straits") we have mortgaged to Straits all of our interest in
and rights under the Document (including, without limitation,
all moneys payable to us under the Document). However,
Straits will not in any circumstances be obliged to perform
our obligations under the Document or be liable for our
failure to perform those obligations properly.
2 You must pay all amounts payable by you to us under the
Document as Straits directs from time to time. Until you
receive a direction from Straits you must continue to pay all
those amounts to us.
3 All variations to and waivers for breaches of the
Document must be approved by Straits.
4 We cannot revoke or vary this notice in whole or in part
except with the written consent of Straits.
DATED: [ ]
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LIMITED by the )
party's attorney pursuant to )
power of attorney registered )
Book No who states that no )
notice of revocation of the )
power of attorney has been
received in the presence of:
.............................. ..............................
Witness Attorney
.............................. ..............................
Name of Witness (print) Name of Attorney (print)
75
EXECUTED by NORD PACIFIC )
LIMITED by the party's )
attorney pursuant to power of )
attorney registered Book )
No who states that no notice )
of revocation of the power of )
attorney has been received in
the presence of:
.............................. ..............................
Witness Attorney
.............................. ..............................
Name of Witness (print) Name of Attorney (print)
Straits agrees to the terms of the above notice
................................................
for and on behalf of Straits Mining Pty Limited
TO: Straits Mining Pty Limited
Level 3
Goldfields House
1 Alfred Street
SYDNEY NSW 2000
We acknowledge receipt of the above notice and agree to
be bound by its terms.
.......................................................
for and on behalf of [name of Contractor or Future
Contractor]
76
NORD AUSTRALEX NOMINEES PTY LIMITED
NORD PACIFIC LIMITED
STRAITS MINING PTY LIMITED
MORTGAGE OF MINING PROPERTY
CORRS CHAMBERS WESTGARTH
Lawyers
Level 32, Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
AUSTRALIA
Tel: (02) 9210 6500
Fax: (02) 9210 6611
DX: 133 SYDNEY
Ref: AJM/MCM
2700278
S/1032363/1
77
CONTENTS
1 INTERPRETATION 81
1.1 DEFINITIONS 81
1.2 CONSTRUCTION 86
1.3 TERMS DEFINED IN THE TRITTON SALE AGREEMENT 87
1.4 HEADINGS 87
1.5 CORPORATIONS LAW AND ACCOUNTING STANDARDS 87
1.6 SUBSISTING EVENTS AND POTENTIAL EVENTS OF DEFAULT 88
1.7 MORTGAGOR 88
2 CONSIDERATION 88
3 CHARGE AND DISCHARGE 88
3.1 MORTGAGE 88
3.2 DISCHARGE 88
3.3 PRIORITY AMOUNT 88
4 PAYMENT OF SECURED MONEY 88
4.1 PLACE, MANNER AND TIME OF PAYMENT 88
4.2 CURRENCY OF PAYMENT 89
4.3 APPROPRIATION 89
4.4 PAYMENTS IN GROSS 89
5 INTEREST 89
5.1 INTEREST 89
5.2 RATE 89
5.3 CAPITALISATION 90
5.4 MERGER 90
6 WARRANTIES AND REPRESENTATIONS 90
6.1 NATURE 90
6.2 GENERAL 92
7 GENERAL OBLIGATIONS 92
7.1 PROHIBITED DEALINGS 92
7.2 VARIATION OF OTHER SECURED INDEBTEDNESS 92
7.3 INFORMATION TO BE GIVEN 92
7.4 INSURANCE 93
7.5 COMPENSATION EVENT 94
7.6 TITLE DOCUMENTS 94
7.7 REPAIR 94
7.8 TAXES 95
78
7.9 CAVEATS 95
7.10 DEFAULT 95
7.11 MORTGAGOR'S OTHER OBLIGATIONS 95
7.12 MORTGAGEE'S RIGHT TO ENTER 95
7.13 REPLACEMENT OF IMPROVEMENTS 95
7.14 REGISTRATION 96
7.15 DEED OF PRIORITY 96
8 RENEWAL AND MAINTENANCE OF SECURED PROPERTY 96
8.1 MORTGAGOR'S OBLIGATIONS 96
8.2 MORTGAGOR TO MAINTAIN SECURED PROPERTY 97
9 UNDERTAKING IN RESPECT OF ENVIRONMENT 98
9.1 UNDERTAKING 98
10 COMPLIANCE WITH ABORIGINAL LAWS 99
10.1 UNDERTAKING 99
11 EVENTS OF DEFAULT 100
11.1 EVENTS OF DEFAULT 100
12 DEFAULT POWERS 101
12.1 GENERAL 101
12.2 ACCELERATION 101
12.3 STATUTORY AND IMPLIED POWERS 101
12.4 SALE 102
12.5 GENERAL DEALINGS 102
12.6 RAISE AND LEND MONEY 103
12.7 INVESTMENT OF MONEYS 104
12.8 ANCILLARY POWERS 104
12.9 RECEIVERS 104
13 RECEIVERS 105
13.1 AGENT 105
13.2 POWERS 105
14 EXERCISE OF DEFAULT RIGHTS 105
14.1 NO HINDRANCE 105
14.2 MORTGAGEE IN POSSESSION 105
14.3 EXCLUSION OF LEGISLATION 106
14.4 DEFAULT NOTICE 106
15 APPLICATION OF MONEY 106
15.1 METHOD 106
15.2 MORTGAGEE'S CERTIFICATE AND DISPUTES 106
15.3 NO INTEREST ON REMEDY PROCEEDS 107
79
15.4 PAYMENT INTO BANK ACCOUNT 107
15.5 CONTINGENT AND PROSPECTIVE INDEBTEDNESS 107
15.6 PAYMENTS DURING DEFAULT NOTICE PERIOD 107
15.7 ACCOUNTING FOR REMEDY PROCEEDS 108
16 THIRD PARTY DEALINGS 108
16.1 MORTGAGEE'S RECEIPTS AND DISCHARGES 108
16.2 NO DUTY TO ENQUIRE 108
17 PRESERVATION OF MORTGAGEE'S RIGHTS 108
17.1 CONTINUING SECURITY 108
17.2 PRIMARY OBLIGATIONS 109
17.3 PRESERVATION OF MORTGAGOR'S OBLIGATIONS 109
17.4 SUSPENSION OF MORTGAGOR'S RIGHTS 109
17.5 REINSTATEMENT OF RIGHTS OF MORTGAGEE 109
17.6 NO MERGER 109
17.7 BANKRUPTCY OF DEBTOR 109
18 COSTS AND EXPENSES 110
18.1 NATURE 110
18.2 GOODS AND SERVICES TAX 110
18.3 LEGAL COSTS 110
18.4 REMUNERATION 110
19 INDEMNITIES 111
19.1 NATURE 111
19.2 CURRENCY DEFICIENCY 111
19.3 INDEPENDENCE AND SURVIVAL 111
20 ATTORNEY 111
20.1 APPOINTMENT 111
20.2 GENERAL 112
21 MISCELLANEOUS 112
21.1 MORTGAGEE'S DETERMINATION AND CERTIFICATE 112
21.2 SUPERVENING LEGISLATION 113
21.3 TIME OF THE ESSENCE 113
21.4 BUSINESS DAYS 113
21.5 EXCHANGE RATE 113
21.6 FURTHER ASSURANCES 113
21.7 AMENDMENT 114
21.8 WAIVER AND EXERCISE OF RIGHTS 114
21.9 RIGHTS CUMULATIVE 114
21.10 APPROVAL AND CONSENT 114
21.11 ASSIGNMENT 114
21.12 COUNTERPARTS 114
21.13 SOVEREIGN IMMUNITY 114
80
21.14 GOVERNING LAW AND JURISDICTION 115
21.15 JOINT AND SEVERAL LIABILITY 115
22 NOTICES 115
22.1 GENERAL 115
22.2 METHOD OF SERVICE 115
22.3 ADDRESS FOR SERVICE 116
22.4 SERVICE 116
22.5 SERVICE AFTER HOURS 116
22.6 PROCESS SERVICE 117
81
THIS DEED is made on the 1st day of June 2000
BETWEEN NORD AUSTRALEX NOMINEES PTY LIMITED ACN 001 657
272 of Level 15, 3 Spring Street SYDNEY NSW 2000
and NORD PACIFIC LIMITED ARBN 062 482 900 of Level
15, 3 Spring Street, Sydney, NSW, 2000 ("Nord
Pacific") ("each a Mortgagor")
AND STRAITS MINING PTY LIMITED ACN 055 020 614 of
Level 3, Goldfields House, 1 Alfred Street Sydney
NSW 2000 ("Mortgagee")
IT IS AGREED
1 INTERPRETATION
1.1 Definitions
In this document:
"Aboriginal Laws" means the Aboriginal Land Rights Act
1983 (NSW), the Aboriginal Housing Act 1998 (NSW), the
Native Title (New South Wales) Act 1994 (NSW), the
Native Title (New South Wales) Amendment Act 1998 (NSW),
the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (Cth), the Native Title Act 1993
(Cth), and any other enactment from time to time of the
State of New South Wales or the Commonwealth of
Australia relating to Aboriginals or to native title,
and all regulations from time to time made under any of
the foregoing.
"Accounting Standards" means accounting principles and
practices consistently applied which are generally
accepted in Australia and are consistent with any
applicable legislation.
"Accounts" means profit and loss accounts and balance
sheets together with statements, reports and notes,
including a director's report or an auditor's report,
attached to or intended to be read with any of those
profit and loss accounts or balance sheets.
"Attorney" means any attorney appointed under this
document and any person who by delegation directly or
indirectly derives a right from an Attorney.
"Authorised Representative" means, in relation to any
party to this document, a person with the right to act
as the agent of that party for the purposes of this
document. It includes a director or company secretary
of that party (if it is a corporation) and, in the case
of the Mortgagee, an employee of the Mortgagee whose
title contains the word "manager" or a cognate term and
a lawyer for the Mortgagee. It also includes a person
appointed by a party as an Authorised Representative of
that party whose appointment is notified by the
appointor to the other party in a written notice which
contains the specimen signature of the appointee.
"Bankruptcy" means:
(a) in relation to a corporation, its winding up or
dissolution or its administration, provisional liquidation or
any administration having a similar effect;
(b) in relation to an individual, his or her bankruptcy; and
82
(c) in relation to a person, any arrangement (including a
scheme of arrangement), composition or compromise with, or
assignment for the benefit of, all or any class of that
person's creditors or members or a moratorium involving any of
them.
"Break Costs" means any liability or costs incurred by
the Mortgagee by reason of:
(a) liquidating or re-deploying deposits or other funds
acquired or contracted for by or on account of the Company or
the Mortgagee; or
(b) terminating or reversing any agreement or arrangement
(including by entering into new agreements or arrangements to
close out or net off existing agreements or arrangements)
entered into by or on account of the Company or the Mortgagee
with a counterparty or an internal department of the Mortgagee
responsible for such agreements or arrangements to hedge, fix,
swap or limit its effective cost of funding; or
(c) any loss of any margins in relation to future lending or
loss of any fees,
in relation to any financial accommodation provided or
to be provided by the Mortgagee under or in connection
with any Transaction Document.
"Business Day" means a day which is not a Saturday,
Sunday, public or bank holiday in Sydney.
"Charge" means the fixed and floating charge dated on or
about the date of this document granted by the Mortgagor
in favour of the Mortgagee.
"Compensation Event" means any confiscation,
resumption, appropriation, forfeiture, repurchase,
redemption or compulsory acquisition of any Secured
Property by any person under a statute or otherwise.
"Encumbrance" means any interest in or right over
property and anything which prevents, restricts or
delays the registration of any interest in or dealing
with property. It includes a Security Interest.
"Environmental Law" means a law which relates to an
aspect of the environment or health.
"Event of Default" means any event or circumstance
described in clause 11.
"Financial Indebtedness" means any indebtedness or other
liability (present or future, actual or contingent)
relating to any financial accommodation including,
without limitation, indebtedness or other liability:
(a) for money borrowed or raised;
(b) relating to the sale or negotiation of any negotiable
instrument;
(c) as lessee under any finance lease, as hirer under any
hire purchase agreement or as purchaser under any title
retention agreement;
(d) relating to any redeemable preference share;
83
(e) under any commodity, currency or interest rate swap
agreement, forward exchange rate agreement or futures contract
(as defined in any statute); or
(f) under any Guarantee relating to any financial
accommodation.
"Financial Year" means a period of 12 months ending on
30 June.
"Government Body" means any person or body exercising an
executive, legislative, judicial or other governmental
function. It includes any public authority constituted
under a law of any country or political sub-division of
any country. It also includes any person deriving a
power directly or indirectly from any other Government
Body.
"Guarantee" means:
(a) a guarantee, indemnity, undertaking, letter of credit,
Security, acceptance or endorsement of a negotiable instrument
or other obligation given by any person to secure compliance
with an obligation by another person;
(b) an obligation (actual or contingent) of a person to
ensure the solvency of another person or the ability of
another person to comply with an obligation, including,
without limitation, by the advance of money or the acquisition
for valuable consideration of property or services; and
(c) an option under which a person is obliged upon the
exercise of the option to buy:
(i) any debt or liability owed by another person; or
(ii) any property which is subject to a Security Interest.
"Improvements" means any improvements, fixtures, plant
or machinery affixed to or used with any land which is
part of the Secured Property.
"Insurance" means insurance which the Mortgagor is
obliged to take out or maintain under a Transaction
Document.
"Material Adverse Effect" means a material adverse
effect upon either:
(a) the ability of Nord Australex to comply with its payment
obligations under the Tritton Sale Agreement; or
(b) the effectiveness, priority or enforceability of any
Transaction Document.
"Mining Act" means the Mining Act 1992 (NSW).
"Mining Application Mortgage" means the mortgage to be
granted by the Mortgagor in favour of the Mortgagee on
terms reasonably acceptable to the Mortgagee over the
mining lease to be granted pursuant to the Application.
"Mining Property" means the Tritton Project Tenements
and all buildings, improvements, machinery and
appliances from time to time in or upon the land
comprised in the Tritton Project Tenements to the extent
that they are fixtures."Permitted Encumbrance" means:
(a) an Encumbrance which has been approved by the Mortgagee
(including the Security Interests created by this document);
or
84
(b) an Encumbrance created in respect of Project Financing
on terms reasonably acceptable to the Mortgagee; or
(c) a lien which arises by operation of law to secure the
payment of Taxes or moneys for services performed in relation
to property while the moneys the payment of which is secured
by that lien are not due for payment; or
(d) any royalties or other interests in favour of a
Government Body imposed by statute.
"Permitted Encumbrance" means:
(a) an Encumbrance which has been approved by the Mortgagee
(including the Security Interests created by this document);
or
(b) an Encumbrance created in respect of Project Financing
provided that the Chargee may withhold its consent to such
financing if it demonstrates the Project Financing is not
advanced on reasonable commercail terms; or
(c) a lien which arises by operation of law to secure the
payment of Taxes or moneys for services performed in relation
to property while the moneys the payment of which is secured
by that lien are not due for payment; or
(d) any royalties or other interests in favour of a
Government Body imposed by statute.
"Pollutant" means:
(a) discharge, emission or deposit, however
caused, which brings or is likely to have the
effect of bringing about a deleterious effect on
the environment in breach of the provisions of any
Environmental Law;
(b) any substance the use, creation, containment,
handling, storage, transfer, transportation,
treatment, disposal of or other dealings with is
controlled or regulated by any Environmental Law;
(c) any radioactive, toxic or chemical or trade
waste or environmentally hazardous chemical; or
(d) any substance similarly controlled or declared to
be environmentally hazardous in any jurisdiction
by any Environmental Law.
"Potential Event of Default" means any thing which with
the giving of notice, lapse of time or determination of
materiality will constitute an Event of Default.
"Project Financing" means financing arrangements into
which the Mortgagor enters with financier(s) pursuant to
which the Mortgagor obtains facilities to be used to
carry out or develop a project on the Tritton Project
Area but does not mean such arrangements where the
financier is a related body corporate of the Mortgagor.
"Real Property Mortgage" means the Real Property Act
mortgage dated on or about the date of this document
over the Freehold Land granted by the Mortgagor to the
Mortgagee.
85
"Receiver" means a receiver or receiver and manager
appointed by the Mortgagee under any Transaction
Document and any person who derives a right directly or
indirectly from a Receiver.
"Relevant Securities" means:
(a) this document;
(b) the Charge;
(c) the Real Property Mortgage; and
(d) any other document which the parties agree in writing is
a Relevant Security.
"Remedy Proceeds" means moneys received from the
exercise of any right against the Secured Property.
"Representative" of a person means an officer, employee,
contractor or agent of that person.
"Secured Money" means any and all amounts which may
become due and owing by Nord Australex under, or in
relation to, the Transaction Documents.
Where Nord Australex would have been liable to pay such
amounts but for its Bankruptcy, it will be taken still
to be liable.
"Secured Property" means, in relation to each Mortgagor,
that Mortgagor's present and future rights, title and
interests, in any capacity, in, under or in respect of
the Mining Property.
"Security" means any document or transaction which
reserves or creates a Security Interest.
"Security Interest" means any interest or right which
secures the payment of a debt or other monetary
obligation or the compliance with any other obligation.
It includes any retention of title to any property and
any right to set off or withhold payment of any deposit
or other money.
"Tax" means a tax (including, without limitation, any
tax in the nature of a goods and services tax), rate,
levy, impost and duty (other than a tax on the net
overall income of the Mortgagee) and any interest,
penalty, fine or expense relating to any of them.
"Threshold Amount" means $100,000 or its equivalent.
"Title Document" in relation to any property includes a
document:
(a) that is or evidences title to that property;
(b) used in the ordinary course of business as proof of
possession or control, or the right to possession or control,
of that property; or
(c) authorising or purporting to authorise, whether by
endorsement or delivery, the possessor of the document to
transfer or receive that property.
86
"Transaction Documents" means:
(a) the Tritton Sale Agreement;
(b) the Relevant Securities:
(c) any agreement relating to the priority of this document
or any Security which is a Relevant Security; and
(d) any agreement or instrument created under them.
"Tritton Project" means the copper mining project
carried out on the Tritton Project Area.
"Tritton Project Area" has the same meaning as in the
Tritton Sale Agreement.
"Tritton Project Tenements" means in relation to each
Mortgagor any present or future interest and rights of
that Mortgagor in:
(e) the Application or arising from the Application;
(f) any mining lease granted pursuant tot he Application;
(g) the Mining Lease;
(h) the Ancillary Licences; and
(i) any other present or future mining tenements, leases,
permits, easements, licences, claims, subleases, rights of way
or other rights to carry out or conduct mining operations or
matter connected with or in relation to the Tritton Project
including, but not limited to, part or all of the grant the
subject of the mining tenements issued or transferred to or
held by or held wholly or partially on behalf of that
Mortgagor or in which that Mortgagor has or acquires any
interest or shares,
including but not limited to, any present or future
applications for, or mining tenements issued in place of
those referred to in paragraphs (a), (b), (c) and (d) of
this definition and the mining tenements referred to in
paragraphs (a), (b), (c) and (d) of this definition as
renewed, extended, modified, varied, converted,
substituted or amalgamated from time to time whether
extending over the same or a greater or lesser area.
"Tritton Sale Agreement" means the agreement of that
name dated on or about the date of this document between
Nord Australex and the Mortgagee.
1.2 Construction
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
87
(c) a reference to:
(i) a person includes a firm, unincorporated association,
corporation and a government or statutory body or authority;
(ii) a person includes the person's legal personal
representatives, successors, assigns and substitutes,
including, without limitation, persons substituted by
novation;
(iii) a statute, ordinance, code or other law includes
regulations and other statutory instruments under it and
consolidations, amendments, re-enactments or replacements of
any of them;
(iv) a right includes a benefit, remedy, discretion and
power;
(v) an obligation includes any warranty or representation
and a reference to a failure to comply with an obligation
includes a breach of warranty or representation;
(vi) this or any other document includes the document as
varied or replaced and notwithstanding any change in the
identity of the parties;
(vii) provisions or terms of this document or another
document, agreement, understanding or arrangement includes a
reference to both express and implied provisions and terms;
(viii) time is to local time in Sydney;
(ix) "$" or "dollars" is a reference to the lawful currency
of Australia;
(x) writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and includes
facsimile transmissions; and
(xi) any thing (including, without limitation, any amount) is
a reference to the whole or any part of it and a reference to
a group of things or persons is a reference to any one or more
of them; and
(d) a reference to this document includes all schedules,
annexures and appendices referred to in it and a reference to
an item means an item in the schedule to this document.
1.3 Terms defined in the Tritton Sale Agreement
Unless the context otherwise requires, terms defined in
the Tritton Sale Agreement have the same meaning where
used in this document.
1.4 Headings
Headings do not affect the interpretation of this
document.
88
1.5 Corporations Law and Accounting Standards
Unless expressed to the contrary:
(a) marketable security, related body corporate, share,
maximum prospective liability and subsidiary each have the
meaning which they are defined to have in the Corporations
Law; and
(b) finance lease and economic entity each have the meaning
which they are defined to have for the purposes of the
Accounting Standards.
1.6 Subsisting Events and Potential Events of Default
(a) An Event of Default subsists if it has occurred and has
not been waived by the Mortgagee in accordance with this
document.
(b) A Potential Event of Default subsists if it exists and
has not been waived by the Mortgagee in accordance with this
document.
1.7 Mortgagor
A reference to the Mortgagor is a reference to each of
Nord Australex and Nord Pacific.
2 CONSIDERATION
The Mortgagor has entered into this document for
valuable consideration from the Mortgagee and receipt of
the consideration is acknowledged.
3 CHARGE AND DISCHARGE
3.1 Mortgage
Each Mortgagor mortgages its Secured Property to the
Mortgagee to secure the payment of the Secured Money.
3.2 Discharge
The Mortgagee shall at the request of the Mortgagor
discharge the Security Interests created by this
document if Nord Australex's obligation to pay the
Secured Money is satisfied and in the Mortgagee's
reasonable opinion no payment towards the satisfaction
of Nord Australex's obligation to pay the Secured Money
is likely to be void, voidable or refundable under any
law (including, without limitation, any law relating to
Bankruptcy).
3.3 Priority amount
(a) The maximum prospective liability secured by this
document for the purpose of fixing priorities under section
282 of the Corporations Law but for no other purpose is
$9,000,000.
(b) This document secures the payment of all prospective
liabilities from time to time of Nord Australex to the
Mortgagee comprising the Secured Money and the amount secured
is not limited to the amount referred to in clause 3.3(a).
4 PAYMENT OF SECURED MONEY
89
4.1 Place, manner and time of payment
Nord Australex, subject to clause 12.2, shall pay the
Secured Money to the Mortgagee in accordance with any
agreement which obliges Nord Australex to pay it and in
the absence of agreement:
(a) upon demand and at a place and in a manner reasonably
required by the Mortgagee;
(b) by 11.00 a.m. local time in the place where payment is
to be made; and
(c) in immediately available funds and without set-off,
counter claims, conditions or, unless required by law,
deductions or withholdings.
4.2 Currency of payment
(a) Nord Australex shall pay the Secured Money in the
currency in which it is payable under any agreement which
obliges Nord Australex to pay it and in the absence of
agreement in the currency reasonably required by the
Mortgagee.
(b) If the Mortgagee accepts a payment under this document
in a currency other than that in which payment is required by
clause 4.2(a), that payment will not satisfy the amount due
for payment except to the extent that the Mortgagee could in
the ordinary course of its business buy (either directly or
through a currency other than that in which the payment is
due) with the payment received the required currency within a
reasonable time of receipt after the deduction of all costs
relating to the purchase.
4.3 Appropriation
The Mortgagee may, subject to any express provision in
this document to the contrary, appropriate any payment
towards the satisfaction of any moneys due for payment
by Nord Australex in relation to this document in any
way that the Mortgagee thinks fit and notwithstanding
any purported appropriation by Nord Australex.
4.4 Payments in gross
The Mortgagee in applying towards satisfaction of the
Secured Money any moneys received by it shall credit
Nord Australex only with that part of those moneys which
is actually received by the Mortgagee in immediately
available funds.
5 INTEREST
5.1 Interest
Nord Australex shall pay interest on that part of the
Secured Money which is from time to time owing by Nord
Australex to the Mortgagee in accordance with the
Transaction Documents and in respect of any monies that
become payable under this document in accordance with
this clause 5.
5.2 Rate
(a) Interest shall be paid in accordance with any agreement
requiring interest to be paid on the Secured Money.
90
(b) In the absence of any agreement, interest will accrue
from day to day at a rate of interest determined by the
Mortgagee from time to time, be computed from and including
the day when the moneys upon which interest is payable become
owing to the Mortgagee by Nord Australex until but excluding
the day of payment of those moneys, be calculated on the
actual number of days elapsed on the basis of a 365 day year
and be paid by Nord Australex upon demand.
5.3 Capitalisation
The Mortgagee may:
(a) capitalise, upon a monthly or such other periodical
basis as the Mortgagee may determine, any part of any interest
which becomes due and owing or due on demand, and interest is
payable in accordance with this document upon capitalised
interest; and
(b) continue to capitalise interest notwithstanding that as
between the Mortgagee and Nord Australex the relationship of
financier and customer may have ceased, any composition
entered into or agreed to by the Mortgagee, any judgment or
order against Nord Australex or any other thing.
5.4 Merger
If the liability of Nord Australex to pay to the
Mortgagee any moneys payable under this document becomes
merged in any deed, judgment, order or other thing, Nord
Australex shall pay interest on the amount owing from
time to time under that deed, judgment, order or other
thing at the higher of the rate payable under this
document and that fixed by or payable under that deed,
judgment, order or other thing.
6 WARRANTIES AND REPRESENTATIONS
6.1 Nature
The Mortgagor warrants and represents that:
(a) it is duly incorporated in accordance with the laws of
its place of incorporation as stated in the Transaction
Documents or as notified to the Mortgagee prior to the date of
this document, validly exists under those laws and has the
capacity to sue or be sued in its own name and to own its
property and conduct its business as it is being conducted;
(b) (i) each Transaction Document is the valid and legally
binding obligation of the Mortgagor is enforceable against
the Mortgagor by the Mortgagee in accordance with its terms;
(ii) each Security Interest which each Transaction Document
purports to create exists and has the priority which the
Mortgagee has agreed to;
(c) the Mortgagor has capacity unconditionally to execute
and deliver and comply with its obligations under the
Transaction Documents;
91
(d) the Mortgagor has taken all necessary action to
authorise the unconditional execution and delivery of and the
compliance with its obligations under the Transaction
Documents;
(e) each authorisation from and filing and registration with
a Government Body necessary to enable the Mortgagor to
unconditionally execute and deliver and comply with its
obligations under the Transaction Documents and carry on its
principal business or activity has been obtained, effected and
complied with;
(f) the unconditional execution and delivery of and
compliance with its obligations by the Mortgagor under the
Transaction Documents does not contravene:
(i) any law or directive from a Government Body;
(ii) the constituent documents of the Mortgagor;
(iii) any agreement or instrument to which the Mortgagor is a
party; or
(iv) any obligation of the Mortgagor to any other person;
(g) except as notified to the Mortgagee in writing prior to
the date of this document, no litigation, arbitration or
administrative proceeding is current, pending or, to the
knowledge of the Mortgagor, threatened, which has or the
adverse determination of which would be likely to have a
Material Adverse Effect;
(h) except as notified to the Mortgagee in writing prior to
the date of this document, the Mortgagor has entered into a
Transaction Document as trustee of any trust;
(i) no Event of Default or Potential Event of Default
subsists;
(j) each obligation of the Mortgagor under this document
ranks at least pari passu with all unsecured and
unsubordinated obligations of the Mortgagor except obligations
mandatorily preferred by law;
(k) the warranties and representations given by the
Mortgagor in any Transaction Document are correct and not
misleading or will be when given;
(l) the Mortgagor and its property are free of any right of
immunity from set-off, proceedings or execution in respect of
its obligations under any Transaction Document;
(m) the Insurances are enforceable against the insurer in
accordance with their terms and are not void or voidable;
(n) the Mortgagor is (or will become) the sole legal and
beneficial owner of the property it purports to own and the
Secured Property is free from Encumbrances other than
Permitted Encumbrances; and
(o) the Mortgagor has not received and is not aware of any
person having received from any Government Body any notice or
order requiring the Mortgagor or any other person to perform
or desist from any acts in relation to the Tritton Project
Tenements which would be likely to materially and
prejudicially affect the Mortgagor's interest in the Tritton
Project Tenements or the ability of the Mortgagor to perform
its material obligations under this document or would
otherwise prejudice the security interests of the Mortgagee
thereunder.
92
6.2 General
(a) The interpretation of any statement contained in any
warranty or representation shall not be restricted by
reference to or inference from any other statement contained
in any other warranty or representation.
(b) The Mortgagor acknowledges that the Mortgagee enters
into the Transaction Documents in reliance upon the warranties
and representations.
(c) Each warranty and representation will survive the
execution of this document and be deemed to be repeated with
reference to the facts and circumstances then existing
whenever financial accommodation is requested or given and on
each day that moneys are owing (actually or contingently) by
the Mortgagor to the Mortgagee under a Transaction Document.
7 GENERAL OBLIGATIONS
7.1 Prohibited dealings
(a) The Mortgagor shall not transfer or otherwise dispose of
any part of the Secured Property or cause or permit any person
to acquire any interest (except a Permitted Encumbrance) in
any such Secured Property.
(b) The Mortgagor shall ensure the Secured Property is not
Encumbered except by Permitted Encumbrances.
7.2 Variation of other secured indebtedness
Subject to clause 7.15, the Mortgagor shall not incur
any debt or monetary obligation (whether actual or
contingent) to a holder, other than the Mortgagee, of a
Security Interest over the Secured Property the payment
of which is secured by that Security Interest except
Financial Indebtedness incurred as a consequence of that
holder granting financial accommodation to the Mortgagor
or a person whose obligations are Guaranteed by the
Mortgagor to that holder, in accordance with an existing
agreement:
(a) which has been fully disclosed to and approved by the
Mortgagee; and
(b) under which the holder is, at the time this document is
made, actually or contingently obliged to grant that financial
accommodation.
7.3 Information to be given
The Mortgagor shall give to the Mortgagee:
(a) upon demand, full particulars of the whereabouts of the
Secured Property;
(b) upon demand, any other information in the possession or
under the control of the Mortgagor which in the Mortgagee's
reasonable opinion is relevant to the Secured Property or this
document;
93
(c) upon the happening of an Event of Default or a Potential
Event of Default, a certificate signed on behalf of the
Mortgagor by 2 directors or a director and company secretary
of the Mortgagor certifying whether or not an Event of Default
or a Potential Event of Default has occurred and, if one has
occurred, giving full written particulars of it and of the
action taken or proposed to be taken by the Mortgagor to
remedy it;
(d) upon the acquisition by it of any land, full particulars
of the land;
(e) upon receipt, a copy of any notice or order received
from any Government Body relating to any proposal of the
Government Body in relation to the Secured Property which if
implemented may have or be likely to have a Material Adverse
Effect;
(f) upon being notified of it, full particulars of any
Compensation Event; and
(g) full particulars of any litigation, arbitration or
administrative proceeding which affects the Mortgagor or the
Secured Property and which has or the adverse determination of
which would be likely to have a Material Adverse Effect, as
soon as it is commenced or to the knowledge of the Mortgagor
is threatened.
7.4 Insurance
(a) The Mortgagor shall:
(i) effect and maintain insurance over and in relation to
the Secured Property with insurers, for amounts, against risks
and upon terms that a prudent and reasonable owner of the
Secured Property would effect and maintain;
(ii) ensure that each such Insurance is taken out in the
names of the Mortgagor and the Mortgagee as co-insureds and
insures their respective insurable interests in the Secured
Property;
(iii) upon demand, give to the Mortgagee a certificate in form
and substance satisfactory to the Mortgagee from the insurer
to the effect that the required Insurances are current and no
premiums or other moneys are due and owing to the insurer; and
(iv) upon demand, give to the Mortgagee all policies and
documents relating to the Insurances, including, without
limitation, all renewal certificates, certificates of currency
and endorsement slips.
(b) After an Event of Default has occurred, the Mortgagee
may, but the Mortgagor shall not without the prior written
consent of the Mortgagee (not to be unreasonably withheld),
enforce, conduct, settle or compromise claims under any
Insurances in relation to the Secured Property for any amount
exceeding the Threshold Amount irrespective of whether the
Insurance also relates to other property.
(c) Any moneys paid by an insurer under any Insurance shall,
subject to the provisions of the Insurance, be applied as
follows:
(i) first, as the Mortgagee requires:
94
(A) towards replacement or reinstatement of the Secured
Property in respect of which the money is paid; or
(B) in payment of any part of the Secured Money
which is then actually owing whether or not it
is due for payment; and
(ii) secondly, the balance (if any) shall be
paid to any person entitled to them or
authorised to give receipts for them.
7.5 Compensation Event
(a) The Mortgagor shall:
(i) notify the Mortgagee of any Compensation Event and keep
the Mortgagee informed of all matters relating to it; and
(ii) subject to clause 7.8(c), use its best endeavours to
cause the prompt payment of any compensation or moneys payable
in relation to that Compensation Event in excess of the
Threshold Amount.
(b) After an Event of Default has occurred, the Mortgagee
may, but the Mortgagor shall not without the consent of the
Mortgagee (not to be unreasonably withheld), enforce, conduct,
settle or compromise claims in relation to any Compensation
Event.
(c) Any moneys paid by a person in respect of any
Compensation Event shall be applied as follows:
(i) first, as the Mortgagee requires in payment of any part
of the Secured Money which is then actually owing whether
or not it is due for payment; and
(ii) secondly, the balance (if any) shall be paid to any
person entitled to them or authorised to give receipts
for them.
7.6 Title Documents
(a) The Mortgagor shall cause and permit the Title Documents
in relation to the Secured Property to be delivered to the
Mortgagee.
(b) The Mortgagee may have possession and control of those
Title Documents until the Mortgagee is obliged to discharge
the Security Interests created by this document.
(c) The Mortgagor is not obliged to deliver any Title
Documents to the Mortgagee if those Title Documents have been
delivered to the holder of another Encumbrance over the
Secured Property which ranks in priority before the Security
Interests created by this document and which the Mortgagee has
consented to, but the Mortgagor shall promptly deliver such
Title Documents to the Mortgagee immediately after that prior
ranking Encumbrance is discharged.
95
7.7 Repair
The Mortgagor shall keep the Secured Property in good
repair and in good working order.
7.8 Taxes
The Mortgagor shall promptly pay when they become due
for payment all Taxes payable by it from time to time in
its own right or on behalf of any person where failure
to do so may have a Material Adverse Effect.
7.9 Caveats
The Mortgagor shall not cause any caveat to be lodged in
respect of the Secured Property.
7.10 Default
The Mortgagor shall ensure that no Event of Default
occurs.
7.11 Mortgagor's other obligations
The Mortgagor shall:
(a) duly comply with its obligations in relation to the
Secured Property, including, without limitation, under any
Encumbrance over the Secured Property, any law applicable to
the Secured Property and any lawful direction from any
Government Body; and
(b) institute or defend any legal proceedings which the
Mortgagee may reasonably require to protect the Secured
Property.
7.12 Mortgagee's right to enter
(a) The Mortgagee and its nominees may at any reasonable
time enter on any part of the Secured Property for the purpose
of inspection of the condition of the Secured Property.
(b) The Mortgagor shall do everything on its part and cause
and permit its related bodies corporate to do everything on
their part which is necessary or desirable to enable the
Mortgagee to exercise its rights under clause 7.17(a).
7.13 Replacement of Improvements
The Mortgagor shall not demolish, alter or remove any
Improvements the value of which exceeds the Threshold
Amount except if the demolition, alteration or removal
is:
(a) pursuant to the refurbishment or refitting in the
ordinary course of the Mortgagor's business of any
Improvements;
(b) because the Improvements are worn out, damaged,
destroyed, or otherwise no longer suitable for the purposes
for which they were acquired;
(c) required by law;
(d) necessary for their modification for the purposes of the
Mortgagor's business or their maintenance or repair (in which
case they shall be replaced as soon as practicable);
96
(e) necessary to prevent their damage or destruction (in
which case they shall be replaced as soon as practicable); or
(f) in accordance with the written consent of the Mortgagee.
7.14 Registration
The Mortgagor shall forthwith at its own cost and
expense:
(a) do, sign, execute and deliver all agreements, documents,
instruments and acts necessary to:
(i) cause this document to be registered or recorded in
accordance with section 122 of the Mining Act; and
(ii) ensure that this document is registered (other than
provisionally) pursuant to section 263 of the Corporations
Law; and
(b) cause this document to be registered or recorded in such
places as the Mortgagee may from time to time notify the
Mortgagor if the Mortgagee is reasonably satisfied that such
registration or recording is necessary or desirable to protect
the rights of the Mortgagee under this document.
7.15 Deed of Priority
If the Mortgagor enters into Project Financing, the
Mortgagee agrees that on request by the Mortgagor it
will enter into a deed of priority or deeds of priority
(as appropriate) with that financier or financiers (as
appropriate) on terms reasonably acceptable to the
Mortgagee by which the Mortgagee will agree that the
moneys owing to that financier or those financiers (as
appropriate) in relation to the Project Financing will
rank in priority to the Secured Money, provided that
such priority will apply to the Project Financing only.
8 RENEWAL AND MAINTENANCE OF SECURED PROPERTY
8.1 Mortgagor's Obligations
The Mortgagor must:
(a) from time to time do whatever may be necessary for
procuring the renewal of the Mining Property according to the
laws and regulations for the time being in force in New South
Wales prior to the date on which the Mining Property lapse or
expire but the Mortgagor may allow any Mining Property to
lapse or expire with the prior written consent of the
Mortgagee;
(b) duly and punctually pay all rates, Taxes, charges, fees
and assessments of every nature (including, without
limitation, rents and fees) payable to the Crown in right of
New South Wales which are from time to time charged or levied
in respect of the Mining Property and do whatever may be
reasonably required to keep the Mining Property valid and in
full force and effect;
(c) duly and punctually observe and comply with all work and
expenditure obligations applicable to the Mining Property in
accordance with the Mining Act and duly and punctually observe
and perform all other conditions and requirements relating to
the Mining Property;
97
(d) not do or permit to be done any act, matter or thing
which may prejudice the Mining Property or cause the Mining
Property to be forfeited;
(e) duly and punctually observe and comply with the
provisions of the Mining Act and with the provisions of all
other statutes, regulations rules, by-laws and orders
affecting the Mining Property or the holder, occupier or
mortgagee of the Mining Property;
(f) give prompt written notice to the Mortgagee of every
request, notification, direction or demand received under or
pursuant to the Environmental Planning and Assessment Act 1979
(NSW) or the Environmental Protection (Impact of Proposals)
Act 1974 (Cth) in relation to the Mining Property or any
mining operations carried out on the Mining Property, together
with a copy of such request, notification, direction or
demand;
(g) give prompt written notice to the Mortgagee if any part
of the land comprised in the Mining Property is proclaimed as
community lands, declared an Aboriginal site, or reserved or
claimed under any Aboriginal Laws;
(h) not without the prior written consent of the Mortgagee
(which consent shall not be unreasonably withheld), and except
in the case of royalties or other payments payable to the
Crown, create or suffer to exist any royalty, overriding
royalty, production payment or any other interest having the
same or similar effect as the foregoing over or in respect of
the Secured Property;
(i) not without the prior written consent of the Mortgagee
(which consent shall not be unreasonably withheld) lease,
licence, sub-lease or sub-licence or otherwise part with
possession of the Mining Property or sell, transfer, assign,
demise, part with possession of or otherwise dispose of the
whole or any part of the Secured Property; and
(j) not pull down or remove any plant, building or erection
being part of the Secured Property or any fixtures or
improvements annexed to the same or any of them without the
previous consent in writing of the Mortgagee, unless such
pulling down or removal:
(A) is in the ordinary course of the Mortgagor's business; and
(B) is:
(1) necessary by reason of any of the Secured Property being
worn out or damaged; or
(2) required in connection with any refurbishment of the
Secured Property by the Mortgagor,
and the Mortgagor replaces the same with others of a similar nature
and of at least equal value.
98
8.2 Mortgagor to Maintain Secured Property
The Mortgagor must:
(a) not do or omit to do any act, deed, matter or thing or
knowingly or willingly permit, suffer or cause any act, deed,
matter or thing to be done or omitted with respect to the
Secured Property or any property secured by any Relevant
Security whereby in the reasonable opinion of the Mortgagee
the Secured Property or the property secured by the Relevant
Security either is or is likely to become materially lessened
in value or prejudicially affected;
(b) duly and punctually and at the Mortgagor's cost:
(i) comply with and observe all statutes in force now or in
the future and all requirements and orders of any Government
Body affecting the Secured Property;
(ii) within the time allowed for performance comply with all
contractual and other obligations affecting the Secured
Property; and
(iii) lodge with the Mortgagee, as further security for the
Secured Money, all deeds, documents and instruments of title
relating to any property from time to time acquired by the
Mortgagor over which this document operates;
(c) notify the Mortgagee in writing immediately upon the
occurrence of any Event of Default, giving details of the
event and any steps being taken to remedy it;
(d) subject to clause 7.15, postpone any Security Interest
which has arisen or which may arise by operation of law or
statute over the Secured Property in favour of the Mortgagor
in its own right or in any capacity so that every such
Security Interest ranks in priority after this document; and
(e) comply with all of its obligations under any instrument
creating a Security Interest in the Secured Property.
9 UNDERTAKING IN RESPECT OF ENVIRONMENT
9.1 Undertaking
The Mortgagor:
(a) notwithstanding anything elsewhere contained in this
document, acknowledges that the Secured Money shall at the
option of the Mortgagee immediately become due and payable if
partly or solely as a result of its operations on the Secured
Property:
(i) any charge on the Secured Property, or restraining
order, under any Environmental Law comes into existence and
the Mortgagor fails to procure a discharge of such charge or
order within one month; or
(ii) the Mortgagor receives a clean up or analogous notice or
direction pursuant to any Environmental Law and fails to
comply with that notice or direction in any respect;
(b) will comply with the requirements of all applicable
statutes, regulations, by-laws and ordinances relating to its
business including without limitation any Environmental Law,
99
and will monitor on an ongoing basis its compliance with all
such applicable statutes, regulations, by-laws and ordinances
and any release of, or contamination or pollution of the
Secured Property by any Pollutant; and
(c) will:
(i) inform the Mortgagee, immediately upon becoming aware of
the same, of any fact or circumstances involving or relating
to Pollution on the Secured Property or discharged or emitted
from the Secured Property which may have a Material Adverse
Effect;
(ii) provide to the Mortgagee upon request, at the
Mortgagor's sole cost and expense, copies of:
(A) any environmental audits, assessments and statements and
other reports in respect of the Secured Property or the
Mortgagor's business operations as may be relevant to the
Secured Property when required by the Mortgagee from time to
time ; and
(B) all environmental audits, assessments and statements,
and other reports, documents and correspondence of which the
Mortgagor becomes aware which relate to or deal with any
Pollutant which has been discharged or emitted from or
deposited, used, created, contained, handled, stored or
treated on or within the Secured Property.
10 COMPLIANCE WITH ABORIGINAL LAWS
10.1 Undertaking
The Mortgagor:
(a) will comply with the requirements of all Aboriginal Laws
and will monitor on an ongoing basis its compliance with all
such applicable Aboriginal Laws; and
(b) will:
(i) inform the Mortgagee, immediately upon becoming aware of
the same, of any fact or circumstances involving or relating
to Aboriginal Laws or issues as to native title (howsoever
described) as they affect the Secured Property; and
(ii) provide to the Mortgagee upon request, at the
Mortgagor's sole cost and expense, copies of:
(A) all audits, assessments and statements and other reports
in respect of Aboriginal Laws or issues as to native title
(howsoever described) as they affect the Secured Property or
the Mortgagor's business operations (to the extent relevant to
the Secured Property) when required by the Mortgagee from time
to time; and
100
(B) all audits, assessments and statements, and other
reports, documents and correspondence of which the Mortgagor
becomes aware which relate to or deal with Aboriginal Laws or
issues as to native title (howsoever described) as they affect
the Secured Property.
11 EVENTS OF DEFAULT
11.1 Events of Default
Each of the following is an Event of Default (whether or
not caused by anything outside the control of the
Mortgagor):
(a) the Mortgagor does not pay within seven days of
receiving written notice from the Mortgagee of failure to pay
the Secured Money;
(b) a warranty, representation or statement made or deemed
to be made by the Mortgagor in any Transaction Document or
document contemplated by or relating to any Transaction
Document is untrue or misleading in any material respect and
which has a Material Adverse Effect;
(c) (i) a Transaction Document is void, voidable or otherwise
unenforceable by the Mortgagee or is claimed to be so by the
Mortgagor (other than due to the act or omission of the
Mortgagee);
(ii) it is unlawful for the Mortgagor to comply with any of
its obligations under any Transaction Document or it is
claimed to be so by the Mortgagor (other than due to the act
or omission of the Mortgagee);
(d) a Security Interest created by or purportedly created by
a Relevant Security does not have or ceases to have the
priority which it purports to have under the relevant
Transaction Document or becomes ineffective to secure the
payment of the moneys or compliance with the obligations which
it purports to secure, otherwise than by any act of the
Mortgagee;
(e) a default or event occurs which is, is deemed to be or
is defined to be, a default or an event of default by or in
relation to a person (other than the Mortgagee) under a
Transaction Document;
(f) a distress, attachment or execution is levied or becomes
enforceable against any property of the Mortgagor for an
amount exceeding the Threshold Amount;
(g) the Mortgagor ceases or threatens to cease to carry on
its business or a substantial part of its business;
(h) a person who holds a Security over property of the
Mortgagor becomes entitled to exercise a right under that
Security against the property to recover any moneys the
payment of which is secured by that Security or enforce any
other obligation the compliance with which is secured by it;
(i) the Mortgagor enters into or takes any action to enter
into an arrangement (including a scheme of arrangement),
composition or compromise with, or assignment for the benefit
of, all or any class of the Mortgagor's creditors or members
or a moratorium involving any of them;
101
(j) the Mortgagor is or states that it is unable to pay from
its own money its debts when they fall due for payment;
(k) a receiver or receiver and manager is appointed in
respect of the property of the Mortgagor; or
(i) an administrator, provisional liquidator, liquidator or
person having a similar or analogous function under the laws
of any relevant jurisdiction is appointed in respect of it or
any action is taken to appoint any such person;
(ii) an application (which is not withdrawn within 21 days of
being made) or order is made for its winding up or dissolution
or a resolution is passed or any steps are taken to pass a
resolution for its winding up or dissolution;
(iii) it is deregistered under the Corporations Law or notice
of its proposed deregistration is given to the Mortgagor;
(iv) it is taken or must be presumed to be insolvent or
unable to pay its debts under any applicable legislation;
(v) anything analogous to or of a similar effect to anything
described above under the law of any relevant jurisdiction
occurs.
12 DEFAULT POWERS
12.1 General
(a) The Mortgagee may at any time after an Event of Default
has occurred exercise any or all of the rights set out in this
clause 12 in any manner and at any time that it thinks fit and
notwithstanding that a Receiver has been appointed.
(b) The interpretation of any right set out in this clause
12 shall not be restricted by reference to or inference from
any other right.
12.2 Acceleration
If an Event of Default occurs, the Mortgagee may at any
time by notice to the Mortgagor determine that all
instalments under the Tritton Sale Agreement are either
payable on demand or immediately due for payment, except
that, if the Mortgagor has not produced the first tonne
of copper concentrate from the Tritton Project Area
which constitutes part of a program for substantial
planned production and not merely trial mining, the
instalments under clauses 3.1(e) and (j) inclusive of
the Tritton Sale Agreement will not be payable.
12.3 Statutory and implied powers
The Mortgagee may exercise all rights capable of being
conferred by the statutes and other laws of any relevant
jurisdiction upon mortgagees under mortgages, deeds or
otherwise.
102
12.4 Sale
The Mortgagee may sell the Secured Property and, without
limitation, any sale may be:
(a) by private treaty, auction, tender or otherwise;
(b) together with the sale of any other property by any
other person;
(c) upon terms and conditions that the Mortgagee thinks fit,
including, without limitation, terms and conditions:
(i) whereby:
(A) the purchaser is allowed time to pay the whole or any
part of the purchase price either with or without interest and
either with or without security;
(B) any rights over the Secured Property are reserved or
granted;
(C) the consideration is expressed in any currency or
consists of something other than money;
(D) the purchase price or other consideration is payable by
instalments; and
(E) if the sale is by auction or tender, a reserve price
determined by the Mortgagee is set;
(ii) relating to the title of the property;
and the Mortgagee may:
(d) buy in at any auction;
(e) disclose or not disclose any reserve price;
(f) rescind any contract of sale and resell the property
without being liable for any loss;
(g) advertise or not advertise the sale of the Secured
Property; and
(h) make any agreements or arrangements relating to the
sale.
12.5 General dealings
The Mortgagee may:
(a) enter, take possession of, take control of and get in
the Secured Property;
(b) carry on any business or activity of the Mortgagor in
relation to the Secured Property;
(c) manage, develop, quietly enjoy and otherwise deal with
the Secured Property ;
103
(d) (i) exercise the rights of the Mortgagor and comply with its
obligations in respect of the Secured Property and cause and
permit any other person to comply with their obligations in
respect of the Secured Property;
(ii) vary, replace or release any right or interest of the
Mortgagor in or in relation to the Secured Property;
(e) carry out or complete, in any form, the construction of any works;
(f) lease or hire out the Secured Property;
(g) exchange any part of the Secured Property for any other
property and, if there is a difference in value between the
property exchanged, give or receive, as the case may be, any
moneys or other consideration equal to the difference in value
in order to give or receive equal value for the exchange;
(h) acquire or grant easements, profits a prendre, covenants
or other rights which benefit, burden or relate to the Secured
Property and dedicate for any public purpose any part of the
Secured Property;
(i) subdivide or consolidate any land forming part of the
Secured Property;
(j) grant options and rights of first refusal to acquire the
Secured Property;
(k) insure, maintain, improve and protect the Secured
Property;
(l) sever trees and Improvements from the balance of the
Secured Property and deal with them separately from the
balance of the Secured Property;
(m) take on lease or on hire or otherwise acquire any
property necessary or convenient in relation to the carrying
on of a business or activity of the Mortgagor in relation to
the Secured Property;
(n) use the property and services of the Mortgagor and the
services of its personnel in the exercise of any rights under
this document; and
(o) vary, replace, rescind, repudiate or terminate any
agreement to which the Mortgagor is a party and which relates
to the Secured Property.
12.6 Raise and lend money
The Mortgagee may upon any terms and conditions that the
Mortgagee thinks fit:
(a) (i) borrow or otherwise raise moneys or obtain financial
accommodation on the security of the Secured Property; and
(ii) lend or otherwise grant financial accommodation to a
Receiver or an Attorney on the security of the Secured
Property,
for the purposes of enabling the Mortgagee, a Receiver or
an Attorney to exercise a right under this document; and
104
(b) deal with any Security Interest granted by it over the
Secured Property and enter into any agreement relating to the
priority of that Security Interest and discharge it.
12.7 Investment of moneys
Any moneys received by the Mortgagee which are not
required to be immediately applied in the exercise of
any right or pursuant to clause 15 may be invested in
any way authorised by the laws of any relevant
jurisdiction for the investment of trust moneys and the
Mortgagee may vary or dispose of the investment.
12.8 Ancillary powers
The Mortgagee may:
(a) affix and countersign any seal of the Mortgagor for the
purpose of exercising any of its rights under this document;
(b) employ or engage any person on behalf of the Mortgagor
for the purpose of exercising any of the Mortgagee's rights in
respect of the Secured Property and dismiss such person;
(c) on behalf of the Mortgagor, give receipts and release,
discharge or compromise any Charged Debt;
(d) enter into and execute and deliver documents and
agreements in respect of the exercise of its rights under this
document;
(e) delegate to any person any right (including this right
of delegation) under this document; and
(f) do anything incidental or conducive to the exercise of
any of its other rights under this document.
12.9 Receivers
The Mortgagee may:
(a) (i) either before or after it has taken possession of the
Secured Property appoint in writing any one or more persons to
be a receiver or receiver and manager of the Secured Property
or a part of it; and
(ii) appoint a different receiver or receiver and manager for
different parts of the Secured Property;
(b) if more than one person is appointed as Receiver of any
property, empower them to act jointly or jointly and severally;
(c) remove the Receiver, appoint another in his or her place
if the Receiver is removed, retires or dies, and reappoint a
Receiver who has retired or been removed; and
(d) fix the remuneration of the Receiver.
105
13 RECEIVERS
13.1 Agent
(a) A Receiver, subject to clause 13.1(b), will be the agent
of the Mortgagor who alone shall be responsible for the
Receiver's acts and omissions and remuneration.
(b) The Mortgagee may appoint a Receiver as the agent of the
Mortgagee and delegate to a Receiver any of the Mortgagee's
rights under this document.
13.2 Powers
(a) A Receiver shall have the right in relation to any
property in respect of which the Receiver is appointed to do
everything that the Mortgagor may lawfully authorise an agent
to do on behalf of the Mortgagor in relation to that property
and, without limitation, a Receiver may in relation to that
property exercise:
(i) the rights capable of being conferred upon receivers and
receivers and managers by the Corporations Law and the laws of
any relevant jurisdiction;
(ii) the rights set out in clauses 12.3 to 12.8 inclusive;
(iii) the rights of the Mortgagor and the directors of the
Mortgagor; and
(iv) any other rights the Mortgagee may by written notice to
a Receiver give to a Receiver.
(b) The Mortgagee may by written notice to a Receiver at the
time of a Receiver's appointment or any subsequent times give
any rights to a Receiver that the Mortgagee thinks fit.
14 EXERCISE OF DEFAULT RIGHTS
14.1 No hindrance
The Mortgagor shall not cause or permit the Mortgagee, a
Receiver or an Attorney to be prevented or hindered from
exercising its rights under this document.
14.2 Mortgagee in possession
(a) If the Mortgagee, a Receiver or an Attorney exercises
its rights under this document or takes possession of the
Secured Property, it will not be liable to account as a
mortgagee in possession.
(b) If the Mortgagee has taken possession of the Secured
Property it may give up possession of the Secured Property at
any time.
(c) The obligations of the Mortgagor under this document
relating to the Secured Property shall not be affected by the
Mortgagee, any Receiver or any Attorney taking possession of
the Secured Property.
106
14.3 Exclusion of legislation
(a) The provisions implied in mortgages by any statute shall
for the purposes of this document be negatived or varied only
so far as they are inconsistent with the provisions of this
document and are otherwise varied so as to become consistent
with this document.
(b) Any statutory restrictions (other than mandatory
restrictions) upon any right of the Mortgagee, Receiver or
Attorney to lease or otherwise deal with the Secured Property
shall not apply to the rights of those persons under this
document.
14.4 Default notice
(a) The Mortgagee, any Receiver and any Attorney may to the
extent that any applicable law permits exercise any right
under this document in relation to an Event of Default without
first giving any notice to the Mortgagor or allowing the lapse
of any period of time and the Mortgagor and the Mortgagee
dispense with any requirement under any statute that notice be
given by the Mortgagee, Receiver or Attorney, as the case may
be, or that it allow the lapse of any period of time before
exercising a right.
(b) If an applicable law requires that a notice be given or
a lapse of time occur before any right can be exercised, then
if no particular period of notice or lapse of time is
required, the period of notice or lapse of time shall be one
day.
15 APPLICATION OF MONEY
15.1 Method
The Remedy Proceeds shall, subject to any mandatory
statutory requirements, be applied by the Mortgagee, any
Receiver or any Attorney as follows:
(a) first, towards the payment or reimbursement of the costs
and expenses incurred by the Mortgagee, any Receiver or any
Attorney in the exercise or enforcement or attempted exercise
or enforcement of its rights under this document;
(b) secondly, towards:
(i) the remuneration of any Receiver or Attorney; and
(ii) any moneys owing by the Mortgagor to any Representative
of the Mortgagee, any Receiver or any Attorney;
(c) thirdly, towards the Secured Money which is then due for
payment or otherwise in accordance with clause 15.5 and the
Remedy Proceeds shall be appropriated between them as the
Mortgagee thinks fit; and
(d) fourthly, to any person entitled to the Secured Property
or authorised to give receipts for those moneys.
15.2 Mortgagee's certificate and disputes
(a) The Mortgagee may rely upon a certificate issued by any
person who claims to be entitled to receive any of the Remedy
Proceeds to the effect that moneys are owing by the Mortgagor
to it and stating the amount owing, without being obliged to
make any further enquiry.
107
(b) If there is any dispute between any persons (other than
the Mortgagee) as to who is entitled to receive the Remedy
Proceeds, the Mortgagee may pay those moneys into court and
when that is done the Mortgagee will have no further
obligations in relation to those moneys.
15.3 No interest on Remedy Proceeds
The Mortgagee is not obliged to pay interest to any
person upon the Remedy Proceeds.
15.4 Payment into bank account
If the Mortgagee pays any moneys into a bank account in
the name of any person to whom the Mortgagee is obliged
to pay moneys under clause 15.1 and notifies that person
of the particulars of the account the Mortgagee will
have no further obligations in relation to those moneys.
15.5 Contingent and prospective indebtedness
If:
(a) part of the Secured Money is contingently owing; or
(b) in the reasonable opinion of the Mortgagee there is a
prospect that the moneys forming part of the Secured Money may
become owing (whether actually or contingently) by Nord
Australex to the Mortgagee,
and the Mortgagee receives any moneys pursuant to this
document, the Mortgagee may:
(c) pay those moneys into a suspense account and hold them
as security for the payment of the Secured Money; and
(d) at any time appropriate any moneys in the suspense
account towards the satisfaction of any moneys due for payment
by Nord Australex to the Mortgagee in any way that the
Mortgagee thinks fit,
and when the Secured Money is satisfied in full or the
Mortgagee no longer holds that opinion, the Mortgagee
shall pay the balance to any person entitled to the
Secured Property or authorised to give receipts for
those moneys.
Payments that would become payable under clauses 3.1(e)
to (j) inclusive of the Tritton Sale Agreement will not
for the purposes of this clause 15.5 be included under
paragraph (a) or (b) above unless at that time at least
one tonne of saleable copper has been produced from the
Tritton Project Area and such production constitutes
part of a program for substantial planned production and
not merely trial mining.
15.6 Payments during default notice period
If during the period from the service of a notice
requiring the rectification of a default in the payment
of moneys by Nord Australex under this document until
the expiration of that notice Nord Australex pays any
moneys to the Mortgagee towards satisfaction of the
Secured Money, the Mortgagee may apply those moneys
first, towards satisfaction of any moneys due for
payment by Nord Australex to the Mortgagee other than
those which are the subject of the notice and secondly,
towards satisfaction of the moneys which are the subject
of the notice.
108
15.7 Accounting for Remedy Proceeds
The Mortgagee, any Receiver or any Attorney is not
obliged to account to Nord Australex for any moneys
relating to the exercise by any of them of any right
until moneys are actually received in immediately
available funds and, without limitation, if any of them
sell the Secured Property on terms whereby:
(a) any part of the purchase price remains unpaid (whether
secured or unsecured) after transfer of the Secured Property
to the purchaser; or
(b) the purchase price is payable in instalments on or
before the transfer of the Secured Property to the purchaser,
they are not obliged to account for the purchase price
before it is actually received in immediately available
funds.
16 THIRD PARTY DEALINGS
16.1 Mortgagee's receipts and discharges
The Mortgagee may give valid discharges and receipts for
any moneys payable by any third party in respect of any
exercise of a right by the Mortgagee, any Receiver or
any Attorney.
16.2 No duty to enquire
(a) Any person dealing with the Mortgagee, any Receiver or
any Attorney in relation to the exercise by any of them of a
right under this document shall not be concerned to enquire
whether:
(i) the right is exercisable or properly exercised;
(ii) the Receiver or Attorney is properly appointed;
(iii) any moneys paid by it to the Mortgagee, Receiver or
Attorney are properly applied,
and the title of that person to any property
acquired by it from the Mortgagee, Receiver or
Attorney, will not be adversely affected by the
right not being exercisable or any improper
appointment, exercise of the right or application
of moneys by the Mortgagee, any Receiver or any
Attorney of which it does not have actual notice.
(b) The benefit of clause 16.2(a) is held on trust for the
benefit of the Mortgagee and each person dealing with the
Mortgagee, any Receiver or Attorney.
17 PRESERVATION OF MORTGAGEE'S RIGHTS
17.1 Continuing security
This document is a continuing Security for the whole of
the Secured Money and is not limited to any transaction
or other thing.
109
17.2 Primary obligations
The Mortgagor's obligation to pay the Secured Money is a
primary obligation and the Mortgagee is not obliged to
proceed against or enforce any other right against any
person or property or demand payment from any other
person before making a demand for payment by the
Mortgagor of the Secured Money.
17.3 Preservation of Mortgagor's obligations
The Mortgagor's obligations and the Mortgagee's rights
under this document will not be affected by anything
which but for this clause 17.3 might abrogate, prejudice
or limit them or the effectiveness of this document.
17.4 Suspension of Mortgagor's rights
The Mortgagor:
(a) waives any right to be subrogated to or otherwise have
the benefit of this document until the Secured Money has been
satisfied in full and in the reasonable opinion of the
Mortgagee any payment towards the satisfaction of the Secured
Money is not void, voidable or otherwise unenforceable or
refundable; and
(b) shall not exercise a right of set-off or counterclaim
available to it or any other person liable to the Mortgagee in
relation to the Secured Money which reduces or extinguishes
the obligation of the Mortgagor to pay the Secured Money,
and the Mortgagee is not obliged to marshall in favour
of the Mortgagor any Security or any property that the
Mortgagee has an interest in or may be entitled to
receive.
17.5 Reinstatement of rights of Mortgagee
If any transaction or payment relating to the Secured
Money is void, voidable or otherwise unenforceable or
refundable:
(a) the Mortgagee shall be entitled against the Mortgagor to
all rights under this document that it would have had if the
transaction or payment was not void, voidable or unenforceable
or refundable; and
(b) the Mortgagor shall do all things and sign such
documents necessary or convenient to restore to the Mortgagee
the Security Interests created by this document and its rights
under this document immediately before that transaction or
payment.
17.6 No merger
This document is in addition to and is not in any way
prejudiced by any judgment, order or other thing and the
Mortgagee's rights under this document shall not be
merged with any judgment, order or other thing.
17.7 Bankruptcy of debtor
The Mortgagor shall not in the Bankruptcy of any person
whose obligations to the Mortgagee the Mortgagor has
Guaranteed:
(a) directly or indirectly claim or receive the benefit of
any distribution, dividend or payment; or
110
(b) prove or claim for any distribution, dividend or payment
in competition with the Mortgagee,
so as to diminish any distribution, dividend or payment
which but for that claim or proof the Mortgagee would be
entitled to receive, until the Secured Money has been
paid in full and the Mortgagee is of the opinion that no
payment of those moneys is or is likely to become void,
voidable or otherwise unenforceable or refundable.
18 COSTS AND EXPENSES
18.1 Nature
The Mortgagor shall pay and if paid by the Mortgagee
reimburse to the Mortgagee:
(a) the Mortgagee's reasonable costs and expenses relating
to stamping and registration of this document or any document
contemplated by it;
(b) the Mortgagee's costs and expenses in relation to:
(i) the exercise or attempted exercise or the preservation
of any rights of the Mortgagee under this document;
(ii) the occurrence of any Event of Default or Potential
Event of Default;
(iii) the lodgment or removal of any caveat by any person; and
(c) any Taxes and registration or other fees (including
fines and penalties relating to the Taxes and fees) which are
payable in relation to this document or any document or
transaction contemplated by it.
18.2 Goods and Services Tax
If any tax in the nature of a goods and services tax
(including, without limitation any value added tax,
consumption tax or other similar tax) ("GST") is imposed
on inputs of the Mortgagee or any supply made by the
Mortgagee under or in connection with a Transaction
Document, then the Mortgagee may, by notice to the
Mortgagor, elect to have the amounts payable or
consideration to be provided by the Mortgagor
redetermined by the Mortgagee, with effect from such
date as the Mortgagee may determine, so as to take into
account the impact of GST and in order to provide the
Mortgagee with the same rate of return as was originally
obtained by the Mortgagee on the amounts payable or
consideration to be provided by the Mortgagor prior to
the imposition of the GST.
18.3 Legal costs
A reference to costs and expenses in this document
includes, without limitation, legal costs and expenses
on a full indemnity basis.
18.4 Remuneration
The Mortgagee, any Receiver and any Attorney shall be
remunerated by the Mortgagor for any services rendered
by them in relation to the exercise of any right under
this document and the rate of the remuneration and the
manner of payment will be that determined by the
Mortgagee.
111
19 INDEMNITIES
19.1 Nature
(a) The Mortgagor indemnifies the Mortgagee against any
liability, loss, cost or expense (including, without
limitation, any Break Costs caused or contributed to by:
(i) any failure of the Mortgagor to comply with any
obligation under any Transaction Document;
(ii) any Event of Default;
(iii) the exercise or attempted exercise of any right by the
Mortgagee, any Receiver or any Attorney under the
Transaction Documents; or
(iv) any act by the Mortgagee in reliance on any
communication purporting to be from the Mortgagor or
to be given on behalf of the Mortgagor.
(b) The Mortgagor shall indemnify each Receiver and Attorney
and their respective Representatives and the Representatives
of the Mortgagee against liability, loss, cost and expense
caused or contributed to by anything the Mortgagee is
indemnified against under this clause 19.1 and the Mortgagee
holds the benefit of this clause 19.1 upon trust for those
persons.
19.2 Currency deficiency
If there is any deficiency between:
(a) an amount payable by the Mortgagor under this document
which is received by the Mortgagee in a currency other than
the currency payable under this document because of a
judgment, order or otherwise; and
(b) the amount produced by converting the payment received
from the currency in which it was paid into the currency in
which it was agreed to be paid either directly or through a
currency other than that in which it was agreed to be paid,
the Mortgagor shall pay to the Mortgagee the deficiency
and any loss, costs or expenses resulting from it.
19.3 Independence and survival
Each indemnity in this document is a continuing
obligation, separate and independent from the other
obligations of the Mortgagor and survives the
termination of this document.
20 ATTORNEY
20.1 Appointment
The Mortgagor irrevocably appoints the Mortgagee its
attorney with the power:
(a) After an Event of Default has occurred:
112
(i) do everything which in the Attorney's reasonable opinion
is necessary or expedient to enable the exercise of any right
of the Mortgagee in relation to this document;
(ii) complete this document; and
(iii) appoint substitutes and otherwise delegate its powers
(including this power of delegation); and
(b) after any Event of Default subsists, to do all acts and
things which the Mortgagor is obliged to do under this
document or which in the Attorney's opinion is necessary or
expedient in connection with the Secured Property or the
protection or perfection of the Mortgagee's interest in the
Secured Property.
20.2 General
(a) Any Attorney may exercise any right solely for the
benefit of the Mortgagee and notwithstanding that the exercise
of the right constitutes a conflict of interest or duty.
(b) The Mortgagor by this document ratifies anything done or
not done by the Attorney within the terms of the power of
attorney.
(c) The power of attorney is granted:
(i) to secure the compliance by the Mortgagor with its
obligations to the Mortgagee under this document and any
proprietary interests of the Mortgagee under this document;
and
(ii) for valuable consideration (receipt of which is
acknowledged) which includes the acceptance of this document
by the Mortgagee at the Mortgagor's request.
21 MISCELLANEOUS
21.1 Mortgagee's determination and certificate
(a) A certificate by the Mortgagee relating to any
Transaction Document or as to its opinion in relation to any
matter under any Transaction Document is, in the absence of
manifest error, prima facie evidence against the Mortgagor of
the matters certified.
(b) The Mortgagee is not obliged to give the reasons for its
determination or opinion in relation to any matter under any
Transaction Document.
(c) A determination or an opinion of an Authorised
Representative of the Mortgagee which is given to the
Mortgagor or otherwise expressed or acted upon by the
Mortgagee as being a determination or an opinion of the
Mortgagee will be deemed to be a determination or opinion of
the Mortgagee.
21.2 Supervening legislation
Any present or future legislation which operates:
113
(a) to lessen or vary in favour of the Mortgagor any of its
obligations in connection with this document; or
(b) to postpone, stay, suspend or curtail any rights of the
Mortgagee under this document
is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
21.3 Time of the essence
Time is of the essence of any obligation of the
Mortgagor under this document.
21.4 Business Days
(a) If the day on which anything, including a payment, is to
be done by the Mortgagor under this document is not a Business
Day, that thing shall be done on the preceding Business Day.
(b) If a payment would otherwise be due on a day which is
not a Business Day it will be due on the immediately following
Business Day. However, if this would result in the payment
being due in the month after the original due day or after the
Repayment Date it will be due on the immediately preceding
Business Day.
(c) If anything, including a payment, is to be done by the
Mortgagor on a particular day and it is done:
(i) after the time by which this document states it must be
done or, if this document does not state a time, after 4.00
p.m. in the place where it is to be done; or
(ii) on a day which is not a Business Day in the place where
it is to be done,
it will be deemed to have been done at the
commencement of the next Business Day in the place
where it is to be done.
21.5 Exchange rate
Subject to any express provision to the contrary, if for
the purposes of this document it is necessary to convert
one currency into another currency the conversion shall
be effected using an exchange rate selected by the
Mortgagee.
21.6 Further assurances
The Mortgagor shall promptly execute all documents and
do all things that the Mortgagee from time to time
reasonably requires to:
(a) effect, perfect or complete the provisions of this
document or any transaction contemplated by it;
(b) establish the priority of or reserve or create any
Security Interest contemplated by or purported to be reserved
or created by this document; and
114
(c) stamp and register this document in any relevant
jurisdiction and by any person that the Mortgagee thinks fit.
21.7 Amendment
This document may only be varied or replaced by an
instrument duly executed by the parties.
21.8 Waiver and exercise of rights
(a) A right in favour of the Mortgagee under this document,
a breach of an obligation of the Mortgagor under this document
or the occurrence of an Event of Default can only be waived by
an instrument duly executed by the Mortgagee. No other act,
omission or delay of the Mortgagee will constitute a waiver
binding, or estoppel against, the Mortgagee.
(b) A single or partial exercise or waiver by the Mortgagee
of a right relating to this document will not prevent any
other exercise of that right or the exercise of any other
right.
(c) The Mortgagee and its Representatives will not be liable
for any loss, cost or expense of the Mortgagor caused or
contributed to by the waiver of, exercise of, attempted
exercise of, failure to exercise or delay in exercising a
right and the Mortgagee holds the benefit of this clause 21.8
upon trust for itself and its Representatives.
21.9 Rights cumulative
The rights of the Mortgagee under this document are
cumulative and are in addition to any of its other
rights.
21.10 Approval and consent
The Mortgagee may conditionally or unconditionally give
or withhold any consent to be given under this document
and is not obliged to give its reasons for doing so.
21.11 Assignment
(a) Subject to clause 7.15, the Mortgagor shall not dispose
of or Encumber any right under this document without the
written consent of the Mortgagee.
(b) The Mortgagee's rights under this document are
assignable.
21.12 Counterparts
This document may consist of a number of counterparts
and if so the counterparts taken together constitute one
and the same instrument.
21.13 Sovereign immunity
The Mortgagor irrevocably waives any immunity that it or
its property has from:
(a) set-off;
115
(b) legal, arbitral or administrative proceedings;
(c) any process or order of any court, administrative
tribunal or arbitrator for the satisfaction or enforcement of
a judgment, order or arbitral award or for the arrest,
detention or sale of any property;
(d) service upon it of any process, judgment, order or
arbitral award,
on the grounds of sovereignty or otherwise under any law
of any jurisdiction where any proceedings may be brought
or enforced in relation to any Event of Default under
this document.
21.14 Governing law and jurisdiction
(a) This document is governed by and shall be construed in
accordance with the laws of New South Wales.
(b) The parties irrevocably and unconditionally submit to
the nonexclusive jurisdiction of the courts of New South Wales
and any courts which have jurisdiction to hear appeals from
any of the those courts and the parties waive any right to
object to any proceedings being brought in those courts.
21.15 Joint and several liability
Where 2 or more parties comprise the Mortgagor:
(a) a reference to the Mortgagor includes each and any 2 or
more of them; and
(b) the obligations on the part of the Mortgagor bind them
jointly and severally.
22 NOTICES
22.1 General
A notice, demand, certification, process or other
communication relating to this document shall be written
in English and may be given by an Authorised
Representative of the sender.
22.2 Method of service
In addition to any other lawful means, a communication
may be given by:
(a) being personally served on a party;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by
pre-paid ordinary mail or, if the address is outside
Australia, by pre-paid airmail;
(d) facsimile to the party's current number for service; or
(e) electronic mail to the party's current email address.
116
22.3 Address for service
(a) The initial particulars for service are:
The Mortgagor:
Address: Level 15, 3 Spring Street Sydney NSW 2000
Facsimile: 9241 5170
Email: johns@nordpacific.com.au
Attention: John Syriatowicz
The Mortgagee:
Address: Level 15, Goldfields House, 1 Alfred Street Sydney NSW 2000
Facsimile: (02) 9241 2465
Email: brear@ozemail.com.au
Attention: Brian Rear
(b) Each party may from time to time change its particulars
for service by notice to each other party.
22.4 Service
If a communication is given by:
(a) post it will be deemed received if posted within
Australia to an Australian address 3 Business Days after
posting and in any other case 10 Business Days after posting
by airmail;
(b) facsimile and the sender's facsimile machine produces a
transmission report indicating that the facsimile was sent to
the addressee's facsimile, the report will be prima facie
evidence that the facsimile was received by the addressee at
the time indicated on that report;
(c) electronic mail and the sender receives a return receipt
indicating that the addressee has received the email, the
receipt will be prima facie evidence that the email was
received by the addressee at the time indicated in that
receipt.
22.5 Service after hours
If a communication to the Mortgagee is received by it:
(a) after 5.00 p.m; or
(b) on a day which is not a Business Day;
it will be deemed to have been received on the next
Business Day.
117
22.6 Process service
Any process or other document relating to litigation,
administrative or arbitral proceedings relating to this
document may be served by any method contemplated by
this clause 22 or in accordance with any applicable law.
EXECUTED as a deed.
EXECUTED by )
STRAITS MINING PTY LIMITED: )
C H Lim B J Rear
Company Secretary Director
C H Lim B J Rear
Name of Company Secretary Name of Director (print)
(print)
EXECUTED by NORD AUSTRALEX )
NOMINEES PTY LIMITED )
by the party's attorney
pursuant to power of attorney
registered Book 4276 No 698
who states that no notice of
revocation of the power of
attorney has been received in
the presence of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
EXECUTED by NORD PACIFIC )
LIMITED by the party's )
attorney pursuant
to power of attorney
registered Book 4276 No 699
who states that no notice of
revocation of the power of
attorney has been received in
the presence of:
T A Humphreys J Syriatowicz
Witness Attorney
T A Humphreys J C Syriatowicz
Name of Witness (print) Name of Attorney (print)
ANNEXURE "A"
MORTGAGE MEMORANDUM
(TORRENS TITLE/FREEHOLD)
THIS IS ANNEXURE "A" REFERRED TO IN THE MORTGAGE DATED 1 JUNE
2000 BETWEEN NORD AUSTRALEX NOMINEES PTY LIMITED AS MORTGAGOR
AND STRAITS MINING PTY LIMITED AS MORTGAGEE OVER THE LAND
REFERRED TO IN SCHEDULE ONE.
CONTENTS
1 INTERPRETATION 122
1.1 DEFINITIONS 122
1.2 CONSTRUCTION 127
1.3 TERMS DEFINED IN THE TRITTON SALE AGREEMENT 128
1.4 HEADINGS 128
1.5 CORPORATIONS LAW AND ACCOUNTING STANDARDS 128
1.6 SUBSISTING EVENTS AND POTENTIAL EVENTS OF DEFAULT 128
2 DISCHARGE 129
3 PAYMENT OF SECURED MONEY 129
3.1 PLACE, MANNER AND TIME OF PAYMENT 129
3.2 CURRENCY OF PAYMENT 129
3.3 APPROPRIATION 129
3.4 PAYMENTS IN GROSS 129
4 INTEREST 130
4.1 INTEREST 130
4.2 RATE 130
4.3 CAPITALISATION 130
4.4 MERGER 130
5 WARRANTIES AND REPRESENTATIONS 130
5.1 NATURE 130
5.2 GENERAL 132
6 GENERAL OBLIGATIONS 132
6.1 PROHIBITED DEALINGS 132
6.2 VARIATION OF OTHER SECURED INDEBTEDNESS 133
6.3 INFORMATION TO BE GIVEN 133
6.4 INSURANCE 134
6.5 COMPENSATION EVENT 134
6.6 TITLE DOCUMENTS 135
6.7 REPAIR 135
6.8 TAXES 135
119
6.9 CAVEATS 135
6.10 DEFAULT 135
6.11 MORTGAGOR'S OTHER OBLIGATIONS 136
6.12 RENTS 136
6.13 MORTGAGEE'S RIGHT TO ENTER 136
6.14 ALTERATION OF SECURED PROPERTY 137
6.15 DEVELOPMENT APPROVALS 137
6.16 ENCROACHMENTS 137
6.17 CROWN LAND 137
6.18 STRATA TITLE LAND 138
6.19 AGRICULTURAL LAND 139
6.20 COMMUNITY TITLE LAND 139
6.21 ENVIRONMENTAL ASSESSMENT REPORT 141
6.22 BUILDING WORKS 141
6.23 MORTGAGOR'S CHATTELS 143
6.24 LEASE CONSENTS AND PROVISIONS 143
6.25 DEED OF PRIORITY 144
7 EVENTS OF DEFAULT 144
8 DEFAULT POWERS 146
8.1 GENERAL 146
8.2 ACCELERATION 146
8.3 STATUTORY AND IMPLIED POWERS 146
8.4 SALE 146
8.5 GENERAL DEALINGS 147
8.6 BANKRUPTCY 148
8.7 RAISE AND LEND MONEY 148
8.8 INVESTMENT OF MONEYS 148
8.9 BUILDING WORKS 148
8.10 ANCILLARY POWERS 149
8.11 RECEIVERS 149
9 RECEIVERS 150
9.1 AGENT 150
9.2 POWERS 150
10 EXERCISE OF DEFAULT RIGHTS 150
10.1 NO HINDRANCE 150
10.2 MORTGAGEE IN POSSESSION 150
10.3 EXCLUSION OF LEGISLATION 151
10.4 DEFAULT NOTICE 151
11 APPLICATION OF MONEY 151
11.1 METHOD 151
11.2 CREDITOR'S CERTIFICATE AND DISPUTES 152
11.3 NO INTEREST ON REMEDY PROCEEDS 152
11.4 PAYMENT INTO BANK ACCOUNT 152
120
11.5 CONTINGENT AND PROSPECTIVE INDEBTEDNESS 152
11.6 PAYMENTS DURING DEFAULT NOTICE PERIOD 153
11.7 ACCOUNTING FOR REMEDY PROCEEDS 153
12 THIRD PARTY DEALINGS 153
12.1 MORTGAGEE'S RECEIPTS AND DISCHARGES 153
12.2 NO DUTY TO ENQUIRE 153
13 PRESERVATION OF MORTGAGEE'S RIGHTS 154
13.1 CONTINUING SECURITY 154
13.2 PRIMARY OBLIGATIONS 154
13.3 PRESERVATION OF MORTGAGOR'S OBLIGATIONS 154
13.4 SUSPENSION OF MORTGAGOR'S RIGHTS 154
13.5 REINSTATEMENT OF RIGHTS OF MORTGAGEE 154
13.6 NO MERGER 155
13.7 BANKRUPTCY OF DEBTOR 155
14 COSTS AND EXPENSES 155
14.1 NATURE 155
14.2 GOODS AND SERVICES TAX 155
14.3 LEGAL COSTS 156
14.4 REMUNERATION 156
15 INDEMNITIES 156
15.1 NATURE 156
15.2 CURRENCY DEFICIENCY 156
15.3 INDEPENDENCE AND SURVIVAL 157
16 ATTORNEY 157
16.1 APPOINTMENT 157
16.2 GENERAL 157
17 MISCELLANEOUS 157
17.1 MORTGAGEE'S DETERMINATION AND CERTIFICATE 157
17.2 SUPERVENING LEGISLATION 158
17.3 TIME OF THE ESSENCE 158
17.4 BUSINESS DAYS 158
17.5 EXCHANGE RATE 158
17.6 FURTHER ASSURANCES 158
17.7 AMENDMENT 159
17.8 WAIVER AND EXERCISE OF RIGHTS 159
17.9 RIGHTS CUMULATIVE 160
17.10 APPROVAL AND CONSENT 160
17.11 ASSIGNMENT 160
17.12 COUNTERPARTS 160
17.13 SOVEREIGN IMMUNITY 160
17.14 GOVERNING LAW AND JURISDICTION 160
121
17.15 JOINT AND SEVERAL LIABILITY 160
18 NOTICES 161
18.1 GENERAL 161
18.2 METHOD OF SERVICE 161
18.3 ADDRESS FOR SERVICE 161
18.4 SERVICE 162
18.5 SERVICE AFTER HOURS 162
18.6 PROCESS SERVICE 162
SCHEDULE ONE 163
122
1 INTERPRETATION
1.1 Definitions
In this document:
"Accounting Standards" means accounting principles and
practices consistently applied which are generally
accepted in Australia and are consistent with any
applicable legislation.
"Accounts" means profit and loss accounts and balance
sheets together with statements, reports and notes,
including a director's report or an auditor's report,
attached to or intended to be read with any of those
profit and loss accounts or balance sheets.
"Agricultural Land" means any part of the Secured
Property which is used for farming, horticultural,
agricultural or pastoral purposes.
"Approved Plans" means plans and specifications approved
by the Mortgagee and all relevant Government Bodies.
"Attorney" means any attorney appointed under this
document and any person who by delegation directly or
indirectly derives a right from an Attorney.
"Authorised Representative" means:
(a) in relation to the Financier:
(i) an employee of the Financier whose title contains the
word "manager" or a cognate term;
(ii) a person performing the functions of any of them; and
(iii) a lawyer for the Financier; and
(b) in relation to any party to this document:
(i) if that party is a corporation, a director or secretary
of that party; and
(ii) a person appointed by that party with the right to act
as the agent of that party for the purpose of this document
whose appointment and rights are notified in writing by the
appointor to the other party.
"Bankruptcy" means:
(a) in relation to a corporation, its winding up or
dissolution or its administration, official management,
provisional liquidation or any administration having a similar
effect;
(b) in relation to an individual, his or her bankruptcy; and
123
(c) in relation to a person, any arrangement (including a
scheme of arrangement), composition or compromise with, or
assignment for the benefit of, all or any class of that
person's creditors or members or a moratorium involving any of
them.
"Break Costs" means any liability or costs incurred by
the Mortgagee by reason of:
(a) liquidating or re-deploying deposits or other funds
acquired or contracted for by or on account of the Mortgagor
or the Mortgagee; or
(b) terminating or reversing any agreement or arrangement
(including by entering into new agreements or arrangements to
close out or net off existing agreements or arrangements)
entered into by or on account of the Mortgagor or the
Mortgagee with a counterparty or an internal department of the
Mortgagee responsible for such agreements or arrangements to
hedge, fix, swap or limit its effective cost of funding; or
(c) any loss of any margins in relation to future lending or
loss of any fees,
in relation to any financial accommodation provided or
to be provided by the Mortgagee under or in connection
with any Transaction Document.
"Building Contract" means any contract for the provision
of services or property relating to the carrying out of
any Building Works.
"Building Documents" means any records, books of
account, approvals, plans, drawings, specifications,
schedules, feasibility studies, reports, certificates
and other documents relating to any Building Works,
including, without limitation, the Mortgagor's copy or
counterpart of any Building Contract and any Approved
Plans.
"Building Works" includes the demolition, alteration or
construction of Improvements.
"Business Day" means a day which is not a Saturday,
Sunday or public or bank holiday in Sydney.
"Charge" means the fixed and floating charge dated on or
about the date of this document granted by the Mortgagor
in favour of the Mortgagee.
"Compensation Event" means any confiscation, resumption,
appropriation, forfeiture, repurchase or compulsory
acquisition of the Secured Property by any person under
a statute or otherwise.
"Crown Land" has the same meaning as in the Crown Lands
Act 1989.
"Crown Lands Legislation" means the Crown Lands Act
1989, the Crown Lands (Continued Tenures) Act 1989 and
the Western Lands (Crown Lands) Act 1989.
"Encumbrance" means any interest in or right over
property and anything which prevents, restricts or
delays the registration of any interest in or dealing
with property. It includes a Security Interest.
"Environmental Assessment Report" means a report in
relation to the compliance of the Secured Property with
Environmental Law.
124
"Environmental Law" means a law which relates to an
aspect of the environment or health.
"Environmental Liabilities" means any liability,
obligation, expense, penalty or fine arising out of a
breach of Environmental Law which could be imposed upon
the Mortgagor or the Mortgagee or any occupier of the
Secured Property as a result of activities carried on
during the ownership, occupation or control of the
Secured Property by the Mortgagor or one of its
predecessors in title or any previous occupier or
controller of the Secured Property.
"Event of Default" means any event or circumstance
described in clause 7.
"Financial Indebtedness" means any indebtedness or other
liability (present or future, actual or contingent)
relating to any financial accommodation including,
without limitation, indebtedness or other liability:
(a) for money borrowed or raised;
(b) relating to the sale or negotiation of any negotiable
instrument;
(c) as lessee under any finance lease, as hirer under any
hire purchase agreement or as purchaser under any title
retention agreement;
(d) relating to any redeemable preference share;
(e) under any commodity, currency or interest rate swap
agreement, forward exchange rate agreement or futures contract
(as defined in any statute); or
(f) under any Guarantee relating to any financial
accommodation.
"Financial Year" means a period of 12 months ending on 30 June.
"Government Body" means any person or body exercising an
executive, legislative, judicial or other governmental
function. It includes any public authority constituted
under a law of any country or political sub-division of
any country. It also includes any person deriving a
power directly or indirectly from any other Government
Body.
"Guarantee" means:
(a) a guarantee, indemnity, undertaking, letter of credit,
Security, acceptance or endorsement of a negotiable instrument
or other obligation given by any person to secure compliance
with an obligation by another person;
(b) an obligation (actual or contingent) of a person to
ensure the solvency of another person or the ability of
another person to comply with an obligation, including,
without limitation, by the advance of money or the acquisition
for valuable consideration of property or services; and
(c) an option under which a person is obliged upon the
exercise of the option to buy:
(i) any debt or liability owed by another person; or
(ii) any property which is subject to a Security Interest.
125
"Holding" has the same meaning as in the Crown Lands Act 1989.
"Improvements" means any improvements, fixtures or
structures on or affixed to the Secured Property.
"Income Tax Assessment Act" means the Income Tax
Assessment Act 1936.
"Insurance" means insurance which the Mortgagor is
obliged to take out or maintain under a Transaction
Document.
"Material Adverse Effect" means a material adverse
effect upon either:
(a) the ability of the Mortgagor to comply with its payment
obligations under the Tritton Sale Agreement; or
(b) the effectiveness, priority or enforceability of any
Transaction Document.
"Mining Act" means the Mining Act 1992 (NSW).
"Mortgage of Mining Property" means the mortgage dated
on or about the date of this document of Mining Lease
1383 and the Ancillary Licences granted by the Mortgagor
to the Mortgagee.
"Notification Amount" means $100,000.
"Owners Corporation" has the same meaning as in the Strata Act.
"Minister" has the same meaning as in the Interpretation Act 1987.
"Permitted Encumbrance" means:
(a) an Encumbrance which has been approved by the Mortgagee
(including the Security Interests created by this document);
or
(b) an Encumbrance created in respect of Project Financing
provided that the Chargee may withhold its consent to such
financing if it demonstrates the Project Financing is not
advanced on reasonable and commercial terms; or
(c) an Encumbrance created in respect of Project Financing
on terms reasonably acceptable to the Mortgagee; or
(d) a lien which arises by operation of law to secure the
payment of Taxes or moneys for services performed in relation
to property while the moneys the payment of which is secured
by that lien are not due for payment; or
(e) any royalties or other interests in favour of a
Government Body imposed by statute.
"Potential Event of Default" means any thing which, with
the giving of notice, lapse of time or determination of
materiality, will constitute an Event of Default.
"Project Financing" means financing arrangements into
which the Mortgagor enters with financier(s) pursuant to
which the Mortgagor obtains facilities to be used to
carry out or develop a project on the Tritton Project
Area but does not mean such arrangements where the
financier is a related body corporate of the Mortgagor.
126
"Real Property Act" means the New South Wales Real
Property Act, 1900.
"Receiver" means a receiver or receiver and manager
appointed by the Mortgagee under any Transaction
Document and any person who derives a right directly or
indirectly from a Receiver.
"Relevant Jurisdiction" means New South Wales.
"Relevant Securities" means:
(a) this document;
(b) the Mortgage of Mining Property;
(c) the Charge; and
(d) any other document which the parties agree in writing is
a Relevant Security.
"Remedy Proceeds" means moneys received from the
exercise of any right against the Secured Property.
"Rent Proceeds" means the proceeds of any Rents.
"Rents" means the rents and profits of the Secured Property.
"Representative" of a person means an officer, employee,
contractor or agent of that person.
"Sales Tax Assessment Act" means the Sales Tax
Assessment Act 1992.
"Secured Money" means any and all amounts which may
become due and owing by the Mortgagor under or in
relation to the Transaction Documents.
Where the Mortgagor would have been liable to pay such
amounts but for its Bankruptcy, it will be taken still
to be liable.
"Secured Property" means the land described in Schedule
One of this document and any improvements, fixtures or
structures on or affixed to that land.
"Security" means any document or transaction which
reserves or creates a Security Interest.
"Security Interest" means any interest or right which
secures the payment of a debt or other monetary
obligation or the compliance with any other obligation.
It includes any retention of title to any property and
any right to set off or withhold payment of any deposit
or other money.
"Strata Act" means the Strata Schemes Management Act 1996.
"Strata Scheme" has the meaning given to strata scheme
in the Strata Act.
127
"Tax" means a tax, rate, levy, impost and duty (other
than a tax on the net overall income of the Mortgagee)
and any interest, penalty, fine or expense relating to
any of them.
"Threshold Amount" means $100,000 or its equivalent.
"Title Document" means any original, duplicate or
counterpart document relating to title, use, possession,
disposition, devolution or acquisition of the Secured
Property, including, without limitation, any certificate
of title, grant, conveyance or other assurance, map,
plan, survey, will, probate, abstract of title,
valuation or report relating to the Secured Property.
"Transaction Documents" means:
(a) the Tritton Sale Agreement;
(b) the Relevant Securities;
(c) any agreement relating to the priority of this document
or any Security which is a Relevant Security; and
(d) any agreement or instrument created under them.
"Tritton Project" means the copper mining project
carried out on the Tritton Project Area.
"Tritton Project Area" has the same meaning as in the
Tritton Sale Agreement.
"Tritton Sale Agreement" means the agreement of that
name dated on or about the date of this document between
the Mortgagor and the Mortgagee.
1.2 Construction
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
(c) a reference to:
(i) a person includes a firm, unincorporated association,
corporation and a government or statutory body or authority;
(ii) a person includes its legal personal representatives,
successors, assigns and substitutes, including, without
limitation, persons substituted by novation;
(iii) a statute, ordinance, code or other law includes
regulations and other statutory instruments under it and
consolidations, amendments, re-enactments or replacements of
any of them;
128
(iv) a right includes a benefit, remedy, discretion and
power;
(v) an obligation includes any warranty or representation
and a reference to a failure to comply with an obligation
includes a breach of warranty or representation;
(vi) this or any other document includes the document as
varied or replaced and notwithstanding any change in the
identity of the parties;
(vii) provisions or terms of this document or another
document, agreement, understanding or arrangement includes a
reference to both express and implied provisions and terms;
(viii) time is to local time in Sydney;
(ix) "$" or "dollars" is a reference to the lawful currency
of Australia;
(x) writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and includes
facsimile transmissions; and
(xi) any thing (including, without limitation, any amount) is
a reference to the whole or any part of it and a reference to
a group of things or persons is a reference to any one or more
of them; and
(d) a reference to this document includes all schedules,
annexures and appendices referred to in it.
1.3 Terms defined in the Tritton Sale Agreement
Unless the context otherwise requires, terms defined in
the Tritton Sale Agreement have the same meaning where
used in this document.
1.4 Headings
Headings do not affect the interpretation of this
document.
1.5 Corporations Law and Accounting Standards
Unless expressed to the contrary:
(a) marketable security, related body corporate, share and
subsidiary each have the meaning which they are defined to
have in the Corporations Law; and
(b) finance lease has the meaning which it is defined to
have for the purposes of the Accounting Standards.
1.6 Subsisting Events and Potential Events of Default
(a) An Event of Default subsists if it has occurred and has
not been waived by the Mortgagee in accordance with this
document.
(b) A Potential Event of Default subsists if it exists and
has not been waived by the Mortgagee in accordance with this
document.
129
2 DISCHARGE
The Mortgagee shall, at the request of the Mortgagor,
discharge the Security Interest created by this document
if the Mortgagor's obligation to pay the Secured Money
is satisfied and in the Mortgagee's reasonable opinion
no payment towards the satisfaction of the Mortgagor's
obligation to pay the Secured Money is likely to be
void, voidable or refundable under any law (including,
without limitation, any law relating to Bankruptcy).
3 PAYMENT OF SECURED MONEY
3.1 Place, manner and time of payment
The Mortgagor, subject to clause 8.2, shall pay the
Secured Money to the Mortgagee in accordance with any
agreement which obliges the Mortgagor to pay it and in
the absence of agreement:
(a) upon demand and at a place and in a manner reasonably
required by the Mortgagee;
(b) by 11.00 am. local time in the place where payment is to
be made; and
(c) in immediately available funds and without set-off,
counter claims, conditions or, unless required by law,
deductions or withholdings.
3.2 Currency of payment
(a) The Mortgagor shall pay the Secured Money in the
currency in which it is payable under any agreement which
obliges the Mortgagor to pay it and in the absence of
agreement in the currency reasonably required by the
Mortgagee.
(b) If the Mortgagee accepts a payment under this document
in a currency other than that in which payment is required by
clause 3.2(a), that payment will not satisfy the amount due
for payment except to the extent that the Mortgagee could in
the ordinary course of its business buy with the payment
received the required currency within a reasonable time of
receipt after the deduction of all costs relating to the
purchase.
3.3 Appropriation
The Mortgagee may, subject to any express provision in
this document to the contrary, appropriate any payment
towards the satisfaction of any moneys due for payment
by the Mortgagor in relation to this document in any way
that the Mortgagee thinks fit and notwithstanding any
purported appropriation by the Mortgagor.
3.4 Payments in gross
The Mortgagee in applying towards satisfaction of the
Secured Money any moneys received by it shall credit the
Mortgagor only with that part of those moneys which is
actually received by the Mortgagee in immediately
available funds.
130
4 INTEREST
4.1 Interest
The Mortgagor shall pay interest on that part of the
Secured Money which is from time to time owing by the
Mortgagor to the Mortgagee in accordance with the
Transaction Documents and in respect of any monies that
become payable under this document in accordance with
this clause 4.
4.2 Rate
(a) Interest shall be paid in accordance with any agreement
requiring interest to be paid on the Secured Money.
(b) In the absence of any agreement, interest will accrue
from day to day at a rate of interest determined by the
Mortgagee from time to time, be computed from and include the
day when the moneys upon which interest is payable become
owing to the Mortgagee by the Mortgagor but exclude the day of
payment of those moneys, be calculated on the actual number of
days elapsed on the basis of a 365 day year and be paid by the
Mortgagor upon demand.
4.3 Capitalisation
The Mortgagee may:
(a) capitalise, upon a monthly or such other periodical
basis as the Mortgagee may determine, any part of any interest
which becomes due and owing or due on demand, and interest is
payable in accordance with this document upon capitalised
interest; and
(b) continue to capitalise interest notwithstanding that as
between the Mortgagee and the Mortgagor the relationship of
financier and customer may have ceased, any composition
entered into or agreed to by the Mortgagee, any judgment or
order against the Mortgagor or any other thing.
4.4 Merger
If the liability of the Mortgagor to pay to the
Mortgagee any moneys payable under this document becomes
merged in any deed, judgment, order or other thing, the
Mortgagor shall pay interest on the amount owing from
time to time under that deed, judgment, order or other
thing at the higher of the rate payable under this
document and that fixed by or payable under that deed,
judgment, order or other thing.
5 WARRANTIES AND REPRESENTATIONS
5.1 Nature
The Mortgagor warrants and represents that:
(a) it is duly incorporated in accordance with the laws of
its place of incorporation as stated in the Transaction
Documents or as notified to the Mortgagee prior to the date of
this document, validly exists under those laws and has the
capacity to sue or be sued in its own name and to own its
property and conduct its business as it is being conducted;
131
(b) (i) each Transaction Document is the valid and legally
binding obligation of the Mortgagor and is enforceable against
the Mortgagor by the Mortgagee in accordance with its terms;
(ii) each Security Interest which each Transaction Document
purports to create exists and has the priority which the
Mortgagee has agreed to;
(c) the Mortgagor has capacity unconditionally to execute
and deliver and comply with its obligations under the
Transaction Documents;
(d) the Mortgagor has taken all necessary action to
authorise the unconditional execution and delivery of and the
compliance with its obligations under the Transaction
Documents;
(e) each authorisation from and filing and registration with
a Government Body necessary to enable the Mortgagor to
unconditionally execute and deliver and comply with its
obligations under the Transaction Documents and carry on its
principal business or activity has been obtained, effected and
complied with;
(f) the unconditional execution and delivery of and
compliance with its obligations by the Mortgagor under the
Transaction Documents does not contravene:
(i) any law or directive from a Government Body;
(ii) the constitutional documents of the Mortgagor;
(iii) any agreement or instrument to which the Mortgagor is a
party; or
(iv) any obligation of the Mortgagor to any other person;
(g) except as notified to the Mortgagee in writing prior to
the date of this document:
(i) no litigation, arbitration or administrative proceeding
is current, pending or, to the knowledge of the Mortgagor,
threatened, which has or is likely to have a Material Adverse
Effect;
(ii) there are no restrictions on the use of the Secured
Property and there are no proposals by any Government Body to
restrict the use of the Secured Property or to resume,
appropriate or otherwise compulsorily acquire the Secured
Property; and
(iii) there are no Environmental Liabilities affecting the
Secured Property and the use of the Secured Property complies
with all Environmental Laws;
(h) except as notified to the Mortgagee in writing prior to
the date of this document, the Mortgagor has not entered into
a Transaction Document as trustee of any trust;
(i) no Event of Default or Potential Event of Default
subsists;
132
(j) each obligation of the Mortgagor under this document
ranks at least pari passu with all unsecured and
unsubordinated obligations of the Mortgagor except obligations
mandatorily preferred by law;
(k) the warranties and representations given by the
Mortgagor in any Transaction Document are correct and not
misleading or will be when given;
(l) the Mortgagor and its property are free of any right of
immunity from set-off, proceedings or execution in respect of
its obligations under any Transaction Document;
(m) the Insurances are enforceable against the insurer in
accordance with their terms and are not void or voidable; and
(n) the Mortgagor is (or will become) or is entitled to be
registered as proprietor of the Secured Property and the
Secured Property and the Rents are free from Encumbrances
other than Permitted Encumbrances.
5.2 General
(a) The interpretation of any statement contained in any
warranty or representation shall not be restricted by
reference to or inference from any other statement contained
in any other warranty or representation.
(b) The Mortgagor acknowledges that the Mortgagee has
entered into the Transaction Documents in reliance upon the
warranties and representations.
(c) Each warranty and representation will survive the
execution of this document and be deemed to be repeated with
reference to the facts and circumstances then existing
whenever financial accommodation is requested or given and on
each day that moneys are owing (actually or contingently) by
the Mortgagor to the Mortgagee under a Transaction Document.
6 GENERAL OBLIGATIONS
6.1 Prohibited dealings
(a) The Mortgagor shall not:
(i) transfer, otherwise dispose of or deal with the Secured
Property or cause or permit any person to acquire any interest
(except a Permitted Encumbrance) in:
(A) the Secured Property;
(B) the Rents or Rent Proceeds; or
(C) any rights or benefits relating to the Secured Property
(including rights to air space, plot ratio, floor space
ratio or other similar ratio);
(ii) subdivide, consolidate or dedicate for any public
purpose, the Secured Property;
133
(iii) part with possession of the Secured Property, give a
licence to use or occupy the Secured Property or consent to
the subletting of the Secured Property; or
(iv) (A) cause or permit any person to acquire any easement,
profit a prendre or covenant which burdens the Secured
Property; or
(B) release or vary an easement, profit a prendre or
covenant which benefits the Secured Property.
(b) The Mortgagor shall not cause or permit the Secured
Property, the Rents or Rent Proceeds to be Encumbered except
by Permitted Encumbrances.
6.2 Variation of other secured indebtedness
Subject to clause 6.25, the Mortgagor shall not incur
any debt or monetary obligation (whether actual or
contingent) to a holder, other than the Mortgagee, of a
Security Interest over the Secured Property the payment
of which is secured by that Security Interest except
Financial Indebtedness incurred as a consequence of that
holder granting financial accommodation to the Mortgagor
or a person whose obligations are Guaranteed by the
Mortgagor to that holder, in accordance with an existing
agreement:
(a) which has been fully disclosed to and approved by the
Mortgagee; and
(b) under which the holder is, at the time this document is
made, actually or contingently obliged to grant that financial
accommodation.
6.3 Information to be given
The Mortgagor shall give to the Mortgagee:
(a) upon demand, any other information in the possession or
under the control of the Mortgagor which in the Mortgagee's
reasonable opinion is relevant to the Secured Property or this
document;
(b) upon the happening of an Event of Default or a Potential
Event of Default, a certificate signed by the Mortgagor (or,
if the Mortgagor is a corporation, by 2 directors or a
director and company secretary of the Mortgagor) certifying
whether or not an Event of Default or a Potential Event of
Default has occurred and, if one has occurred, giving full
written particulars of it and of the action taken or proposed
to be taken by the Mortgagor to remedy it;
(c) upon receipt, a copy of any notice or order received
from any Government Body relating to:
(i) any proposal of the Government Body in relation to the
Secured Property which if implemented may have or be likely to
have a Material Adverse Effect; and
(ii) any alleged Environmental Liability or breach of
Environmental Law;
(d) upon being notified of it, full particulars of any
Compensation Event; and
134
(e) at the time that it is sent or given, any notice or
other document sent or given by the Mortgagor to its members
or any class of members or its creditors or any class of
creditors, the Australian Securities and Investments
Commission or any stock exchange.
6.4 Insurance
(a) The Mortgagor shall:
(i) effect and maintain insurance over and in relation to
the Secured Property with insurers, for amounts, against risks
and upon terms that a prudent and reasonable owner of the
Secured Property would effect and maintain;
(ii) ensure that each such Insurance is taken out in the
names of the Mortgagor and the Mortgagee as co-insureds and
insures their respective insurable interests in the Secured
Property; and
(iii) upon demand, give to the Mortgagee a certificate in form
and substance satisfactory to the Mortgagee from the insurer
to the effect that the required Insurances are current and no
premiums or other moneys are due and owing to the insurer;
(iv) upon demand, give to the Mortgagee all policies and
documents relating to the Insurances, including, without
limitation, all renewal certificates, certificates of currency
and endorsement slips.
(b) After an Event of Default has occurred, the Mortgagee
may, but the Mortgagor shall not without the prior written
consent of the Mortgagee (not to be unreasonably withheld),
enforce, conduct, settle or compromise claims under any
Insurance for any amount exceeding the Threshold Amount
irrespective of whether the Insurance also relates to other
property.
(c) Any moneys paid by an insurer under any Insurance shall,
subject to the provisions of the Insurance, be applied as
follows:
(i) first, as the Mortgagee requires:
(A) towards replacement or reinstatement of the Secured
Property in respect of which the money is paid; or
(B) in payment of any part of the Secured Money which is
then actually owing whether or not it is due for payment;
and
(ii) secondly, the balance (if any) shall be paid to any
person entitled to them or authorised to give receipts for
them.
6.5 Compensation Event
(a) The Mortgagor shall:
(i) notify the Mortgagee of any Compensation Event and keep
the Mortgagee informed of all matters relating to it; and
135
(ii) subject to clause 6.5(c), use its best endeavours to
cause the prompt payment of any compensation or moneys
payable in relation to that Compensation Event in excess
of the Threshold Amount.
(b) After an Event of Default has occurred, the Mortgagee
may, but the Mortgagor shall not without the consent of the
Mortgagee (not to be unreasonably withheld), enforce, conduct,
settle or compromise claims in relation to any Compensation
Event.
(c) Any moneys paid by a person in respect of any
Compensation Event shall be applied as follows:
(i) first, as the Mortgagee requires in payment of any part
of the Secured Money which is then actually owing whether or
not it is due for payment; and
(ii) secondly, the balance (if any) shall be paid to any
person entitled to them or authorised to give receipts for
them.
6.6 Title Documents
(a) The Mortgagor shall ensure that the Title Documents
which evidence or relate to the Secured Property be delivered
to the Mortgagee.
(b) The Mortgagee may have possession and control of those
Title Documents until the Mortgagee is obliged to discharge
the Security Interests created by this document.
(c) The Mortgagor is not obliged to deliver any Title
Documents to the Mortgagee if those Title Documents have been
delivered to the holder of another Encumbrance over the
Secured Property which ranks in priority before the Security
Interests created by this document and which the Mortgagee has
consented to, but the Mortgagor shall promptly deliver such
Title Documents to the Mortgagee immediately after that prior
ranking Encumbrance is discharged.
6.7 Repair
The Mortgagor shall keep the Secured Property in good
repair and in good working order.
6.8 Taxes
The Mortgagor shall promptly pay when they become due
for payment (or reimburse the Mortgagee upon demand for)
all Taxes payable in respect of the Secured Property
where failure to do so may have a Material Adverse
Effect.
6.9 Caveats
The Mortgagor shall not cause any caveat to be lodged in
respect of the Secured Property which would hinder the
exercise of any right of the Mortgagee under this
document.
6.10 Default
The Mortgagor shall ensure that no Event of Default occurs.
136
6.11 Mortgagor's other obligations
The Mortgagor shall:
(a) duly comply with its obligations in relation to the
Secured Property, including, without limitation, under any
Encumbrance over the Secured Property, any law applicable to
the Secured Property and any lawful direction from any
Government Body; and
(b) institute or defend any legal proceedings which the
Mortgagee may reasonably require to protect the Secured
Property.
6.12 Rents
(a) The Mortgagor may, subject to this clause 6.12, collect
and apply the Rent Proceeds in the ordinary course of its
ordinary business.
(b) If:
(i) an Event of Default occurs;
(ii) any action is taken by any person, other than the
Mortgagor or the Mortgagee, to claim, execute or attach the
Rents or Rent Proceeds or to obtain an interest in them
ranking in priority before the Mortgagee's interest in them
under this document; or
(iii) any action is taken to issue to any person by whom the
Rent is due for payment or accruing or may become due for
payment to the Mortgagor, a notice under section 218 of the
Income Tax Assessment Act or section 74 of the Sales Tax
Assessment Act 1992 in relation to Taxes owed by the
Mortgagor,
the Mortgagor shall:
(iv) immediately pay any Rent Proceeds then held or paid in
the future into an account nominated by the Mortgagee and of
which the Mortgagee is (at the Mortgagee's option) the sole or
joint signatory; and
(v) immediately:
(A) assign in writing the Rents to the Mortgagee to secure
payment of the Secured Money; and
(B) give written notice of that assignment to the persons by
whom the Rents are payable.
6.13 Mortgagee's right to enter
(a) The Mortgagee and its nominees may at any reasonable
time enter on any property owned, used or occupied by the
Mortgagor for the purpose of inspection of the condition of
the Secured Property.
(b) The Mortgagor shall do everything on its part (and, if
the Mortgagor is a corporation, ensure that its related bodies
corporate do everything on their part) which is necessary or
desirable to enable the Mortgagee to exercise its rights under
clause 6.13(a).
137
6.14 Alteration of Secured Property
(a) The Mortgagor shall not cause or permit the demolition,
alteration or removal of any Improvements without the prior
written consent of the Mortgagee and then only in accordance
with any conditions subject to which the Mortgagee's consent
is given.
(b) The Mortgagor shall:
(i) ensure that any permitted demolition, alteration or
removal is to be carried out with due care and skill; and
(ii) obtain any appropriate certificate or other evidence
that the demolition, alteration or removal was carried out
in accordance with any applicable laws or the requirements
of any Government Body.
6.15 Development approvals
The Mortgagor shall maintain and observe any existing
development or building approvals relating to the
Secured Property.
6.16 Encroachments
(a) If any Improvement encroaches on adjoining land, the
Mortgagor shall take such action as the Mortgagee may
reasonably require to rectify the encroachment, obtain an
easement to authorise its continued existence or acquire the
land which is the subject of the encroachment, if a failure to
do so would cause or contribute to a Material Adverse Effect.
(b) If any Improvement on adjoining land at any time
encroaches on the Secured Property, the Mortgagor shall take
such action as the Mortgagee may reasonably require to cause
the encroachment to be removed if its existence would cause or
contribute to a Material Adverse Effect.
6.17 Crown Land
If the Secured Property is Crown Land, the Mortgagor shall:
(a) (i) not permit anything to occur which would make the
Mortgagor's Holding in that Crown Land liable to forfeiture;
(ii) promptly give to the Mortgagee full particulars of any
notification of forfeiture of the Mortgagor's Holding
immediately upon becoming aware of it;
(iii) if the Mortgagor's Holding is forfeited, use its best
endeavours to ensure the reversal of the forfeiture; and
(iv) cause or permit to be fulfilled any conditions attaching
to any reversal of a forfeiture;
138
(b) not surrender to the Crown the whole or part of any land
or any lease from the Crown under the Crown Lands Legislation;
(c) not apply for or consent to any alteration,
modification, addition to or revocation of:
(i) the conditions attaching to the Mortgagor's Holding; or
(ii) the purpose of the Mortgagor's Holding,
if that alteration, modification, addition to or
revocation would decrease the value of that
Holding;
(d) (i) immediately upon receipt, give to the Mortgagee a copy
of any notice of a determination or a redetermination of rent
payable under the Crown Lands Legislation in relation to the
Mortgagor's Holding; and
(ii) if reasonably required by the Mortgagee, object in
accordance with the Crown Lands Legislation against any
increase in that rent and if the Minister does not allow that
objection appeal against the Minister's decision; and
(e) not cause the cancellation of an enclosure permit (as
defined in s 60 of the Crown Lands Act 1989) relating to the
Secured Property.
6.18 Strata Title Land
If the Secured Property comprises a lot in a Strata Scheme:
(a) the Mortgagor shall:
(i) promptly pay all contributions and any other moneys
which at any time become payable in respect of the Secured
Property to the Owners Corporation;
(ii) promptly comply with its obligations under the Strata
Act and any by-laws of the Strata Scheme in relation to the
Secured Property;
(iii) use its best endeavours to cause any building which
forms part of the Secured Property to be insured by the Owners
Corporation for its full insurable value against risks and
upon terms and conditions that a prudent person would consider
appropriate; and
(iv) procure the entry of the Mortgagee's interest in the
Secured Property on the strata roll of the Strata Scheme;
(b) the Mortgagee may exercise the voting rights conferred
upon it by the Strata Act;
(c) the Mortgagor irrevocably authorises the Mortgagee to
obtain from the Owners Corporation and shall ensure that the
Owners Corporation provides to the Mortgagee:
139
(i) all information which the Mortgagee may require in
relation to the Owners Corporation, the Strata Scheme or
the Secured Property, including, without limitation,
information relating to:
(A) the by-laws of the Strata Scheme; and
(B) the obligations and rights of the Owners Corporation;
and
(ii) a certificate under s 109 of the Strata Act; and
(d) the Mortgagor shall, upon request by the Mortgagee,
effect and maintain mortgage protection insurance in respect
of the Secured Property as contemplated by s 91(3) of the
Strata Act for such amount required by the Mortgagee.
6.19 Agricultural Land
If the Secured Property is Agricultural Land, the Mortgagor shall:
(a) cultivate and manage the Agricultural Land in accordance
with the best methods and practices appropriate to them;
(b) erect and keep in good repair all appropriate rabbit
proof and other fencing of the Agricultural Land;
(c) use its best endeavours to keep the Agricultural Land
free from noxious animals, insects and plants;
(d) (i) upon demand grant to the Mortgagee a registered Security
Interest over any wool clip of any sheep owned from time to
time by the Mortgagor and any crop of agricultural or
horticultural produce of the Agricultural Land; and
(ii) not Encumber any present or future wool clip or crop of
agricultural or horticultural produce of the Agricultural
Land; and
(e) comply with its obligations under any statutory or other
licences or quotas affecting or regulating production at or
from the Agricultural Land or the sale of the produce of it.
6.20 Community Title Land
(a) If the Secured Property is or becomes a Community
Development Lot, Precinct Development Lot or Neighbourhood Lot
or any Community Property, Precinct Property or Neighbourhood
Property forming all or part of a Scheme, the provisions of
this clause 6.20 shall apply.
(b) In this clause 6.20 and in clause 7(m):
"Association" means Community Association,
Precinct Association and Neighbourhood Association
or any of them.
"CLD Act" means Community Land Development Act.
"CLM Act" means Community Land Management Act.
140
"Lot" means any Community Development Lot,
Precinct Lot or Neighbourhood Lot or any Community
Property, Precinct Property or Neighbourhood
Property and the expression "Lots" shall have a
corresponding meaning.
"Management Statement" means a Community
Management Statement, a Precinct Management
Statement or a Neighbourhood Management Statement.
"Scheme" means any Community Scheme, Precinct
Scheme or Neighbourhood Scheme or a Strata Scheme.
Words and phrases which are defined in the CLM Act
have that defined meaning.
(c) The Mortgagor shall:
(i) promptly observe all the duties and obligations imposed
on the Mortgagor as proprietor of a Lot under the provisions
of the CLM Act and the CLD Act or under the provisions of any
Management Statement in respect of the Secured Property;
(ii) insure and keep insured any improvements erected on the
Parcel and any part of the Secured Property which is or which
includes a Lot in accordance with clause 6.4; and
(iii) ensure that the Association complies with its insurance
and reinstatement obligations to the full extent permitted by
the CLM Act or the CLD Act.
(d) Where the Association of the Scheme fails to observe and
perform the duties and obligations imposed on such Association
under the CLM Act or the CLD Act or under the Management
Statement with respect to the Secured Property then the
Mortgagor will (at the request of the Mortgagee and without
prejudice to any other right, power or remedy available to the
Mortgagee), observe and perform such duties and obligations in
so far as they are capable of being observed and performed by
the Mortgagor.
(e) (i) The Mortgagee may exercise the voting rights conferred
upon it by the CLM Act or the CLD Act.
(ii) The Mortgagor releases the Mortgagee in respect of any
damage, cost or expense suffered by the Mortgagor as a result
of any act, omission, delay or irregularities in relation to
the exercise or non-exercise by the Mortgagee of such rights.
(f) The Mortgagor shall:
(i) advise the Mortgagee of any meetings of the Association
of the Scheme by notice in writing 5 days before the meeting;
and
(ii) forward to the Mortgagee immediately copies of all
notices, correspondence and written communications received
from the Association or the executive committee of the
Association or any other body, statutory or otherwise,
including but not limited to any government body relating in
any way to the Secured Property.
141
(g) (i) The Mortgagor authorises any attorney of the Mortgagor
appointed under this Mortgage to have and exercise (without
limiting the general nature of any other powers conferred) any
power which the Mortgagor has or would be entitled to have or
exercise as registered proprietor of any Lot in such Scheme
comprising the Secured Property or any part of it.
(ii) The Mortgagor shall :
(A) ratify and confirm any act or thing done by the attorney
in the exercise of the powers conferred by the Mortgagor; and
(B) pay to the Mortgagee on demand any costs incurred by the
Mortgagee or any attorney in exercising any of the powers
conferred by this document.
(h) The Mortgagor shall not, without the prior written
consent of the Mortgagee (which consent the Mortgagee shall
not unreasonably withhold), make any application to the
Commissioner or to a Board or to a court in respect of the
Secured Property or any part thereof.
(i) The Mortgagor shall, upon request made by the Mortgagee
or upon receipt of a notice of a proposed resolution of a
meeting of the Association indicating that surplus moneys in
any funds or accounts of the Association are intended to be
paid or distributed pursuant to the CLM Act, promptly execute
and have executed by any financier which has notified the
Association of such Scheme of such financier's interest in any
Lot (other than the Mortgagee) comprising any of the Secured
Property a consent in writing to the payment to the Mortgagee
of such of those moneys as would otherwise be payable to the
Mortgagor.
6.21 Environmental Assessment Report
The Mortgagor shall:
(a) when reasonably required by the Mortgagee obtain or
permit the Mortgagee to obtain an Environmental Assessment
Report from a person approved by the Mortgagee; and
(b) promptly comply with any reasonable recommendation
contained in any Environmental Assessment Report relating to
compliance with Environmental Law.
6.22 Building Works
(a) The Mortgagor shall not cause or permit the carrying out
of any Building Works without the prior written consent of the
Mortgagee and then only in accordance with any conditions
subject to which the Mortgagee's consent is given.
(b) If the Mortgagor carries out any Building Works this
clause 6.22 will apply.
(c) The Mortgagor shall:
(i) carry out the Building Works with reasonable speed, with
due care and skill and in accordance with the Approved Plans;
142
(ii) (A) comply with all applicable laws and directions of any
relevant Governmental Body to the satisfaction of the
Mortgagee and the relevant Government Bodies, including,
without limitation, the obtaining of all necessary consents
and the fulfilment of any conditions to which the consents
are subject; and
(B) promptly obtain any appropriate certificate or other
evidence that the Building Works have been carried out in
compliance with those laws and direction;
(iii) not encroach upon any adjoining land or street;
(iv) observe the provisions of any easement or restrictive
covenant which burdens the Secured Property;
(v) complete the Building Works within the time agreed with
Mortgagee or, if no time has been agreed, within a reasonable
time;
(vi) keep proper records and books of account relating to the
Building Works;
(vii)ensure that the Mortgagee and its Representatives may at
all reasonable times enter upon the Secured Property to
inspect the Building Works and any Building Documents;
(viii) upon demand give to the Mortgagee or its
Representative any information relating to the Building Works
it reasonably requires including, without limitation, copies
of the Building Documents;
(ix) give at least 5 Business Days' notice to the Mortgagee
of any proposed material variation to or replacement of any
Building Contract or Approved Plan and obtain the Mortgagee's
consent to any variation or replacement; and
(x) indemnify the Mortgagee upon demand against any claim,
liability, cost or expense caused or contributed to by any
inspection, approval or acceptance of the Building Documents
or the carrying out of the Building Works.
(d) (i) The Mortgagee assumes no liability to the Mortgagor for
any matter relating to the Building Documents or the carrying
out of the Building Works notwithstanding that the Mortgagee
may have purported to approve the Building Documents or any
variation or replacement of them or to inspect and approve or
accept any aspect of the Building Works.
(ii) No approval or acceptance by the Mortgagee will imply
the exercise by or on behalf of the Mortgagee of any care or
skill and not relieve the Mortgagor from its obligations to
ensure good design and workmanship and proper carrying out of
the Building Works.
(e) The Mortgagor shall hold as bailee for the Mortgagee the
Building Documents relating to the Building Works.
143
6.23 Mortgagor's chattels
(a) The Mortgagor shall upon demand made after the Mortgagee
has given a notice under clause 8.2 remove from the Secured
Property all chattels and if the Mortgagor does not do so the
Mortgagee may remove them and store them in the name and at
the cost of the Mortgagor with any person and for any period
that the Mortgagee thinks fit.
(b) If the Mortgagee gives a written notice to the Mortgagor
stating where the chattels are stored and the amount of the
costs incurred at the date of the notice in relation to the
removal and storage of the chattels the Mortgagee will have no
liability to the Mortgagor in relation to the chattels.
(c) The Mortgagee may sell the chattels for any price, in
any manner and upon any terms and conditions that the
Mortgagee thinks fit unless the Mortgagor pays to the
Mortgagee the cost of removal and storage of the chattels up
to and including the date of payment within 10 Business Days
of service on the Mortgagor of the notice referred to above.
(d) The proceeds of any sale of chattels referred to above
may be applied by the Mortgagee in accordance with clause 11.
6.24 Lease consents and provisions
If the Secured Property is subject to a lease, the Mortgagor shall:
(a) not grant any consent to the tenant in any circumstance
where the lease contemplates that the tenant must obtain the
Mortgagor's consent without the Mortgagee's prior written
consent and the Mortgagor shall ensure that no:
(i) disposition by the tenant of any interest in the lease;
(ii) variation or replacement of the lease;
(iii) termination or surrender of the lease before the
expiration of its term;
(iv) subletting or licensing of the Secured Property for use
or occupation; or
(v) determination of the rent or other moneys payable under
the lease (or any lease or licence for use or occupation by
any person deriving title from the lessee),
occurs without the Mortgagee's prior written consent; and
(b) ensure that the lease is upon terms which a prudent
owner of the Secured Property would in the ordinary course of
business approve and requires the tenant to pay a rent which
is not less than the full market rent from time to time.
6.25 Deed of Priority
If the Mortgagor enters into Project Financing, the
Mortgagee agrees that on request by the Mortgagor it
will enter into a deed of priority or deeds of priority
(as appropriate) with that financier or those financiers
(as appropriate) on terms reasonably acceptable to the
Mortgagee by which the Mortgagee will agree that the
moneys owing to that financier or those financier (as
appropriate) in relation to the Project Financing will
rank in priority to the Secured Money, provided that
such priority will apply to the Project Financing only.
144
7 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or
not caused by anything outside the control of the
Mortgagor):
(a) the Mortgagor does not pay any money due for payment
within seven days of receiving written notice from the
Mortgagee of failure to pay the Secured Money;
(b) a warranty, representation or statement made or deemed
to be made by the Mortgagor in any Transaction Document or
document contemplated by or relating to any Transaction
Document is untrue or misleading in any material respect and
which has a Material Adverse Effect;
(c) (i) a Transaction Document is void, voidable or otherwise
unenforceable by the Mortgagee or is claimed to be so by the
Mortgagor (other than due to the act or omission of the
Mortgagee);
(ii) it is unlawful for the Mortgagor to comply with any of
its obligations under any Transaction Document or it is
claimed to be so by the Mortgagor (other than due to the act
or omission of the Mortgagee);
(d) a Security Interest created by or purportedly created by
a Collateral Security ceases to have the priority which it
purports to have under the relevant Transaction Document or
becomes ineffective to secure the payment of the moneys or
compliance with the obligations which it purports to secure,
otherwise than by any act of the Mortgagee;
(e) a default or event occurs which is or is taken to be a
default or an event of default by or in relation to a person
(other than the Mortgagee) under a Transaction Document;
(f) a distress, attachment or execution is levied or becomes
enforceable against any property of the Mortgagor for an
amount exceeding the Threshold Amount;
(g) the Mortgagor ceases or threatens to cease to carry on
its business or a substantial part of its business;
(h) a person who holds a Security over property of the
Mortgagor becomes entitled to exercise a right under that
Security against the property to recover any moneys the
payment of which is secured by that Security or enforce any
other obligation the compliance with which is secured by it;
(i) the Mortgagor enters into or takes any action to enter
into an arrangement (including a scheme of arrangement),
composition or compromise with, or assignment for the benefit
of, all or any class of the Mortgagor's creditors or members
or a moratorium involving any of them;
(j) the Mortgagor is or states that it is unable to pay from
its own money its debts when they fall due for payment;
(k) the appointment of a receiver or receiver and manager in
respect of the property of the Mortgagor;
145
(l) (i) the appointment of an administrator, provisional
liquidator, liquidator or person having a similar or analogous
function under the laws of any relevant jurisdiction in
respect of it or any action is taken to appoint any such
person;
(ii) an application (which is not withdrawn within 21 days of
being made) or order is made for its winding up or dissolution
or a resolution is passed or any steps are taken to pass a
resolution for its winding up or dissolution;
(iii) it is deregistered under the Corporations Law or notice
of its proposed deregistration is given to the Mortgagor;
(iv) it is taken or must be presumed to be insolvent or
unable to pay its debts under any applicable legislation;
(v) anything analogous to or of a similar effect to anything
described above under the law of any relevant jurisdiction
occurs; or
(m) if the provisions of clause 6.20 apply:
(i) an order is made by the Supreme Court of New South Wales
varying or terminating a scheme pursuant to Section 70 of the
CLD Act;
(ii) an Association institutes proceedings against the
Mortgagor under the provisions of the CLM Act;
(iii) the Mortgagor fails to comply with any requirement which
he should comply with pursuant to the CLD Act or the CLM Act;
(iv) the Association carries out work pursuant to Section
58(2) of the CLM Act;
(v) an Association passes a resolution which in the
Mortgagee's reasonable opinion is likely to adversely affect
the value of the Secured Property or its saleability; or
(vi) the proprietor fails in the due performance of an
obligation pursuant to a development contract or plan
registered with a community, precinct or neighbourhood plan so
that in the Mortgagee's reasonable opinion the value or
saleability of the Secured Property is adversely affected.
8 DEFAULT POWERS
8.1 General
(a) The Mortgagee may at any time after an Event of Default
has occurred exercise any or all of the rights set out in this
clause 8 in any manner and at any time that it thinks fit and
notwithstanding that a Receiver has been appointed.
(b) The interpretation of any right set out in this clause 8
shall not be restricted by reference to or inference from any
other right.
146
8.2 Acceleration
If an Event of Default occurs the Mortgagee may at any
time by notice to the Mortgagor determine that all
instalments under the Tritton Sale Agreement are either
payable on demand or immediately due for payment, except
that, if the Mortgagor has not produced the first tonne
of copper concentrate from the Tritton Project Area
which constitutes part of a program for substantial
planned production and not merely trial mining, the
instalments under clauses 3.1(e) and (j) inclusive of
the Tritton Sale Agreement will not be payable.
8.3 Statutory and implied powers
The Mortgagee may exercise all rights capable of being
conferred by the statutes and other laws of any relevant
jurisdiction upon mortgagees under mortgage deeds or
otherwise.
8.4 Sale
The Mortgagee may sell the Secured Property and, without limitation,
any sale may be:
(a) by private treaty, auction, tender or otherwise;
(b) together with the sale of any other property by any
other person;
(c) upon terms and conditions that the Mortgagee thinks fit,
including, without limitation, terms and conditions:
(i) whereby:
(A) the purchaser is allowed time to pay the whole or any
part of the purchase price either with or without interest and
either with or without security;
(B) any rights over the Secured Property are reserved or
granted;
(C) the consideration is expressed in any currency or
consists of something other than money;
(D) the purchase price or other consideration is payable by
instalments; and
(E) if the sale is by auction or tender, a reserve price
determined by the Mortgagee is set;
(ii) relating to the title of the property;
and the Mortgagee may:
(d) buy in at any auction;
(e) disclose or not disclose any reserve price;
(f) rescind any contract of sale and resell the property
without being liable for any loss;
(g) advertise or not advertise the sale of the Secured
Property; and
(h) make any agreements or arrangements relating to the
sale.
147
8.5 General dealings
The Mortgagee may:
(a) enter, take possession of, take control of and get in the
Secured Property;
(b) manage, develop, quietly enjoy and otherwise deal with
the Secured Property;
(c) (i) exercise the rights of the Mortgagor and comply with its
obligations in respect of the Secured Property and ensure that
any other person comply with their obligations in respect of
the Secured Property;
(ii) vary, replace or release any right or interest of the
Mortgagor in or in relation to the Secured Property;
(d) carry out or complete, in any form, the construction of
any works;
(e) lease or hire out the Secured Property;
(f) exchange any part of the Secured Property for any other
property and, if there is a difference in value between the
property exchanged, give or receive, as the case may be, any
moneys or other consideration equal to the difference in value
in order to give or receive equal value for the exchange;
(g) acquire or grant easements, profits a prendre, covenants
or other rights which benefit, burden or relate to the Secured
Property and dedicate for any public purpose any part of the
Secured Property;
(h) subdivide or consolidate the Secured Property;
(i) grant options and rights of first refusal to acquire the
Secured Property;
(j) insure, maintain, improve and protect the Secured
Property;
(k) sever trees, crops and Improvements from the balance of
the Secured Property and deal with them separately from the
balance of the Secured Property;
(l) take on lease or on hire or otherwise acquire any
property necessary or convenient to the management of the
Secured Property;
(m) use the property and services of the Mortgagor and the
services of its personnel in the exercise of any rights under
this document; and
(n) vary, replace, rescind, repudiate or terminate any
agreement to which the Mortgagor is a party and which relates
to the Secured Property.
8.6 Bankruptcy
The Mortgagee may where any Rent or any other debt which
forms part of the Secured Property is owed (whether
actually or contingently) to the Mortgagor, prove for
the debt in a Bankruptcy, receive dividends and assent
to any proposal for an arrangement (including a scheme
of arrangement), composition or a compromise with, or an
assignment for the benefit of, creditors.
148
8.7 Raise and lend money
The Mortgagee may upon any terms and conditions that the Mortgagee
thinks fit:
(a) (i) borrow or otherwise raise moneys or obtain financial
accommodation on the security of the Secured Property; and
(ii) lend or otherwise grant financial accommodation to a
Receiver or an Attorney on the security of the Secured
Property,
for the purpose of enabling the Mortgagee, a Receiver or an Attorney
to exercise a right under this document; and
(b) deal with any Security Interest granted by it over the
Secured Property and enter into any agreement relating to the
priority of that Security Interest and discharge it.
8.8 Investment of moneys
Any moneys received by the Mortgagee which are not
required to be immediately applied in the exercise of
any right or pursuant to clause 11 may be invested in
any way authorised by the laws of any relevant
jurisdiction for the investment of trust moneys and the
Mortgagee may vary or dispose of the investment.
8.9 Building Works
(a) The Mortgagee may:
(i) carry out any Building Works in any manner the Mortgagee
thinks fit and in doing so may:
(A) adhere to or vary the Building Documents; and
(B) increase or reduce the estimated costs of carrying out
the Building Works;
(ii) use any materials, plant and equipment of the Mortgagor
upon the Secured Property in the carrying out of the Building
Works;
(iii) enter into any contracts or arrangements in relation to
the Building Works; and
(iv) expend the balance of any moneys held by the Mortgagee
and intended to form part of the Secured Money towards the
carrying out of the Building Works.
(b) The Mortgagor shall ensure that the Building Documents
are delivered to the Mortgagee.
(c) The Mortgagee will not be liable to the Mortgagor if the
Mortgagee does not carry out or complete any Building Works
or, having begun to do so, stops.
149
8.10 Ancillary powers
The Mortgagee may:
(a) (if the Mortgagor is a corporation) affix and
countersign any seal of the Mortgagor for the purpose of
exercising any of its rights under this document;
(b) employ or engage any person on behalf of the Mortgagor
for the purpose of exercising any of the Mortgagee's rights in
respect of the Secured Property (and dismiss such person);
(c) on behalf of the Mortgagor, commence, defend, prosecute,
settle, discontinue and compromise litigation, administrative
or arbitral proceedings in relation to the Secured Property;
(d) give receipts for and release, discharge or compromise
any Rents;
(e) enter into and execute and deliver documents and
agreements in respect of the exercise of its rights under this
document;
(f) delegate to any person any right (including this right
of delegation) under this document; and
(g) do anything incidental or conducive to the exercise of
any of its other rights under this document.
8.11 Receivers
The Mortgagee may:
(a) (i) either before or after it has taken possession of the
Secured Property appoint in writing any one or more persons to
be a receiver or receiver and manager of the Secured Property
or a part of it; and
(ii) appoint a different receiver or receiver and manager for
different parts of the Secured Property;
(b) if more than one person is appointed as Receiver of any
property, empower them to act jointly or jointly and severally;
(c) remove the Receiver, appoint another in his or her place
if the Receiver is removed, retires or dies, and reappoint a
Receiver who has retired or been removed; and
(d) fix the remuneration of the Receiver.
9 RECEIVERS
9.1 Agent
(a) A Receiver, subject to clause 9.1(b), will be the agent
of the Mortgagor who alone shall be responsible for the
Receiver's acts and omissions and remuneration.
(b) The Mortgagee may appoint a Receiver as the agent of the
Mortgagee and delegate to a Receiver any of the Mortgagee's
rights under this document.
150
9.2 Powers
(a) A Receiver shall have the right in relation to any
property in respect of which the Receiver is appointed to do
everything that the Mortgagor may lawfully authorise an agent
to do on behalf of the Mortgagor in relation to that property
and, without limitation, a Receiver may in relation to that
property exercise:
(i) the rights capable of being conferred upon receivers and
receivers and managers by the Corporations Law and the laws of
any relevant jurisdiction;
(ii) the rights set out in clauses 8.3 to 8.10 inclusive;
(iii) the rights of the Mortgagor (and, if the Mortgagor is a
corporation, the directors of the Mortgagor); and
(iv) any other rights the Mortgagee may by written notice to
a Receiver give to a Receiver.
(b) The Mortgagee may by written notice to a Receiver at the
time of a Receiver's appointment or any subsequent times give
any rights to a Receiver that the Mortgagee thinks fit.
10 EXERCISE OF DEFAULT RIGHTS
10.1 No hindrance
The Mortgagor shall not cause or permit the Mortgagee, a
Receiver or an Attorney to be prevented or hindered from
exercising its rights under this document.
10.2 Mortgagee in possession
(a) If the Mortgagee, a Receiver or an Attorney exercises
its rights under this document or takes possession of the
Secured Property, it will not be liable to account as a
mortgagee in possession.
(b) If the Mortgagee has taken possession of the Secured
Property it may give up possession of the Secured Property at
any time.
(c) The obligations of the Mortgagor under this document
relating to the Secured Property shall not be affected by the
Mortgagee, any Receiver or any Attorney taking possession of
the Secured Property.
10.3 Exclusion of legislation
(a) The provisions implied in mortgages by any statute shall
for the purposes of this document be negatived or varied only
so far as they are inconsistent with the provisions of this
document and are otherwise varied so as to become consistent
with this document.
(b) Any statutory restrictions (other than mandatory
restrictions) upon any right of the Mortgagee, Receiver or
Attorney to lease or otherwise deal with the Secured Property
shall not apply to the rights of those persons under this
document.
151
10.4 Default notice
(a) The Mortgagee, any Receiver and any Attorney may to the
extent that any applicable law permits exercise any right
under this document in relation to an Event of Default without
first giving any notice to the Mortgagor or allowing the lapse
of any period of time and the Mortgagor and the Mortgagee
dispense with any requirement under any statute that notice be
given by the Mortgagee, Receiver or Attorney, as the case may
be, or that it allow the lapse of any period of time before
exercising a right.
(b) If an applicable law requires that notice be given or a
lapse of time before any right can be exercised, then if no
particular period of notice or lapse of time is required, the
period of notice or lapse of time shall be one day.
11 APPLICATION OF MONEY
11.1 Method
The Remedy Proceeds shall, subject to any mandatory statutory
requirements, be applied by the Mortgagee, any Receiver or any Attorney
as follows:
(a) first, towards the payment or reimbursement of the costs
and expenses incurred by the Mortgagee, any Receiver or any
Attorney in the exercise or enforcement or attempted exercise
or enforcement of its rights under this document;
(b) secondly, towards:
(i) the remuneration of any Receiver or Attorney; and
(ii) any moneys owing by the Mortgagor to any Representative
of the Mortgagee, any Receiver or any Attorney;
(c) thirdly, towards the Secured Money which is then due for
payment or otherwise in accordance with clause 11.5 and the
Remedy Proceeds shall be appropriated between them as the
Mortgagee thinks fit; and
(d) fourthly, to any person entitled to the Secured Property
or authorised to give receipts for those moneys.
11.2 Creditor's certificate and disputes
(a) The Mortgagee may rely upon a certificate issued by any
person who claims to be entitled to receive any of the Remedy
Proceeds to the effect that moneys are owing by the Mortgagor
to it and stating the amount owing, without being obliged to
make any further enquiry.
(b) If there is any dispute between any persons (other than
the Mortgagee) as to who is entitled to receive the Remedy
Proceeds, the Mortgagee may pay those moneys into court and
when that is done the Mortgagee will have no further
obligations in relation to those moneys.
11.3 No interest on Remedy Proceeds
The Mortgagee is not obliged to pay interest to any person upon the
Remedy Proceeds.
152
11.4 Payment into bank account
If the Mortgagee pays any moneys into a bank account in
the name of any person to whom the Mortgagee is obliged
to pay moneys under clause 11.1 and notifies that person
of the particulars of the account the Mortgagee will
have no further obligations in relation to those moneys.
11.5 Contingent and prospective indebtedness
If:
(a) part of the Secured Money is contingently owing; or
(b) in the reasonable opinion of the Mortgagee there is a
prospect that the moneys forming part of the Secured Money may
become owing (whether actually or contingently) by the
Mortgagor to the Mortgagee,
and the Mortgagee receives any moneys pursuant to this document, the
Mortgagee may:
(c) pay those moneys into a suspense account and hold them
as security for the payment of the Secured Money; and
(d) at any time appropriate any moneys in the suspense
account towards the satisfaction of any moneys due for payment
by the Mortgagor to the Mortgagee in any way that the
Mortgagee thinks fit,
and when the Secured Money is satisfied in full or the
Mortgagee no longer holds that opinion, the Mortgagee
shall pay the balance to any person entitled to the
Secured Property or authorised to give receipts for
those moneys.
Payments that would become payable under clauses 3.1(e)
to (j) inclusive of the Tritton Sale Agreement will not
for the purposes of this clause 11.5 be included under
paragraph (a) or (b) above unless at that time at least
one tonne of saleable copper has been produced from the
Tritton Project Area and such production constitutes
part of a program for substantial planned production and
not merely trial mining.
11.6 Payments during default notice period
If during the period from the service of a notice
requiring the rectification of a default in the payment
of moneys by the Mortgagor under this document until the
expiration of that notice the Mortgagor pays any moneys
to the Mortgagee towards satisfaction of the Secured
Money, the Mortgagee may apply those moneys first,
towards satisfaction of any moneys due for payment by
the Mortgagor to the Mortgagee other than those which
are the subject of the notice and secondly, towards
satisfaction of the moneys which are the subject of the
notice.
11.7 Accounting for Remedy Proceeds
The Mortgagee, any Receiver or any Attorney is not
obliged to account to the Mortgagor for any moneys
relating to the exercise by any of them of any right
until moneys are actually received in immediately
available funds and, without limitation, if any of them
sell the Secured Property on terms whereby:
153
(a) any part of the purchase price remains unpaid (whether
secured or unsecured) after transfer of the Secured Property
to the purchaser; or
(b) the purchase price is payable in instalments on or
before the transfer of the Secured Property to the purchaser,
they are not obliged to account for the purchase price
before it is actually received in immediately available
funds.
12 THIRD PARTY DEALINGS
12.1 Mortgagee's receipts and discharges
The Mortgagee may give valid discharges and receipts for
any moneys payable by any third party in respect of any
exercise of a right by the Mortgagee, any Receiver or
any Attorney.
12.2 No duty to enquire
(a) Any person dealing with the Mortgagee, any Receiver or
any Attorney in relation to the exercise by any of them of a
right under this document shall not be concerned to enquire
whether:
(i) the right is exercisable or properly exercised;
(ii) the Receiver or Attorney is properly appointed;
(iii) any moneys paid by it to the Mortgagee, Receiver or
Attorney are properly applied,
and the title of that person to any property
acquired by it from the Mortgagee, Receiver or
Attorney, will not be adversely affected by the
right not being exercisable or any improper
appointment, exercise of the right or application
of moneys by the Mortgagee, any Receiver or any
Attorney of which it does not have actual notice.
(b) The benefit of clause 12.2(a) is held on trust for the
benefit of the Mortgagee and each person dealing with the
Mortgagee, any Receiver or Attorney.
13 PRESERVATION OF MORTGAGEE'S RIGHTS
13.1 Continuing security
This document is a continuing Security for the whole of
the Secured Money and is not limited to any transaction
or other thing.
13.2 Primary obligations
The Mortgagor's obligation to pay the Secured Money is a
primary obligation and the Mortgagee is not obliged to
proceed against or enforce any other right against any
person or property or demand payment from any other
person before making a demand for payment by the
Mortgagor of the Secured Money.
154
13.3 Preservation of Mortgagor's obligations
The Mortgagor's obligations and the Mortgagee's rights
under this document will not be affected by anything
which but for this clause 13.3 might abrogate, prejudice
or limit them or the effectiveness of this document.
13.4 Suspension of Mortgagor's rights
The Mortgagor:
(a) waives any right to be subrogated to or otherwise have
the benefit of this document until the Secured Money has been
satisfied in full and in the reasonable opinion of the
Mortgagee any payment towards the satisfaction of the Secured
Money is not void, voidable or otherwise unenforceable or
refundable; and
(b) shall not exercise a right of set-off or counterclaim
available to it or any other person liable to the Mortgagee in
relation to the Secured Money which reduces or extinguishes
the obligation of the Mortgagor to pay the Secured Money,
and the Mortgagee is not obliged to marshall in favour
of the Mortgagor any Security or any property that the
Mortgagee has an interest in or may be entitled to
receive.
13.5 Reinstatement of rights of Mortgagee
If any transaction or payment relating to the Secured
Money is void, voidable or otherwise unenforceable or
refundable:
(a) the Mortgagee shall be entitled against the Mortgagor to
all rights under this document that it would have had if the
transaction or payment was not void, voidable or unenforceable
or refundable; and
(b) the Mortgagor shall do all things and sign such
documents necessary or convenient to restore to the Mortgagee
the Security Interests created by this document and its rights
under this document immediately before that transaction or
payment.
13.6 No merger
This document is in addition to and is not in any way
prejudiced by any judgment, order or other thing and the
Mortgagee's rights under this document shall not be
merged with any judgment, order or other thing.
13.7 Bankruptcy of debtor
The Mortgagor shall not in the Bankruptcy of any person
whose obligations to the Mortgagee the Mortgagor has
Guaranteed:
(a) directly or indirectly claim or receive the benefit of
any distribution, dividend or payment; or
(b) prove or claim for any distribution, dividend or payment
in competition with the Mortgagee,
155
so as to diminish any distribution, dividend or payment
which but for that claim or proof the Mortgagee would be
entitled to receive, until the Secured Money has been
paid in full and the Mortgagee is of the opinion that no
payment of those moneys is or is likely to become void,
voidable or otherwise unenforceable or refundable.
14 COSTS AND EXPENSES
14.1 Nature
The Mortgagor shall pay and if paid by the Mortgagee reimburse to
the Mortgagee:
(a) the Mortgagee's reasonable costs and expenses relating
to stamping and registration of this document or any document
contemplated by it.
(b) the Mortgagee's costs and expenses in relation to:
(i) the exercise or attempted exercise or the preservation
of any rights of the Mortgagee under this document; and
(ii) the occurrence of any Event of Default or Potential
Event of Default; and
(c) any Taxes and registration or other fees (including
fines and penalties relating to the Taxes and fees) which are
payable or are assessed by a relevant Government Body or other
person to be payable in relation to this document or any
document or transaction contemplated by it.
14.2 Goods and Services Tax
If any tax in the nature of a goods and services tax
(including, without limitation any value added tax,
consumption tax or other similar tax) ("GST") is imposed
on inputs of the Mortgagee or any supply made by the
Mortgagee under or in connection with a Transaction
Document, then the Mortgagee may, by notice to the
Mortgagor, elect to have the amounts payable or
consideration to be provided by the Mortgagor
redetermined by the Mortgagee, with effect from such
date as the Mortgagee may determine, so as to take into
account the impact of GST and in order to provide the
Mortgagee with the same rate of return as was originally
obtained by the Mortgagee on the amounts payable or
consideration to be provided by the Mortgagor prior to
the imposition of the GST.
14.3 Legal costs
A reference to costs and expenses in this document
includes, without limitation, legal costs and expenses
on a full indemnity basis.
14.4 Remuneration
The Mortgagee, any Receiver and any Attorney shall be
remunerated by the Mortgagor for any services rendered
by them in relation to the exercise of any right under
this document and the rate of the remuneration and the
manner of payment will be that determined by the
Mortgagee.
15 INDEMNITIES
15.1 Nature
156
(a) The Mortgagor indemnifies the Mortgagee upon demand
against any liability, loss, cost or expense (including,
without limitation, any Break Costs) caused or contributed to
by:
(i) any failure of the Mortgagor to comply with any
obligation under any Transaction Document;
(ii) any Event of Default;
(iii) the exercise or attempted exercise of any right by the
Mortgagee, any Receiver or any Attorney under the Transaction
Documents; or
(iv) any act by the Mortgagee in reliance on any
communication purporting to be from the Mortgagor or to be
given on behalf of the Mortgagor.
(b) The Mortgagor shall indemnify each Receiver and Attorney
and their respective Representatives and the Representatives
of the Mortgagee upon demand against any liability, loss, cost
and expense caused or contributed to by anything the Mortgagee
is indemnified against under this clause 15.1 and the
Mortgagee holds the benefit of this clause 15.1 upon trust for
those persons.
15.2 Currency deficiency
If there is any deficiency between:
(a) an amount payable by the Mortgagor under this document
which is received by the Mortgagee in a currency other than
the currency payable under this document because of a
judgment, order or otherwise; and
(b) the amount produced by converting the payment received
from the currency in which it was paid into the currency in
which it was agreed to be paid,
the Mortgagor shall pay to the Mortgagee the deficiency
and any loss, costs or expenses resulting from it.
15.3 Independence and survival
Each indemnity in this document is a continuing
obligation, separate and independent from the other
obligations of the Mortgagee and survives the
termination of this document.
16 ATTORNEY
16.1 Appointment
The Mortgagor irrevocably appoints the Mortgagee its attorney with
the power:
(a) after an Event of Default has occurred:
157
(i) do everything which in the Attorney's reasonable opinion
is necessary or expedient to enable the exercise of any right
of the Mortgagee in relation to this document;
(ii) complete this document; and
(iii) appoint substitutes and otherwise delegate its powers
(including this power of delegation); and
(b) after any Event of Default has occurred, to do all acts
and things which the Mortgagor is obliged to do under this
document or which is necessary or expedient in connection with
the Secured Property or the protection or perfection of the
Mortgagee's interest in the Secured Property.
16.2 General
(a) Any Attorney may exercise any right solely for the
benefit of the Mortgagee and notwithstanding that the exercise
of the right constitutes a conflict of interest or duty.
(b) The Mortgagor by this document ratifies anything done or
not done by the Attorney within the terms of the power of
attorney.
(c) The power of attorney is granted:
(i) to secure the compliance by the Mortgagor with its
obligations to the Mortgagee under this document and any
proprietary interests of the Mortgagee under this document;
and
(ii) for valuable consideration (receipt of which is
acknowledged) which includes the acceptance of this document
by the Mortgagee at the Mortgagor's request.
17 MISCELLANEOUS
17.1 Mortgagee's determination and certificate
(a) A certificate by the Mortgagee relating to any
Transaction Document is, in the absence of manifest error,
prima facie evidence against the Mortgagor of the matters
certified.
(b) The Mortgagee is not obliged to give the reasons for its
determination or opinion in relation to any matter under any
Transaction Document.
(c) A determination or an opinion of an Authorised
Representative of the Mortgagee which is given to the
Mortgagor or otherwise expressed or acted upon by the
Mortgagee as being a determination or an opinion of the
Mortgagee will be deemed to be a determination or opinion of
the Mortgagee.
17.2 Supervening legislation
Any present or future legislation which operates:
158
(a) to lessen or vary in favour of the Mortgagor any of its
obligations in connection with this document; or
(b) to postpone, stay, suspend or curtail any rights of the
Mortgagee under this document,
is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
17.3 Time of the essence
Time is of the essence of any obligation of the Mortgagor under
this document.
17.4 Business Days
(a) If the day on which anything, including a payment, is to
be done by the Mortgagor under this document is not a Business
Day, that thing shall be done on the preceding Business Day.
(b) If anything, including a payment, is to be done by the
Mortgagor on a particular day and it is done:
(i) after the time by which this document states it must be
done or, if this document does not state a time, after 4.00
pm. in the place where it is to be done; or
(ii) on a day which is not a Business Day in the place where
it is to be done,
it will be deemed to have been done at the
commencement of the next Business Day in the place
where it is to be done.
17.5 Exchange rate
Subject to any express provision to the contrary, if for
the purposes of this document it is necessary to convert
one currency into another currency the conversion shall
be effected using an exchange rate selected by the
Mortgagee.
17.6 Further assurances
(a) The Mortgagor shall promptly execute all documents and
do all things that the Mortgagee from time to time reasonably
requires to:
(i) effect, perfect or complete the provisions of this
document or any transaction contemplated by it;
(ii) establish the priority of or reserve or create any
Security Interest contemplated by or purported to be reserved
or created by this document;
(iii) stamp and register this document in any relevant
jurisdiction and by any person that the Mortgagee thinks fit;
and
(iv) subject to clause 6.25, create any type of Security
Interest over any part of the Secured Property upon the same
terms and conditions (with necessary modifications) as this
document and any additional terms and conditions reasonably
required by the Mortgagee having regard to the nature of that
part of the Secured Property and the type of additional
Security Interest being created.
159
(b) The Mortgagor shall:
(i) give a mortgage (as defined in section 3 in the Real
Property Act) over any interest in any land acquired by the
Mortgagor in the future and which is consolidated with or is
an accretion to the Secured Property, promptly upon that
interest being acquired; and
(ii) promptly give a charge (as defined in section 3 of the
Real Property Act) over the Secured Property and any future
interest referred to in this clause 17.6(b) if at any time an
annuity, rent charge or sum of money other than a debt becomes
part of the Secured Money.
(c) Any mortgage or charge given under this clause 17.6 must
contain the same provisions as this document, with necessary
modifications, and be subject only to Encumbrances approved by
the Mortgagee.
17.7 Amendment
This document may only be varied or replaced by a written document
duly executed by the Mortgagee.
17.8 Waiver and exercise of rights
(a) A right in favour of the Mortgagee under this document,
a breach of an obligation of the Mortgagor under this document
or the occurrence of an Event of Default can only be waived by
a written instrument signed by the Mortgagee. No other act,
omission or delay of the Mortgagee will constitute a waiver.
(b) A single or partial exercise or waiver by the Mortgagee
of a right relating to this document will not prevent any
other exercise of that right or the exercise of any other
right.
(c) The Mortgagee and its Representatives will not be liable
for any loss, cost or expense of the Mortgagor caused or
contributed to by the waiver of, exercise of, attempted
exercise of, failure to exercise or delay in exercising a
right and the Mortgagee holds the benefit of this clause 17.8
upon trust for itself and its Representatives.
17.9 Rights cumulative
The rights of the Mortgagee under this document are
cumulative and are in addition to any of its other
rights.
17.10 Approval and consent
The Mortgagee may conditionally or unconditionally give
or withhold any consent to be given under this document
and is not obliged to give its reasons for doing so.
160
17.11 Assignment
(a) Subject to clause 6.25, the Mortgagor shall not dispose
of or Encumber any right under this document without the
written consent of the Mortgagee.
(b) The Mortgagee's rights under this document are
assignable.
17.12 Counterparts
This document may consist of a number of counterparts
and if so the counterparts taken together constitute one
and the same instrument.
17.13 Sovereign immunity
The Mortgagor irrevocably waives any immunity that it or
its property has from:
(a) set off;
(b) legal, arbitral or administrative proceedings;
(c) any process or order of any court, administrative
tribunal or arbitrator for the satisfaction or enforcement of
a judgment, order or arbitral award or for the arrest,
detention or sale of any property;
(d) service upon it of any process, judgment, order or
arbitral award,
on the grounds of sovereignty or otherwise under any law
of any jurisdiction where any proceedings may be brought
or enforced in relation to any Event of Default under
this document.
17.14 Governing law and jurisdiction
(a) This document is governed by and shall be construed in
accordance with the laws of the Relevant Jurisdiction.
(b) The parties irrevocably and unconditionally submit to
the nonexclusive jurisdiction of the courts of the Relevant
Jurisdiction and any courts which have jurisdiction to hear
appeals from any of those courts and the parties waive any
right to object to any proceedings being brought in those
courts.
17.15 Joint and several liability
Where 2 or more parties comprise the Mortgagor:
(a) a reference to the Mortgagor includes each and any 2 or
more of them; and
(b) the obligations on the part of the Mortgagor bind them
jointly and severally.
18 NOTICES
18.1 General
A notice, demand, certification, process or other
communication relating to this document shall be written
in English and may be given by an Authorised
Representative of the sender.
161
18.2 Method of service
In addition to any other lawful means, a communication may be given by:
(a) being personally served on a party;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by
pre-paid ordinary mail or, if the address is outside
Australia, by pre-paid airmail; or
(d) facsimile to the party's current number for service.
18.3 Address for service
(a) The particulars for service are initially:
The Mortgagor:
Address: Level 15, 3 Spring Street, Sydney NSW 2000
Facsimile: 9241 5170
Email: johns@nordpacific.com.au
Attention: John Syriatowicz
The Mortgagor:
Address: Level 15, Goldfields House, 1 Alfred Street, Sydney
NSW 2000
Facsimile: 9241 2465
Email: brear@ozemail.com.au
Attention: Brian Rear
(b) Each party may from time to time change its particulars
for service by notice to each other party.
18.4 Service
If a communication is given by:
(a) post it will be deemed received if posted within
Australia to an Australian address 3 Business Days after
posting and in any other case 10 Business Days after posting
by airmail;
(b) facsimile and the sender's facsimile machine produces a
transmission report indicating that the facsimile was sent to
the addressee's facsimile, the report will be prima facie
evidence that the facsimile was received by the addressee at
the time indicated on that report.
162
18.5 Service after hours
If a communication to the Mortgagee is received by it:
(a) after 5.00 pm.; or
(b) on a day which is not a Business Day;
it will be deemed to have been received on the next Business Day.
18.6 Process service
Any process or other document relating to litigation,
administrative or arbitral proceedings relating to this
document may be served by any method contemplated by
this clause 18 or in accordance with any applicable law.
163
SCHEDULE ONE
FREEHOLD LAND
Lot No Deposited Plan Area (HA) Location
11 751315 16.19 Giri North
13 751315 16.19 Giri North
14 751315 78.10 Giri North
30 751315 18.82 Giri North
40 751315 183.93 Giri North
51 751315 77.19 Giri North
108 751315 16.19 Giri North
138 751315 390.11 Giri North
139 751315 343.98 Giri North
140 751315 354.91 Giri North
141 751315 244.83 Giri North
147 824129 48.56 Giri North
1 827919 24.06 Giri North
12 858163 18.42 Giri North
61 875925 104.40 Tritton
41 879206 202.30 Tritton